U.S. District Court DISTRICT OF ARIZONA (Phoenix Division) CIVIL DOCKET FOR CASE #: 2:15-cv-01259-NVW

Carter et al v. Washburn et al

Date Filed: 07/06/2015

Assigned to: Senior Judge Neil V Wake

Date Terminated: 12/28/2018

Case in other court: Ninth Circuit, 17-15839 - Mandate Jury Demand: None

11/02/18

Nature of Suit: 440 Civil Rights:

Cause: 42:1983 Civil Rights Act

Other

Jurisdiction: U.S. Government

Defendant

Plaintiff

Carol Coghlan Carter next friend of A.D., C.C., L..G. and C.R., minors next friend of A.D. next friend of C.C. next friend of L.G. next friend of C.R.

represented by Aditya Dynar Goldwater Institute 500 E Coronado Rd. Phoenix, AZ 85004 602-462-5000 Email: adynar@goldwaterinstitute.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian W Barnes Cooper & Kirk PLLC 1523 New Hampshire Ave. NW Washington, DC 20036 202-220-9600 Fax: 202-220-9601 Email: bbarnes@cooperkirk.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christina Maria Sandefur Goldwater Institute 500 E Coronado Rd. Phoenix, AZ 85004 602-462-5000 Fax: 602-256-7045 Email: CSandefur@goldwaterinstitute.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Clint Daniel Bolick Goldwater Institute

Plaintiff
Unknown Party named as S.H., a married couple

500 E Coronado Rd Phoenix, AZ 85004 602-462-5000 Fax: 602-256-7045 Email: cbolick@goldwaterinstitute.org TERMINATED: 01/12/2016 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Courtney Christine Van Cott Goldwater Institute 500 E Coronado Rd. Phoenix, AZ 85004 602-462-5000 Email: cvancott@goldwaterinstitute.org TERMINATED: 09/14/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Harold S Reeves Cooper & Kirk PLLC 1523 New Hampshire Ave. NW Washington, DC 20036 202-220-9600 Fax: 202-220-9601 Email: hreeves@cooperkirk.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael W Kirk Cooper & Kirk PLLC 1523 New Hampshire Ave. NW Washington, DC 20036 202-220-9600 Fax: 202-220-9601 Email: mkirk@cooperkirk.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Aditya Dynar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian W Barnes

Plaintiff
Unknown Party named as J.H., a married couple

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christina Maria Sandefur (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Clint Daniel Bolick (See above for address) TERMINATED: 01/12/2016 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Courtney Christine Van Cott (See above for address) TERMINATED: 09/14/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Harold S Reeves (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael W Kirk (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Aditya Dynar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian W Barnes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christina Maria Sandefur (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Clint Daniel Bolick (See above for address) TERMINATED: 01/12/2016 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Courtney Christine Van Cott (See above for address) TERMINATED: 09/14/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Harold S Reeves (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael W Kirk (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Unknown Party named as K.C., a married couple; for themselves and on behalf of a class of similarly-situated individuals

represented by Aditya Dynar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian W Barnes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christina Maria Sandefur (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Clint Daniel Bolick (See above for address) TERMINATED: 01/12/2016 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Courtney Christine Van Cott

(See above for address) TERMINATED: 09/14/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Harold S Reeves (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael W Kirk (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Unknown Party named as M.C., a married couple; for themselves and on behalf of a class of similarly-situated individuals

represented by Aditya Dynar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian W Barnes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christina Maria Sandefur (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Clint Daniel Bolick (See above for address) TERMINATED: 01/12/2016 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Courtney Christine Van Cott (See above for address) TERMINATED: 09/14/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Harold S Reeves (See above for address) LEAD ATTORNEY

ATTORNEY TO BE NOTICED

Michael W Kirk (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff

Ronald Federici represented by Aditya Dynar

Dr., next friend of

(See above for address)

A.D., C.C., L..G. and

LEAD ATTORNEY

C.R., minors

ATTORNEY TO BE NOTICED

next friend of

A.D.

Brian W Barnes

next friend of

(See above for address)

C.C.

LEAD ATTORNEY

next friend of

ATTORNEY TO BE NOTICED

L.G.

next friend of

Christina Maria Sandefur

C.R.

(See above for address)

LEAD ATTORNEY

ATTORNEY TO BE NOTICED

Harold S Reeves (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael W Kirk (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff

Unknown Party represented by Aditya Dynar

a married couple; for

(See above for address)

themselves and on

LEAD ATTORNEY

behalf of a class of

ATTORNEY TO BE NOTICED

similarly-situated

individuals

Brian W Barnes

(See above for address)

LEAD ATTORNEY

ATTORNEY TO BE NOTICED

Christina Maria Sandefur

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Harold S Reeves (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael W Kirk (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Unknown Party P.R., a married couple; for themselves and on behalf of a class of similary-situated individuals

represented by Aditya Dynar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian W Barnes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christina Maria Sandefur (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Harold S Reeves (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael W Kirk (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Defendant
Kevin Washburn in his official

represented by Christine Wild Ennis US Dept of Justice - ENRD

capacity as Assistant Secretary of Bureau of Indian Affairs

P.O. Box 7415 Washington, DC 20044 202-616-9473 Email: christine.ennis@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

JoAnn Lynn Kintz US Department of Justice - ENRD Ben Franklin Station P.O. Box 7611 Washington, DC 20044 202-305-0424 Fax: 202-305-0275 Email: joann.kintz@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Judith B Harvey US Dept of Justice Ben Franklin Station P.O. Box 7415 Washington, DC 20044 202-514-3932 Email: judith.harvey@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Steven Edward Miskinis US Dept of Justice Land & Natural Resources Division PO Box 44378 Indian Resources Section Washington, DC 20026 202-305-0262 Fax: 202-305-0271 Email: steven.miskinis@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant

Sally Jewell

represented by Christine Wild Ennis

in her official

(See above for address)

capacity as Secretary

LEAD ATTORNEY

of Interior, United

ATTORNEY TO BE NOTICED

States Department of the Interior

JoAnn Lynn Kintz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Judith B Harvey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Steven Edward Miskinis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant

Gregory McKay represented by Gary N Lento

named as Gregory A.

Office of the Attorney General - Phoenix

McKay, in his official

1275 W Washington St.

capacity as Director

Phoenix, AZ 85007-2997

of Arizona

602-364-0681

Department of Child

Email: gary.lento@azag.gov

Safety

LEAD ATTORNEY

ATTORNEY TO BE NOTICED

John Stephen Johnson Office of the Attorney General - Phoenix 1275 W Washington St. Phoenix, AZ 85007-2997 602-542-9948 Email: John.Johnson@azag.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joshua Robert Zimmerman Snell & Wilmer LLP - Phoenix, AZ 1 Arizona Center 400 E Van Buren Phoenix, AZ 85004-2202 602-382-6000 Email: joshua.zimmerman@bowmanandbrooke.com (Inactive) TERMINATED: 11/01/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dawn Rachelle Williams Office of the Attorney General 3939 S Park Ave., Ste. 180 Tucson, AZ 85714 520-746-4443 Fax: 520-746-4459 Email: dawn.williams@azag.gov ATTORNEY TO BE NOTICED

Melanie Grace McBride Office of the Attorney General - Phoenix 1275 W Washington St. Phoenix, AZ 85007-2997 602-542-8305 Fax: 602-542-8308 Email: Melanie.McBride@azag.gov TERMINATED: 05/15/2017 ATTORNEY TO BE NOTICED

Wendy Jacobsen Harrison Office of the Attorney General - Phoenix 1275 W Washington St. Phoenix, AZ 85007-2997 602-542-9413 Fax: 602-364-0055 Email: Wendy.Harrison@azag.gov ATTORNEY TO BE NOTICED

Movant
Gila River Indian Community

represented by Donald R Pongrace Akin Gump Strauss Hauer & Feld LLP - Washington, DC 2001 K St. NW Washington, DC 20006 202-887-4466 Fax: 202-887-4288 Email: dpongrace@akingump.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Linus Everling Gila River Indian Community - Sacaton, AZ P.O. Box 97 Sacaton, AZ 85147 520-562-9763 Fax: 520-562-9769

Movant Navajo Nation Department of Justice
Amicus

Email: linus.everling@gric.nsn.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
Merrill C Godfrey Akin Gump Strauss Hauer & Feld LLP - Washington, DC 2001 K St. NW Washington, DC 20006 202-887-4195 Fax: 202-887-4288 Email: mgodfrey@akingump.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas L Murphy Gila River Indian Community - Sacaton, AZ P.O. Box 97 Sacaton, AZ 85147 520-562-9764 Email: thomas.murphy@gric.nsn.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Katherine Claire Belzowski Navajo Nation Department of Justice P.O. Box 2010 Window Rock, AZ 86515 928-871-6937 Email: kbelzowski@nndoj.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paul Wesley Spruhan Navajo Nation Dept of Justice PO Box 2010 Window Rock, AZ 86515 928-871-6275 Fax: 928-871-6177 Email: paspruhan@nndoj.org ATTORNEY TO BE NOTICED

Casey Family Programs
Amicus

represented by Hyland Hunt Akin Gump Strauss Hauer & Feld LLP - Washington, DC 2001 K St. NW Washington, DC 20006 202-887-4000 Fax: 202-887-4288 Email: hhunt@akingump.com TERMINATED: 07/07/2016 LEAD ATTORNEY ATTORNEY TO BE NOTICED
James E Tysse Akin Gump Strauss Hauer & Feld LLP - Washington, DC 2001 K St. NW Washington, DC 20006 202-887-4000 Fax: 202-887-4288 Email: jtysse@akingump.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Pratik A Shah Akin Gump Strauss Hauer & Feld LLP - Washington, DC 2001 K St. NW Washington, DC 20006 202-887-4000 Fax: 202-887-4288 Email: pshah@akingump.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Z W Julius Chen Akin Gump Strauss Hauer & Feld LLP - Washington, DC 2001 K St. NW Washington, DC 20006 202-887-4000 Fax: 202-887-4288 Email: chenj@akingump.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Annie E. Casey Foundation
Amicus Center for the Study of Social Policy
Amicus

represented by Hyland Hunt (See above for address) TERMINATED: 07/07/2016 LEAD ATTORNEY ATTORNEY TO BE NOTICED
James E Tysse (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Pratik A Shah (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Z W Julius Chen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Hyland Hunt (See above for address) TERMINATED: 07/07/2016 LEAD ATTORNEY ATTORNEY TO BE NOTICED
James E Tysse (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Pratik A Shah (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Z W Julius Chen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Child Welfare League of America

represented by Hyland Hunt (See above for address) TERMINATED: 07/07/2016 LEAD ATTORNEY ATTORNEY TO BE NOTICED

James E Tysse (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Pratik A Shah (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Z W Julius Chen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
Children's Defense Fund

represented by Hyland Hunt (See above for address) TERMINATED: 07/07/2016 LEAD ATTORNEY ATTORNEY TO BE NOTICED

James E Tysse (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Pratik A Shah (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Z W Julius Chen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus

Donaldson Adoption Institute

represented by Hyland Hunt (See above for address) TERMINATED: 07/07/2016 LEAD ATTORNEY ATTORNEY TO BE NOTICED

James E Tysse (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Pratik A Shah (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Z W Julius Chen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
First Focus Campaign for Children

represented by Hyland Hunt (See above for address) TERMINATED: 07/07/2016 LEAD ATTORNEY ATTORNEY TO BE NOTICED

James E Tysse (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Pratik A Shah (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Z W Julius Chen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus

FosterClub

represented by Hyland Hunt (See above for address) TERMINATED: 07/07/2016 LEAD ATTORNEY ATTORNEY TO BE NOTICED

James E Tysse (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Pratik A Shah (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Z W Julius Chen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus

Generations United

represented by Hyland Hunt (See above for address) TERMINATED: 07/07/2016 LEAD ATTORNEY ATTORNEY TO BE NOTICED

James E Tysse (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Pratik A Shah (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Z W Julius Chen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus

National Center on Adoption and Permanency

represented by Hyland Hunt (See above for address) TERMINATED: 07/07/2016 LEAD ATTORNEY ATTORNEY TO BE NOTICED

James E Tysse (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Pratik A Shah (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Z W Julius Chen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus

North American represented by Hyland Hunt

Council on

(See above for address)

Adoptable Children

TERMINATED: 07/07/2016

LEAD ATTORNEY

ATTORNEY TO BE NOTICED

James E Tysse (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Pratik A Shah (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Z W Julius Chen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus

W. Haywood Burns Institute

represented by Hyland Hunt (See above for address) TERMINATED: 07/07/2016 LEAD ATTORNEY ATTORNEY TO BE NOTICED

James E Tysse (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Pratik A Shah (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Z W Julius Chen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
National Congress of American Indians

represented by Erin C Dougherty Native American Rights Fund - Anchorage, AK 745 W 4th Ave., Ste. 502 Anchorage, AK 99501-1763 907-276-0680 Fax: 907-276-2466 Email: dougherty@narf.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kathryn E Fort Michigan State University College of Law Indigenous Law & Policy Center 648 N Shaw Lane E Lansing, MI 48824-1300 517-432-6992 Email: fort@law.msu.edu LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew N Newman Native American Rights Fund - Anchorage, AK 745 W 4th Ave., Ste. 502 Anchorage, AK 99501-1763

Amicus
Association on American Indian Affairs

907-276-0680 Fax: 907-276-2466 Email: mnewman@narf.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paula M Yost Dentons US LLP - San Francisco, CA 525 Market St., 26th Fl. San Francisco, CA 94105 415-882-5009 Fax: 415-882-0300 Email: paula.yost@dentons.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Samuel Franklin Daughety Tohono O'odham Nation Office of the Attorney General P.O. Box 830 Sells, AZ 85634 520-383-3410 Email: samuel.daughety@dentons.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Samuel Kohn Dentons US LLP - Washington DC 1301 K St. NW, Ste. 600 E Tower Washington, DC 20005-3364 202-408-6400 Email: samuel.kohn@dentons.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Erin C Dougherty (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathryn E Fort (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
National Indian Child Welfare Association

Matthew N Newman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paula M Yost (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Samuel Franklin Daughety (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Samuel Kohn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Erin C Dougherty (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathryn E Fort (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matthew N Newman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paula M Yost (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Samuel Franklin Daughety (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Samuel Kohn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus

National Alliance of represented by Hyland Hunt

Children's Trust

(See above for address)

and Prevention

TERMINATED: 07/07/2016

Funds

LEAD ATTORNEY

ATTORNEY TO BE NOTICED

James E Tysse (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Pratik A Shah (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Z W Julius Chen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
Citizens Equal Rights Foundation

represented by Michael Kielsky Kielsky Rike PLC 4635 S Lakeshore Dr. Tempe, AZ 85282 480-626-5415 Fax: 480-626-5543 Email: Michael@KRazlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
Ohio Attorney General

represented by Michael John Hendershot Ohio Attorney Generals Office - Columbus OH 30 E Broad St., 17th Fl. Columbus, OH 43215 614-644-0576 Email: michael.hendershot@ohioattorneygeneral.gov

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 07/06/2015
07/06/2015
07/06/2015 07/07/2015 07/09/2015

# Docket Text
1 *COMPLAINT. Filing fee received: $ 400.00, receipt number 0970-11864370 filed by Carol Coghlan Carter, Unknown Party (named as S.H., a married couple), Unknown Party (named as J.H., a married couple), Unknown Party (named as M.C., a married couple; for themselves and on behalf of a class of similarly-situated individuals) and Unknown Party (named as K.C., a married couple; for themselves and on behalf of a class of similarly-situated individuals). (Attachments: # 1 Exhibit, # 2 Civil Cover Sheet) (ATD) Modified to edit text on 7/7/2015 (ATD). (Entered: 07/07/2015)
2 *SUMMONS Submitted by Carol Coghlan Carter, Unknown Party (named as S.H., a married couple), Unknown Party (named as J.H., a married couple), Unknown Party (named as M.C., a married couple; for themselves and on behalf of a class of similarly-situated individuals) and Unknown Party (named as K.C., a married couple; for themselves and on behalf of a class of similarly-situated individuals). (Submitted by Clint Bolick) (Attachments: # 1 Summons, # 2 Summons, # 3 Summons, # 4 Summons) (ATD) Modified to edit text on 7/7/2015 (ATD). (Entered: 07/07/2015)
3 Filing fee paid, receipt number 0970-11864370. This case has been assigned to the Honorable David K Duncan. All future pleadings or documents should bear the correct case number: CV-15-1259PHX-DKD. Magistrate Election form attached. (Attachments: # 1 Instructions) (ATD) (Entered: 07/07/2015)
4 Summons Issued as to Sally Jewell, Gregory McKay, Kevin Washburn, John S Leonardo and Loretta E Lynch. (Attachments: # 1 Summons, # 2 Summons, # 3 Summons, # 4 Summons)(ATD)*** IMPORTANT: When printing the summons, select "Document and stamps" or "Document and comments" for the seal to appear on the document. (Entered: 07/07/2015)
5 Party Elects Assignment of Case to District Judge Jurisdiction. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (MAP) (Entered: 07/09/2015)

07/09/2015 07/09/2015
07/15/2015 07/15/2015 07/15/2015
07/16/2015 07/16/2015

6 MINUTE ORDER: Pursuant to Local Rule 3.7(b), a request has been received for a random reassignment of this case to a District Judge. FURTHER ORDERED Case reassigned by random draw to Judge Neil V. Wake. All further pleadings/papers should now list the following COMPLETE case number: CV-15-1259-PHX-NVW. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (MAP) (Entered: 07/09/2015)
7 ORDER that motions pursuant to Fed. R. Civ. P. 12(b)(6) and 12(c) are discouraged if the defect can be cured by filing an amended pleading. Therefore, the parties must meet and confer prior to the filing of such motions to determine whether it can be avoided. FURTHER ORDERED that Plaintiffs serve a copy of this Order upon Defendants and file notice of service. See order for details. Signed by Judge Neil V. Wake on 7/9/15. (NKS) (Entered: 07/09/2015)
8 MOTION for Admission Pro Hac Vice as to attorney Brian Barnes on behalf of plaintiffs. (BAS) (Entered: 07/15/2015)
PRO HAC VICE FEE PAID. $ 35, receipt number PHX160695 as to Brian W Barnes. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 07/15/2015)
9 ORDER pursuant to General Order 09-08 granting 8 Motion for Admission Pro Hac Vice. Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. Counsel is advised that they are limited to two (2) additional e-mail addresses in their District of Arizona User Account. (BAS) (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (Entered: 07/15/2015)
10 SERVICE EXECUTED filed by Carol Coghlan Carter: Affidavit of Service re: Summons, Class Action Complaint, District Judge Option upon Gregory A. McCay on 07/09/2015. (Dynar, Aditya) (Entered: 07/16/2015)
11 SERVICE EXECUTED filed by Carol Coghlan Carter: Affidavit of Service re: Summons, Class Action Complaint, District Judge Option upon John S. Leonardo on 07/09/2015. (Dynar, Aditya) (Entered: 07/16/2015)

07/16/2015 07/16/2015 07/21/2015 07/21/2015 07/21/2015 07/21/2015 07/21/2015
07/23/2015

12 SERVICE EXECUTED filed by Carol Coghlan Carter: Affidavit of Service re: 07/09/2015 Order upon John S. Leonardo on 07/10/2015. (Dynar, Aditya) (Entered: 07/16/2015)
13 SERVICE EXECUTED filed by Carol Coghlan Carter: Affidavit of Service re: 07/09/2015 Order upon Gregory A. McKay on 07/10/2015. (Dynar, Aditya) (Entered: 07/16/2015)
14 MOTION for Admission Pro Hac Vice as to attorney Harold Reeves on behalf of Carol Coghlan Carter. (BAS) (Entered: 07/21/2015)
PRO HAC VICE FEE PAID. $ 35, receipt number PHX160853 as to Harold S Reeves. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 07/21/2015)
15 MOTION for Admission Pro Hac Vice as to attorney Michael Kirk on behalf of Carol Coghlan Carter. (BAS) (Entered: 07/21/2015)
PRO HAC VICE FEE PAID. $ 35, receipt number PHX160854 as to Michael W Kirk. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 07/21/2015)
16 ORDER pursuant to General Order 09-08 granting 14 Motion for Admission Pro Hac Vice; granting 15 Motion for Admission Pro Hac Vice. Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. Counsel is advised that they are limited to two (2) additional e-mail addresses in their District of Arizona User Account. (BAS) (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (Entered: 07/21/2015)
17 SERVICE EXECUTED filed by Carol Coghlan Carter, Unknown Party(named as K.C., a married couple; for themselves and on behalf of a class of similarly-situated individuals ), Unknown Party(named as S.H., a married couple), Unknown Party(named as M.C., a married couple; for themselves and on behalf of a class of similarly-situated individuals ), Unknown Party(named as J.H., a married couple ): Certified Mail Receipt re: District Judge Option upon Kevin Washburn; Sally Jewell; Loretta Lynch on July 15, 2015. (Dynar, Aditya) (Entered: 07/23/2015)

07/24/2015

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07/29/2015

19

07/31/2015

20

08/04/2015

21

08/21/2015 22

08/21/2015

27

SERVICE EXECUTED filed by Carol Coghlan Carter, Unknown Party(named as K.C., a married couple; for themselves and on behalf of a class of similarly-situated individuals ), Unknown Party(named as S.H., a married couple), Unknown Party(named as M.C., a married couple; for themselves and on behalf of a class of similarly-situated individuals ), Unknown Party(named as J.H., a married couple ): Certified Mail Receipt re: 7/9/15 Order upon Sally Jewell, Kevin Washburn, Loretta Lynch on 07/16/2015. (Dynar, Aditya) (Entered: 07/24/2015)
First MOTION for Extension of Time Stipulation for Extension of Time to File Answer or Responsive Motion by Gregory McKay. (Attachments: # 1 Text of Proposed Order Proposed Order)(Johnson, John) (Entered: 07/29/2015)
SERVICE EXECUTED filed by Carol Coghlan Carter, Unknown Party(named as K.C., a married couple; for themselves and on behalf of a class of similarly-situated individuals ), Unknown Party(named as S.H., a married couple), Unknown Party(named as M.C., a married couple; for themselves and on behalf of a class of similarly-situated individuals ), Unknown Party(named as J.H., a married couple ): Certified Mail Receipt re: Summons and Complaint upon Sally Jewell, Kevin Washburn and Loretta Lynch on July 13, 2015. (Dynar, Aditya) (Entered: 07/31/2015)
ORDER granting the parties' Stipulation (Doc. 19 ). FURTHER ORDERED the deadline for Defendant McKay to answer or otherwise respond to the complaint is extended to and including 09/08/15. Signed by Judge Neil V. Wake on 8/4/15. (NKS) (Entered: 08/04/2015)
MOTION to Certify Class by Carol Coghlan Carter, Unknown Party(named as K.C., a married couple; for themselves and on behalf of a class of similarly-situated individuals ), Unknown Party(named as S.H., a married couple), Unknown Party(named as M.C., a married couple; for themselves and on behalf of a class of similarly-situated individuals ), Unknown Party(named as J.H., a
married couple ). (Attachments: # 1 Exhibit, # 2 Text of Proposed Order)(Dynar, Aditya) (Entered: 08/21/2015)
MOTION to Seal Document 25 Sealed Lodged Proposed Document, 26 Sealed Lodged Proposed Document, 24 Sealed Lodged Proposed Document, 23 Sealed Lodged Proposed Document by Carol Coghlan Carter, Unknown Party(named as K.C., a married couple; for themselves and on behalf of a class of

09/03/2015 28

09/04/2015

29

09/11/2015

23

09/11/2015

24

similarly-situated individuals ), Unknown Party(named as S.H., a married couple), Unknown Party(named as M.C., a married couple; for themselves and on behalf of a class of similarly-situated individuals ), Unknown Party(named as J.H., a married couple ). (Attachments: # 1 Exhibit Exhibits 1 - 3, # 2 Text of Proposed Order Proposed Order)(Dynar, Aditya) (Entered: 08/21/2015)
MOTION to Stay pending deadlines and for status conference by Sally Jewell, Kevin Washburn. (Miskinis, Steven) (Entered: 09/03/2015)
ORDER that Stipulation for Stay (Doc. 28 ) is granted only to the extent that (1) Defendants' time to file a responsive pleading is extended to 10/16/15, (2) Plaintiffs' time to respond to Defendants' motions to dismiss is extended to 11/13/15, and (3) Defendants' time to file replies is extended to 12/04/15. These times will not be extended. The Stipulation is otherwise denied. FURTHER ORDERED that the parties confer about whether they can agree on a briefing schedule in response to Plaintiffs' Motion for Class
Certification (Doc. 22 ) and they may file a further motion, joint or separate, concerning such briefing. All Defendants' time to respond to that motion is extended to 09/17/15, and may be extended again. FURTHER ORDERED that the Joint Motion for
Status Conference (Doc. 28 ) is denied. See order for details. Signed by Judge Neil V. Wake on 9/4/15. (NKS) (Entered: 09/04/2015)
*SEALED Declaration of Carol Coghlan Carter filed by Carol Coghlan Carter, Unknown Party(named as K.C., a married couple; for themselves and on behalf of a class of similarly-situated individuals ), Unknown Party(named as S.H., a married couple), Unknown Party(named as M.C., a married couple; for themselves and on behalf of a class of similarly-situated individuals ), Unknown Party(named as J.H., a married couple ). (Attachments: # 1 Exhibit Exhibits 1 - 9)(Dynar, Aditya) *Modified to link to Motion to Seal on 8/24/2015 (SCH). *Modified on 9/11/2015 to change from lodged to filed by doc. 30 (MAP)*. (Entered: 08/21/2015)
*SEALED Joint Declaration of S.H. and J.H. filed by Carol Coghlan Carter, Unknown Party(named as K.C., a married couple; for themselves and on behalf of a class of similarly-situated individuals ), Unknown Party(named as S.H., a married couple),

09/11/2015 09/11/2015 09/11/2015 09/14/2015

Unknown Party(named as M.C., a married couple; for themselves and on behalf of a class of similarly-situated individuals ), Unknown Party(named as J.H., a married couple ). (Dynar, Aditya) *Modified to link to Motion to Seal on 8/24/2015 (SCH). *Modified on 9/11/2015 to change from lodged to filed pursuant to order 30 (MAP)*. (Entered: 08/21/2015)
25 *SEALED Joint Declaration of M.C. and K.C. filed by Carol Coghlan Carter, Unknown Party(named as K.C., a married couple; for themselves and on behalf of a class of similarly-situated individuals ), Unknown Party(named as S.H., a married couple), Unknown Party(named as M.C., a married couple; for themselves and on behalf of a class of similarly-situated individuals ), Unknown Party(named as J.H., a married couple ). (Dynar, Aditya) *Modified to link to Motion to Seal on 8/24/2015 (SCH). *Modified on 9/11/2015 to change from lodged to filed pursuant to Order 30 (MAP)*. (Entered: 08/21/2015)
26 *SEALED Joint Declaration of M.G. and B.G. filed by Carol Coghlan Carter, Unknown Party(named as K.C., a married couple; for themselves and on behalf of a class of similarly-situated individuals ), Unknown Party(named as S.H., a married couple), Unknown Party(named as M.C., a married couple; for themselves and on behalf of a class of similarly-situated individuals ), Unknown Party(named as J.H., a married couple ). (Dynar, Aditya) *Modified to link to Motion to Seal on 8/24/2015 (SCH). *Modified on 9/11/2015 to change from lodged to filed pursuant ot Order 30 (MAP)*. (Entered: 08/21/2015)
30 ORDER granting 27 Motion to Seal. ORDERED that the following lodged proposed documents be and are hereby sealed: (1) Declaration of Carol Coghlan Carter (Doc. 23 ); (2) Joint Declaration of M.C. and K.C. (Doc. 25 ); (3) Joint Declaration of S.H. and J.H. (Doc. 24 ); and (4) Joint Declaration of M.G. and B.G. (Doc. 26 ). Signed by Judge Neil V Wake on 9/10/15.(MAP) (Entered: 09/11/2015)
31 MOTION to Withdraw as Attorney Courtney Van Cott by Carol Coghlan Carter, Unknown Party(named as K.C., a married couple; for themselves and on behalf of a class of similarly-situated individuals ), Unknown Party(named as S.H., a married couple), Unknown Party(named as M.C., a married couple; for themselves and on behalf of a class of similarly-situated individuals ), Unknown Party(named as J.H., a married couple ). (Attachments: # 1 Text of Proposed Order)(Dynar, Aditya) (Entered: 09/14/2015)

09/14/2015 09/17/2015 09/21/2015
09/23/2015

32 ORDER that the Application (Doc. 31 ) is GRANTED. FURTHER ORDERED that attorney Courtney Van Cott will henceforth not be an attorney of record in this case. FURTHER ORDERED directing the Clerk of the Court to make appropriate changes in the Court's CM/ECF System to reflect this change. Signed by Judge Neil V. Wake on 9/14/15. (NKS) (Entered: 09/14/2015)
33 Joint MOTION Deadline For Response to Class Certification Motion Joint Status Report by Gregory McKay. (Attachments: # 1 Text of Proposed Order Defendants' Proposed Order, # 2 Text of Proposed Order Plaintiffs' Proposed Order)(Johnson, John) (Entered: 09/17/2015)
34 ORDER: IT IS ORDERED setting a hearing on the issues presented in the Joint Status Report (Doc. 33 ) for 9/23/2015 at 1:30 p.m., inlcuding (1) whether this Court may enter an order in compliance with the Arizona statutes, (2) the appropriate scope of class certification discovery, (3) the scheduling of class discovery, and (4) the scheduling of briefing on the class certification motion. Out-of-state counsel may appear by telephone by making prior arrangements with the Court. The hearing will be held in Courtroom 504, 401 West Washington Street, Phoenix, AZ 85003 before Judge Neil V Wake. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (NVW, vg) (Entered: 09/21/2015)
35 MINUTE ENTRY for proceedings held before Judge Neil V. Wake: Telephonic Conference (Judge Neil V. Wake also participating telephonically) held on 09/23/15. Discussion is held regarding the Joint Status Report (Doc. 33 ) and the topics outlined in the Court's Order (Doc. 34). The Court advises counsel how it wishes to proceed with scheduling going forward. As discussed on the record, construing the Joint Status Report (Doc. 33 ) as a motion to extend the time for Defendants to respond to Plaintiffs'
Motion for Class Certification (Doc. 22 ), the Court grants the motion to the extent that Defendants' time to respond to Plaintiffs' Motion for Class Certification is stayed until further order. Oral Argument (on the motion to dismiss discussed at today's hearing) is set for 12/18/15, at 1:30 PM, in Courtroom 504, 401 West Washington Street, Phoenix, AZ 85003 before Judge Neil V. Wake.
APPEARANCES: Clint Bolick, Brian Barnes (by phone), Michael Kirk (by phone) and Harold Reeves (by phone) for Plaintiffs. John Johnson, Gaylene Morgan, Ragu-Jara Gregg (by phone), Steven

09/24/2015 10/06/2015
10/09/2015 10/09/2015
10/14/2015

Miskinis (by phone), Jury Harvey (by phone) and JoAnn Kintz (by phone) for Defendants. (Court Reporter Laurie Adams.) Hearing held 1:39 p.m. to 2:42 p.m. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (NKS) (Entered: 09/23/2015)
36 TRANSCRIPT REQUEST by Carol Coghlan Carter, Unknown Party(named as K.C., a married couple; for themselves and on behalf of a class of similarly-situated individuals ), Unknown Party(named as S.H., a married couple), Unknown Party(named as M.C., a married couple; for themselves and on behalf of a class of similarly-situated individuals ), Unknown Party(named as J.H., a married couple ) for proceedings held on 9/23/2015, Judge Neil V Wake hearing judge(s). (Bolick, Clint) (Entered: 09/24/2015)
40 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Telephonic Status Conference proceedings held on 09/23/2015, before Judge Neil V. Wake. (Court Reporter: Laurie A. Adams). The ordering party will have electronic access to the transcript immediately. All others may view the transcript at the court public terminal or it may be purchased through the Court Reporter/Transcriber by filing a Transcript Order Form on the docket before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 10/27/2015. Redacted Transcript Deadline set for 11/6/2015. Release of Transcript Restriction set for 1/4/2016. (RAP) (Entered: 10/14/2015)
37 MOTION for relief from Local Rule page limits by Sally Jewell, Kevin Washburn. (Miskinis, Steven) (Entered: 10/09/2015)
38 ORDER: Before the Court is the Federal Defendants' Motion for Relief from Local Rule Page Limits (Doc. 37 ). The Court does not grant extensions of page limits in advance of submission of the proposed over-length brief. The Court will examine the proposed brief and determine whether its length is justified. IT IS THEREFORE ORDERED that the Federal Defendants' Motion for Relief from Local Rule Page Limits (Doc. 37 ) is denied without prejudice to submission of a further motion together with the proposed over-length brief. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (NKS) (Entered: 10/09/2015)
39 ORDER that Plaintiffs' Motion for Class Certification (Doc. 22
) is denied without prejudice as premature. See order for

10/16/2015 41
10/16/2015 42
10/16/2015 43
10/16/2015 44
10/16/2015 45
10/16/2015 46

details. Signed by Judge Neil V. Wake on 10/14/15. (NKS) (Entered: 10/14/2015)
MOTION for Leave to File Excess Pages for Motion to Dismiss by
Sally Jewell, Kevin Washburn. (Attachments: # 1 Exhibit
Proposed Motion, # 2 Exhibit Certificate of Conferral, # 3
Affidavit Miskinis Declaration)(Miskinis, Steven) (Entered: 10/16/2015)
* Filed at (Doc. 68 ) LODGED Proposed Motion to Dismiss
re: 41 MOTION for Leave to File Excess Pages for Motion to Dismiss . Document to be filed by Clerk if Motion or Stipulation for Leave to File or Amend is granted. Filed by Sally Jewell, Kevin
Washburn. (Attachments: # 1 Exhibit Certificate of Conferral,
# 2 Affidavit Miskinis Declaration)(Miskinis, Steven) Modified on 10/29/2015 (EJA). (Entered: 10/16/2015)
MOTION for Leave to File Excess Pages for Motion to Dismiss by Gregory McKay. (Williams, Dawn) (Entered: 10/16/2015)
*Filed at (Doc. 70 ) LODGED Proposed State Defendant's Motion
to Abstain and Dismiss re: 43 MOTION for Leave to File Excess Pages for Motion to Dismiss . Document to be filed by Clerk if Motion or Stipulation for Leave to File or Amend is granted. Filed by Gregory McKay. (Attachments: # 1
Appendix Attachment 1)(Williams, Dawn) Modified on 10/29/2015 (EJA). (Entered: 10/16/2015)
MOTION for Admission Pro Hac Vice as to attorney Donald R. Pongrace by Gila River Indian Community. (Attachments: # 1
Exhibit Certificate of Good Standing)(Pongrace, Donald) (Entered: 10/16/2015)
MOTION for Admission Pro Hac Vice as to attorney Merrill C. Godfrey by Gila River Indian Community. (Attachments: # 1

10/16/2015 47

10/21/2015

48

10/23/2015

49

10/23/2015 50

10/23/2015 51

Exhibit Certificate of Good Standing)(Godfrey, Merrill) (Entered: 10/16/2015)
*Filed Lodge 47-1 at (Doc. 217 ) MOTION to Intervene as Defendant by Gila River Indian Community. (Attachments: # 1
Exhibit Proposed Motion to Dismiss, # 2 Text of Proposed Order)(Godfrey, Merrill) Modified on 9/29/2016 (DXD). (Entered: 10/16/2015)
NOTICE of Service of Discovery filed by Sally Jewell, Kevin Washburn. (Miskinis, Steven) (Entered: 10/21/2015)
MOTION for Admission Pro Hac Vice as to attorney James E. Tysse by Casey Family Programs, Annie E. Casey Foundation, Center for the Study of Social Policy, Child Welfare League of America, Children's Defense Fund, Donaldson Adoption Institute, First Focus Campaign for Children, FosterClub, Generations United, National Alliance of Children's Tust and Prevention Funds, National Center on Adoption and Permanency, North American Council on Adoptable Children, W. Haywood Burns Institute. (Attachments: # 1 Certificate of Good Standing)(Tysse, James) (Entered: 10/23/2015)
*MOTION to File A Brief Of Amici Curiae In Support Of Motions To Dismiss by Annie E. Casey Foundation, Casey Family Programs, Center for the Study of Social Policy, Child Welfare League of America, Children's Defense Fund, Donaldson Adoption Institute, First Focus Campaign for Children, FosterClub, Generations United, National Alliance of Children's Tust and Prevention Funds, National Center on Adoption and Permanency, North American Council on Adoptable Children, W. Haywood Burns Institute. (Attachments: # 1 Text of Proposed Order)(Tysse, James) *Modified to correct event on 10/26/2015 (ATD). (Entered: 10/23/2015)
*Filed at (Doc. 84 )--LODGED Proposed Brief of Amici Curiae In
Support of Motions to Dismiss re: 50 MOTION for Leave to File A Brief Of Amici Curiae In Support Of Motions To Dismiss . Document to be filed by Clerk if Motion or Stipulation for Leave to File or Amend is granted. Filed by Annie E. Casey Foundation, Casey Family Programs, Center for the Study of Social Policy, Child Welfare League of America, Children's Defense Fund, Donaldson Adoption Institute, First Focus Campaign for Children,

10/23/2015

52

10/23/2015

53

10/23/2015

10/23/2015

54

10/23/2015

55

10/23/2015

10/23/2015

56

10/23/2015 57

FosterClub, Generations United, National Alliance of Children's Tust and Prevention Funds, National Center on Adoption and Permanency, North American Council on Adoptable Children, W. Haywood Burns Institute. (Tysse, James) Modified on 11/18/2015 (LSP). (Entered: 10/23/2015)
MOTION for Admission Pro Hac Vice as to attorney Erin C Dougherty on behalf of proposed Amici Curiae AAIA, NCAI, and NICWA. (BAS) (Entered: 10/23/2015)
MOTION for Admission Pro Hac Vice as to attorney Matthew N Newman on behalf of proposed Amici Curiae AAIA, NCAI, and NICWA. (BAS) (Entered: 10/23/2015)
PRO HAC VICE FEE PAID. $ 70, receipt number PHX164318 as to Erin c Dougherty, Matthew N Newman. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 10/23/2015)
MOTION for Admission Pro Hac Vice as to attorney Samuel Kohn on behalf of proposed Amici Curiae AAIA, NCAI, and NICWA. (BAS) (Entered: 10/23/2015)
MOTION for Admission Pro Hac Vice as to attorney Paula M Yost on behalf of proposed Amici Curiae AAIA, NCAI, and NICWA. (BAS) (Entered: 10/23/2015)
PRO HAC VICE FEE PAID. $ 70, receipt number PHX164317 as to Samuel Kohn, Paula M Yost. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 10/23/2015)
ORDER pursuant to General Order 09-08 granting 52 Motion for Admission Pro Hac Vice; granting 53 Motion for Admission Pro Hac Vice; granting 54 Motion for Admission Pro Hac Vice; granting 55 Motion for Admission Pro Hac Vice. Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. Counsel is advised that they are limited to two (2) additional e-mail addresses in their District of Arizona User Account. (BAS) (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (Entered: 10/23/2015)
MOTION to File Amicus Curiae by National Congress of American Indians, Association on American Indian Affairs, National Indian Child Welfare Association. (Attachments:

10/23/2015

58

10/26/2015 59

10/26/2015

60

10/26/2015

61

10/26/2015

62

# 1 Exhibit Lodged Amicus Brief, # 2 Text of Proposed Order Proposed Order)(Daughety, Samuel) (Entered: 10/23/2015)
Corporate Disclosure Statement by Association on American Indian Affairs, National Congress of American Indians, National Indian Child Welfare Association. (Daughety, Samuel) (Entered: 10/23/2015)
*Filed at (Doc. 85 )-- LODGED Proposed BRIEF OF AMICUS CURIAE NATIONAL CONGRESS OF AMERICAN INDIANS, ASSOCIATION ON AMERICAN INDIAN AFFAIRS, AND NATIONAL INDIAN CHILD WELFARE ASSOCIATION IN SUPPORT OF DEFENDANTS' MOTION TO DISMISS. Document to be filed by Clerk if Motion or Stipulation for Leave to File or Amend is granted. Filed by Association on American Indian Affairs, National Congress of American Indians, National Indian Child Welfare Association. (Daughety, Samuel) Modified on 11/18/2015 (LSP). (Entered: 10/26/2015)
MOTION for Admission Pro Hac Vice as to attorney Z W Julius Chen on behalf of Annie E. Casey Foundation, Casey Family Programs, Center for the Study of Social Policy, Child Welfare League of America, Children's Defense Fund, Donaldson Adoption Institute, First Focus Campaign for Children, FosterClub, Generations United, National Alliance of Children's Trust and Prevention Funds, National Center on Adoption and Permanency, North American Council on Adoptable Children, and W. Haywood Burns Institute. (BAS) Modified on 10/27/2015 (ATD). (Entered: 10/27/2015)
MOTION for Admission Pro Hac Vice as to attorney Hyland Hunt on behalf of Annie E. Casey Foundation, Casey Family Programs, Center for the Study of Social Policy, Child Welfare League of America, Children's Defense Fund, Donaldson Adoption Institute, First Focus Campaign for Children, FosterClub, Generations United, National Alliance of Children's Trust and Prevention Funds, National Center on Adoption and Permanency, North American Council on Adoptable Children, and W. Haywood Burns Institute. (BAS) (Entered: 10/27/2015)
MOTION for Admission Pro Hac Vice as to attorney Pratik A Shah on behalf of Annie E. Casey Foundation, Casey Family Programs, Center for the Study of Social Policy, Child Welfare League of America, Children's Defense Fund, Donaldson Adoption Institute, First Focus Campaign for Children, FosterClub, Generations United, National Alliance of Children's Trust and

10/27/2015 10/27/2015
10/27/2015 10/27/2015
10/28/2015 10/28/2015

Prevention Funds, National Center on Adoption and Permanency, North American Council on Adoptable Children, and W. Haywood Burns Institute. (BAS) (Entered: 10/27/2015)
PRO HAC VICE FEE PAID. $ 140, receipt number PHX164385 as to James E Tysse, Pratik A Shah, Hyland Hunt, Z W Julius Chen. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 10/27/2015)
63 ORDER pursuant to General Order 09-08 granting 49 Motion for Admission Pro Hac Vice; granting 60 Motion for Admission Pro Hac Vice; granting 61 Motion for Admission Pro Hac Vice; granting 62 Motion for Admission Pro Hac Vice. Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. Counsel is advised that they are limited to two (2) additional e-mail addresses in their District of Arizona User Account. (BAS) (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (Entered: 10/27/2015)
PRO HAC VICE FEE PAID. $ 35, receipt number PHX164459 as to Donald R Pongrace, Merrill C Godfrey. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 10/27/2015)
64 ORDER pursuant to General Order 09-08 granting 45 Motion
for Admission Pro Hac Vice; granting 46 Motion for Admission Pro Hac Vice. Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. Counsel is advised that they are limited to two (2) additional e-mail addresses in their District of Arizona User Account. (BAS) (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (Entered: 10/27/2015)
65 MOTION for Admission Pro Hac Vice as to attorney Kathryn E Fort on behalf of Association on American Indian Affairs, National Congress of American Indians, and National Indian Child Welfare Association. (BAS) (Entered: 10/28/2015)
PRO HAC VICE FEE PAID. $ 35, receipt number PHX164477 as to Kathryn E Fort. This is a TEXT ENTRY ONLY. There is no

10/28/2015

66

10/29/2015

67

10/29/2015 68

10/29/2015

69

10/29/2015

70

10/30/2015

71

11/02/2015 72

PDF document associated with this entry. (BAS) (Entered: 10/28/2015)
ORDER pursuant to General Order 09-08 granting 65 Motion for Admission Pro Hac Vice. Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. Counsel is advised that they are limited to two (2) additional e-mail addresses in their District of Arizona User Account. (BAS) (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (Entered: 10/28/2015)
ORDER granting 41 Federal Defendants' Motion for Leave to File Excess Pages. Clerk of the Court to file the Federal Defendants
Lodged Motion to Dismiss (Doc. 42 ). Signed by Judge Neil V Wake on 10/28/15.(EJA) (Entered: 10/29/2015)
MOTION to Dismiss for Lack of Jurisdiction and MOTION to Dismiss for Failure to State a Claim by Sally Jewell, Kevin Washburn. (EJA) (Entered: 10/29/2015)
ORDER granting 43 State Defendants' Motion for Leave to File Excess Pages. Clerk of the Court to file the State Defendants'
Lodged Motion to Dismiss (Doc. 44 ). Signed by Judge Neil V Wake on 10/28/15. (EJA) (Entered: 10/29/2015)
MOTION to Dismiss for Lack of Jurisdiction and MOTION to Dismiss for Failure to State a Claim by Gregory McKay. (EJA) (Entered: 10/29/2015)
NOTICE of Appearance by Gary N Lento on behalf of Gregory McKay. (Lento, Gary) (Entered: 10/30/2015)
RESPONSE in Opposition re: 47 MOTION to Intervene as Defendant filed by Carol Coghlan Carter, Unknown Party(named as J.H., a married couple ), Unknown Party(named as M.C., a married couple; for themselves and on behalf of a class of similarly-situated individuals ), Unknown Party(named as K.C., a married couple; for themselves and on behalf of a class of similarly-situated individuals ), Unknown Party(named as S.H., a married couple). (Bolick, Clint) (Entered: 11/02/2015)

