                                  IN THE
             ARIZONA COURT OF APPEALS
                               DIVISION ONE


                         MICHELLE M., Appellant,

                                      v.

           DEPARTMENT OF CHILD SAFETY, H.N., Appellees.

                            No. 1 CA-JV 17-0019
                              FILED 8-31-2017


           Appeal from the Superior Court in Maricopa County
                             No. JD527671
                 The Honorable James T. Blomo, Judge
    APPEAL STAYED; JURISDICTION REVESTED IN SUPERIOR
                         COURT


                                 COUNSEL

Vierling Law Offices, Phoenix
By Thomas A. Vierling
Counsel for Appellant

Arizona Attorney General’s Office, Tucson
By Cathleen E. Fuller
Counsel for Appellee Department of Child Safety



                                 OPINION

Chief Judge Samuel A. Thumma delivered the Opinion of the Court, in
which Presiding Judge Diane M. Johnsen and Judge James P. Beene joined.
                         MICHELLE M. v. DCS, H.N.
                            Opinion of the Court

T H U M M A, Judge:

¶1            Michelle M. (Mother) appeals from an order terminating her
parental rights to her biological daughter H.N. On appeal, Mother argues
the superior court erred in finding that termination was in H.N.’s best
interests and that the Department of Child Safety (DCS) did not comply
with the notice requirements of the Indian Child Welfare Act (ICWA). See
25 U.S.C. § 1912(a) (2017).1 Although the best interests finding was proper,
the appeal is stayed for 90 days and jurisdiction is revested in the superior
court to allow for proper notice under ICWA and any appropriate
proceedings as a result of that notice.

                 FACTS2 AND PROCEDURAL HISTORY

¶2             H.N. was born in October 2015 substance-exposed to opiates
and was hospitalized for more than a month. DCS filed a dependency
petition, claiming H.N. is an Indian child based on her alleged father’s self-
report that he was registered with the Navajo Nation. DCS provided proper
notice under ICWA to the Navajo Nation. Father, however, did not
establish paternity and the Navajo Nation did not appear in the proceeding.

¶3            At an April 2016 hearing, DCS argued ICWA did not apply,
noting father had refused to participate in paternity testing. Because
paternity had “not been established and therefore an ICWA finding cannot
be made,” the superior court found H.N. was “not eligible for enrollment
in the Navajo Nation,” meaning ICWA did not apply. The court then found
H.N. dependent as to Mother, who had failed to attend the hearing, and
adopted a case plan of family reunification.

¶4            In June 2016, the court changed the case plan to severance and
adoption. DCS’ motion to terminate alleged, as to Mother, substance abuse
and six-months time-in-care and that severance would be in H.N.’s best
interests. See Ariz. Rev. Stat. (A.R.S.) § 8-533(B)(3) & (B)(8)(b). After a
severance adjudication in December 2016, the court granted the motion to
terminate, finding DCS proved by clear and convincing evidence both


1Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.

2 This court views the evidence in the light most favorable to affirming the
juvenile court’s order. Denise R. v. Ariz. Dep’t of Econ. Sec., 221 Ariz. 92, 95 ¶
10 (App. 2009).



                                        2
                        MICHELLE M. v. DCS, H.N.
                           Opinion of the Court

statutory grounds and proved by a preponderance of the evidence that
termination would be in H.N.’s best interests. This court has jurisdiction
over Mother’s timely appeal from that order pursuant to Article 6, Section
9, of the Arizona Constitution, A.R.S. §§ 8-235(A), 12-2101(A) and 12-
120.21(A) and Arizona Rules of Procedure for the Juvenile Court 103 and
104.

                                DISCUSSION

I.     Mother Has Shown No Error In The Superior Court’s Best Interests
       Finding.

¶5             In a case not governed by ICWA, to terminate parental rights,
the superior court must find by clear and convincing evidence that at least
one statutory ground listed in A.R.S. § 8-533(B) has been proven and must
find by a preponderance of the evidence that termination is in the best
interests of the child. See Kent K. v. Bobby M., 210 Ariz. 279, 288 ¶ 41 (2005);
Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 249 ¶ 12 (2000). Because
the superior court “is in the best position to weigh the evidence, observe the
parties, judge the credibility of witnesses, and resolve disputed facts,” this
court will affirm an order terminating parental rights if it is supported by
reasonable evidence. Jordan C. v. Ariz. Dep’t of Econ. Sec., 223 Ariz. 86, 93 ¶
18 (App. 2009) (citation omitted).

