SUPREME COURT OF ARIZONA
En Banc
VALERIE M., ) Arizona Supreme Court
) No. CV-08-0252-PR
Appellant, )
) Court of Appeals
v. ) Division One
) No. 1 CA-JV 07-0033
ARIZONA DEPARTMENT OF ECONOMIC )
SECURITY, KAYDEE V., RANDY V., ) Maricopa County
ZACHARY V., ) Superior Court
) No. JD13827
Appellees. )
)
)
) O P I N I O N
__________________________________)
Appeal from the Superior Court in Maricopa County
The Honorable Frank A. Johnson, Judge Pro Tempore
_______________________________________________________________
Opinion of the Court of Appeals, Division One
219 Ariz. 155, 195 P.3d 192 (App. 2008)
AFFIRMED
________________________________________________________________
SANDRA L. MASSETTO, ATTORNEY AT LAW Phoenix
By Sandra L. Massetto
Attorney for Valerie M.
TERRY GODDARD, ARIZONA ATTORNEY GENERAL Tucson
By Dawn R. Williams, Assistant Attorney General
Attorneys for Arizona Department of Economic Security
________________________________________________________________
B A L E S, Justice
¶1 Under Arizona law, parental rights may be terminated
if clear and convincing evidence establishes a statutorily
identified ground, such as abandonment or neglect, and a
preponderance of the evidence shows that termination is in the
child’s best interests. We hold that the Indian Child Welfare
Act (“ICWA”), 25 U.S.C. §§ 1901 to 1963 (2000), does not require
these state-law findings to be made by a higher standard of
proof in cases involving Indian children.
I. FACTS AND PROCEDURAL BACKGROUND
¶2 This case concerns the termination of the parental
rights of Valerie M. as to her children Kaydee V., Randy V., and
Zachary V. Because Valerie M. is a member of the Cherokee
Nation and her children are eligible for tribal membership, the
proceedings are subject to ICWA’s requirements. See 25 U.S.C.
§ 1903(4) (defining “Indian child”). On the petition of the
Arizona Department of Economic Security (“ADES”), and after
notice to the Cherokee Nation and the Bureau of Indian Affairs,
the juvenile court determined that the children were dependent
as to both their mother and father. ADES later moved to
terminate the rights of the parents on multiple grounds under
Arizona Revised Statutes (“A.R.S.”) section 8-533(B) (Supp.
2005). Neither the parents nor the Cherokee Nation sought to
transfer the proceedings to a tribal court; the Cherokee Nation
agreed that termination of Valerie M.’s parental rights was
warranted.
¶3 ICWA requires a state court to make two particular
2
findings before terminating the parental rights for an Indian
child. The court must be persuaded that “active efforts have
been made to provide remedial services and rehabilitative
programs designed to prevent the breakup of the Indian family
and that these efforts have proved unsuccessful.” 25 U.S.C.
§ 1912(d). There must also be “a determination, supported by
evidence beyond a reasonable doubt, 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.” Id.
§ 1912(f).
¶4 The juvenile court terminated the father’s parental
rights after finding beyond a reasonable doubt the alleged
state-law grounds for termination, the best interests of the
children, and the findings required by ICWA. ADES did not
object to the court’s applying the reasonable doubt standard to
each of the required findings.
¶5 Valerie M. demanded a jury trial on the termination of
her parental rights as then allowed by Arizona statute. (The
legislature eliminated the right to jury trial in termination
proceedings effective January 1, 2007. 2003 Ariz. Sess. Laws,
ch. 6, § 10 (2d Spec. Sess.) (codified at A.R.S. § 8-537
(2007)). She requested that the jury be instructed that it must
find both the state-law findings and the ICWA findings beyond a
3
reasonable doubt. At the request of ADES, the juvenile court
instead instructed the jury to apply the clear and convincing
evidence standard to the state-law grounds for termination, the
preponderance of the evidence standard to the best interest
finding, and the reasonable doubt standard to the ICWA findings.
The jury returned a verdict terminating the mother’s parental
rights.
