Ariz. R. P. Juv. Ct. 111

As amended through December 3, 2024

Rule 111 - Indian Child Welfare Act ("ICWA")

(a) Application. The court must apply ICWA when required by law.

(b) Inquiry. At the beginning of any proceeding involving adoption, dependency, termination, or Title 8 guardianship, the court must inquire if any party has reason to know that the child named in the petition is subject to ICWA. This inquiry is not necessary if the court has already determined that ICWA applies.

(c) Excluded Proceedings.

(1)Delinquency and Incorrigibility. ICWA does not apply to delinquency proceedings. ICWA does not apply to an incorrigibility proceeding unless it results in an out-of-home placement.

(2)Criminal Transfers. ICWA does not apply to criminal transfer proceedings involving an Indian child.

(d) Findings. If the court determines or has reason to know the child is an Indian child as defined by ICWA and Rule 302, the court must make the findings required under ICWA. The court must then treat the child as an Indian child unless and until the court enters a determination on the record that the child does not meet the definition of an Indian child under ICWA.

(e) Jurisdiction. If the court determines or has reason to know the child is an Indian child and the proceeding is for out-of-home placement or termination of parental rights, the court must determine whether to order a transfer of the proceeding to a tribal court as provided by Rule 322.

Ariz. R. P. Juv. Ct. 111

Adopted Dec. 8, 2021, effective 7/1/2022.

COMMENT TO 2022 AMENDMENT

These rules acknowledge certain provisions of ICWA and the Regulations. However, not all provisions are identified in these rules, and ICWA and the Regulations should be carefully reviewed in cases in which they apply. In the event of a conflict with these rules, ICWA and the Regulations govern.

Under the Regulations, a court has "reason to know that a child is an Indian child" upon the occurrence of any of the following: (1) any participant in the proceeding, officer of the court involved in the proceeding, Indian Tribe, Indian organization, or agency informs the court that the child is an Indian child; (2) any participant in the proceeding, officer of the court involved in the proceeding, Indian Tribe, Indian organization, or agency informs the court that it has discovered information indicating that the child is an Indian child; (3) the child who is the subject of the proceeding gives the court reason to know he or she is an Indian child; (4) the court is informed that the domicile or residence of the child, the child's parent, or the child's Indian custodian is on a pueblo, reservation, or in an Alaska Native village; (5) the court is informed that the child is or has been a ward of a tribal court; or (6) the court is informed that either parent or the child possesses an identification card indicating membership in an Indian Tribe. 25 C.F.R. § 23.107.

The Regulations also address the criteria for ruling on petitions to transfer proceedings to tribal court, including 25 C.F.R. §§ 23.115 through 119. Under ICWA § 1911(b), the court must grant a petition by a parent, Indian custodian, or the child's Tribe to transfer the foster care placement or termination of parental rights proceeding to tribal court, absent objection by either parent or tribal declination of transfer, or when there is good cause to deny transfer. The regulations provide that in determining whether good cause exists, the court must not consider any of the following: (1) whether the foster-care or termination of parental rights proceeding is at an advanced stage if the Indian child's parent, Indian custodian, or Tribe did not receive notice of the child-custody proceeding until an advanced stage; (2) whether there have been prior proceedings involving the child for which no petition to transfer was filed; (3) whether transfer could affect the placement of the child; (4) the Indian child's cultural connections with the Tribe or its reservation; or (5) socioeconomic conditions or any negative perception of Tribal or Bureau of Indian Affairs ("BIA") social services or judicial systems.