Arizona Court of Appeals on Notice [ICWA]

1 CA-SA 22-0076 Tohono v. Hon Fridlund SQ – Opinion

Under Arizona law, tribes shall receive notice in voluntary proceedings:

Arizona Revised Statutes § 8-535(A) provides that after a petition for termination of the parent-child relationship has been filed, “notice of the initial hearing and a copy of the petition shall be given to . . . the tribe of any Indian child as defined by [ICWA].” The statute does not limit the notice requirement to involuntary proceedings.


Because neither A.R.S. § 8-535 nor the Arizona Rules of Juvenile Procedure limit an Indian tribe’s right to notice or intervention solely to involuntary parental terminations, those tribal rights extend to voluntary termination proceedings. Since the Nation was not provided notice of the initial termination proceeding, nor was it allowed to intervene, we vacate the parental termination order, grant the Nation’s motion to intervene, and remand to the superior court for further proceedings consistent with this opinion


Thank you to everyone who sent this to me within approximately 20 minutes of it being released.

Arizona COA Holds Hopi Tribe Owes $300K in Attorney Fees to Arizona Snowbowl

Here is the opinion in Hopi Tribe v. Arizona Snowbowl Resort Limited Partnership:

Unpublished Opinion

The case is on remand from the Arizona Supreme Court, which rejected the tribe’s public nuisance theories here.

Arizona Court Holds Indian Tribes May Be Beneficiaries of Criminal Restitution Award

Here is the opinion in State v. Leal (Ariz. Ct. App.):


An excerpt:

Defendant Carlos Leal appeals a restitution order requiring him to pay $5,500 in funeral expenses for a man he shot and killed in a bar. Leal does not challenge his murder conviction or resulting prison sentence. He does not argue the funeral expenses were unreasonable or unpaid. Instead, because the restitution award went to the Quechan Indian Tribe, rather than to a member of the victim’s family, Leal argues the order was fundamental error. Because Leal has shown no error, the restitution order is affirmed.

Termination of Parental Rights Case out of Arizona [ICPC]

This case is not an ICWA case, but for those who work in this area, it is a familiar fact pattern, and one of the rare times the appellate court overturned the TPR based on lack of evidence. In addition, the press covered both this case, and did a second article on what it means to have “confidential” child welfare cases and provides a fair amount of nuance.

Case coverage

Confidentiality article

Opinion: 1 CA-JV 18-0322

We hold that a termination based on fifteen-months’ out-of-home placement requires the court to consider the totality of the circumstances throughout the dependency when determining whether the Department of Child Safety (“DCS”) made a diligent effort to provide appropriate reunification services, including whether DCS’s failure to act reasonably and diligently contributed to the circumstances causing the child to remain in out-of-home placement. We further hold that a request through the Interstate Compact on the Placement of Children (“ICPC”) is not required when the evidence does not support a dependency concerning the out-of-state parent.

Dad was not married to mom and did not know the child had gone into DCS care at birth. When he contacted the case worker, he was deemed immediately unfit.

Relating to Father, the primary cause of Melody’s out-of-home care was the court’s dependency finding in May 2015. At that time, no evidence showed that Father was an unfit parent, or that living with Father was contrary to Melody’s welfare. Melody had been in DCS’s custody since birth. Father contacted DCS when Melody was less than one month old. Nevertheless, without any investigation, DCS filed a petition alleging that Melody was dependent due to abuse or neglect as to Father.


Despite Mother’s deception in telling Father that he was not Melody’s father, he called Mother’s husband, found out Melody was in DCS’s care, and immediately contacted DCS requesting a paternity test. The case manager told Father to contact the juvenile court, which he did. Father diligently complied with the ordered paternity test, appeared for the hearings, participated in parenting classes, and contested the allegations in the dependency petition.

DCS also required an ICPC (interstate compact on the placement of children) review for the child to be placed with her father in California–though again, there was no actual evidence of unfitness. This is a fact pattern we have dealt with in ICWA cases out of Arizona as well.

