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(Cite
as: 159 Ariz. 232, 766 P.2d 105)
Court
of Appeals of Arizona,
Division
1, Department C.
In
the Matter of the APPEAL IN MARICOPA COUNTY JUVENILE ACTION
NO. JS-7359.
No.
1 CA-JV 88-009.
Sept.
29, 1988.
Review
Denied Jan. 24, 1989.
Father's
objection to Narraganset Tribe's assertion of jurisdiction over termination of
parental rights proceeding mandated retention of jurisdiction over proceeding by
Arizona trial court. Indian Child Welfare Act of 1978, §§ 101-403,
25 U.S.C.A. §§ 1911-1963.
Mother
failed to establish that her children were "Indian children" within
meaning of Indian Child Welfare Act, which defines Indian child
as unmarried person under 18 who is member of tribe
or eligible for membership in tribe and biological child of
member, and thus, Act had no implication in dependency proceedings
or termination of parental rights proceedings; evidence indicated that mother's
enrollment and that of children depended upon enrollment of mother's
father, that father was not enrolled member of tribe in
1987, and that he had attempted to perfect enrollment, but
no evidence indicated that he had ever achieved enrollment. Indian
Child Welfare Act of 1978, §§ 101-403,
25 U.S.C.A. §§ 1911-1963.
Even
if Indian Child Welfare Act applied and trial court ignored
placement preferences spelled out under Act, Act was immaterial to
question of whether termination of parental rights based on mother's
failure to remedy condition which made out-of-home placement necessary was
appropriate; focus in terminating proceeding was not on where children
had been living but on why they were dependent, whether
situation could be remedied, and if not why. Indian Child
Welfare Act of 1978, §§ 101-403,
25 U.S.C.A. §§ 1911-1963;
A.R.S. § 8-533,
subd. B, pars. 6, 6(a, b).
Mother's
claim that initial dependency proceeding which resulted in out-of-home placement
violated terms of Indian Child Welfare Act was impermissible collateral
attack on order finding children dependent, which order was not
appealed, and would not be considered on appeal from order
terminating mother's parental rights. Indian Child Welfare Act of 1978,
§§ 101-403,
25 U.S.C.A. §§ 1911-1963.
Arizona
statute permitting termination of parental rights after one year of
out-of-home placement if Department of Economic Securities made diligent efforts
to reunify family and parent has substantially neglected or refused
to remedy circumstances causing out-of-home placement incorporates concept of parental
unfitness, and thus does not unconstitutionally permit termination of parental
rights, depriving parents and children of fundamental right, without finding
that parent is unfit. A.R.S. § 8-533,
subd. B, pars. 6, 6(a, b).
**106
*233
Beer & Toone, P.C. by John D. Harris and Atmore
Baggot, Phoenix, for natural mother.
Linda Gray Fee, Phoenix, for appellee children.
Robert K. Corbin, Atty. Gen., by C. Eileen Bond, Asst.
Atty. Gen., Phoenix, for Arizona Dept. of Economic Sec.
OPINION
KLEINSCHMIDT, Judge.
This is an appeal from an order of the juvenile
court terminating the parent-child **107
*234
relationship between a mother and two of her children. The
case involves the application of the Indian Child Welfare Act,
25 U.S.C. §§ 1911-63
(1978), and the constitutionality of the Arizona statutes relating to
termination.
The appellant, Donna Hutchinson, was formerly married to Dennis Lee
Somerville. The couple had three children, the younger two are
a daughter and a son.
In 1975, the Somervilles were divorced and Donna received custody
of the children. That same year, Donna married Howard Fancher.
Because Fancher abused the children, all three were removed from
the home by State of Rhode Island
authorities on two occasions in 1980 and 1981. The Rhode
Island court transferred custody of the children to their natural
father, an arrangement that continued after Donna divorced Fancher. In
1984, Donna married Robert Hutchinson.
In 1984, Dennis Somerville and his children were living in
Arizona. It was reported to the Arizona Department of Economic
Security (DES) that Dennis had abused his daughter. The father
admitted the allegation and all of the children were taken
into custody by DES. The appellant was contacted at her
home in Massachusetts, and she requested that the children be
placed with her. DES declined to do that upon learning
that the children had previously been removed from her custody.
