S.S., S.S. v. Stephanie H.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

S.S., S.S., Appellants,

v.

STEPHANIE H., GARRETT S., COLORADO RIVER INDIAN TRIBES,
Appellees.

No. 1 CA-JV 16-0163
FILED 1-12-2017

Appeal from the Superior Court in La Paz County
No. S1500SV201200004
The Honorable Douglas Camacho, Judge Pro Tempore

AFFIRMED

COUNSEL

Rideout Law, PLLC, Lake Havasu City
By Wendy Marcus
Counsel for Appellants

Jessica L. Quickle, Attorney at Law, Parker
By Jessica L. Quickle
Counsel for Appellee Mother

Office of the Attorney General, Colorado River Indian Tribes, Parker
By Elizabeth M. Lorina-Mills, LeeAnne Kane
Counsel for Appellees Colorado River Indian Tribes
 S.S., S.S. v. STEPHANIE H., et al
Opinion of the Court

OPINION

Presiding Judge Diane M. Johnsen delivered the opinion of the Court, in
which Judge Jon W. Thompson and Judge John C. Gemmill joined.1

J O H N S E N, Judge:

¶1 This appeal requires us to consider application of the Indian
Child Welfare Act of 1978 ("ICWA") to a private severance proceeding
brought by an Indian parent against a non-Indian parent on grounds of
abandonment. For the reasons that follow, we affirm the superior court's
denial of the requested severance.

FACTS AND PROCEDURAL HISTORY

¶2 Stephanie H. ("Mother") and Garrett S. ("Father") have two
children, born in 2000 and 2002, respectively. Upon Mother and Father's
divorce in 2005, the court awarded Mother "sole primary care, custody, and
control" of the children and granted Father visitation.

¶3 In February 2009, Mother and the children abruptly moved
from Northern Arizona to a town south of Phoenix without the court's
permission and without notice to Father. On Father's ex parte petition for
relief, the court found the children were at risk of harm and awarded Father
"temporary sole legal and physical custody." At the return hearing, Mother
lied about the children's whereabouts. After the children were returned to
Father a few days later, the court found Mother guilty of perjury and
imposed a term of probation that required her to submit to drug testing and
substance-abuse counseling.

¶4 A few months later, the court awarded Father "continued sole
legal and physical custody" of the children, contingent upon his submission
to hair follicle drug testing. The court granted Mother supervised
visitation, also contingent upon hair follicle drug testing. Father complied
with the drug test requirement within a few weeks, but Mother did not. At
a review hearing in August 2009, the court reaffirmed that Mother could

1 The Honorable John C. Gemmill, Retired Judge of the Court of
Appeals, Division One, has been authorized to sit in this matter pursuant
to Article VI, Section 3 of the Arizona Constitution.

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Opinion of the Court

have "no visitation and no contact by any means (phone, texting, and
visiting schools) with the children until the drug testing [was] completed."
After that order, Mother took and passed three hair follicle drug tests, one
in 2010 and two in 2014. Between June 2011 and October 2013, as a
requirement of her probation, Mother submitted to 72 random urinalyses,
69 of which were negative. In August 2011, she successfully completed a
12-step drug and alcohol recovery program.

¶5 Father filed a petition to sever Mother's parental rights in
December 2012, alleging abandonment and neglect pursuant to Arizona
Revised Statutes ("A.R.S.") section 8-533(B)(1), (2) (2017).2 Various pretrial
proceedings and several reassignments of judicial officers caused trial to be
delayed until January 2016. In the meantime, Mother made multiple child-
support payments between August 2012 and March 2014 and completed a
parenting class. Mother also filed for visitation in 2013 and 2014. Father
opposed Mother's petitions for visitation, which the court denied. By the
time of trial, Mother had not seen the children since May 2009.

¶6 The Colorado River Indian Tribes intervened in the severance
case and fully participated at trial. All parties acknowledged that the two
children were Indian children under ICWA, 25 U.S.C. § 1903(4) (2012).
Accordingly, before the court could sever Mother's parental rights, Father
would need to prove that (1) active efforts were made to prevent the
breakup of the Indian family, (2) those efforts were unsuccessful and (3)
continued custody by Mother was likely to result in serious emotional or
physical damage to the children. See 25 U.S.C. § 1912(d), (f) (2012).

