In re P.F. , 2017 UT App 159 ( 2017 )

2017 UT App 159THE UTAH COURT OF APPEALS
STATE OF UTAH, IN THE INTEREST OF P.F.,
A PERSON UNDER EIGHTEEN YEARS OF AGE.
G.F.,
Appellant,
v.
STATE OF UTAH,
Appellee.
Opinion
No. 20160247-CA
Filed August 24, 2017
Fifth District Juvenile Court, St. George Department
The Honorable Paul E. Dame
No. 1032776
Benjamin D. Gordon and Kristopher D. Pearson,
Attorneys for Appellant
Sean D. Reyes, Carol L.C. Verdoia, and John M.
Peterson, Attorneys for Appellee
Martha Pierce, Guardian ad Litem
JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES J. FREDERIC VOROS JR. and KATE A. TOOMEY concurred.1
MORTENSEN, Judge:
¶1 Appellant G.F. (Mother) challenges the juvenile court’s
order terminating her parental rights to P.F. (Child). Mother
argues that Child should have been placed with family or a
1. Judge J. Frederic Voros Jr. participated in this case as a
member of the Utah Court of Appeals. He retired from the court
before this decision issued.
In re P.F.
member of her tribe as prescribed in the Indian Child Welfare
Act (ICWA), that the juvenile court should have relied on her
expert’s testimony to determine whether the State made active
efforts under ICWA, and that the juvenile court erroneously
denied her motion to invalidate a July 2014 custody order. We
affirm.
BACKGROUND
¶2 Child was born in 2008, when Mother was thirteen years
old. Mother lived with her mother (Grandmother) and father
(Grandfather) at the time. She became pregnant from being
raped when she was twelve by Grandmother’s boyfriend.
Mother did not receive counseling when she became pregnant
and only reported the rape to counselors in 2014.
¶3 Child was originally adjudicated as neglected in 2010
based on Mother’s history of substance abuse and domestic
violence. Child was again adjudicated as neglected in June 2014
based on an incident where Mother slashed and stabbed Child’s
stepfather (Stepfather) with a knife.2
¶4 The court issued a warrant to take Child into protective
custody on June 3, 2014. On June 5, it held an expedited review
hearing because both Mother and Stepfather3 were incarcerated.
Child was then under the care of Grandfather and Grandmother.
Due to concerns of substance abuse, the court ordered
Grandmother and Grandfather to submit to drug testing.
Grandfather complied with the order for drug testing, but
Grandmother refused. Accordingly, on June 6, the Division of
2. Mother described this incident, saying she “scratched and
poked [Stepfather] with a letter opener.”
3. By June 8, 2014, Mother and Stepfather had divorced.
Accordingly, Stepfather was dismissed from the proceedings.
20160247-CA 2 2017 UT App 159In re P.F.
Child and Family Services (DCFS) took Child into protective
custody.
¶5 During an adjudication hearing on June 18, 2014, counsel
for Mother informed the court that Child “may be eligible for
enrollment in the Oklahoma Cherokee Tribe and ICWA may
apply.” At the time, neither Child nor Mother was an enrolled
member of the Cherokee Nation. On July 8, 2014, the court
adjudicated Child neglected based upon Mother’s incarceration
for failing to appear on her domestic violence charge and for her
recent use of amphetamine, methamphetamine, and bath salts
(the Custody Order). The Custody Order placed Child in DCFS
custody.
¶6 The State had sent formal notice of the proceedings to the
Cherokee Nation on June 23, 2014. The Cherokee Nation
responded by letter and indicated that Child was “eligible for
enrollment with Cherokee Nation by having direct lineage to an
enrolled member.” The letter also stated, “At this time, [Child]
does not meet the definition of ‘Indian child’ in relation to the
Cherokee Nation as stated in [ICWA].” The Cherokee Nation
acknowledged in the letter that it “d[id] not have standing to
intervene . . . until [Child] or eligible parent(s) receive
membership.”
¶7 DCFS placed Child in foster care. She has been with her
current foster family since July 2014. Child’s foster parents are
not related to Mother and are not members of the Cherokee
Nation. Child’s therapist testified that Child had behavioral
issues and that many of these issues, such as biting herself when
she was under stress, abated while she was under the care of her
foster family. Although Grandfather intervened in the matter
and asked that Child be placed with him—in the same
household from which Child had been removed and where both
Mother and Grandmother were still living—Child was never
placed with Grandfather.
