                        SUPREME COURT OF ARIZONA
                                 En Banc


VALERIE M.,                       )         Arizona Supreme Court
                                  )         No. CV-08-0252-PR
                       Appellant, )
                                  )         Court of Appeals
                 v.               )         Division One
                                  )         No. 1 CA-JV 07-0033
ARIZONA DEPARTMENT OF ECONOMIC    )
SECURITY, KAYDEE V., RANDY V.,    )         Maricopa County
ZACHARY V.,                       )         Superior Court
                                  )         No. JD13827
                       Appellees. )
                                  )
                                  )
                                  )         O P I N I O N
__________________________________)


        Appeal from the Superior Court in Maricopa County
        The Honorable Frank A. Johnson, Judge Pro Tempore

_______________________________________________________________

             Opinion of the Court of Appeals, Division One
                219 Ariz. 155, 195 P.3d 192 (App. 2008)

                            AFFIRMED
________________________________________________________________

SANDRA L. MASSETTO, ATTORNEY AT LAW                                Phoenix
     By   Sandra L. Massetto
Attorney for Valerie M.

TERRY GODDARD, ARIZONA ATTORNEY GENERAL                   Tucson
     By   Dawn R. Williams, Assistant Attorney General
Attorneys for Arizona Department of Economic Security
________________________________________________________________

B A L E S, Justice

¶1           Under Arizona law, parental rights may be terminated

if   clear    and   convincing   evidence    establishes    a   statutorily
identified       ground,    such    as    abandonment       or    neglect,      and   a

preponderance of the evidence shows that termination is in the

child’s best interests.            We hold that the Indian Child Welfare

Act (“ICWA”), 25 U.S.C. §§ 1901 to 1963 (2000), does not require

these state-law findings to be made by a higher standard of

proof in cases involving Indian children.

                   I. FACTS AND PROCEDURAL BACKGROUND

¶2         This     case   concerns      the    termination       of   the   parental

rights of Valerie M. as to her children Kaydee V., Randy V., and

Zachary V.        Because Valerie M. is a member of the Cherokee

Nation and her children are eligible for tribal membership, the

proceedings are subject to ICWA’s requirements.                        See 25 U.S.C.

§ 1903(4) (defining “Indian child”).                    On the petition of the

Arizona    Department      of   Economic       Security     (“ADES”),     and    after

notice to the Cherokee Nation and the Bureau of Indian Affairs,

the juvenile court determined that the children were dependent

as   to   both    their    mother   and       father.      ADES   later      moved    to

terminate the rights of the parents on multiple grounds under

Arizona    Revised    Statutes      (“A.R.S.”)          section   8-533(B)      (Supp.

2005).     Neither the parents nor the Cherokee Nation sought to

transfer the proceedings to a tribal court; the Cherokee Nation

agreed    that    termination      of    Valerie   M.’s parental rights was

warranted.

¶3         ICWA requires a state court to make two particular
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findings before terminating the parental rights for an Indian

child.      The court must be persuaded 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).        There must also be “a determination, supported by

evidence        beyond    a   reasonable        doubt,   including       testimony      of

qualified expert witnesses, that the continued custody of the

child by the parent or Indian custodian is likely to result in

serious      emotional        or    physical      damage    to    the     child.”      Id.

§ 1912(f).

¶4           The juvenile court terminated the father’s parental

rights      after      finding     beyond   a    reasonable      doubt    the     alleged

state-law grounds for termination, the best interests of the

children, and the findings required by ICWA.                             ADES did not

object to the court’s applying the reasonable doubt standard to

each of the required findings.

¶5           Valerie M. demanded a jury trial on the termination of

her parental rights as then allowed by Arizona statute.                              (The

legislature eliminated the right to jury trial in termination

proceedings effective January 1, 2007.                     2003 Ariz. Sess. Laws,

ch.    6,   §    10    (2d    Spec.    Sess.)    (codified       at    A.R.S.    §   8-537

(2007)).        She requested that the jury be instructed that it must

find both the state-law findings and the ICWA findings beyond a
                                            3
reasonable doubt.           At the request of ADES, the juvenile court

instead instructed the jury to apply the clear and convincing

evidence standard to the state-law grounds for termination, the

preponderance         of   the   evidence          standard    to    the    best    interest

finding, and the reasonable doubt standard to the ICWA findings.

