                                  IN THE

    SUPREME COURT OF THE STATE OF ARIZONA
                     GILA RIVER INDIAN COMMUNITY,
                               Appellant,

                                     v.

       DEPARTMENT OF CHILD SAFETY, SARAH H., JEREMY H., A.D.,
                            Appellees.

                           No. CV-16-0220-PR
                           Filed June 13, 2017

           Appeal from the Superior Court in Maricopa County
               The Honorable Karen L. O’Connor, Judge
                             No. JD528014
                             AFFIRMED

              Opinion of the Court of Appeals, Division One
                        240 Ariz. 385 (App. 2016)
                               VACATED

COUNSEL:

Linus Everling, Thomas L. Murphy (argued), Gila River Indian Community
Office of General Counsel, Sacaton; and April E. Olson, Rothstein,
Donatelli, Hughes, Dahlstrom & Schoenburg, LLP, Tempe, Attorneys for
Gila River Indian Community

James Manley, Aditya Dynar (argued), Scharf-Norton Center for
Constitutional Litigation at the Goldwater Institute, Phoenix, Attorneys for
Sarah and Jeremy H.

Amanda Lomayesva, Tamara Walters, Frederick Lomayesva, Office of the
Attorney General Pascua Yaqui Tribe, Tucson, Attorneys for Amicus Curiae
Pascua Yaqui Tribe, Salt River Pima Maricopa Indian Community, Navajo
Nation, Cherokee Nation, and the Native American Bar Association of
Arizona
               GILA RIVER INDIAN COMMUNITY V. DCS
                        Opinion of the Court

Bruce F. Peterson, Maricopa County Office of the Legal Advocate, Tiffany
Mastin, Deputy Legal Advocate, Phoenix, Guardian ad Litem for the Minor
Child

CHIEF JUSTICE BALES authored the opinion of the Court, in which VICE
CHIEF JUSTICE PELANDER and JUSTICES BRUTINEL, TIMMER,
GOULD, and LOPEZ and JUDGE VÁSQUEZ joined. ∗

CHIEF JUSTICE BALES, opinion of the Court:

¶1             This case concerns the transfer of child custody proceedings
from state to tribal court under 25 U.S.C. § 1911(b) of the Indian Child
Welfare Act (“ICWA”). We hold that § 1911(b) addresses transfer only of
foster care placement and termination-of-parental-rights actions. Although
§ 1911(b) does not apply to state preadoptive and adoptive placements,
such as the proceeding involved here, it also does not prohibit the transfer
of such actions to tribal court.
                                      I.

¶2            A.D. is a member of the Gila River Indian Community
(“Community”) and an Indian child for purposes of ICWA. See 25 U.S.C.
§ 1903(4). Having been prenatally exposed to amphetamines and opiates,
A.D. was born in August 2014 in Arizona outside the Community’s
boundaries. Five days after her birth, the Arizona Department of Child
Safety (“DCS”) removed A.D. from her mother, who is also a Community
member, and placed her with Sarah H. and Jeremy H. (“foster parents”).
A.D. has since resided with her foster parents outside the Community’s
boundaries. Because the foster parents are not members of A.D.’s extended
family or Indians, they do not qualify for a presumptive preference as an
adoptive placement under ICWA. See id. § 1915(a) (stating that, absent
good cause to the contrary, preference shall be given to a placement with
members of the child’s extended family, other members of the child’s tribe,
or other Indian families).



∗
 Justice Clint Bolick has recused himself from this case. Pursuant to article
6, section 3, of the Arizona Constitution, the Honorable Garye L. Vásquez,
Judge of the Arizona Court of Appeals, Division Two, was designated to sit
in this matter.

