Jimmie G., Sally G. v. Dcs
1 CA-JV 16-0494
| Ariz. Ct. App. | Jun 1, 2017Background
- Father is the biological parent of three Cherokee‑eligible (ICWA) children previously adjudicated dependent and later placed with paternal grandmother (Grandmother), who became permanent guardian in 2008.
- Multiple reports alleged Father physically abused the children while in Grandmother’s care; Grandmother allowed Father to reside with the children.
- In March 2014 DCS removed the children after one disclosed abuse and filed dependency petitions as to Father and Grandmother.
- DCS provided Father numerous reunification services (substance‑abuse treatment/referrals, parent‑aide, counseling, visitation, therapy); Father completed some services but repeatedly relapsed, failed to complete programs, and did not engage consistently.
- In August 2015 DCS moved to terminate Father’s parental rights (A.R.S. § 8‑533(B) grounds) and to revoke Grandmother’s permanent guardianship; after a combined hearing the superior court terminated Father’s rights and revoked Grandmother’s guardianship.
- On appeal Father challenged ICWA “active efforts” and best‑interest findings; Grandmother challenged the burden of proof applied in the guardianship revocation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether DCS satisfied ICWA active‑efforts requirement before terminating Father’s rights | Father: DCS failed to refer him earlier for inpatient/residential treatment and thus did not make required active efforts; his later residential treatment (self‑obtained) shows efforts could have worked | DCS: offered and re‑offered multiple services; Father repeatedly failed to engage or complete services and at times declined outpatient while on a residential waitlist | Court: Active efforts were proven by clear and convincing evidence; efforts were unsuccessful and reasonable evidence supports the finding |
| Whether termination is in the children’s best interests | Father: Termination will separate siblings and harms children; recent sobriety suggests reunification could work | DCS: Children have been in out‑of‑home care >2 years; two children are in adoptive placement; third is adoptable with continuity of services; parents cannot safely resume custody | Court: By a preponderance of evidence termination is in children’s best interests to secure permanency and adoption opportunities |
| Proper burden of proof for revoking a permanent guardianship of Indian children | Grandmother: Revocation of a guardianship in an ICWA case requires proof beyond a reasonable doubt (higher than clear and convincing) | DCS: Statute governing revocation sets clear and convincing standard without ICWA exception | Court: Applied A.R.S. § 8‑873(C) (clear and convincing); legislature expressly provided a beyond‑reasonable‑doubt rule only for creation of guardianship (A.R.S. § 8‑872(F)), so revocation requires clear and convincing proof |
Key Cases Cited
- Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246 (discussing parental custody as a fundamental right and termination standards)
- Yvonne L. v. Ariz. Dep't of Econ. Sec., 227 Ariz. 415 (ICWA active‑efforts burden is clear and convincing; parent need not receive every imaginable service)
- Kent K. v. Bobby M., 210 Ariz. 279 (best‑interest standard: preponderance of evidence)
- Maricopa County Juv. Action No. JS‑501904, 180 Ariz. 348 (scope of services/time to participate under ICWA context)
- Valerie M. v. Ariz. Dep't of Econ. Sec., 219 Ariz. 331 (statutory interpretation principles; de novo review of burden‑of‑proof argument)
- Gila River Indian Cmty. v. Dep't of Child Safety, 240 Ariz. 385 (presumption that legislature acts intentionally in drafting statutes)
- Mary Lou C. v. Ariz. Dep't of Econ. Sec., 207 Ariz. 43 (standard of appellate review for termination findings)