Opinion
2 CA-JV 2022-0136
03-23-2023
In re Dependency of A.W. and K.W.,
The Huff Law Firm PLLC, Tucson By Laura J. Huff Counsel for Appellant Kristin K. Mayes, Arizona Attorney General By Dawn R. Williams, Assistant Attorney General, Tucson Counsel for Appellee Department of Child Safety
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pima County No. JD20160355 The Honorable Kathleen Quigley, Judge
The Huff Law Firm PLLC, Tucson By Laura J. Huff Counsel for Appellant
Kristin K. Mayes, Arizona Attorney General By Dawn R. Williams, Assistant Attorney General, Tucson Counsel for Appellee Department of Child Safety
Judge O'Neil authored the decision of the Court, in which Vice Chief Judge Staring and Judge Sklar concurred.
MEMORANDUM DECISION
O'NEIL, JUDGE
¶1 Byron N. appeals from the juvenile court's November 2022 order adjudicating his daughters, A.W. (born in October 2005) and K.W. (born in February 2007), dependent. He argues the court erred by finding that his continued custody of A.W. and K.W. was likely to result in serious emotional or physical damage to them, as required by the Indian Child Welfare Act (ICWA), 25 U.S.C. § 1912(e). The Department of Child Safety (DCS) concedes error. We vacate the dependency order and remand for proceedings consistent with this decision.
Byron is the biological father of several other children, four of whom were also adjudicated dependent at the same time as A.W. and K.W. The other four children are not parties to this appeal.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to upholding the juvenile court's findings. See Louis C. v. Dep't of Child Safety, 237 Ariz. 484, ¶ 2 (App. 2015). In October 2016, A.W. and K.W. were adjudicated dependent as to Byron. The court determined that ICWA applied because A.W. and K.W. were eligible for enrollment with the Quechan Tribe through their mother. Based on Byron's compliance with the case plan, however, the court terminated the dependency in November 2017.
A.W. and K.W.'s mother, P.W., is reportedly deceased.
¶3 In February 2022, DCS again removed A.W. and K.W., as well as their half-siblings, from Byron's care, alleging A.W. and K.W. were dependent based on his physical abuse of them, his substance abuse, and his inability to provide for their basic needs. One of the half-siblings reported an incident in which Byron had hit him and all but one of the children with a metal rod because they "had not cleaned up the house properly." He described the abuse as happening "consistently." K.W. and A.W. later confirmed that Byron "spanked" or "hit" them when they did not listen or clean properly, and at least two of the half-siblings had bruises and marks. The children were placed with an older sibling, but A.W. and K.W. ran away. Their whereabouts remained unknown throughout the pendency of the proceedings below.
¶4 At the dependency hearing, the juvenile court granted Byron's motion for judgment as a matter of law on the basic needs allegation and later found the substance abuse allegation not proven. However, after again finding ICWA applied, the court adjudicated A.W. and K.W. dependent based on Byron's physical abuse. This appeal followed.
The state declined to criminally prosecute Byron.
Discussion
¶5 Byron contends the juvenile court "committed legal error" by adjudicating A.W. and K.W. dependent as to him "when the sole qualified expert witness testified that there was no risk of serious emotional or physical damage to the children in being placed with [him]." We review a dependency adjudication for an abuse of discretion. Shella H. v. Dep't of Child Safety, 239 Ariz. 47, ¶ 13 (App. 2016). "A court abuses its discretion when 'it commits an error of law in reaching a discretionary conclusion, it reaches a conclusion without considering the evidence, it commits some other substantial error of law, or the record fails to provide substantial evidence to support the trial court's finding.'" Romer-Pollis v. Ada, 223 Ariz. 300, ¶ 12 (App. 2009) (quoting Flying Diamond Airpark, LLC v. Meienberg, 215 Ariz. 44, ¶ 27 (App. 2007)).