                                     2
               GILA RIVER INDIAN COMMUNITY V. DCS
                        Opinion of the Court

¶3             Three days after her foster care placement, DCS filed a
dependency petition on behalf of A.D. in the juvenile court and notified the
Community. In October 2014, the Community moved to intervene under
25 U.S.C. § 1911(c), which the court allowed. In February 2015, the court
found that the state had made “active efforts . . . to provide remedial
services and rehabilitative programs designed to prevent the breakup of the
Indian family,” see id. § 1912(d), but that those efforts were unsuccessful.
The court also found that the birth parents’ continued custody of A.D. was
likely to result in serious emotional or physical danger to A.D., found A.D.
dependent, and granted DCS’s request for a case plan of severance and
adoption. The Community agreed to the new case plan.

¶4           In March 2015, DCS moved to terminate the parental rights of
A.D.’s mother and father and notified the Community. The Community
requested that the child remain in her current placement until a suitable
ICWA placement could be identified. In a June 2015 order, the court
terminated the rights of A.D.’s parents and also found good cause to deviate
from ICWA’s placement preferences. The Community did not appeal from
that order.

¶5           The foster parents moved to intervene, noting their desire to
adopt A.D. The Community did not respond to the motion, and the court
allowed the foster parents to intervene. On July 1, 2015, the foster parents
petitioned to adopt A.D. After the court scheduled A.D.’s adoption for
August 26, 2015, the Community successfully moved to stay the adoption
proceedings.

¶6            On August 18, 2015, the Community moved to transfer the
proceedings to its tribal court under 25 U.S.C. § 1911(b). The Community
noted that DCS supported the motion to transfer, but the foster parents and
A.D.’s guardian ad litem objected. After holding evidentiary hearings, the
juvenile court in January 2016 denied the Community’s motion to transfer
A.D.’s case to tribal court, finding the foster parents had met their burden
of showing that good cause existed under § 1911(b) to deny the motion.

¶7            The Community appealed, and the court of appeals
addressed whether “25 U.S.C. § 1911(b) of ICWA allow[s] transfer to tribal
court of state preadoptive and adoptive placement proceedings occurring
after parental rights have terminated[.]” Gila River Indian Cmty. v. Dep’t of


                                     3
                GILA RIVER INDIAN COMMUNITY V. DCS
                         Opinion of the Court

Child Safety, 240 Ariz. 385, 389 ¶ 11 (App. 2016). The court ruled that
§ 1911(b) does not. Id.

¶8             We granted review to determine whether § 1911(b) of ICWA
governs the transfer of preadoptive and adoptive placement actions from
state to tribal court, a recurring issue of statewide importance. We have
jurisdiction under article 6, section 5(3), of the Arizona Constitution and
A.R.S. § 12-120.24.
                                      II.

¶9            The Community first argues that § 1911(b)’s application was
not properly before the court of appeals because the foster parents did not
cross-appeal the juvenile court’s denial of the Community’s transfer
motion. The foster parents, however, were not aggrieved by the juvenile
court’s order and therefore were not required to cross-appeal. See CNL
Hotels & Resorts, Inc. v. Maricopa County, 230 Ariz. 21, 25 ¶ 20 (2012)
(“Arizona’s long-settled rule is that if [an] appellee in its brief seeks only to
support or defend and uphold the judgment of the lower court from which
the opposing party appeals, a cross-appeal is not necessary.”) (internal
quotation marks omitted). In opposing the Community’s transfer motion,
the foster parents argued that § 1911(b) did not apply, and they repeated
that argument in their answering appellate brief. Thus, whether § 1911(b)
applied was an issue properly before the court of appeals.

¶10           On the merits, the Community argues that the court of
appeals erred in holding that § 1911(b) does not allow transfer of a
dependency case after parental rights have been terminated. We review the
interpretation of statutes de novo. Valerie M. v. Ariz. Dep’t of Econ. Sec., 219
Ariz. 331, 334 ¶ 10 (2009).

¶11            With respect to 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.” Id.
Nonetheless, we “will not look beyond the clear meaning of express
statutory terms unless a literal interpretation would thwart the purpose of
the statutory scheme or lead to absurd results.” Steven H. v. Ariz. Dep’t of
Econ. Sec., 218 Ariz. 566, 570 ¶ 14 (2008) (quoting Navajo Nation v. Hodel, 645
F. Supp. 825, 827 (D. Ariz. 1986)).



