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Indian Child Welfare Act in Arizona Child Custody Cases

Posted on : October 23, 2017, By:  Christopher Hildebrand
Divorce Lawyers Phoenix AZ

Indian Child Welfare Act in Arizona Child Custody Cases

The case of Michelle M. v. Department of Child Safety, H.N. (Minor child) No. 1 CA-JV 17-0019 involves a minor child and a biological, substance-addicted mother. The biological father did not establish paternity during the proceedings. (Mother) Michelle M. gave birth to H.N., a substance-exposed daughter, in October 2015. H.N. was hospitalized for over a month during which time the Department of Child Safety (D.E.S.) filed a dependency petition which is an assertion by the state or a third party that a parent is unfit or unable to care for their child or children.

Following H.N.’s birth, her alleged father self-reported that he was registered with the Navajo Nation which made H.N. an Indian child and subject to their rules and regulations. At that time, D.C.S .provided proper notice under requirements of the Indian Child Welfare Act (I.C.W.A.). During this time, H.N.’s alleged father did not establish paternity, so the Navajo Nation did not appear in the proceedings.

Indian Child Welfare Act in Arizona Child Custody Cases.

Indian Child Welfare Act in Arizona Child Custody Cases.

In April 2016, D.C.S. was able to successfully argue that I.C.W.A. did not apply. The court then found H.N. dependent as to Mother, though Mother had failed to attend the hearing. At that time, the court also adopted a case plan to reunify the family. By June 2016, the court had changed the plan from the reunification of the family to severance of Mother’s rights and outside adoption of H.N. D.C.S. put forth a motion that severance would be in H.N.’s best interests.

In terminating parental rights, two criteria must be met: 1. A finding by clear and convincing evidence that at least ONE statutory ground listed in A.R.S. § 8-533(B) has been proven 2. A finding by a preponderance of the evidence that termination is in the best interests of the child. By December of 2016, the court had granted the motion to terminate, finding that “D.C.S. proved by clear and convincing evidence both statutory grounds and the preponderance of the evidence that termination would be in H.N.’s best interests”.



In this case, D.C.S. proved both statutory grounds for severance and Mother did not challenge this. She did, however, challenge the decision to terminate Mother’s rights as it pertained to H.N.’s “best interests”. Mother insisted that she and H.N. had a relationship that should be allowed to continue. The criteria to support a termination of rights based on “best interests” is clear and succinct. To support a best interests finding, “the court must find either that the child will benefit from the termination of the relationship or that the child would be harmed by continuation of the parental relationship.”

Since Mother had a “long history of drug abuse and mental health-related issues” and also refused to participate in services offered health-related services to curb her current abuse of drugs, it was apparent to the court that she was unable and unwilling to do what was necessary to take adequate care of H.N. The court found that H.N. would be endangered by her mother if the relationship was allowed to continue. On the record, the Superior Court properly found severance was in H.N.’s best interest.

During this time, Mother had been incarcerated and insisted that she was taking steps to address her substance abuse issues. She also gave testimony at one point that indicated that she “did have a tribal affiliation” and that in fact because of that affiliation, H.N. would also be eligible for membership. The mother claimed that the court erred in its failure to comply with I.C.W.A. notice requirements.

Indian Child Welfare Act in Arizona.

Indian Child Welfare Act in Arizona.

This became a sticking point for the court as the I.C.W.A. also has clear and succinct rules and regulations. The I.C.W.A. has a clear definition of an “Indian child” as “any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.” I.C.W.A. requires that notice to the relevant tribe must be provided in any proceedings in a State court, where the court knows or has reason to know that an Indian child is involved. This notice allows the tribe to request rights from the I.C.W.A. to intervene or even to possibly have the proceedings transferred to the relevant tribal court, pursuant to 25 U.S.C. § 1911(b) & (c). The I.C.W.A., once involved, can also impose additional requirements which are not part of Arizona law or they can choose not to intervene or take any other action allowed by I.C.W.A.

Though D.C.S. argued that Mother’s testimony was too late to provide adequate notice about H.N.’s possible Indian heritage, it is clear that under I.C.W.A. law “notice is mandatory” no matter how late in the proceedings. It is also unlawful for a parent to waive the notice requirement. With these conditions in mind, due to Mother’s testimony concerning her tribal affiliation, D.C.S. was required to notify I.C.W.A. of the possibility that H.N. was an Indian child. D.C.S. erred in not providing this notice. Even though D.C.S. erred in this situation, it did not mean an automatic reversal of the order terminating Mother’s rights.

Since the notice to I.C.W.A. must occur before the termination order may be resolved on appeal, the appeal stays for 90 days. This allows time for the Superior Court to react to any action from the I.C.W.A. following that notice and then determine further proceedings depending on that action. Upon notice, the I.C.W.A. may choose to identify H.N. as an Indian child, identify her as a non-Indian child, or they may choose not to respond at all. Mother’s counsel is asked to provide notice of that decision to the court within an appropriate time.

If you have a question about child custody in Arizona, please call to speak to one of our experienced Scottsdale and Phoenix child custody Arizona attorneys at (480)305-8300.

Hildebrand Law, PC

4900 North Scottsdale Road, Suite 1500
Scottsdale, Arizona 85251
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