¶6 On appeal, Valerie M. argued that proof beyond a
reasonable doubt was required for the state-law findings. She
primarily argued that ICWA requires the higher burden of proof.
She also argued that this burden should apply under the law of
the case doctrine because the juvenile court had applied a
reasonable doubt standard in terminating the father’s rights.
¶7 The court of appeals affirmed. Valerie M. v. Ariz.
Dep’t of Econ. Sec., 219 Ariz. 155, ___ ¶ 1, 195 P.3d 192, 193
(App. 2008). The court noted that ICWA by its terms does not
impose the reasonable doubt standard for state-law findings in
termination proceedings. Consistent with the weight of
authority from other states, the court held that ICWA instead
allows a “dual burden” of proof: reasonable doubt for the ICWA
findings and a lesser standard for findings required by state
law. Id. at ___ ¶ 14, 195 P.3d at 196. The court also rejected
Valerie M.’s argument that a reasonable doubt standard was
required by Arizona Rule of Procedure for the Juvenile Court
4
66(C). Id. at ___ ¶ 22, 195 P.3d at 199. Although Rule 66(C)
states that the allegations in a termination proceeding
involving an Indian child must be proved beyond a reasonable
doubt, the court of appeals held that the rule is invalid
“insofar as it imposes a higher burden of proof in termination
cases” than A.R.S. §§ 8-537(B) and -863(B) require. Id.
Finally, the court held that the law of the case doctrine did
not require applying the reasonable doubt standard to the state-
law findings. Id. at ___ n.6 ¶ 23, 195 P.3d at 199 n.6.
¶8 We granted review to clarify the standard of proof for
the state-law termination grounds and the child’s best interests
in cases subject to ICWA. We also granted review to decide
whether the reasonable doubt standard should apply here under
the law of the case doctrine, but upon further consideration we
dismiss our review on this issue as improvidently granted. We
have jurisdiction under Article 6, Section 5(3), of the Arizona
Constitution and A.R.S. § 12-120.24 (2003).
II. DISCUSSION
¶9 In Arizona, terminations of parent-child relationships
are governed by A.R.S. §§ 8-531 to -544. The fact finder must
find one or more of the grounds for termination listed in § 8-
533(B) by clear and convincing evidence. A.R.S. § 8-537(B)
(Supp. 2005). In addition, the fact finder must find by a
preponderance of the evidence that the termination of the
5
parent-child relationship is in the best interests of the child.
Kent K. v. Bobby M., 210 Ariz. 279, 284 ¶ 22, 110 P.3d 1013,
1018 (2005).
¶10 The issue here is whether ICWA imposes a reasonable
doubt standard for these state-law findings in a case involving
an Indian child. We review issues of statutory interpretation
de novo. In interpreting ICWA, we attempt to give effect to the
will of Congress as expressed in the statutory language, which
we construe liberally in favor of the interest in preserving
tribal families. Steven H. v. Ariz. Dep’t of Econ. Sec., 218
Ariz. 566, 570 ¶ 14, 190 P.3d 180, 184 (2008). If ICWA imposes
a higher standard of proof, then federal law controls over state
law. See 25 U.S.C. § 1921 (stating that court shall apply law,
state or federal, that provides higher standard of protection to
rights of parent or Indian guardian in a child custody
proceeding involving Indian child); A.R.S. § 8-815(B) (stating
that court and parties shall meet all requirements of ICWA “not
prescribed” by state statutes).
¶11 ICWA’s only specific directive concerning the burden
of proof in termination proceedings appears in 25 U.S.C.
§ 1912(f), which applies the reasonable doubt standard to proof
that “continued custody of the child by the parent or Indian
custodian is likely to result in serious emotional or physical
damage to the child.” Valerie M. does not argue that ICWA
6
expressly requires the state-law findings to be made beyond a
reasonable doubt. Rather, she argues that we should interpret
ICWA as requiring proof beyond a reasonable doubt for all
required findings, whether imposed by federal or state law, to
terminate parental rights for an Indian child.