The jury returned a verdict terminating the mother’s parental

rights.

¶6            On     appeal,     Valerie    M.       argued    that     proof      beyond    a

reasonable doubt was required for the state-law findings.                                  She

primarily argued that ICWA requires the higher burden of proof.

She also argued that this burden should apply under the law of

the    case    doctrine     because       the      juvenile     court       had   applied   a

reasonable doubt standard in terminating the father’s rights.

¶7            The court of appeals affirmed.                    Valerie M. v. Ariz.

Dep’t of Econ. Sec., 219 Ariz. 155, ___ ¶ 1, 195 P.3d 192, 193

(App. 2008).          The court noted that ICWA by its terms does not

impose the reasonable doubt standard for state-law findings in

termination          proceedings.          Consistent          with     the       weight    of

authority from other states, the court held that ICWA instead

allows a “dual burden” of proof: reasonable doubt for the ICWA

findings and a lesser standard for findings required by state

law.    Id. at ___ ¶ 14, 195 P.3d at 196.                     The court also rejected

Valerie       M.’s    argument     that    a       reasonable       doubt    standard      was

required by Arizona Rule of Procedure for the Juvenile Court
                                               4
66(C).   Id. at ___ ¶ 22, 195 P.3d at 199.                    Although Rule 66(C)

states   that     the     allegations       in     a    termination        proceeding

involving an Indian child must be proved beyond a reasonable

doubt,   the    court   of    appeals   held      that       the    rule   is   invalid

“insofar as it imposes a higher burden of proof in termination

cases”   than    A.R.S.      §§   8-537(B)       and   -863(B)        require.       Id.

Finally, the court held that the law of the case doctrine did

not require applying the reasonable doubt standard to the state-

law findings.     Id. at ___ n.6 ¶ 23, 195 P.3d at 199 n.6.

¶8        We granted review to clarify the standard of proof for

the state-law termination grounds and the child’s best interests

in cases subject to ICWA.             We also granted review to decide

whether the reasonable doubt standard should apply here under

the law of the case doctrine, but upon further consideration we

dismiss our review on this issue as improvidently granted.                            We

have jurisdiction under Article 6, Section 5(3), of the Arizona

Constitution and A.R.S. § 12-120.24 (2003).

                                  II. DISCUSSION

¶9        In Arizona, terminations of parent-child relationships

are governed by A.R.S. §§ 8-531 to -544.                     The fact finder must

find one or more of the grounds for termination listed in § 8-

533(B) by clear and convincing evidence.                           A.R.S. § 8-537(B)

(Supp. 2005).       In addition, the fact finder must find by a

preponderance     of    the   evidence      that       the    termination       of   the
                                        5
parent-child relationship is in the best interests of the child.

Kent K. v. Bobby M., 210 Ariz. 279, 284 ¶ 22, 110 P.3d 1013,

1018 (2005).

¶10            The issue here is whether ICWA imposes a reasonable

doubt standard for these state-law findings in a case involving

an Indian child.          We review issues of statutory interpretation

de novo.       In interpreting ICWA, we attempt to give effect to the

will of Congress as expressed in the statutory language, which

we construe liberally in favor of the interest in preserving

tribal families.          Steven H. v. Ariz. Dep’t of Econ. Sec., 218

Ariz. 566, 570 ¶ 14, 190 P.3d 180, 184 (2008).                    If ICWA imposes

a higher standard of proof, then federal law controls over state

law.     See 25 U.S.C. § 1921 (stating that court shall apply law,

state or federal, that provides higher standard of protection to

rights     of    parent    or   Indian       guardian    in   a    child     custody

proceeding involving Indian child); A.R.S. § 8-815(B) (stating

that court and parties shall meet all requirements of ICWA “not

prescribed” by state statutes).

¶11            ICWA’s only specific directive concerning the burden

of     proof    in   termination   proceedings          appears    in   25   U.S.C.