¶8 Mother’s reunification efforts were unsuccessful. The
court ordered treatment that required her to complete
20160247-CA 3 2017 UT App 159In re P.F.
assessments for domestic violence, mental health, and drug
abuse and to comply with any recommendations. It also ordered
Mother not to consume alcohol or use drugs, to continue drug
testing, and to maintain stable housing and employment. In
March 2015, the court held Mother in contempt for failing to
comply with drug testing, failing to attend domestic violence
classes, and failing to begin substance abuse treatment.
¶9 In April 2015 the State petitioned to terminate Mother’s
parental rights.4 The State sent a second notice to the Cherokee
Nation in May 2015, to which the Cherokee Nation responded as
it did in its first letter, specifically noting that neither Child nor
Mother was enrolled with the Cherokee Nation and that Child
therefore did not qualify as an Indian child under ICWA. The
court ordered another treatment plan in June 2015 under which
Mother was promptly held in contempt for going to Child’s
school without permission.
¶10 On July 20, 2015, Mother and Child were enrolled as
members of the Cherokee Nation. Mother filed notice of
membership with the court on July 21, 2015. Recognizing Child’s
enrollment in the Cherokee Nation, the court continued the
termination trial, originally scheduled for August 2015, to
October 2015. The State filed a third notice with the Cherokee
Nation on August 3, 2015. The Cherokee Nation moved to
intervene on August 10, 2015, and the State provided it with
copies of the pleadings and orders filed in the proceedings.
¶11 In September 2015, Mother filed a motion asking the court
to order ICWA-compliant placement and requesting that Child
be removed from foster care and placed with Grandfather. The
State objected, arguing that Grandfather was not a viable
4. Child’s father’s parental rights are not at issue in this appeal.
The State’s petition sought to terminate the parental rights of
both parents, and the father’s rights were terminated after he
failed to appear.
20160247-CA 4 2017 UT App 159In re P.F.
placement option,5 that Child would be emotionally traumatized
by another change in placement, and that the Cherokee Nation
waited an unreasonably long amount of time to enroll Child and
to intervene. Mother filed a separate motion to invalidate the
Custody Order, arguing that it did not comply with ICWA. The
State opposed that motion also, arguing that ICWA did not
apply when that order was issued. In October 2015, the court
denied Mother’s motion to invalidate the Custody Order and
held the termination trial.
¶12 At the conclusion of the trial, the juvenile court entered
thirty-one pages of factual findings. Mother does not challenge
any of these findings. Concerning the removal of Child from her
foster home, the juvenile court found that Child “has
experienced multiple traumas” due to the domestic violence and
drug use she witnessed from her immediate family. The court
found, based on the testimony of Child’s therapist, that
“[r]emoving the child from her current foster home may cause
her further trauma and harm, [and] may also cause her to
regress, returning to self-harming, dishonesty, and a lack of
trust. This is, in part, due [to] the child’s history with prior
removals, and the healthy relationship and attachments the child
has developed with the foster parents.” The juvenile court also
recognized the opinion of the State’s ICWA expert that “it would
definitely be detrimental to the child to remove her from the
foster home. The child is bonded with and familiar with the
foster family.” While Mother’s expert testified that removing
Child from the foster family would not result in any emotional
harm because “children are resilient and can bond very easily,”
the juvenile court did not appear to give this testimony much, if
any, weight.
¶13 The juvenile court also made meticulous findings on the
efforts DCFS made to facilitate reunification between Child and
5. Grandfather was adjudicated as having neglected Mother in
2010.
20160247-CA 5 2017 UT App 159In re P.F.
Mother. We recite only the findings relevant to Mother’s appeal,
namely, the facts surrounding the court’s treatment of the
parties’ expert witnesses. The State’s expert was a DCFS
caseworker with experience working on ICWA cases in Utah,
Arizona, and Alaska involving eight to nine Indian tribes. He
had six years of experience as an ICWA expert and familiarized
himself with Cherokee customs in preparation for this case. The
State’s expert was not a member of any tribe. During the course
of this case, the State’s expert met with Child approximately fifty
times and with Mother ten times. He testified that he believed
the State had made “active efforts” to prevent the breakup of
Indian families pursuant to ICWA.