¶12 Congress enacted ICWA in 1978 based on concerns that
Indian families and tribes were threatened by alarmingly high
rates of removal of Indian children from them by non-tribal
entities, including state courts. Id. § 1901; Steven H., 218
Ariz. at 570 ¶ 11, 190 P.3d at 184. In response, ICWA allocates
jurisdiction between tribal and state courts over Indian child
custody cases and mandates certain procedural safeguards and
substantive requirements for state court proceedings.
¶13 Among other things, ICWA provides that tribal courts
generally have exclusive jurisdiction for child custody
proceedings involving Indian children who reside or are
domiciled within the reservation. 25 U.S.C. § 1911(a). For
other Indian children, ICWA provides that state court child
custody proceedings may be transferred to tribal court upon the
petition of either parent or the tribe, but that such transfer
will not occur upon either parent’s objection, declination by
the tribal court, or the state court’s determination that there
is good cause not to transfer the case. Id. § 1911(b).
¶14 ICWA thus contemplates that state courts will continue
7
to adjudicate custody cases involving Indian children. In these
cases, ICWA mandates certain procedural protections, such as
intervention rights for the Indian child’s tribe, id. § 1911(c),
rights to notice for the parent or Indian custodian and the
tribe, id. § 1912(a), and a right to appointed counsel for
indigent Indian parents or custodians, id. § 1912(b). ICWA also
imposes two substantive requirements in termination cases: the
court must be persuaded that “active efforts have been made to
provide remedial services and rehabilitative programs designed
to prevent the breakup of the Indian family and that these
efforts have been unsuccessful,” id. § 1912(d), and, as noted
above, there must be proof beyond a reasonable doubt that
continued custody will likely result in serious damage to the
child, id. § 1912(f).
¶15 Valerie M. argues that applying a reasonable doubt
standard to state-law findings is appropriate because doing so
would promote ICWA’s goals and would avoid inconsistent
standards depending on the state in which the custody of an
Indian child is adjudicated. She also argues that the Arizona
legislature has expressed its intent to apply the higher federal
standard by enacting A.R.S. § 8-872(F) (Supp. 2008), which
provides that the burden of proof in guardianship cases
involving Indian children shall be beyond a reasonable doubt
instead of the otherwise applicable clear and convincing
8
standard.
¶16 We do not believe that Congress intended to apply the
reasonable doubt standard to state-law findings. Several
considerations support our conclusion. ICWA expressly provides
that certain “minimum Federal standards” apply in state court
custody proceedings involving Indian children. 25 U.S.C.
§ 1902. Congress did not displace state law in favor of uniform
standards; instead it recognized that federal requirements would
be in addition to state law requirements, which will themselves
prevail over federal law if they are more protective of parental
rights. Id. § 1921.
¶17 Congress thus contemplated that procedures in Indian
child custody cases would vary among the states. Indeed, apart
from ICWA’s minimum requirements, Congress left to the states
the identification of the grounds for termination, an important
substantive issue. That Congress did not expressly address the
burden of proof applicable to findings required by state law
suggests that this was not an issue on which Congress thought a
minimum federal standard was necessary.
¶18 As noted by the court of appeals, nearly every other
state court that has considered this issue has concluded that
ICWA allows states to specify the standard of proof for state-
law findings distinct from the findings required by ICWA. See
In re J.R.B., 715 P.2d 1170, 1171 (Alaska 1986); People ex rel.
9
C.A.J., 709 P.2d 604, 606 (Colo. Ct. App. 1985); In re H.A.M.,
961 P.2d 716, 721 (Kan. Ct. App. 1998); In re Denice F., 658
A.2d 1070, 1072-73 (Me. 1995); In re Elliott, 554 N.W.2d 32, 38
(Mich. Ct. App. 1996); In re Interest of Walter W., 744 N.W.2d
55, 60-61 (Neb. 2008); In re N.Y.C. Dep’t. of Soc. Servs. v.
