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State ex rel. P.F.

Court of Appeals of Utah

August 24, 2017

State of Utah, in the interest of P.F., a person under eighteen years of age.
State of Utah, Appellee. G.F., Appellant,

         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]


         ¶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 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.


         ¶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 Stepfather[3] 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 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 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 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 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.

         ¶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 ...

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