11/02/2015

73

11/03/2015

74

11/10/2015

75

11/12/2015 76

11/13/2015

77

11/13/2015

78

First MOTION for Extension of Time to File Response/Reply as
to 51 Lodged Proposed Document, 59 Lodged Proposed Document Amicus Briefs by Carol Coghlan Carter, Unknown Party(named as J.H., a married couple ), Unknown Party(named as M.C., a married couple; for themselves and on behalf of a class of similarly-situated individuals ), Unknown Party(named as K.C., a married couple; for themselves and on behalf of a class of similarly-situated individuals ), Unknown Party(named as S.H., a married couple). (Attachments: # 1 Text of Proposed Order Proposed Order)(Dynar, Aditya) (Entered: 11/02/2015)
ORDER granting Plaintiffs' Motion (Doc. 73 ). FURTHER ORDERED that Plaintiffs shall file their response to amicus briefs no later than 5:00 PM, 11/25/15. Signed by Judge Neil V. Wake on 11/3/15. (NKS) (Entered: 11/03/2015)
TRANSCRIPT REQUEST by Gregory McKay for proceedings held on 09/23/2015, Judge Neil V Wake hearing judge(s). (Lento, Gary) (Entered: 11/10/2015)
REPLY to Response to Motion re: 47 MOTION to Intervene as Defendant filed by Gila River Indian Community. (Godfrey, Merrill) (Entered: 11/12/2015)
MOTION for Leave to File Excess Pages for Consolidated Response to Motions to Dismiss by Carol Coghlan Carter, Unknown Party(named as J.H., a married couple ), Unknown Party(named as M.C., a married couple; for themselves and on behalf of a class of similarly-situated individuals ), Unknown Party(named as K.C., a married couple; for themselves and on behalf of a class of similarly-situated individuals ), Unknown Party(named as S.H., a married couple). (Attachments: # 1 Text of Proposed Order Proposed Order to Exceed Page Limit)(Dynar, Aditya) (Entered: 11/13/2015)
* Filed at (Doc. 80 ) LODGED Proposed Plaintiffs' Consolidated Response to Federal Defendants' Motion to Dismiss and State Defendant's Motion to Abstain and Dsimiss Pursuant to Fed. R. Civ. P. 12(b)(1), (6) re: 77 MOTION for Leave to File Excess Pages for Consolidated Response to Motions to Dismiss . Document to be filed by Clerk if Motion or Stipulation for Leave to File or Amend is granted. Filed by Carol Coghlan Carter, Unknown Party(named as J.H., a married couple ), Unknown Party(named as M.C., a married couple; for themselves and on behalf of a class of

11/16/2015

79

11/16/2015 80

11/18/2015 81
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11/18/2015

83

similarly-situated individuals ), Unknown Party(named as K.C., a married couple; for themselves and on behalf of a class of similarly-situated individuals ), Unknown Party(named as S.H., a married couple). (Attachments: # 1 Exhibit Exhibits A-C)(Dynar, Aditya) Modified on 11/16/2015 (EJA). (Entered: 11/13/2015)
ORDER granting 77 Motion for Leave to File Excess Pages. Plaintiffs may file a Response to Defendants' Motions to Dismiss of 44 pages in length. The Clerk of the Court is to file the Plaintiffs Lodged Response to Defendants' Motions to Dismiss (Doc. 78 ). Signed by Judge Neil V Wake on 11/16/15. (EJA) (Entered: 11/16/2015)
*Plaintiffs' Consolidated Response to 68 Federal Defendants' Motion to Dismiss and 70 State Defendant's Motion to Abstain and Dsimiss Pursuant to Fed. R. Civ. P. 12(b)(1), (6). Filed by Carol Coghlan Carter, Unknown Party(named as J.H., a married couple ), Unknown Party(named as M.C., a married couple; Unknown Party(named as K.C., a married couple; Unknown Party(named as S.H., a married couple). (EJA) Modified to edit text on 11/16/2015 (EJA). *Modified to correct event type and to add document numbers on 11/17/2015 (EJA). (Entered: 11/16/2015)
MOTION to Intervene by Navajo Nation Department of Justice. (Belzowski, Katherine) (Entered: 11/18/2015)
*(See Doc. 207) -- LODGED Proposed MOTION to Dismiss for Failure to State a Claim re: {81] Motion to Intervene. Document to be filed by Clerk if Motion to Intervene is granted. Filed by Navajo Nation Department of Justice. (Belzowski, Katherine) Modified on 11/19/2015 (LSP). Modified on 9/14/2016 (LSP). (Entered: 11/18/2015)
ORDER granting 57 unopposed Motion of National Congress of American Indians, etc., for Leave to File Brief as Amici Curiae.
The Clerk shall file the proposed brief (Doc. 59 ). IT IS
FURTHER ORDERED granting 50 the unopposed Motion of Casey Family Programs, et al., for Leave to File Brief of Amici
Curiae. The Clerk shall file the proposed brief (Doc. 51 ). Signed by Judge Neil V Wake on 11/18/15.(LSP) (Entered: 11/18/2015)

11/18/2015

84

11/18/2015

85

11/20/2015

86

11/21/2015 87

11/25/2015

88

12/04/2015

89

12/04/2015

90

AMICUS CURIAE BRIEF by Movants Annie E. Casey Foundation, Casey Family Programs, Center for the Study of Social Policy, Child Welfare League of America, Children's Defense Fund, Donaldson Adoption Institute, First Focus Campaign for Children, FosterClub, Generations United, National Alliance of Children's Trust and Prevention Funds, National Center on Adoption and Permanency, North American Council on Adoptable Children, W. Haywood Burns Institute. (LSP) (Entered: 11/18/2015)
AMICUS CURIAE BRIEF by Movants Association on American Indian Affairs, National Congress of American Indians, National Indian Child Welfare Association. (LSP) (Entered: 11/18/2015)
*(Filed at Doc. 108 )--LODGED Proposed BRIEFOFTHECITIZENSEQUAL RIGHTSALLIANCEASAMICUS CURIAEINSUPPORTOFTHE MOTIONTOCERTIFYTHECLASSACTION. Document to be filed by Clerk if Motion or Stipulation for Leave to File or Amend is granted. Filed by CITIZENS EQUAL RIGHTS ALLIANCE. (Kielsky, Michael) Modified on 12/9/2015 (LSP). (Entered: 11/20/2015)
MOTION for Leave to File AMICUS CURIAE BRIEF by CITIZENS EQUAL RIGHTS FOUNDATION. (Attachments: # 1 Text of Proposed Order Proposed Order)(Kielsky, Michael) (Entered: 11/21/2015)
*RESPONSE re: 59 Lodged Proposed Document, 84 & 85 Brief (Non Appeal) Amici Curiae Briefs by Plaintiffs Carol Coghlan Carter, Unknown Party, Unknown Party, Unknown Party, Unknown Party. (Dynar, Aditya) *Modified to add document number on 11/30/2015 (KGM). (Entered: 11/25/2015)
MOTION for Leave to File Excess Pages by Gregory McKay. (Attachments: # 1 Text of Proposed Order)(Lento, Gary) (Entered: 12/04/2015)
*(Filed at Doc. 101 )--LODGED Proposed Reply to Plaintiffs' Consolidated Response to Defendants' Motion to Abstain and Dismiss Pursuant to Fed. R. Civ. P. 12(b)(1), (6) re: 70 MOTION to Dismiss for Lack of JurisdictionMOTION to Dismiss for Failure to State a Claim. Document to be filed by Clerk if Motion or Stipulation for Leave to File or Amend is granted. Filed by

12/04/2015 12/04/2015 12/04/2015 12/04/2015 12/04/2015 12/04/2015
12/07/2015

Gregory McKay. (Lento, Gary) Modified on 12/8/2015 (LSP). (Entered: 12/04/2015)
91 ORDER:: IT IS ORDERED that State Defendants submit a proposed form of order that is not on law firm stationery, in compliance with Local Rule 7.1(b)(3) re: 89 MOTION for Leave to File Excess Pages. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (NVW, vg) (Entered: 12/04/2015)
92 Additional Attachments to Main Document re: 89 MOTION for Leave to File Excess Pages , 91 Order by Defendant Gregory McKay. (Attachments: # 1 Text of Proposed Order Proposed Order)(Lento, Gary) (Entered: 12/04/2015)
93 *Additional Attachments to Main Document re: 89 MOTION for Leave to File Excess Pages by Defendant Gregory McKay. (Attachments: # 1 Text of Proposed Order Proposed Order)(Lento, Gary) *Document duplicate of entry of (Doc. 92 ). Modified on 12/7/2015 (LSP). (Entered: 12/04/2015)
94 *AMENDED DOCUMENT re 92 and 93 Additional Attachments to Main Document re: 89 MOTION for Leave to File Excess Pages by Defendant Gregory McKay. (Attachments: # 1 Text of Proposed Order Proposed Order)(Lento, Gary) *Modified to correct event type and to add document numbers on 12/7/2015 (LSP). (Entered: 12/04/2015)
95 MOTION for Leave to File Excess Pages for Reply Memorandum by Sally Jewell, Kevin Washburn. (Attachments: # 1 Text of Proposed Order)(Miskinis, Steven) (Entered: 12/04/2015)
96 *(Filed at Doc. 106 )--LODGED Proposed Reply Memorandum in support of Motion to Dismiss re: 95 MOTION for Leave to File
Excess Pages for Reply Memorandum , 68 MOTION to Dismiss for Lack of JurisdictionMOTION to Dismiss for Failure to State a Claim. Document to be filed by Clerk if Motion or Stipulation for Leave to File or Amend is granted. Filed by Sally Jewell, Kevin Washburn. (Miskinis, Steven) Modified on 12/8/2015 (LSP). (Entered: 12/04/2015)
97 RESPONSE in Opposition re: 81 MOTION to Intervene filed by Carol Coghlan Carter, Unknown Party(named as J.H., a married couple ), Unknown Party(named as M.C., a married couple; for

12/07/2015 12/07/2015
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themselves and on behalf of a class of similarly-situated individuals ), Unknown Party(named as K.C., a married couple; for themselves and on behalf of a class of similarly-situated individuals ), Unknown Party(named as S.H., a married couple). (Attachments: # 1 Exhibit 2)(Dynar, Aditya) (Entered: 12/07/2015)
98 MOTION to Seal Document by Carol Coghlan Carter, Unknown Party(named as J.H., a married couple ), Unknown Party(named as M.C., a married couple; for themselves and on behalf of a class of similarly-situated individuals ), Unknown Party(named as K.C., a married couple; for themselves and on behalf of a class of similarly-situated individuals ), Unknown Party(named as S.H., a married couple). (Attachments: # 1 Text of Proposed Order)(Dynar, Aditya) (Entered: 12/07/2015)
99 *FILED at Doc. 104 *SEALED LODGED Proposed Ex. 1 to Plaintiffs' Opposition to Navajo Nation's Motion to Intervene Nov. 21, 2015 Order of Adoption re: 98 MOTION to Seal Document . Document to be filed by Clerk if Motion or Stipulation to Seal is granted. Filed by Carol Coghlan Carter, Unknown Party(named as J.H., a married couple ), Unknown Party(named as M.C., a married couple; for themselves and on behalf of a class of similarly-situated individuals ), Unknown Party(named as K.C., a married couple; for themselves and on behalf of a class of similarly-situated individuals ), Unknown Party(named as S.H., a married couple). (Dynar, Aditya) *Modified on 12/8/2015 (MAP)*. (Entered: 12/07/2015)
100 ORDER granting 89 State Defendant's Motion for Leave to File Excess Pages and directing the Clerk to file State Defendant's lodged proposed Reply (Doc. 90 ). Signed by Judge Neil V Wake on 12/7/15.(LSP) (Entered: 12/08/2015)
101 REPLY to Response to Motion re: 70 MOTION to Dismiss for Lack of Jurisdiction and MOTION to Dismiss for Failure to State a Claim filed by Gregory McKay. (LSP) (Entered: 12/08/2015)
102 ORDER: IT IS ORDERED that any party to the Motions to
Intervene (Docs. 47 , 81 ) who requests oral argument on those motions so advise the Court by December 11, 2015 at 5:00 p.m. The Court is not requesting oral argument on those motions. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (NVW, vg) (Entered: 12/08/2015)

12/08/2015 103 12/08/2015 104 12/08/2015 105 12/08/2015 106 12/09/2015 107 12/09/2015 108 12/09/2015 109
12/10/2015 110

ORDER granting 98 Motion to Seal Exhibit 1 to Plaintiffs' Opposition to Navajo Nation's Motion to Intervene. Signed by Judge Neil V Wake on 12/8/15.(MAP) (Entered: 12/08/2015)
Sealed Exhibit to 97 Opposition to Navajo Nation's Motion to Intervene filed by Carol Coghlan Carter. (MAP) (Entered: 12/08/2015)
ORDER granting 95 Federal Defendants' Motion for Leave to File Excess Pages and directing the Clerk to file the Lodged Proposed Reply (Doc. 96 ). Signed by Judge Neil V Wake on 12/8/15.(LSP) (Entered: 12/08/2015)

REPLY to Response to Motion re: 68 MOTION to Dismiss for Lack of Jurisdiction and MOTION to Dismiss for Failure to State a Claim filed by Sally Jewell, Kevin Washburn. (LSP) (Entered: 12/08/2015)

ORDER granting 87 Citizens Equal Rights Foundation's Motion for Leave to File. The Clerk shall file the proposed brief previously lodged (Doc. 86 ). Signed by Judge Neil V Wake on 12/9/15.(LSP) (Entered: 12/09/2015)

AMICUS CURIAE BRIEF in support of Motion to Certify Class Action by Amicus Citizens Equal Rights Foundation. (LSP) (Entered: 12/09/2015)

NOTICE re: Supplemental Authority in Support of Plaintiffs' Response to Defendants' Motions to Dismiss by Carol Coghlan Carter, Unknown Party(named as J.H., a married couple ), Unknown Party(named as M.C., a married couple; for themselves and on behalf of a class of similarly-situated individuals ), Unknown Party(named as K.C., a married couple; for themselves and on behalf of a class of similarly-situated individuals ), Unknown Party(named as S.H., a married couple) re: 80

Reply . (Attachments: # 1 Exhibit 1)(Dynar, Aditya) (Entered: 12/09/2015)

NOTICE re: Supplemental Authorities by Sally Jewell, Kevin

Washburn . (Attachments: # 1 (Entered: 12/10/2015)

Exhibit)(Ennis, Christine)

12/11/2015 12/11/2015 12/11/2015 12/14/2015
12/14/2015
12/14/2015 12/15/2015 12/15/2015 12/18/2015

111 NOTICE of Errata re: 108 Brief (Non Appeal) by Amicus Citizens Equal Rights Foundation.. (Kielsky, Michael) (Entered: 12/11/2015)
112 NOTICE re: Supplemental Authority by Gregory McKay re: 70 MOTION to Dismiss for Lack of JurisdictionMOTION to Dismiss for Failure to State a Claim . (Attachments: # 1 Exhibit)(Lento, Gary) (Entered: 12/11/2015)
113 REQUEST re: Oral Argument Requested by Intervenor Defendant Navajo Nation Department of Justice. (Belzowski, Katherine) (Entered: 12/11/2015)
114 MINUTE ORDER: IT IS ORDERED setting oral argument on the
Navajo Nation's Motion to Intervene 81 for 12/18/2015 at 1:30 PM in Courtroom 504, 401 West Washington Street, Phoenix, AZ 85003 before Judge Neil V.Wake. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (NVW, vg) (Entered: 12/14/2015)
115 RESPONSE re: 112 Notice (Other), 110 Notice (Other) of Supplemental Authorities by Plaintiffs Carol Coghlan Carter, Unknown Party, Unknown Party, Unknown Party, Unknown Party. (Dynar, Aditya) (Entered: 12/14/2015)
116 REPLY to Response to Motion re: 81 MOTION to Intervene filed by Navajo Nation Department of Justice. (Belzowski, Katherine) (Entered: 12/14/2015)
117 NOTICE of Appearance by Melanie Grace McBride on behalf of Gregory McKay. (McBride, Melanie) (Entered: 12/15/2015)
118 NOTICE OF ATTORNEY APPEARANCE: Christine W. Ennis appearing for Sally Jewell, Kevin Washburn. . (Ennis, Christine) (Entered: 12/15/2015)
119 MINUTE ENTRY for proceedings held before Judge Neil V. Wake: Oral Argument held on 12/18/15. Preliminary matters discussed. Counsel argue their respective positions regarding the pending motions. Motions taken under advisement. Written order to follow.
APPEARANCES: Michael Kirk, Clint Bolick and Aditya Dynar for Plaintiffs. Steven Miskinis, Christine Ennis, Gary Lento, Dawn

12/21/2015 12/24/2015
12/29/2015
12/29/2015 01/05/2016 01/06/2016 01/08/2016

Williams and Melanie McBride for Defendants. Katherine Belzowski for Intervenor Defendant. (Court Reporter Laurie Adams.) Hearing held 1:38 p.m. to 4:46 p.m. (with a recess from 3:19 p.m. to 3:33 p.m.) This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (NKS) (Entered: 12/18/2015)
120 TRANSCRIPT REQUEST by Gregory McKay for proceedings held on December 18, 2015, Judge Neil V Wake hearing judge(s). (Lento, Gary) (Entered: 12/21/2015)
122 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Motion Hearing Proceedings held on 12/18/2015, before Judge Neil V. Wake. Court Reporter Laurie Adams. The ordering party will have electronic access to the transcript immediately. All others may view the transcript at the court public terminal or it may be purchased through the Court Reporter by filing a Transcript Order Form on the docket before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 1/14/2016. Redacted Transcript Deadline set for 1/25/2016. Release of Transcript Restriction set for 3/23/2016. (RCO) (Entered: 12/29/2015)
121 TRANSCRIPT REQUEST by Carol Coghlan Carter, Unknown Party(named as J.H., a married couple ), Unknown Party(named as M.C., a married couple; for themselves and on behalf of a class of similarly-situated individuals ), Unknown Party(named as K.C., a married couple; for themselves and on behalf of a class of similarly-situated individuals ), Unknown Party(named as S.H., a married couple) for proceedings held on 12/18/2015, Judge Neil V Wake hearing judge(s). (Dynar, Aditya) (Entered: 12/29/2015)
123 TRANSCRIPT REQUEST by Gila River Indian Community for proceedings held on 12/18/2015, Judge Neil V Wake hearing judge(s). (Murphy, Thomas) (Entered: 12/29/2015)
124 TRANSCRIPT REQUEST by Association on American Indian Affairs, National Congress of American Indians, National Indian Child Welfare Association for proceedings held on 12/18/2015, Judge Neil V Wake hearing judge(s). (Daughety, Samuel) (Entered: 01/05/2016)
125 NOTICE of Appearance by Melanie Grace McBride on behalf of Gregory McKay. (McBride, Melanie) (Entered: 01/06/2016)
126 MOTION to Withdraw as Attorney by Carol Coghlan Carter, Unknown Party(named as J.H., a married couple ), Unknown

01/12/2016 127
01/19/2016 128 01/20/2016 129
01/20/2016 130 01/25/2016
131 02/01/2016 132
02/02/2016 133
02/04/2016 134

Party(named as M.C., a married couple; for themselves and on behalf of a class of similarly-situated individuals ), Unknown Party(named as K.C., a married couple; for themselves and on behalf of a class of similarly-situated individuals ), Unknown Party(named as S.H., a married couple). (Attachments: # 1 Text of Proposed Order Proposed Order)(Dynar, Aditya) (Entered: 01/08/2016)
ORDER that the Application (Doc. 126 ) is granted. FURTHER ORDERED that attorney Clint Bolick will henceforth not be an attorney of record in this case. FURTHER ORDERED directing the Clerk of the Court to make appropriate changes in the Courts CM/ECF System to reflect this change. Signed by Judge Neil V. Wake on 1/11/16. (NKS) (Entered: 01/12/2016)
NOTICE re: Second Notice of Supplemental Authority by Sally Jewell, Kevin Washburn . (Attachments: # 1 Exhibit)(Ennis, Christine) (Entered: 01/19/2016)
RESPONSE re: 128 Notice (Other) to Federal Defendants' Second Notice of Supplemental Authority by Plaintiffs Carol Coghlan Carter, Unknown Party, Unknown Party, Unknown Party, Unknown Party. (Dynar, Aditya) (Entered: 01/20/2016)
NOTICE of Service of Discovery filed by Sally Jewell, Kevin Washburn. (Miskinis, Steven) (Entered: 01/20/2016)
NOTICE of Service of Discovery filed by Carol Coghlan Carter. (Dynar, Aditya) (Entered: 01/25/2016)
STIPULATION JOINT STIPULATION AND ORDER FOR PROTECTION OF PRIVILEGED AND CONFIDENTIAL MATERIAL by Gregory McKay. (Attachments: # 1 Text of Proposed Order Proposed Order)(McBride, Melanie) (Entered: 02/01/2016)
PROTECTIVE ORDER - granting the parties' Stipulation (Doc. 132 ). FURTHER ORDERED as follows (see order for complete details). Signed by Judge Neil V. Wake on 2/2/16. (NKS) (Entered: 02/02/2016)
NOTICE of Service of Discovery filed by Carol Coghlan Carter, Unknown Party(named as J.H., a married couple ), Unknown Party(named as M.C., a married couple; for themselves and on behalf of a class of similarly-situated individuals ), Unknown Party(named as K.C., a married couple; for themselves and on behalf of a class of similarly-situated individuals ), Unknown

02/05/2016 02/05/2016 02/08/2016 02/08/2016
02/08/2016

Party(named as S.H., a married couple). (Dynar, Aditya) (Entered: 02/04/2016)
135 MOTION to Seal Document State Defendant's Second Notice of Supplemental Authority in Support of its Motion to Abstain and Dismiss by Gregory McKay. (Attachments: # 1 Text of Proposed Order Order)(McBride, Melanie) (Entered: 02/05/2016)
136 *FILED at Doc. 141 *SEALED LODGED Proposed State Defendant's Second Notice of Supplemental Authority in Support of its Motion to Abstain and Dismiss re: 135 MOTION to Seal Document State Defendant's Second Notice of Supplemental Authority in Support of its Motion to Abstain and Dismiss. Document to be filed by Clerk if Motion or Stipulation to Seal is granted. Filed by Gregory McKay. (McBride, Melanie) *Modified on 2/8/2016 (MAP)*. (Entered: 02/05/2016)
137 RESPONSE re: 136 Sealed Lodged Proposed Document McKay's Second Notice of Supplemental Authority in Support of Its Motion to Abstain and Dismiss by Plaintiffs Carol Coghlan Carter, Unknown Party, Unknown Party, Unknown Party, Unknown Party. (Dynar, Aditya) (Entered: 02/08/2016)
138 MOTION to Seal Document Exhibits to Plaintiffs' Response to State Defendant's Second Notice of Supplemental Authority in Support of Its Motion to Abstain and Dismiss by Carol Coghlan Carter, Unknown Party(named as J.H., a married couple ), Unknown Party(named as M.C., a married couple; for themselves and on behalf of a class of similarly-situated individuals ), Unknown Party(named as K.C., a married couple; for themselves and on behalf of a class of similarly-situated individuals ), Unknown Party(named as S.H., a married couple). (Attachments: # 1 Text of Proposed Order)(Dynar, Aditya) (Entered: 02/08/2016)
139 *FILED at Doc. 143 *SEALED LODGED Proposed Exhibits to Plaintiffs' Response to State Defendant's Second Notice of Supplemental Authority in Support of Its Motion to Abstain and Dismiss re: 138 MOTION to Seal Document Exhibits to Plaintiffs' Response to State Defendant's Second Notice of Supplemental Authority in Support of Its Motion to Abstain and Dismiss. Document to be filed by Clerk if Motion or Stipulation to Seal is granted. Filed by Carol Coghlan Carter, Unknown Party(named as J.H., a married couple ), Unknown Party(named as M.C., a married couple; for themselves and on behalf of a class of similarly-situated individuals ), Unknown Party(named as K.C., a married couple; for themselves and on behalf of a class of similarly-situated

02/08/2016 02/08/2016 02/12/2016 02/12/2016
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individuals ), Unknown Party(named as S.H., a married couple). (Dynar, Aditya) *Modified on 2/12/2016 (MAP)*. (Entered: 02/08/2016)
140 ORDER granting 135 Motion to Seal Second Notice of Supplemental Authority in Support of its Motion to Abstain and Dismiss. Signed by Judge Neil V Wake on 2/8/16. (MAP) (Entered: 02/08/2016)
141 Sealed Second Notice of Supplemental Authority in Support of its Motion to Abstain and Dismiss by Gregory McKay. (MAP) (Entered: 02/08/2016)
142 ORDER granting 138 Motion to Seal Exhibits to Plaintiffs' Response to State Defendant's Second Notice of Supplemental Authority in Support of Its Motion to Abstain and Dismiss. Signed by Judge Neil V Wake on 2/11/16.(MAP) (Entered: 02/12/2016)
143 Sealed Exhibits to 137 Plaintiffs' Response to State Defendant's Second Notice of Supplemental Authority in Support of Its Motion to Abstain and Dismiss by Carol Coghlan Carter, Unknown Party (named as J.H., a married couple ), Unknown Party(named as M.C., a married couple; for themselves and on behalf of a class of similarly-situated individuals ), Unknown Party(named as K.C., a married couple; for themselves and on behalf of a class of similarly-situated individuals ), Unknown Party(named as S.H., a married couple). (MAP) (Entered: 02/12/2016)
144 NOTICE of Service of Discovery filed by Carol Coghlan Carter, Unknown Party(named as J.H., a married couple ), Unknown Party(named as M.C., a married couple; for themselves and on behalf of a class of similarly-situated individuals ), Unknown Party(named as K.C., a married couple; for themselves and on behalf of a class of similarly-situated individuals ), Unknown Party(named as S.H., a married couple). (Dynar, Aditya) (Entered: 02/18/2016)
145 ORDER that by 02/29/16, Plaintiffs file a status report that includes whether and when they plan to amend their Complaint and add additional plaintiffs. See order for details. Signed by Judge Neil V. Wake on 2/22/16. (NKS) (Entered: 02/22/2016)
146 NOTICE of Service of Discovery filed by Carol Coghlan Carter, Unknown Party(named as J.H., a married couple ), Unknown Party(named as M.C., a married couple; for themselves and on behalf of a class of similarly-situated individuals ), Unknown Party(named as K.C., a married couple; for themselves and on

02/26/2016 147
02/26/2016 148
02/29/2016 149 03/02/2016 150
03/02/2016 151

behalf of a class of similarly-situated individuals ), Unknown Party(named as S.H., a married couple). (Dynar, Aditya) (Entered: 02/26/2016)
MOTION for Admission Pro Hac Vice as to attorney Kent Campbell by Carol Coghlan Carter, Unknown Party(named as J.H., a married couple ), Unknown Party(named as M.C., a married couple; for themselves and on behalf of a class of similarly-situated individuals ), Unknown Party(named as K.C., a married couple; for themselves and on behalf of a class of similarly-situated individuals ), Unknown Party(named as S.H., a married couple). (Attachments: # 1 Text of Proposed Order)(Dynar, Aditya) (Entered: 02/26/2016)
MOTION Suspension of Local Rule 83.1(b)(2) re: 147 MOTION for Admission Pro Hac Vice as to attorney Kent Campbell by Carol Coghlan Carter, Unknown Party(named as J.H., a married couple ), Unknown Party(named as M.C., a married couple; for themselves and on behalf of a class of similarly-situated individuals ), Unknown Party(named as K.C., a married couple; for themselves and on behalf of a class of similarly-situated individuals ), Unknown Party(named as S.H., a married couple). (Attachments: # 1 Text of Proposed Order)(Dynar, Aditya) (Entered: 02/26/2016)
STATUS REPORT by Carol Coghlan Carter, Unknown Party(named as J.H., a married couple ), Unknown Party(named as M.C., a married couple; for themselves and on behalf of a class of similarly-situated individuals ), Unknown Party(named as K.C., a married couple; for themselves and on behalf of a class of similarly-situated individuals ), Unknown Party(named as S.H., a married couple). (Dynar, Aditya) (Entered: 02/29/2016)
MOTION to Amend/Correct 1 Complaint by Carol Coghlan Carter, Unknown Party(named as J.H., a married couple ), Unknown Party(named as M.C., a married couple; for themselves and on behalf of a class of similarly-situated individuals ), Unknown Party(named as K.C., a married couple; for themselves and on behalf of a class of similarly-situated individuals ), Unknown Party(named as S.H., a married couple). (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Text of Proposed Order)(Dynar, Aditya) (Entered: 03/02/2016)
MEMORANDUM (re: Doc. 150 ) - If the amended complaint is permitted and any party wishes to challenge it by motion to dismiss, parties may incorporate by reference the briefing on the pending motions. They may supplement with additional briefing

03/03/2016 152
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03/08/2016 156
03/08/2016 157 03/09/2016 158

based on the circumstances of any new plaintiff. Signed by Judge Neil V. Wake on 3/2/16. (NKS) (Entered: 03/02/2016)
* MOTION for Issuance of Order for release of certain State records by Kevin Washburn and Sally Jewell. (Attachments: # 1 Exhibit Proposed Order)(Miskinis, Steven) *Modified to add filer on 3/4/2016 (REK). (Entered: 03/03/2016)
MOTION to Seal Document Exhibit A to proposed order for release of certain state records by Sally Jewell, Kevin Washburn. (Attachments: # 1 Exhibit proposed order)(Miskinis, Steven) (Entered: 03/03/2016)
RESPONSE to Motion re: 152 MOTION for Issuance of Order for release of certain State records filed by Carol Coghlan Carter, Unknown Party(named as J.H., a married couple ), Unknown Party(named as M.C., a married couple; for themselves and on behalf of a class of similarly-situated individuals ), Unknown Party(named as K.C., a married couple; for themselves and on behalf of a class of similarly-situated individuals ), Unknown Party(named as S.H., a married couple). (Attachments: # 1 Text of Proposed Order)(Dynar, Aditya) (Entered: 03/03/2016)
* (Filed at Doc. 157 ) SEALED LODGED Proposed Exh. A to Proposed Order (ECF No. 152-1) re: 153 MOTION to Seal Document Exhibit A to proposed order for release of certain state records. Document to be filed by Clerk if Motion or Stipulation to Seal is granted. Filed by Sally Jewell, Kevin Washburn. (Miskinis, Steven) Modified on 3/8/2016 (LAD). (Entered: 03/07/2016)
ORDER granting Federal Defendants' 153 Motion to Seal. IT IS FURTHER ORDERED that the following lodged document be and is hereby sealed: Exhibit A to [Proposed] Order accompanying Federal Defendants' Motion to Enter an Order Authorizing Release of Certain State Records (Sealed/Lodged Doc. 155 ). Signed by Judge Neil V Wake on 3/7/16. (LAD) (Entered: 03/08/2016)
Sealed Exhibit A to 152 Proposed Order by Sally Jewell, Kevin Washburn. (LAD) (Entered: 03/08/2016)
NOTICE of Service of Discovery filed by Carol Coghlan Carter, Unknown Party(named as J.H., a married couple ), Unknown Party(named as M.C., a married couple; for themselves and on behalf of a class of similarly-situated individuals ), Unknown Party(named as K.C., a married couple; for themselves and on

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behalf of a class of similarly-situated individuals ), Unknown Party(named as S.H., a married couple). (Dynar, Aditya) (Entered: 03/09/2016)
159 ORDER that Kent N. Campbell's Applications for Admission to Practice Pro Hac Vice Pursuant to LRCiv 83.1(b)(2) and for Suspension of Local Rule 83.1(b)(2) (Doc. 147 , 148 ) are denied. See order for details. Signed by Judge Neil V. Wake on 3/15/16. (NKS) (Entered: 03/15/2016)
160 RESPONSE in Opposition re: 150 MOTION to Amend/Correct 1 Complaint filed by Sally Jewell, Kevin Washburn. (Miskinis, Steven) (Entered: 03/21/2016)
161 *** STRICKEN by Doc. 164 - RESPONSE to Motion re: 152
MOTION for Issuance of Order for release of certain State records filed by Gregory McKay. (Attachments: # 1 Text of Proposed Order Proposed Order)(McBride, Melanie) Modified on 3/22/2016 (NKS). (Entered: 03/21/2016)
162 RESPONSE in Opposition re: 150 MOTION to Amend/Correct 1 Complaint STATE DEFENDANT'S OPPOSITION TO PLAINTIFFS' MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT filed by Gregory McKay. (McBride, Melanie) (Entered: 03/21/2016)
163 *Motion to Seal Document Exhibit A to State Defendants' Proposed Order for Release of Certain State Records. Filed by Gregory McKay. (Attachments: # 1 Text of Proposed Order Text of Proposed Order, # 2 Exhibit Exhibit A)(McBride, Melanie) *Modified from lodged to filed per case manager on 3/22/2016 (SCH). *Modified on 3/22/2016; EXHIBIT A filed at 167 * (REW). (Entered: 03/21/2016)
164 ORDER: IT IS ORDERED that State Defendant's Response to Federal Defendants' Motion to Authorize Release of Certain State Records (Doc. 161 ) is stricken for failure to comply in footnotes with the minimum print size requirement of the Local Rules, with leave to refile. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (NKS) (Entered: 03/22/2016)
165 RESPONSE to Motion re: 152 MOTION for Issuance of Order for release of certain State records filed by Gregory McKay. (Attachments: # 1 Text of Proposed Order Proposed Order)(McBride, Melanie) (Entered: 03/22/2016)

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03/31/2016 170 03/31/2016 171 04/04/2016 172
04/05/2016 173

ORDER: granting the State Defendant's Motion for Leave to File Document Under Seal 163 ; the following lodged document is hereby sealed: Exhibit A (lodged at 163 ) to proposed order accompanying State Defendant's Response to Motion for Issuance 165 -1. Signed by Judge Neil V Wake on 3/22/16.(REW) (Entered: 03/22/2016)
Sealed EXHIBIT A by Gregory McKay, re: proposed order accompanying State Defendant's Response to Motion for Issuance 165 (REW) (Entered: 03/22/2016)
NOTICE of Service of Discovery filed by Sally Jewell, Kevin Washburn. (Miskinis, Steven) (Entered: 03/31/2016)
REPLY to Response to Motion re: 150 MOTION to Amend/Correct 1 Complaint filed by Carol Coghlan Carter, Unknown Party(named as J.H., a married couple ), Unknown Party(named as M.C., a married couple; for themselves and on behalf of a class of similarly-situated individuals ), Unknown Party(named as K.C., a married couple; for themselves and on behalf of a class of similarly-situated individuals ), Unknown Party(named as S.H., a married couple). (Attachments: # 1 Exhibit 1)(Dynar, Aditya) (Entered: 03/31/2016)
REPLY to Response to Motion re: 152 MOTION for Issuance of Order for release of certain State records filed by Sally Jewell, Kevin Washburn. (Miskinis, Steven) (Entered: 03/31/2016)
NOTICE of Service of Discovery filed by Gregory McKay. (Lento, Gary) (Entered: 03/31/2016)
ORDER that Plaintiffs' Motion for Leave to File First Amended Complaint (Doc. 150 ) is granted. The Clerk will file the First Amended Civil Rights Class Action Complaint for Declaratory, Injunctive, and Other Relief lodged as Exhibit 1 to the Motion (Doc. 150 -1). FURTHER ORDERED that Federal Defendants'
Motion to Dismiss (Doc. 68 ) and State Defendant's Motion to Abstain and Dismiss Pursuant to Fed. R. Civ. P. 12(b)(1), (6) (Doc. 70 ) are denied without prejudice as moot. See order for details. Signed by Judge Neil V. Wake on 4/4/16. (NKS) (Entered: 04/04/2016)
AMENDED COMPLAINT against Sally Jewell, Gregory McKay, Kevin Washburn filed by Unknown Party(a married couple; for themselves and on behalf of a class of similarly-situated

04/06/2016 174
04/06/2016 175
04/14/2016 176 04/20/2016 177 04/22/2016
178 04/22/2016
179

individuals), Unknown Party(named as J.H., a married couple ), Carol Coghlan Carter, Unknown Party(named as S.H., a married couple), Unknown Party(P.R., a married couple; for themselves and on behalf of a class of similary-situated individuals), Unknown Party(named as M.C., a married couple; for themselves and on behalf of a class of similarly-situated individuals ), Ronald Federici, Unknown Party(named as K.C., a married couple; for themselves and on behalf of a class of similarly-situated individuals ).(EJA) (Entered: 04/05/2016)
NOTICE of Appearance by Christina Maria Sandefur on behalf of Carol Coghlan Carter, Ronald Federici, Unknown Party(a married couple; for themselves and on behalf of a class of similarly-situated individuals), Unknown Party(named as J.H., a married couple ), Unknown Party(named as S.H., a married couple), Unknown Party(P.R., a married couple; for themselves and on behalf of a class of similary-situated individuals), Unknown Party(named as M.C., a married couple; for themselves and on behalf of a class of similarly-situated individuals ), Unknown Party(named as K.C., a married couple; for themselves and on behalf of a class of similarly-situated individuals ). (Sandefur, Christina) (Entered: 04/06/2016)
ORDER granting 152 Motion for Order Authorizing the Release of Certain State Records. SEE ORDER FOR FULL DETAILS. Signed by Judge Neil V Wake on 4/6/16. (Attachments: # 1 Exhibit (Sealed))(MAP) (Entered: 04/06/2016)
NOTICE re: Notice of Compliance with Order by Gregory McKay [DOCS. 175 and 175-1]. (Lento, Gary) (Entered: 04/14/2016)
NOTICE of Service of Discovery filed by Sally Jewell, Kevin Washburn. (Miskinis, Steven) (Entered: 04/20/2016)
*MOTION to Dismiss for Lack of Jurisdiction and for failure to state a claim by Sally Jewell, Kevin Washburn. (Miskinis, Steven). *Added MOTION to Dismiss for Failure to State a Claim on 5/23/2016 (ATD). (Entered: 04/22/2016)
*MOTION to Dismiss for Lack of Jurisdiction Motion to Dismiss Plaintiffs' 1st Amended Civil Rights Complaint for Declaratory, Injunctive, and Other Relief [Doc. 173] by Gregory McKay. (Lento, Gary) *Corrected event to a Motion to Dismiss for Lack of Jurisdiction and added MOTION to Dismiss for Failure to State a Claim on 5/23/2016 (ATD). (Entered: 04/22/2016)

05/02/2016 05/03/2016 05/09/2016 05/09/2016
05/09/2016

180 MOTION to Expedite Ruling on Motion to Intervene as Defendant by Gila River Indian Community. (Attachments: # 1 Exhibit Lodged Motion to Dismiss First Amended Complaint, # 2 Text of Proposed Order)(Godfrey, Merrill) (Entered: 05/02/2016)
181 NOTICE of Service of Discovery filed by Gregory McKay. (Lento, Gary) (Entered: 05/03/2016)
182 MOTION for Leave to File Amicus Memorandum in Opposition to Motions to Dismiss by Ohio Attorney General. (Attachments: # 1 Text of Proposed Order Proposed Order, # 2 Exhibit Amicus Memorandum)(Hendershot, Michael) (Entered: 05/09/2016)
183 MOTION for Leave to File Excess Pages for for Plaintiffs' Combined Response to Defendants' Motions to Dismiss Amended Complaint by Carol Coghlan Carter, Ronald Federici, Unknown Party(a married couple; for themselves and on behalf of a class of similarly-situated individuals), Unknown Party(named as J.H., a married couple ), Unknown Party(named as S.H., a married couple), Unknown Party(P.R., a married couple; for themselves and on behalf of a class of similary-situated individuals), Unknown Party(named as M.C., a married couple; for themselves and on behalf of a class of similarly-situated individuals ), Unknown Party(named as K.C., a married couple; for themselves and on behalf of a class of similarly-situated individuals ). (Attachments: # 1 Text of Proposed Order)(Dynar, Aditya) (Entered: 05/09/2016)
184 * (Filed at Doc. 187 ) LODGED Proposed Plaintiffs' Combined Response to State and Federal Defendants' Motions to
Dismiss re: 178 MOTION to Dismiss for Lack of
Jurisdiction and for failure to state a claim, 179 MOTION to Dismiss Case Motion to Dismiss Plaintiffs' 1st Amended Civil Rights Complaint for Declaratory, Injunctive, and Other Relief [Doc. 173]. Document to be filed by Clerk if Motion or Stipulation for Leave to File or Amend is granted. Filed by Carol Coghlan Carter, Ronald Federici, Unknown Party(a married couple; for themselves and on behalf of a class of similarly-situated individuals), Unknown Party(named as J.H., a married couple ), Unknown Party(named as S.H., a married couple), Unknown Party(P.R., a married couple; for themselves and on behalf of a class of similary-situated individuals), Unknown Party(named as M.C., a married couple; for themselves and on behalf of a class of

05/10/2016 185 05/10/2016 186 05/10/2016
187
05/10/2016 188 05/10/2016 189 05/10/2016 190

similarly-situated individuals ), Unknown Party(named as K.C., a married couple; for themselves and on behalf of a class of similarly-situated individuals ). (Dynar, Aditya) Modified on 5/10/2016 (LAD). (Entered: 05/09/2016)
ORDER granting the State of Ohio's Motion for Leave to File Amicus Memorandum in Opposition to Motions to Dismiss (Doc. 182 ). FURTHER ORDERED that the State of Ohio may file its Amicus Memorandum lodged and attached as Doc. 182 -2 on or before 05/13/16. Signed by Judge Neil V. Wake on 5/9/16. (NKS) (Entered: 05/10/2016)
ORDER granting 183 Motion for Leave to File Excess Pages. IT IS FURTHER ORDERED directing the Clerk of the Court to file Plaintiffs' Combined Response to Defendants' Motions to Dismiss lodged at Doc. 184 . Signed by Judge Neil V Wake on 5/9/16. (LAD) (Entered: 05/10/2016)
COMBINED RESPONSE to 179 MOTION to Dismiss Plaintiffs' 1st Amended Civil Rights Complaint for Declaratory,
Injunctive, and Other Relief [Doc. 173], 178 MOTION to Dismiss for Lack of Jurisdiction and for failure to state a claim filed by Carol Coghlan Carter, Ronald Federici, Unknown Party(a married couple; for themselves and on behalf of a class of similarly-situated individuals), Unknown Party(named as J.H., a married couple ), Unknown Party(named as S.H., a married couple), Unknown Party(P.R., a married couple; for themselves and on behalf of a class of similary-situated individuals), Unknown Party(named as M.C., a married couple; for themselves and on behalf of a class of similarly-situated individuals ), Unknown Party(named as K.C., a married couple; for themselves and on behalf of a class of similarly-situated individuals ). (LAD) (Entered: 05/10/2016)
NOTICE of Service of Discovery filed by Gregory McKay. (Lento, Gary) (Entered: 05/10/2016)
NOTICE re: of Compliance with Court Order - Service of Redacted Yavapai County Superior Court Records by Gregory
McKay re: 175 Order on Motion for Issuance . (Lento, Gary) (Entered: 05/10/2016)
NOTICE re: Notice of Compliance with Protective Order - Filing of Protective Order Agreements Re Redactions to the Maricopa

05/11/2016 191
05/13/2016 192
05/20/2016 193
05/20/2016 194 05/20/2016
195
05/23/2016 196
05/23/2016 197

and Yavapai County Superior Courts Records by Gregory McKay re: 133 Protective Order . (Attachments: # 1 Exhibit A - Maricopa County Superior Court Records, # 2 Exhibit B - Yavapai Cty Records)(Lento, Gary) (Entered: 05/10/2016)
RESPONSE in Opposition re: 178 MOTION to Dismiss for Lack of Jurisdiction and for failure to state a claim, 68
MOTION to Dismiss for Lack of JurisdictionMOTION to Dismiss for Failure to State a Claim filed by Ohio Attorney General. (Hendershot, Michael) (Entered: 05/11/2016)
ORDER that the Gila River Indian Community's Motion to Expedite Ruling on Its Motion to Intervene as Defendant (Doc. 180 ) is denied. See order for details. Signed by Judge Neil V. Wake on 5/13/16. (NKS) (Entered: 05/13/2016)
REPLY to Response to Motion re: 179 MOTION to Dismiss Case Motion to Dismiss Plaintiffs' 1st Amended Civil Rights Complaint for Declaratory, Injunctive, and Other Relief [Doc. 173] filed by Gregory McKay. (Lento, Gary) (Entered: 05/20/2016)
MOTION for Leave to File Excess Pages for Reply brief by Sally Jewell, Kevin Washburn. (Attachments: # 1 Text of Proposed Order)(Miskinis, Steven) (Entered: 05/20/2016)
REPLY to Response to Motion re: 178 MOTION to Dismiss for Lack of Jurisdiction and for failure to state a claim filed by Sally Jewell, Kevin Washburn. (Miskinis, Steven) (Entered: 05/20/2016)
ORDER granting the Federal Defendants' Motion (Doc. 194 ). FURTHER ORDERED that the Federal Defendants' Reply
(Doc. 195 ), which was filed and not lodged, is considered filed as of 05/20/16. Signed by Judge Neil V. Wake on 5/23/16. (NKS) (Entered: 05/23/2016)
NOTICE of Service of Discovery filed by Carol Coghlan Carter, Ronald Federici, Unknown Party(a married couple; for themselves and on behalf of a class of similarly-situated individuals), Unknown Party(named as J.H., a married couple ), Unknown Party(named as S.H., a married couple), Unknown Party(P.R., a

