S.S., S.S. v. Stephanie H.
241 Ariz. 419
| Ariz. Ct. App. | 2017Background
- Mother (non-Indian) and Father (Indian) divorced in 2005; Father was awarded sole legal and physical custody after Mother moved away in 2009 and lied about the children’s whereabouts. Mother was placed on probation and ordered to submit to drug testing before regaining visitation.
- Mother did not see the children after May 2009; she later completed drug treatment, submitted to many drug tests (most negative), and passed several hair-follicle tests in 2010 and 2014, but had not regained visitation by trial.
- Father filed a private petition to sever Mother's parental rights in 2012 alleging abandonment; the Colorado River Indian Tribes intervened and the parties agreed the children are Indian children under ICWA.
- At close of Father’s case, the juvenile court found sufficient evidence of abandonment and best interests but dismissed the petition because Father failed to prove unsuccessful "active efforts" under 25 U.S.C. § 1912(d).
- The children (appellants) appealed the dismissal; Father did not participate in the appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does ICWA apply to a private severance by an Indian parent seeking termination of a non-Indian parent's rights? | Appellants: ICWA is aimed at public/state removals and does not apply to private petitions between parents. | Mother/Tribes: ICWA applies to any termination of parental rights involving an Indian child. | ICWA applies to private termination proceedings; statute covers "any" action terminating parent-child relationship. |
| Must a petitioner prove unsuccessful "active efforts" under §1912(d) when seeking severance for abandonment? | Appellants: "Active efforts" should not be required for abandonment severance. | Mother/Tribes: §1912(d) imposes an "active efforts" requirement for any termination of an Indian child's parental rights. | §1912(d) applies; petitioner must show active efforts were made and proved unsuccessful. |
| What may qualify as "active efforts" in an abandonment-based severance? | Appellants: No services can prevent abandonment, so active efforts are inapplicable or minimal. | Mother/Tribes: Active efforts can include informal, private steps (e.g., communication, invitations, information, support encouragement). | Active efforts may include informal measures tailored to circumstances; state court discretion applies. |
| Does applying ICWA here violate equal protection? | Appellants: Application discriminates based on race/tribal affiliation. | Mother/Tribes: ICWA distinctions are political/sovereignty-based and rationally related to federal interests. | Court rejected equal protection claim; ICWA classifications are political, not racial, and are rationally related to federal objectives. |
Key Cases Cited
- United States v. Gonzales, 520 U.S. 1 (1997) (interpretation of the ordinary meaning of "any")
- Adoptive Couple v. Baby Girl, 133 S. Ct. 2552 (2013) (supreme court discussion of ICWA context and limits)
- Maricopa County Juv. Action No. A-25525, 136 Ariz. 528 (App. 1983) (ICWA applies to termination proceedings)
- In re N.B., 199 P.3d 16 (Colo. App. 2007) (ICWA applies to private termination; examples of active efforts)
- In re T.A.W., 383 P.3d 492 (Wash. 2016) (analysis of ICWA's focus on the child's status and active-efforts requirement)