An ICPC is not required when evidence does not support a dependency as to the out-of-state parent. See In re Emoni W., 48 A.3d 1, 6 (Conn. 2012) (ICPC does not apply to out-of-state non-custodial parent); accord In re C.B., 116 Cal. Rptr. 3d 294, 302 (Cal. Ct. App. 2010); In re Alexis O., 959 A.2d 176, 182 (N.H. 2008). An ICPC is intended for out-of-state placement of a dependent child. A.R.S. § 8-548, art. II(d) (“’Placement’ means the arrangement for the care of a child in a family free or boarding home or in a child-caring agency . . . .“); A.R.S. § 8-548, art. III(a) (“No sending agency shall send, bring, or cause to be sent or brought into any other party state any child for placement in foster care or as a preliminary to a possible adoption [without complying with the ICPC].” (emphasis added)).


Thus, when DCS discovers that a child in its care has an out-of-state parent, the regulation allows it—in addition to the conventional mechanisms it employs to investigate a parent—to request a courtesy check from the parent’s home state. Accord In re Emoni W., 48 A.3d at 11 (an agency can investigate an out-of-state parent without an ICPC). The ability to request a courtesy check, however, does not authorize DCS to hold a child in its care for an indeterminant amount of time simply because it lacks an ICPC approval. Unless DCS has a reasonable basis for believing the out-of-state parent is unfit, it must turn over the child to the parent.

The Court cited to Vivek Sankaran’s article on this very issue, Vivek S. Sankaran, Out of State and Out of Luck: The Treatment of Non-Custodial Parents Under the Interstate Compact on the Placement of Children, 25 Yale L. & Pol’y Rev. 63, 80 (2006).

By all accounts, dad was a good dad to his other children in California. The trial court went on to terminate parental rights regardless.

Reading this opinion should be infuriating. The visitation “plan” alone makes a person’s  heart rate climb to unhealthy levels on a plane, as my watch unhelpfully pointed out (“DCS falsely claimed  lied and said that “Father ha[d] failed to keep most of the weekly appointments for telephonic contact with the child.” ¶62 The foster mother reported that Father missed only five calls of the fifty days on which Father would have been scheduled to call in that period.”), and is a reminder of the absolute need for very good individual party attorneys in the child welfare system. This is a well written and well reasoned opinion by the Court of Appeals.

Arizona Court of Appeals Requires Qualified Expert Witness in Guardianships [ICWA]


Although ICWA does not explicitly recognize “permanent guardianships,” a comparison of Arizona’s statute for permanent guardianship and ICWA’s definition for a “foster care placement” shows that ICWA applies in permanent guardianships.


Section 1912(e)’s plain language states that no foster care placement, which includes permanent guardianships, may be ordered without expert-witness testimony on whether a parent’s or an Indian-relative custodian’s continued custody of a child will likely result in serious emotional or physical damage to the child. Therefore, a court must hear expert-witness testimony before ordering a permanent guardianship. The record shows that R.Y. was subject to ICWA and a guardianship proceeding took place. Thus, ICWA required the juvenile court to hear expert-witness testimony on whether Mother’s or the Indian-relative custodian’s continued custody of R.Y. would likely result in serious emotional or physical damage to R.Y.

This is a very important point–I get so many questions about the issue of guardianships used to avoid ICWA requirements and about the follow-up about whether a state-initiated proceeding can turn into a fully voluntary one:

Natasha S. also argues that Mother had converted the involuntary dependency into a voluntary matter when Mother petitioned to appoint Natasha S. as guardian, thereby eliminating the need for expert-witness testimony. But all of the proceedings, including the guardianship, arose out of a state dependency action that the Department had initiated. Thus, despite Mother’s motion, this was still an involuntary dependency action and required expert-witness testimony. Moreover, expert-witness testimony is required in voluntary child custody proceedings governed by ICWA. 25 U.S.C. §§ 1903(1)(i), 1912(e); 25 C.F.R. § 23.103(a)(1)