¶6 ICWA "mandates certain procedural protections" when "state courts . . . adjudicate custody cases involving Indian children." Valerie M. v. Ariz. Dep't of Econ. Sec., 219 Ariz. 331, ¶ 14 (2009). One such protection in a dependency proceeding is that the juvenile court must make "a determination, supported by clear and convincing evidence, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child." § 1912(e); see also Ariz. R. P. Juv. Ct. 338(c)(2) (such proof required even when parent admits or does not contest dependency allegations; determination in addition to other state requirements). This protection "furthers Congress's intent to prevent state courts from too readily approving dependency dispositions that remove Indian children from their parents or native communities." Steven H. v. Ariz. Dep't of Econ. Sec., 218 Ariz. 566, ¶ 13 (2008).
¶7 Under § 1912(e), the subject of an expert's testimony must "be forward looking-relating to the likelihood of future harm to the child." Steven H., 218 Ariz. 566, ¶ 19. Although "ICWA does not require that the experts' testimony provide the sole basis for the court's conclusion," it does require "that the testimony support that conclusion." Id. ¶ 20 (quoting E.A. v. State, 46 P.3d 986, 992 (Alaska 2002)).
¶8 Byron argues that "the record is void of any evidence that [his] continued custody of [K.W.] and [A.W.] would result in serious emotional or physical damage to the children." He maintains that "the sole qualified expert witness presented at trial repeatedly testified that the children would not be at risk of serious emotional or physical damage in [his] custody." He thus reasons that the juvenile court's § 1912(e) finding is not supported by the evidence and that the dependency adjudication must be vacated. DCS "agrees that the qualified expert witness's testimony does not support the juvenile court's finding that [Byron's] continued custody of A.W. and K.W. would likely result in serious emotional or physical damage to them and that the dependency order must therefore be vacated."
¶9 Before the dependency hearing, the juvenile court determined Kasaundra Johnson, a DCS ICWA specialist, constituted a qualified expert witness. At the hearing, on direct examination, Johnson testified: "My opinion, all things considered, if [Byron] is in fact the father through paternity or affidavit of paternity, of [A.W.] and [K.W.], and this physical abuse occurred, that the child or the children in this instance would be subject to serious risk of harm emotionally and/or physically." On cross-examination, however, the following occurred:
The specialist suggested that she had confirmed neither Byron's paternity nor A.W. and K.W.'s eligibility for membership in the Quechan Tribe. Because neither party raises these issues, we do not address them.
Q. So, I just want to make sure that we're clear. You believe, or you do not believe, that there's a serious risk of harm if the children are returned?
A. I'm specifically speaking about [A.W.] and [K.W.]. At this juncture, as I testified, I don't
believe, based on what I've heard and what I've read, that I can opine that there would be serious emotional and physical harm if these children, if these girls were returned to the father's home.
On redirect, Johnson again stated that she "did not believe that there would be a significant risk of harm for [K.W.] and [A.W.] to return to their father's care." She explained that one reason for her opinion was that K.W. and A.W. "indicated they weren't afraid to return" to Byron. In support of her opinion, Johnson noted that K.W. and A.W. had not been shown to have marks or bruising. And she further explained "another reason" for her opinion was that they were better "able to protect themselves" because of their age.
¶10 As DCS points out, there was sufficient evidence to support a finding of physical abuse by Byron. See A.R.S. § 8-201(2), (15)(a) (definitions of abuse and dependent child). However, that is not enough under ICWA, which requires an additional determination, supported by the testimony of qualified expert witnesses, that the continued custody of the child by the parent is likely to result in serious emotional or physical damage to the child. § 1912(e). Here, although the specialist initially seemed to suggest such damage was possible, she later clarified that she did not believe Byron's continued custody of K.W. and A.W. was likely to result in serious emotional or physical damage to them. Because the specialist's testimony did not support the determination, the juvenile court erred by finding Byron's continued custody of A.W. and K.W. would likely result in serious emotional and physical damage to them. See Steven H., 218 Ariz. 566, ¶ 21. And because this was a required finding, the court erred by adjudicating A.W. and K.W. dependent. See Romer-Pollis, 223 Ariz. 300, ¶ 12; Ariz. R. P. Juv. Ct. 338(h)(2) (court must dismiss petition if petitioner fails to meet burden of proof).
Disposition
¶11 For the foregoing reasons, we vacate the juvenile court's order adjudicating A.W. and K.W. dependent as to Byron, and we remand for proceedings consistent with this decision.