¶7 At the close of Father’s case, Mother moved to dismiss
pursuant to Arizona Rule of Procedure for the Juvenile Court 66(F)(3). The
court ruled Father had offered sufficient evidence to go forward on
abandonment but not neglect. The court found sufficient evidence to show
severance would be in the best interests of the children, see A.R.S. § 8-533(B),
and, addressing one of the required ICWA elements, "at least some"
evidence that continued custody by Mother was likely to result in serious
emotional or physical damage to the children, see 25 U.S.C. § 1912(f). The
court, however, granted Mother's motion to dismiss because it found Father
had not offered sufficient evidence to prove unsuccessful "active efforts" to
prevent breakup of the family. See 25 U.S.C. § 1912(d).

2 Absent material revision after the relevant date, we cite a statute's
current version.

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 S.S., S.S. v. STEPHANIE H., et al
Opinion of the Court

¶8 The children timely appealed the dismissal of the petition for
severance.3 We have jurisdiction under Article 6, Section 9, of the Arizona
Constitution and pursuant to A.R.S. §§ 8-235(A) (2017), 12-1201(A)(1) (2017)
and Arizona Rule of Procedure for the Juvenile Court 103(A).

DISCUSSION

A. Application of ICWA to a Private Severance of a Non-Indian's
Parental Rights.

¶9 The children first argue ICWA does not apply to a private
petition to sever and, in particular, does not apply to an Indian parent's
petition to sever the parental rights of a non-Indian parent. They contend
ICWA is aimed at abusive child-welfare practices carried out by nontribal
public and private agencies, see Adoptive Couple v. Baby Girl, 133 S. Ct. 2552,
2557 (2013), and argue the severance petition at issue here presents no such
concern.4

¶10 Congress adopted ICWA, 25 U.S.C. §§ 1901-1963, after finding
that "an alarmingly high percentage of Indian families [were] broken up by
the removal, often unwarranted, of their children from them by nontribal
public and private agencies." See 25 U.S.C. § 1901(4) (2012); H.R. Rep. No.
95-1386, at 9 (1978) ("Surveys . . . indicate that approximately 25-35 percent
of all Indian children are separated from their families."). Accordingly,

3 Father has not appeared in this appeal.

4 "This court reviews de novo the interpretation and application of a
statute." Michael J., Jr. v. Michael J., Sr., 198 Ariz. 154, 156, ¶ 7 (App. 2000).
"In interpreting a statute, we first look to the language of the statute itself."
Cross v. Elected Officials Ret. Plan, 234 Ariz. 595, 603, ¶ 26 (App. 2014). "If the
language is clear, the court must 'apply it without resorting to other
methods of statutory interpretation.'" Bilke v. State, 206 Ariz. 462, 464, ¶ 11
(2003) (quoting Hayes v. Cont'l Ins. Co., 178 Ariz. 264, 268 (1994)). "If the
language is not clear, we consider other factors such as 'the context of the
statute, the language used, the subject matter, its historical background, its
effects and consequences, and its spirit and purpose.'" Cross, 234 Ariz. at
603, ¶ 26 (quoting In re Estate of Jung, 210 Ariz. 202, 204, ¶ 12 (App. 2005)).
Unless otherwise stated, we assume the legislature "accords words their
natural and obvious meaning," which often may be discerned from a
dictionary definition. State v. Jones, 188 Ariz. 388, 392 (1997).

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Opinion of the Court

ICWA provides "minimum Federal standards for the removal of Indian
children from their families." 25 U.S.C. § 1902 (2012).

¶11 The federal act applies to a "child custody proceeding,"
including a "termination of parental rights," involving an "Indian child." See
25 U.S.C. § 1903(1)(ii); Maricopa County Juv. Action No. A-25525, 136 Ariz.
528, 531 (App. 1983). An "Indian child" under ICWA is "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." 25 U.S.C. § 1903(4).

¶12 As Mother and the Tribes argue, ICWA’s plain language does
not limit its scope to proceedings brought by state-licensed or public
agencies. By its own terms, ICWA applies to any petition to terminate a
parent's rights. 25 U.S.C. § 1903(1)(ii) ("'termination of parental rights' . . .
shall mean any action resulting in the termination of the parent-child
relationship"). "Read naturally, the word 'any' has an expansive meaning,
that is, 'one or some indiscriminately of whatever kind.'" United States v.
Gonzales, 520 U.S. 1, 5 (1997) (quoting Webster's Third New International
Dictionary 97 (1976)). It follows that Congress did not intend that ICWA
would apply only to termination proceedings commenced by state-licensed
or public agencies. See D.J. v. P.C., 36 P.3d 663, 673 (Alaska 2001) ("ICWA
applies to termination proceedings when a party other than the state seeks
the termination."); In re N.B., 199 P.3d 16, 19 (Colo. App. 2007) ("ICWA's
plain language is not limited to action by a social services department."); In
re D.A.C., 933 P.2d 993, 1000-01 (Utah App. 1997) (ICWA applies to any
proceeding in juvenile court with permanent consequences to the parent-
child relationship).