05/23/2016 05/23/2016
05/27/2016
06/03/2016 06/06/2016

married couple; for themselves and on behalf of a class of similarysituated individuals), Unknown Party(named as M.C., a married couple; for themselves and on behalf of a class of similarly-situated individuals ), Unknown Party(named as K.C., a married couple; for themselves and on behalf of a class of similarly-situated individuals ). (Dynar, Aditya) (Entered: 05/23/2016)
198 AMENDED MOTION to Intervene (Oral Arguement Requested) by Navajo Nation Department of Justice. (Belzowski, Katherine) (Entered: 05/23/2016)
199 *Filed at (Doc. 218 ) LODGED PROPOSED DOCUMENT AMENDED MOTION to Dismiss for Lack of Jurisdiction and MOTION to Dismiss for Failure to State a Claim (Lodge) by Navajo Nation Department of Justice. (Belzowski, Katherine) Modified on 5/24/2016 (ATD). *Modified to correct event and added MOTION to Dismiss for Lack of Jurisdiction on 5/24/2016 (ATD). *Modified on 9/7/2016 to correct event to Lodged Proposed; Document to be filed in the event that 198 is granted (ATD). *Modified on 9/29/2016 (DXD). (Entered: 05/23/2016)
200 RESPONSE to Motion re: 198 MOTION to Intervene (Oral Arguement Requested) filed by Carol Coghlan Carter, Ronald Federici, Unknown Party(a married couple; for themselves and on behalf of a class of similarly-situated individuals), Unknown Party(named as J.H., a married couple ), Unknown Party(named as S.H., a married couple), Unknown Party(P.R., a married couple; for themselves and on behalf of a class of similary-situated individuals), Unknown Party(named as M.C., a married couple; for themselves and on behalf of a class of similarly-situated individuals ), Unknown Party(named as K.C., a married couple; for themselves and on behalf of a class of similarly-situated individuals ). (Dynar, Aditya) (Entered: 05/27/2016)
201 MOTION for Extension of Time to File Response/Reply by Navajo Nation Department of Justice. (Belzowski, Katherine) (Entered: 06/03/2016)
202 ORDER granting the Navajo Nation's Motion (Doc. 201 ). FURTHER ORDERED the Navajo Nation may file its reply to Response to Motion to Intervene by close of business on 06/10/16. Signed by Judge Neil V. Wake on 6/3/16. (NKS) (Entered: 06/06/2016)

06/10/2016 203 06/17/2016 204 07/07/2016
205 08/17/2016 206
09/08/2016 207
09/08/2016 208

* REPLY in SUPPORT of 81 Motion to Intervene by Intervenor Defendant Navajo Nation Department of Justice. (Belzowski, Katherine) * Modified to add document linkage on 6/13/2016 (LAD). (Entered: 06/10/2016)
NOTICE re: of Supplemental Authority by Sally Jewell, Kevin Washburn . (Miskinis, Steven) (Entered: 06/17/2016)
NOTICE of Attorney Withdrawal Hyland Hunt filed by Pratik A Shah. (Shah, Pratik) (Entered: 07/07/2016)
NOTICE of Service of Discovery filed by Carol Coghlan Carter, Unknown Party(a married couple; for themselves and on behalf of a class of similarly-situated individuals), Unknown Party(named as J.H., a married couple ), Unknown Party(named as S.H., a married couple), Unknown Party(P.R., a married couple; for themselves and on behalf of a class of similary-situated individuals), Unknown Party(named as M.C., a married couple; for themselves and on behalf of a class of similarly-situated individuals ), Unknown Party(named as K.C., a married couple; for themselves and on behalf of a class of similarly-situated individuals ). (Dynar, Aditya) (Entered: 08/17/2016)
ORDER: On November 18, 2015, the Navajo Nation filed a
Motion to Intervene (Doc. 81 ). After Plaintiffs amended their complaint on April 5, 2016, the Navajo Nation filed an Amended Motion to Intervene (Doc. 198 ). IT IS THEREFORE ORDERED
that the Navajo Nation's initial Motion to Intervene (Doc. 81 ) is denied without prejudice to consideration of the Amended Motion to Intervene (Doc. 198 ). This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (NVW, vg) (Entered: 09/08/2016)
ORDER that oral argument on the Motion of the Gila River Indian
Community to Intervene as Defendant (Doc. 47 ) and the Amended Motion to Intervene by the Navajo Nation (Doc. 198 ) is set for 09/28/16, at 2:30 PM. FURTHER ORDERED that if the Gila River Indian Community or the Navajo Nation would like to waive oral argument on its motion, it may do so by filing notice by 09/16/16. Signed by Senior Judge Neil V. Wake on 9/8/16. (NKS) (Entered: 09/08/2016)

09/12/2016 09/13/2016
09/14/2016 09/27/2016 09/28/2016

209 * MOTION for Issuance of Order for release of certain state appellate records and confidential records in possession of plaintiffs by Sally Jewell, Kevin Washburn. (Attachments: # 1 Text of Proposed Order)(Miskinis, Steven) *Modified on 9/13/2016; document not in compliance of LR 7.1(a)* (REW). (Entered: 09/12/2016)
210 RESPONSE to Motion re: 209 MOTION for Issuance of Order for release of certain state appellate records and confidential records in possession of plaintiffs filed by Carol Coghlan Carter, Ronald Federici, Unknown Party(a married couple; for themselves and on behalf of a class of similarly-situated individuals), Unknown Party(named as J.H., a married couple ), Unknown Party(named as S.H., a married couple), Unknown Party(P.R., a married couple; for themselves and on behalf of a class of similary-situated individuals), Unknown Party(named as M.C., a married couple; for themselves and on behalf of a class of similarly-situated individuals ), Unknown Party(named as K.C., a married couple; for themselves and on behalf of a class of similarly-situated individuals ). (Dynar, Aditya) (Entered: 09/13/2016)
211 RESPONSE to Motion re: 209 MOTION for Issuance of Order for release of certain state appellate records and confidential records in possession of plaintiffs filed by Gregory McKay. (Lento, Gary) (Entered: 09/14/2016)
212 NOTICE OF ATTORNEY APPEARANCE: JoAnn Kintz appearing for Sally Jewell, Kevin Washburn. . (Kintz, JoAnn) (Entered: 09/27/2016)
213 MINUTE ENTRY for proceedings held before Senior Judge Neil V. Wake: Oral Argument held on 09/28/16. Counsel state their respective positions regarding the pending motions to intervene
(Docs. 47 , 198 ). Motions taken under advisement. Written order to follow.
APPEARANCES: Aditya Dynar and Christina M. Sandefur for Plaintiffs. JoAnn L. Kintz and Gary N. Lento for Defendants. Merrill C. Godfrey, Thomas L. Murphy and Katherine C. Belzowski for Movants. (Court Reporter Liz Lemke.) Hearing held 2:37 p.m. to 4:43 p.m. (with a recess from 3:43 to 4:00) This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (NKS) (Entered: 09/28/2016)

09/29/2016 214
09/29/2016 215 09/29/2016
216
09/29/2016 217
09/29/2016 218
09/29/2016 219
09/29/2016 220

TRANSCRIPT REQUEST by Carol Coghlan Carter, Ronald Federici, Unknown Party(a married couple; for themselves and on behalf of a class of similarly-situated individuals), Unknown Party(named as J.H., a married couple ), Unknown Party(P.R., a married couple; for themselves and on behalf of a class of similarysituated individuals), Unknown Party(named as M.C., a married couple; for themselves and on behalf of a class of similarly-situated individuals ), Unknown Party(named as K.C., a married couple; for themselves and on behalf of a class of similarly-situated individuals ), Unknown Party(named as S.H., a married couple) for proceedings held on 9/28/2016, Judge Neil V Wake hearing judge(s). (Dynar, Aditya) (Entered: 09/29/2016)
TRANSCRIPT REQUEST by Gila River Indian Community for proceedings held on 09/28/2016, Judge Neil V Wake hearing judge(s). (Murphy, Thomas) (Entered: 09/29/2016)
ORDER granting for permissive intervention and denying with
respect to intervention of right 47 Defendant Gila River Indian Community's Motion to Intervene and 198 Defendant Navajo Nation's Motion to Intervene. The Clerk is directed to file the Gila River Indian Community's proposed motion to dismiss (lodged as
Doc. 47 -1) and the Navajo Nation's proposed amended motion to dismiss (lodged as Doc. 199 ). Signed by Senior Judge Neil V Wake on 9/29/16. (DXD) (Entered: 09/29/2016)
MOTION to Dismiss for Failure to State a Claim and MOTION to Dismiss for Lack of Jurisdiction by Gila River Indian Community. (DXD) (Entered: 09/29/2016)
AMENDED MOTION to Dismiss for Lack of Jurisdiction and MOTION to Dismiss for Failure to State a Claim by Navajo Nation. (DXD) (Entered: 09/29/2016)
NOTICE TO FILER OF DEFICIENCY re: AO435 214 Transcript Request filed by Unknown Party, Ronald Federici, Carol Coghlan Carter. Item 18 - ORDER: E-mail address not provided where email copy should be sent. FOLLOW-UP ACTION REQUIRED: Please refile and provide an email address for delivery. Deficiency must be corrected within one business day of this notice. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (RAP) (Entered: 09/29/2016)
AMENDED TRANSCRIPT REQUEST pursuant to 219 Notice of Deficiency by Carol Coghlan Carter, Ronald Federici, Unknown

09/30/2016 09/30/2016
10/03/2016 10/05/2016 10/13/2016

Party(a married couple; for themselves and on behalf of a class of similarly-situated individuals), Unknown Party(named as J.H., a married couple ), Unknown Party(P.R., a married couple; for themselves and on behalf of a class of similary-situated individuals), Unknown Party(named as M.C., a married couple; for themselves and on behalf of a class of similarly-situated individuals ), Unknown Party(named as K.C., a married couple; for themselves and on behalf of a class of similarly-situated individuals ), Unknown Party(named as S.H., a married couple) for proceedings held on 9/28/2016, Judge Neil V Wake hearing judge(s). (Dynar, Aditya) (Entered: 09/29/2016)
221 TRANSCRIPT REQUEST by Gregory McKay for proceedings held on 9/29/16, Judge Neil V Wake hearing judge(s). (Lento, Gary) (Entered: 09/30/2016)
222 NOTICE TO FILER OF DEFICIENCY re: AO435 221 Transcript Request filed by Gregory McKay. Item 17 - TRANSCRIPT REQUESTED: No court proceedings were transcribed or recorded for the requested date of proceeding of 09/29/2016. FOLLOW-UP ACTION REQUIRED: Please refile with a valid date of proceeding for transcription in Item 17. Deficiency must be corrected within one business day of this notice. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (RAP) (Entered: 09/30/2016)
223 TRANSCRIPT REQUEST by Gregory McKay for proceedings held on 9/28/16, Judge Neil V Wake hearing judge(s). (Lento, Gary) (Entered: 10/03/2016)
224 NOTICE of Appearance by Wendy Jacobsen Harrison on behalf of Gregory McKay. (Harrison, Wendy) (Entered: 10/05/2016)
227 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of ORAL ARGUMENT proceedings held on 09/28/2016, before Judge Neil V. Wake. (Court Reporter: Elizabeth A. Lemke). The ordering party will have electronic access to the transcript immediately. All others may view the transcript at the court public terminal or it may be purchased through the Court Reporter/Transcriber by filing a Transcript Order Form on the docket before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 11/3/2016. Redacted Transcript Deadline set for 11/14/2016. Release of Transcript Restriction set for 1/11/2017. (RAP) (Entered: 10/14/2016)

10/14/2016 10/14/2016 10/31/2016

225 First MOTION for Extension of Time to File Response/Reply as
to 218 MOTION to Dismiss for Lack of JurisdictionMOTION
to Dismiss for Failure to State a Claim, 217 MOTION to Dismiss for Failure to State a Claim MOTION to Dismiss for Lack of Jurisdiction by Carol Coghlan Carter, Ronald Federici, Unknown Party(a married couple; for themselves and on behalf of a class of similarly-situated individuals), Unknown Party(named as J.H., a married couple ), Unknown Party(P.R., a married couple; for themselves and on behalf of a class of similary-situated individuals), Unknown Party(named as M.C., a married couple; for themselves and on behalf of a class of similarly-situated individuals ), Unknown Party(named as K.C., a married couple; for themselves and on behalf of a class of similarly-situated individuals ), Unknown Party(named as S.H., a married couple). (Attachments: # 1 Text of Proposed Order)(Dynar, Aditya) (Entered: 10/14/2016)
226 ORDER: Before the Court is Plaintiffs' Unopposed First Motion for Extension of Time to Respond to Intervenor-Defendants' Motions to Dismiss (Doc. 225 ). Plaintiffs request that their time to respond to the motions filed September 29, 2016, be extended to October 24, 2016. Because one or more of the grounds asserted in the motions to dismiss is a lack of subject matter jurisdiction, the time schedule for filing and service of responsive memoranda is the same as for motions for summary judgment, i.e., 30 days for a response. LRCiv 12.1(b), 56.1. Therefore, Plaintiffs are not required to file their responses before October 24, 2016. IT IS THEREFORE ORDERED that Plaintiffs' Unopposed First Motion for Extension of Time to Respond to Intervenor-Defendants' Motions to Dismiss (Doc. 225) is denied as unnecessary. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (vg) (Entered: 10/14/2016)
228 MOTION for Leave to File Excess Pages for Plaintiffs' Combined Response to Intervenors' Motions to Dismiss Amended Complaint by Carol Coghlan Carter, Ronald Federici, Unknown Party(a married couple; for themselves and on behalf of a class of similarly-situated individuals), Unknown Party(named as J.H., a married couple ), Unknown Party(P.R., a married couple; for themselves and on behalf of a class of similary-situated individuals), Unknown Party(named as M.C., a married couple; for themselves and on behalf of a class of similarly-situated individuals ), Unknown Party(named as K.C., a married couple; for themselves and on behalf of a class of similarly-situated

10/31/2016 229
11/02/2016 230 11/03/2016 231 11/03/2016
232

individuals ), Unknown Party(named as S.H., a married couple). (Attachments: # 1 Text of Proposed Order)(Dynar, Aditya) (Entered: 10/31/2016)
*Filed at (Doc. 232 LODGED Proposed Plaintiffs' Response to Navajo Nation's Amended Motion to Dismiss and Gila River
Indian Community's Motion to Dismiss re: 218 MOTION to Dismiss for Lack of JurisdictionMOTION to Dismiss for Failure to
State a Claim, 217 MOTION to Dismiss for Failure to State a Claim MOTION to Dismiss for Lack of Jurisdiction. Document to be filed by Clerk if Motion or Stipulation for Leave to File or Amend is granted. Filed by Carol Coghlan Carter, Ronald Federici, Unknown Party(a married couple; for themselves and on behalf of a class of similarly-situated individuals), Unknown Party(named as J.H., a married couple ), Unknown Party(P.R., a married couple; for themselves and on behalf of a class of similary-situated individuals), Unknown Party(named as M.C., a married couple; for themselves and on behalf of a class of similarly-situated individuals ), Unknown Party(named as K.C., a married couple; for themselves and on behalf of a class of similarly-situated individuals ), Unknown Party(named as S.H., a married couple). (Dynar, Aditya) Modified on 11/3/2016 (EJA). (Entered: 10/31/2016)
NOTICE of Appearance by Paul Wesley Spruhan on behalf of Navajo Nation. (Spruhan, Paul) (Entered: 11/02/2016)
ORDER granting 228 Motion for Leave to File Excess Pages. ORDERED directing the Clerk to file Plaintiffs' lodged Response (Doc. 229 ). Signed by Senior Judge Neil V Wake on 11/3/16. (EJA) (Entered: 11/03/2016)
RESPONSE to Motion re: 218 MOTION to Dismiss for Lack of JurisdictionMOTION to Dismiss for Failure to State a Claim
and 217 MOTION to Dismiss for Failure to State a Claim MOTION to Dismiss for Lack of Jurisdiction filed by Carol Coghlan Carter, Ronald Federici, Unknown Party(a married couple; for themselves and on behalf of a class of similarly-situated individuals), Unknown Party(named as J.H., a married couple ), Unknown Party(P.R., a married couple; for themselves and on behalf of a class of similary-situated individuals), Unknown

11/10/2016 233
11/21/2016 234
11/30/2016 235
12/12/2016 236
12/13/2016 237 12/20/2016 238 01/17/2017 239 01/20/2017 240

Party(named as M.C., a married couple; for themselves and on behalf of a class of similarly-situated individuals ), Unknown Party(named as K.C., a married couple; for themselves and on behalf of a class of similarly-situated individuals ), Unknown Party(named as S.H., a married couple). (EJA) (Entered: 11/03/2016)
*REPLY to Response to Motion re: 218 AMENDED MOTION to Dismiss for Failure to State a Claim and MOTION to Dismiss for Lack of Jurisdiction filed by Navajo Nation. (Belzowski, Katherine) *Modified to correct document linkage from Doc. 199 to Doc. 218 on 11/14/2016 (ATD). (Entered: 11/10/2016)
REPLY to Response to Motion re: 217 MOTION to Dismiss for Failure to State a Claim MOTION to Dismiss for Lack of Jurisdiction filed by Gila River Indian Community. (Godfrey, Merrill) (Entered: 11/21/2016)
ORDER that the Federal Defendants' Motion (Doc. 209 ) is granted only to the extent stated in this order and otherwise denied. FURTHER ORDERED that the parties submit by 12/12/16, an agreed form of order to implement this ruling. See order for details. Signed by Senior Judge Neil V. Wake on 11/30/16. (NKS) (Entered: 11/30/2016)
NOTICE re: of submission of proposed order for release of certain state appellate records in accord with the Court's Order of November 30, 2016 by Sally Jewell, Kevin Washburn re: 235 Order on Motion for Issuance . (Attachments: # 1 Text of Proposed Order)(Miskinis, Steven) (Entered: 12/12/2016)
ORDER granting the parties' Motion (Doc. 236 ). See order for complete details. Signed by Senior Judge Neil V. Wake on 12/13/16. (NKS) (Entered: 12/13/2016)
NOTICE re: replacement of 2015 BIA ICWA Guidelines by Sally Jewell, Kevin Washburn . (Miskinis, Steven) (Entered: 12/20/2016)
NOTICE of Service of Discovery filed by Carol Coghlan Carter, Ronald Federici. (Dynar, Aditya) (Entered: 01/17/2017)
*NOTICE of Compliance with Order (Dkt. 237) re: 237 by Gregory McKay . (McBride, Melanie) *Modified on 1/23/2017 to add document linkage (ATD). (Entered: 01/20/2017)

01/20/2017 241 01/20/2017 242
01/23/2017 243 03/16/2017
244
03/16/2017 245 04/24/2017 246

NOTICE re: of Supplemental Authority by Gregory McKay re: 179
MOTION to Dismiss for Lack of JurisdictionMOTION to Dismiss for Failure to State a Claim . (Attachments: # 1 Exhibit 1)(McBride, Melanie) (Entered: 01/20/2017)
*AMENDED DOCUMENT by Gregory McKay. Amendment to 241 Notice (Other) Amended Notice of Supplemental Authority
in Support of Gregory McKay's 179 Motion to Dismiss Plaintiffs' First Amended Civil Rights Complaint for Declaratory, Injunctive, and Other Relief. (Attachments: # 1 Exhibit 1)(McBride, Melanie) *Modified on 1/23/2017 to add document
linkage to Doc. 179 (ATD). (Entered: 01/20/2017)
RESPONSE re: 242 Amended Document (NOT Motion/Complaint) to State Defendant's Notice of Supplemental Authority by Plaintiffs Carol Coghlan Carter, Ronald Federici. (Dynar, Aditya) (Entered: 01/23/2017)
ORDER granting 178 Motion to Dismiss for Lack of
Jurisdiction and Failure to State a Claim; 179 Motion to Dismiss for Lack of Jurisdiction and Failure to State a Claim; 217
Motion to Dismiss for Failure to State a Claim and Lack of
Jurisdiction; 218 Motion to Dismiss for Lack of Jurisdiction and Failure to State a Claim. The First Amended Civil Rights Class Action Complaint for Declaratory, Injunctive, and Other Relief
(Doc. 173 ) is dismissed for lack of standing. The Clerk shall enter judgment dismissing this action without prejudice for lack of jurisdiction and lack of standing. Signed by Senior Judge Neil V Wake on 3/16/17.(DXD) (Entered: 03/16/2017)
***VACATED BY DOC. 253 *** CLERK'S JUDGMENT - IT IS ORDERED AND ADJUDGED that pursuant to the Court's Order filed March 16, 2017, judgment of dismissal is entered without prejudice for lack of jurisdiction and lack of standing. (DXD) Modified on 11/5/2018 (MSA). (Entered: 03/16/2017)
NOTICE OF APPEAL to 9th Circuit Court of Appeals re: 244
Order on Motion to Dismiss/Lack of Jurisdiction, Order on

04/26/2017 05/10/2017
05/15/2017 11/02/2017 11/02/2018 11/05/2018

Motion to Dismiss for Failure to State a Claim, 245 Clerks Judgment by Carol Coghlan Carter, Ronald Federici, Unknown Party(a married couple; for themselves and on behalf of a class of similarly-situated individuals), Unknown Party(named as J.H., a married couple ), Unknown Party(P.R., a married couple; for themselves and on behalf of a class of similary-situated individuals), Unknown Party(named as M.C., a married couple; for themselves and on behalf of a class of similarly-situated individuals ), Unknown Party(named as K.C., a married couple; for themselves and on behalf of a class of similarly-situated individuals ), Unknown Party(named as S.H., a married couple). Filing fee received: $ 505.00, receipt number 0970-14153287. (Dynar, Aditya) (Entered: 04/24/2017)
247 USCA Case Number re: 246 Notice of Appeal, Ninth Circuit Case number 17-15839. (LSP) (Entered: 04/26/2017)
248 APPEAL DOCUMENT by Carol Coghlan Carter, Ronald Federici, Unknown Party(a married couple; for themselves and on behalf of a class of similarly-situated individuals), Unknown Party(named as J.H., a married couple ), Unknown Party(P.R., a married couple; for themselves and on behalf of a class of similary-situated individuals), Unknown Party(named as M.C., a married couple; for themselves and on behalf of a class of similarly-situated individuals ), Unknown Party(named as K.C., a married couple; for themselves and on behalf of a class of similarly-situated individuals ), Unknown Party(named as S.H., a married couple) re: 246 Notice of Appeal Certificate of No Transcript Order. (Dynar, Aditya) (Entered: 05/10/2017)
249 NOTICE of Attorney Withdrawal Melanie G. McBride filed by Gary N Lento. (Lento, Gary) (Entered: 05/15/2017)
250 NOTICE of Attorney Withdrawal of Joshua R. Zimmerman filed by Gary N Lento. (Lento, Gary) (Entered: 11/02/2017)
252 MANDATE of USCA (17-15839) vacating and remanding re: 246 Notice of Appeal filed by Unknown Party, Ronald Federici, Carol Coghlan Carter. (Attachments: # 1 Memorandum, # 2 Order, # 3 Order, # 4 Order)(LAD) (Entered: 11/02/2018)
253 ORDER - Pursuant to the 252 Mandate of the Court of Appeals, the 245 Judgment of March 16, 2017 is vacated. It is further ordered that the Clerk of the Court enter judgment dismissing this action as moot. This case is terminated. Signed by Senior Judge Neil V Wake on 11/5/18. (MSA) (Entered: 11/05/2018)

11/05/2018

254 CLERK'S JUDGMENT - IT IS ORDERED AND ADJUDGED that pursuant to the Court's order filed November 5, 2018, this action is dismissed as moot and the case is terminated. (MSA) (Entered: 11/05/2018)

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 1 Scharf-Norton Center for Constitutional Litigation at the GOLDWATER INSTITUTE
2 Clint Bolick (021684) Aditya Dynar (031583)
3 500 E. Coronado Rd. 4 Phoenix, Arizona 85004
(602) 462-5000 5 litigation@goldwaterinstitute.org

6 COOPER & KIRK, PLLC

7 Michael W. Kirk (pro hac vice to be filed)

8 Brian W. Barnes (pro hac vice to be filed) Harold S. Reeves (pro hac vice to be filed)

9 1523 New Hampshire Ave., N.W.

10

Washington, D.C. 20036 (202) 220-9600

11 (202) 220-9601 (fax)

12 Attorneys for Plaintiffs

13

IN THE UNITED STATES DISTRICT COURT

14

FOR THE DISTRICT OF ARIZONA

15 A.D. and C. by CAROL COGHLAN

16 CARTER, their next friend;

No.

17

S.H. and J.H., a married couple; M.C. and K.C., a married couple;

18 for themselves and on behalf of a class of

similarly-situated individuals,

19

Plaintiffs,

20

vs.

21 KEVIN WASHBURN, in his official

CIVIL RIGHTS

22 capacity as Assistant Secretary of BUREAU CLASS ACTION COMPLAINT

23

OF INDIAN AFFAIRS;

FOR DECLARATORY AND

SALLY JEWELL, in her official capacity as INJUNCTIVE RELIEF

24 Secretary of Interior, U.S. DEPARTMENT

OF THE INTERIOR; 25 GREGORY A. McKAY, in his official

26 capacity as Director of ARIZONA

DEPARTMENT OF CHILD SAFETY,

27

Defendants.

28

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1

INTRODUCTION

2

1. By honoring the moral imperatives enshrined in our Constitution, this nation

3 has successfully shed much of its history of legally sanctioned discrimination on the basis

4 of race or ethnicity. We have seen in vivid, shameful detail how separate treatment is

5 inherently unequal. Brown v. Board of Education, 347 U.S. 483, 495 (1954). There can be

6 no law under our Constitution that creates and applies pervasive separate and unequal

7 treatment to individuals based on a quantum of blood tracing to a particular race or

8 ethnicity. This country committed itself to that principle when it ratified the Fourteenth

9 Amendment and overturned Dred Scott v. Sandford, 60 U.S. 393 (1857), and when it

10 abandoned Plessy v. Ferguson, 163 U.S. 537 (1896).

11

2. In 1994 and again in 1996, Congress recognized that race and ethnicity

12 should play no role in state-approved adoptions when it enacted the Multiethnic Placement

13 Act, Pub. L. 103-382, §§ 551-553, codified at 42 U.S.C. § 5115a (1994), and the

14 Interethnic Placement Act, Pub. L. 104-188, § 1808, codified at 42 U.S.C. §§ 671(a),

15 674(d), 1996b(c) (1996), which forbid discrimination in adoptions and foster care

16 placements.

17

3. Children with Indian ancestry, however, are still living in the era of Plessy

18 v. Ferguson. Alone among American children, their adoption and foster care placements

19 are determined not in accord with their best interests but by their ethnicity, as a result of a

20 well-intentioned but profoundly flawed and unconstitutional federal law, the Indian Child

21 Welfare Act (“ICWA”), codified at 25 U.S.C. §§ 1901-1963.

22

4. This civil rights class action is filed by Plaintiffs baby girl A.D. and baby

23 boy C., by Carol Coghlan Carter, their next friend, and S.H. and J.H., foster/adoptive

24 parents of baby girl A.D., and M.C. and K.C., foster/adoptive parents of baby boy C. They 25 file this action on behalf of themselves and all off-reservation Arizona-resident children 26 with Indian ancestry and all off-reservation Arizona-resident foster, preadoptive, and 27

28

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1 prospective adoptive parents in child custody proceedings involving children with Indian

2 ancestry.

3

5. They seek a declaration by this Court that certain provisions of ICWA, and

4 Guidelines issued by the Bureau of Indian Affairs (BIA), both facially and as applied,

5 violate the United States Constitution. They also seek an injunction from this Court against

6 the application of certain provisions of ICWA and the accompanying BIA Guidelines.

7

JURISDICTION AND VENUE

8

6. This Court has subject matter jurisdiction under 28 U.S.C. § 1331.

9

7. This Court is authorized to grant declaratory and injunctive relief under 5

10 U.S.C. §§ 701 through 706, 28 U.S.C. §§ 2201 and 2202, 42 U.S.C. § 1983, Federal Rules

11 of Civil Procedure (“FRCP”) 57 and 65, and by the general and equitable powers of the
12 federal judiciary.
13 8. Venue is proper under 28 U.S.C. § 1391(b), (e).
14 PARTIES
15 9. Plaintiff A.D. is a citizen of the United States and the State of Arizona, and
16 domiciled in the State of Arizona. Baby girl A.D. is approximately 10 months old. Baby
17 girl A.D., on information and belief, is eligible for membership in, or is already an enrolled
18 member of, the Gila River Indian Community, a federally-recognized tribe. Parental rights
19 of A.D.’s birth parents have already been terminated by the state court properly having
20 jurisdiction over the matter. Baby girl A.D., on information and belief, has more than 50%
21 non-Indian blood.
22 10. Plaintiff C. is a citizen of the United States and the State of Arizona, and
23 domiciled in the State of Arizona. Baby boy C. is almost 5 years old. Baby boy C., on
24
information and belief, is eligible for membership in, or is already an enrolled member of, 25
the Navajo Nation, a federally-recognized tribe. Parental rights of C.’s birth parents have 26
27 already been terminated by the state court properly having jurisdiction over the matter.
28 Baby boy C., on information and belief, has more than 50% Hispanic blood.

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1

11. Carol Coghlan Carter is a citizen of the United States and the State of

2 Arizona, and domiciled in the State of Arizona. She is an attorney licensed to practice in

3 the State of Arizona. She has practiced in the area of family law for several decades. In

4 the course of her legal career, she has represented during all stages of child custody

5 proceedings children, including children with Indian ancestry as their court-appointed

6 guardian-ad-litem; birth parents, including birth parents with Indian ancestry; and

7 foster/adoptive parents, including foster/adoptive parents with Indian ancestry and those

8 in child custody proceedings involving children with Indian ancestry. She is “next friend”

9 to baby girl A.D. and baby boy C. and all off-reservation children with Indian ancestry in

10 the State of Arizona in child custody proceedings. See FRCP 17(c).

11

12. Plaintiffs S.H. and J.H., a married couple, are both citizens of the United

12 States and the State of Arizona, and are residents of and are domiciled in the State of

13 Arizona. Neither S.H. nor J.H. are enrolled members of a tribe or eligible for membership

14 in an Indian tribe. S.H. and J.H. are the only family baby girl A.D. has ever known as she
15 was placed in foster care with them since her birth. Their petition to adopt baby girl A.D.
16 is pending before the state court properly having jurisdiction over the matter.
17 13. Plaintiffs M.C. and K.C., a married couple, are both citizens of the United
18 States and the State of Arizona, and are residents of and are domiciled in the State of
19 Arizona. Neither M.C. nor K.C. are enrolled members of a tribe or eligible for membership
20 in an Indian tribe. M.C. and K.C. have been foster parents to baby boy C. for
21 approximately four years. M.C. and K.C. want to adopt baby boy C.
22
14. Defendant Kevin Washburn is the Assistant Secretary of the Bureau of 23
Indian Affairs (“BIA”). He has primary authority to enforce ICWA and the BIA 24
Guidelines at issue. He is sued in his official capacity only. 25

15. Defendant Sally Jewell is the Secretary of the Interior, United States 26

27 Department of the Interior. The Department of the Interior is the cabinet agency of which

28

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1 BIA is a part and which is assigned enforcement powers under ICWA and Title 25 of

2 United States Code. She is sued in her official capacity only.

3

16. Defendant Gregory A. McKay is the Director of the Arizona Department of

4 Child Safety (“DCS”). The Director has statutory duty under Ariz. Rev. Stat. (“A.R.S.”)

5 § 8-451 et seq. to “protect children.” The Director is also required to “[e]nsure the

6 department’s compliance with the Indian child welfare act of 1978 (P.L. 95-608; 92 Stat.

7 3069; 25 United States Code §§ 1901 through 1963).” A.R.S. § 8-453(A)(20). He is sued

8 in his official capacity only.

9

FACTS COMMON TO ALL CLAIMS

10 I. Baby Girl A.D.

11

17. DCS took baby girl A.D. into protective custody at birth as she was severely

12 drug-exposed due to her biological mother’s ingestion of several controlled substances,

13 and placed her with S.H. and J.H. They have taken care of baby girl A.D. ever since, and

14 although she has some developmental delays due to her exposure to controlled substances,

15 she has shown remarkable recovery from the deleterious effects of second-hand addiction

16 under the loving care of S.H. and J.H.
17 18. A.D.’s biological mother named two possible birth fathers for baby girl A.D.
18 Paternity tests on both ruled out the possibility that they were A.D.’s birth fathers.
19 Consequently, the state court severed parental rights of the birth mother and the absent
20 birth father.
21
19. S.H. and J.H., as foster parents, have taken care of baby girl A.D. since birth. 22
S.H. and J.H., along with their adopted son who has Indian ancestry, are the only family 23

that baby girl A.D. has ever known. The tribe has announced it will likely seek in state 24

court a transfer of the case to tribal court. If their case is transferred, it would force A.D., 25

S.H. and J.H., who do not have any contact with the tribal forum, to submit to that forum’s 26

27 jurisdiction over them. Such transfer and the resulting exercise of jurisdiction, if

28 successful, would be solely based on baby girl A.D.’s race.

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1

20. But for ICWA, A.D. would have been very likely cleared for adoption by

2 S.H. and J.H. If they are awarded adoption, they are willing to provide and encourage

3 appropriate visitation and cultural acclimatization opportunities to A.D.

4 II. Baby Boy C.

5

21. DCS took baby boy C. into protective custody when he was less than one

6 year old when his biological mother was convicted of a non-drug related felony. His birth

7 father is unknown. The birth mother is on record saying she supports baby boy C.’s

8 adoption by M.C. and K.C.

9

22. The relevant state court properly having jurisdiction over the matter has not

10 declared baby boy C. as available for adoption because the Navajo Nation repeatedly has

11 proposed alternative ICWA-compliant placements, all of which have turned out to be
12 inappropriate for placement of baby boy C. Baby boy C.’s extended family members have
13 expressly declined to have him placed with them. Other ICWA-compliant placements the
14 tribe has proposed have declined to have baby boy C. placed with them. The tribe has
15 repeatedly asked for additional opportunities from state court to find other ICWA-
16 compliant placements. Consequently, baby boy C. has continuously remained in foster
17 care with M.C. and K.C. for four years. M.C. and K.C. cannot file a petition for adoption
18 until the state court declares that baby boy C. is available for adoption and that there is
19 good cause to deviate from ICWA’s adoption placement preferences.
20 23. Each time the tribe proposes an ICWA-compliant placement, pursuant to a
21 court-supervised and DCS-supported case plan, M.C. and K.C. have to drive each week
22 with baby boy C., sometimes over 100 miles, to visit with the proposed placement to give
23 baby boy C. an opportunity to bond with the proposed placement until that placement
24
becomes unavailable for any reason. Baby boy C. instinctively wants to call M.C. and 25
K.C. “mommy” and “daddy,” but he is reminded by some proposed placements that M.C. 26
27 and K.C. are not his “mommy” and “daddy.” This has caused significant emotional and
28 psychological harm to baby boy C. who, through no fault of his own, has to leave the

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1 security of his home and visit with strangers solely because he was born with Indian

2 ancestry.

3

24. Due to the application of ICWA, baby boy C. has been languishing in foster

4 care for approximately four years. But for ICWA, baby boy C. would have been very

5 likely cleared for adoption by M.C. and K.C. If they are awarded adoption, they are willing

6 to provide and encourage appropriate visitation and cultural acclimatization opportunities

7 to baby boy C.

8 III. All Plaintiffs

9

25. But for ICWA, a strong likelihood exists that these families – baby girl A.D,

10 S.H. and J.H., and baby boy C., M.C. and K.C. – would be allowed to become permanent

11 under race-neutral Arizona laws permitting individualized evaluation by state court of
12 what is in baby girl A.D. and baby boy C.’s best interests. But under ICWA, these families
13 are subjected to procedural and substantive provisions that are based solely on the race of
14 the children and the adults involved, which lead to severe disruption in their lives contrary
15 to the children’s best interests.
16 26. In many instances, children subject to ICWA are removed from caring,
17 loving homes and forced into placements, which sometimes leads to abuse, psychological
18 harm, or even physical trauma and death.
19 27. In many instances, prospective adoptive parents who otherwise would be
20 allowed to adopt children they have raised since infancy and grown to love are deprived
21 of the opportunity to form permanent families as a result of ICWA.
22 28. In many instances, children are left in abusive or neglectful Indian families
23 where they are subjected to grave physical or psychological harm as a result of ICWA.
24
29. Subjecting these children and families to ICWA creates delay and 25
uncertainty in the journey to permanent family status, and the prospect and reality of 26
27 displacement from stable, loving families causes great harm to children and great distress
28 to prospective adoptive parents.

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1

CLASS ALLEGATIONS

2

30. The named plaintiffs bring this lawsuit on behalf of themselves and a class

3 of all off-reservation Arizona-resident children with Indian ancestry and all off-

4 reservation non-Indian Arizona-resident foster, preadoptive, and prospective adoptive

5 parents in child custody proceedings involving a child with Indian ancestry and who are

6 not members of the child’s extended family.

7

31. The Arizona Department of Child Safety’s semi-annual Report to the

8 Governor for the period of April 1, 2014 through September 30, 2014, attached as Exhibit

9 1 to this Complaint, and available at https://www.azdes.gov/InternetFiles/Reports/pdf/

10 semi_annual_child_welfare_report_apr_sep_2014.pdf (last visited June 25, 2015), reports

11 that as of September 30, 2014 there were 1,336 American Indian children in out-of-home
12 care in Arizona. Id. at 43. The number of foster, preadoptive, and prospective adoptive
13 parents of these children is similarly numerous. Their identities are easily ascertainable
14 through DCS records that are not open for inspection to the public. This putative class is
15 so numerous that joinder of all members is impracticable. See FRCP 23(a)(1).
16 32. There are questions of law or fact common to the class, namely, the facial
17 and as-applied constitutionality of several provisions of ICWA and accompanying
18 Guidelines to the members of the class. See FRCP 23(a)(2).
19 33. The circumstances of baby girl A.D., S.H. and J.H., and baby boy C., M.C.
20 and K.C., are typical of children with Indian ancestry and other foster, preadoptive and
21 prospective adoptive families of children with Indian ancestry. See FRCP 23(a)(3).
22 34. The named plaintiffs will fairly and adequately protect the interests of the
23 class. See FRCP 23(a)(4).
24
35. Plaintiffs’ attorneys are experienced in representing litigants before federal 25
courts. Plaintiffs’ counsel include nationally recognized constitutional lawyers who have 26
27 litigated extensively at every level of the federal judiciary. Plaintiffs’ attorneys are well
28 qualified to be appointed class counsel by this Court.

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1

36. Separate actions by individual class members would create the risk of

2 inconsistent or incompatible standards of conduct for the defendants, and separate actions

3 by individual class members would substantially impair their ability to protect their

4 interests. See FRCP 23(b)(1).

5

37. Defendants have acted or refused to act on grounds that apply generally to

6 the putative class. Thus, final injunctive relief or corresponding declaratory relief is

7 appropriate respecting the class as a whole. See FRCP 23(b)(2).

8

38. Questions of law or fact common to the members of the class predominate

9 over questions affecting individual class members as individual class members are denied

10 equal protection under the law and deprived of their constitutional rights. A class action

11 is superior to other available methods for the fair and efficient adjudication of the
12 controversy, inasmuch as the individual class members are deprived of the same rights.
13 See FRCP 23(b)(3).
14 STATUTORY FRAMEWORK
15 I. Definitions
16 39. ICWA defines “Indian child” as “any unmarried person who is under age
17 eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in
18 an Indian tribe and is the biological child of a member of an Indian tribe” 25 U.S.C. §
19 1903(4). “Indian tribe” is also statutorily defined at 25 U.S.C. § 1903(8).
20 40. Most Indian tribes have only blood quantum or lineage requirements as
21 prerequisites for membership. See Miss. Band of Choctaw Indians Const. art. III, § 1;
22 Cherokee Nation Const. art. IV, § 1; Choctaw Nation of Okla. Const. art. II, § 1; Muscogee
23 (Creek) Nation Const. art. III, § 2; Gila River Indian Community Const. art. III, § 1;
24
Navajo Nation Code § 701; Guidelines for State Courts and Agencies in Indian Child 25
Custody Proceedings, 80 Fed. Reg. 10146, 10153, B.3 (February 25, 2015) (“New 26
27 Guidelines”). Consequently, ICWA’s definition of “Indian child” is based solely on the
28 child’s race or ancestry.

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1

41. Some of the tribes consider individuals with only a tiny percentage of Indian

2 blood to be Indian, even if they have little or no contact or connection with the tribe. See,

3 e.g., Cherokee Nation Const. art. IV, § 1.

4

42. Thus, in many instances, children with only a minute quantum of Indian

5 blood and no connection or ties to the tribe are subject to ICWA and relegated to the tribe’s

6 exclusive or concurrent jurisdiction. See, e.g., Nielson v. Ketchum, 640 F.3d 1117, 1120

7 (10th Cir. 2011) (quoting Chapter 2, Section 11A of the Cherokee Nation Citizenship Act

8 which automatically admits a child as citizen of the Cherokee Nation at birth “for the

9 specific purpose of protecting the rights of the Cherokee Nation under the [ICWA]”

10 (brackets in original)).

11

43. The Guidelines for State Courts and Agencies in Indian Child Custody

12 Proceedings, 80 Fed. Reg. 10146, 10153, B.4(d)(3) (February 25, 2015), state, “In the

13 event the child is eligible for membership in a tribe but is not yet a member of any tribe,

14 the agency should take the steps necessary to obtain membership for the child in the tribe
15 that is designated as the Indian child’s tribe.”
16 44. “Agency” is defined in the New Guidelines as “a private State-licensed
17 agency or public agency and their employees, agents or officials involved in and/or
18 seeking to place a child in a child custody proceeding.” 80 Fed. Reg. at 10151, A.2.
19 45. ICWA defines “child custody proceeding” to include “foster care
20 placement,” “termination of parental rights,” “preadoptive placement,” and “adoptive
21 placement.” 25 U.S.C. § 1903(1).
22
46. “Foster care placement” is defined as “any action removing an Indian child 23
from its parent or Indian custodian for temporary placement in a foster home or institution 24
or the home of a guardian or conservator where the parent or Indian custodian cannot have 25

the child returned upon demand, but where parental rights have not been terminated.” 25 26

27 U.S.C. § 1903(1)(i).

28

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1

47. “Termination of parental rights” is defined as “any action resulting in the

2 termination of the parent-child relationship.” 25 U.S.C. § 1903(1)(ii).

3

48. “Preadoptive placement” is defined as “the temporary placement of an

4 Indian child in a foster home or institution after the termination of parental rights, but prior

5 to or in lieu of adoptive placement.” 25 U.S.C. § 1903(1)(iii).

6

49. “Adoptive placement” is defined as “the permanent placement of an Indian

7 child for adoption, including any action resulting in a final decree of adoption.” 25 U.S.C.

8 § 1903(1)(iv).

9

50. “Child custody proceeding,” as defined, “shall not include a placement

10 based upon an act which, if committed by an adult, would be deemed a crime or upon an

11 award, in a divorce proceeding, of custody to one of the parents.” 25 U.S.C. § 1903(1).
12 II. BIA Guidelines
13 51. The BIA first issued Guidelines in November of 1979. Guidelines for State
14 Courts; Indian Child Custody Proceedings, 44 Fed. Reg. 67584 (November 26, 1979)
15 (“Old Guidelines” or “1979 Guidelines”). On February 25, 2015, the BIA issued new
16 Guidelines to “supersede and replace” the 1979 Guidelines. Guidelines for State Courts
17 and Agencies in Indian Child Custody Proceedings, 80 Fed. Reg. 10146, 10147 (February
18 25, 2015) (“New Guidelines” or “2015 Guidelines”).
19 III. The Jurisdiction-Transfer Provision
20 52. ICWA requires state courts to “transfer” “foster care placement” or
21 “termination of parental rights” “proceeding[s] to the jurisdiction of the tribe” of “an
22 Indian child not domiciled or residing within the reservation of the Indian child’s tribe”
23 “in the absence of good cause to the contrary,” and “absent objection by either parent,” if
24
the “parent or the Indian custodian or the Indian child’s tribe” petitions for such transfer 25
and the tribal court does not decline such transfer. 25 U.S.C. § 1911(b) (“jurisdiction26
27 transfer provision”); 80 Fed. Reg. at 10156, C.2. The New Guidelines, however, state,
28 “The right to request a transfer is available at any stage of an Indian child custody

11 of 29

1 proceeding, including during any period of emergency removal.” 80 Fed. Reg. at 10156,

2 C.1(c) (emphasis added).

3

53. Whereas ICWA’s jurisdiction-transfer provision is available to transfer only

4 foster care placement and termination of parental rights proceedings to the jurisdiction of

5 the tribe, the BIA, in the New Guidelines, extended the jurisdiction-transfer provision to

6 all child custody proceedings.

7

54. “Good cause” to not transfer a foster care placement or termination of

8 parental rights proceeding to tribal court is not defined in ICWA. The New Guidelines,

9 however, state:

10

In determining whether good cause exists, the court may not

11

consider whether the case is at an advanced stage or whether

12

transfer would result in a change in the placement of the child

because the Act created concurrent, but presumptively, tribal

13

jurisdiction over proceedings involving children not residing

14

or domiciled on the reservation, and seeks to protect, not only

the rights of the Indian child as an Indian, but the rights of

15

Indian communities and tribes in retaining Indian children.

16

Thus, whenever a parent or tribe seeks to transfer the case it is

presumptively in the best interest of the Indian child,

17

consistent with the Act, to transfer the case to the jurisdiction

of the Indian tribe. [¶] In addition, in determining whether

18

there is good cause to deny the transfer, the court may not

19

consider: (1) The Indian child’s contacts with the tribe or

reservation; (2) Socio-economic conditions or any perceived

20

inadequacy of tribal or Bureau of Indian Affairs social

21

services or judicial systems; or (3) the tribal court’s

prospective placement for the Indian child.

22

23 80 Fed. Reg. at 10156, C.3(c)-(d).

24

55. Under uniform Arizona law, when deciding whether to transfer a foster care

25 placement or termination of parental rights proceeding to some other jurisdiction, an

26 Arizona state court “that has made a child custody determination” has “exclusive,

27 continuing jurisdiction over the determination until” either one of the two options is true:

28

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1

1. A court of this state determines that neither the child, nor

the child and one parent, nor the child and a person acting as

2

a parent have a significant connection with this state and that

substantial evidence is no longer available in this state

3

concerning the child’s care, protection, training and personal

4

relationships.

