2017 UT App 159
Utah Ct. App.2017Background
- Child born 2008 to Mother (then a minor); family history included substance abuse and domestic violence; Child adjudicated neglected in 2010 and again in June 2014 after a violent incident involving Mother.
- DCFS took Child into custody June 2014; Child placed in non‑Native foster home July 2014 and remained there throughout the proceedings; foster placement improved Child’s behavioral symptoms.
- Mother and Child were not enrolled in the Cherokee Nation when Child was first placed; Cherokee Nation in June 2014 notified the court that Child was not an "Indian child" for ICWA purposes at that time.
- Mother and Child enrolled in the Cherokee Nation in July 2015; the tribe then moved to intervene and the proceedings were continued for ICWA issues before termination trial in October 2015.
- Juvenile court found (unchallenged) Mother failed reunification efforts, DCFS made active efforts under ICWA, Child was bonded to foster parents, and removal from foster parents would cause trauma; court found good cause to deviate from ICWA placement preferences and terminated Mother’s parental rights.
Issues
| Issue | Mother’s Argument | State’s Argument | Held |
|---|---|---|---|
| Whether Child’s bond with non‑Native foster family can constitute "good cause" to deviate from ICWA placement preferences | Bond and trauma from removing Child justify departing from ICWA preferences | Placement preferences apply unless good cause shown; but bond/long term placement and child’s needs support deviation here | Bond can constitute good cause when the initial foster placement complied with ICWA; here initial placement predated ICWA applicability, so court did not abuse discretion in finding good cause |
| Whether the State satisfied ICWA’s "active efforts" requirement, given the court credited the State’s non‑tribal ICWA expert over Mother’s tribal expert | Mother’s expert: State did not make active efforts; expert testimony established insufficiency | State: record shows extensive remedial services and efforts; expert testimony not required and trier of fact may credit competing experts | Court may weigh competing expert testimony; expert testimony not required under §1912(d); juvenile court’s finding that active efforts were made is affirmed |
| Whether the July 2014 Custody Order should be invalidated because ICWA applied at the time of initial removal | Mother: Child was eligible for tribal membership and ICWA should have applied when case began; custody order therefore invalid | State: ICWA did not apply at initial placement because neither Child nor Mother was enrolled; tribe confirmed Child was not an Indian child in June 2014 | ICWA did not apply when the Custody Order issued (July 2014); court did not err denying motion to invalidate the order |
Key Cases Cited
- In re C.D., 200 P.3d 194 (Utah Ct. App. 2008) (discusses ICWA placement preferences and whether bond may be considered)
- In re Alexandria P., 176 Cal. Rptr. 3d 468 (Cal. Ct. App. 2014) (bonding and trauma are proper considerations for good cause when initial placement complied with ICWA)
- In re Desiree F., 99 Cal. Rptr. 2d 688 (Cal. Ct. App. 2000) (bonding from an initial placement that violated ICWA should not be used to justify deviation)
- Adoptive Couple v. Baby Girl, 133 S. Ct. 2552 (U.S. 2013) (ICWA placement preferences inapplicable when no alternative, eligible adoptive party has come forward)
- In re Halloway, 732 P.2d 962 (Utah 1986) (stability in placement is important but not sole determinant)
- In re A.G.-G., 899 P.2d 319 (Colo. App. 1995) (ICWA not applicable until Indian child status is established on the record)
- In re M.J., 266 P.3d 850 (Utah Ct. App. 2011) (tribe is the ultimate authority on membership and ICWA status)