405 P.3d 755
Utah Ct. App.2017Background
- Mother was a teenager when Child was born in 2008 and later faced substanced abuse and domestic violence issues.
- Child was adjudicated neglected in 2010 and again in June 2014 after an incident involving Mother’s use of a knife against Stepfather.
- DCFS took Child into custody in June 2014; Grandfather and Grandmother initially had custody with foster care later placed with a non-relatives’ foster family.
- Cherokee Nation confirmed Child was eligible for membership but not an Indian child under ICWA as of June 2014; Mother and Child were not enrolled until July 2015.
- State sought termination of parental rights in 2014, with a later focus on whether ICWA should govern placement and whether active efforts were properly made.
- The juvenile court ultimately found that good cause existed to depart from ICWA placement preferences due to Child’s bond with the foster family and held that active efforts were made; ICWA did not apply to the Custody Order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether bond with the foster family can establish good cause to depart from ICWA placement | Mother (Mother) argues bond supports good cause not to follow ICWA preferences. | State argues bond may support good cause only if initial placement complied with ICWA; here it did. | Yes; bond constituted good cause because initial ICWA placement did not violate ICWA. |
| Whether active efforts were properly supported by evidence | Mother argues the State’s ICWA expert’s testimony should control because she disputes active efforts. | State contends ICWA active efforts need not rely on one expert and credibility is for the court to weigh. | Active efforts were supported; expert testimony was not required and court credibility weighed evidence appropriately. |
| Whether the Custody Order could be invalidated for ICWA applicability | Mother asserts ICWA should have applied earlier due to potential Indian child status. | State argues ICWA did not apply until enrollment occurred in July 2015. | ICWA did not apply to July 2014 Custody Order; motion to invalidate rightly denied. |
Key Cases Cited
- In re C.D., 200 P.3d 194 (Utah 2008) (bonding considerations and good cause in ICWA placement context)
- In re Alexandria P., 176 Cal.Rptr.3d 468 (Cal. App. 2014) (bond with non-Indian foster care may support good cause when initial placement compliant)
- Navajo Nation v. Arizona Dept. of Economic Sec., 284 P.3d 29 (Ariz. Ct. App. 2012) (bonding and attachment considerations in ICWA good-cause analysis)
- In re A.V., 297 P.3d 1019 (Colorado App. 2012) (ICWA active efforts need not rely on expert testimony)
- In re S.A.E., 912 P.2d 1002 (Utah 1996) (ICWA active efforts standard and expert testimony considerations)
- In re M.J., 266 P.3d 850 (Utah App. 2011) (membership determination and ICWA notice considerations)