                                       4
               GILA RIVER INDIAN COMMUNITY V. DCS
                        Opinion of the Court

¶12            Congress enacted ICWA in 1978 to address the removal of an
alarmingly high percentage of Indian children from their Indian families by
nontribal public and private agencies and the placement of such children in
non-Indian foster and adoptive homes and institutions. See 25 U.S.C.
§ 1901(4). In response to these concerns, ICWA provides a dual
jurisdictional scheme over Indian child custody proceedings. See Miss. Band
of Choctaw Indians v. Holyfield, 490 U.S. 30, 36 (1989). ICWA delineates “child
custody proceeding” into four categories: foster care placement,
termination of parental rights, preadoptive placement, and adoptive
placement. 25 U.S.C. § 1903(1)(i)–(iv).

¶13           The first jurisdictional component of ICWA, § 1911(a),
concerns all four categories of actions and acknowledges exclusive tribal
jurisdiction over actions involving Indian children who reside or are
domiciled within the tribe’s reservation and over cases involving Indian
children who are wards of tribal courts regardless of residence or domicile.
The Community does not assert exclusive jurisdiction under § 1911(a) as
A.D. has never resided or been domiciled within the Community’s
reservation, nor is she a ward of the Community’s court.

¶14           The second jurisdictional component of ICWA, § 1911(b),
concerns transfer proceedings. It addresses two of the four categories of
actions involving Indian children by acknowledging concurrent but
presumptively tribal jurisdiction over foster care placement and
termination-of-parental-rights actions. See Holyfield, 490 U.S. at 36. Section
1911(b) states:

       In any State court proceeding for the foster care placement of, or
       termination of parental rights to, an Indian child not domiciled
       or residing within the reservation of the Indian child’s tribe,
       the court, in the absence of good cause to the contrary, shall
       transfer such proceeding to the jurisdiction of the tribe, absent
       objection by either parent, upon the petition of either parent
       or the Indian custodian or the Indian child’s tribe: Provided,
       [t]hat such transfer shall be subject to declination by the tribal
       court of such tribe.

25 U.S.C. § 1911(b) (emphasis added). Thus, § 1911(b) by its terms governs
only foster care placement and termination-of-parental-rights actions.


                                       5
               GILA RIVER INDIAN COMMUNITY V. DCS
                        Opinion of the Court

¶15           ICWA defines “foster care placement” as:

       [A]ny action removing an Indian child from its parent or
       Indian custodian for temporary placement in a foster home or
       institution or the home of a guardian or conservator where
       the parent or Indian custodian cannot have the child returned
       upon demand, but where parental rights have not been
       terminated . . . .

Id. § 1903(1)(i) (emphasis added). And ICWA defines “termination of
parental rights” as “any action resulting in the termination of the parent-child
relationship.” Id. § 1903(1)(ii) (emphasis added).

¶16           When the Community requested a transfer in August 2015,
the action was not one for foster care placement or termination of parental
rights because the court had already terminated the rights of A.D.’s parents
in June 2015 and that ruling had not been appealed. See id. § 1903(1)(i)–(ii).
Therefore, § 1911(b) did not govern the Community’s motion to transfer.

¶17            We are not persuaded by the Community’s argument that our
reading of § 1911(b) will thwart ICWA’s purpose or lead to absurd results.
In various provisions of ICWA, Congress distinguished between foster care
placement and termination-of-parental-rights actions on the one hand and
preadoptive and adoptive placement actions on the other. See id.
§ 1903(1)(i)–(iv); id. § 1911(c) (providing right to intervene for foster care
placement and termination of parental rights but not for preadoptive or
adoptive placement actions); id. § 1912(a) (same regarding notice); id.
§ 1912(c) (same regarding right to examine reports or other documents); id.
§ 1914 (same regarding right to petition for invalidation).