¶14 Mother’s expert is a member of the Cherokee Nation and
an ICWA expert. In the last two years he has testified as an
ICWA expert twenty times. Mother’s expert had never met Child
but had spoken to her briefly over the phone. He had never met
or spoken with Mother. Mother’s expert testified that he
believed the State’s actions did not rise to the level of active
efforts. Mother’s expert likened active efforts to leading a horse
to water and then making it drink, even by pushing its head into
the water. He admitted he was unaware of the numerous mental
health services previously provided to Mother. He also testified
that he believed DCFS should retain custody, that consideration
of termination should be postponed, and that reunification
services should be extended for another three to six months.
¶15 The juvenile court concluded that there was good cause to
deviate from the ICWA placement preferences and allow Child
to remain with her foster family. The court specifically
referenced the “multiple traumas” Child had suffered, the nearly
two years she had lived with, improved with, and bonded with
the foster family, and concluded that removing Child from the
foster family would cause her further trauma and harm and may
cause her to “regress to self-harming, dishonesty, and a lack of
trust.” The court also concluded that no other person who would
constitute a suitable ICWA-eligible placement sought custody of
Child.
20160247-CA 6 2017 UT App 159In re P.F.
¶16 The juvenile court further concluded that the State had
“provided active efforts throughout this case to provide
remedial services and rehabilitative programs designed to
prevent the breakup of the Indian family, and these efforts [had
proven] unsuccessful.” It reasoned that the State had provided
Mother with many opportunities to address her problems and
seek reunification with Child but that Mother failed in her
efforts.6 The court further noted that Mother’s expert “gave
testimony related to the issue of active efforts in this case” but
that it “did not find him to be credible or persuasive on the
issue.”
¶17 Based on these findings and conclusions the juvenile
court terminated Mother’s parental rights and did not remove
Child from her foster family. Mother appeals.
ISSUES AND STANDARDS OF REVIEW
¶18 Mother presents three questions for review, none of
which attacks the juvenile court’s factual findings.7 First, Mother
argues that the court erred in concluding that “Child’s bond
with the non-Native foster family” could “reach the standard of
good cause” to depart from the placement preferences under
ICWA. Second, Mother contends that the court erred in
determining that the State made active efforts under ICWA to
prevent the breakup of the Indian family by “crediting the
6. Mother agreed that she fought DCFS “tooth and nail”
throughout the case. At one point Mother had “fightcps.org”
written on the window of her car in reference to child protective
services.
7. During oral argument, Mother’s counsel confirmed that
Mother was not disputing any findings of fact, but instead was
only contesting whether ICWA should have been or was
properly applied.
20160247-CA 7 2017 UT App 159In re P.F.
State’s ICWA expert who was not versed on Cherokee traditions
and culture above the Cherokee Nation’s actual ICWA expert.”
Third, Mother contends that the court erred in denying her
motion to invalidate the Custody Order because the ICWA
placement preferences applied when Mother provided notice to
the court that Child may be eligible for enrollment.
¶19 “We review the juvenile court’s factual findings for clear
error and its conclusions of law for correctness, affording the
court some discretion in applying the law to the facts.” In re C.D.,
2008 UT App 477, ¶ 7, 200 P.3d 194 (brackets, citation, and
internal quotation marks omitted). “[L]egal errors . . . are usually
an abuse of discretion.” Schroeder v. Utah Attorney Gen.’s Office,
2015 UT 77, ¶ 49, 358 P.3d 1075.
ANALYSIS8
I. Good Cause to Deviate from the ICWA Placement Preferences
¶20 The first issue that Mother brings on appeal is whether
“Child’s bond with the non-Native foster family” can “reach the
standard of good cause” to depart from the ICWA placement
preferences. We conclude that Child’s bond with her foster
family can reach the good-cause standard.
¶21 ICWA establishes uniform “minimum Federal standards
for the removal of Indian children from their families and the
placement of such children in foster or adoptive homes.” 25
8. The United States Department of the Interior issued new
regulations, effective December 12, 2016, for the uniform
application of ICWA. See 25 C.F.R. §§ 23.101, 23.143 (2016).
Because all relevant dates in this proceeding are prior to the
effective date of the new regulations, we do not use them in our
analysis.
20160247-CA 8 2017 UT App 159In re P.F.