¶13 Further, Congress explicitly excluded dissolution and
delinquency proceedings from its definition of "child custody proceeding."
25 U.S.C. § 1903(1). Had it also intended to exclude private termination
proceedings, we presume it would have done so expressly. See Hillman v.
Maretta, 133 S. Ct. 1943, 1953 (2013) (“[W]here Congress explicitly
enumerates certain exceptions to a general prohibition, additional
exceptions are not to be implied, in the absence of evidence of a contrary
legislative intent.” (quoting Andrus v. Glover Constr. Co., 446 U.S. 608, 616-
17 (1980))). Accordingly, and in the absence of any authority to the
contrary, we conclude that ICWA applies to a private termination
proceeding just as it applies to a proceeding commenced by a state-licensed
private agency or public agency.

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Opinion of the Court

¶14 The children also argue, however, that ICWA does not apply
because termination of Mother's rights would not result in the breakup of
an Indian family, given that they would remain in the custody of their
Indian parent, Father.

¶15 Although Congress might have crafted ICWA to exclude
petitions to sever the rights of non-Indian parents, no such exclusion
appears in the statute, which, as we have said, expressly applies to "any
action resulting in the termination of the parent-child relationship." 25
U.S.C. §§ 1903(1)(ii); see 25 U.S.C. § 1912(d), (f). Moreover, under the statute,
"parent" means "any biological parent . . . of an Indian child." 25 U.S.C. §
1903(9). Given this and ICWA's definition of "termination of parental
rights," id. § 1903(1)(ii), the plain language of the act reveals its focus is not
on custody proceedings that affect Indian parents, but instead is on custody
proceedings that affect Indian children. See id. § 1903(1)(ii). This conclusion
is further supported by ICWA's stated purpose. See id. § 1902 ("The
Congress hereby declares that it is the policy of this Nation to protect the
best interests of the Indian children and to promote the stability and
security of Indian tribes and families by the establishment of minimum
Federal standards for the removal of Indian children from their families.");
see In re Adoption of T.A.W., 383 P.3d 492, 500 (Wash. 2016) (application of
ICWA depends on the status of the child).5

¶16 Accordingly, the superior court did not err by applying the
requirements of ICWA to Father's petition to terminate Mother's parental
rights.

B. "Active Efforts" When Severance Is Based on Abandonment.

¶17 ICWA imposes certain procedural and substantive
requirements in cases involving the termination of parental rights involving
Indian children, but otherwise contemplates that termination proceedings
in state courts will proceed according to state law. Valerie M. v. Ariz. Dep't

5 Rules recently issued by the Bureau of Indian Affairs ("BIA")
addressing "requirements for State courts in ensuring implementation of
ICWA in Indian child-welfare proceedings" are informative. Indian Child
Welfare Act Proceedings, 81 Fed. Reg. 38778-01, 38778 (June 14, 2016) (to be
codified at 25 C.F.R. pt. 23). Under these rules, which took effect December
12, 2016, "Indian family," in the context of 25 U.S.C. 1912(d), "means the
Indian child's family." Id. at 38798; see also In re T.A.W., 383 P.3d at 500.
Here, in addition to Father, this includes Mother, even though she is not a
member of a tribe. See Adoptive Couple, 133 S. Ct. at 2562.

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of Econ. Sec., 219 Ariz. 331, 334-35, ¶¶ 14, 16 (2009) ("[Congress] recognized
that federal requirements would be in addition to state law requirements,
which will themselves prevail over federal law if they are more protective
of parental rights."); see also 25 U.S.C. § 1921 (2012).

¶18 Among the additional federal protections ICWA imposes is
that:

[a]ny party seeking to effect . . . termination of parental rights
to[] an Indian child under State law shall satisfy the court that
active efforts have been made to provide remedial services
and rehabilitative programs designed to prevent the breakup
of the Indian family and that these efforts have proved
unsuccessful.