2. A court of this state or a court of another state determines

5

that the child, the child’s parents and any person acting as a

6

parent do not presently reside in this state.

7 A.R.S. § 25-1032(A).

8

56. Thus, while Arizona law looks at the litigants’ contacts with the forum in

9 deciding whether to transfer a foster care placement or termination of parental rights

10 proceeding to some other jurisdiction, ICWA and the New Guidelines explicitly instruct

11 courts to not take into account the litigants’ contacts with the tribal forum.

12 IV. The Active Efforts Provision

13

57. Further, ICWA states that “[a]ny party seeking to effect a foster care

14 placement of, or termination of parental rights to, an Indian child under State law shall

15 satisfy the court that active efforts have been made to provide remedial services and

16 rehabilitative programs designed to prevent the breakup of the Indian family and that these

17 efforts have proved unsuccessful.” 25 U.S.C. § 1912(d) (emphasis added) (“active efforts

18 provision”).

19

58. The New Guidelines state: “Active efforts are intended primarily to maintain

20 and reunite an Indian child with his or her family or tribal community and constitute more

21 than reasonable efforts as required by Title IV-E of the Social Security Act (42 U.S.C.

22 671(a)(15)).…‘Active efforts’ are separate and distinct from requirements of the Adoption

23 and Safe Families Act (ASFA), 42 U.S.C. 1305. ASFA’s exceptions to reunification

24 efforts do not apply to ICWA proceedings.” 80 Fed. Reg. at 10150-51, A.2 (emphasis in

25 original).

26

59. DCS, under the active efforts provision, is required to “[i]dentify[], notify[],

27 and invit[e] representatives of the Indian child’s tribe to participate” in the active efforts

28

13 of 29

1 to reunite the Indian child with the child’s “family” and “tribal community.” New

2 Guidelines, 80 Fed. Reg. at 10150, A.2.

3

60. DCS, under the active efforts provision, is required to “[t]ak[e] into account

4 the Indian child’s tribe’s prevailing social and cultural conditions and way of life” even in

5 situations where the child or the child’s parents have never been exposed to or followed

6 the tribe’s prevailing social and cultural conditions or way of life. Id. DCS is also required

7 “to assure cultural connections,” “[s]upport[] regular visits and trial home visits of the

8 Indian child during any period of removal,” and “[o]ffer[] and employ[] all available and

9 culturally appropriate family preservation strategies.” Id.

10

61. The New Guidelines provide details on when the requirement for active

11 efforts begins and what actions an agency and State court must take in order to determine

12 whether a child is an Indian child and how to comply with the active efforts requirement.

13 80 Fed. Reg. at 10152-153, A.3, B.1-B.2, B.4, B.8, D.2.

14 62. The New Guidelines require DCS to “treat the child as an Indian child,
15 unless and until it is determined that the child is not a member or is not eligible for
16 membership in an Indian tribe,” “[i]f there is any reason to believe the child is an Indian
17 child.” 80 Fed. Reg. at 10152, A.3(d).
18 63. The New Guidelines require DCS to engage in active efforts “from the
19 moment the possibility arises that … the Indian child [will] be placed outside the custody
20 of either parent or Indian custodian” and also “while investigating” whether ICWA applies
21 to a particular child. 80 Fed. Reg. at 10152, B.1(a)-(b).
22
64. If a child is suspected to be an Indian child, DCS may be required to provide 23
“[g]enograms or ancestry charts for both parents, … maternal and paternal grandparents 24
and great grandparents or Indian custodians; birthdates; … tribal affiliation including all 25

known Indian ancestry for individuals listed on the charts[.]” New Guidelines, 80 Fed. 26

27 Reg. at 10152, B.2(b)(1)(i).

28

14 of 29

1

65. “In the event the child is eligible for membership in a tribe but is not yet a

2 member of any tribe,” the New Guidelines require DCS to “take the steps necessary to

3 obtain membership for the child in the tribe that is designated as the Indian child’s tribe.”

4 80 Fed. Reg. at 10153, B.4(d)(3).

5

66. In emergency removal situations where DCS “knows or has reason to know”

6 that a child is an Indian child, DCS is required to “[t]reat the child as an Indian child until

7 the court determines that the child is not an Indian child.” New Guidelines, 80 Fed. Reg.

8 at 10155, B.8(c)(1).

9

67. Pursuant to 42 U.S.C. § 671(a)(15), as amended by ASFA, the “reasonable

10 efforts” standard is pervasive under Arizona Law. See, e.g., A.R.S. §§ 8-513 (foster care

11 placement), 8-522 (dependency actions), 8-825 (preliminary protective hearing), 8-829

12 (same), 8-843 (initial dependency hearing), 8-845 (dependency determination), 8-846

13 (same), 8-862 (permanency hearing).

14 68. Whereas “active efforts” are required not only to “maintain and reunite an
15 Indian child with his or her family” but also with the child’s “tribal community,” New
16 Guidelines, 80 Fed. Reg. at 10150, A.2, “reasonable efforts” under Arizona law are
17 required only to maintain and reunite the child with the child’s family. See, e.g., A.R.S. §
18 8-522(E)(3).
19 69. Arizona DCS applies the active efforts provision to children with Indian
20 ancestry, and the “reasonable efforts” provision to all other children. The New Guidelines
21 explicitly state that the active efforts provision is “more than” the reasonable efforts
22
provision. Consequently, children with Indian ancestry are singled out and afforded 23
separate, unequal treatment resulting in delayed resolution of foster care placement and 24
termination of parental rights proceedings of children with Indian ancestry, based solely 25

on their race. 26

27

28

15 of 29

1 V. Burden of Proof in Foster Care Placement Orders

2

70. ICWA further requires that “No foster care placement may be ordered in [an

3 involuntary] proceeding in the absence of a determination, supported by clear and

4 convincing evidence, including testimony of qualified expert witnesses, that the continued

5 custody of the child by the parent or Indian custodian is likely to result in serious emotional

6 or physical damage to the child.” 25 U.S.C. § 1912(e).

7

71. The New Guidelines state: “The court may not issue an order effecting a

8 foster care placement of an Indian child unless clear and convincing evidence is presented,

9 including the testimony of one or more qualified expert witnesses, demonstrating that the

10 child’s continued custody with the child’s parents or Indian custodian is likely to result in

11 serious harm to the child.” 80 Fed. Reg. at 10156, D.3(a).

12

72. Under Arizona law, to take a child into temporary custody, there must be a

13 showing that “reasonable grounds exist to believe that temporary custody is clearly

14 necessary to protect the child from suffering abuse or neglect” and that “probable cause

15 exists to believe” that, inter alia, the child is or will imminently become a victim of abuse

16 or neglect, or is suffering from serious physical or emotional injury. A.R.S. § 8-821(A)-
17 (B); § 8-824(F) (“The petitioner has the burden of presenting evidence as to whether there
18 is probable cause to believe that continued temporary custody is clearly necessary to
19 prevent abuse or neglect pending the hearing on the dependency petition”); A.R.S. § 8-
20 843 (“reasonable efforts” standard in initial dependency hearings); A.R.S. § 8-844
21
(“preponderance of the evidence” standard in dependency adjudication hearings). 22
73. Thus, ICWA requires a showing of clear and convincing evidence whereas 23

Arizona law requires a showing of “reasonable grounds,” “probable cause,” “reasonable 24

efforts,” or “preponderance of the evidence” at various stages of proceedings leading to 25

foster care placement of children. Consequently, ICWA’s higher burden of proof requires 26

27 DCS to disregard to a greater extent the safety and security of children with Indian

28 ancestry based solely on the race of these children.

16 of 29

1 VI. Burden of Proof in Termination of Parental Rights Orders

2

74. ICWA requires that “No termination of parental rights may be ordered in

3 [an involuntary] proceeding in the absence of a determination, supported by evidence

4 beyond a reasonable doubt, including testimony of qualified expert witnesses, that the

5 continued custody of the child by the parent or Indian custodian is likely to result in serious

6 emotional or physical damage to the child.” 25 U.S.C. § 1912(f).

7

75. The New Guidelines state: “The court may not order a termination of

8 parental rights unless the court’s order is supported by evidence beyond a reasonable

9 doubt, supported by the testimony of one or more qualified expert witnesses, that

10 continued custody of the child by the parent or Indian custodian is likely to result in serious

11 harm to the child.” 80 Fed. Reg. at 10156, D.3(b).

12

76. Under Arizona law, “Arizona’s statutes require that the party seeking

13 termination of parental rights establish only the statutory grounds of section 8-533 by clear

14 and convincing evidence and establish the best interests of the child by a preponderance

15 of the evidence.” Kent K. v. Bobby M., 110 P.3d 1013, 1018 (Ariz. 2005) (interpreting

16 A.R.S. §§ 8-533, 8-537).

17

77. Thus, ICWA requires a showing of beyond a reasonable doubt whereas

18 Arizona law requires use of the clear and convincing evidence standard in termination of

19 parental rights proceedings. Consequently, ICWA’s higher burden of proof, which

20 explicitly does not take into account the best interests of the child, places greater burdens

21 on children with Indian ancestry than does Arizona law uniformly applied to all other

22 children. This separate, unequal treatment of children with Indian ancestry is based solely

23 on the child’s race.

24 VII. Foster/Preadoptive Care Placement Preferences

25

78. Under ICWA:

26

In any foster care or preadoptive placement, a preference shall

27

be given, in the absence of good cause to the contrary, to a

28

placement with—

17 of 29

1

(i) a member of the Indian child’s extended family;

(ii) a foster home licensed, approved, or specified by the

2

Indian child’s tribe;

(iii) an Indian foster home licensed or approved by an

3

authorized non-Indian licensing authority; or

4

(iv) an institution for children approved by an Indian tribe or

operated by an Indian organization which has a program

5

suitable to meet the Indian child’s needs.

6 25 U.S.C. § 1915(b) (emphasis added).

7

79. The New Guidelines state:

8

The agency seeking a preadoptive, adoptive or foster care

9

placement of an Indian child must always follow the

10

placement preferences. If the agency determines that any of

the preferences cannot be met, the agency must demonstrate

11

through clear and convincing evidence that a diligent search

12

has been conducted to seek out and identify placement options

that would satisfy the placement preferences specified in

13

sections F.2 or F.3 of these guidelines, and explain why the

preferences could not be met. 14

80 Fed. Reg. at 10157, F.1(b) (emphasis added). 15

80. Although “good cause” to not apply the foster care placement preferences 16

is not defined in ICWA, the New Guidelines state: 17

18

(a) If any party asserts that good cause not to follow the

placement preferences exists, the reasons for such belief or

19

assertion must be stated on the record or in writing and made

20

available to the parties to the proceeding and the Indian child’s

tribe.

21

(b) The party seeking departure from the preferences bears the

22

burden of proving by clear and convincing evidence the

existence of “good cause” to deviate from the placement

23

preferences.

24

(c) A determination of good cause to depart from the

placement preferences must be based on one or more of the

25

following considerations:

(1) The request of the parents, if both parents attest that

26

they have reviewed the placement options that comply with

27

the order of preference.

28

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1

(2) The request of the child, if the child is able to

understand and comprehend the decision that is being made.

2

(3) The extraordinary physical or emotional needs of

the child, such as specialized treatment services that may be

3

unavailable in the community where families who meet the

4

criteria live, as established by testimony of a qualified expert

witness; provided that extraordinary physical or emotional

5

needs of the child does not include ordinary bonding or

6

attachment that may have occurred as a result of a placement

or the fact that the child has, for an extended amount of time,

7

been in another placement that does not comply with the Act.

8

The good cause determination does not include an

independent consideration of the best interest of the Indian

9

child because the preferences reflect the best interests of an

10

Indian child in light of the purposes of the Act. (4) The unavailability of a placement after a showing

11

by the applicable agency in accordance with section F.1, and

a determination by the court that active efforts have been made

12

to find placements meeting the preference criteria, but none

13

have been located. For purposes of this analysis, a placement

may not be considered unavailable if the placement conforms

14

to the prevailing social and cultural standards of the Indian

15

community in which the Indian child’s parent or extended

family resides or with which the Indian child’s parent or

16

extended family members maintain social and cultural ties.

17

(d) The court should consider only whether a placement in accordance with the preferences meets the physical, mental

18

and emotional needs of the child; and may not depart from the

preferences based on the socio-economic status of any

19

placement relative to another placement.

20 80 Fed. Reg. at 10158, F.4 (emphasis added).

21

81. The standard applied to all other children in Arizona is markedly different

22 from the standard applied to children with Indian ancestry. For foster care placements,

23 Arizona courts look at whether there was reasonable evidence to find that placing a child

24 with the foster family instead of an extended family member was in the child’s “best

25 interests.” Antonio M. v. Ariz. Dept. of Econ. Sec., 214 P.3d 1010, 1012 (Ariz. App. 2009). 26
Courts in such situations also give weight to the fact that “the foster parents wished to 27
adopt [the child].” Id. See also Antonio P. v. Ariz. Dept. of Econ. Sec., 187 P.3d 1115, 28

19 of 29

1 1117 (Ariz. App. 2008) (analyzing what is in the child’s best interest in foster care

2 placements and giving weight to the fact that the child had an “undeniabl[y]” “longer

3 relationship” with one placement than with the other).

4 VIII. Adoption Placement Preferences

5

82. Under ICWA,

6

In any adoptive placement of an Indian child under State law,

7

a preference shall be given, in the absence of good cause to

8

the contrary, to a placement with

(1) a member of the child’s extended family;

9

(2) other members of the Indian child’s tribe; or

10

(3) other Indian families.

25 U.S.C. § 1915(a). 11

12

83. The New Guidelines require state courts to follow ICWA’s adoption

13 placement preferences. 80 Fed. Reg. at 10157, F.1(b) (“The agency seeking a[n] …

14 adoptive … placement of an Indian child must always follow the placement preferences”)

15 (emphasis added).

16

84. Although “good cause” to not apply the adoption placement preferences is

17 not defined in ICWA, the New Guidelines, as reproduced above, specifically state that the

18 “good cause determination does not include an independent consideration of the best

19 interest of the Indian child because the preferences reflect the best interests of an Indian

20 child in light of the purposes of the Act.” 80 Fed. Reg. at 10158, F.4.

21

85. Due to the mandatory language of the New Guidelines, there is an inherent

22 conflict between the duty of DCS, an “agency” within the meaning of the New Guidelines,

23 to “protect children” and its application of ICWA to children with Indian ancestry.

24

86. The placement preferences, as applied under the New Guidelines, do not

25 look to the interests-of-the-child factors that state courts have traditionally applied in

26 entering foster care placement, preadoption and adoption orders, and thereby deprive

27

28

20 of 29

1 children with Indian ancestry of an individualized race-neutral determination that all other

2 children enjoy under state law.

3

87. States cannot disregard a child’s unique background in making an

4 individualized and race-neutral foster, preadoptive or adoptive assessment, and in
5 terminating parental rights. But the states cannot also turn a blind eye to the child’s safety,
6 security and best interests based solely on the child’s or the adults’ race, for such action is 7 necessarily based on inherently demeaning, stereotypical assumptions about an 8 individual’s race or culture. Although the court did not reach constitutional issues, a core 9 premise of the Baby Veronica decision, Adoptive Couple v. Baby Girl, __ U.S. __, 133 S. 10 Ct. 2552 (2013), was that ICWA cannot force a child to create a racially-conforming 11 relationship and that a child should not be made to sever existing relationships in order to 12 create new racially-conforming ones. 13

14

CLAIMS FOR RELIEF

15 COUNT 1 – VIOLATION OF THE EQUAL PROTECTION GUARANTEE OF

16

THE FIFTH AMENDMENT

88. Plaintiffs reallege, adopt and incorporate by reference the preceding 17

paragraphs as though fully set forth herein. 18

19

89. The jurisdiction-transfer provision, 25 U.S.C. § 1911(b), New Guidelines at

20 §§ C.1, C.2, C.3, is based solely on the race of the child and the adults involved.

21

90. The active efforts provision, 25 U.S.C. § 1912(d), New Guidelines at §§

22 A.2, A.3, B.1, B.2, B.4, B.8, D.2, creates a separate set of procedures for children with

23 Indian ancestry and all other children based solely on the child’s race.

24

91. The clear and convincing evidence burden of proof in foster care placement

25 orders under ICWA, 25 U.S.C. § 1912(e), New Guidelines at § D.3, that is applicable to

26 children with Indian ancestry as compared to Arizona’s demonstrably lesser burden of

27 proof that is applicable to all other children is a legally required, unequal treatment of

28

21 of 29

1 children with Indian ancestry. Government cannot treat the safety and security of children

2 with Indian ancestry less seriously than the safety and security of all other children.

3

92. The beyond a reasonable doubt burden of proof in termination of parental

4 rights proceedings under ICWA, 25 U.S.C. § 1912(f), New Guidelines at § D.3, that is

5 applicable to children with Indian ancestry as compared to Arizona’s demonstrably lesser

6 burden of proof that is applicable to all other children is a legally required separate,

7 unequal treatment of children with Indian ancestry. Government cannot treat the best

8 interests of children with Indian ancestry differently and less seriously than those of all

9 other children.

10

93. The foster/preadoptive and adoption placement preferences under ICWA,

11 25 U.S.C. §§ 1915(b), (a), New Guidelines at §§ F.1, F.2, F.3, F.4, single out and treat
12 differently children with Indian ancestry. They also single out and treat differently the
13 non-Indian adults involved in the care and upbringing of children with Indian ancestry.
14 94. The jurisdiction-transfer provision, active efforts provision, burden of proof
15 in foster care placement orders provision, burden of proof in termination of parental rights
16 orders provision, foster/preadoptive care placement preferences provision, and the
17 adoption placement preferences provision of ICWA, and New Guidelines, all subject
18 Plaintiffs to unequal treatment under the law based solely on the race of the child and the
19 adults involved and are therefore unconstitutional under the equal protection guarantee of
20 the Fifth Amendment.
21 95. Because the foregoing provisions of ICWA and the New Guidelines do not
22 serve a compelling governmental purpose in a narrowly tailored fashion, they violate the
23
equal protection guarantee of the Fifth Amendment. 24

25 COUNT 2 – VIOLATION OF THE DUE PROCESS GUARANTEE OF THE
FIFTH AMENDMENT 26
96. Plaintiffs reallege, adopt and incorporate by reference the preceding 27
paragraphs as though fully set forth herein. 28

22 of 29

1

97. The jurisdiction-transfer provision forces Plaintiffs to submit to the personal

2 jurisdiction of a forum with which they have no contacts or ties.

3

98. The jurisdiction-transfer provision, 25 U.S.C. § 1911(b), New Guidelines at

4 §§ C.1, C.2, C.3, disregards well-established Supreme Court pronouncements which

5 require minimum contacts between the forum and the litigant for the forum to

6 constitutionally exercise specific or general personal jurisdiction over the litigant, and are

7 therefore, unconstitutional under the due process guarantee of the Fifth Amendment. See

8 Int’l Shoe Co. v. Washington, 326 U.S. 310 (1945); World-Wide Volkswagen Corp. v.

9 Woodson, 444 U.S. 286 (1980); Helicoptores Nationales de Colombia v. Hall, 466 U.S.

10 408 (1984); Asahi Metal Industry Co. v. Superior Court, 480 U.S. 102 (1987).

11

99. Every child and adult deserves an individualized, race-neutral determination

12 under uniform standards when courts make foster/preadoptive care and adoption

13 placement decisions. ICWA’s foster/preadoptive care placement preferences provision,

14 25 U.S.C. § 1915(b), the adoption placement preferences provision, 25 U.S.C. § 1915(a),

15 and New Guidelines at §§ F.1, F.2, F.3, F.4, violate the substantive due process rights of

16 children with Indian ancestry, and those of adults involved in their care and upbringing
17 who have an existing family-like relationship with the child. See Troxel v. Granville, 530
18 U.S. 57, 88 (2000) (Stevens, J., dissenting); Roberts v. U.S. Jaycees, 468 U.S. 609, 618
19 (1984); Smith v. Org. of Foster Families for Equality & Reform, 431 U.S. 816, 844 (1977);
20 In re Santos Y., 92 Cal. App. 4th 1274, 1314-1317 (Cal. App. 2001); In re Bridget R., 41
21
Cal. App. 4th 1483, 1503-1504 (Cal. App. 1996); In re Jasmon O., 878 P.2d 1297, 1307 22
(Cal. 1994). 23

100. Any determination regarding removal of a child from home, termination of 24

parental rights, foster care placement, or adoption placement must take into account the 25

child’s best interests. The failure of ICWA as applied by the BIA Guidelines to adequately 26

27 consider the child’s best interests deprives the class of plaintiff children of liberty without

28 due process of law in violation of the Fifth Amendment.

23 of 29

1

2

COUNT 3 - VIOLATION OF THE SUBSTANTIVE DUE PROCESS AND

EQUAL PROTECTION CLAUSES OF THE FOURTEENTH AMENDMENT

3 101. Plaintiffs reallege, adopt and incorporate by reference the preceding

4 paragraphs as though fully set forth herein.

5 102. Defendant McKay, pursuant to his statutory duty to “[e]nsure the

6 department’s compliance with the Indian child welfare act,” A.R.S. § 8-453(A)(20),
7 complies with and enforces provisions of the Indian Child Welfare Act in Arizona.
8 103. Defendant McKay complies with and enforces the active efforts provision,
9 25 U.S.C. § 1912(d), New Guidelines at §§ A.2, A.3, B.1, B.2, B.4, B.8, D.2, in Arizona.
10 104. Defendant McKay complies with and enforces the clear and convincing
11
evidence burden of proof in foster care placements under ICWA, 25 U.S.C. § 1912(e), 12
New Guidelines at § D.3, in Arizona. 13

105. Defendant McKay complies with and enforces the beyond a reasonable 14

doubt burden of proof in termination of parental rights proceedings under ICWA, 25 15

U.S.C. § 1912(f), New Guidelines at § D.3, in Arizona. 16

17

106. Defendant McKay complies with and enforces the foster/preadoptive and

18 adoptive placement preferences under ICWA, 25 U.S.C. § 1915(b), (a), New Guidelines

19 at §§ F.1, F.2, F.3, F.4, A.R.S. §§ 8-105.01(B), 8-514(C), in Arizona.

20

107. Defendant McKay’s compliance with and enforcement of these provisions

21 subjects Plaintiffs to unequal treatment under color of state and federal law based solely

22 on the race of the child and the adults involved and therefore deprives Plaintiffs of equal

23 protection of the law under the Equal Protection Clause of the Fourteenth Amendment.

24 See 42 U.S.C. § 1983.

25

108. Defendant McKay’s compliance with and enforcement of the

26 foster/preadoptive and adoptive placement preferences under state law and ICWA, 25

27 U.S.C. § 1915(b), (a), New Guidelines at §§ F.1, F.2, F.3, F.4, violate the substantive due

28 process rights of children with Indian ancestry, and those of adults involved in their care

24 of 29

1 and upbringing who have an existing family-like relationship with the child. Defendant

2 McKay’s failure to adequately consider the child’s best interests deprives the class of

3 plaintiff children of liberty without due process of law in violation of the Fourteenth

4 Amendment. See 42 U.S.C. § 1983.

5

6 COUNT 4 – THE INDIAN CHILD WELFARE ACT EXCEEDS THE FEDERAL

GOVERNMENT’S POWER UNDER THE INDIAN COMMERCE CLAUSE AND

7

THE TENTH AMENDMENT.

8

109. Plaintiffs reallege, adopt and incorporate by reference the preceding

9 paragraphs as though fully set forth herein.

10

110. A child with Indian ancestry is not an item of commerce, nor an

11 instrumentality of commerce, nor tangible personal property the possession of which by

12 federally-recognized Indian tribes promotes “Indian self-government.” Morton v.

13 Mancari, 417 U.S. 535, 555 (1974). Nor is a federal law dealing with child custody

14 proceedings “tied rationally to the fulfillment of Congress’ unique obligation toward the
15 Indians.” Id.; Rice v. Cayetano, 528 U.S. 495 (2000). Indeed, the BIA and the Department
16 of the Interior’s position is that “ICWA and these regulations or any associated Federal
17 guidelines do not apply to … [t]ribal court proceedings[.]” Notice of Proposed
18 Rulemaking, Regulations for State Courts and Agencies in Indian Child Custody
19 Proceedings, 80 Fed. Reg. 14880, 14887, § 23.103(e) (March 20, 2015); New Guidelines,
20 80 Fed. Reg. at A.3(e) (same). See Adoptive Couple v. Baby Girl, __ U.S. __, 133 S. Ct.
21 2552, 2566-2570 (2013) (Thomas, J., concurring).
22 111. Congress cannot commandeer state resources to achieve federal policy
23 objectives or commandeer state officers to execute federal laws. Printz v. United States,
24 521 U.S. 898 (1997). ICWA impermissibly commandeers state courts and state agencies
25 to act as investigative and adjudicatory arms of the federal government or Indian tribes.
26 ICWA impermissibly commandeers state courts and state agencies to apply, enforce, and
27

28

25 of 29

1 implement an unconstitutional federal law. Dodds v. Richardson, 614 F.3d 1185, 1195-

2 1196 & n.3 (10th Cir. 2010); Ariz. Const. art. II, § 3.

3

112. Child custody proceedings and domestic relations matters are a “virtually

4 exclusive province of the States” under the Tenth Amendment upon which the federal

5 government cannot intrude. Sosna v. Iowa, 419 U.S. 393, 404 (1975).

6

113. ICWA displaces inherent state jurisdiction over specified child welfare,

7 custody, and adoption proceedings and therefore violates the Tenth Amendment. Adoptive

8 Couple v. Baby Girl, 133 S. Ct. at 2566 (Thomas, J., concurring).

9

COUNT 5 – VIOLATION OF ASSOCIATIONAL FREEDOMS UNDER THE

10

FIRST AMENDMENT

11

114. Plaintiffs reallege, adopt and incorporate by reference the preceding

12 paragraphs as though fully set forth herein.

13

115. By virtue of ICWA, the tribes make the primary determination whether

14 children with a specified blood quantum will be brought within their jurisdiction and

15 control.

16

116. Many children who are subject to ICWA have few, if any, ties to the tribe

17 upon which ICWA confers jurisdiction over them. Some but not all are members of the

18 tribes but do not thereby consent to surrender their constitutional rights. Some are enrolled

19 in the tribes as a result of the mandates of ICWA and the New Guidelines. Others are not
20 members and have virtually no connection to the tribes other than a prescribed blood
21 quantum. See New Guidelines, 80 Fed. Reg. at 10153, B.4(d)(3).
22 117. By operation of ICWA, Plaintiff children like baby girl A.D. and baby boy
23 C. are forced to associate with tribes and tribal communities and be subject to tribal
24 jurisdiction often against their will and/or contrary to their best interests. See id. at 10150,
25 A.2 (active efforts required to reunify an Indian child not only with the child’s family but
26
also with the child’s tribe). 27

28

26 of 29

1

118. This forced association violates Plaintiffs’ freedom of association, which

2 encompasses the freedom not to associate under the First Amendment. Boy Scouts of

3 America v. Dale, 530 U.S. 640 (2000); Knox v. Service Employees Int’l Union, Local

4 1000, __ U.S. __, 132 S. Ct. 2277 (2012).

5 COUNT 6 – UNLAWFUL AGENCY ACTION
6 119. Plaintiffs reallege, adopt and incorporate by reference the preceding
7 paragraphs as though fully set forth herein.
8 120. Whereas ICWA’s jurisdiction-transfer provision is available to transfer only
9 foster care placement and termination of parental rights proceedings to the jurisdiction of
10 the tribe, 25 U.S.C. § 1911(b), the New Guidelines state, “The right to request a transfer
11
is available at any stage of an Indian child custody proceeding, including during any 12
period of emergency removal.” 80 Fed. Reg. at 10156, C.1(c) (emphasis added). Further, 13
the New Guidelines instruct state courts that they “must transfer” all child custody 14
proceedings if the parent does not object to the transfer, the tribal court does not decline, 15

and there is no good cause to deny transfer. New Guidelines, 80 Fed. Reg. 10156, C.2, 16

17 C.3.

18

121. BIA’s enlargement of the jurisdiction-transfer provision, 25 U.S.C. §

19 1911(b), New Guidelines at C.1, C.2, C.3, making the provision available during

20 preadoptive placement and adoptive placement proceedings, clearly contradicts the

21 statutory provision. See 25 U.S.C. § 1903(1) (definitions).

22

122. BIA overstepped its authority by extending, in the New Guidelines, the

23 jurisdiction-transfer provision to all child custody proceedings. Such extension, which

24 directly contradicts a Congress-enacted provision, harms children in cases where parental

25 rights have been terminated. It gives tribes the “right to request a transfer,” 80 Fed. Reg.

26 at 10156, C.1(c), in cases where Congress expressly did not give tribes a right to request

27 transfer.

28

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1

123. Such agency action is unlawful, in excess of statutory authority, and not in

2 accordance with law. 5 U.S.C. § 706; see American Federation of Govt. Employees, AFL-

3 CIO, Local 3669 v. Shinseki, 821 F. Supp. 2d 337 (D.D.C. 2011), affirmed by, 709 F.3d

4 29 (D.C. Cir. 2012).

5

REQUEST FOR RELIEF

6

Consequently, Plaintiffs respectfully request that the Court:

7

A. Certify the Plaintiff class as defined.

8

B. Declare that provisions of the Indian Child Welfare Act, specifically, 25

9 U.S.C. §§ 1911(b), 1912(d), 1912(e), 1912(f), 1915(a), 1915(b), and the New Guidelines,
10 §§ A.2, A.3, B.1, B.2, B.4, B.8, C.1, C.2, C.3, D.2, D.3, F.1, F.2, F.3, F.4, violate the
11 United States Constitution both facially and as applied to Plaintiffs and others similarly
12 situated.
13 C. Permanently enjoin Defendant Washburn and Defendant Jewell from
14 enforcing these provisions of the Indian Child Welfare Act and the New Guidelines.
15 D. Permanently enjoin Defendant McKay from complying with and enforcing
16 these unconstitutional provisions of the Indian Child Welfare Act, the New Guidelines,
17 and state law.
18 E. Hold unlawful and set aside New Guidelines, §§ C.1, C.2, C.3 under 5
19 U.S.C. § 706.
20 F. Award Plaintiffs their reasonable attorneys’ fees, litigation expenses and
21 costs, pursuant to 28 U.S.C. § 2412 (Equal Access to Justice Act) and 42 U.S.C. § 1988
22 (Civil Rights Act), and other applicable law.
23 G. Grant such other relief as the Court may deem just and proper.
24

25 [Remainder of the page intentionally left blank.]
26

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1 RESPECTFULLY SUBMITTED this 6th day of July, 2015 by:

2

3

/s/ Clint Bolick______________

Clint Bolick (021684)

4

Aditya Dynar (031583)

Scharf-Norton Center for Constitutional Litigation

5

at the GOLDWATER INSTITUTE

6

Michael W. Kirk (pro hac vice to be filed)

7

Brian W. Barnes (pro hac vice to be filed)

8

Harold S. Reeves (pro hac vice to be filed)

COOPER & KIRK, PLLC

9

10

Attorneys for Plaintiffs

11

12

13

14

15

16

17

18

19

20

21

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24

25

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 Case 2:15-cv-01259-NVW Document 173 Filed 04/05/16 Page 1 of 108

Scharf-Norton Center for Constitutional Litigation at the 1 GOLDWATER INSTITUTE
Aditya Dynar (031583) 2 500 E. Coronado Rd.
Phoenix, Arizona 85004 3 (602) 462-5000
litigation@goldwaterinstitute.org 4
COOPER & KIRK, PLLC 5 Michael W. Kirk (admitted pro hac vice)
Brian W. Barnes (admitted pro hac vice) 6 Harold S. Reeves (admitted pro hac vice)
1523 New Hampshire Ave., N.W. 7 Washington, D.C. 20036
(202) 220-9600 8 (202) 220-9601 (fax)
Attorneys for Plaintiffs 9

10

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

11

12 A.D., C.C., L.G., and C.R., by CAROL COGHLAN CARTER, and DR. RONALD No. CV-15-1259-PHX-NVW

13 FEDERICI, their next friends;

14

S.H. and J.H., a married couple; M.C. and K.C., a married couple;

15 K.R. and P.R., a married couple;

FIRST AMENDED CIVIL RIGHTS

for themselves and on behalf of a class of 16 similarly-situated individuals,

CLASS ACTION COMPLAINT FOR DECLARATORY,

17

Plaintiffs,

INJUNCTIVE, AND OTHER

18

vs.

RELIEF

19 KEVIN WASHBURN, in his official

20

capacity as Assistant Secretary of Indian Affairs, BUREAU OF INDIAN AFFAIRS;

21 SALLY JEWELL, in her official capacity as

Secretary of the Interior, U.S. 22 DEPARTMENT OF THE INTERIOR;

23 GREGORY A. McKAY, in his official

capacity as Director of ARIZONA 24 DEPARTMENT OF CHILD SAFETY,

25

Defendants.

26

27

28

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Case 2:15-cv-01259-NVW Document 173 Filed 04/05/16 Page 2 of 108

1

INTRODUCTION

2

1. By honoring the moral imperatives enshrined in our Constitution, this nation

3 has successfully shed much of its history of legally sanctioned discrimination on the basis

4 of race or ethnicity. We have seen in vivid, shameful detail how separate treatment is

5 inherently unequal. Brown v. Board of Education, 347 U.S. 483, 495 (1954). There can be

6 no law under our Constitution that creates and applies pervasive separate and unequal

7 treatment to individuals based on a quantum of blood tracing to a particular race or

8 ethnicity. This country committed itself to that principle when it ratified the Fourteenth

9 Amendment and overturned Dred Scott v. Sandford, 60 U.S. 393 (1857), and when it

10 abandoned Plessy v. Ferguson, 163 U.S. 537 (1896).

11

2. In 1994 and again in 1996, Congress recognized that race and ethnicity

12 should play no role in state-approved adoptions when it enacted the Multiethnic Placement

13 Act, Pub. L. 103-382, §§ 551–553, codified at 42 U.S.C. § 5115a (1994), and the

14 Interethnic Placement Act, Pub. L. 104-188, § 1808, codified at 42 U.S.C. §§ 671(a),

15 674(d), 1996b (1996), which forbid discrimination in adoptions and foster care

16 placements.

17

3. Children with Indian ancestry, however, are still living in the era of Plessy

18 v. Ferguson. Alone among American children, their adoption and foster care placements

19 are determined not in accord with their best interests but by their ethnicity, as a result of a

20 well-intentioned but profoundly flawed and unconstitutional federal law, the Indian Child

21 Welfare Act (“ICWA”), codified at 25 U.S.C. §§ 1901–1963.

22

4. This civil rights class action is filed by Plaintiffs baby girl A.D., baby boy

23 C.C., baby girl L.G., and baby boy C.R., by Carol Coghlan Carter and Dr. Ronald Federici,

24 their next friends, and S.H. and J.H., foster/adoptive parents of baby girl A.D., M.C. and

25 K.C., adoptive parents of baby boy C.C., and P.R. and K.R., foster/adoptive parents of

26 baby girl L.G. and baby boy C.R. They file this action on behalf of themselves and all off-

27 reservation Arizona-resident children with Indian ancestry and all off-reservation

28

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Case 2:15-cv-01259-NVW Document 173 Filed 04/05/16 Page 3 of 108

1 Arizona-resident foster, preadoptive, and prospective adoptive parents in child custody

2 proceedings involving children with Indian ancestry.

3

5. They seek a declaration by this Court that certain provisions of ICWA, and

4 Guidelines issued by the Bureau of Indian Affairs (BIA), both facially and as applied,

5 violate the United States Constitution. They also seek an injunction from this Court against

6 the application of certain provisions of ICWA and the accompanying BIA Guidelines, and

7 nominal damages under Title VI of the Civil Rights Act (42 U.S.C. § 2000d–2000d-7).

8

JURISDICTION AND VENUE

9

6. This Court has subject matter jurisdiction under 28 U.S.C. § 1331.

10

7. This Court is authorized to grant declaratory and injunctive relief under 5

11 U.S.C. §§ 701 through 706, 28 U.S.C. §§ 2201 and 2202, 42 U.S.C. § 1983, Federal Rules

12 of Civil Procedure (“FRCP”) 57 and 65, and by the general and equitable powers of the

13 federal judiciary. This Court is authorized to grant nominal damages, and declaratory and

14 injunctive relief under Title VI of the Civil Rights Act (42 U.S.C. §§ 2000d–2000d-7).

15

8. Venue is proper under 28 U.S.C. § 1391(b), (e).

16

PARTIES

17

9. Plaintiff A.D. is a citizen of the United States and the State of Arizona, and

18 domiciled in the State of Arizona. Baby girl A.D. is approximately 1 year and 6 months

19 old. Baby girl A.D. is an enrolled member of the Gila River Indian Community, a

20 federally-recognized tribe. Parental rights of A.D.’s birth parents have already been

21 terminated by the state court properly having jurisdiction over the matter. Baby girl A.D.,

22 on information and belief, has more than 50% non-Indian blood.

23

10. Plaintiff C.C. is a citizen of the United States and the State of Arizona, and

24 domiciled in the State of Arizona. Baby boy C.C. is 5 years old. Baby boy C.C is an

25 enrolled member of the Navajo Nation, a federally-recognized tribe. Parental rights of

26 C.C.’s birth parents were terminated by the state court properly having jurisdiction over

27 the matter. Adoption of C.C. by M.C. and K.C. was finalized by the state court properly

28

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1 having jurisdiction over the matter in November, 2015. Baby boy C.C., on information

2 and belief, has more than 50% Hispanic blood.

3

11. Plaintiff L.G. is a citizen of the United States and of the State of Arizona,

4 and domiciled in the State of Arizona. Baby girl L.G. is approximately 3.5 years old.

5 Baby girl L.G., on information and belief, is not eligible for membership in the Pascua

6 Yaqui Tribe of Arizona, a federally-recognized tribe. Parental rights of L.G.’s birth

7 parents have not been terminated by the state court properly having jurisdiction over the

8 matter. Baby girl L.G., on information and belief, has more than 50% non-Indian blood.

9

12. Plaintiff C.R., baby girl L.G.’s half-sibling, is a citizen of the United States

10 and of the State of Arizona, and domiciled in the State of Arizona. Baby boy C.R. is

11 approximately 1.5 years old. Baby boy C.R., on information and belief, is eligible for

12 membership in and is a child of a member of, or is already an enrolled member of, the

13 Gila River Indian Community, a federally-recognized tribe. Parental rights of C.R.’s birth

14 parents have not been terminated by the state court properly having jurisdiction over the

15 matter. Baby boy C.R., on information and belief, has more than 50% non-Indian blood.

16

13. Carol Coghlan Carter is a citizen of the United States and the State of

17 Arizona, and domiciled in the State of Arizona. She is an attorney licensed to practice in

18 the State of Arizona. She has practiced in the area of family law for several decades. In

19 the course of her legal career, she has represented during all stages of child custody

20 proceedings children, including children with Indian ancestry as their court-appointed

21 guardian-ad-litem; birth parents, including birth parents with Indian ancestry; and

22 foster/adoptive parents, including foster/adoptive parents with Indian ancestry and those

23 in child custody proceedings involving children with Indian ancestry. She is “next friend”

24 to baby girl A.D., baby boy C.C., baby girl L.G., and baby boy C.R., and all off-reservation

25 children with Indian ancestry in the State of Arizona in child custody proceedings. See

26 FRCP 17(c).

27

14. Dr. Ronald Federici is a citizen of the United States and the State of Virginia,

28 and domiciled in the State of Virginia. He is a clinical neuropsychologist and clinical

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1 psychopharmacologist. He has over two decades of experience completing complex

2 neuropsychiatric evaluations of adults and children. He is a professional consultant to

3 physicians, schools, mental health clinics, pediatric and adolescent medicine clinics. He

4 has served as an expert witness in child custody proceedings throughout the United States

5 and abroad. He conducts training and education in Clinical Neuropsychology throughout

6 the United States, and in Europe, Eastern Europe, United Kingdom, Australia, Canada,

7 Iceland, and China. He serves as President of the Care for Children International, Inc.,

8 which is a humanitarian aid organization providing medical care, supplies, training and

9 education to the Romanian Department of Child Protective Services. A short documentary

10 on Dr. Federici’s work in Romania is available at

11 https://www.youtube.com/watch?v=AC37HlWlP1I (last visited February 18, 2016). He is

12 “next friend” to baby girl A.D., baby boy C.C., baby girl L.G., and baby boy C.R., and all

13 off-reservation children with Indian ancestry in the State of Arizona in child custody

14 proceedings. See FRCP 17(c).

15

15. Plaintiffs S.H. and J.H. are foster/preadoptive parents of baby girl A.D.

16 Plaintiffs S.H. and J.H., a married couple, are both citizens of the United States and the

17 State of Arizona, and are residents of and are domiciled in the State of Arizona. Neither

18 S.H. nor J.H. are enrolled members of a tribe or eligible for membership in an Indian tribe.

19 S.H. and J.H. are the only family baby girl A.D. has ever known as she was placed in

20 foster care with them since her birth. Their petition to adopt baby girl A.D. is pending

21 before the state court properly having jurisdiction over the matter.

22

16. Plaintiffs M.C. and K.C., a married couple, are both citizens of the United

23 States and the State of Arizona, and are residents of and are domiciled in the State of

24 Arizona. Neither M.C. nor K.C. are enrolled members of a tribe or eligible for membership

25 in an Indian tribe. M.C. and K.C. were foster parents to baby boy C.C. for approximately

26 four years. M.C. and K.C. adopted baby boy C.C. in November, 2015.

27

17. Plaintiffs K.R. and P.R. are foster parents of baby girl L.G. and baby boy

28 C.R. Plaintiffs K.R. and P.R., a married couple, are both citizens of the United States and

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1 the State of Arizona, and are residents of and are domiciled in the State of Arizona. Neither

2 K.R. nor P.R. are enrolled members of a tribe or eligible for membership in an Indian

3 tribe. K.R. and P.R. are the only family baby boy C.R. has ever known as he was placed

4 in foster care with them since birth. K.R. and P.R. have been foster parents to baby girl

5 L.G. and baby boy C.R. for approximately 1.5 years and want to adopt L.G. and C.R.

6

18. Defendant Kevin Washburn is the Assistant Secretary of Indian Affairs of

7 the Bureau of Indian Affairs (“BIA”). He has primary authority to enforce ICWA and the

8 BIA Guidelines at issue. He is sued in his official capacity only.

9

19. Defendant Sally Jewell is the Secretary of the Interior, United States

10 Department of the Interior. The Department of the Interior is the cabinet agency of which

11 BIA is a part and which is assigned enforcement powers under ICWA and Title 25 of

12 United States Code. She is sued in her official capacity only.

13

20. Defendant Gregory A. McKay is the Director of the Arizona Department of

14 Child Safety (“DCS”). The Director has statutory duty under Ariz. Rev. Stat. (“A.R.S.”)

15 § 8-451 et seq. to “protect children.” The Director is also required to “[e]nsure the

16 department’s compliance with the Indian child welfare act of 1978 (P.L. 95-608; 92 Stat.

17 3069; 25 United States Code §§ 1901 through 1963).” A.R.S. § 8-453(A)(20). He is sued

18 in his official capacity only.

19

FACTS COMMON TO ALL CLAIMS

20 I. Baby Girl A.D.

21

21. DCS took baby girl A.D. into protective custody at birth as she was severely

22 drug-exposed due to her biological mother’s ingestion of several controlled substances,

23 and placed her with S.H. and J.H. They have taken care of baby girl A.D. ever since, and

24 although she has some developmental delays due to her exposure to controlled substances,

25 she has shown remarkable recovery from the deleterious effects of second-hand addiction

26 under the loving care of S.H. and J.H.

27

22. A.D.’s biological mother named two possible birth fathers for baby girl A.D.

28 Paternity tests on both ruled out the possibility that they were A.D.’s birth fathers.

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1 Consequently, the state court severed parental rights of the birth mother and the absent

2 birth father.

3

23. S.H. and J.H., as foster parents, have taken care of baby girl A.D. since birth.

4 S.H. and J.H., along with their adopted son who has Indian ancestry, are the only family

5 that baby girl A.D. has ever known. The tribe sought in state court a transfer of the case

6 to tribal court. The state juvenile court denied the tribe’s motion to transfer jurisdiction to

7 tribal court and the tribe appealed. That appeal is now pending in the Arizona Court of

8 Appeals Case No. JV16-0038. If the appellate court reverses the state trial court’s decision

9 and their case is transferred to tribal court, it would force A.D., S.H. and J.H., who do not

10 have any contact with the tribal forum, to submit to that forum’s jurisdiction over them.

11 Such transfer and the resulting exercise of jurisdiction, if successful, would be solely based

12 on baby girl A.D.’s race.

13

24. But for ICWA, A.D. would likely have been cleared for adoption by S.H.

14 and J.H. If they are awarded adoption, they are willing to provide and encourage

15 appropriate visitation and cultural acclimatization opportunities to A.D. DCS has and

16 continues to follow, implement, and support the position that ICWA and the BIA

17 Guidelines control all aspects of the state court child custody proceeding of A.D., S.H.,

18 and J.H., including but not limited to the provisions challenged here. In A.D.’s child

19 custody proceeding, all actions were taken and decisions reached because of A.D., S.H.,

20 and J.H.’s race.

21 II. Baby Boy C.C.

22

25. DCS took baby boy C.C. into protective custody when he was less than one

23 year old when his biological mother was convicted of a non-drug related felony. His birth

24 father is unknown. The birth mother is on record saying she supports baby boy C.C.’s

25 adoption by M.C. and K.C.

26

26. The Navajo Nation repeatedly proposed alternative ICWA-compliant

27 placements, all of which turned out to be inappropriate for placement of baby boy C.C.