¶18            Congress’s differentiation throughout ICWA indicates its
desire to place certain federal mandates on states for foster care placement
and termination-of-parental-rights actions but not preadoptive and
adoptive placements. The latter are not presumptively subject to transfer
to tribal court under § 1911(b). But even if preadoptive and adoptive
placements proceed in state court, a tribe may continue to participate if, as
here, it has intervened under § 1911(c). See also In re Appeal in Maricopa Cty.
Juvenile Action No. A-25525, 136 Ariz. 528, 533 (App. 1983) (finding trial
judge acted within discretion in granting tribe’s motion to intervene in
adoption proceeding). Moreover, in such cases a state court must follow

                                       6
               GILA RIVER INDIAN COMMUNITY V. DCS
                        Opinion of the Court

ICWA’s placement preferences unless it finds good cause to deviate from
them. 25 U.S.C. § 1915(a)–(b). Cf. Adoptive Couple v. Baby Girl, 133 S. Ct.
2552, 2565 (2013) (holding that “§ 1915(a)’s rebuttable adoption preferences
[do not] apply when no alternative party has formally sought to adopt the
child”).

¶19            Although the court of appeals correctly held that § 1911(b) did
not apply here, that court was mistaken in stating that ICWA does not
“allow” the transfer of actions “occurring after parental rights have
terminated[.]” Gila River Indian Cmty., 240 Ariz. at 389 ¶ 11. By its
terms, § 1911(b) provides that a state court must transfer foster care
placement or termination-of-parental-rights cases to tribal court unless the
state court finds good cause for retaining the case or unless either parent
objects to the transfer. Section 1911(b) is silent as to the discretionary
transfer of preadoptive and adoptive placement actions, but we do not
interpret that silence to mean prohibition. See Puyallup Tribe of Indians v.
State (In re M.S.), 237 P.3d 161, 165 ¶ 13 (Okla. 2010) (“Reading what is
contained in the statute . . . does not require us to read into the statute what
is not there, i.e., that transfers may only be granted if requested before a
termination of parental rights proceeding is concluded.”) (emphasis
omitted).

¶20            When enacting ICWA, Congress recognized, rather than
granted or created, tribal jurisdiction over child custody proceedings
involving Indian children. See Holyfield, 490 U.S. at 42 (“Tribal jurisdiction
over Indian child custody proceedings is not a novelty of the ICWA.”);
Indian Child Welfare Act Proceedings, 81 Fed. Reg. 38,778, 38,821–22 (June
14, 2016) (codified at 25 C.F.R. pt. 23) [hereinafter 2016 BIA Final Rule]
(noting that Congress, in enacting ICWA, recognized that inherent tribal
jurisdiction over domestic relations, including child-custody matters, is an
aspect of a “Tribe’s right to govern itself”); Cohen’s Handbook of Federal
Indian Law 840, 842 (Nell Jessup Newton et al. eds., 12th ed. 2012) (“Before
the passage of ICWA, tribes exercised jurisdictional authority over custody
of their children,” and § 1911(b) “reflects the legislative compromise made
when states and others resisted tribes’ exercise of exclusive jurisdiction over
all Indian child custody proceedings.”) (emphasis added).

¶21          Thus, tribes have the inherent authority to hear child custody
proceedings involving their own children. By enacting ICWA, Congress
recognized that authority and clarified the standards for state courts in

                                       7
               GILA RIVER INDIAN COMMUNITY V. DCS
                        Opinion of the Court

granting transfer requests of certain types of cases. As a result, although
ICWA does not govern the transfer of preadoptive and adoptive placement
actions, state courts may nonetheless transfer such cases involving Indian
children to tribal courts.

¶22            The 2016 Bureau of Indian Affairs (“BIA”) Final Rule and
Guidelines support this conclusion. Both state the following: “Parties may
request transfer of preadoptive and adoptive placement proceedings, but
the standards for addressing such motions are not dictated by ICWA or
these regulations.” 2016 BIA Final Rule, 81 Fed. Reg. at 38,822; see also Office
of the Assistant Secretary - Indian Affairs, Bureau of Indian Affairs, U.S.
Dep’t of Interior, Guidelines for Implementing the Indian Child Welfare Act
47 (2016).