It was believed that the appellant was a Narraganset Indian.
The DES, upon declining to place the children with their
mother, contacted the Narraganset Tribe, and the tribe indicated that
it wished to intervene in the Arizona proceedings. In July
of 1984, the tribe filed a motion to intervene and
requested that the case be transferred to tribal authorities. In
November 1984, after the natural father filed a formal notice
of objection to the transfer, the trial court denied the
request to transfer.
Almost a year later, in October 1985, the juvenile judge
approved a case plan calling for the return of the
oldest of the three children to the appellant. The remaining
two children were to be released to their mother and
stepfather "either
between the present and upcoming school semesters or at the
end of the Spring school semester depending on progress shown
by the mother and the stepfather in appropriate counseling and
assuming reasonable stable parenting by the mother and stepfather of
[the oldest child] is shown." The judge provided a detailed
plan of counseling for the mother and her husband.
In April of 1986, the judge denied the appellant's request
for the return of the children until he could obtain
the results of a neurological examination of the mother and
an explanation of why she had not participated in therapy.
Two months later, the court entered an order reciting that
the appellant was seriously uncooperative and advising her that the
court was contemplating initiating termination proceedings, a step which he
finally directed DES to take in October 1986.
In January 1987, DES filed a petition to terminate the
parent-child relationship between the appellant and the two youngest children.
The Narraganset Tribe was notified and initially indicated a desire
to intervene and assert jurisdiction over the case. Thereafter, in
July 1987, the tribe's director of social services sent the
juvenile judge a letter, the text of which was:
The
Narraganset Tribe of Indians, after due conversation with the children's
attorney, are going to remit jurisdiction in this matter, and
allow the State to determine the best placement resources.
While there is a reference to this letter in the
appellant's memorandum, neither the appellant nor the DES appears to
attach any significance to it for the issues presented in
this case.
After a severance hearing, the juvenile judge concluded beyond a
reasonable doubt that the two youngest children had been cared
for in an out-of-home placement under the supervision of DES
for a cumulative total of one year or longer and
that the mother had neglected or refused to remedy the
situation giving rise to the out-of-home placement. On this basis
the judge granted termination.
**108
*235
The appellant asserts the following five grounds of error:
1.
When the motion to transfer jurisdiction to the Tribe was
made, the juvenile court lost jurisdiction, and all of its
subsequent orders are void.
2.
The placement preferences spelled out in the Indian Child Welfare
Act were never taken into account. Since the out-of-home placement
was improper, the Arizona statute which makes such placement for
an extended period grounds for termination cannot apply.
3.
Termination cannot be based on an extended out-of-home placement because
the order for placement did not meet the standards of
the Indian Child Welfare Act, which authorize out-of-home placement only
when there is clear and convincing evidence from qualified experts
that parental custody will result in serious physical or emotional
damage to the child. When the children were removed
from the custody of their natural father, the court declined
to return them to their mother without making such a
finding.
4.
The Indian Child Welfare Act precludes termination in the absence
of a finding beyond a reasonable doubt that custody by
the parent is likely to result in serious emotional or
physical damage to the child. The juvenile court did not
address this requirement.
5.
The Arizona statute which allows for termination based on extended
out-of-home placement is unconstitutional because neither administrative convenience in terminating
a dependency nor the best interests of the children are
justifiable reasons for depriving parents and children of a fundamental
right.
THE
ARIZONA COURT HAD JURISDICTION
The
Indian Child Welfare Act gives tribal courts concurrent jurisdiction with
state courts over any Indian child who is not domiciled or residing on
the reservation. Under 25 U.S.C.A. § 1911(b) the
state court, in the absence of good cause to the contrary and absent objection
by either parent, must transfer jurisdiction of an Indian child to the
tribal court. The father's objection mandated the retention of jurisdiction
by the Arizona court.
THE
INDIAN CHILD WELFARE ACT DOES NOT APPLY
The appellant premises
her arguments regarding the invalidity of the juvenile court's order on
the assumption that the children are "Indian children" within
the meaning of the Act. The premise is faulty.
The Act defines an "Indian child" as
[a]ny
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.