28 Baby boy C.C.’s extended family members expressly declined to have him placed with

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1 them. Other ICWA-compliant placements the tribe proposed also declined to have baby

2 boy C.C. placed with them. The tribe repeatedly asked for additional opportunities from

3 state court to find other ICWA-compliant placements. Consequently, baby boy C.C.

4 continuously remained in foster care with M.C. and K.C. for four years. M.C. and K.C.

5 were not able to file a petition for adoption until the state court declared that baby boy

6 C.C. is available for adoption and that there was good cause to deviate from ICWA’s

7 adoption placement preferences.

8

27. Each time the tribe proposed an ICWA-compliant placement, pursuant to a

9 court-supervised and DCS-supported case plan, M.C. and K.C. had to drive each week

10 with baby boy C.C., sometimes over 100 miles, to visit with the proposed placement to

11 give baby boy C.C. an opportunity to bond with the proposed placement until that

12 placement became unavailable for any reason. Baby boy C.C. calls M.C. and K.C.

13 “mommy” and “daddy,” but he was reminded by some proposed placements that M.C.

14 and K.C. are not his “mommy” and “daddy.” This caused significant emotional and

15 psychological harm to baby boy C.C. who, through no fault of his own, had to leave the

16 security of his home and visit with strangers solely because he was born with Indian

17 ancestry.

18

28. Due to the application of ICWA, baby boy C.C. had languished in foster

19 care for approximately four years. But for ICWA, baby boy C.C. would have likely been

20 cleared for adoption by M.C. and K.C.

21

29. M.C. and K.C. were not granted intervention in the dependency matter of

22 C.C.

23

30. In November 2015, after this lawsuit was filed, the state court properly

24 having jurisdiction over the matter cleared C.C., with DCS and Navajo Nation consent,

25 for adoption by M.C. and K.C.

26

31. The Indian Child Welfare Act applied to all aspects of C.C.’s child custody

27 proceeding. All actions that delayed or denied C.C.’s adoption by M.C. and K.C. were

28

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1 taken because of C.C., M.C., and K.C.’s race. DCS continued to follow, enforce and

2 support the application of ICWA in C.C.’s child custody proceeding.

3 III. Baby Girl L.G. and Baby Boy C.R.

4

32. L.G. and C.R. are siblings who have the same birth mother but different

5 birth fathers. L.G. was born in August, 2012, C.R. in August, 2014. During C.R.’s

6 pregnancy, the birth mother tested positive for several controlled substances. Baby boy

7 C.R. was born nine weeks premature, was drug-exposed when born, and spent three weeks

8 in a ventilator. He is determined to be medically fragile. In or about August 2014, DCS

9 took baby girl L.G. and baby boy C.R. into protective custody and placed the siblings in

10 the care of P.R. and K.R. Thus, DCS took L.G. into protective custody when she was about

11 2 years old; DCS took C.R. into protective custody at birth. P.R. and K.R. is the only

12 family that baby boy C.R. has ever known; L.G., on information and belief, lived with her

13 birth mother before she was placed in the care of P.R. and K.R. If they are awarded

14 adoption, P.R. and K.R. are willing to provide and encourage appropriate visitation and

15 cultural acclimatization opportunities to L.G. and C.R.

16

33. Both L.G. and C.R.’s birth fathers are known. On information and belief,

17 both are in federal prison on conviction for violent felonies. L.G. and C.R.’s birth mother

18 and maternal grandmother were arrested on charges of shoplifting. On information and

19 belief, the maternal grandmother was given a two-year prison sentence and the birth

20 mother is currently on probation.

21

34. L.G. and C.R.’s birth mother, on information and belief, is a member of the

22 Gila River Indian Community with 25% Indian blood.

23

35. After L.G. and C.R. were placed in the foster care of P.R. and K.R., L.G.’s

24 birth father, on information and belief, tried to obtain membership in the Pascua Yaqui

25 Tribe, a federally-recognized tribe, but was unable to obtain membership. Consequently,

26 L.G. is not eligible for membership in, nor is she a child of a member of, the Pascua Yaqui

27 Tribe. L.G. is also not eligible for membership in, nor is she a member of, the Gila River

28 Indian Community.

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1

36. C.R.’s birth mother and birth father are members of the Gila River Indian

2 Community. C.R. is eligible for membership in, and is a child of a member of, the Gila

3 River Indian Community.

4

37. Initially, the case management plan for L.G. and C.R. was reunification with

5 their birth mother. Due to C.R.’s low birth weight and medical complications due to in-

6 utero exposure to controlled substances, DCS consented to, and the state court authorized,

7 one weekly 4-hour-long visit with the birth mother that is supervised by DCS employees.

8 In September 2015, the state court properly having jurisdiction over the child custody

9 proceeding, changed the case management plan to severance. The parental rights of L.G.

10 and C.R.’s birth parents have not been terminated.

11

38. Foster parents P.R. and K.R. are not party intervenors in the state child

12 custody proceeding of L.G. and C.R. Plaintiffs L.G., C.R., K.R. and P.R. do not have any

13 contacts or ties with any tribal forum.

14

39. The Gila River Indian Community has and will continue to propose

15 alternative ICWA-compliant homes for C.R. in the consolidated child custody proceeding

16 of L.G. and C.R. for the sole purpose of ensuring that C.R.’s child custody proceeding is

17 subject to ICWA and the BIA Guidelines. DCS has and continues to follow, implement,

18 and support the position that ICWA and the BIA Guidelines control all aspects of the state

19 court child custody proceeding of C.R., including but not limited to the provisions

20 challenged here.

21

40. L.G. has Indian ancestry but is not an “Indian child” within the meaning of

22 ICWA. However, she is discriminated against in her consolidated child custody

23 proceeding because her half-sibling, C.R., is an “Indian child” within the meaning of

24 ICWA. L.G. has known C.R. since birth, both share a strong sibling bond, and both

25 consider K.R. and P.R. as de facto and psychological parents. Both call K.R. and P.R. their

26 “mommy” and “daddy.”

27

41. Arizona state policy, mandated by state law, is to place well-bonded siblings

28 with the same foster and adoptive parents. See, e.g., A.R.S. § 8-513(D). But for ICWA

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1 and the federal and state statutes and Guidelines that implement it, L.G. and C.R. would

2 be placed together due to their bonding and attachment, pursuant to state law.

3

42. The relevant state court properly having jurisdiction over the matter has not

4 declared L.G. and C.R. as available for adoption. L.G. and C.R. have continuously

5 remained in foster care with P.R. and K.R. for about one year and six months. P.R. and

6 K.R. cannot file a petition for adoption until the state court declares that L.G. and C.R. are

7 available for adoption and that there is good cause to deviate from ICWA’s adoption

8 placement preferences.

9

43. Due to the application of ICWA, L.G. and C.R. have been languishing in

10 foster care for more than one and a half years. But for ICWA, they would likely have been

11 cleared for adoption by P.R. and K.R.

12 IV. All Plaintiffs

13

44. But for ICWA, a strong likelihood exists that these families – baby girl A.D.,

14 and her foster/preadoptive parents, S.H. and J.H., baby boy C.C., and his adoptive parents

15 M.C. and K.C., and L.G. and C.R., and their foster parents, K.R. and P.R. – would be

16 allowed to become permanent under race-neutral Arizona laws permitting individualized

17 race-neutral evaluation by state court of what is in the children’s best interests. But under

18 ICWA, these families are subjected to different and more onerous procedural and

19 substantive provisions that are based solely on the race of the children and the adults

20 involved, which lead to severe disruption in their lives contrary to the children’s best

21 interests.

22

45. In many instances, children subject to ICWA are removed from caring,

23 loving homes and forced into placements, which sometimes leads to abuse, psychological

24 harm, or even physical trauma and death.

25

46. In many instances, prospective adoptive parents who otherwise would be

26 allowed to adopt children they have raised since infancy and grown to love are deprived

27 of the opportunity to form permanent families as a result of ICWA.

28

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1

47. In many instances, children are left in abusive or neglectful Indian families

2 where they are subjected to grave physical or psychological harm as a result of ICWA.

3

48. Subjecting these children and families to ICWA creates delay and

4 uncertainty in the journey to permanent family status, and the prospect and reality of

5 displacement from stable, loving families causes great harm to children and great distress

6 to prospective adoptive parents.

7

49. All named children and parent plaintiffs, and the members of the class they

8 seek to represent, have in the past been, are currently, or in the course of their constantly

9 evolving state court child custody proceedings will surely be, subject to the separate,

10 unequal and substandard treatment under provisions of ICWA and the BIA Guidelines

11 challenged here: 25 U.S.C. §§ 1911(b), 1912(d), 1912(e), 1912(f), 1915(b), 1915(a); BIA

12 Guidelines, 80 Fed. Reg. 10146 (February 25, 2015), §§ A.2, A.3, B.1, B.2, B.4, B.8, C.1,

13 C.2, C.3, D.2, D.3, F.1, F.2, F.3, F.4. Once a determination is made that a child is an

14 “Indian child” within the meaning of ICWA, all of the provisions of ICWA and the BIA

15 Guidelines challenged here inexorably become applicable to that child’s child custody

16 proceeding beginning with DCS taking the child into protective custody up to and

17 including either the finalization of the child’s adoption or the child’s reunification with

18 birth family. DCS has and continues to follow, implement, and support the position that

19 ICWA and the BIA Guidelines control all aspects of the state court child custody

20 proceeding of Indian children, including but not limited to the provisions challenged here.

21

CLASS ALLEGATIONS

22

50. The named plaintiffs bring this lawsuit on behalf of themselves and a class

23 of all off-reservation Arizona-resident children with Indian ancestry and all off-

24 reservation non-Indian Arizona-resident foster, preadoptive, and prospective adoptive

25 parents who are or will be in child custody proceedings involving a child with Indian

26 ancestry and who are not members of the child’s extended family.

27

51. The Arizona Department of Child Safety’s semi-annual Report to the

28 Governor for the period of April 1, 2015 through September 30, 2015, attached as Exhibit

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1 1

to

this

Amended

Complaint,

and

available

at

2 https://dcs.az.gov/sites/default/files/SEMIANNUAL-CHILD-WELFARE-

3 REPORTING-REQUIREMENTS-4-15-9-15_FINAL-Revised.pdf (last visited March 2,

4 2016), reports that as of September 30, 2015 there were 1,506 American Indian children

5 in out-of-home care in Arizona. Id. at 42. The number of foster, preadoptive, and

6 prospective adoptive parents of these children is similarly numerous. Their identities are

7 easily ascertainable through DCS records that are not open for inspection to the public.

8 This putative class is so numerous that joinder of all members is impracticable. See FRCP

9 23(a)(1).

10

52. There are questions of law or fact common to the class, namely, the facial

11 and as-applied constitutionality of several provisions of ICWA and accompanying

12 Guidelines to the members of the class. See FRCP 23(a)(2).

13

53. The circumstances of baby girl A.D., S.H. and J.H., baby boy C.C., M.C.

14 and K.C. and baby girl L.G., baby boy C.R., P.R. and K.R., are typical of children with

15 Indian ancestry and other foster, preadoptive and prospective adoptive families of children

16 with Indian ancestry. See FRCP 23(a)(3).

17

54. The named plaintiffs will fairly and adequately protect the interests of the

18 class. See FRCP 23(a)(4).

19

55. Plaintiffs’ attorneys are experienced in representing litigants before federal

20 courts. Plaintiffs’ counsel include nationally recognized constitutional lawyers who have

21 litigated extensively at every level of the federal judiciary. Plaintiffs’ attorneys are well

22 qualified to be appointed class counsel by this Court.

23

56. Separate actions by individual class members would create the risk of

24 inconsistent or incompatible standards of conduct for the defendants, and separate actions

25 by individual class members would substantially impair their ability to protect their

26 interests. See FRCP 23(b)(1).

27

28

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1

57. Defendants have acted or refused to act on grounds that apply generally to

2 the putative class. Thus, final injunctive relief or corresponding declaratory relief is

3 appropriate respecting the class as a whole. See FRCP 23(b)(2).

4

58. Questions of law or fact common to the members of the class predominate

5 over questions affecting individual class members as individual class members are denied

6 equal protection under the law and deprived of their constitutional rights. A class action

7 is superior to other available methods for the fair and efficient adjudication of the

8 controversy, inasmuch as the individual class members are deprived of the same rights.

9 See FRCP 23(b)(3).

10

STATUTORY FRAMEWORK

11 I. Definitions

12

59. ICWA defines “Indian child” as “any unmarried person who is under age

13 eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in

14 an Indian tribe and is the biological child of a member of an Indian tribe” 25 U.S.C. §

15 1903(4). “Indian tribe” is also statutorily defined at 25 U.S.C. § 1903(8).

16

60. Most Indian tribes have only blood quantum or lineage requirements as

17 prerequisites for membership. See Miss. Band of Choctaw Indians Const. art. III, § 1;

18 Cherokee Nation Const. art. IV, § 1; Choctaw Nation of Okla. Const. art. II, § 1; Muscogee

19 (Creek) Nation Const. art. III, § 2; Gila River Indian Community Const. art. III, § 1;

20 Navajo Nation Code § 701; Guidelines for State Courts and Agencies in Indian Child

21 Custody Proceedings, 80 Fed. Reg. 10146, 10153, B.3 (February 25, 2015) (“New

22 Guidelines” or “BIA Guidelines”). Consequently, ICWA’s definition of “Indian child” is

23 based solely on the child’s race or ancestry.

24

61. Some of the tribes consider individuals with only a tiny percentage of Indian

25 blood to be Indian, even if they have little or no contact or connection with the tribe. See,

26 e.g., Cherokee Nation Const. art. IV, § 1.

27

62. Thus, in many instances, children with only a minute quantum of Indian

28 blood and no connection or ties to the tribe are subject to ICWA and relegated to the tribe’s

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1 exclusive or concurrent jurisdiction. See, e.g., Nielson v. Ketchum, 640 F.3d 1117, 1120

2 (10th Cir. 2011) (quoting Chapter 2, Section 11A of the Cherokee Nation Citizenship Act

3 which automatically admits a child as citizen of the Cherokee Nation at birth “for the

4 specific purpose of protecting the rights of the Cherokee Nation under the [ICWA]”

5 (brackets in original)).

6

63. The Guidelines for State Courts and Agencies in Indian Child Custody

7 Proceedings, 80 Fed. Reg. 10146, 10153, B.4(d)(iii) (February 25, 2015), state, “In the

8 event the child is eligible for membership in a tribe but is not yet a member of any tribe,

9 the agency should take the steps necessary to obtain membership for the child in the tribe

10 that is designated as the Indian child’s tribe.”

11

64. “Agency” is defined in the New Guidelines as “a private State-licensed

12 agency or public agency and their employees, agents or officials involved in and/or

13 seeking to place a child in a child custody proceeding.” 80 Fed. Reg. at 10151, A.2.

14

65. ICWA defines “child custody proceeding” to include “foster care

15 placement,” “termination of parental rights,” “preadoptive placement,” and “adoptive

16 placement.” 25 U.S.C. § 1903(1).

17

66. “Foster care placement” is defined as “any action removing an Indian child

18 from its parent or Indian custodian for temporary placement in a foster home or institution

19 or the home of a guardian or conservator where the parent or Indian custodian cannot have

20 the child returned upon demand, but where parental rights have not been terminated.” 25

21 U.S.C. § 1903(1)(i).

22

67. “Termination of parental rights” is defined as “any action resulting in the

23 termination of the parent-child relationship.” 25 U.S.C. § 1903(1)(ii).

24

68. “Preadoptive placement” is defined as “the temporary placement of an

25 Indian child in a foster home or institution after the termination of parental rights, but prior

26 to or in lieu of adoptive placement.” 25 U.S.C. § 1903(1)(iii).

27

28

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1

69. “Adoptive placement” is defined as “the permanent placement of an Indian

2 child for adoption, including any action resulting in a final decree of adoption.” 25 U.S.C.

3 § 1903(1)(iv).

4

70. “Child custody proceeding,” as defined, “shall not include a placement

5 based upon an act which, if committed by an adult, would be deemed a crime or upon an

6 award, in a divorce proceeding, of custody to one of the parents.” 25 U.S.C. § 1903(1).

7 II. BIA Guidelines

8

71. The BIA first issued Guidelines in November of 1979. Guidelines for State

9 Courts; Indian Child Custody Proceedings, 44 Fed. Reg. 67584 (November 26, 1979)

10 (“Old Guidelines” or “1979 Guidelines”). On February 25, 2015, the BIA issued new

11 Guidelines to “supersede and replace” the 1979 Guidelines. Guidelines for State Courts

12 and Agencies in Indian Child Custody Proceedings, 80 Fed. Reg. 10146, 10147 (February

13 25, 2015) (“New Guidelines”, “2015 Guidelines”, or “BIA Guidelines”).

14 III. The Jurisdiction-Transfer Provision

15

72. ICWA requires state courts to “transfer” “foster care placement” or

16 “termination of parental rights” “proceeding[s] to the jurisdiction of the tribe” of “an

17 Indian child not domiciled or residing within the reservation of the Indian child’s tribe”

18 “in the absence of good cause to the contrary,” and “absent objection by either parent,” if

19 the “parent or the Indian custodian or the Indian child’s tribe” petitions for such transfer

20 and the tribal court does not decline such transfer. 25 U.S.C. § 1911(b) (“jurisdiction-

21 transfer provision”); 80 Fed. Reg. at 10156, C.2. The New Guidelines, however, state,

22 “The right to request a transfer is available at any stage of an Indian child custody

23 proceeding, including during any period of emergency removal.” 80 Fed. Reg. at 10156,

24 C.1(c) (emphasis added).

25

73. Whereas ICWA’s jurisdiction-transfer provision is available to transfer only

26 foster care placement and termination of parental rights proceedings to the jurisdiction of

27 the tribe, the BIA, in the New Guidelines, extended the jurisdiction-transfer provision to

28 all child custody proceedings.

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1

74. “Good cause” to not transfer a foster care placement or termination of

2 parental rights proceeding to tribal court is not defined in ICWA. The New Guidelines,

3 however, state:

4

In determining whether good cause exists, the court may not

consider whether the case is at an advanced stage or whether

5

transfer would result in a change in the placement of the child

because the Act created concurrent, but presumptively, tribal

6

jurisdiction over proceedings involving children not residing

or domiciled on the reservation, and seeks to protect, not only

7

the rights of the Indian child as an Indian, but the rights of

Indian communities and tribes in retaining Indian children.

8

Thus, whenever a parent or tribe seeks to transfer the case it is

presumptively in the best interest of the Indian child,

9

consistent with the Act, to transfer the case to the jurisdiction

of the Indian tribe. [¶] In addition, in determining whether

10

there is good cause to deny the transfer, the court may not

consider: (1) The Indian child’s contacts with the tribe or

11

reservation; (2) Socio-economic conditions or any perceived

inadequacy of tribal or Bureau of Indian Affairs social

12

services or judicial systems; or (3) the tribal court’s

prospective placement for the Indian child.

13

14 80 Fed. Reg. at 10156, C.3(c)–(d).

15

75. Under uniform Arizona law, when deciding whether to transfer a foster care

16 placement or termination of parental rights proceeding to some other jurisdiction, an

17 Arizona state court “that has made a child custody determination” has “exclusive,

18 continuing jurisdiction over the determination until” either one of the two options is true:

19

20

21

22

23

24

25

26

27

28

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1. A court of this state determines that neither the child, nor

1

the child and one parent, nor the child and a person acting as

a parent have a significant connection with this state and that

2

substantial evidence is no longer available in this state

concerning the child’s care, protection, training and personal

3

relationships.

2. A court of this state or a court of another state determines

4

that the child, the child’s parents and any person acting as a

parent do not presently reside in this state.

5

6 A.R.S. § 25-1032(A).

7

76. Thus, while Arizona law looks at the litigants’ contacts with the forum in

8 deciding whether to transfer a foster care placement or termination of parental rights

9 proceeding to some other jurisdiction, ICWA and the New Guidelines explicitly instruct

10 courts to not take into account the litigants’ contacts with the tribal forum.

11

77. The clear and convincing evidence standard is applied in Arizona to

12 determine whether good cause exists to deviate from ICWA’s foster care placement

13 preferences of 25 U.S.C. § 1915(b). Gila River Indian Community v. Department of Child

14 Safety, 363 P.3d 148 (2015). The state trial court in baby girl A.D.’s case, however,

15 concluded that the same clear and convincing evidence standard must be met in order to

16 establish good cause to deviate from ICWA’s jurisdiction-transfer provision, 25 U.S.C. §

17 1911(b). Contra Decker Coal Co. v. Commonwealth Edison Co., 805 F.2d 834, 839 (9th

18 Cir. 1986) (proponent must establish personal jurisdiction or lack thereof by

19 preponderance of the evidence).

20 IV. The Active Efforts Provision

21

78. Further, ICWA states that “[a]ny party seeking to effect a foster care

22 placement of, or termination of parental rights to, an Indian child under State law shall

23 satisfy the court that active efforts have been made to provide remedial services and

24 rehabilitative programs designed to prevent the breakup of the Indian family and that these

25 efforts have proved unsuccessful.” 25 U.S.C. § 1912(d) (emphasis added) (“active efforts

26 provision”).

27

79. The New Guidelines state: “Active efforts are intended primarily to maintain

28 and reunite an Indian child with his or her family or tribal community and constitute more

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1 than reasonable efforts as required by Title IV-E of the Social Security Act (42 U.S.C.

2 671(a)(15)).…‘Active efforts’ are separate and distinct from requirements of the Adoption

3 and Safe Families Act (ASFA), 42 U.S.C. 1305. ASFA’s exceptions to reunification

4 efforts do not apply to ICWA proceedings.” 80 Fed. Reg. at 10150–51, A.2 (emphasis in

5 original). The ASFA exceptions provide that the reasonable efforts provision is

6 inapplicable if there are “aggravated circumstances” such as “abandonment, torture,

7 chronic abuse, and sexual abuse.” 42 U.S.C. § 671(a)(15)(D). But because these

8 exceptions do not apply under the “active efforts” provision, active efforts are required to

9 be taken to reunify children deemed Indian with their family or members of the tribal

10 community even when the children were abandoned, tortured, chronically abused or

11 sexually abused by those individuals.

12

80. DCS, under the active efforts provision, is required to “[i]dentify[], notify[],

13 and invit[e] representatives of the Indian child’s tribe to participate” in the active efforts

14 to reunite the Indian child with the child’s “family” and “tribal community.” New

15 Guidelines, 80 Fed. Reg. at 10150, A.2.

16

81. DCS, under the active efforts provision, is required to “[t]ak[e] into account

17 the Indian child’s tribe’s prevailing social and cultural conditions and way of life” even in

18 situations where the child or the child’s parents have never been exposed to or followed

19 the tribe’s prevailing social and cultural conditions or way of life. Id. DCS is also required

20 “to assure cultural connections,” “[s]upport[] regular visits and trial home visits of the

21 Indian child during any period of removal,” and “[o]ffer[] and employ[] all available and

22 culturally appropriate family preservation strategies.” Id.

23

82. The New Guidelines provide details on when the requirement for active

24 efforts begins and what actions an agency and State court must take in order to determine

25 whether a child is an Indian child and how to comply with the active efforts requirement.

26 80 Fed. Reg. at 10152–153, A.3, B.1–B.2, B.4, B.8, D.2. The New Guidelines provide no

27 details on when the requirement for active efforts ends; consequently, the active efforts

28 provision remains applicable until the adoption is finalized. Additionally, the foster

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1 placement preferences and adoption placement preferences require DCS to engage in

2 active efforts every time the tribe proposes a new ICWA-compliant placement.

3

83. The New Guidelines require DCS to “treat the child as an Indian child,

4 unless and until it is determined that the child is not a member or is not eligible for

5 membership in an Indian tribe,” “[i]f there is any reason to believe the child is an Indian

6 child.” 80 Fed. Reg. at 10152, A.3(d).

7

84. The New Guidelines require DCS to engage in active efforts “from the

8 moment the possibility arises that … the Indian child [will] be placed outside the custody

9 of either parent or Indian custodian” and also “while investigating” whether ICWA applies

10 to a particular child. 80 Fed. Reg. at 10152, B.1(a)–(b).

11

85. If a child is suspected to be an Indian child, DCS may be required to provide

12 “[g]enograms or ancestry charts for both parents, … maternal and paternal grandparents

13 and great grandparents or Indian custodians; birthdates; … tribal affiliation including all

14 known Indian ancestry for individuals listed on the charts[.]” New Guidelines, 80 Fed.

15 Reg. at 10152, B.2(b)(1)(i).

16

86. “In the event the child is eligible for membership in a tribe but is not yet a

17 member of any tribe,” the New Guidelines require DCS to “take the steps necessary to

18 obtain membership for the child in the tribe that is designated as the Indian child’s tribe.”

19 80 Fed. Reg. at 10153, B.4(d)(iii).

20

87. In emergency removal situations where DCS “knows or has reason to know”

21 that a child is an Indian child, DCS is required to “[t]reat the child as an Indian child until

22 the court determines that the child is not an Indian child.” New Guidelines, 80 Fed. Reg.

23 at 10155, B.8(c)(1).

24

88. Pursuant to 42 U.S.C. § 671(a)(15), as amended by ASFA, the “reasonable

25 efforts” standard is pervasive under Arizona Law. See, e.g., A.R.S. §§ 8-513 (foster care

26 placement), 8-522 (dependency actions), 8-825 (preliminary protective hearing), 8-829

27 (same), 8-843 (initial dependency hearing), 8-845 (dependency determination), 8-846

28 (same), 8-862 (permanency hearing).

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1

89. Whereas “active efforts” are required not only to “maintain and reunite an

2 Indian child with his or her family” but also with the child’s “tribal community,” New

3 Guidelines, 80 Fed. Reg. at 10150, A.2, “reasonable efforts” under Arizona law are

4 required only to maintain and reunite the child with the child’s family. See, e.g., A.R.S. §

5 8-522(E)(3).

6

90. Arizona DCS applies the active efforts provision to children with Indian

7 ancestry, and the “reasonable efforts” provision to all other children. The New Guidelines

8 explicitly state that the active efforts provision is “more than” the reasonable efforts

9 provision. Consequently, children with Indian ancestry are singled out and afforded

10 separate, unequal treatment resulting in delayed resolution of child custody proceedings

11 of children with Indian ancestry, based solely on their race.

12 V. Burden of Proof in Foster Care Placement Orders

13

91. ICWA further requires that “No foster care placement may be ordered in [an

14 involuntary] proceeding in the absence of a determination, supported by clear and

15 convincing evidence, including testimony of qualified expert witnesses, that the continued

16 custody of the child by the parent or Indian custodian is likely to result in serious emotional

17 or physical damage to the child.” 25 U.S.C. § 1912(e).

18

92. The New Guidelines state: “The court may not issue an order effecting a

19 foster care placement of an Indian child unless clear and convincing evidence is presented,

20 including the testimony of one or more qualified expert witnesses, demonstrating that the

21 child’s continued custody with the child’s parents or Indian custodian is likely to result in

22 serious harm to the child.” 80 Fed. Reg. at 10156, D.3(a).

23

93. The clear and convincing evidence standard is applied in Arizona to

24 determine whether good cause exists to deviate from ICWA’s foster care placement

25 preferences. Gila River Indian Community v. Department of Child Safety, 363 P.3d 148

26 (2015).

27

94. Under Arizona law, to take a child into temporary custody, there must be a

28 showing that “reasonable grounds exist to believe that temporary custody is clearly

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1 necessary to protect the child from suffering abuse or neglect” and that “probable cause

2 exists to believe” that, inter alia, the child is or will imminently become a victim of abuse

3 or neglect, or is suffering from serious physical or emotional injury. A.R.S. § 8-821(A)–

4 (B); § 8-824(F) (“The petitioner has the burden of presenting evidence as to whether there

5 is probable cause to believe that continued temporary custody is clearly necessary to

6 prevent abuse or neglect pending the hearing on the dependency petition”); A.R.S. § 8-

7 843 (“reasonable efforts” standard in initial dependency hearings); A.R.S. § 8-844

8 (“preponderance of the evidence” standard in dependency adjudication hearings).

9

95. Thus, ICWA requires a showing of clear and convincing evidence whereas

10 Arizona law requires a showing of “reasonable grounds,” “probable cause,” “reasonable

11 efforts,” or “preponderance of the evidence” at various stages of proceedings leading to

12 foster care placement of children. Consequently, ICWA’s higher burden of proof requires

13 DCS to disregard to a greater extent the safety and security of children with Indian

14 ancestry based solely on the race of these children.

15 VI. Burden of Proof in Termination of Parental Rights Orders

16

96. ICWA requires that “No termination of parental rights may be ordered in

17 [an involuntary] proceeding in the absence of a determination, supported by evidence

18 beyond a reasonable doubt, including testimony of qualified expert witnesses, that the

19 continued custody of the child by the parent or Indian custodian is likely to result in serious

20 emotional or physical damage to the child.” 25 U.S.C. § 1912(f).

21

97. The New Guidelines state: “The court may not order a termination of

22 parental rights unless the court’s order is supported by evidence beyond a reasonable

23 doubt, supported by the testimony of one or more qualified expert witnesses, that

24 continued custody of the child by the parent or Indian custodian is likely to result in serious

25 harm to the child.” 80 Fed. Reg. at 10156, D.3(b).

26

98. Under Arizona law, “Arizona’s statutes require that the party seeking

27 termination of parental rights establish only the statutory grounds of section 8-533 by clear

28 and convincing evidence and establish the best interests of the child by a preponderance

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1 of the evidence.” Kent K. v. Bobby M., 110 P.3d 1013, 1018 (Ariz. 2005) (interpreting

2 A.R.S. §§ 8-533, 8-537).

3

99. Thus, ICWA requires a showing of beyond a reasonable doubt whereas

4 Arizona law requires use of the clear and convincing evidence standard in termination of

5 parental rights proceedings. Consequently, ICWA’s higher burden of proof, which

6 explicitly does not take into account the best interests of the child, places greater burdens

7 on children with Indian ancestry than does Arizona law uniformly applied to all other

8 children. This separate, unequal treatment of children with Indian ancestry is based solely

9 on the child’s race.

10 VII. Foster/Preadoptive Care Placement Preferences

11

100. Under ICWA:

12

In any foster care or preadoptive placement, a preference shall

be given, in the absence of good cause to the contrary, to a

13

placement with—

(i) a member of the Indian child’s extended family;

14

(ii) a foster home licensed, approved, or specified by the

Indian child’s tribe;

15

(iii) an Indian foster home licensed or approved by an

authorized non-Indian licensing authority; or

16

(iv) an institution for children approved by an Indian tribe or

operated by an Indian organization which has a program

17

suitable to meet the Indian child’s needs.

18 25 U.S.C. § 1915(b) (emphasis added).

19

101. The New Guidelines state:

20

The agency seeking a preadoptive, adoptive or foster care

placement of an Indian child must always follow the

21

placement preferences. If the agency determines that any of

the preferences cannot be met, the agency must demonstrate

22

through clear and convincing evidence that a diligent search

has been conducted to seek out and identify placement options

23

that would satisfy the placement preferences specified in

sections F.2 or F.3 of these guidelines, and explain why the

24

preferences could not be met.

25 80 Fed. Reg. at 10157, F.1(b) (emphasis added).

26

102. Although “good cause” to not apply the foster care placement preferences

27 is not defined in ICWA, the New Guidelines state:

28

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(a) If any party asserts that good cause not to follow the

1

placement preferences exists, the reasons for such belief or

assertion must be stated on the record or in writing and made

2

available to the parties to the proceeding and the Indian child’s

tribe.

3

(b) The party seeking departure from the preferences bears the

burden of proving by clear and convincing evidence the

4

existence of “good cause” to deviate from the placement

preferences.

5

(c) A determination of good cause to depart from the

placement preferences must be based on one or more of the

6

following considerations:

(1) The request of the parents, if both parents attest that

7

they have reviewed the placement options that comply with

the order of preference.

8

(2) The request of the child, if the child is able to

understand and comprehend the decision that is being made.

9

(3) The extraordinary physical or emotional needs of

the child, such as specialized treatment services that may be

10

unavailable in the community where families who meet the

criteria live, as established by testimony of a qualified expert

11

witness; provided that extraordinary physical or emotional

needs of the child does not include ordinary bonding or

12

attachment that may have occurred as a result of a placement

or the fact that the child has, for an extended amount of time,

13

been in another placement that does not comply with the Act.

The good cause determination does not include an

14

independent consideration of the best interest of the Indian

child because the preferences reflect the best interests of an

15

Indian child in light of the purposes of the Act.

(4) The unavailability of a placement after a showing

16

by the applicable agency in accordance with section F.1, and

a determination by the court that active efforts have been made

17

to find placements meeting the preference criteria, but none

have been located. For purposes of this analysis, a placement

18

may not be considered unavailable if the placement conforms

to the prevailing social and cultural standards of the Indian

19

community in which the Indian child’s parent or extended

family resides or with which the Indian child’s parent or

20

extended family members maintain social and cultural ties.

(d) The court should consider only whether a placement in

21

accordance with the preferences meets the physical, mental

and emotional needs of the child; and may not depart from the

22

preferences based on the socio-economic status of any

placement relative to another placement. 23

80 Fed. Reg. at 10158, F.4 (emphasis added).

24

103. The standard applied to all other children in Arizona is markedly different

25

from the standard applied to children with Indian ancestry. For foster care placements,

26

Arizona courts look at whether there was reasonable evidence to find that placing a child

27

with the foster family instead of an extended family member was in the child’s “best

28

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1 interests.” Antonio M. v. Ariz. Dept. of Econ. Sec., 214 P.3d 1010, 1012 (Ariz. App. 2009).

2 Courts in such situations also give weight to the fact that “the foster parents wished to

3 adopt [the child].” Id. See also Antonio P. v. Ariz. Dept. of Econ. Sec., 187 P.3d 1115,

4 1117 (Ariz. App. 2008) (analyzing what is in the child’s best interest in foster care

5 placements and giving weight to the fact that the child had an “undeniabl[y]” “longer

6 relationship” with one placement than with the other).

7 VIII. Adoption Placement Preferences

8

104. Under ICWA,

9

In any adoptive placement of an Indian child under State law,

a preference shall be given, in the absence of good cause to

10

the contrary, to a placement with

(1) a member of the child’s extended family;

11

(2) other members of the Indian child’s tribe; or

(3) other Indian families.

12

13 25 U.S.C. § 1915(a).(emphasis added).

14

105. The New Guidelines require state courts to follow ICWA’s adoption

15 placement preferences. 80 Fed. Reg. at 10157, F.1(b) (“The agency seeking a[n] …

16 adoptive … placement of an Indian child must always follow the placement preferences”)

17 (emphasis added).

18

106. Although “good cause” to not apply the adoption placement preferences is

19 not defined in ICWA, the New Guidelines, as reproduced above, specifically state that the

20 “good cause determination does not include an independent consideration of the best

21 interest of the Indian child because the preferences reflect the best interests of an Indian

22 child in light of the purposes of the Act.” 80 Fed. Reg. at 10158, F.4.

23

107. Due to the mandatory language of the New Guidelines, there is an inherent

24 conflict between the duty of DCS, an “agency” within the meaning of the New Guidelines,

25 to “protect children” and its application of ICWA to children with Indian ancestry.

26

108. The placement preferences, as applied under the New Guidelines, do not

27 look to the interests-of-the-child factors that state courts have traditionally applied in

28 entering foster care placement, preadoption and adoption orders, and thereby deprive

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1 children with Indian ancestry of an individualized race-neutral determination that all other

2 children enjoy under state law.

3

109. States cannot disregard a child’s unique background in making an

4 individualized and race-neutral foster, preadoptive or adoptive assessment, and in

5 terminating parental rights. But the states cannot also turn a blind eye to the child’s safety,

6 security and best interests based solely on the child’s or the adults’ race, for such action is

7 necessarily based on inherently demeaning, stereotypical assumptions about an

8 individual’s race or culture. Although the court did not reach constitutional issues, a core

9 premise of the Baby Veronica decision, Adoptive Couple v. Baby Girl, __ U.S. __, 133 S.

10 Ct. 2552 (2013), was that ICWA cannot force a child to create a racially-conforming

11 relationship and that a child should not be made to sever existing relationships in order to

12 create new racially-conforming ones.

13

CLAIMS FOR RELIEF

14 COUNT 1 – VIOLATION OF THE EQUAL PROTECTION GUARANTEE OF THE FIFTH AMENDMENT
15

16

110. Plaintiffs reallege, adopt and incorporate by reference the preceding

17 paragraphs as though fully set forth herein.

18

111. The jurisdiction-transfer provision, 25 U.S.C. § 1911(b), New Guidelines at

19 §§ C.1, C.2, C.3, is based solely on the race of the child and the adults involved.

20

112. The active efforts provision, 25 U.S.C. § 1912(d), New Guidelines at §§

21 A.2, A.3, B.1, B.2, B.4, B.8, D.2, creates a separate set of procedures for children with

22 Indian ancestry and all other children based solely on the child’s race.

23

113. The clear and convincing evidence burden of proof in foster care placement

24 orders under ICWA, 25 U.S.C. § 1912(e), New Guidelines at § D.3, that is applicable to

25 children with Indian ancestry as compared to Arizona’s demonstrably lesser burden of

26 proof that is applicable to all other children is a legally required, unequal treatment of

27 children with Indian ancestry. Government cannot treat the safety and security of children

28 with Indian ancestry less seriously than the safety and security of all other children.

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1

114. The beyond a reasonable doubt burden of proof in termination of parental

2 rights proceedings under ICWA, 25 U.S.C. § 1912(f), New Guidelines at § D.3, that is

3 applicable to children with Indian ancestry as compared to Arizona’s demonstrably lesser

4 burden of proof that is applicable to all other children is a legally required separate,

5 unequal treatment of children with Indian ancestry. Government cannot treat the best

6 interests of children with Indian ancestry differently and less seriously than those of all

7 other children.

8

115. The foster/preadoptive and adoption placement preferences under ICWA,

9 25 U.S.C. §§ 1915(b), (a), New Guidelines at §§ F.1, F.2, F.3, F.4, single out and treat

10 differently children with Indian ancestry. They also single out and treat differently the

11 non-Indian adults involved in the care and upbringing of children with Indian ancestry.

12

116. The jurisdiction-transfer provision, active efforts provision, burden of proof

13 in foster care placement orders provision, burden of proof in termination of parental rights

14 orders provision, foster/preadoptive care placement preferences provision, and the

15 adoption placement preferences provision of ICWA, and New Guidelines, all subject

16 Plaintiffs to unequal treatment under the law based solely on the race of the child and the

17 adults involved and are therefore unconstitutional under the equal protection guarantee of

18 the Fifth Amendment.

19

117. Because the foregoing provisions of ICWA and the New Guidelines do not

20 serve a compelling governmental purpose in a narrowly tailored fashion, they violate the

21 equal protection guarantee of the Fifth Amendment.

22

COUNT 2 – VIOLATION OF THE DUE PROCESS GUARANTEE OF THE

FIFTH AMENDMENT 23

118. Plaintiffs reallege, adopt and incorporate by reference the preceding

24

paragraphs as though fully set forth herein.

25

119. The jurisdiction-transfer provision forces Plaintiffs to submit to the personal

26

jurisdiction of a forum with which they have no contacts or ties.

27

28

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Case 2:15-cv-01259-NVW Document 173 Filed 04/05/16 Page 28 of 108

1

120. The jurisdiction-transfer provision, 25 U.S.C. § 1911(b), New Guidelines at

2 §§ C.1, C.2, C.3, disregards well-established Supreme Court pronouncements which

3 require minimum contacts between the forum and the litigant for the forum to

4 constitutionally exercise specific or general personal jurisdiction over the litigant, and are

5 therefore, unconstitutional under the due process guarantee of the Fifth Amendment. See

6 Int’l Shoe Co. v. Washington, 326 U.S. 310 (1945); World-Wide Volkswagen Corp. v.

7 Woodson, 444 U.S. 286 (1980); Helicoptores Nationales de Colombia v. Hall, 466 U.S.

8 408 (1984); Asahi Metal Industry Co. v. Superior Court, 480 U.S. 102 (1987).

9

121. Every child and adult deserves an individualized, race-neutral determination

10 under uniform standards when courts make foster/preadoptive care and adoption

11 placement decisions. Every child and adult has a right to be free from the use of race in

12 their individualized foster/preadoptive care and adoption placement decisions. ICWA’s

13 jurisdiction-transfer provision, 25 U.S.C. § 1911(b), active efforts provision, 25 U.S.C. §

14 1912(d), foster care burden of proof, 25 U.S.C. § 1912(e), termination of parental rights

15 burden of proof, 25 U.S.C. § 1912(f), foster/preadoptive care placement preferences

16 provision, 25 U.S.C. § 1915(b), the adoption placement preferences provision, 25 U.S.C.

17 § 1915(a), and New Guidelines at §§ A.2, A.3, B.1, B.2, B.4, B.8, C.1, C.2, C.3, D.2, D.3,

18 F.1, F.2, F.3, F.4, violate the substantive due process rights of children with Indian

19 ancestry, and those of adults involved in their care and upbringing who have an existing

20 family-like relationship with the child. See Troxel v. Granville, 530 U.S. 57, 88 (2000)

21 (Stevens, J., dissenting); Roberts v. U.S. Jaycees, 468 U.S. 609, 618 (1984); Smith v. Org.

22 of Foster Families for Equality & Reform, 431 U.S. 816, 844 (1977); In re Santos Y., 92

23 Cal. App. 4th 1274, 1314–1317 (Cal. App. 2001); In re Bridget R., 41 Cal. App. 4th 1483,

24 1503–1504 (Cal. App. 1996); In re Jasmon O., 878 P.2d 1297, 1307 (Cal. 1994).

25

122. Any determination regarding removal of a child from home, active efforts,

26 termination of parental rights, foster care placement, or adoption placement must take into

27 account the child’s best interests. The failure of ICWA as applied by the BIA Guidelines

28

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1 to adequately consider the child’s best interests deprives the class of plaintiff children of

2 liberty without due process of law in violation of the Fifth Amendment.

3

COUNT 3 – VIOLATION OF THE SUBSTANTIVE DUE PROCESS AND

EQUAL PROTECTION CLAUSES OF THE FOURTEENTH AMENDMENT

4

5

123. Plaintiffs reallege, adopt and incorporate by reference the preceding

6 paragraphs as though fully set forth herein.

7

124. Defendant McKay, pursuant to his statutory duty to “[e]nsure the

8 department’s compliance with the Indian child welfare act,” A.R.S. § 8-453(A)(20),

9 complies with and enforces provisions of the Indian Child Welfare Act in Arizona.

10

125. Defendant McKay complies with and enforces the active efforts provision,

11 25 U.S.C. § 1912(d), New Guidelines at §§ A.2, A.3, B.1, B.2, B.4, B.8, D.2, in Arizona.

12

126. Defendant McKay complies with and enforces the clear and convincing

13 evidence burden of proof in foster care placements under ICWA, 25 U.S.C. § 1912(e),

14 New Guidelines at § D.3, in Arizona.

15

127. Defendant McKay complies with and enforces the beyond a reasonable

16 doubt burden of proof in termination of parental rights proceedings under ICWA, 25

17 U.S.C. § 1912(f), New Guidelines at § D.3, in Arizona.

18

128. Defendant McKay complies with and enforces the foster/preadoptive and

19 adoptive placement preferences under ICWA, 25 U.S.C. § 1915(b), (a), New Guidelines

20 at §§ F.1, F.2, F.3, F.4, A.R.S. §§ 8-105.01(B), 8-514(C), in Arizona.

21

129. Defendant McKay’s compliance with and enforcement of these provisions

22 subjects Plaintiffs to unequal treatment under color of state and federal law based solely

23 on the race of the child and the adults involved and therefore deprives Plaintiffs of equal

24 protection of the law under the Equal Protection Clause of the Fourteenth Amendment.

25 See 42 U.S.C. § 1983.

26

130. Defendant McKay’s compliance with and enforcement of the jurisdiction-

27 transfer provision, active efforts provision, burden of proof in foster care placements

28 provision, burden of proof in termination of parental rights proceedings provision,

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1 foster/preadoptive and adoptive placement preferences provisions under state law, ICWA,

2 and New Guidelines, violate the substantive due process rights to be free from the use of

3 race in child custody proceedings and to an individualized race-neutral determination in

4 child custody proceedings of children with Indian ancestry, and those of adults involved

5 in their care and upbringing who have an existing family-like relationship with the child.

6 Defendant McKay’s failure to adequately consider the child’s best interests deprives the

7 class of plaintiff children of liberty without due process of law in violation of the

8 Fourteenth Amendment. See 42 U.S.C. § 1983.

9 COUNT 4 – THE INDIAN CHILD WELFARE ACT EXCEEDS THE FEDERAL

GOVERNMENT’S POWER UNDER THE INDIAN COMMERCE CLAUSE AND

10

THE TENTH AMENDMENT.

11

131. Plaintiffs reallege, adopt and incorporate by reference the preceding

12 paragraphs as though fully set forth herein.

13

132. ICWA exceeds the federal government’s power under the Indian Commerce

14 Clause and the Tenth Amendment. A child with Indian ancestry is not an item of

15 commerce, nor an instrumentality of commerce, nor tangible personal property the

16 possession of which by federally-recognized Indian tribes promotes “Indian self-

17 government.” Morton v. Mancari, 417 U.S. 535, 555 (1974). Nor is a federal law dealing

18 with child custody proceedings “tied rationally to the fulfillment of Congress’ unique

19 obligation toward the Indians.” Id.; Rice v. Cayetano, 528 U.S. 495 (2000). Indeed, the

20 BIA and the Department of the Interior’s position is that “ICWA and these regulations or

21 any associated Federal guidelines do not apply to … [t]ribal court proceedings[.]” Notice

22 of Proposed Rulemaking, Regulations for State Courts and Agencies in Indian Child

23 Custody Proceedings, 80 Fed. Reg. 14880, 14887, § 23.103(e) (March 20, 2015); New

24 Guidelines, 80 Fed. Reg. at A.3(e) (same). See Adoptive Couple v. Baby Girl, __ U.S. __,

25 133 S. Ct. 2552, 2566–2570 (2013) (Thomas, J., concurring).

