Arizona COA Holds ICWA Applies to Abandonment Proceedings

Here is the opinion in S.S. v. Stephanie H. (Ariz. Ct. App. — Div. 1).

An excerpt:

As Mother and the Tribes argue, ICWA’s plain language does not limit its scope to proceedings brought by state-licensed or public agencies. By its own terms, ICWA applies to any petition to terminate a parent’s rights. 25 U.S.C. § 1903(1)(ii) (“‘termination of parental rights’ . . . shall mean any action resulting in the termination of the parent-child relationship”). “Read naturally, the word ‘any’ has an expansive meaning, that is, ‘one or some indiscriminately of whatever kind.'” United States v. Gonzales, 520 U.S. 1, 5, 117 S. Ct. 1032, 137 L. Ed. 2d 132 (1997) (quoting Webster’s Third New International Dictionary 97 (1976)). It follows that Congress did not intend that ICWA would apply only to termination proceedings commenced by state-licensed or public agencies. See D.J. v. P.C., 36 P.3d 663, 673 (Alaska 2001) (“ICWA applies to termination proceedings when a party other than the state seeks the termination.”); In re N.B., 199 P.3d 16, 19 (Colo. App. 2007) (“ICWA’s plain language is not limited to action by a social services department.”); In re D.A.C., 933 P.2d 993, 1000-01 (Utah App. 1997) (ICWA applies to any proceeding in juvenile court with permanent consequences to the parent-child relationship).

The Court goes on to wrestle with the concept of active efforts in such a proceeding, an issue that was in play in a recent Washington Supreme Court case:

The children argue there are no services that can prevent a parent from abandoning a child. Cf.A.R.S. § 8-533(B)(8) (petition to sever parental rights based on out-of-home placement requires proof “that the agency responsible for the care of the child has made a diligent effort to provide appropriate reunification services”). But “active efforts,” particularly in the context of abandonment, will not always implicate formal public services. Under Arizona law, a parent abandons a child by failing “to provide reasonable support and to maintain regular contact with the child, including providing normal supervision.” A.R.S. § 8-531(1). Construing ICWA broadly to promote its stated purpose, we interpret the “active efforts” requirement of § 1912(d) in an abandonment proceeding to include informal private initiatives [*12]  aimed at promoting contact by a parent with the child and encouraging that parent to embrace his or her responsibility to support and supervise the child. See In re C.A.V., 787 N.W.2d at 103 (mother met “active efforts” requirement by “facilitating visits before [father’s] incarceration and by inviting continued contact during his prison stay”).

P23 In the abstract, “active efforts” to prevent a parent from abandoning a child might include, inter alia, informing the parent about the child’s educational progress and interests; sending the parent photographs of the child; keeping the parent informed of irregular but significant expenses, such as medical expenses, to which the parent would be expected to contribute; and, where appropriate, inviting the parent to school and extracurricular events and allowing the child to accept communications from the parent. See, e.g., In re N.B., 199 P.3d at 25 (“[D]espite its finding of abandonment, the trial court also found that stepmother could have engaged in active efforts to provide remedial services and rehabilitative programs by informing the child of the identity of his biological mother and seeking to preserve the relationship between them by showing the child pictures of her.”).


Finally, the Arizona court flatly rejected an equal protection argument:

Without [*15]  citation to authority, the children finally argue that application of ICWA to Father’s petition violates their constitutional rights to equal protection, based on their “race and tribal affiliation.” We join the several other courts that have concluded that the additional requirements ICWA imposes on severance of a parent’s rights to an Indian child are based not on race, but on Indians’ political status and tribal sovereignty, and that those requirements are rationally related to the federal government’s desire to protect the integrity of Indian families and tribes. See, e.g., In re N.B., 199 P.3d at 22-23 (citing cases).