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Johnson v. Beecher

United States District Court, D. Utah

February 14, 2019

NICHOLAS JOHNSON, Plaintiff,
v.
KIRK and DEBRA BEECHER, and CHELSEA LACASSE, Defendants.

          MEMORANDUM DECISION AND ORDER

          DALE A KIMBALL United States District Judge

         This matter is before the court on Defendants Kirk and Debra Beecher's Motion to Dismiss Complaint to Invalidate Guardianship Pursuant to 25 U.S.C. § 1914 [ECF Docket No. 12]. On February 6, 2019, the court held a hearing on the motion. At the hearing, Plaintiff Nicholas Johnson was represented by Paul Tsosie, and Defendants Kirk and Debra Beecher were represented by Nicole Salazar-Hall and Cedar Q. Cosner. After hearing argument, the court took the matter under advisement. The court has carefully considered the memoranda and other materials submitted by the parties, as well as the law and facts relating to the motion. Now being fully advised, the court issues the following Memorandum Decision and Order.

         BACKGROUND

         Nicholas Johnson is the biological father of three minor children, O.J., Z.J., and M.J. Chelsea Dawn LaCasse is the biological mother of the three children. Johnson and LaCasse had an on-and-off relationship from 2005 to 2014, living together at multiple residences in Nampa and Meridian, Idaho until their final separation in August 2014. At that time, Johnson moved in with his parents in Meridian, Idaho, while LaCasse stayed at their home in Nampa, Idaho. In February 2015, LaCasse moved to Payson, Utah, with the three children to live with her mother and step-father, Defendants Debra and Kirk Beecher.

         On July 29, 2015, the Utah Division of Child and Family Services (“DCFS”) filed a verified petition regarding custody of the three children with the Fourth District Juvenile Court in and for Utah County, State of Utah, due to LaCasse's substance abuse. In September 2015, the Beechers intervened in the Utah state case and entered into a stipulation with DCFS, LaCasse, and the children's Guardian ad Litem. Under the stipulation, the court awarded the Beechers permanent custody and guardianship of the minor children. On September 4, 2015, the Utah State juvenile court closed the case based on the mediated settlement.

         In December of 2015, LaCasse asked Johnson if she could stay with him at his parents' home in Meridian, Idaho for a couple of weeks. At that time, he learned that Debra Beecher had custody of the children and that there was a Utah State juvenile court case. Johnson had not been aware of any of the court proceedings until that time. Six months later, on June 15, 2016, the Utah State juvenile court granted Johnson's Motion to Reopen the Case, specifically finding that Johnson was not properly served with a copy of the State's Verified Petition for Custody.

         On September 16, 2016, Johnson served the Beechers with a Verified Petition to Change Custody and Guardianship asking for custody of the three children. The Beechers filed their Answer to the Petition on October, 11, 2106. Although Johnson had not filed the Petition with the state juvenile court, the state court judge allowed the Petition to be filed in the action on the first day of trial, December 12, 2106. The state court judge considered the Petition in the trial. However, nowhere in Johnson's Petition does he refer to the ICWA or the fact that the three children may be of Indian heritage.

         From 2010 to 2017, the Johnson family discussed enrolling all eligible members in the Choctaw Nation of Oklahoma. Kimble Johnson, Nicholas' father and the paternal grandfather of Nicholas' three children, enrolled as a member of the Choctaw Nation of Oklahoma in 2010. The rest of the family had the necessary paperwork to apply as members. But Nicholas had not applied for enrollment or become enrolled as a tribal member when he became involved in the state juvenile custody case or at the time of the trial in that case.

         Later in the proceedings, when Nicholas Johnson learned that there were procedural and substantive protections that could apply to his children, he started the process to become an enrolled member in the Choctaw Nation of Oklahoma. On November 7, 2017, Nicholas Johnson obtained a Certificate of Degree of Indian Blood, and the next day obtained a Choctaw Nation Membership Card. Nicholas Johnson and his three minor children became enrolled members of the Choctaw Nation of Oklahoma on November 13, 2017.

         On November 16, 2017, during a review hearing in the state custody case, Utah State Fourth District Juvenile Court Judge F. Richards Smith held that Nicholas Johnson was a member of a federally recognized Indian Tribe and that the minor children were Indian Children pursuant to the Indian Child Welfare Act (“ICWA”). The Beechers provided notice of the custody proceedings to the Choctaw Nation, pursuant to the ICWA. The Choctaw Nation submitted a letter to the court, dated December 20, 2017, stating that conflicting information prevented the Choctaw Nation from taking a position on the custody issue.

         On January 16, 2018, Judge Smith issued a final Permanency Order denying Nicholas Johnson's Petition to Change Custody and Guardianship. In the Permanency Order, Judge Smith explicitly found that “[t]he ICWA did not apply to this case until November 13, 2017, [when Johnson became an enrolled member], and is not applied retroactively.” Judge Smith also found that even though the active provisions of the ICWA were not required, active efforts had been provided to Johnson and Johnson failed to engage in those services to restore custody. Judge Smith further found that the placement of the children with the Beechers complied with the ICWA as being a qualified Indian placement. Judge Smith then denied Johnson's petition to change custody and ordered that the children remain in the permanent custody of the Beechers.

         Johnson did not appeal the state court's decision to the Utah Court of Appeals. Rather, on September 6, 2018, Johnson filed the instant Complaint in this court to invalidate guardianship pursuant to the ICWA, 25 U.S.C. § 1914.

         DISCUSSION

         Beechers' ...


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