¶6            Mother does not challenge the finding that DCS proved both
statutory grounds for severance, meaning those issues are waived. See
Crystal E. v. Dep’t of Child Safety, 241 Ariz. 576, 577-78 ¶ 5 (App. 2017).
Mother does argue the superior court erred in finding termination was in
H.N.’s best interests because Mother and H.N. have a relationship that
should be allowed to continue. 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.” Mario G. v. Ariz. Dep’t of Econ. Sec., 227 Ariz. 282, 288
¶ 26 (App. 2011) (citation omitted).

¶7            The superior court properly found that “[t]he evidence is clear
that [H.N.] would be endangered by Mother” unless severance was
granted, given Mother’s “long history of drug abuse and mental health
issues.” The court also found Mother refused to participate in services and,
instead, “has chosen to continue to abuse drugs rather than take the
necessary steps to allow her to care for” H.N. The record amply supports
these findings.




                                       3
                       MICHELLE M. v. DCS, H.N.
                          Opinion of the Court

¶8            Mother, who has been incarcerated during some of the
relevant time, testified she is making some effort to address her substance
abuse issues. It is unclear, however, how long it would take for her to
resolve those issues and whether she could maintain sobriety when not in
custody. Moreover, the court properly could conclude that affording
Mother an indeterminate amount of additional time to address her
substance abuse issues was not in H.N.’s best interests. Maricopa Cty. Juv.
Action No. JS-501568, 177 Ariz. 571, 577 (App. 1994). On this record, the
superior court properly found severance was in H.N.’s best interest.

II.    Mother’s Testimony Regarding Eligibility For Enrollment In A
       Native American Tribe Requires Remand.

¶9            During her direct examination at trial, Mother testified as
follows:

              Q. You advised me earlier that you are affiliated
              with the Sioux tribe; is that correct?
              A. Yes.
              Q. And tell us, if you will, what your affiliation
              is?
              A. My mom is Oglala, enrolled in the Oglala
              Sioux tribe in South Dakota, and my dad is an
              enrolled member in Spirit Lake in North
              Dakota.
              Q. Okay. And are you an enrolled member?
              A. Not yet, but I can be.
              Q. You’re eligible for enrollment?
              A. Yes.
              Q. Do you know whether your daughter
              would be eligible [for] enrollment?
              A. Yes, she would.

DCS did not cross-examine Mother about this testimony. During closing
arguments, Mother’s counsel noted Mother “did have a tribal affiliation
that” DCS “has never looked into,” adding that “under ICWA, the
considerations are somewhat different than in other cases.” In rebuttal, DCS
argued Mother testified “that she’s not eligible, so this case is not an” ICWA
case, incorrectly characterizing Mother’s testimony. The order granting the
motion to terminate tacitly finds this case is not governed by ICWA. Given
her trial testimony, Mother claims the court erred in failing to comply with
ICWA notice requirements.



                                      4
                        MICHELLE M. v. DCS, H.N.
                           Opinion of the Court

¶10           Although providing the starting point, ICWA’s text does not
provide an easy answer. ICWA defines 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.” 25 U.S.C. § 1903(4); accord
Ariz. R.P. Juv. Ct. 37(C)(2). ICWA requires that, “[i]n any involuntary
proceeding in a State court, where the court knows or has reason to know that
an Indian child is involved, the party seeking . . . termination of parental
rights” must provide notice to the relevant tribe “of the pending
proceedings and of [the] right of intervention.” 25 U.S.C. § 1912(a)
(emphasis added).

¶11            Upon receipt of such notice, if the tribe determines that an
Indian child is involved, ICWA grants the tribe various rights, including
the right to intervene in the state court proceeding and to seek to transfer
proceedings to the relevant tribal court. 25 U.S.C. § 1911(b) & (c). When
ICWA applies, it also imposes additional requirements for termination of
parental rights not otherwise required by Arizona law and not addressed
in the order granting the motion to terminate in this case. See 25 U.S.C. §
1912(f); see also Valerie M. v. Ariz. Dep’t of Econ. Sec., 219 Ariz. 331 (2009)
(discussing interrelationship between ICWA and Arizona law for
termination of parental rights).

¶12           DCS does not argue that Mother’s testimony was insufficient
to provide notice that H.N. might be an Indian child under ICWA. Instead,
DCS argues that, “by the time Mother testified about her tribal affiliation,
there were no [pending] proceedings for the tribe to intervene in.” That
argument, however, ignores the fact that Mother’s testimony occurred
before the motion to terminate was granted. Accordingly, DCS’ argument
regarding the application of ICWA to “post-termination proceedings” is
inapplicable. Cf. Gila River Indian Cmty. v. Dep’t Child Safety, 242 Ariz. 277
(2017) (discussing transfer of matters under ICWA both pre- and post-
termination).