26

133. Congress cannot commandeer state resources to achieve federal policy

27 objectives or commandeer state officers to execute federal laws. Printz v. United States,

28 521 U.S. 898 (1997). ICWA impermissibly commandeers state courts and state agencies

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1 to act as investigative and adjudicatory arms of the federal government or Indian tribes.

2 ICWA impermissibly commandeers state courts and state agencies to apply, enforce, and

3 implement an unconstitutional federal law. Dodds v. Richardson, 614 F.3d 1185, 1195–

4 1196 & n.3 (10th Cir. 2010); Ariz. Const. art. II, § 3.

5

134. Child custody proceedings and domestic relations matters are a “virtually

6 exclusive province of the States” under the Tenth Amendment upon which the federal

7 government cannot intrude. Sosna v. Iowa, 419 U.S. 393, 404 (1975).

8

135. ICWA displaces inherent state jurisdiction over specified child welfare,

9 custody, and adoption proceedings and therefore violates the Tenth Amendment. Adoptive

10 Couple v. Baby Girl, 133 S. Ct. at 2566 (Thomas, J., concurring).

11 COUNT 5 – VIOLATION OF ASSOCIATIONAL FREEDOMS UNDER THE FIRST AMENDMENT
12

13

136. Plaintiffs reallege, adopt and incorporate by reference the preceding

14 paragraphs as though fully set forth herein.

15

137. By virtue of ICWA, the tribes make the primary determination whether

16 children with a specified blood quantum will be brought within their jurisdiction, custody,

17 and control.

18

138. Many children who are subject to ICWA have few, if any, ties to the tribe

19 upon which ICWA confers jurisdiction over them. Some but not all are members of the

20 tribes but do not thereby consent to surrender their constitutional rights. Some are enrolled

21 in the tribes as a result of the mandates of ICWA and the New Guidelines. Others are not

22 members and have virtually no connection to the tribes other than a prescribed blood

23 quantum. See New Guidelines, 80 Fed. Reg. at 10153, B.4(d)(3).

24

139. By operation of the provisions of ICWA and the New Guidelines challenged

25 here, Plaintiff children like baby girl A.D. and baby boy C.R. are forced to associate with

26 tribes and tribal communities and be subject to tribal jurisdiction often against their will

27 and/or contrary to their best interests. See id. at 10150, A.2 (active efforts required to

28 reunify an Indian child not only with the child’s family but also with the child’s tribe).

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1

140. Under the active efforts provision, DCS is required to “take steps necessary

2 to obtain membership for the child in the tribe that is designated as the Indian child’s

3 tribe.” 80 Fed. Reg. at 10153, B.4(d)(iii). DCS, thus, forces children deemed Indian to

4 associate with and become members of federally-recognized Indian tribes.

5

141. This forced association violates Plaintiffs’ freedom of association, which

6 encompasses the freedom not to associate under the First Amendment. Boy Scouts of

7 America v. Dale, 530 U.S. 640 (2000); Knox v. Service Employees Int’l Union, Local

8 1000, __ U.S. __, 132 S. Ct. 2277 (2012).

9

COUNT 6 – UNLAWFUL AGENCY ACTION

10

142. Plaintiffs reallege, adopt and incorporate by reference the preceding

11 paragraphs as though fully set forth herein.

12

143. Whereas ICWA’s jurisdiction-transfer provision is available to transfer only

13 foster care placement and termination of parental rights proceedings to the jurisdiction of

14 the tribe, 25 U.S.C. § 1911(b), the New Guidelines state, “The right to request a transfer

15 is available at any stage of an Indian child custody proceeding, including during any

16 period of emergency removal.” 80 Fed. Reg. at 10156, C.1(c) (emphasis added). Further,

17 the New Guidelines instruct state courts that they “must transfer” all child custody

18 proceedings if the parent does not object to the transfer, the tribal court does not decline,

19 and there is no good cause to deny transfer. New Guidelines, 80 Fed. Reg. 10156, C.2,

20 C.3.

21

144. BIA’s enlargement of the jurisdiction-transfer provision, 25 U.S.C. §

22 1911(b), New Guidelines at C.1, C.2, C.3, making the provision available during

23 preadoptive placement and adoptive placement proceedings, clearly contradicts the

24 statutory provision. See 25 U.S.C. § 1903(1) (definitions).

25

145. BIA overstepped its authority by extending, in the New Guidelines, the

26 jurisdiction-transfer provision to all child custody proceedings. Such extension, which

27 directly contradicts a Congress-enacted provision, harms children in cases where parental

28 rights have been terminated. It gives tribes the “right to request a transfer,” 80 Fed. Reg.

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1 at 10156, C.1(c), in cases where Congress expressly did not give tribes a right to request

2 transfer.

3

146. Such agency action is unlawful, in excess of statutory authority, and not in

4 accordance with law. 5 U.S.C. § 706; see American Federation of Govt. Employees, AFL-

5 CIO, Local 3669 v. Shinseki, 821 F. Supp. 2d 337 (D.D.C. 2011), affirmed by, 709 F.3d

6 29 (D.C. Cir. 2012).

7

COUNT 7 – DAMAGES UNDER TITLE VI

OF THE CIVIL RIGHTS ACT (42 U.S.C. §§ 2000d–2000d-7)

8

9

147. Plaintiffs reallege, adopt and incorporate by reference the preceding

10 paragraphs as though fully set forth herein.

11

148. DCS is a state agency, of which Defendant McKay is Director. DCS receives

12 federal financial assistance.

13

149. Defendant McKay has subjected and continues to subject Plaintiffs, and

14 members of the class that Plaintiffs seek to represent, to de jure discrimination on the

15 ground of the race, color, or national origin of the individuals involved.

16

150. For this de jure discriminatory treatment, Plaintiffs request that the court

17 award nominal damages of $1 each to each of the named Plaintiffs and to each of the

18 members of the class they seek to represent under Title VI of the Civil Rights Act, 42

19 U.S.C. §§ 2000d–2000d-7.

20

21

REQUEST FOR RELIEF

22

Consequently, Plaintiffs respectfully request that the Court:

23

A. Certify the Plaintiff class as defined.

24

B. Declare that provisions of the Indian Child Welfare Act, specifically, 25

25 U.S.C. §§ 1911(b), 1912(d), 1912(e), 1912(f), 1915(a), 1915(b), and the New Guidelines,

26 §§ A.2, A.3, B.1, B.2, B.4, B.8, C.1, C.2, C.3, D.2, D.3, F.1, F.2, F.3, F.4, violate the

27 United States Constitution both facially and as applied to Plaintiffs and others similarly

28

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1 situated, violate federal civil rights statutes, 42 U.S.C. §§ 1981, 1983, and violate Title VI

2 of the Civil Rights Act, 42 U.S.C. §§ 2000d et seq.

3

C. Permanently enjoin Defendant Washburn and Defendant Jewell from

4 enforcing these provisions of the Indian Child Welfare Act and the New Guidelines.

5

D. Permanently enjoin Defendant McKay from complying with and enforcing

6 these unconstitutional provisions of the Indian Child Welfare Act, the New Guidelines,

7 and state law.

8

E. Hold unlawful and set aside New Guidelines, §§ C.1, C.2, C.3 under 5

9 U.S.C. § 706.

10

F. Award nominal damages of $1 each to each of the named Plaintiffs and to

11 each of the members of the class that they represent under 42 U.S.C. §§ 2000d–2000d-7.

12

G. Award Plaintiffs their reasonable attorneys’ fees, litigation expenses and

13 costs, pursuant to 28 U.S.C. § 2412 (Equal Access to Justice Act) and 42 U.S.C. § 1988

14 (Civil Rights Act), and other applicable law.

15

H. Grant such other relief as the Court may deem just and proper.

16 RESPECTFULLY SUBMITTED this 2nd day of March, 2016 by:

17

18

/s/ Aditya Dynar

19

Aditya Dynar (031583)

20

Scharf-Norton Center for Constitutional Litigation at the GOLDWATER INSTITUTE

21

Michael W. Kirk (admitted pro hac vice)

22

Brian W. Barnes (admitted pro hac vice)

23

Harold S. Reeves (admitted pro hac vice)

COOPER & KIRK, PLLC

24

25

Attorneys for Plaintiffs

26

27

28

34 of 35

Case 2:15-cv-01259-NVW Document 173 Filed 04/05/16 Page 35 of 108

1 CERTIFICATE OF SERVICE Document Electronically Filed and Served by ECF this 2nd day of March, 2016.

2

MARK BRNOVICH 3 ATTORNEY GENERAL

4 John S. Johnson

Dawn R. Williams 5 Gary N. Lento

6 Melanie G. McBride Joshua R. Zimmerman

7 1275 West Washington Street

8 Phoenix, Arizona 85007 John.Johnson@azag.gov

9 Dawn.Williams@azag.gov

10

Gary.Lento@azag.gov Melanie.McBride@azag.gov

11 Joshua.Zimmerman@azag.gov

12 Steven M. Miskinis

13 Ragu-Jara Gregg
U.S. Department of Justice 14 ENRD/ Indian Resources Section

15 P.O. Box 7611 Ben Franklin Station

16 Washington, D.C. 20044-7611

17

Steven.miskinis@usdoj.gov ragu-jara.gregg@usdoj.gov

18

Courtesy Copy Mailed this 2nd day of March, 2016 to: 19

20 Honorable Neil V. Wake United States District Court
21 Sandra Day O’Connor U.S. Courthouse, Ste. 524 22 401 W. Washington St., SPC 52
Phoenix, AZ 85003-2154 23
24 /s/ Kris Schlott Kris Schlott
25

26

27

28

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Case 2:15-cv-01259-NVW Document 173 Filed 04/05/16 Page 36 of 108
Exhibit 1

Case 2:15-cv-01259-NVW Document 173 Filed 04/05/16 Page 37 of 108

Douglas A. Ducey
Governor

Arizona Department of Child Safety
Gregory McKay
Director

December 31, 2015
The Honorable Douglas A. Ducey Governor of Arizona 1700 West Washington Phoenix, Arizona 85005
Re: Semi-Annual Child Welfare Reporting Requirements
Dear Governor Ducey:
Pursuant to A.R.S. § 8-526, the Arizona Department of Child Safety (DCS) submits the enclosed semi-annual report on child welfare for the period of April 1, 2015 through September 30, 2015. This report provides information relative to reports of child abuse and neglect, investigations, shelter and receiving home services, foster homes, length of care, and adoptions.
If you have any questions, please contact me at (602) 255-2500.
Sincerely,

Gregory McKay Director
Enclosure

P.O. Box 6030 ♦ Site Code C010-23 ♦ Phoenix, AZ 85005-6030 Telephone (602) 255-2500

Case 2:15-cv-01259-NVW Document 173 Filed 04/05/16 Page 38 of 108 The Honorable Douglas A. Ducey Page 2
cc: President Andy Biggs, Arizona State Senate Speaker David M. Gowan Sr., Arizona State House of Representatives Senator Nancy Barto, Chairman, Senate Health and Human Services Committee Representative John M. Allen, Chairman, House Children and Family Affairs Committee Secretary of State Michele Reagan Kirk Adams, Chief of Staff, Office of the Governor Joan Clark, Director, Arizona State Library, Archives, and Public Records Lorenzo Romero, Director, Governor’s Office of Strategic Planning and Budgeting Laura Johnson, Budget Manager, Governor’s Office of Strategic Planning and Budgeting Christina Corieri, Health and Human Services Policy Advisor, Office of the Governor John Johnson, Division Chief Council, Child and Family Protection Division, Office of the Attorney General Emily Mercado, Analyst, Senate Health and Human Services Committee Ingrid Garvey, Analyst, House Children and Family Affairs Committee Wendy Baldo, Chief of Staff, Senate Majority Caucus Melissa Taylor, Senior Policy and Operations Advisor, Senate Majority Caucus Patsy Osmon, Policy Advisor, Senate Democratic Caucus Leslie Sorensen, Deputy Chief of Staff/Staff Attorney, House Majority Caucus Ryan Sullivan, Policy Advisor, House Majority Caucus Cynthia Aragon, Policy Advisor, House Democratic Caucus Representative Kate Brophy McGee, Arizona State House of Representatives

Case 2:15-cv-01259-NVW Document 173 Filed 04/05/16 Page 39 of 108
CHILD WELFARE REPORTING REQUIREMENTS SEMI-ANNUAL REPORT
FOR THE PERIOD OF APRIL 1, 2015 THROUGH SEPTEMBER 30, 2015
ARIZONA REVISED STATUTES [LAWS 2011, CHAPTER 147]
ARIZONA DEPARTMENT OF CHILD SAFETY

Case 2:15-cv-01259-NVW Document 173 Filed 04/05/16 Page 40 of 108

Child Welfare Reporting Requirements

April 1, 2015 - September 30, 2015

CHILD WELFARE REPORTING REQUIREMENTS

Arizona Revised Statute § 8-526 requires the Arizona Department of Child Safety (DCS) to compile information and produce a semi-annual report for the periods ending on March 31st and September 30th of
each year regarding Child Welfare Services. This report is for the semi-annual reporting period beginning
on April 1, 2015 and ending September 30, 2015.

TABLE OF CONTENTS (Reporting period: April 1, 2015 through September 30, 2015)
Page

EXECUTIVE SUMMARY……………………………………………………………………… 4

SEMI-ANNUAL COMPARISONS…………………………………………………………….. 7

REPORTS OF CHILD ABUSE AND NEGLECT Reports by reporting period and type of child maltreatment – statewide data………….. 8-9 Sample communications to hotline, not meeting definition of a report…………………. 10 Reports received by priority - statewide data……………………………...……………. 11 Number of reports received by priority – county specific data…………………………. 12 Number of reports received by maltreatment – statewide data…………………………. 13 Number of reports received by maltreatment – county specific data…………………… 14

ASSIGNMENT OF INVESTIGATIONS Reports assigned for investigation by priority – statewide data………………….…….. 15 Reports assigned for investigation by priority – county specific data………………….. 16 Reports assigned for investigation by type of maltreatment – statewide data………….. 17 Reports assigned for investigation by type of maltreatment – county specific data……. 18

INVESTIGATIONS OF CHILD ABUSE AND NEGLECT Reports not responded to by priority – county specific data……………………………. Investigations by priority – investigation open – statewide data…………….………….. Investigations by priority – investigation open – county specific data……..…….…….. Investigations by type of child maltreatment – investigation open – statewide data......... Investigations by type of child maltreatment – investigation open – county specific data……………………………………………………………………………………….. Reports where removal occurred – county specific data…………………………………

19-20 21 22 22
23 24-25

COMPLETED INVESTIGATIONS Substantiation rate by reporting period…………………………………………………... Investigations by priority – proposed substantiated reports – statewide data……….…... Investigations by priority – proposed substantiated reports – county specific data……... Investigations by type of child maltreatment – proposed substantiated reports – statewide data…………………………………………………………………………….. Investigations by type of child maltreatment – proposed substantiated reports – county specific data……………………………………………………………………………… Investigations by priority – substantiated reports – statewide data……….…………..….

25-26 27
27-28
28
29 30

Page 1 of 69

Case 2:15-cv-01259-NVW Document 173 Filed 04/05/16 Page 41 of 108

Child Welfare Reporting Requirements

April 1, 2015 - September 30, 2015

TABLE OF CONTENTS (continued) (Reporting period: April 1, 2015 through September 30, 2015)
Investigations by priority – substantiated reports county specific data………………..... Investigations by type of child maltreatment – substantiated reports – statewide data..… Investigations by type of child maltreatment – substantiated reports – county specific data……………………………………………………………………………………….. Investigations by priority – unsubstantiated reports – statewide data………….………... Investigations by priority – unsubstantiated reports – county specific data……….……. Investigations by type of child maltreatment – unsubstantiated reports – statewide data.. Investigations by type of child maltreatment – unsubstantiated reports – county specific data………………………………………………………………………………………..

Page 30-31
31
32 33 33-34 34
35

SAFE HAVEN INFANTS Number of Safe Haven infants delivered during reporting period………………………. 36

CHILDREN ENTERING OUT-OF-HOME CARE Total children entering out-of-home care………………………………………………... New entries by county – children under 18 years voluntary placement…………………. New entries by county…………………………………………………………………… New entries – statewide data……………………………………………………………...

36 36-37 38-39
40

CHILDREN IN OUT-OF-HOME CARE Children in out-of-home care by reporting period……………………………………….. 41 All children in care by age and ethnicity………………………………………………… 42 All children in care by case plan goal and placement type………………………………. 43 All children in care by placement type and age………………………………………….. 44 Children in shelter or receiving homes for more than 21 days…………………………... 45 Children in out-of-home care by length of time in care………………………………….. 45 Children in out-of-home care by legal status…………………………………………….. 46 Children receiving and not receiving required visitation………………………………… 47

FOSTER HOME LICENSING, CLOSURES, AND VISITATIONS

Foster homes licensed……………………………………………………………………. 48

Child bed spaces available……………………………………………………………….. 48

Foster homes closed and reason for closure …………………………………………...

48

Number of foster homes receiving the required visitation……………………………….. 49

CHILDREN EXITING OUT-OF-HOME CARE Semi-Annual comparisons of total number exiting care – for all reasons…………..…… 50 Total number exiting care…………………………………………………………….….. 51 Total number exiting care – for reason of reunification with parents………………..….. 52 Total number exiting care – for reason of living with other relatives……………….…... 53 Total number exiting care – for reason of adoption……………………………………... 54 Total number exiting care – for reason of guardianship……………………………….... 55

Page 2 of 69

Case 2:15-cv-01259-NVW Document 173 Filed 04/05/16 Page 42 of 108

Child Welfare Reporting Requirements

April 1, 2015 - September 30, 2015

TABLE OF CONTENTS (continued) (Reporting period: April 1, 2015 through September 30, 2015)
Page Total number exiting care – for reason of reaching age of majority…………………….. 56 Total number exiting care – for reason of transfer to another agency……………….….. 57 Total number exiting care – for reason of runaway…………………………….……….. 58 Total number exiting care – for reason of death of child…………………….………….. 59 Total number exiting care – by cause of death…………………………………………... 60 Total number exiting for reason of death of child – with alleged abuse…………………. 60

CHILDREN WITH CASE PLAN GOALS OF ADOPTION Number of children with a petition for termination of parental rights…………………... The placement and number of children with case plan goals of adoption by age……….. The placement and number of children with case plan goals of adoption by ethnicity….. The placement and number of children with case plan goals of adoption by legal status.. Number of children – length of time from change of case plan goals of adoption to adoptive placement………………………………………………………………………. Number of children in an adoptive placement by the marital status of the adoptive parent…………………………………………………………………………………….. Number of children in an adoptive placement by the relationship of the adoptive parent……………………………………………………………………………………..

61 61 62 62-63
64
64
65

DISRUPTIONS Number of children with a case plan goal of adoption in an adoptive placement and disrupted by age and ethnicity…………………………..………………………………. 65 Number of children with a case plan goal of adoption in an adoptive placement and disrupted by the marital status of the adoptive parent…..………………………………. 66 Number of children with a case plan goal of adoption in an adoptive placement and disrupted by the relationship of the adoptive parent...…..………………………………. 66

ADOPTIVE SERVICES Number of children with a finalized adoption…………………………………………… 67 Number of children with a finalized adoption by average length of time in out-of-home placement before adoptive placement……………………………………………………. 67 Number of children with a finalized adoption by average length of time in adoptive placement before the final order of adoption…………………………………………….. 68 Number of Children with a finalized adoption by the marital status of the adoptive parent……………………………………………………………………………………. 68 Number of children with a finalized adoption by the relationship of the adoptive parent. 69

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Case 2:15-cv-01259-NVW Document 173 Filed 04/05/16 Page 43 of 108

Child Welfare Reporting Requirements

April 1, 2015 - September 30, 2015

Executive Summary

The Arizona Department of Child Safety (DCS) is pleased to publish this semi-annual report for April 2015 through September 2015 in compliance with A.R.S. § 8-526. In May 2014, the Department of Child Safety was created as a permanent, stand-alone agency with the express mission of safeguarding Arizona’s abused and neglected children.

The data within this Semi-Annual Report assists with identifying areas for continued focus by the Department, stakeholders, policy makers, and advocacy groups. By working collaboratively toward shared goals, targeted resources and strategies will be implemented in a coordinated and purposeful manner, improving safety, permanency and well-being outcomes for children and families.

Child Abuse Hotline and Investigations

The statewide Child Abuse Hotline received 26,455 calls that met the statutory criteria for a report. Of these, 433 were within the jurisdiction of military or tribal governments and were referred to those jurisdictions. The total number of reports represents a four percent increase over the prior reporting period, and a 5.5 percent increase over the same reporting period last year. The Department continues to experience an increase in neglect reports, while the other maltreatment types have remained steady.

In addition to responding to all reports received in this reporting period, the Department closed more reports (15,076) this reporting period than any other reporting period in the past four years. This was accomplished even though DCS received more reports than it did in any other reporting period in the last four years. This total number of reports closed is limited to reports that were received during the reporting period and subsequently closed. Reports that were received in prior reporting periods and closed within this reporting period are not included in this total.

The DCS Strategic Plan was announced in July 2015 and identified several goals with deliverables for the Hotline and investigations. To date, the Department has completed several deliverables, including, but not limited to:

• Instituted notification to callers to the Hotline about false reporting penalties; • Hired dedicated audit staff at the Hotline for quality assurance; • Completed policy analysis on the investigation/assessment of very low risk families; • Created a new Hotline screening decision-making tool that clarifies report and
prioritization requirements; • Implemented a field guide that facilitates the collection and documentation of safety and
risk assessment information; • Created and implemented supervision guides for investigation and ongoing cases; • Created a review guide for Assistant Program Managers aligned with the safety;
assessment model for use in considered removals; • Implemented Multidisciplinary Team (MDT) reviews of fatality/near fatality cases; • Created a data dashboard to monitor open report volume and categorize reports by risk
factors; and • Created a dashboard to track overall investigation case management.
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Case 2:15-cv-01259-NVW Document 173 Filed 04/05/16 Page 44 of 108

Child Welfare Reporting Requirements

April 1, 2015 - September 30, 2015

Children in Out-of-Home Care
The Department remains committed to working with the community to keep children safe and prevent the need for children to be removed from their homes. Notwithstanding this commitment, the number of children in out-of-home care increased from 17,592 in the prior reporting period to 18,657 in September 2015.
The Department continues to make efforts to place children who have been removed from their home in the most family-like setting possible. In September 2015, 14,863 children – or approximately 80 percent of all children in out-of-home care – were placed with relatives, licensed foster parents, or trial home visit with a parent. Efforts to increase the number of licensed foster parents who are able to meet the needs of children requiring out-of-home placement resulted in 774 new homes being licensed during the reporting period.
As part of the strategic plan, the Department is striving to improve capacity to place children in family environments and fully meet the needs of children in care and their families. During this reporting period DCS was able to accomplish the following:
• Increased use of Placement Coordinators to identify available kinship placements upon removal;
• Expanded the use of software tools, e.g. Lexis Nexis, to find potential kinship placements; • Established Fostering Inclusion Respect Support Trust Advisory (FIRST) Commission; and • Established the Building Resilient Families program to deliver in-home prevention services
in Maricopa County for low risk families who have been the subject of a DCS investigation.
The state requires monthly face-to-face visitation with children in foster care. The current report shows that 84.4 percent of the children in foster care received their visitation during the last month of the reporting period. There is a strong correlation between caseworker visits with children and positive outcomes for these children, such as achieving permanency and other indicators of child well-being. The Department continues to make efforts to improve our rate of visitation.
Permanency for Children
Arizona is a national leader in the number of finalized adoptions. The Department remains committed to work toward achieving permanency for children placed in out-of-home care as demonstrated by increasing the total number of children achieving permanency through adoption. This number increased by two percent, from 1,576 during this reporting period compared to 1,552 during the same reporting period last year.
The Department demonstrated a significant increase in the number of children safely reunified with their families. 3,102 children exited DCS custody to reunify with their parents or primary caretakers this reporting period compared to 2,636 during the last reporting period, which is an 18% increase.
As part of the Strategic Plan, the Department continues recruitment efforts of foster and adoptive homes. Recently, the Department adjusted foster care reimbursement rates for families who are
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Case 2:15-cv-01259-NVW Document 173 Filed 04/05/16 Page 45 of 108

Child Welfare Reporting Requirements

April 1, 2015 - September 30, 2015

willing and capable of providing a home for youth ages 12 to 18 years old and sibling groups in this age group.

Strategic Goals to Address Challenges

The Department continues to face both workload and process challenges in its efforts to ensure safety and promote permanency for abused and neglected children. Examples of the more pressing challenges the Department continues to pursue include the increased number of children in out-ofhome care, the significant amount of overdue investigations, and the need to improve the hiring and training of qualified personnel. The Department’s Strategic Plan represents the leadership’s commitment to refocus attention and resources on the safety, permanency, and well-being of children in Arizona. Below are five strategic goals that address several of the most pressing challenges faced by the Department:

1. Improve objective decision-making at the Hotline and investigations. 2. Improve performance and quality of service through employee retention. 3. Reduce length of stay for children in out-of-home care. 4. Reduce recurrence of maltreatment by improving service delivery. 5. Improve capacity to place children in family environments.

As noted previously, the legislation enacted to create the Department included funding to increase the number of child safety specialists. Hiring these specialists during fiscal year 2015 presented a significant challenge to the Department. However, in September 2015 the Department had filled nearly all of its budgeted positions for child safety specialists, including staff at the Hotline.

The Department continues to assess processes and program controls to identify ways to address these challenges. Solutions will include partnering with the community and stakeholders to ensure that the safety and wellbeing of the children is always the top priority. The Department continues to work in partnership with the federal government to meet the federal Child and Family Service Review (CFSR) standards to improve outcomes for the children and families it serves.

The Department previously included three charts that were not required by A.R.S. § 8-526. In order to better align this report with the requirements of the statute, the Department is not including these charts anymore. Information on the number of children in care by placement type and by age is still included in Table 33 of this report.

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Case 2:15-cv-01259-NVW Document 173 Filed 04/05/16 Page 46 of 108

Child Welfare Reporting Requirements

April 1, 2015 - September 30, 2015

Number of Reports Received Number of Reports Substantiated1 Substantiation Rate Number of Reports Investigated & Closed Number of Reports Responded to Number of new removals Number of new removals with Voluntary under 18 Number of Children in Out-of-Home Care on the Last Day of Reporting Period Number of Children in Shelter for More than 21 Days Number and Percentage of Children Receiving Visitation In the Last Month of Reporting Period Number and Percentage of Children not Receiving Visitation Number and Percentage of Parents Receiving Visitation Number of Licensed Foster Homes2 Number of Foster Home Spaces Available to DCS Number of New Foster Homes Number of Foster Homes Closed Number and Percentage of Foster Homes Receiving Visitation In the Last Qtr. Of Reporting Period Number and Percentage of Foster Homes not Receiving Visitation Number of Children Leaving DCS Custody Number of Children With a Case Plan Goal of Adoption
Number of Children With a Finalized Adoption

Oct 2011 through Mar 2012 20,466 2,748
14% 10,345 19,274 4,968
150
12,453
713
9,728 (78.1%)
2,725 (21.9%) 1,081 (57.1%) 3,480 8,572
663 679
3,132 (79.9%)
790 (20.1) 3,826
2,663
1,224

Semi-Annual Comparisons

Apr 2012 through Sep 2012

Oct 2012 through Mar 2013

Apr 2013 through Sep 2013

Oct 2013 through Mar 2014

21,625

22,161

22,032

22,956

2,809 14% 9,168

2,588 13% 10,923

2,704 12% 11,212

3,190 14% 11,392

20,413 5,716 116

20,253 5,101
97

20,122 5,702 118

22,162 5,701
90

14,111

14,314

15,037

15,751

764

792

824

802

10,404 (73.7%)

12,101 (84.5%)

12,997 (86.4%)

13,818 (87.7%)

3,707 (26.3%)
1,017 (51.2%)
3,748
7,716
999
747

2,213 (15.5%)
1,058 (50.9%)
3,516
8,579
722
740

2,040 (13.6%)
1,157 (52.4%)
3,900
8,573
717
715

1,933 (12.3%)
1,344 (53.8%)
4,329
9,049
1,050
787

3,095 (82.6%)

3,316 (92.7)

3,491 (89.5%)

3,689 (85.2%)

653 (17.4%)
3,923

260 (7.3%)
4,668

409 (10.5%)
4,805

640 (14.8%)
4,786

2,719

2,852

3,311

3,417

1,025

1,270

1,215

1,518

Apr 2014 through Sep 2014 25,076 3,456
14% 12,038 24,435 6,461
189
16,990
868
14,846 (87.4%)
2,144 (12.6%) 1,315 (52.0%) 4,397 9,061
756 822
3,949 (89.8%)
448 (10.2%) 5,042
3,377
1,552

Oct 2014 through Mar 2015 25,508 3,535
14% 13,045 25,182 5,935
131
17,592
900
15,323 (87.1%)
2,269 (12.9%) 1,372 (55.7%) 4,497 9,079
821 785
3,881 (86.3%)
616 (13.7%) 5,063
3,449
1,629

Apr 2015 through Sep 2015 26,455 1,926
7% 15,076 26,022 6,819
154
18,657
878
15,746 (84.4%)
2,911 (15.6%) 1,576 (50.9%) 4,551 9,114
774 767
3,925 (86.2%)
626 (13.8%) 5,555
3,878
1,576

1 Since the appeals process delays the substantiation of reports, revisions to the substantiation rate for the prior reporting period will occur with every semi-annual report produced.
2 The number of available foster homes includes homes reported by the Department's Home Recruitment, Study and Supervision contractors along with foster homes utilized for appropriate children in coordination with the Division of Developmental Disabilities.
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Case 2:15-cv-01259-NVW Document 173 Filed 04/05/16 Page 47 of 108

Child Welfare Reporting Requirements

April 1, 2015 - September 30, 2015

Reports of Child Abuse & Neglect

Child abuse and neglect are defined in A.R.S. §8-201 and A.R.S. §13-3623 (A). These definitions provide the major categories in this report.

Between April 1, 2015 through September 30, 2015, there were 26,455 incoming communications to the Child Abuse Hotline that met the criteria for a report of abuse or neglect. Of these, 433 were within the jurisdiction of military or tribal governments and were referred to those jurisdictions. Compared to one year ago, there has been a 5.5 percent increase in reports received by the Child Abuse Hotline meeting the criteria of a report of abuse or neglect.

Table 1 shows the number of reports received by the Department by category of maltreatment for the current and past reporting periods. One consistent trend is the increase in the proportion of reports that meet the criteria of neglect. In accordance with Strategic Plan, the Department is examining current Child Abuse Hotline policies and procedures to improve objectivity within screening tools and improve interrater reliability.

TABLE 1 REPORTS BY REPORTING PERIOD AND TYPE OF MALTREATMENT

October 2011 – March 2012 April 2012 – September 2012 October 2012 – March 2013 April 2013 – September 2013 October 2013 – March 2014 April 2014 – September 2014 October 2014 – March 2015 April 2015 – September 2015

Neglect
13,369 65.3%
14,722 68.1%
14,916 67.2%
15,560 70.6%
15,766 68.7%
18,022 71.9%
18,338 71.9%
19,276 72.9%

Physical Abuse Sexual Abuse Emotional Abuse Total

6,198 30.3%

739 3.6%

160 0.8%

20,466 100.0%

5,974 27.6%

764 3.5%

165 0.8%

21,625 100.0%

6,263 28.3%

815 3.7%

167 0.8%

22,161 100.0%

5,607 25.5%

731 3.3%

134 0.6%

22,032 100.0%

6,248 27.2%

772 3.4%

170 0.7%

22,956 100.0%

6,074 24.2%

847 3.4%

133 0.5%

25,076 100.0%

6,254 24.5%

787 3.1%

129 0.5%

25,508 100.0%

6,086 23.0%

954 3.6%

139 0.5%

26,455 100.0%

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Case 2:15-cv-01259-NVW Document 173 Filed 04/05/16 Page 48 of 108

Child Welfare Reporting Requirements

April 1, 2015 - September 30, 2015

Chart 1 illustrates that the number of reports received by the Centralized Intake Hotline has increased by 1,379 reports over the same reporting period last year. The chart below also shows that the significant upward trend in reports received by the Centralized Intake Hotline has continued since FY 2012. This in turn resulted in more children entering out-of-home care (see Chart 18 for information on the out-of-home population).

CHART 1 REPORTS OF CHILD ABUSE AND NEGLECT BY REPORTING PERIOD

28,000

26,000

24,000

22,000

20,000 18,000

20,466

21,625

22,161

22,032

22,956

25,076

25,508

26,455

16,000

14,000

12,000

10,000 October 2011 – March 2012

April 2012 September
2012

October 2012 – March 2013

April 2013 September
2013

October 2013 – March 2014

April 2014 September
2014

October 2014 – March 2015

April 2015 September
2015

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Case 2:15-cv-01259-NVW Document 173 Filed 04/05/16 Page 49 of 108

Child Welfare Reporting Requirements

April 1, 2015 - September 30, 2015

The Centralized Intake Hotline received a total of 78,531 calls during the reporting period. Of those, 75,482 were answered by a Hotline specialist and 2,658, or 3.5 percent, were abandoned calls. The 75,482 yielded 49,027 communications (includes calls, court orders, online submissions, mail, faxes and/or emails) and 26,455 reports of abuse and neglect. Communications do not meet the statutory criteria of a report of maltreatment. A random sample of communications was reviewed to identify the types of calls that do not get classified as reports of abuse and neglect. The results of this review are contained in the chart below.

CHART 2 SAMPLE OF COMMUNICATIONS TO THE CENTRALIZED INTAKE HOTLINE THAT DO NOT MEET THE STATUTORY REQUIREMENTS OF A REPORT OF ABUSE OR NEGLECT
80

Number of Communications

70

55

60

61.3%

50

40

30 20 10
0 A
N=90

4 4.4%
B

17 18.9%
C

3 3.3%
D Categories

4 4.4%
E

7 7.7%
F

0 0.0%
G

A = Concern Only/No Allegation of Child Abuse or Neglect B = Out of DCS Jurisdiction C = Call Appropriate for Law Enforcement Jurisdiction3 D = Non-Caretaker Neglect/Child No Longer at Risk E = Insufficient Information F = Truancy/Custody Issues G = Current Case Questions or Referrals

All communications that do not meet the statutory requirements for a field investigation of abuse or neglect are reviewed by supervisors or program specialists at the Hotline.

3 The category “Call Appropriate for Law Enforcement Jurisdiction” refers to a situation where the alleged perpetrator is not a parent or primary caretaker and the allegations, if true, would constitute a crime.
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Case 2:15-cv-01259-NVW Document 173 Filed 04/05/16 Page 50 of 108

Child Welfare Reporting Requirements

April 1, 2015 - September 30, 2015

Chart 3 below provides information on the number of reports that met each of the Centralized Intake Hotline priority classifications in the current and past reporting periods. In Table 2 and Table 3, data on total reports by priority is shown by county for the current and previous reporting periods. The priority determinations are made by personnel at the child abuse hotline after the review of multiple factors, however, below is a high level summary of each response time criteria.
PRIORITY 1: Present danger refers to an immediate, significant and clearly observable family condition present now that has resulted in or is likely to result in serious or severe harm requiring an immediate initial response.
PRIORITY 2: Impending danger may not be occurring in the present but is likely to occur in the immediate to near future and will likely result in serious or severe harm to a child.
PRIORITY 3: Reports that do not rise to the level of present or impending danger, but there is an incident of abuse or neglect that has happened in the past 30 days. This includes a current minor injury to the child.
PRIORITY 4: Reports that do not rise to the level of present or impending danger, but 1) there is an incident of abuse or neglect that happened more than 30 days ago, or 2) the date of last occurrence is unknown and there is no current physical indicator of maltreatment, or 3) there is unreasonable risk of harm to the child’s health or welfare.

CHART 3 NUMBER OF REPORTS RECEIVED BY PRIORITY

12,000

10,000

8,000

6,000

4,000

2,000

0

October 2011 -

April 2012 -

October 2012 -

April 2013 -

October 2013 -

April 2014 -

October 2014 -

April 2015 -

March 2012 September 2012 March 2013 September 2013 March 2014 September 2014 March 2015 September 2015

PRIORITY 1

PRIORITY 2

PRIORITY 3

PRIORITY 4

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Child Welfare Reporting Requirements

April 1, 2015 - September 30, 2015

TABLE 2

NUMBER OF REPORTS RECEIVED BY PRIORITY AND COUNTY FOR PERIOD OF

APRIL 1, 2015 THROUGH SEPTEMBER 30, 2015

COUNTY PRIORITY PRIORITY PRIORITY PRIORITY TOTAL

% OF

1

2

3

4

TOTAL

APACHE

31

20

44

30

125

0.5%

COCHISE

78

95

217

58

448

1.7%

COCONINO

89

73

165

81

408

1.5%

GILA

70

65

98

42

275

1.0%

GRAHAM

38

38

64

37

177

0.7%

GREENLEE

0

0

0

0

0

0.0%

LA PAZ

18

21

35

14

88

0.3%

MARICOPA

3,014

2,736

6,201

3,621

15,572

58.9%

MOHAVE

175

190

350

176

891

3.4%

NAVAJO

114

80

177

114

485

1.8%

PIMA

780

913

2,154

964

4,811

18.2%

PINAL

311

327

700

378

1,716

6.5%

SANTA CRUZ

33

19

65

77

194

0.7%

YAVAPAI

101

146

308

159

714

2.7%

YUMA

110

94

239

108

551

2.1%

STATEWIDE

4,962

4,817

10,817

5,859

26,455

100.0%

% OF TOTAL

18.8%

18.2%

40.8%

22.2%

100.0%

TABLE 3

NUMBER OF REPORTS RECEIVED BY PRIORITY AND COUNTY FOR PERIOD OF

OCTOBER 1, 2014 THROUGH MARCH 31, 2015

COUNTY PRIORITY PRIORITY PRIORITY PRIORITY TOTAL

% OF

1

2

3

4

TOTAL

APACHE

19

14

33

22

88

0.3%

COCHISE

74

103

164

58

399

1.6%

COCONINO

98

91

229

86

504

2.0%

GILA

34

54

65

32

185

0.7%

GRAHAM

31

36

65

48

180

0.7%

GREENLEE

3

0

4

3

10

<0.1%

LA PAZ

20

10

21

16

67

0.3%

MARICOPA

2,885

2,872

6,182

3,242

15,181

59.4%

MOHAVE

145

176

308

133

762

3.0%

NAVAJO

82

92

131

90

395

1.6%

PIMA

782

868

2,099

944

4,693

18.4%

PINAL

313

316

688

354

1,671

6.6%

SANTA CRUZ

17

16

52

64

149

0.6%

YAVAPAI

114

126

325

164

729

2.9%

YUMA

83

105

216

91

495

1.9%

STATEWIDE

4,700

4,879

10,582

5,347

25,508

100.0%

% OF TOTAL

18.4%

19.1%

41.5%

21.0%

100.0%

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Case 2:15-cv-01259-NVW Document 173 Filed 04/05/16 Page 52 of 108

Child Welfare Reporting Requirements

April 1, 2015 - September 30, 2015

The following chart and tables provide the number of reports categorized by type of maltreatment. The total number of reports received by type of maltreatment is displayed in Chart 4. In Table 4 and Table 5, data on the total reports by type of maltreatment is shown by county for the current and previous reporting periods.
CHART 4 NUMBER OF REPORTS RECEIVED BY TYPE OF MALTREATMENT

20,000

18,000

16,000

14,000

12,000

10,000

8,000

6,000

4,000

2,000

0

October 2011 April 2012 - October 2012 April 2013 - October 2013 April 2014 - October 2014 April 2015 -

– March 2012 September – March 2013 September – March 2014 September – March 2015 September

2012

2013

2014

2015

EMOTIONAL ABUSE

NEGLECT

PHYSICAL ABUSE

SEXUAL ABUSE

TABLE 4

NUMBER OF REPORTS RECEIVED BY TYPE OF MALTREATMENT AND COUNTY FOR

PERIOD OF APRIL 1, 2015 THROUGH SEPTEMBER 30, 2015

COUNTY EMOTIONAL NEGLECT PHYSICAL SEXUAL TOTAL

% OF

ABUSE

ABUSE

ABUSE

TOTAL

APACHE

0

98

21

6

125

0.5%

COCHISE

1

320

107

20

448

1.7%

COCONINO

2

302

85

19

408

1.5%

GILA

2

221

42

10

275

1.0%

GRAHAM

2

128

40

7

177

0.7%

GREENLEE

0

0

0

0

0

0.0%

LA PAZ

0

68

18

2

88

0.3%

MARICOPA

79

11,182

3,740

571

15,572

58.9%

MOHAVE

3

667

189

32

891

3.4%

NAVAJO

3

385

77

20

485

1.8%

PIMA

33

3,598

1,045

135

4,811

18.2%

PINAL

8

1,235

408

65

1,716

6.5%

SANTA CRUZ

1

134

46

13

194

0.7%

YAVAPAI

2

536

136

40

714

2.7%

YUMA

3

402

132

14

551

2.1%

STATEWIDE

139

19,276

6,086

954

26,455

100.0%

% OF TOTAL

0.5%

72.9%

23.0%

3.6%

100.0%

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Case 2:15-cv-01259-NVW Document 173 Filed 04/05/16 Page 53 of 108

Child Welfare Reporting Requirements

April 1, 2015 - September 30, 2015

TABLE 5

NUMBER OF REPORTS RECEIVED BY TYPE OF MALTREATMENT AND COUNTY FOR

PERIOD OF OCTOBER 1, 2014 THROUGH MARCH 31, 2015

COUNTY EMOTIONAL NEGLECT PHYSICAL SEXUAL TOTAL

% OF

ABUSE

ABUSE

ABUSE

TOTAL

APACHE

1

58

26

3

88

0.3%

COCHISE

1

285

95

18

399

1.6%

COCONINO

3

332

142

27

504

2.0%

GILA

1

142

36

6

185

0.7%

GRAHAM

1

132

39

8

180

0.7%

GREENLEE

0

7

3

0

10

<0.1%

LA PAZ

0

59

6

2

67

0.3%

MARICOPA

77

10,777

3,843

484

15,181

59.4%

MOHAVE

4

569

171

18

762

3.0%

NAVAJO

2

302

85

6

395

1.6%

PIMA

26

3,461

1,086

120

4,693

18.4%

PINAL

9

1,213

399

50

1,671

6.6%

SANTA CRUZ

0

98

43

8

149

0.6%

YAVAPAI

0

537

171

21

729

2.9%

YUMA

4

366

109

16

495

1.9%

STATEWIDE

129

18,338

6,254

787

25,508

100.0%

% OF TOTAL

0.5%

71.9%

24.5%

3.1%

100.0%

Page 14 of 69

Case 2:15-cv-01259-NVW Document 173 Filed 04/05/16 Page 54 of 108

Child Welfare Reporting Requirements

April 1, 2015 - September 30, 2015

ASSIGNMENT OF INVESTIGATIONS
During the current reporting period, there were 26,455 calls to the Hotline that met the statutory criteria for a report. Of those, 433 reports fell within the jurisdiction of military or tribal governments. All reports had response data entered at the time this report was compiled. The assignment of the remaining 26,022 reports for investigation is report in this section.
The tables and charts in this section provide statewide and county level information on these reports assigned to DCS. Of these, DCS completed 15,076 (57.9%) of their assigned investigations. Those not completed remain open when the investigation is still in process, when the specialist is waiting for the results of a law enforcement investigation and/or receipt of records that impact the investigation finding, or when the investigation has been completed but is awaiting supervisory review and approval.