U.S.C. § 1902 (2012). Section 1915(b)9 of ICWA governs
placement preferences for the foster or preadoptive placement of
an Indian child. The statute provides,
In any foster care or preadoptive placement, a
preference shall be given, in the absence of good
cause to the contrary, to a placement with—
(i) a member of the Indian child’s extended
family;
(ii) a foster home licensed, approved, or
specified by the Indian child’s tribe;
(iii) an Indian foster home licensed or approved
by an authorized non-Indian licensing
authority; or
(iv) an institution for children approved by an
Indian tribe or operated by an Indian
organization which has a program suitable to
meet the Indian child’s needs.
Id. § 1915(b). The term “good cause” is not defined in the statute
but “was designed to provide state courts with flexibility in
determining the disposition of a placement proceeding involving
an Indian child.” In re adoption of Sara J., 123 P.3d 1017, 1027,
(Alaska 2005). The nonbinding Bureau of Indian Affairs (BIA)
Guidelines in effect during the pendency of this proceeding state
that good cause must be based on one or more of the following:
(1) the request of the parents; (2) the request of the child;
(3) extraordinary physical or emotional needs of the child; or
(4) unavailability of a preferred placement. See Guidelines for
State Courts and Agencies in Indian Child Custody Proceedings,
9. There is some discussion in the parties’ briefs on whether the
termination order invoked section 1915(a) or section 1915(b).
Section 1915(b) of ICWA applies to preadoptive or foster
placement, while section 1915(a) applies to adoptive placement.
Our analysis is the same under either section.
20160247-CA 9 2017 UT App 159In re P.F.
80 Fed. Reg. 10,146, 10,158 (Feb. 25, 2015). Courts have applied
other factors in addition to those provided in the Guidelines,
including the Indian child’s bonding with nonpreferred foster
parents, In re Alexandria P., 176 Cal. Rptr. 3d 468, 494 (Cal. Ct.
App. 2014), preservation of sibling relationships, Fresno County
Dep't of Children & Family Services v. Superior Court, 19 Cal. Rptr.
3d 155, 169 (Cal. Ct. App. 2004), and the best interests of the
child, Paula E. v. Department of Health & Social Services, Office of
Children's Services, 276 P.3d 422, 437 (Alaska 2012).
¶22 In In re C.D., 2008 UT App 477, 200 P.3d 194, this court
discussed, but did not resolve, whether bonding with a foster
family may be considered for establishing good cause to deviate
from the ICWA placement preferences. Id. ¶ 48 & n.29. While
analyzing whether the court had jurisdiction to hear the
appellant’s argument on placement preferences, this court
reasoned that compliance with the ICWA preferences should be
reviewed at the dispositional hearing to achieve compliance as
soon as possible. Id. ¶ 49. We noted, “When foster placement is
noncompliant and of extended duration, the very success of the
placement is in conflict with the goals of the ICWA. Indeed, the
Indian child’s attachment to her foster parents may later be
offered as good cause to avoid the ICWA preferences
altogether.” Id. ¶ 48 (citing In re adoption of F.H., 851 P.2d 1361,
1362, 1364–65 (Alaska 1993)). This court further observed, “Not
all courts accept bonding with a non-Indian foster family as
good cause for deviating from the ICWA preferences. . . . [W]e
are mindful that separating children from a relatively long-term
foster placement may be traumatic to children who have already
suffered abuse or neglect.” Id. ¶ 48 n.29.10
10. The Utah Supreme Court also briefly addressed the bond
between a child and foster family in an ICWA proceeding in In
re adoption of Halloway, 732 P.2d 962 (Utah 1986). In that case, the
court stated, “While stability in child placement should be a
paramount value, it cannot be the sole yardstick by which the
(continued…)
20160247-CA 10 2017 UT App 159In re P.F.
¶23 Courts that have rejected bonding with non-Indian foster
families as good cause have generally done so where the initial
placement of the child did not comply with ICWA. See, e.g., In re
Desiree F., 99 Cal. Rptr. 2d 688, 700 (Cal. Ct. App. 2000) (“Factors
flowing from [an Indian child’s] current placement in flagrant
violation of the ICWA, including but not limited to bonding with
her current foster family and the trauma which may occur in
terminating that placement, shall not be considered in
determining whether good cause exists to deviate from the
placement preferences set forth in the ICWA.”); In re C.F.,
No. 03-0961, 2004 WL 1396159, para. 4 & n.2 (Iowa Ct. App. June
23, 2004) (concluding that difficulty in transition to a new
placement is not good cause to deviate from placement
preferences and admonishing the State of Iowa that, had proper
procedure been followed, the child would initially have been
placed with an Indian family and the difficulty would have been
alleviated); see also In re adoption of M.T.S., 489 N.W.2d 285, 288
(Minn. Ct. App. 1992) (holding that the bond between child and
foster family is not good cause to depart from preferences
without discussing whether the initial placement with the non-
Indian foster family was compliant with ICWA). These holdings
are in line with this court’s view in In re C.D. that “[w]hen foster
placement is noncompliant and of extended duration, the very
success of the placement is in conflict with the goals of the
ICWA.” In re C.D., 2008 UT App 477, ¶ 48 (emphasis added).