¶13            DCS’ argument also does not address case law from other
jurisdictions directing that “[n]otice is mandatory, regardless of how late in
the proceedings a child’s possible Indian heritage is uncovered” and that
the notice requirement in ICWA cannot be waived by a parent. See In re
Suzanna L., 127 Cal. Rptr. 2d 860, 866 (App. 2002) (quoting In re Kahlen W.,
285 Cal. Rptr. 507, 513 (App. 1991)); accord Gila River Indian Cmty., 242 Ariz.
at 292 ¶ 27 (noting “courts have historically been reluctant to imply a
waiver of Indian rights under ICWA”).



                                      5
                        MICHELLE M. v. DCS, H.N.
                           Opinion of the Court

¶14            As noted in Arizona and elsewhere, for ICWA to apply,
“[e]nrollment is not a necessary condition of tribal membership, although
membership may be established through proof of enrollment. Each tribe,
however, determines its membership, and its determination that a person
is a member of the tribe is conclusive.” Jared P. v. Glade T., 221 Ariz. 21, 24-
25 ¶ 18 (App. 2009) (citing cases); accord In re M.C.P., 571 A.2d 627, 634 (Vt.
1989) (citing cases); In re Dependency of Colnar, 757 P.2d 534, 535 (Wash. App.
1988). For decades, courts have recognized that it is preferable to “err on
the side of giving notice and examining thoroughly whether a juvenile is an
Indian child.” M.C.P., 571 A.2d at 635; accord In re Morris, 815 N.W.2d 62, 76
(Mich. 2012) (requiring notice to tribe where parents informed court they
had Indian heritage); In re M.R.P.-C., 794 N.W.2d 373, 378 (Minn. App. 2011)
(addressing obligation to inquire when information is provided to court
about possible Indian heritage) (citing cases).3 In short, given Mother’s
testimony, DCS was required to provide proper notice under ICWA. It is
undisputed, however, that no such notice was provided in response to
Mother’s testimony.

¶15            Mother argues that DCS’ failure to provide ICWA notice
requires reversal of the order terminating her parental rights. Not so. There
are at least three possible outcomes in response to a proper notice under
ICWA: (1) the Tribe responds that it has determined H.N. is an Indian child,
meaning ICWA applies; (2) the Tribe responds that it has determined H.N.
is not an Indian child, meaning ICWA does not apply; or (3) the Tribe does
not respond, meaning there is no evidence that H.N. is an Indian child and,
accordingly, ICWA would not apply. And even if ICWA applies, the Tribe
may or may not intervene or take other action allowed by ICWA.

¶16            Because providing notice under ICWA given Mother’s
testimony must occur before the merits of the termination order may be
finally resolved on appeal, the appeal is stayed for 90 days. During that
time, jurisdiction is revested in the superior court to allow for proper notice
under ICWA and, depending upon the outcome of that notice, any
appropriate further proceedings. Accord In re Junious M., 193 Cal. Rptr. 40,
47 (App. 1983); Colnar, 757 P.2d at 536-37; M.C.P., 571 A.2d at 635; see also

3 Cases DCS cites in arguing to the contrary are distinguishable on their
facts. See Ariz. Dep’t of Econ. Sec. v. Bernini, 202 Ariz. 562, 564 ¶ 10 (App.
2002) (addressing ICWA where DCS’ predecessor “concedes that the notice
provision of § 1912(a) had been invoked”); Maricopa Cty. Juv. Action No. A-
25525, 136 Ariz. 528, 533 (App. 1983) (“We think Congress has . . . evidenced
its intent not to extend the ICWA to a child whose mother is non-Indian and
whose father has failed to come forward and lay legal claim to the child.”).


                                       6
                       MICHELLE M. v. DCS, H.N.
                          Opinion of the Court

Suzanna L., 127 Cal. Rptr. 2d at 870 (noncompliance with ICWA notice “does
not mean the trial court must go back to square one”).

¶17            If, after proper notice under ICWA, the Tribe responds that
H.N. is an Indian child, further proceedings consistent with ICWA will be
necessary. If, however, the Tribe responds that H.N. is not an Indian child
or does not respond, no further proceedings under ICWA will be required.
Within five days of the superior court’s entry of a decision resolving the
application of ICWA after proper notice, Mother’s counsel shall provide
notice of that decision to this court, with a copy to DCS’ counsel.

                              CONCLUSION

¶18          The appeal is stayed for 90 days and jurisdiction is revested
in the superior court to allow for proper notice under ICWA and any
appropriate proceedings as a result of that notice.




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




                                        7