CHART 5 NUMBER OF REPORTS ASSIGNED FOR INVESTIGATION BY PRIORITY AND
REPORTING PERIOD

12,000

10,682

10,492

10,000

8,000 6,000 4,000

4,824 4,740

5,776

4,129 4,814

5,291

2,000

0 April 2015 - September 2015, N=26,022

PRIORITY 1

PRIORITY 2

October 2014 – March 2015, N=25,182

PRIORITY 3

PRIORITY 4

Page 15 of 69

Case 2:15-cv-01259-NVW Document 173 Filed 04/05/16 Page 55 of 108

Child Welfare Reporting Requirements

April 1, 2015 - September 30, 2015

TABLE 6

NUMBER OF REPORTS ASSIGNED FOR INVESTIGATION BY PRIORITY AND COUNTY

FOR PERIOD OF APRIL 1, 2015 THROUGH SEPTEMBER 30, 2015

COUNTY PRIORITY PRIORITY PRIORITY PRIORITY TOTAL

% OF

1

2

3

4

TOTAL

APACHE

24

16

28

19

87

0.3%

COCHISE

78

95

217

58

448

1.7%

COCONINO

68

63

142

71

344

1.3%

GILA

52

57

87

34

230

0.9%

GRAHAM

32

35

58

33

158

0.6%

GREENLEE

0

0

0

0

0

0.0%

LA PAZ

11

15

24

12

62

0.2%

MARICOPA

3,000

2,725

6,191

3,615

15,531

59.8%

MOHAVE

170

188

349

174

881

3.4%

NAVAJO

80

69

150

96

395

1.5%

PIMA

771

903

2,141

957

4,772

18.3%

PINAL

298

320

687

366

1,671

6.4%

SANTA CRUZ

33

19

65

77

194

0.8%

YAVAPAI

99

141

304

156

700

2.7%

YUMA

108

94

239

108

549

2.1%

STATEWIDE

4,824

4,740

10,682

5,776

26,022

100.0%

% OF TOTAL

18.5%

18.2%

41.1%

22.2%

100.0%

TABLE 7

NUMBER OF REPORTS ASSIGNED FOR INVESTIGATION BY PRIORITY AND COUNTY

FOR PERIOD OF OCTOBER 1, 2014 THROUGH MARCH 31, 2015

COUNTY PRIORITY PRIORITY PRIORITY PRIORITY TOTAL

% OF

1

2

3

4

TOTAL

APACHE

11

9

23

14

57

0.2%

COCHISE

74

103

164

58

399

1.6%

COCONINO

78

80

214

76

448

1.8%

GILA

26

50

62

30

168

0.7%

GRAHAM

30

35

61

48

174

0.7%

GREENLEE

3

0

4

3

10

<0.1%

LA PAZ

17

7

18

14

56

0.2%

MARICOPA

2,870

2,864

6,178

3,232

15,144

60.1%

MOHAVE

142

173

308

132

755

3.0%

NAVAJO

57

74

117

78

326

1.3%

PIMA

771

862

2,088

940

4,661

18.5%

PINAL

294

311

672

350

1,627

6.5%

SANTA CRUZ

17

16

52

64

149

0.6%

YAVAPAI

112

126

316

161

715

2.8%

YUMA

83

104

215

91

493

2.0%

STATEWIDE

4,585

4,814

10,492

5,291

25,182

100.0%

% OF TOTAL

18.2%

19.1%

41.7%

21.0%

100.0%

Page 16 of 69

Case 2:15-cv-01259-NVW Document 173 Filed 04/05/16 Page 56 of 108

Child Welfare Reporting Requirements

April 1, 2015 - September 30, 2015

CHART 6 NUMBER OF REPORTS ASSIGNED FOR INVESTIGATION BY TYPE OF MALTREATMENT
AND REPORTING PERIOD

22,000 20,000 18,000 16,000 14,000 12,000 10,000
8,000 6,000 4,000 2,000
0

18,923
6,020 139
940 April 2015 - September 2015, N=26,022

18,083

6,192

128

779

October 2014 – March 2015, N=25,182

EMOTIONAL ABUSE

NEGLECT

PHYSICAL ABUSE

SEXUAL ABUSE

TABLE 8

NUMBER OF REPORTS ASSIGNED FOR INVESTIGATION BY TYPE OF MALTREATMENT

AND COUNTY FOR PERIOD OF APRIL 1, 2015 THROUGH SEPTEMBER 30, 2015

COUNTY EMOTIONAL NEGLECT PHYSICAL SEXUAL TOTAL

% OF

ABUSE

ABUSE

ABUSE

TOTAL

APACHE

0

69

15

3

87

0.3%

COCHISE

1

320

107

20

448

1.7%

COCONINO

2

253

73

16

344

1.3%

GILA

2

181

37

10

230

0.9%

GRAHAM

2

113

36

7

158

0.6%

GREENLEE

0

0

0

0

0

0.0%

LA PAZ

0

48

12

2

62

0.2%

MARICOPA

79

11,147

3,736

569

15,531

59.8%

MOHAVE

3

659

187

32

881

3.4%

NAVAJO

3

309

66

17

395

1.5%

PIMA

33

3,567

1,039

133

4,772

18.3%

PINAL

8

1,201

398

64

1,671

6.4%

SANTA CRUZ

1

134

46

13

194

0.8%

YAVAPAI

2

522

136

40

700

2.7%

YUMA

3

400

132

14

549

2.1%

STATEWIDE

139

18,923

6,020

940

26,022

100.0%

% OF TOTAL

0.5%

23.1%

23.1%

3.6%

100.0%

Page 17 of 69

Case 2:15-cv-01259-NVW Document 173 Filed 04/05/16 Page 57 of 108

Child Welfare Reporting Requirements

April 1, 2015 - September 30, 2015

TABLE 9

NUMBER OF REPORTS ASSIGNED FOR INVESTIGATION BY TYPE OF MALTREATMENT

AND COUNTY FOR PERIOD OF OCTOBER 1, 2014 THROUGH MARCH 31, 2015

COUNTY EMOTIONAL NEGLECT PHYSICAL SEXUAL TOTAL

% OF

ABUSE

ABUSE

ABUSE

TOTAL

APACHE

1

35

19

2

57

0.2%

COCHISE

1

285

95

18

399

1.6%

COCONINO

3

291

129

25

448

1.8%

GILA

1

128

33

6

168

0.7%

GRAHAM

1

126

39

8

174

0.7%

GREENLEE

0

7

3

0

10

<0.1%

LA PAZ

0

50

4

2

56

0.2%

MARICOPA

77

10,750

3,835

482

15,144

60.1%

MOHAVE

4

563

170

18

755

3.0%

NAVAJO

1

245

75

5

326

1.3%

PIMA

26

3,437

1,079

119

4,661

18.5%

PINAL

9

1,178

391

49

1,627

6.5%

SANTA CRUZ

0

98

43

8

149

0.6%

YAVAPAI

0

526

168

21

715

2.8%

YUMA

4

364

109

16

493

2.0%

STATEWIDE

128

18,083

6,192

779

25,182

100.0%

% OF TOTAL

0.5%

71.8%

24.6%

3.1%

100.0%

Page 18 of 69

Case 2:15-cv-01259-NVW Document 173 Filed 04/05/16 Page 58 of 108

Child Welfare Reporting Requirements

April 1, 2015 - September 30, 2015

INVESTIGATIONS OF CHILD ABUSE AND NEGLECT Responding to all reports that come into the Hotline remains a priority to the Department because it is essential to ensuring the safety of children. For the second consecutive reporting period, the Department responded to all reports received during this reporting period. Therefore, no data will be displayed in Table 10 and Chart 7 below.

TABLE 10

NUMBER OF REPORTS WITHOUT RESPONSE DATA BY PRIORITY AND COUNTY FOR

PERIOD OF APRIL 1, 2015 THROUGH SEPTEMBER 30, 2015

COUNTY PRIORITY PRIORITY PRIORITY PRIORITY TOTAL

% OF

1

2

3

4

TOTAL

APACHE

0

0

0

0

0

0.0%

COCHISE

0

0

0

0

0

0.0%

COCONINO

0

0

0

0

0

0.0%

GILA

0

0

0

0

0

0.0%

GRAHAM

0

0

0

0

0

0.0%

GREENLEE

0

0

0

0

0

0.0%

LA PAZ

0

0

0

0

0

0.0%

MARICOPA

0

0

0

0

0

0.0%

MOHAVE

0

0

0

0

0

0.0%

NAVAJO

0

0

0

0

0

0.0%

PIMA

0

0

0

0

0

0.0%

PINAL

0

0

0

0

0

0.0%

SANTA CRUZ

0

0

0

0

0

0.0%

YAVAPAI

0

0

0

0

0

0.0%

YUMA

0

0

0

0

0

0.0%

STATEWIDE

0

0

0

0

0

0.0%

% OF TOTAL

0.0%

0.0%

0.0%

0.0%

0.0%

By statute, a random sample of reports that do not have data on an investigative response in each reporting period is required. In addition, short descriptions of these reports are also required. As all reports were responded to during this period, there is no data to be sampled and displayed in Chart 7.

Page 19 of 69

Case 2:15-cv-01259-NVW Document 173 Filed 04/05/16 Page 59 of 108

Child Welfare Reporting Requirements

April 1, 2015 - September 30, 2015

CHART 7 NUMBER OF REPORTS WITHOUT RESPONSE DATA BY CATEGORY FOR THE PERIOD
OF APRIL 1, 2015 THROUGH SEPTEMBER 30, 2015
125

Number of Communications

100

75

50

25

0

A

B

C

D

E

F

G

H

I

J

K

Categories

N=0

A = Adolescent, Past Abuse, No Current Injuries B = Inadequate Housekeeping Standards C = Inappropriate Vehicle Operation D = No Specific Allegations E = Past Abuse no current injuries F = Adolescent, current minor injuries G = Non-adolescent, current minor injuries H = Poor parenting skills I = Left with inappropriate caregiver J = Law Enforcement Issue K = Out of Control Teenager

Page 20 of 69

Case 2:15-cv-01259-NVW Document 173 Filed 04/05/16 Page 60 of 108

Child Welfare Reporting Requirements

April 1, 2015 - September 30, 2015

CHART 8 NUMBER OF REPORTS ASSIGNED FOR INVESTIGATION BY PRIORITY AND
REPORTING PERIOD FOR REPORTS OPEN FOR INVESTIGATION

7,000 6,000 5,000 4,000 3,000 2,000 1,000
0

4,952

1,456

1,880

2,658

April 2015 - September 2015, N=10,946

PRIORITY 1

PRIORITY 2

2,740

1,151 709

1,339

October 2014 - March 2015, N=5,939

PRIORITY 3

PRIORITY 4

TABLE 11

NUMBER OF REPORTS BY PRIORITY AND COUNTY FOR REPORTS OPEN FOR

INVESTIGATION FOR PERIOD OF APRIL 1, 2015 THROUGH SEPTEMBER 30, 2015

COUNTY PRIORITY PRIORITY PRIORITY PRIORITY TOTAL

% OF

1

2

3

4

TOTAL

APACHE

0

1

4

4

9

0.1%

COCHISE

48

61

161

44

314

2.9%

COCONINO

16

17

41

21

95

0.9%

GILA

32

47

72

29

180

1.6%

GRAHAM

19

22

39

20

100

0.9%

GREENLEE

0

0

0

0

0

0.0%

LA PAZ

5

5

11

5

26

0.2%

MARICOPA

956

1,230

3,237

1,806

7,229

66.0%

MOHAVE

58

74

169

94

395

3.6%

NAVAJO

3

4

15

7

29

0.3%

PIMA

166

217

629

313

1,325

12.1%

PINAL

84

121

357

151

713

6.5%

SANTA CRUZ

23

11

52

68

154

1.4%

YAVAPAI

28

52

101

67

248

2.3%

YUMA

18

18

64

29

129

1.2%

STATEWIDE

1,456

1,880

4,952

2,658

10,946

100.0%

% OF TOTAL

13.3%

17.2%

45.2%

24.3%

100.0%

Page 21 of 69

Case 2:15-cv-01259-NVW Document 173 Filed 04/05/16 Page 61 of 108

Child Welfare Reporting Requirements

April 1, 2015 - September 30, 2015

TABLE 12

NUMBER OF REPORTS BY PRIORITY AND COUNTY FOR REPORTS OPEN FOR

INVESTIGATION FOR PERIOD OF OCTOBER 1, 2014 THROUGH MARCH 31, 2015

COUNTY PRIORITY PRIORITY PRIORITY PRIORITY TOTAL

% OF

1

2

3

4

TOTAL

APACHE

0

0

0

0

0

0.0%

COCHISE

25

41

85

33

184

3.1%

COCONINO

1

9

7

6

23

0.4%

GILA

17

27

43

22

109

1.8%

GRAHAM

2

4

7

4

17

0.3%

GREENLEE

0

0

0

0

0

0.0%

LA PAZ

0

0

0

0

0

0.0%

MARICOPA

494

772

1,832

911

4,009

67.4%

MOHAVE

6

17

27

8

58

1.0%

NAVAJO

1

2

2

0

5

0.1%

PIMA

83

144

366

143

736

12.4%

PINAL

60

103

278

136

577

9.7%

SANTA CRUZ

6

8

38

48

100

1.7%

YAVAPAI

12

17

42

21

92

1.6%

YUMA

2

7

13

7

29

0.5%

STATEWIDE

709

1,151

2,740

1,339

5,939

100.0%

% OF TOTAL

11.9%

19.4%

46.1%

22.6%

100.0%

CHART 9 NUMBER OF REPORTS ASSIGNED FOR INVESTIGATION BY TYPE OF MALTREATMENT
FOR REPORTS OPEN FOR INVESTIGATION

9,000 8,000 7,000 6,000 5,000 4,000 3,000 2,000 1,000
0

7,637

2,725

67

517

April 2015 - September 2015, N=10,946

4,036

1,634

29

240

October 2014 - March 2015, N=5,939

EMOTIONAL ABUSE

NEGLECT

PHYSICAL ABUSE

SEXUAL ABUSE

The number of reports assigned for investigation for reports open for investigation will change each reporting period as investigations are completed and closed by next reporting period.

Page 22 of 69

Case 2:15-cv-01259-NVW Document 173 Filed 04/05/16 Page 62 of 108

Child Welfare Reporting Requirements

April 1, 2015 - September 30, 2015

TABLE 13

NUMBER OF REPORTS BY TYPE OF MALTREATMENT AND COUNTY FOR REPORTS

OPEN FOR INVESTIGATION FOR PERIOD OF

APRIL 1, 2015 THROUGH SEPTEMBER 30, 2015

COUNTY EMOTIONAL NEGLECT PHYSICAL SEXUAL TOTAL

% OF

ABUSE

ABUSE

ABUSE

TOTAL

APACHE

0

7

2

0

9

0.1%

COCHISE

1

216

81

16

314

2.9%

COCONINO

0

62

30

3

95

0.9%

GILA

2

138

31

9

180

1.6%

GRAHAM

1

66

26

7

100

0.9%

GREENLEE

0

0

0

0

0

0.0%

LA PAZ

0

21

3

2

26

0.2%

MARICOPA

43

4,974

1,880

332

7,229

66.0%

MOHAVE

3

289

85

18

395

3.6%

NAVAJO

0

24

5

0

29

0.3%

PIMA

10

957

285

73

1,325

12. %

PINAL

3

511

174

25

713

6.5%

SANTA CRUZ

1

103

40

10

154

1.4%

YAVAPAI

2

182

47

17

248

2.3%

YUMA

1

87

36

5

129

1.2%

STATEWIDE

67

7,637

2,725

517

10,946

100.0%

% OF TOTAL

0.6%

69.8%

24.9%

4.7%

100.0%

TABLE 14

NUMBER OF REPORTS BY TYPE OF MALTREATMENT AND COUNTY FOR REPORTS

OPEN FOR INVESTIGATION FOR PERIOD OF

OCTOBER 1, 2014 THROUGH MARCH 31, 2015

COUNTY EMOTIONAL NEGLECT PHYSICAL SEXUAL TOTAL

% OF

ABUSE

ABUSE

ABUSE

TOTAL

APACHE

0

0

0

0

0

0.0%

COCHISE

1

121

53

9

184

3.1%

COCONINO

0

15

6

2

23

0.4%

GILA

1

82

20

6

109

1.8%

GRAHAM

0

14

3

0

17

0.3%

GREENLEE

0

0

0

0

0

0.0%

LA PAZ

0

0

0

0

0

0.0%

MARICOPA

21

2,686

1,134

168

4,009

67.4%

MOHAVE

0

42

14

2

58

1.0%

NAVAJO

0

5

0

0

5

0.1%

PIMA

3

516

184

33

736

12.4%

PINAL

2

398

165

12

577

9.7%

SANTA CRUZ

0

62

33

5

100

1.7%

YAVAPAI

0

74

15

3

92

1.6%

YUMA

1

21

7

0

29

0.5%

STATEWIDE

29

4,036

1,634

240

5,939

100.0%

% OF TOTAL

0.5%

68.0%

27.5%

4.0%

100.0%

Page 23 of 69

Case 2:15-cv-01259-NVW Document 173 Filed 04/05/16 Page 63 of 108

Child Welfare Reporting Requirements

April 1, 2015 - September 30, 2015

CHART 10 NUMBER OF REPORTS ASSIGNED FOR INVESTIGATION WHERE A REMOVAL
OCCURRED

APACHE 13

COCHISE 43

COCONINO GILA
GRAHAM GREENLEE

50 19 10 0

LA PAZ 5

MARICOPA

MOHAVE

114

NAVAJO 40

PIMA

627

PINAL

198

SANTA CRUZ 21

YAVAPAI

65

YUMA 54

2,021

0 100 200 300 400 500 600 700 800 900 1,00 1,10 1,20 1,30 1,40 1,50 1,60 1,70 1,80 1,90 2,00 2,10 000000000000
April 1, 2015 - September 30, 2015, N=3,280

TABLE 15

NUMBER OF REPORTS ASSIGNED FOR INVESTIGATION BY COUNTY WHERE A

REMOVAL OCCURRED FOR THE PERIOD APRIL 1, 2015 THROUGH SEPTEMBER 30, 2015

COUNTY

NUMBER OF

NUMBER OF

% OF REPORTS WHERE

REPORTS REPORTS ASSIGNED A CHILD REMOVED

ASSIGNED WITH A REMOVAL

APACHE

87

13

14.9%

COCHISE

448

43

9.6%

COCONINO

344

50

14.5%

GILA

230

19

8.3%

GRAHAM

158

10

6.3%

GREENLEE

0

0

0.0%

LA PAZ

62

5

8.1%

MARICOPA

15,531

2,021

13.0%

MOHAVE

881

114

12.9%

NAVAJO

395

40

10.1%

PIMA

4,772

627

13.1%

PINAL

1,671

198

11.8%

SANTA CRUZ

194

21

10.8%

YAVAPAI

700

65

9.3%

YUMA

549

54

9.8%

STATEWIDE

26,022

3,280

12.6%

Page 24 of 69

Case 2:15-cv-01259-NVW Document 173 Filed 04/05/16 Page 64 of 108

Child Welfare Reporting Requirements

April 1, 2015 - September 30, 2015

TABLE 16

NUMBER OF REPORTS ASSIGNED FOR INVESTIGATION BY COUNTY WHERE A

REMOVAL OCCURRED FOR THE PERIOD OCTOBER 1, 2014 THROUGH MARCH 31, 2015

COUNTY

NUMBER OF

NUMBER OF

% OF REPORTS WHERE

REPORTS REPORTS ASSIGNED

A CHILD WAS

ASSIGNED WITH A REMOVAL

REMOVED

APACHE

57

6

10.5%

COCHISE

399

20

5.0%

COCONINO

448

44

9.8%

GILA

168

14

8.3%

GRAHAM

174

16

9.2%

GREENLEE

10

0

0.0%

LA PAZ

56

6

10.7%

MARICOPA

15,144

1,746

11.5%

MOHAVE

755

81

10.7%

NAVAJO

326

23

7.1%

PIMA

4,661

589

12.6%

PINAL

1,627

218

13.4%

SANTA CRUZ

149

12

8.1%

YAVAPAI

715

82

11.5%

YUMA

493

48

9.7%

STATEWIDE

25,182

2,905

11.5%

COMPLETED INVESTIGATIONS
Substantiated reports are reports where the Department has determined that at least one of the allegations in the report of abuse and/or neglect is true. The number of reports that are considered substantiated are a subset of the total number of reports that were received, investigated, and closed during the reporting period.
The preliminary number of reports that are substantiated for the current reporting period is 1,926. For the prior reporting period, the number of reports that were assigned for investigation that resulted in substantiated findings was revised from 1,606 to 3,535. This number will change each reporting period as a result of subsequent decisions based on parents’ rights to due process as well as the completion of investigations and findings.
• The preliminary substantiation rate for the current reporting period is 7%. However, the substantiation rate for the current period is anticipated to be revised upwards in the next semiannual report.
• The substantiation rate for the prior reporting period is 14%. However, when initially reported, the September 2014 – March 2015 substantiation rate was 6%.

Page 25 of 69

Case 2:15-cv-01259-NVW Document 173 Filed 04/05/16 Page 65 of 108

Child Welfare Reporting Requirements

April 1, 2015 - September 30, 2015

CHART 11 SUBSTANTIATION RATE BY REPORTING
PERIOD

20%

18%

16%

14%

14%

13%

14%

12%

14%

14%

14%

12% 7%
10%

8%

6%

4%

2%

0%

October 2011 - April 2012 - October 2012 - April 2013 - October 2013 - April 2014 - October 2014 - April 2054 -

March 2012 September March 2013 September March 2014 September March 2015 September

2012

2013

2014

2015

Information on both proposed substantiations and finalized substantiations is provided in the charts and tables below:
• For information on the proposed substantiated investigation findings—classified by priority—for the current and prior reporting period, see Chart 12, Table 17, and Table 18.
• For information on the proposed substantiated investigation findings—classified by type of maltreatment—for the current and prior reporting period, see Chart 13, Table 19, and Table 20.
• For information on the substantiated investigation findings—classified by priority—for the current and prior reporting period, see Chart 14, Table 21, and Table 22.
• For information on the substantiated investigation findings—classified by type of maltreatment— for the current and prior reporting period, see Chart 15, Table 23, and Table 24.

Page 26 of 69

Case 2:15-cv-01259-NVW Document 173 Filed 04/05/16 Page 66 of 108

Child Welfare Reporting Requirements

April 1, 2015 - September 30, 2015

CHART 12 NUMBER OF REPORTS ASSIGNED FOR INVESTIGATION BY PRIORITY AND
REPORTING PERIOD THAT RESULTED IN PROPOSED SUBSTANTIATION

700

667

600

500

400

370

366

300

248

200

100

0 April 2015 - Sept 2015, N=1,651

PRIORITY 1

PRIORITY 2

219 120

167 97

Oct 2014 - March 2015, N=603

PRIORITY 3

PRIORITY 4

TABLE 17

NUMBER OF REPORTS ASSIGNED FOR INVESTIGATION BY PRIORITY AND COUNTY

THAT RESULTED IN PROPOSED SUBSTANTIATION FOR PERIOD OF

APRIL 1, 2015 THROUGH SEPTEMBER 30, 2015

COUNTY PRIORITY PRIORITY PRIORITY PRIORITY TOTAL

% OF

1

2

3

4

TOTAL

APACHE

3

0

0

0

3

0.2%

COCHISE

8

11

8

2

29

1.8%

COCONINO

12

4

7

3

26

1.6%

GILA

4

3

0

0

7

0.4%

GRAHAM

3

0

1

0

4

0.2%

GREENLEE

0

0

0

0

0

0.0%

LA PAZ

0

0

2

0

2

0.1%

MARICOPA

424

218

224

198

1,064

64.4%

MOHAVE

32

23

22

3

80

4.9%

NAVAJO

15

3

6

1

25

1.5%

PIMA

98

79

59

18

254

15.3%

PINAL

39

18

15

20

92

5.6%

SANTA CRUZ

2

1

5

0

8

0.5%

YAVAPAI

20

8

14

2

44

2.7%

YUMA

7

2

3

1

13

0.8%

STATEWIDE

667

370

366

248

1,651

100.0%

% OF TOTAL

40.4%

22.4%

22.2%

15.0%

100.0%

Page 27 of 69

Case 2:15-cv-01259-NVW Document 173 Filed 04/05/16 Page 67 of 108

Child Welfare Reporting Requirements

April 1, 2015 - September 30, 2015

TABLE 18

NUMBER OF REPORTS ASSIGNED FOR INVESTIGATION BY PRIORITY AND COUNTY

THAT RESULTED IN PROPOSED SUBSTANTIATION FOR PERIOD OF

OCTOBER 1, 2014 THROUGH MARCH 31, 2015

COUNTY PRIORITY PRIORITY PRIORITY PRIORITY TOTAL

% OF

1

2

3

4

TOTAL

APACHE

0

0

0

1

1

0.1%

COCHISE

5

2

1

0

8

1.3%

COCONINO

3

3

3

1

10

1.7%

GILA

1

1

0

0

2

0.3%

GRAHAM

0

0

0

0

0

0.0%

GREENLEE

0

0

0

0

0

0.0%

LA PAZ

0

0

0

0

0

0.0%

MARICOPA

123

67

114

77

381

63.3%

MOHAVE

15

11

8

1

35

5.8%

NAVAJO

0

0

2

1

3

0.5%

PIMA

49

29

17

7

102

16.9%

PINAL

11

2

8

6

27

4.5%

SANTA CRUZ

0

0

1

1

2

0.3%

YAVAPAI

12

5

13

2

32

5.3%

YUMA

0

0

0

0

0

0.0%

STATEWIDE

219

120

167

97

603

100.0%

% OF TOTAL

36.3%

19.9%

27.7%

16.1%

100.0%

CHART 13 NUMBER OF REPORTS ASSIGNED FOR INVESTIGATION BY TYPE OF MALTREATMENT
THAT RESULTED IN PROPOSED SUBSTANTIATION

1,600 1,400 1,200 1,000
800 600 400 200
0

1,502

518

127

1

21

April 2015 - September 2015, N=1,651

EMOTIONAL ABUSE

NEGLECT

68

0

17

October 2014 - March 2015, N=603

PHYSICAL ABUSE

SEXUAL ABUSE

Page 28 of 69

Case 2:15-cv-01259-NVW Document 173 Filed 04/05/16 Page 68 of 108

Child Welfare Reporting Requirements

April 1, 2015 - September 30, 2015

TABLE 19

NUMBER OF REPORTS ASSIGNED FOR INVESTIGATION BY TYPE OF MALTREATMENT

BY COUNTY THAT RESULTED IN PROPOSED SUBSTANTIATION FOR PERIOD OF

APRIL 1, 2015 THROUGH SEPTEMBER 30, 2015

COUNTY EMOTIONAL NEGLECT PHYSICAL SEXUAL TOTAL

% OF

ABUSE

ABUSE

ABUSE

TOTAL

APACHE

0

3

0

0

3

0.2%

COCHISE

0

24

5

0

29

1.8%

COCONINO

0

25

1

0

26

1.6%

GILA

0

7

0

0

7

0.4%

GRAHAM

0

3

1

0

4

0.2%

GREENLEE

0

0

0

0

0

0.0%

LA PAZ

0

1

1

0

2

0.1%

MARICOPA

1

967

78

18

1,064

64.4%

MOHAVE

0

76

4

0

80

4.9%

NAVAJO

0

25

0

0

25

1.5%

PIMA

0

231

22

1

254

15.3%

PINAL

0

83

9

0

92

5.6%

SANTA CRUZ

0

8

0

0

8

0.5%

YAVAPAI

0

38

5

1

44

2.7%

YUMA

0

11

1

1

13

0.8%

STATEWIDE

1

1,502

127

21

1,651

100.0%

% OF TOTAL

0.1%

90.9%

7.7%

1.3%

100.0%

TABLE 20

NUMBER OF REPORTS ASSIGNED FOR INVESTIGATION BY TYPE OF MALTREATMENT

BY COUNTY THAT RESULTED IN PROPOSED SUBSTANTIATION FOR PERIOD OF

OCTOBER 1, 2014 THROUGH MARCH 31, 2015

COUNTY EMOTIONAL NEGLECT PHYSICAL SEXUAL TOTAL

% OF

ABUSE

ABUSE

ABUSE

TOTAL

APACHE

0

1

0

0

1

0.2%

COCHISE

0

8

0

0

8

1.3%

COCONINO

0

9

0

1

10

1.7%

GILA

0

2

0

0

2

0.3%

GRAHAM

0

0

0

0

0

0.0%

GREENLEE

0

0

0

0

0

0.0%

LA PAZ

0

0

0

0

0

0.0%

MARICOPA

0

314

53

14

381

63.2%

MOHAVE

0

30

5

0

35

5.8%

NAVAJO

0

2

1

0

3

0.5%

PIMA

0

98

4

0

102

16.9%

PINAL

0

25

1

1

27

4.5%

SANTA CRUZ

0

1

1

0

2

0.3%

YAVAPAI

0

28

3

1

32

5.3%

YUMA

0

0

0

0

0

0.0%

STATEWIDE

0

518

68

17

603

100.0%

% OF TOTAL

0.0%

85.9%

11.3%

2.8%

100.0%

Page 29 of 69

Case 2:15-cv-01259-NVW Document 173 Filed 04/05/16 Page 69 of 108

Child Welfare Reporting Requirements

April 1, 2015 - September 30, 2015

CHART 14 NUMBER OF REPORTS ASSIGNED FOR INVESTIGATION BY PRIORITY AND
REPORTING PERIOD THAT RESULTED IN SUBSTANTIATION

1,800 1,600 1,400 1,200 1,000
800 600 400 200
0

859 458

440 169

April 2015 - September 2015, N=1,926

PRIORITY 1

PRIORITY 2

1,456

869

858

352

October 2014 - March 2015, N=3,535

PRIORITY 3

PRIORITY 4

TABLE 21

NUMBER OF REPORTS ASSIGNED FOR INVESTIGATION BY PRIORITY AND COUNTY

THAT RESULTED IN SUBSTANTIATION FOR PERIOD OF

APRIL 1, 2015 THROUGH SEPTEMBER 30, 2015

COUNTY PRIORITY PRIORITY PRIORITY PRIORITY TOTAL

% OF

1

2

3

4

TOTAL

APACHE

2

0

0

0

2

0.1%

COCHISE

5

1

1

0

7

0.3%

COCONINO

6

4

4

1

15

0.8%

GILA

7

0

0

0

7

0.3%

GRAHAM

2

0

0

0

2

0.1%

GREENLEE

0

0

0

0

0

0.0%

LA PAZ

2

2

1

1

6

0.3%

MARICOPA

573

270

255

135

1,233

64.0%

MOHAVE

18

10

7

1

36

1.9%

NAVAJO

22

5

14

3

44

2.3%

PIMA

136

104

99

11

350

18.2%

PINAL

41

42

34

11

128

6.7%

SANTA CRUZ

5

0

1

0

6

0.3%

YAVAPAI

8

5

15

2

30

1.6%

YUMA

32

15

9

4

60

3.1%

STATEWIDE

859

458

440

169

1,926

100%

% OF TOTAL

44.5%

23.8%

22.9%

8.8%

100.0%

Page 30 of 69

Case 2:15-cv-01259-NVW Document 173 Filed 04/05/16 Page 70 of 108

Child Welfare Reporting Requirements

April 1, 2015 - September 30, 2015

TABLE 22

NUMBER OF REPORTS ASSIGNED FOR INVESTIGATION BY PRIORITY AND COUNTY

THAT RESULTED IN SUBSTANTIATION FOR PERIOD OF

OCTOBER 1, 2014 THROUGH MARCH 31, 2015

COUNTY PRIORITY PRIORITY PRIORITY PRIORITY TOTAL

% OF

1

2

3

4

TOTAL

APACHE

3

2

2

0

7

0.2%

COCHISE

14

7

6

1

28

0.8%

COCONINO

19

13

10

1

43

1.2%

GILA

6

6

0

0

12

0.3%

GRAHAM

15

7

5

2

29

0.8%

GREENLEE

0

0

0

0

0

0.0%

LA PAZ

9

1

2

1

13

0.4%

MARICOPA

941

511

537

262

2,251

63.6%

MOHAVE

47

23

18

3

91

2.6%

NAVAJO

19

13

14

3

49

1.4%

PIMA

240

178

163

40

621

17.6%

PINAL

75

68

54

29

226

6.4%

SANTA CRUZ

5

3

3

1

12

0.3%

YAVAPAI

24

15

19

4

62

1.8%

YUMA

39

22

25

5

91

2.6%

STATEWIDE

1,456

869

858

352

3,535

100.0%

% OF TOTAL

41.1%

24.6%

24.3%

10.0%

100.0%

CHART 15 NUMBER OF REPORTS ASSIGNED FOR INVESTIGATION BY TYPE OF MALTREATMENT
THAT RESULTED IN SUBSTANTIATION

3,000

2,969

2,500

2,000 1,500

1,650

1,000 500 0

232 43
1
April 2015 - September 2015, N=1,926

EMOTIONAL ABUSE

NEGLECT

480
82 4

October 2014 - March 2015, N=3,535

PHYSICAL ABUSE

SEXUAL ABUSE

Page 31 of 69

Case 2:15-cv-01259-NVW Document 173 Filed 04/05/16 Page 71 of 108

Child Welfare Reporting Requirements

April 1, 2015 - September 30, 2015

TABLE 23

NUMBER OF REPORTS ASSIGNED FOR INVESTIGATION BY TYPE OF MALTREATMENT

BY COUNTY THAT RESULTED IN SUBSTANTIATION FOR PERIOD OF

APRIL 1, 2015 THROUGH SEPTEMBER 30, 2015

COUNTY EMOTIONAL NEGLECT PHYSICAL SEXUAL TOTAL

% OF

ABUSE

ABUSE

ABUSE

TOTAL

APACHE

0

2

0

0

2

0.1%

COCHISE

0

6

1

0

7

0.4%

COCONINO

0

13

0

2

15

0.8%

GILA

0

5

2

0

7

0.4%

GRAHAM

0

2

0

0

2

0.1%

GREENLEE

0

0

0

0

0

0.0%

LA PAZ

0

6

0

0

6

0.3%

MARICOPA

0

1,061

145

27

1,233

63.9%

MOHAVE

0

32

4

0

36

1.9%

NAVAJO

1

36

6

1

44

2.3%

PIMA

0

297

48

5

350

18.1%

PINAL

0

109

15

4

128

6.7%

SANTA CRUZ

0

5

1

0

6

0.3%

YAVAPAI

0

24

3

3

30

1.6%

YUMA

0

52

7

1

60

3.1%

STATEWIDE

1

1,650

232

43

1,926

100.0%

% OF TOTAL

0.1%

85.6%

12.1%

2.2%

100.0%

TABLE 24

NUMBER OF REPORTS ASSIGNED FOR INVESTIGATION BY TYPE OF MALTREATMENT

BY COUNTY THAT RESULTED IN SUBSTANTIATION FOR PERIOD OF

OCTOBER 1, 2014 THROUGH MARCH 31, 2015

COUNTY EMOTIONAL NEGLECT PHYSICAL SEXUAL TOTAL

% OF

ABUSE

ABUSE

ABUSE

TOTAL

APACHE

0

5

2

0

7

0.2%

COCHISE

0

25

2

1

28

0.8%

COCONINO

0

35

7

1

43

1.2%

GILA

0

11

1

0

12

0.3%

GRAHAM

0

20

7

2

29

0.8%

GREENLEE

0

0

0

0

0

0.0%

LA PAZ

0

11

1

1

13

0.4%

MARICOPA

3

1,891

303

54

2,251

63.6%

MOHAVE

0

79

11

1

91

2.6%

NAVAJO

0

41

8

0

49

1.4%

PIMA

1

539

70

11

621

17.6%

PINAL

0

176

43

7

226

6.4%

SANTA CRUZ

0

12

0

0

12

0.3%

YAVAPAI

0

49

12

1

62

1.8%

YUMA

0

75

13

3

91

2.6%

STATEWIDE

4

2,969

480

82

3,535

100.0%

% OF TOTAL

0.1%

84.0%

13.6%

2.3%

100.0%

Page 32 of 69

Case 2:15-cv-01259-NVW Document 173 Filed 04/05/16 Page 72 of 108

Child Welfare Reporting Requirements

April 1, 2015 - September 30, 2015

The preliminary number of investigations that resulted in an unsubstantiated finding for this reporting period was 10,017. Charts 16 and 17 display information on unsubstantiated reports classified by priority and type of maltreatment for the current and prior reporting periods. Tables 25 and 26 provide information on the unsubstantiated investigation findings classified by priority for each county in the current and prior reporting periods. Tables 27 and 28 provide information on the unsubstantiated investigation findings classified by type of maltreatment for each county in the current and prior reporting periods. These figures will change over time as investigations are completed and findings are entered.

CHART 16 NUMBER OF REPORTS ASSIGNED FOR INVESTIGATION BY PRIORITY AND
REPORTING PERIOD THAT RESULTED IN UNSUBSTANTIATION

8,000 7,000 6,000 5,000 4,000 3,000 2,000 1,000
0

4,924

1,842

2,032

2,701

April 2015 - September 2015, N=11,499

PRIORITY 1

PRIORITY 2

6,702

2,235

2,696

3,474

October 2014 - March 2015, N=15,107

PRIORITY 3

PRIORITY 4

TABLE 25

NUMBER OF REPORTS ASSIGNED FOR INVESTIGATION BY PRIORITY AND COUNTY

THAT RESULTED IN UNSUBSTANTIATION FOR PERIOD OF

APRIL 1, 2015 THROUGH SEPTEMBER 30, 2015

COUNTY PRIORITY PRIORITY PRIORITY PRIORITY TOTAL

% OF

1

2

3

4

TOTAL

APACHE

19

15

24

15

73

0.6%

COCHISE

17

22

47

12

98

0.9%

COCONINO

34

38

90

46

208

1.8%

GILA

9

7

15

5

36

0.3%

GRAHAM

8

13

18

13

52

0.5%

GREENLEE

0

0

0

0

0

0.0%

LA PAZ

4

8

10

6

28

0.2%

MARICOPA

1,047

1,007

2,475

1,476

6,005

52.3%

MOHAVE

62

81

151

76

370

3.2%

NAVAJO

40

57

115

85

297

2.6%

PIMA

371

503

1,354

615

2,843

24.7%

PINAL

134

139

281

184

738

6.4%

SANTA CRUZ

3

7

7

9

26

0.2%

YAVAPAI

43

76

174

85

378

3.3%

YUMA

51

59

163

74

347

3.0%

STATEWIDE

1,842

2,032

4,924

2,701

11,499

100.0%

% OF TOTAL

16.0%

17.7%

42.8%

23.5%

100.0%

Page 33 of 69

Case 2:15-cv-01259-NVW Document 173 Filed 04/05/16 Page 73 of 108

Child Welfare Reporting Requirements

April 1, 2015 - September 30, 2015

TABLE 26

NUMBER OF REPORTS ASSIGNED FOR INVESTIGATION BY PRIORITY AND COUNTY

THAT RESULTED IN UNSUBSTANTIATION FOR PERIOD OF

OCTOBER 1, 2014 THROUGH MARCH 31, 2015

COUNTY PRIORITY PRIORITY PRIORITY PRIORITY TOTAL

% OF

1

2

3

4

TOTAL

APACHE

8

8

22

13

51

0.3%

COCHISE

30

53

72

24

179

1.2%

COCONINO

52

49

175

62

338

2.2%

GILA

2

16

19

9

46

0.3%

GRAHAM

11

20

40

27

98

0.7%

GREENLEE

2

0

4

3

9

0.1%

LA PAZ

8

6

16

13

43

0.3%

MARICOPA

1,323

1,516

3,634

1,950

8,423

55.8%

MOHAVE

75

118

248

121

562

3.7%

NAVAJO

40

74

129

80

323

2.1%

PIMA

411

529

1,544

753

3,237

21.4%

PINAL

159

144

370

193

866

5.7%

SANTA CRUZ

6

5

9

13

33

0.2%

YAVAPAI

64

82

234

132

512

3.4%

YUMA

44

76

186

81

387

2.6%

STATEWIDE

2,235

2,696

6,702

3,474

15,107

100.0%

% OF TOTAL

14.8%

17.9%

44.3%

23.0%

100.0%

CHART 17 NUMBER OF REPORTS ASSIGNED FOR INVESTIGATION BY TYPE OF MALTREATMENT
THAT RESULTED IN UNSUBSTANTIATION BY REPORTING PERIOD

12,000 10,000
8,000

8,134

10,575

6,000 4,000 2,000
0

2,936

70

359

April 2015 - September 2015, N=11,499

EMOTIONAL ABUSE

NEGLECT

4,005

435 92

October 2013 - March 2014, N=15,107

PHYSICAL ABUSE

SEXUAL ABUSE

Page 34 of 69

Case 2:15-cv-01259-NVW Document 173 Filed 04/05/16 Page 74 of 108

Child Welfare Reporting Requirements

April 1, 2015 - September 30, 2015

TABLE 27

NUMBER OF REPORTS ASSIGNED FOR INVESTIGATION BY TYPE OF MALTREATMENT

BY COUNTY THAT RESULTED IN UNSUBSTANTIATION FOR PERIOD OF

APRIL 1, 2015 THROUGH SEPTEMBER 30, 2015

COUNTY EMOTIONAL NEGLECT PHYSICAL SEXUAL TOTAL

% OF

ABUSE

ABUSE

ABUSE

TOTAL

APACHE

0

57

13

3

73

0.6%

COCHISE

0

74

20

4

98

0.9%

COCONINO

2

15331

42

11

208

1.8%

GILA

0

42

4

1

36

0.3%

GRAHAM

1

0

9

0

52

0.5%

GREENLEE

0

20

0

0

0

0.0%

LA PAZ

0

4,145

8

0

28

0.2%

MARICOPA

35

262

1,633

192

6,005

52.3%

MOHAVE

0

224

94

14

370

3.2%

NAVAJO

2

2,082

55

16

297

2.6%

PIMA

23

498

684

54

2,843

24.7%

PINAL

5

498

200

35

738

6.4%

SANTA CRUZ

0

18

5

3

26

0.2%

YAVAPAI

0

278

81

19

378

3.3%

YUMA

2

250

88

7

347

3.0%

STATEWIDE

70

8,134

2,936

359

11,499

100.0%

% OF TOTAL

0.6%

70.8%

25.5%

3.1%

100.0%

TABLE 28

NUMBER OF REPORTS ASSIGNED FOR INVESTIGATION BY TYPE OF MALTREATMENT

BY COUNTY THAT RESULTED IN UNSUBSTANTIATION FOR PERIOD OF

OCTOBER 1, 2014 THROUGH MARCH 31, 2015

COUNTY EMOTIONAL NEGLECT PHYSICAL SEXUAL TOTAL

% OF

ABUSE

ABUSE

ABUSE

TOTAL

APACHE

1

32

17

1

51

0.3%

COCHISE

0

131

40

8

179

1.2%

COCONINO

2

210

106

20

338

2.2%

GILA

0

34

12

0

46

0.3%

GRAHAM

1

72

23

2

98

0.7%

GREENLEE

0

6

3

0

9

0.1%

LA PAZ

0

39

3

1

43

0.3%

MARICOPA

51

5,813

2,315

244

8,423

55.8%

MOHAVE

4

402

141

15

562

3.7%

NAVAJO

2

236

78

7

323

2.1%

PIMA

22

2,316

823

76

3,237

21.4%

PINAL

6

624

206

30

866

5.7%

SANTA CRUZ

0

21

9

3

33

0.2%

YAVAPAI

0

361

136

15

512

3.4%

YUMA

3

278

93

13

387

2.6%

STATEWIDE

92

10,575

4,005

435

15,107

100.0%

% OF TOTAL

0.6%

70.0%

26.5%

2.9%

100.0%

Page 35 of 69

Case 2:15-cv-01259-NVW Document 173 Filed 04/05/16 Page 75 of 108

Child Welfare Reporting Requirements

April 1, 2015 - September 30, 2015

SAFE HAVEN INFANTS
Communications from providers indicate that there were no newborn infants delivered to Safe Haven providers during the April 2015 – September 2015 reporting period. This compares to two infants being delivered to Safe Haven providers during the prior reporting period.
CHILDREN ENTERING OUT-OF-HOME CARE
During the current reporting period, 6,819 children entered care, which represents a 14.9% increase in children entering care over the prior reporting period and a 5.5% increase over the same reporting period last year. As can be seen from Chart 18 below, the increasing trend of children entering out-of-home care continues. This increase in the number of children entering care is not unexpected as the number of reports of abuse and neglect has continued to increase (see Chart 1 for number of reports detail). It is important to note, however, that child welfare data is seasonal. The trend in the data shows a higher number of reports and therefore a higher number children entering out-of-home care in reporting periods that cover April through September. This seasonality can be attributed to higher call volume to the Hotline in April, Child Abuse Awareness month, and the close and start of the school year in May and August, respectively.

Number of Children

CHART 18 TOTAL CHILDREN ENTERING OUT-OF-HOME CARE BY REPORTING PERIOD

7,000 6,500 6,000 5,500 5,000

4,968

5,716

5,101

5,702 5,701

6,461

5,935

6,819

4,500

4,000

3,500

3,000

October 2011 - March
2012

April 2012 September
2012

October 2012 - March
2013

April 2013 September
2013

October 2013 - March
2014

April 2014 September
2014

October 2014 - March
2015

April 2015 September
2015

CHILDREN ENTERING OUT-OF-HOME CARE – VOLUNTARY SERVICES
The number of children entering out-of-home placement through voluntary foster care agreements for the current reporting period was 154, which represents 2.3 percent of the children entering care this reporting period. Information on the county level distribution of voluntary placements into out-of-home care can be found in Table 29 for the current reporting period and in Table 30 for the prior reporting period.
Voluntary foster care may be provided when the parents or legal guardians of a child have requested such assistance and have signed a legally binding written agreement for the temporary placement of the child in foster care while risk factors are addressed to enable the child to live safely at home. A.R.S. § 8-806 authorizes the Department to provide voluntary foster care placement for children for a period not to exceed 90 days and no more than twice within 24 consecutive months.
Page 36 of 69

Case 2:15-cv-01259-NVW Document 173 Filed 04/05/16 Page 76 of 108

Child Welfare Reporting Requirements

April 1, 2015 - September 30, 2015

TABLE 29

NUMBER OF CHILDREN ENTERING OUT-OF-HOME CARE BY COUNTY WHO ARE

VOLUNTARY PLACEMENTS FOR CHILDREN UNDER THE AGE OF EIGHTEEN FOR THE

PERIOD OF APRIL 1, 2015 THROUGH SEPTEMBER 30, 2015

COUNTY

NUMBER

% OF

NUMBER OF CHILDREN ENTERING % OF CHILDREN

OF

TOTAL

OUT-OF-HOME CARE UNDER THE ENTERING OUT-

CHILDREN REMOVALS

AGE OF EIGHTEEN WHO ARE

OF-HOME CARE

REMOVED

VOLUNTARY PLACEMENTS

WHO ARE

VOLUNTARY

PLACEMENTS

APACHE

21

0.3%

0

0.0%

COCHISE

85

1.3%

0

0.0%

COCONINO

86

1.3%

1

0.7%

GILA

42

0.6%

2

1.3%

GRAHAM

21

0.3%

0

0.0%

GREENLEE

0

0.0%

0

0.0%

LA PAZ

7

0.1%

0

0.0%

MARICOPA

4,271

62.6%

51

33.1%

MOHAVE

234

3.4%

13

8.4%

NAVAJO

64

0.9%

2

1.3%

PIMA

1,218

17.9%

67

43.4%

PINAL

468

6.9%

1

0.7%

SANTA CRUZ

43

0.6%

0

0.0%

YAVAPAI

147

2.2%

12

7.8%

YUMA

112

1.6%

5

3.3%

STATEWIDE

6,819

100.0%

154

2.3%

TABLE 30 NUMBER OF CHILDREN ENTERING OUT-OF-HOME CARE BY COUNTY WHO ARE

VOLUNTARY PLACEMENTS FOR CHILDREN UNDER THE AGE OF EIGHTEEN FOR THE

PERIOD OF OCTOBER 1, 2014 THROUGH MARCH 31, 2015

COUNTY

NUMBER

% OF

NUMBER OF CHILDREN ENTERING % OF CHILDREN

OF

TOTAL

OUT-OF-HOME CARE UNDER THE ENTERING OUT-

CHILDREN REMOVALS

AGE OF EIGHTEEN WHO ARE

OF-HOME CARE

REMOVED

VOLUNTARY PLACEMENTS

WHO ARE

VOLUNTARY

PLACEMENTS

APACHE

12

0.2%

0

0.0%

COCHISE

50

0.8%

0

0.0%

COCONINO

66

1.1%

7

5.3%

GILA

38

0.6%

2

1.5%

GRAHAM

29

0.5%

0

0.0%

GREENLEE

0

0.0%

0

0.0%

LA PAZ

20

0.3%

0

0.0%

MARICOPA

3,682

62.1%

50

38.2%

MOHAVE

166

2.8%

0

0.0%

NAVAJO

52

0.9%

1

0.8%

PIMA

1,105

18.7%

51

38.9%

PINAL

441

7.4%

3

2.3%

SANTA CRUZ

14

0.2%

0

0.0%

YAVAPAI

152

2.6%

11

8.4%

YUMA

108

1.8%

6

4.6%

STATEWIDE

5,935

100.0%

131

100.0%

Page 37 of 69

Case 2:15-cv-01259-NVW Document 173 Filed 04/05/16 Page 77 of 108

Child Welfare Reporting Requirements

April 1, 2015 - September 30, 2015

NUMBER OF CHILDREN ENTERING OUT-OF-HOME CARE
The total number of children entering out-of-home care (of which voluntary placements are a subset) in the current reporting period was 6,819, which represents an increase of 14.9 percent and a 5.5 percent increase over the same reporting period last year. Chart 19 displays the number of removed children, and then further differentiates new removals by providing the number with a prior removal in the past 12 months and the past 12 to 24 months. Information on the county level distribution of children entering out-of-home care can be found in Table 31 for the current period and Table 32 for the prior period.