§ 1912(f), which applies the reasonable doubt standard to proof

that “continued custody of the child by the parent or Indian

custodian is likely to result in serious emotional or physical

damage to the child.”            Valerie M. does not argue that ICWA
                                         6
expressly requires the state-law findings to be made beyond a

reasonable doubt.        Rather, she argues that we should interpret

ICWA    as   requiring   proof    beyond     a    reasonable    doubt   for   all

required findings, whether imposed by federal or state law, to

terminate parental rights for an Indian child.

¶12          Congress enacted ICWA in 1978 based on concerns that

Indian families and tribes were threatened by alarmingly high

rates of removal of Indian children from them by non-tribal

entities, including state courts.                Id. § 1901; Steven H., 218

Ariz. at 570 ¶ 11, 190 P.3d at 184.              In response, ICWA allocates

jurisdiction between tribal and state courts over Indian child

custody cases and mandates certain procedural safeguards and

substantive requirements for state court proceedings.

¶13          Among other things, ICWA provides that tribal courts

generally      have   exclusive      jurisdiction       for     child   custody

proceedings      involving    Indian       children    who     reside   or     are

domiciled within the reservation.                25 U.S.C. § 1911(a).         For

other   Indian    children,   ICWA     provides     that   state   court     child

custody proceedings may be transferred to tribal court upon the

petition of either parent or the tribe, but that such transfer

will not occur upon either parent’s objection, declination by

the tribal court, or the state court’s determination that there

is good cause not to transfer the case.              Id. § 1911(b).

¶14          ICWA thus contemplates that state courts will continue
                                       7
to adjudicate custody cases involving Indian children.                             In these

cases, ICWA mandates certain procedural protections, such as

intervention rights for the Indian child’s tribe, id. § 1911(c),

rights to notice for the parent or Indian custodian and the

tribe, id. § 1912(a), and a right to appointed counsel for

indigent Indian parents or custodians, id. § 1912(b).                             ICWA also

imposes two substantive requirements in termination cases: the

court must be persuaded 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 been unsuccessful,” id. § 1912(d), and, as noted

above,    there     must      be   proof     beyond        a   reasonable        doubt   that

continued custody will likely result in serious damage to the

child, id. § 1912(f).

¶15         Valerie      M.    argues       that    applying         a   reasonable      doubt

standard to state-law findings is appropriate because doing so

would     promote       ICWA’s      goals        and   would         avoid      inconsistent

standards depending on the state in which the custody of an

Indian child is adjudicated.                 She also argues that the Arizona

legislature has expressed its intent to apply the higher federal

standard    by    enacting         A.R.S.    §     8-872(F)         (Supp.   2008),      which

provides    that     the       burden       of     proof       in    guardianship        cases

involving Indian children shall be beyond a reasonable doubt

instead    of     the    otherwise          applicable         clear      and    convincing
                                             8
standard.

¶16         We do not believe that Congress intended to apply the

reasonable     doubt   standard   to       state-law   findings.        Several

considerations support our conclusion.              ICWA expressly provides

that certain “minimum Federal standards” apply in state court

custody     proceedings    involving       Indian   children.      25   U.S.C.

§ 1902.     Congress did not displace state law in favor of uniform

standards; instead it 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.     Id. § 1921.

¶17         Congress thus contemplated that procedures in Indian

child custody cases would vary among the states.                Indeed, apart

from ICWA’s minimum requirements, Congress left to the states

the identification of the grounds for termination, an important

substantive issue.        That Congress did not expressly address the

burden of proof applicable to findings required by state law

suggests that this was not an issue on which Congress thought a

minimum federal standard was necessary.

¶18         As noted by the court of appeals, nearly every other

state court that has considered this issue has concluded that

ICWA allows states to specify the standard of proof for state-

law findings distinct from the findings required by ICWA.                  See

In re J.R.B., 715 P.2d 1170, 1171 (Alaska 1986); People ex rel.
                                       9
C.A.J., 709 P.2d 604, 606 (Colo. Ct. App. 1985); In re H.A.M.,

961 P.2d 716, 721 (Kan. Ct. App. 1998); In re Denice F., 658

A.2d 1070, 1072-73 (Me. 1995); In re Elliott, 554 N.W.2d 32, 38

(Mich. Ct. App. 1996); In re Interest of Walter W., 744 N.W.2d

55, 60-61 (Neb. 2008); In re N.Y.C. Dep’t. of Soc. Servs. v.

