SS. v. Stephanie H.: ICWA applies to any action affecting the relationship between a parent and a Native American child.

On January 12, 2017, Division One of the Arizona Court of Appeals issued its opinion in SS., SS. v. Stephanie H., Garrett S., Colorado River Indian Tribes. The case examines the applicability of the “Indian Child Welfare Act of 1978 (“ICWA”) to a private severance proceeding brought by an Indian parent against a non-Indian parent on grounds of abandonment.”

First, what is ICWA? ICWA is a federal statute intent on keeping Native American families intact. ICWA’s stated purpose is to “protect[] Indian children who are members of or are eligible for membership in an Indian tribe” because Congress recognized that a “high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies and that an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions.” 25 U.S.C. § 1901(3), (4).

So, what happened? Stephanie H. and Garret S. had two children born in 2000 and 2002.  Stephanie and Garret were divorced in 2005. In 2009, Stephanie moved from Northern Arizona to the Phoenix area without notifying Garret. Garret obtained temporary sole custody of the children and the court required Stephanie to drug test. The Court’s drug testing order stated that if Stephanie didn’t drug test she couldn’t see the children. Stephanie drug tested sporadically from 2010 until 2011, and in 2013 submitted to a drug and alcohol recovery program.

In 2012, Garret moved to terminate Stephanie’s parental rights. Through various pre-trial issues, the trial was postponed until January of 2016. During that time, Stephanie started paying some child support and petitioned the court for parenting time with the children (the court denied Stephanie’s petitions). At the time, Stephanie hadn’t seen the children in 6 years.

The Colorado River Indian Tribes joined and participated in the termination trial. All parties acknowledged that the children were Native American children as defined in 25 U.S.C. § 1903(4), and, therefore, ICWA applied. As such, the juvenile court found that Garret had to prove: (1) active efforts were made to prevent the breakup of the Indian family, (2) those efforts were unsuccessful and (3) continued custody by Stephanie was likely to result in serious emotional or physical damage to the children. See 25 U.S.C. § 1912(d), (f). The juvenile court found that Garret failed to prove all of these factors.

Now, this seems just like a regular application of ICWA. But, the twist is that Garret is the Native American parent, not Stephanie, and he was seeking a termination under a private petition to terminate, not through a government agency. The children actually appealed arguing that ICWA does not apply to a Native American parent’s private petition to terminate a non-Native parent’s parental rights. The Court of Appeals acknowledged the purpose of ICWA, but took a rigid yet reasonable textualist interpretation of ICWA, finding that it “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” (emphasis added)) (emphasis in original). Judge Johnsen noted that Congress’s use of the word “any” in 25 U.S.C. § 1903(1)(ii) has an “expansive meaning, that is, ‘one or some indiscriminately of whatever kind.’” (quoting U.S. v. Gonzales, 520 U.S. 1, 5 (1997) (quoting Webster’s Third New International Dictionary, 97 (1976))). As such, the Court of Appeals found that ICWA applied to Garret’s private petition to terminate just as much as it applied to terminations initiated by “nontribal public and private agencies” as contemplated by ICWA.

The children also contended that ICWA does not apply to a Native American parent seeking to terminate a non-Native parent’s rights. The children’s point was that this kind of termination would not break up a Native American family as contemplated by ICWA because the children would remain with the Native parent. The Court of Appeals disagreed. Maintaining its textualist position on the statute, the Court focused again on the 25 U.S.C. § 1903(1)(ii)’s language that a “‘termination of parental rights’ . . . shall mean any action resulting in the termination of the parent-child relationship” (emphasis added). The Court also noted that ICWA defined “parent” as “any biological parent . . . of an Indian child.” 25 U.S.C. §1903(9) (emphasis added). Thus, the Court rejected the children’s contentions and upheld the juvenile court’s ruling.

There is more to the case than just this point, but I thought this interpretation was interesting and decided to only write about this portion. I encourage you to read the rest of the case.


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