¶23            Our interpretation also comports with rulings by other courts
that § 1911(b) only applies to transfer requests for foster care placement and
termination-of-parental-rights actions, see In re A.P., 962 P.2d 1186, 1188
¶ 10 (Mont. 1998), but does not preclude transfer of preadoptive and
adoptive placement actions. See In re M.S., 237 P.3d at 166 ¶ 14 (“[W]e
cannot construe § 1911(b), as a matter of law, as an expression of intent to
preclude tribal court jurisdiction when transfer is requested after parental
rights are terminated.”). But see In re Welfare of the Child of R.S., 805 N.W.2d
44, 47 (Minn. 2011) (concluding that federal and state law did not authorize
transfer of a state preadoptive action).

¶24            Similarly, other courts have held that § 1911(c), which
recognizes a tribe’s right to intervene in foster care placement and
termination proceedings, does not bar state courts from allowing
intervention in adoption proceedings. See In re Appeal in Maricopa Cty.
Juvenile Action No. A-25525, 136 Ariz. at 533 (“Although [ICWA] explicitly
provides a tribe with the right to intervene in foster care and termination
proceedings, it does not preclude a trial court from exercising its discretion
in allowing intervention by a tribe in an adoption proceeding.”) (citation
omitted); Jeffrey A. v. Tohono O’odham Nation (In re Baby Boy C.), 805 N.Y.S.2d
313, 329 (N.Y. App. Div. 2005) (“Many courts have held that although
ICWA does not provide a statutory right of intervention, neither does it
prohibit intervention under applicable state law.”).

¶25            Our holding does not preclude a tribe from requesting the
transfer to tribal court of a preadoptive or adoptive placement, but we have

                                       8
               GILA RIVER INDIAN COMMUNITY V. DCS
                        Opinion of the Court

no occasion here to discuss grounds other than § 1911(b) - such as Arizona
statutes or the forum non conveniens doctrine - that might support a
transfer motion. Cf. 2016 BIA Final Rule, 81 Fed. Reg. at 38,822 (noting “it
may be appropriate to transfer preadoptive and adoptive proceedings
involving children residing outside of a reservation to Tribal jurisdiction in
particular circumstances” but declining to identify criteria).            The
Community relied only on § 1911(b) in requesting a transfer.

¶26            In denying the Community’s motion, the juvenile court
concluded there was “good cause” under § 1911(b) not to order a transfer
pursuant to the statute. The Community argues that the court erred in
finding “good cause.” The juvenile court reached the correct conclusion,
irrespective of its “good cause” determination, because § 1911(b) does not
apply to preadoptive and adoptive proceedings. We accordingly affirm its
denial of the motion to transfer. See State v. Perez, 141 Ariz. 459, 464 (1984)
(“The fact that the trial judge came to the proper conclusion for the wrong
reason is irrelevant. We are obliged to affirm the trial court’s ruling if the
result was legally correct for any reason.”).

¶27           Finally, contrary to the court of appeals and the foster parents’
arguments, we decline to rely on waiver as a basis for affirming the denial
of the Community’s transfer motion. See Gila River Indian Cmty., 240 Ariz.
at 391 ¶ 18. The Community did not expressly waive its right to seek
transfer; thus, the only waiver here would be implied because the
Community did not seek transfer until after parental rights were
terminated. However, “[t]o imply a waiver of jurisdiction would be
inconsistent with the ICWA objective of encouraging tribal control over
custody decisions affecting Indian children.” In re J.M., 718 P.2d 150, 155
(Alaska 1986) (emphasis omitted). Moreover, courts have historically been
reluctant to imply a waiver of Indian rights under ICWA. Id.; cf. In re
Guardianship of Q.G.M., 808 P.2d 684, 689 (Okla. 1991) (“Because of the
ICWA objective to ensure that tribes have an opportunity to exercise their
rights under the Act, and because of the plain language of § 1911(c), a tribe’s
waiver of the right to intervene must be express.”).

                                     III.

¶28           We vacate the court of appeals’ opinion and affirm the
juvenile court’s denial of the Community’s motion to transfer.


                                      9