Oscar   C., 600      N.Y.S.2d   957,   960-61      (App.   Div.   1993);   In   re

Bluebird, 411 S.E.2d 820, 823 (N.C. Ct. App. 1992); In re M.S.,

624 N.W.2d 678, 681 (N.D. 2001); In re Adoption of R.L.A., 147

P.3d 306, 310 (Okla. Civ. App. 2006); K.E. v. State, 912 P.2d

1002, 1004 (Utah Ct. App. 1996); In re Dependency of Roberts,

732 P.2d 528, 531 (Wash. Ct. App. 1987); In re Interest of

D.S.P., 458 N.W.2d 823, 829 (Wis. Ct. App. 1990).

¶19           Valerie M.’s argument based on the state guardianship

statute is also unpersuasive.          That statute does not address the

burden of proof in termination cases.                 At most, A.R.S. § 8-

872(F) shows that the legislature has specified when it intends

to impose a higher burden of proof for cases involving Indian

children.       That the legislature has imposed a higher standard

for guardianships, which do not sever all parental rights, than

for terminations does appear somewhat anomalous, but it does not

show that the legislature intended the reasonable doubt standard

to    apply    in   termination   cases     when    the    applicable   statutes

provide otherwise.

¶20           Having concluded that ICWA does not require a higher
                                       10
standard of proof than does A.R.S. § 8-537(B) and -863(B), the

court of appeals also considered whether Rule 66(C) imposes a

“reasonable doubt” standard.           Rule 66(C) provides:

       The moving party or petitioner has the burden of
       proving the allegations contained in the motion or
       petition by clear and convincing evidence or, in the
       case of an Indian child, beyond a reasonable doubt.
       In addition, if the child is an Indian child, the
       moving party or petitioner must also prove, beyond a
       reasonable doubt, including testimony from a qualified
       expert witness, that continued custody of the child by
       the parent or Indian custodian is likely to result in
       serious emotional or physical damage to the child.
       The petitioner must prove beyond a reasonable doubt
       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.

(Emphasis added).

¶21         The court of appeals was correct in concluding that

Rule 66(C) cannot mandate a higher burden of proof for the

state-law    findings     than    is     required     by   Arizona     statutes.

Because the legislature is empowered to set burdens of proof as

a matter of substantive law, a valid statute specifying the

burden of proof prevails over common law or court rules adopting

a different standard.       See, e.g., State v. Fletcher, 149 Ariz.

187,     191-92,    717   P.2d        866,   870-71    (1986)    (recognizing

legislature’s      authority     to     modify   common    law   and     require

defendant to prove insanity by clear and convincing evidence).

¶22         With the benefit of hindsight, we recognize that the
                                        11
language of Rule 66(C) should not have embraced an evidentiary

standard higher than required by Arizona statutes.                        Although

this Court has the final say in interpreting procedural rules,

and only this Court can revise its prior interpretation of a

rule, Cullen v. Auto-Owners Ins. Co., 218 Ariz. 417, 420 ¶ 10,

189 P.3d 344, 347 (2008), our adoption of a rule is not an

adjudication of its validity.            See Scheehle v. Justices of the

Supreme Court, 211 Ariz. 282, 298, 120 P.3d 1092, 1108 (2005).

Confronted     with    the   argument    that       Rule   66(C)    impermissibly

conflicts with state statutes, the court of appeals correctly

held that the statutes prevail in setting the burden of proof.

                              III. CONCLUSION

¶23       In    this     termination         case   governed       by   ICWA,   the

juvenile court did not err by instructing the jury that the

state-law grounds for termination must be proved by clear and

convincing evidence and that the Indian child’s best interests

must be proved by a preponderance of the evidence.                      We affirm

the opinion of the court of appeals.



                              _______________________________________
                              W. Scott Bales, Justice

CONCURRING:


_______________________________________
Ruth V. McGregor, Chief Justice

                                        12
_______________________________________
Rebecca White Berch, Vice Chief Justice


_______________________________________
Michael D. Ryan, Justice


_______________________________________
Andrew D. Hurwitz, Justice




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