Indeed, the nonbinding BIA Guidelines make the same
distinction, stating that “extraordinary physical or emotional
needs of the child do[] not include ordinary bonding or
attachment that may have occurred as a result of a placement or
the fact that the child has, for an extended amount of time, been
(…continued)
legality of a particular custodial arrangement is judged. Such a
standard would reward those who obtain custody, whether
lawfully or otherwise, and maintain it during any ensuing (and
protracted) litigation.” Id. at 971–72 (citation omitted).
20160247-CA 11 2017 UT App 159In re P.F.
in another placement that does not comply with the Act.”
Guidelines, 80 Fed. Reg. at 10,158 (emphasis added).
¶24 On the other hand, many courts have been willing to
consider the bond between a foster family and child where the
initial placement did not violate ICWA. See Navajo Nation v.
Arizona Dep’t of Econ. Sec., 284 P.3d 29, 36 (Ariz. Ct. App. 2012)
(“We have determined that in finding good cause under ICWA,
a court may appropriately consider a child’s bonding and
attachment to a family and any emotional distress the child
would experience if removed.”); In re Nery V., 864 N.W.2d 728,
737 (Neb. Ct. App. 2015) (concluding that the State of Nebraska
had shown good cause where no other suitable placement was
available for over three years while children thrived in a non-
Indian foster home). In In re Alexandria P., the court reasoned,
“[T]he bond between Alexandria and her caretakers and the
trauma that Alexandria may suffer if that bond is broken are
essential components of what the court should consider when
determining whether good cause exists to depart from the
ICWA’s placement preferences.” 176 Cal. Rptr. 3d at 494. The In
re Alexandria P. court held that the trial court erred when it relied
on In re Desiree F., id., a case that we discussed above as an
example of when bonding does not reach good cause, supra ¶ 23.
The In re Alexandria P. court noted,
In Desiree F., the social services agency was
responsible for the delay in notifying the tribe of
the proceedings, and the appellate court clarified
that on remand, the trial court could not consider
factors flowing from the agency’s “flagrant
violation” of the ICWA, including any bond the
minor developed with the current foster family. In
the present case, the Department acted promptly to
notify the tribe, and the social worker was in
communication with the tribe even before
Alexandria was placed with the [foster family].
Thus, no ICWA violation precludes the court from
20160247-CA 12 2017 UT App 159In re P.F.
considering the bond that Alexandria has with her
foster family.
176 Cal. Rptr. 3d at 494 (citation omitted).
¶25 Distinguishing between compliant and noncompliant
foster placement makes sense. In a situation where the child
should not have been placed with a particular foster family in
the first instance, the purposes of ICWA are frustrated. To then
allow the bonding that occurs to ratify that error could
potentially lead to abuses of process. But where the initial
placement with a foster family complies with ICWA, there is no
reason that a child’s bond with her foster family, and the
potential trauma inflicted “to children who have already
suffered abuse or neglect,” In re C.D., 2008 UT App 477, ¶ 48
n.29, should not be part of a court’s good-cause determination.11
¶26 Here, whether the juvenile court abused its discretion by
weighing Child’s bond with her foster family can be resolved by
determining whether her initial placement with her foster family
complied with ICWA. We conclude that an ICWA placement
was not required in the Custody Order and that Child’s bond
with her foster family was properly weighed in the termination
proceedings.
¶27 ICWA and its placement preferences apply to adoptive,
foster, or preadoptive placement of an “Indian child.” 25 U.S.C.