25 U.S.C. § 1912(d); see also In re T.A.W., 383 P.3d at 503 ("active efforts"
requirement applies to private severance proceeding). The same
requirement is imposed by Arizona Rule of Procedure for the Juvenile
Court 66(C):

[I]f the child is an Indian child, . . . [t]he moving party . . . must
also satisfy the court that active efforts have been made to
provide remedial services and rehabilitative programs
designed to prevent the breakup of the Indian family and that
those efforts have proven unsuccessful.

Ariz. R.P. Juv. Ct. 66(C); see also Yvonne L. v. Ariz. Dep't of Econ. Sec., 227
Ariz. 415, 421, ¶ 26 (App. 2011) ("[T]he necessary ICWA 'active efforts'
finding must . . . be made under the clear and convincing evidence
standard.").

¶19 Although the superior court in this case found Father offered
sufficient evidence to go forward on his petition for severance based on
abandonment, see A.R.S. § 8-533(B)(1), it dismissed the petition because it
found he had offered insufficient evidence of unsuccessful "active efforts"
to prevent the breakup of the family under 25 U.S.C. § 1912(d).

¶20 On appeal, the children argue the court erred by requiring
Father to prove "active efforts" had been made to prevent abandonment.
They offer no authority, however, for their contention that the "active
efforts" mandate does not apply to a termination proceeding brought on the
ground of abandonment. To the contrary, the statute allows no exception
to the required proof of unsuccessful "active efforts" whenever "[a]ny party

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Opinion of the Court

seek[s] . . . termination of parental rights to an Indian child under state law."
25 U.S.C. § 1912(d).

¶21 ICWA does not define "active efforts . . . to provide remedial
services and rehabilitative programs designed to prevent the breakup of the
Indian family." Nor does it specify who must make the required "active
efforts." Rather, the statute only requires proof that active efforts have been
made to preserve the parent-child relationship and those efforts have
proved unsuccessful. See In re Pima County Juv. Action No. S-903, 130 Ariz.
202, 208 (App. 1981); In re Crystal K., 276 Cal. Rptr. 619, 626 (Cal. App. 1990)
("[R]emedial efforts must be directed at remedying the basis for the parental
termination proceeding."); Guidelines for State Courts and Agencies in
Indian Child Custody Proceedings, 80 Fed. Reg. 10146-02, 10156 (Feb. 25,
2015). What constitutes "active efforts" will vary, depending on the
circumstances, the asserted grounds for severance and available resources.
25 U.S.C. § 1912(d); see In re Baby Boy Doe, 902 P.2d 477, 484 (Idaho 1995); In
re C.A.V., 787 N.W.2d 96, 103-04 (Iowa App. 2010) ("The 'active efforts'
requirement must be construed in the context of the existing
circumstances.").6

¶22 The children argue there are no services that can prevent a
parent from abandoning a child. Cf. A.R.S. § 8-533(B)(8) (petition to sever
parental rights based on out-of-home placement requires proof "that the
agency responsible for the care of the child has made a diligent effort to
provide appropriate reunification services"). But "active efforts,"
particularly in the context of abandonment, will not always implicate
formal public services. Under Arizona law, a parent abandons a child by
failing "to provide reasonable support and to maintain regular contact with
the child, including providing normal supervision." A.R.S. § 8-531(1).

6 In its new rules, the BIA "recognizes that what constitutes sufficient
'active efforts' will vary from case-to-case, and the definition . . . retains State
court discretion to consider the facts and circumstances of the particular
case before it." Indian Child Welfare Act Proceedings, 81 Fed. Reg. at 38791.
The financial and practical resources available to a party seeking
termination are among the circumstances that bear on what "active efforts"
might be required under ICWA. See In re C.A.V., 787 N.W.2d at 103; In re
T.A.W., 383 P.3d at 509 (Madsen, C.J., dissenting in part) ("[M]other did all
that she could do to facilitate the father's relationship with the Indian child;
those efforts did not include the provision of agency or institutional
resources and services that she did not have access to or which were
otherwise unavailable.").

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Opinion of the Court

Construing ICWA broadly to promote its stated purpose, we interpret the
"active efforts" requirement of § 1912(d) in an abandonment proceeding to
include informal private initiatives aimed at promoting contact by a parent
with the child and encouraging that parent to embrace his or her
responsibility to support and supervise the child. See In re C.A.V., 787
N.W.2d at 103 (mother met "active efforts" requirement by "facilitating
visits before [father's] incarceration and by inviting continued contact
during his prison stay").