Oscar C., 600 N.Y.S.2d 957, 960-61 (App. Div. 1993); In re
Bluebird, 411 S.E.2d 820, 823 (N.C. Ct. App. 1992); In re M.S.,
624 N.W.2d 678, 681 (N.D. 2001); In re Adoption of R.L.A., 147
P.3d 306, 310 (Okla. Civ. App. 2006); K.E. v. State, 912 P.2d
1002, 1004 (Utah Ct. App. 1996); In re Dependency of Roberts,
732 P.2d 528, 531 (Wash. Ct. App. 1987); In re Interest of
D.S.P., 458 N.W.2d 823, 829 (Wis. Ct. App. 1990).
¶19 Valerie M.’s argument based on the state guardianship
statute is also unpersuasive. That statute does not address the
burden of proof in termination cases. At most, A.R.S. § 8-
872(F) shows that the legislature has specified when it intends
to impose a higher burden of proof for cases involving Indian
children. That the legislature has imposed a higher standard
for guardianships, which do not sever all parental rights, than
for terminations does appear somewhat anomalous, but it does not
show that the legislature intended the reasonable doubt standard
to apply in termination cases when the applicable statutes
provide otherwise.
¶20 Having concluded that ICWA does not require a higher
10
standard of proof than does A.R.S. § 8-537(B) and -863(B), the
court of appeals also considered whether Rule 66(C) imposes a
“reasonable doubt” standard. Rule 66(C) provides:
The moving party or petitioner has the burden of
proving the allegations contained in the motion or
petition by clear and convincing evidence or, in the
case of an Indian child, beyond a reasonable doubt.
In addition, if the child is an Indian child, the
moving party or petitioner must also prove, beyond a
reasonable doubt, including testimony from a qualified
expert witness, that continued custody of the child by
the parent or Indian custodian is likely to result in
serious emotional or physical damage to the child.
The petitioner must prove beyond a reasonable doubt
that active efforts have been made to provide remedial
services and rehabilitative programs designed to
prevent the breakup of the Indian family and that
those efforts have proven unsuccessful.
(Emphasis added).
¶21 The court of appeals was correct in concluding that
Rule 66(C) cannot mandate a higher burden of proof for the
state-law findings than is required by Arizona statutes.
Because the legislature is empowered to set burdens of proof as
a matter of substantive law, a valid statute specifying the
burden of proof prevails over common law or court rules adopting
a different standard. See, e.g., State v. Fletcher, 149 Ariz.
187, 191-92, 717 P.2d 866, 870-71 (1986) (recognizing
legislature’s authority to modify common law and require
defendant to prove insanity by clear and convincing evidence).
¶22 With the benefit of hindsight, we recognize that the
11
language of Rule 66(C) should not have embraced an evidentiary
standard higher than required by Arizona statutes. Although
this Court has the final say in interpreting procedural rules,
and only this Court can revise its prior interpretation of a
rule, Cullen v. Auto-Owners Ins. Co., 218 Ariz. 417, 420 ¶ 10,
189 P.3d 344, 347 (2008), our adoption of a rule is not an
adjudication of its validity. See Scheehle v. Justices of the
Supreme Court, 211 Ariz. 282, 298, 120 P.3d 1092, 1108 (2005).
Confronted with the argument that Rule 66(C) impermissibly
conflicts with state statutes, the court of appeals correctly
held that the statutes prevail in setting the burden of proof.
III. CONCLUSION
¶23 In this termination case governed by ICWA, the
juvenile court did not err by instructing the jury that the
state-law grounds for termination must be proved by clear and
convincing evidence and that the Indian child’s best interests
must be proved by a preponderance of the evidence. We affirm
the opinion of the court of appeals.
_______________________________________
W. Scott Bales, Justice
CONCURRING:
_______________________________________
Ruth V. McGregor, Chief Justice
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_______________________________________
Rebecca White Berch, Vice Chief Justice
_______________________________________
Michael D. Ryan, Justice
_______________________________________
Andrew D. Hurwitz, Justice
13
Valerie M. v. ades/kaydee v. randy v. zachary V.
Combined Opinion