§ 1915(a), (b) (2012). ICWA defines “Indian child” as “any
unmarried person who is under age eighteen and is either (a) a
11. We do not address whether there is any factual setting where
it would be appropriate to consider a child’s bond with her
foster family when that bond flows from an erroneous
placement. In any event, good cause is a determination, made on
a case-by-case basis, to which we grant juvenile courts some
deference when applying the law to the facts. In re C.D., 2008 UT
App 477, ¶ 7, 200 P.3d 194.
20160247-CA 13 2017 UT App 159In re P.F.
member of an Indian tribe or (b) is eligible for membership in an
Indian tribe and is the biological child of a member of an Indian
tribe.” Id. § 1903(4).
¶28 In this case, Child was not an Indian child under ICWA at
the time she was placed with her foster family. Child was placed
in DCFS custody in June 2014 and has been with her foster
family since July 2014. Child was not enrolled as a member of
the Cherokee Nation until July 2015.12 And although the
Cherokee Nation stated in its June 2014 letter that Child was
eligible for membership, her eligibility changed her status only if
Mother was enrolled as a member of an Indian tribe. And
Mother was not enrolled as a member of a tribe until July 20,
2015.13 Thus, Child was not, for ICWA purposes, an “Indian
child” when the Custody Order was entered, because she was
neither “a member of an Indian tribe” nor “eligible for
membership in an Indian tribe and . . . the biological child of a
member of an Indian tribe.” Id. (emphasis added). Therefore,
ICWA did not apply in July 2014 when Child was placed in
DCFS custody and the original placement of Child with her
foster family did not run afoul of ICWA.14 See In re A.G.-G., 899
P.2d 319, 321 (Colo. App. 1995) (“Until the party asserting the
applicability of the ICWA establishes, on the record, that the
child [is an Indian child], the ICWA is not applicable.”); see also
In re D.L.S., 2000 UT App 142U, paras. 2, 4 (affirming the trial
12. The original termination trial was scheduled for August 3,
2015.
13. Mother does not argue or suggest that Child’s biological
father was a member of any tribe.
14. In fact, the Cherokee Nation, which makes the “ultimate
determination of whether a child is a member,” see In re M.J.,
2011 UT App 398, ¶ 25, 266 P.3d 850, stated, “[Child] does not
meet the definition of ‘Indian child’ in relation to the Cherokee
Nation as stated in [ICWA],” supra ¶ 6.
20160247-CA 14 2017 UT App 159In re P.F.
court’s determination that ICWA did not apply where a letter
from the tribe indicated the children were eligible for
membership but neither of the children’s biological parents were
members of a tribe).
¶29 Mother argues that “[a]t the onset of the case, the juvenile
court was informed that [Child] was eligible for enrollment in
the Cherokee Nation” and that because the juvenile court had
“reason to know” that Child was an Indian child in June 2014,
the court should have made “changes in [Child’s] custody at that
time.” Mother’s conclusion overstates the requirements under
ICWA’s reason-to-know provision. When a court has “reason to
know that an Indian child is involved,” the State must “notify
the parent . . . and the Indian child’s tribe.” 25 U.S.C. § 1912(a)
(2012). Here, it is not clear that Mother’s mere assertion at the
June adjudication hearing—not even asserting that Child was an
Indian child, but that she may be eligible for enrollment—was
enough to trigger ICWA’s reason-to-know provision. See In re
M.J., 2011 UT App 398, ¶ 31, 266 P.3d 850 (“[W]e agree with the
many courts that have determined that vague, unsupported,
last-minute, or incredible assertions of Indian ancestry are not
sufficient to invoke ICWA’s notice provisions.”). But even
assuming it was, the State sent notice immediately and
periodically to the Cherokee Nation, twice receiving
confirmation that Child was not an Indian child under ICWA.
There is no statutory requirement to implement the ICWA
placement preferences when the State has reason to know that a
child may be an Indian child; the only requirement is to provide
notice to the child’s custodians and tribe. See id. (characterizing
ICWA’s reason-to-know provision as a notice provision).
Further, any question of whether Child qualified under the
statute was settled by the Cherokee Nation in its June 2014 letter
stating that Child was not an Indian child.15 Therefore, at no time
15. It is well settled that a tribe is the sole authority that decides
its membership. See In re M.J., 2011 UT App 398, ¶ 25 (“The
ultimate determination of whether a child is a member or
(continued…)
20160247-CA 15 2017 UT App 159In re P.F.
prior to Child’s and Mother’s enrollment with the Cherokee
Nation in July 2015 were the ICWA placement preferences
operative.