A party who asserts the affirmative of an issue generally
has the burden of proving it. Black,
Robertshaw, Frederick, Copple & Wright v. United States,
130 Ariz. 110, 634 P.2d 398 (App.1981). In 1984, when
the tribe sought the transfer of jurisdiction, it was assumed
that the children were Indians as defined by the statute.
This assumption was apparently incorrect. The appellant's enrollment, and that
of her children, depended upon the enrollment of her father,
Donald Lincoln. Evidence secured from tribal authorities in late September
1987 showed that Lincoln was not an enrolled member of
the tribe and was in the process of trying to
perfect his enrollment. There was evidence that a birth certificate
submitted by Lincoln in support of his application had been
altered. There is nothing in the record to show that
he has ever achieved enrollment.
If the children are not Indian
children, the Indian Child Welfare Act has no implication for either the
dependency proceedings or the termination proceedings. See
State ex rel. Juvenile Department of Lane County,
76 Or.App. 673, 710 P.2d 793 (1985). Even if the Indian Child
Welfare Act applied and the preferred placements were ignored, this is
immaterial to the question
whether termination based on a failure to remedy the condition which made
the out-of-home placement necessary is appropriate. *236
**109
See B.R.T. v. Executive Director,
391 N.W.2d 594 (N.D.1986). In a termination proceeding the
focus is not on where the children have been living but on why they are
dependent, whether the situation can be remedied, and if not, why not.
The appellant argues that the
initial dependency proceeding which resulted in an out-of-home placement
violated the terms of the Indian Child Welfare Act because there was no
finding, by clear and convincing evidence based on the testimony of qualified
experts, that parental custody would result in serious physical or emotional
damage to the children. The original order finding the children
dependent was not appealed. The appellant's argument amounts
to an impermissible collateral attack on the order. See
Bill v. Gossett, 132
Ariz. 518, 647 P.2d 649 (App.1982). We therefore do not consider
the argument.
CONSTITUTIONALITY
OF THE ARIZONA TERMINATION STATUTE
The maintenance of the
parent-child relationship is a fundamental right, and the rationality
of statutes which abridge it is subject to strict scrutiny. Santosky
v. Kramer, 455 U.S.
745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). The appellant
argues that under Santosky
termination is improper unless the state proves that the person whose
rights are to be terminated is an unfit parent. She says that
here, there was no finding that she was an unfit parent
or that continuation of the parent-child relationship would seriously
jeopardize the welfare of the children. See
Juvenile Appeal No. JS-4283,
133 Ariz. 598, 653 P.2d 55 (App.1982). She further says that
the only justification for termination based on out-of-home placement
is the administrative convenience of the state and the best interests
of the child in obtaining a secure home, and that these are insufficient
reasons for termination.
It is true that the purpose of A.R.S. § 8-533(B)(6)
is to expedite the adoption of children in foster care
who have no hope of being returned to their natural
parents. Juvenile
Appeal No. JS-6520,
157 Ariz. 238, 756 P.2d 335 (App.1988). What the appellant
overlooks is that our statutes incorporate a concept of parental
unfitness. Termination can occur after one year of out-of-home placement
if the DES has made diligent efforts to reunify the
family and the parent has
substantially neglected or refused to remedy
the circumstances which caused the child to be in out-of-home
placement. A.R.S. § 8-533(B)(6)(a).
Termination can occur after two years of out-of-home placement if
the agency has made diligent efforts at reunification and the
parent has
not been able to remedy
the circumstances which caused the placement and there is a
substantial likelihood that the parent will not be capable of
exercising proper and effective parental care and control in the
near future. A.R.S. § 8-533(B)(6)(b).
The appellant's refusal to remedy the situation that
made out-of-home placement necessary is a reflection on her fitness
as a parent.
The United States Supreme Court recognized that these grounds are
sufficient for a termination when it said:
The
State's interest in finding the child an alternative permanent home
arises only 'when it is clear
that the natural parent cannot or will not provide a
normal family home for the child.'
Santosky, 455 U.S. at 767, 102 S.Ct. at 1402, 71
L.Ed.2d at 615 (emphasis in original).
The orders of the trial court are affirmed.
GRANT, C.J., and SHELLEY, P.J., concur.
159 Ariz. 232, 766 P.2d 105
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