¶23 In the abstract, "active efforts" to prevent a parent from
abandoning a child might include, inter alia, informing the parent about the
child's educational progress and interests; sending the parent photographs
of the child; keeping the parent informed of irregular but significant
expenses, such as medical expenses, to which the parent would be expected
to contribute; and, where appropriate, inviting the parent to school and
extracurricular events and allowing the child to accept communications
from the parent. See, e.g., In re N.B., 199 P.3d at 25 ("[D]espite its finding of
abandonment, the trial court also found that stepmother could have
engaged in active efforts to provide remedial services and rehabilitative
programs by informing the child of the identity of his biological mother and
seeking to preserve the relationship between them by showing the child
pictures of her.").

¶24 While arguing Mother abandoned the children by failing to
contact, support and supervise them, Father offered no evidence at trial that
anyone shared any information about the children with Mother or invited
or encouraged her to contact, support or supervise the children. To the
contrary, from 2009 on, Father obtained a series of protective orders that
forbade her from any contact with the children; he testified he objected to
all of Mother's efforts to regain visitation rights out of concern for her drug
history and because he did not want to give her another chance to abscond
with the children. Cf. Calvin B. v. Brittany B., 232 Ariz. 292, 297, ¶ 21 (App.
2013) ("A parent may not restrict the other parent from interacting with
their child and then petition to terminate the latter's rights for
abandonment.").

¶25 At trial, Father's evidence of "active efforts" focused instead
on the 2009 order in the dissolution proceeding that required Mother to
undergo hair follicle drug testing before she could enjoy visitation with the
children. Father argued Mother effectively abandoned the children by
failing to comply with the drug test requirement. On appeal, the children
contend that "active efforts" did not require Father to shoulder the burden

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Opinion of the Court

or expense of ensuring Mother complied with the drug testing order so as
to be able to visit the children.

¶26 We need not decide whether the "active efforts" requirement
of ICWA, 25 U.S.C. § 1912(d), required Father to try to ensure that Mother
complied with the court's order to drug test because the record undercuts
the premise of Father's contention at trial and the children's argument on
appeal. The evidence showed that although Mother at first put off
obtaining a hair follicle test, she underwent one such test in 2010 and two
others in 2014. In addition, as part of her probation requirements, she
submitted to 72 random drug tests between June 2011 and October 2013 and
successfully completed a 12-step drug and alcohol recovery program. The
superior court dismissed Father's petition before hearing Mother put on
evidence why she was unable to regain visitation rights, notwithstanding
her eventual compliance with the drug testing ordered in the dissolution.
Nevertheless, on this record, the evidence was sufficient to support the
superior court's finding that any "active efforts" to encourage Mother to
address her drug issues had been successful, not unsuccessful, as ICWA
requires.7

C. Equal Protection Challenge.

¶27 Without citation to authority, the children finally argue that
application of ICWA to Father's petition violates their constitutional rights
to equal protection, based on their "race and tribal affiliation." We join the
several other courts that have concluded that the additional requirements
ICWA imposes on severance of a parent's rights to an Indian child are based
not on race, but on Indians' political status and tribal sovereignty, and that
those requirements are rationally related to the federal government's desire
to protect the integrity of Indian families and tribes. See, e.g., In re N.B., 199
P.3d at 22-23 (citing cases).

7 Father testified he attempted to pay for a hair follicle test for Mother,
but the court held that this alone, if true, was not an "active effort" in the
absence of evidence that he let Mother know she would not have to pay for
the test. Given the record shows that Mother eventually completed a
successful drug-testing regime, we need not decide whether ICWA requires
proof in a private severance proceeding of failed active efforts by the
petitioner aimed at preventing severance. See 25 U.S.C. § 1912(d) (petitioner
"shall satisfy the court that active efforts have been made . . . to prevent the
breakup of the Indian family and that these efforts have proved
unsuccessful").

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Opinion of the Court

CONCLUSION

¶28 For the reasons set forth above, we affirm the superior court's
dismissal of Father's petition for failure to comply with the requirement in
25 U.S.C. § 1912(d) to show proof of unsuccessful "active efforts" to prevent
the breakup of the family.

AMY M. WOOD • Clerk of the Court
FILED: AA

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