¶30 Because Child’s placement with her foster family did not
violate ICWA, the juvenile court did not abuse its discretion
when it considered her bond with her foster family as grounds
for good cause to depart from the ICWA placement
preferences.16
(…continued)
eligible to become a member of a particular tribe is the
prerogative of that tribe.”); see also Montana v. United States, 450
U.S. 544, 563 (1981) (“[T]ribes are unique aggregations
possessing attributes of sovereignty over both their members
and their territory[.]” (citation and internal quotation marks
omitted)); Santa Clara Pueblo v. Martinez, 436 U.S. 49, 56 (1978)
(“Indian tribes are distinct, independent political communities,
retaining their original natural rights in matters of local self-
government.” (citation and internal quotation marks omitted));
Smith v. Babbitt, 100 F.3d 556, 558 (8th Cir. 1996) (“Indian tribes
retain elements of sovereign status . . . . One such aspect of this
sovereignty is the authority to determine tribal membership.”).
16. We note here that even if it were error for the juvenile court
to consider Child’s bond with her foster family under the good-
cause exception to the ICWA placement preferences, Child’s
placement at the conclusion of the termination hearing would
still be appropriate under ICWA. Although Mother argues that
Child’s uncle, Grandfather, or any other person enrolled with
the Cherokee Nation would be preferred, only Grandfather has
petitioned to adopt Child. In Adoptive Couple v. Baby Girl, 133 S.
Ct. 2552 (2013), the United States Supreme Court held, “[ICWA
adoption placement] preferences are inapplicable in cases where
no alternative party has formally sought to adopt the child. This
is because there simply is no ‘preference’ to apply if no
(continued…)
20160247-CA 16 2017 UT App 159In re P.F.
II. Active Efforts
¶31 Mother contends that the termination order should be
reversed because the juvenile court erred in determining that the
State made active efforts under ICWA by “crediting the State’s
ICWA expert who was not versed on Cherokee traditions and
culture above the Cherokee Nation’s ICWA expert.”
¶32 ICWA requires the State to make heightened efforts to
help the parents of Indian children retain custody. In re C.D.,
2008 UT App 477, ¶ 34, 200 P.3d 194 (“[T]he phrase active efforts
connotes a more involved and less passive standard than that of
reasonable efforts.”). ICWA provides,
Any party seeking to effect a foster care placement
of, or termination of parental rights to, an Indian
child under State law shall satisfy the court that
active efforts have been made to provide remedial
services and rehabilitative programs designed to
prevent the breakup of the Indian family and that
these efforts have proved unsuccessful.
25 U.S.C. § 1912(d) (2012). “ICWA does not require expert
testimony to support a trial court’s finding that active efforts
were made to prevent breakup of an Indian family under section
(…continued)
alternative party that is eligible to be preferred under § 1915(a)
has come forward.” Id. at 2564. Because Grandfather was the
only other person to seek custody of Child, the court’s only
available options were Grandfather and the foster family.
Considering that Grandfather was adjudicated as having
neglected Mother in 2010 and that Mother’s own expert did not
recommend the court return Child to Grandfather due to
concerns raised at trial, the juvenile court could have placed
Child with her foster family, even without considering the bond
cultivated between them.
20160247-CA 17 2017 UT App 159In re P.F.
1912(d).”17 In re A.V., 2012 COA 210, ¶ 23, 297 P.3d 1019; see also
In re S.A.E., 912 P.2d 1002, 1004 (Utah Ct. App. 1996) (“Therefore,
the ICWA only requires the State to present qualified expert
testimony on the issue of whether serious harm to the Indian
child is likely to occur if the child is not removed from the
home.” (citation and internal quotation marks omitted)).
¶33 Here, Mother does not challenge any of the findings of
fact underlying the juvenile court’s determination that active
efforts were made throughout the case. Nor does Mother
contend that the facts on which the juvenile court relied were
insufficient to support its determination. She instead argues that
the juvenile court improperly disregarded the testimony from
her expert witness that active efforts, in his opinion, were not
made. Because this argument challenges neither factual findings
nor the sufficiency of evidence, on this basis alone we could
affirm the juvenile court’s conclusion that active efforts were
made. See In re S.D.C., 2001 UT App 353, ¶ 20, 36 P.3d 540(affirming the trial court’s conclusion that active efforts under
ICWA were satisfied where the father “d[id] not challenge [the
trial court’s] finding or argue that the evidence supporting the
conclusion [was] insufficient”); see also In re V.H., 2007 UT App 1,
¶ 16, 154 P.3d 867 (affirming the juvenile court’s conclusion that
active efforts were made where the father “failed to properly
challenge” the court’s findings).
¶34 More important, Mother’s argument does not warrant
reversal. As explained above, see supra ¶ 32, expert testimony is
not required to support a court’s determination that active
efforts were made, nor does the statute require that the evidence
be provided by someone “versed on Cherokee traditions and
culture,” as Mother argues. As a trier of fact, the juvenile court is
17. Failure to provide expert testimony in section 1912(e) foster
care placements or section 1912(f) parental termination cases can
be grounds for reversal, see In re A.V., 2012 COA 210, ¶ 23, 297
P.3d 1019, but not under section 1912(d).
20160247-CA 18 2017 UT App 159In re P.F.
free to weigh competing expert testimony. See In re E.R., 2001 UT
App 66, ¶ 11, 21 P.3d 680 (discussing the wide latitude of
discretion given to judgments arrived at by the juvenile court
based on the court’s firsthand opportunity to judge credibility).
And in this case the juvenile court made express findings on the
credibility of Mother’s expert. Because the testimony of Mother’s
expert was not entitled to special weight, and because the court
found the expert lacked credibility in any event, we see no error
in the juvenile court’s treatment of the expert testimony.
III. Motion to Invalidate
¶35 Finally, Mother contends that the juvenile court erred
when it denied her motion to invalidate the Custody Order that
placed Child in DCFS custody, essentially arguing that Child
met the definition of “Indian child” and that ICWA applied at
the outset. In Part I, we determined that ICWA did not apply
until Mother and Child were enrolled with the Cherokee Nation
in July 2015. The same analysis applies here.
¶36 Mother argues, “Child met the definition of an Indian
child pursuant to ICWA because she was eligible for
membership in the Tribe and the Mother was also obtaining
membership.” But this argument misstates the definition of
Indian child under ICWA. Child did not meet the definition of
an Indian child because she was neither “a member of an Indian
tribe,” nor “eligible for membership in an Indian tribe and . . . the
biological child of a member of an Indian tribe.” 25 U.S.C.
§ 1903(4) (2012) (emphasis added). The fact that Mother was
simultaneously seeking membership with the Cherokee Nation
did not bring Child within the statutory definition of an Indian
child. The Cherokee Nation confirmed that Child was not an
Indian child in June 2014, settling any ambiguity as to whether
ICWA applied when DCFS took custody of Child.18 ICWA was
18. Again, it is the tribe alone that makes any determination on
membership. Supra ¶ 29 note 15.
20160247-CA 19 2017 UT App 159In re P.F.
not applicable until July 2015, well after the July 2014 order. See
In re A.G.-G., 899 P.2d 319, 321 (Colo. App. 1995) (“Until the
party asserting the applicability of the ICWA establishes, on the
record, that the child [is an Indian child], the ICWA is not
applicable.”). Therefore, the juvenile court did not err in denying
Mother’s motion to invalidate. See In re adoption of Kenten H., 725
N.W.2d 548, 555 (Neb. 2007) (concluding that ICWA applies
“prospectively from the date Indian child status is established on
the record”); In re Tucker, 710 P.2d 793, 796 (Or. Ct. App. 1985)
(concluding that a placement order could not be invalidated for
failure to comply with ICWA where Indian child status was not
established and the court had no reason to know the child was
an Indian child until two years after the child was placed in
foster care); cf. In re S.B., 30 Cal. Rptr. 3d 726, 732 (Cal. Ct. App.
2005) (rejecting the contention that prior orders should be
invalidated pursuant to ICWA where mother did not object on
ICWA grounds until just prior to the final termination hearing).
CONCLUSION
¶37 We conclude that the juvenile court could properly rely
on the bond between Child and her foster family to find the
good cause necessary to deviate from the ICWA placement
preferences where Child’s initial placement with her foster
family was not in violation of ICWA. We further conclude that
the juvenile court did not err in disregarding the testimony of
Mother’s expert. Finally, we conclude that the court did not err
when it denied Mother’s motion to invalidate the Custody Order
because ICWA did not apply.
¶38 Affirmed.
20160247-CA 20 2017 UT App 159