TABLE 31

NUMBER OF CHILDREN ENTERING OUT-OF-HOME CARE BY COUNTY FOR THE

PERIOD OF APRIL 1, 2015 THROUGH SEPTEMBER 30, 2015

COUNTY

NUMBER

% OF

NUMBER OF

% OF NUMBER OF

% OF

OF

TOTAL

CHILDREN CHILDREN CHILDREN CHILDREN

CHILDREN REMOVALS WITH A PRIOR WITH A

WITH A

WITH A

REMOVED

REMOVAL IN

PRIOR

REMOVAL

PRIOR

THE LAST 12 REMOVAL IN THE

REMOVAL

MONTHS

IN THE PRIOR 12 TO IN THE

LAST 12 24 MONTHS PRIOR 12

MONTHS

TO 24

MONTHS

APACHE

21

0.3%

2

9.5%

1

4.8%

COCHISE

85

1.3%

9

10.6%

1

1.2%

COCONINO

86

1.3%

0

0.0%

0

0.0%

GILA

42

0.6%

5

11.9%

2

4.8%

GRAHAM

21

0.3%

0

0.0%

0

0.0%

GREENLEE

0

0.0%

0

0.0%

0

0.0%

LA PAZ

7

0.1%

0

0.0%

0

0.0%

MARICOPA

4,271

62.6%

305

7.1%

139

3.3%

MOHAVE

234

3.4%

17

7.3%

3

1.3%

NAVAJO

64

0.9%

2

3.1%

4

6.3%

PIMA

1,218

17.9%

125

10.3%

51

4.2%

PINAL

468

6.9%

33

7.1%

2

0.4%

SANTA CRUZ

43

0.6%

0

0.0%

0

0.0%

YAVAPAI

147

2.2%

6

4.1%

2

1.4%

YUMA

112

1.6%

11

9.8%

3

2.7%

STATEWIDE

6,819

100.0%

515

7.6%

208

3.1%

Page 38 of 69

Case 2:15-cv-01259-NVW Document 173 Filed 04/05/16 Page 78 of 108

Child Welfare Reporting Requirements

April 1, 2015 - September 30, 2015

TABLE 32

NUMBER OF CHILDREN ENTERING OUT-OF-HOME CARE BY COUNTY FOR THE

PERIOD OF OCTOBER 1, 2014 THROUGH MARCH 31, 2015

COUNTY

NUMBER

% OF

NUMBER OF

% OF NUMBER OF

% OF

OF

TOTAL

CHILDREN CHILDREN CHILDREN CHILDREN

CHILDREN REMOVALS WITH A PRIOR WITH A

WITH A

WITH A

REMOVED

REMOVAL IN

PRIOR

REMOVAL

PRIOR

THE LAST 12 REMOVAL IN THE

REMOVAL

MONTHS

IN THE PRIOR 12 TO IN THE

LAST 12 24 MONTHS PRIOR 12

MONTHS

TO 24

MONTHS

APACHE

12

0.2%

0

0.0%

0

0.0%

COCHISE

50

0.8%

6

12.0%

1

2.0%

COCONINO

66

1.1%

7

10.6%

0

0.0%

GILA

38

0.6%

2

5.3%

10

26.3%

GRAHAM

29

0.5%

4

13.8%

3

10.3%

GREENLEE

0

0.0%

0

0.0%

0

0.0%

LA PAZ

20

0.3%

1

5.0%

0

0.0%

MARICOPA

3,682

62.1%

303

8.2%

133

3.6%

MOHAVE

166

2.8%

25

15.1%

6

3.6%

NAVAJO

52

0.9%

2

3.8%

3

5.8%

PIMA

1,105

18.7%

120

10.9%

28

2.5%

PINAL

441

7.4%

32

7.3%

9

2.0%

SANTA CRUZ

14

0.2%

0

0.0%

0

0.0%

YAVAPAI

152

2.6%

17

11.2%

6

3.9%

YUMA

108

1.8%

12

11.1%

6

5.6%

STATEWIDE

5,935

100.0%

531

8.9%

205

3.5%

Page 39 of 69

Case 2:15-cv-01259-NVW Document 173 Filed 04/05/16 Page 79 of 108

Child Welfare Reporting Requirements

April 1, 2015 - September 30, 2015

CHART 19 NUMBER OF CHILDREN ENTERING OUT-OF-HOME CARE BY REPORTING PERIOD

7,000 6,000

6,819

5,935

5,000

4,000

3,000

2,000 1,000
0

515 208

531

205

April 2015 - September 2015

October 2014 - March 2015

Number of Children Removed Number of Children with a Prior Removal in the Last 12 Months Number of Children with a Prior Removal in the Prior 12 to 24 Months

Page 40 of 69

Case 2:15-cv-01259-NVW Document 173 Filed 04/05/16 Page 80 of 108

Child Welfare Reporting Requirements

April 1, 2015 - September 30, 2015

CHILDREN IN OUT-OF-HOME CARE
Chart 20 below shows the number of children in out-of-home care on the last day of the current and past reporting periods.
On the last day of the current reporting period, 14,863 children, approximately 80 percent, of all children in out-of-home care were placed in family settings either with relatives, in foster homes or trial home visit with a parent. Placement information for children in out-of-home care for the current and prior reporting periods can be found in Chart 27. See Table 33 for the out-of-home population organized to show the number of children, grouped by age, in each placement type for the current reporting period.
For information on the age distribution of children in out-of-home care, see Chart 24, which displays this information for the current and prior reporting periods. The ethnicity of children in out-of-home care for the current and prior reporting periods is displayed in Chart 25.
CHART 20 NUMBER OF CHILDREN IN OUT-OF-HOME CARE ON THE LAST DAY OF THE
REPORTING PERIOD BY REPORTING PERIOD

Number of Children

20,000

19,000

18,000 17,000 16,000 15,000

14,314

15,037

15,751

18,657 17,592 16,990

14,000 13,000

14,111

12,000 11,000

12,453

10,000

October April 2012 - October April 2013 - October April 2014 - October April 2015 2011 - September 2012 - September 2013 - September 2014 - September March 2012 2012 March 2013 2013 March 2014 2014 March 2015 2015

Page 41 of 69

Case 2:15-cv-01259-NVW Document 173 Filed 04/05/16 Page 81 of 108

Child Welfare Reporting Requirements

April 1, 2015 - September 30, 2015

Number of Children

CHART 21 THE NUMBER OF CHILDREN IN OUT-OF-HOME CARE BY AGE

8,000

7,000

6,000

5,000

4,000

3,000 2,000

1,503 8.1%

1,426 8.1%

1,000

6,234 33.4% 5,835
33.1%

3,005

2,915 16.6%

16.1%

3,049 16.3%

2,758 15.7%

3,988 3,823 21.4% 21.7%

878 4.7%

835 4.8%

0

Under 1

1-5

6-8

9-12

Ages of Children

13-17

18 and Over

September 30, 2015, N=18,657

March 31, 2015, N=17,592

Number of Children

CHART 22 THE NUMBER OF CHILDREN IN OUT-OF-HOME CARE BY ETHNICITY

8,000 7,000

6,645 6,438 35.6% 36.6%

6,000

6,571 35.2% 6,159
35.0%

5,000 4,000 3,000 2,000 1,000

2,800 15.0%

2,512 14.3%

1,506 1,396 8.1% 7.9%

201 196 1.1% 1.1%

934 5.0% 891
5.1%

0 Caucasian

Hispanic

African Am

Am Indian

Ethnicity

Asian

Other

September 30, 2015, N=18,657

March 31, 2015, N=17,592

For 54.9 percent of the children in out-of-home care, family reunification remains the primary case plan goal. See Chart 23 for additional detail on the case plan goals of children in out-of-home care.

Page 42 of 69

Case 2:15-cv-01259-NVW Document 173 Filed 04/05/16 Page 82 of 108

Child Welfare Reporting Requirements

April 1, 2015 - September 30, 2015

Number of Children

CHART 23 THE NUMBER OF CHILDREN IN OUT-OF-HOME CARE BY CASE PLAN
GOAL

12,000 11,000 10,000

10,231 54.9%

9,771 55.5%

9,000

8,000

7,000

6,000 5,000 4,000

3,878 20.8% 3,449
19.6%

3,000 2,000 1,000

173 152 0.9% 0.9%

241 245 1.3% 1.4%

0 Return to Family

Live With Other
Relatives

Adoption

Long Term Foster Care

Case Plan Goals

September 30, 2015, N=18,657

1,609 1,525 8.6% 8.7%

2,503 2,425 13.4% 13.8%
22 25 0.1% 0.1%

Independent Guardianship Living

Case Plan Goal Being Developed

March 31, 2015, N=17,592

Number of Children

CHART 24 THE NUMBER OF CHILDREN IN OUT-OF-HOME CARE BY PLACEMENT TYPE4

10,000 9,000 8,000 7,000 6,000

8,362 7,920 44.8% 44.9%
6,451 6,148 34.6% 35.0%

5,000

4,000 3,000 2,000 1,000

1,724 1,919 9.8% 10.3%
805 844 4.3% 4.8%

527 499 2.8% 2.8%

336 296 1.8% 1.7%

0

Relative

Family Group Home Residential Independent Runaway

Foster Home

Treatment

Living

Out-of-Home Placement Types

50 28 0.3% 0.2%

207 133 1.1% 0.8%

Trial Home No Identified

Visit

Pacement

September 30, 2015, N=18,657

March 31, 2015, N=17,592

4 In every reporting cycle DCS has children who, in the CHILDS database, do not have a placement identified when the data extract has run due to delays in CHILDS entry. It has been the historical practice of the Department to proportionally allocate the unidentified children across the placement types, but they are now reflected in a standalone category. The timeliness of CHILDS data entry is expected to increase as processes are standardized and workloads become more manageable.
Page 43 of 69

Case 2:15-cv-01259-NVW Document 173 Filed 04/05/16 Page 83 of 108

Child Welfare Reporting Requirements

April 1, 2015 - September 30, 2015

UNDER 1

TABLE 33

THE NUMBER OF CHILDREN IN OUT-OF-HOME CARE BY PLACEMENT TYPE AND AGE

RELATIVE

FAMILY FOSTER

GROUP RESIDENTIAL INDEPENDENT RUNAWAY /

HOME TREATMENT5

LIVING

ABSCONDED 6

TRIAL HOME VISIT

NO IDENTIFIED PLACEMENT

TOTAL

681

796

1

9

0

5

2

9

1,503

% OF TOTAL
8.1%

1

828

777

11

16

0

2

725

599

7

23

0

3

614

507

12

17

0

4

545

434

21

31

0

2

4

8

1,646 8.8%

1

0

11

1,366 7.3%

1

3

11

1,165 6.2%

1

1

11

1,044 5.6%

5

544

411

25

25

0

6

566

388

39

23

0

7

550

377

69

21

0

8

525

327

74

18

0

9

457

308

90

22

0

10

424

256

110

23

0

11

358

199

96

20

0

1

2

5

1,013 5.4%

3

4

7

1,030 5.5%

1

1

5

1,024 5.5%

0

0

7

951 5.1%

3

1

6

887 4.8%

1

3

9

826 4.4%

2

1

8

684 3.7%

12

300

179

131

27

0

2

4

9

652 3.5%

13

277

155

152

42

0

4

2

12

644 3.5%

14

275

166

176

66

0

20

6

11

720 3.9%

15

241

158

237

87

0

51

3

14

791 4.2%

16

221

174

269

109

0

91

3

18

885 4.7%

17

193

171

303

118

7

123

7

26

948 5.1%

18 & OLDER

38

69

96

108

520

24

3

20

878 4.7%

TOTAL
% OF TOTAL

8,362 44.8%

6,451 1,919 34.6% 10.3%

805 4.3%

527 2.8%

336 1.8%

50 0.3%

207 1.1%

18,657 100.0% 100.0%

5 This category includes shelter, detention, and hospital placement types. 6 This category includes children whose parents absconded with the child(ren) during this reporting period.
Page 44 of 69

Case 2:15-cv-01259-NVW Document 173 Filed 04/05/16 Page 84 of 108

Child Welfare Reporting Requirements

April 1, 2015 - September 30, 2015

During the reporting period 878 children remained in a shelter or receiving home for more than 21 consecutive days. Chart 25 displays children by age grouping who remained in shelter more than 21 days for the current reporting period.

CHART 25
NUMBER AND PERCENTAGE OF CHILDREN IN SHELTER OR RECEIVING HOMES FOR MORE THAN 21 CONSECUTIVE DAYS BY AGE OF CHILD7

600

500

434

433

49.3% 48.0%

400

Number of Children

300

158 157

200

18.0% 17.4%

100 19 2.2%

15 1.7%

0

Under 1 year

1-5

99

95

11.3% 10.6%

128 14.6%

159 17.7%

6-8

9-12

Ages of Children

13-17

40 41 4.6% 4.6%
18 and over

Number of Children

April 1, 2015 - September 30, 2015, N=878

October 1, 2014 - March 31, 2015, N=900

CHART 26 THE NUMBER OF CHILDREN IN OUT-OF-HOME CARE BY LENGTH OF TIME IN
CARE

11,000 10,000
9,000

9,423 50.5%

8,976 51.0%

8,000

7,000 6,000 5,000 4,000 3,000 2,000 1,000

1,034 5.5%

985 5.6%

4,772 25.6%

4,483 25.5%

3,428 18.4%

3,148 17.9%

0 30 days or less

31 days to 12 months

13 to 24 months

Length of Time in Out-of-Home Care

More than 24 months

September 30, 2015, N=18,657

March 31, 2015, N=17,592

7 …The chart displays children who spent more than 21 days in a shelter during the period. This number differs from the other out-of-home charts as they display children in out-of-home care on the last day of the reporting period.
Page 45 of 69

Case 2:15-cv-01259-NVW Document 173 Filed 04/05/16 Page 85 of 108

Child Welfare Reporting Requirements

April 1, 2015 - September 30, 2015

Information on the number of placements in terms of the average, median, and range for children in outof-home care on the last day of the reporting period is shown in Table 34.

TABLE 34

PLACEMENT INFORMATION FOR CHILDREN IN

OUT-OF-HOME CARE ON SEPTEMBER 30, 2015

Placements

Average

2.3

Median

2.0

Range Minimum

1

Range Maximum

598

Chart 27 displays the legal status of the children in out-of-home care for the current and prior reporting periods. As is shown by the graph, the vast majority of children in out-of-home care fall into one of three legal statuses – adjudicated dependent, legally free for adoption, and children in the Department’s temporary custody.

Number of Children

CHART 27 CHILDREN IN OUT-OF-HOME CARE BY LEGAL STATUS

10,000

9,354 50.1%

8,000

5,427

29.1% 5,237

6,000

29.8%

4,000

3,513 3,260 18.8% 18.5%

8,753 49.8%

2,000 0

181 181 1.0% 1.0%

Adjudicated Legally Free Temporary Dependent for Adoption Custody
Only

Partially Free for Adoption

66 57
0.4% 0.3% 00
0.0% 0.0%

Voluntary Placement Under 18

Voluntary Placement
Over 18

20 31 96 73 0.1% 0.2% 0.5% 0.4%

Dually Adjudicated

Other

Legal Status

September 30, 2015, N=18,657

March 31, 2015, N=17,592

8 .Some children are so impacted by the severity of the abuse they have suffered, that they become unable to form meaningful
….relationships or to respond to services. These children tend to go through multiple placements with numerous individuals and ….agencies.
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Case 2:15-cv-01259-NVW Document 173 Filed 04/05/16 Page 86 of 108

Child Welfare Reporting Requirements

April 1, 2015 - September 30, 2015

At the end of the reporting period there were 18,657 children in out-of-home care who required visitation. Of these children, visitation was documented in the automated system for 15,746 children.

CHART 28 THE NUMBER AND PERCENTAGE OF CHILDREN WHO RECEIVED THE REQUIRED
VISITATION

Number of Homes

20,000 18,000 16,000 14,000 12,000 10,000
8,000 6,000 4,000 2,000
0

15,746 84.4%

15,323 87.1%

Number Visited

2,911 15.6%

2,269 12.9%

Number Not Visited

April 2014 - September 2015, N=18,657

October 2014 - March 2015, N=17,592

Department policy requires specialists to have face-to-face contact with all parents at least once a month, including any alleged parents and parents residing outside of the child’s home where the case plan goal is family reunification. During the current reporting period, there were 3,096 parents who had a child with the case plan goal of reunification. Of those parents requiring visitation, 1,576 (50.9 percent) received the required visitation. This number does not reflect attempted visitation where contact with the parent(s) did not take place.

CHART 29 NUMBER OF CHILDREN RECEIVING AND NOT RECEIVING VISITATION BY
REPORTING PERIOD

17,000 15,000 13,000 11,000

9,728

10,404

12,101

12,997

13,818

14,846 15,323

15,746

Number of Children

9,000

7,000

5,000 3,000

2,725

3,707

2,213

2,040

1,933

2,144

2,269

2,911

1,000

October April 2012 - October April 2013 - October April 2014 - October April 2015 2011 - September 2012 - September 2013 - September 2014 - September March 2012 2012 March 2013 2013 March 2014 2014 March 2015 2015

Number of Children Receiving Visitation the Last Month of the Reporting Period Number of Children Not Receiving Visitation the Last Month of the Reporting Period

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Child Welfare Reporting Requirements

April 1, 2015 - September 30, 2015

FOSTER HOME LICENSING, CLOSURES, & VISITATION
As of September 30, 2015, there were 4,5519 foster homes licensed for a total capacity of 9,114 spaces. Of the spaces, 2,431 are reported by contractors to be unavailable for placements. Reasons for this include, but are not limited to, licensing restrictions on age, bed holds for youth in treatment or hospitalization, foster parents' need for temporary reprieve from placements and corrective action plans. In addition, 975 spaces in available foster homes were unused spaces. This occurs when a match between the available spaces and children’s needs was not possible. Unused spaces may be, but are not limited to, the result of a denial by foster parents and/or contractors to the Department's request for placement due to the severity of child's needs, potential risk to other children in the home, the distance of a foster home from child's family and/or lack of unique services in the foster home's vicinity.

Licensed foster homes include family foster homes, professional family foster homes (HCTC homes), respite foster homes, receiving foster homes, and developmentally disabled homes with DCS children placed in them. Foster home licenses specify the age range, gender and maximum number of children that can be placed in a home. Foster parents, in consultation with the licensing worker, decide the type of physical, behavioral, and psychological needs of children they can effectively parent based upon their own skill level, experiences, and desires.

During the current reporting period, 774 new homes were licensed to provide foster care and 767 homes left the system. This compares to 821 new homes being licensed and 785 homes leaving the system during the prior reporting period. The following chart gives the reasons for foster home closures for the current reporting period.

CHART 30 REASON FOR FOSTER HOME CLOSURE FOR THE PERIOD OF
APRIL 1, 2015 THROUGH SEPTEMBER 30, 2015

Number of Foster Homes

350 256
300 33.3% 250

200

123

150

16.0% 87

78

100 50

20 15 2.6% 2.0%

23 16 3.0% 2.1%

11.3%
12 2 1.6% 0.3%

59 10.2% 36

7.7%

4.8%

17 22 2.2% 2.9%

0

Adoption orDGisugarrudniatlendsDh/Diivpiosrscaeti/sMfiaerditalOIsHtsheueaerlstThLimaRceeklCaotofemPdlmacitemmeenntst/PPrieorrsitoensal/PrivatPeregRneRaRuneneclioffyuiccsaaettUidioonnCnreOAosPfupKto-ionnfss-LSihvicitepaetntPeoslaeLciEceexmnpesirnientdg-CARgleoegsnuecldaytboyryOALcCtiRon - OLCR

N=767

9 The number of homes cited in this report differs from the number cited by the Office of Licensing, Certification & Regulation (OLCR) due to the fact that the DCS utilizes both foster homes managed through HRSS contracts as well as homes that are licensed for developmental disabilities, licensed by the tribes, etc.
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April 1, 2015 - September 30, 2015

Chart 31 displays the number of foster homes that received the required visitation in the current and prior reporting periods. The Department believes that more foster homes received the required visitation than is indicated in the chart below. The under-reporting of foster home visitation is attributable to the lack of automation being used in reporting the foster home visitation process. The Department recognizes this as a problem and is working to correct this issue.

Number of Homes

CHART 31 THE NUMBER AND PERCENTAGE OF FOSTER HOMES WHO RECEIVED THE
REQUIRED VISITATION*

5,000 4,500 4,000 3,500 3,000 2,500 2,000 1,500 1,000
500 0

3,881 86.2%

3,925 86.3%
Number Visited

616 13.8%

626 13.7%

Number not visted

October 2014 - March 2015, N=4,497

April 2015 - September 2015, N=4,551

*Required visitations to foster homes, for license monitoring purposes, are performed by licensing case managers and are part of the HRSS contract.

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Child Welfare Reporting Requirements

April 1, 2015 - September 30, 2015

CHILDREN EXITING OUT-OF HOME CARE

Table 35 below shows the history of the number of children who left the custody of the Department.

TABLE 35 CHILDREN EXITING OUT-OF-HOME CARE BY PERIOD

REPORTING PERIOD

NUMBER OF % CHANGE CHILDREN OVER PRIOR DISCHARGED PERIOD

OCTOBER 2011 – MARCH 2012

3,826

+7.1%

APRIL 2012 – SEPTEMBER 2012

3,923

+2.5%

OCTOBER 2012 – MARCH 2013

4,668

+19.0%

APRIL 2013 – SEPTEMBER 2013

4,805

+2.9%

OCTOBER 2013 – MARCH 2014

4,786

-0.4%

APRIL 2014 – SEPTEMBER 2014

5,042

+5.3%

OCTOBER 2014 – MARCH 2015

5,063

+0.4%

APRIL 2015 – SEPTEMBER 2015

5,555

+10.2%

Number of Children

CHART 32 CHILDREN ENTERING AND EXITING OUT-OF-HOME CARE BY REPORTING
PERIOD

8000 7500 7000 6500 6000 5500 5000 4500 4000 3500 3000

Oct 2011 Mar 2012

Apr 2012Sep 2012

Oct 2012 Mar 2013

Apr 2013Sep 2013

Oct 2013 Mar 2014

Apr 2014Sep 2014

Oct 2014 Mar 2015

Apr 2015Sep 2015

Number of New Removals

Number of Exiting Foster Care

The following nine tables depict the children who exited out-of-home care by reason. The tables display the following information: reasons the child left custody, their age, their ethnicity, the number of placements each child had, and the length of time in out-of-home care.

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Child Welfare Reporting Requirements

April 1, 2015 - September 30, 2015

TABLE 36 TOTAL NUMBER OF CHILDREN EXITING DCS CUSTODY FOR THE END OF THE
REPORTING PERIOD ENDING ON SEPTEMBER 30, 2015

By Age

Number

Percentage

Under 1

293

5.3%

Ages 1 to 5

2,008

36.1%

Ages 6 to 8

966

17.4%

Ages 9 to 12

873

15.7%

Ages 13 to 17

992

17.9%

18 and Over

423

7.6%

Total

5,555

100.0%

Ethnicity Caucasian Hispanic African American American Indian Asian Other
Total

Number 2,112 1,851 782 446 77 287 5,555

Percentage 38.0% 33.3% 14.1% 8.0% 1.4% 5.2% 100.0%

By Number of Placements One Two Three Four Five More than Five
Total

Number 2,961 1,308 596 285 137 268 5,555

Percentage 53.3% 23.6% 10.7% 5.1% 2.5% 4.8% 100.0%

By Length of Time in Care Less than 30 Days 31 Days to 12 Months 13 to 24 Months More than 24 Months
Total

Number 885 1,759 1,626 1,285 5,555

Percentage 15.9% 31.7% 29.3% 23.1% 100.0%

By Age By Number of Placements By Months of Time in Care

Average 8.4 2.1 16.2

Median 7.4 1.0 13.7

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Child Welfare Reporting Requirements

April 1, 2015 - September 30, 2015

TABLE 37

NUMBER AND PERCENTAGE OF CHILDREN EXITING DCS CUSTODY

FOR REASON OF “REUNIFICATION WITH PARENTS OR PRIMARY CARETAKER” FOR

THE REPORTING PERIOD ENDING SEPTEMBER 30, 2015

By Age

Number

Percentage

Under 1

241

7.8%

Ages 1 to 5

1,078

34.8%

Ages 6 to 8

593

19.1%

Ages 9 to 12

541

17.4%

Ages 13 to 17

645

20.8%

18 and Over

4

0.1%

Total

3,102

100.0%

Ethnicity Caucasian Hispanic African American American Indian Asian Other
Total

Number 1,156 1,012 468 209 46 211 3,102

Percentage 37.3% 32.6% 15.1% 6.7% 1.5% 6.8% 100.0%

By Number of Placements One Two Three Four Five More than Five
Total

Number 1,833 740 289 125 57 58 3,102

Percentage 59.1% 23.9% 9.3% 4.0% 1.8% 1.9% 100.0%

By Length of Time in Care Less than 30 Days 31 Days to 12 Months 13 to 24 Months More than 24 Months
Total

Number 791 1,409 700 202 3,102

Percentage 25.5% 45.4% 22.6% 6.5% 100.0%

By Age By Number of Placements By Months of Time in Care

Average 7.8 1.7 9.3

Median 7.1 1.0 8.1

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Child Welfare Reporting Requirements

April 1, 2015 - September 30, 2015

TABLE 38

NUMBER AND PERCENTAGE OF CHILDREN EXITING DCS CUSTODY

FOR REASON OF “LIVING WITH OTHER RELATIVES” FOR THE REPORTING PERIOD

ENDING SEPTEMBER 30, 2015

By Age

Number

Percentage

Under 1

3

11.1%

Ages 1 to 5

6

22.2%

Ages 6 to 8

6

22.2%

Ages 9 to 12

6

22.2%

Ages 13 to 17

5

18.6%

18 and Over

1

3.7%

Total

27

100.0%

Ethnicity Caucasian Hispanic African American American Indian Asian Other
Total

Number 12 11 2 1 0 1 27

Percentage 44.5% 40.7% 7.4% 3.7% 0.0% 3.7% 100.0%

By Number of Placements One Two Three Four Five More than Five
Total

Number 24 2 0 0 0 1 27

Percentage 88.9% 7.4% 0.0% 0.0% 0.0% 3.7% 100.0%

By Length of Time in Care Less than 30 Days 31 Days to 12 Months 13 to 24 Months More than 24 Months
Total

Number 19 4 3 1 27

Percentage 70.4% 14.8% 11.1% 3.7% 100.0%

By Age By Number of Placements By Months of Time in Care

Average 8.4 1.3 4.6

Median 8.1 1.0 0.2

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Child Welfare Reporting Requirements

April 1, 2015 - September 30, 2015

TABLE 39

NUMBER AND PERCENTAGE OF CHILDREN EXITING DCS

CUSTODY FOR REASON OF “ADOPTION” FOR THE REPORTING PERIOD

ENDING SEPTEMBER 30, 2015

By Age

Number

Percentage

Under 1

30

1.9%

Ages 1 to 5

848

53.9%

Ages 6 to 8

303

19.2%

Ages 9 to 12

245

15.5%

Ages 13 to 17

150

9.5%

18 and Over

0

0.0%

Total

1,576

100.0%

Ethnicity Caucasian Hispanic African American American Indian Asian Other
Total

Number 629 562 200 120 17 48 1,576

Percentage 39.9% 35.7% 12.7% 7.6% 1.1% 3.0% 100.0%

By Number of Placements One Two Three Four Five More than Five
Total

Number 740 438 201 96 47 54 1,576

Percentage 46.9% 27.8% 12.8% 6.1% 3.0% 3.4% 100.0%

By Length of Time in Care Less than 30 Days 31 Days to 12 Months 13 to 24 Months More than 24 Months
Total

Number 1 104 677 794
1,576

Percentage 0.1% 6.6% 43.0% 50.3% 100.0%

By Age By Number of Placements By Months of Time in Care

Average 6.2 2.1 25.7

Median 5.1 2.0 24.2

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Child Welfare Reporting Requirements

April 1, 2015 - September 30, 2015

TABLE 40

NUMBER AND PERCENTAGE OF CHILDREN EXITING DCS CUSTODY

FOR REASON OF “GUARDIANSHIP” FOR THE REPORTING PERIOD

ENDING SEPTEMBER 30, 2015

By Age

Number

Percentage

Under 1

10

2.9%

Ages 1 to 5

54

15.7%

Ages 6 to 8

51

14.9%

Ages 9 to 12

70

20.4%

Ages 13 to 17

158

46.1%

18 and Over

0

0.0%

Total

343

100.0%

Ethnicity Caucasian Hispanic African American American Indian Asian Other
Total

Number 119 112 39 57 8 8 343

Percentage 34.7% 32.7% 11.4% 16.6% 2.3% 2.3% 100.0%

By Number of Placements One Two Three Four Five More than Five
Total

Number 208 59 43 23 5 5 343

Percentage 60.6% 17.2% 12.5% 6.7% 1.5% 1.5% 100.0%

By Length of Time in Care Less than 30 Days 31 Days to 12 Months 13 to 24 Months More than 24 Months
Total

Number 27 113 153 50 343

Percentage 7.9% 32.9% 44.6% 14.6%
100.0%

By Age By Number of Placements By Months of Time in Care

Average 11.1 1.8 15.2

Median 11.9 1.0 14.7

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Child Welfare Reporting Requirements

April 1, 2015 - September 30, 2015

TABLE 41

NUMBER AND PERCENTAGE OF CHILDREN EXITING DCS CUSTODY

FOR REASONS OF “REACHING AGE OF MAJORITY” FOR THE REPORTING PERIOD

ENDING SEPTEMBER 30, 2015

By Age

Number

Percentage

Under 1

0

0.0%

Ages 1 to 5

0

0.0%

Ages 6 to 8

0

0.0%

Ages 9 to 12

0

0.0%

Ages 13 to 17

0

0.0%

18 and Over

406

100.0%

Total

406

100.0%

Ethnicity Caucasian Hispanic African American American Indian Asian Other
Total

Number 167 138 62 29 5 5 406

Percentage 41.2% 34.0% 15.3% 7.1% 1.2% 1.2% 100.0%

By Number of Placements One Two Three Four Five More than Five
Total

Number 94 52 56 38 27 139 406

Percentage 23.2% 12.8% 13.8% 9.4% 6.7% 34.1% 100.0%

By Length of Time in Care Less than 30 Days 31 Days to 12 Months 13 to 24 Months More than 24 Months
Total

Number 9 95 78
224 406

Percentage 2.2% 23.4% 19.2% 55.2%
100.0%

By Age By Number of Placements By Months of Time in Care

Average 18.7 5.3 35.4

Median 18.1 4.0 27.2

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Child Welfare Reporting Requirements

April 1, 2015 - September 30, 2015

TABLE 42

NUMBER AND PERCENTAGE OF CHILDREN EXITING DCS CUSTODY

FOR REASON OF “TRANSFER TO ANOTHER AGENCY” FOR THE REPORTING PERIOD

ENDING SEPTEMBER 30, 2015

By Age

Number

Percentage

Under 1

6

9.7%

Ages 1 to 5

22

35.5%

Ages 6 to 8

13

21.0%

Ages 9 to 12

10

16.1%

Ages 13 to 17

10

16.1%

18 and Over

1

1.6%

Total

62

100.0%

Ethnicity Caucasian Hispanic African American American Indian Asian Other
Total

Number 14 7 5 28 0 8 62

Percentage 22.6% 11.3% 8.1% 45.1% 0.0% 12.9% 100.0%

By Number of Placements One Two Three Four Five More than Five
Total

Number 36 15 3 2 0 6 62

Percentage 58.1% 24.2% 4.8% 3.2% 0.0% 9.7% 100.0%

By Length of Time in Care Less than 30 Days 31 Days to 12 Months 13 to 24 Months More than 24 Months
Total

Number 23 21 9 9 62

Percentage 37.1% 33.9% 14.5% 14.5% 100.0%

By Age By Number of Placements By Months of Time in Care

Average 11.1 1.8 15.2

Median 11.9 1.0 14.7

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Child Welfare Reporting Requirements

April 1, 2015 - September 30, 2015

TABLE 43

NUMBER AND PERCENTAGE OF CHILDREN EXITING DCS CUSTODY

FOR REASON OF “RUNAWAY” FOR THE REPORTING PERIOD

ENDING SEPTEMBER 30, 2015

By Age

Number

Percentage

Under 1

0

0.0%

Ages 1 to 5

0

0.0%

Ages 6 to 8

0

0.0%

Ages 9 to 12

1

3.0%

Ages 13 to 17

21

63.7%

18 and Over

11

33.3%

Total

33

100.0%

Ethnicity Caucasian Hispanic African American American Indian Asian Other
Total

Number 13 7 5 2 1 5 33

Percentage 39.3% 21.2% 15.2% 6.1% 3.0% 15.2% 100.0%

By Number of Placements One Two Three Four Five More than Five
Total

Number 22 1 3 1 1 5 33

Percentage 66.7% 3.0% 9.1% 3.0% 3.0% 15.2% 100.0%

By Length of Time in Care Less than 30 Days 31 Days to 12 Months 13 to 24 Months More than 24 Months
Total

Number 15 8 6 4 33

Percentage 45.5% 24.2% 18.2% 12.1% 100.0%

By Age By Number of Placements By Months of Time in Care

Average 17.1 2.7 10.0

Median 17.5 1.0 1.3

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Child Welfare Reporting Requirements

April 1, 2015 - September 30, 2015

TABLE 44

NUMBER AND PERCENTAGE OF CHILDREN EXITING DCS CUSTODY

FOR REASON OF “DEATH OF CHILD” FOR THE REPORTING PERIOD ENDING

SEPTEMBER 30, 2015

By Age

Number

Percentage

Under 1

3

50.0%

Ages 1 to 5

0

0.0%

Ages 6 to 8

0

0.0%

Ages 9 to 12

0

0.0%

Ages 13 to 17

3

50.0%

18 and Over

0

0.0%

Total

6

100.0%

Ethnicity Caucasian Hispanic African American American Indian Asian Other
Total

Number 2 2 1 0 0 1 6

Percentage 33.3% 33.3% 16.7% 0.0% 0.0% 16.7% 100.0%

By Number of Placements One Two Three Four Five More than Five
Total

Number 4 1 1 0 0 0 6

Percentage 66.6% 16.7% 16.7% 0.0% 0.0% 0.0% 100.0%

By Length of Time in Care Less than 30 Days 31 Days to 12 Months 13 to 24 Months More than 24 Months
Total

Number 0 5 0 1 6

Percentage 0.0% 83.3% 0.0% 16.7%
100.0%

By Age By Number of Placements By Months of Time in Care

Average 8.2 1.5 12.4

Median 7.6 1.0 4.6

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Child Welfare Reporting Requirements

April 1, 2015 - September 30, 2015

TABLE 45

CHILDREN EXITING CARE FOR REASON OF DEATH BY CAUSE OF DEATH,

PLACEMENT TYPE AT TIME OF DEATH, AND COUNTY

COUNTY

CAUSE OF DEATH

TYPE OF PLACEMENT AT

TIME OF DEATH

Maricopa

Asthma and respiratory factors

DDD Foster Home

Unknown; child was born premature Hospital – Hacienda Health Care

Maricopa

and substance exposed

(skilled nursing facility)

Maricopa

Pneumonia and respiratory failure

Non relative foster home

Pima

Suicide

Runaway

Pima

Kidney failure

Hospice

Pinal

Unable to determine

Relative foster home

TABLE 46 NUMBER OF CHILDREN IN AN OPEN CASE WHO DIED AS A RESULT OF ALLEGED ABUSE AS CATEGORIZED BY THE CUSTODIAL RELATIONSHIP AND COUNTY FOR THE
PERIOD APRIL 1, 2015 THROUGH SEPTEMBER 30, 2015

COUNTY

BIOLOGICAL OTHER ADOPTIVE FOSTER OTHER OUT-OF- TOTAL % OF

PARENT(S) FAMILY PARENT(S) CARE

HOME CARE

TOTAL

MEMBER

PARENT(S) PROVIDER

APACHE

0

0

0

0

0

0

0.0%

COCHISE

0

0

0

0

0

0

0.0%

COCONINO

0

0

0

0

0

0

0.0%

GILA

0

0

0

0

0

0

0.0%

GRAHAM

0

0

0

0

0

0

0.0%

GREENLEE

0

0

0

0

0

0

0.0%

LA PAZ

0

0

0

0

0

0

0.0%

MARICOPA

3

0

0

2

0

5 62.5%

MOHAVE

2

0

0

0

0

2 25.0%

NAVAJO

0

0

0

0

0

0

0.0%

PIMA

0

0

0

0

0

0

0.0%

PINAL

1

0

0

0

0

1 12.5%

SANTA CRUZ

0

0

0

0

0

0

0.0%

YAVAPAI

0

0

0

0

0

0

0.0%

YUMA

0

0

0

0

0

0

0.0%

STATEWIDE

6

0

0

2

0

8 100.0%

% OF TOTAL

75.0%

0.0%

0.0%

25.0%

0.0%

100.0%

The number of child maltreatment deaths presented in the Semi-Annual Report is not comparable to child maltreatment deaths reported on the website by the Arizona Department of Health Services (ADHS).

• DCS posts information in accordance with A.R.S. § 8-807 on child fatalities due to abuse or neglect by the child’s parent, custodian or caregiver at: https://dcs.az.gov/news/child-fatalities-near-fatalitiesinformation-releases.
• This information is posted when the information comes to DCS's attention and a final determination of the fatality due to abuse or neglect has been made by either a substantiated finding or specific criminal charges filed against a parent, guardian or caregiver for causing the fatality.
• The information that comes to DCS's attention and the determination of the fatality due to abuse or neglect may occur sometime after the actual incident for a number of reasons including a
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Child Welfare Reporting Requirements

April 1, 2015 - September 30, 2015

determination by a medical professional, a medical examiner, or a criminal child abuse arrest and charge of the perpetrator.

CHILDREN WITH CASE PLAN GOALS OF ADOPTION
Of the 18,657 children in out-of-home care on September 30, 2015, there were 3,878 or 20.8% who had a case plan goal of adoption. Of those, 2,468 have been placed in an adoptive home and another 1,410 have not been placed. The age and ethnicity of the children with a case plan goal of adoption is displayed in Chart 33 and Chart 34.

CHART 33 THE PLACEMENT AND NUMBER OF CHILDREN WITH A CASE PLAN GOAL OF
ADOPTION BY AGE

1,400 1,200

1,139 46.2%

Number of Children

1,000

800
600
400 78 90
200 3.2% 6.4% 0 Under 1

597 42.3%

506 20.5%
259 18.4%

445 18.0%

265 18.8%

1-5

6-8

9-12

Ages of Children

299 12.1% 199
14.1%

1

0

<0.1% 0.0%

13-17

18 and Over

Placed, N=2,468

Not Placed, N=1,410

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April 1, 2015 - September 30, 2015

Number of Children

CHART 34 THE PLACEMENT AND NUMBER OF CHILDREN WITH A CASE
PLAN GOAL OF ADOPTION BY.ETHNICITY

1100 1000
900 800 700 600 500 400 300 200 100
0

816 33.1%

940 38.1%

525 37.2%

475 33.7%

355 14.4%
240 17.0%

243 9.9%
89 6.3%

31 1.3%

11 0.8%

83 3.4%

70 5.0%

Caucasian

Hispanic

Placed, N=2,468

African Am.

Am. Indian

Asian

Ethnicity

Not Placed, N=1,410

Other

TABLE 47

NUMBER OF CHILDREN WITH A PETITION FOR TERMINATION OF PARENTAL RIGHTS BY COUNTY FOR THE PERIOD APRIL 1, 2015 THROUGH SEPTEMBER 30, 2015

COUNTY TERMINATION TERMINATION TERMINATION TERMINATION TOTAL % OF

OF RIGHTS GRANTED

OF RIGHTS DENIED

OF RIGHTS GRANTED IN PART/DENIED
IN PART

OF RIGHTS WITHDRAWN

TOTAL

APACHE

5

0

0

0

5

0.2%

COCHISE

50

0

0

0

50 2.2%

COCONINO

20

0

0

0

20 0.9%

GILA

38

1

0

0

39 1.7%

GRAHAM

9

0

0

0

9

0.4%

GREENLEE

8

0

0

0

8

0.4%

LA PAZ

1

0

0

0

1 <0.1%

MARICOPA

965

1

0

4

970 43.2%

MOHAVE

61

0

0

0

61 2.7%

NAVAJO

31

0

0

0

31 1.4%

PIMA

635

2

0

3

640 28.5%

PINAL

269

3

0

0

272 12.1%

SANTA CRUZ

9

0

0

1

10 0.5%

YAVAPAI

47

0

0

0

47 2.1%

YUMA

84

0

0

0

84 3.7%

STATEWIDE

2,232

7

0

8

2,247 100.0%

% OF TOTAL

99.3%

0.3%

0.0%

0.4%

100.0%

Page 62 of 69

Case 2:15-cv-01259-NVW Document 173 Filed 04/05/16 Page 102 of 108

Child Welfare Reporting Requirements

April 1, 2015 - September 30, 2015

The average length of time that a child with a case plan goal of “adoption” has spent in out-of-home care is 2 years and 10 days. Information on the number of placements in terms of the average, median, and range for children with a case plan goal of adoption is shown below in Table 48.

TABLE 48

PLACEMENT INFORMATION FOR CHILDREN WITH A CASE PLAN GOAL OF ADOPTION

Placements

Average

2.6

Median

2.0

Range Minimum

1

Range Maximum

40

Number of Children

CHART 35 THE PLACEMENT AND NUMBER OF CHILDREN WITH A CASE PLAN GOAL OF
ADOPTION BY LEGAL STATUS

2,600 2,400 2,200 2,000 1,800 1,600 1,400 1,200 1,000
800 600 400 200
0

2,126 86.2%
808 57.3%
Legally Free

307 12.4%

585 41.5%

Not Free Legal Status

35 1.4%

17 1.2%

Partially Free*

Placed, N=2,468

Not Placed, N = 1,410

*Partially free refers to a situation where only one of the parent’s rights has been severed.

Page 63 of 69

Case 2:15-cv-01259-NVW Document 173 Filed 04/05/16 Page 103 of 108

Child Welfare Reporting Requirements

April 1, 2015 - September 30, 2015

CHART 36 THE NUMBER OF CHILDREN WITH A CASE PLAN GOAL OF ADOPTION BY LENGTH OF TIME FROM CHANGE OF CASE PLAN GOAL OF ADOPTION TO ADOPTIVE PLACEMENT

Number of Children

2,600 2,400 2,200 2,000 1,800 1,600 1,400 1,200 1,000
800 600 400 200
0

2,078 84.2%
Less than 1 month**

86 3.5%

113 4.6%

87 3.5%

65 2.6%

1 to 3 months 3 to 6 months 6 to 12 months 1 to 2 years Length of Time

27 1.1%

12 0.5%

2 to 3 years 3 or more years

Placed, N=2,468

**Approximately 70 percent of children are adopted by relatives or their foster parents and are already in their prospective adoptive placement at the time the case plan goal changes to adoption.
CHART 37 THE NUMBER OF CHILDREN WITH A CASE PLAN GOAL OF ADOPTION WHO WERE IN
AN ADOPTIVE PLACEMENT BY THE MARITAL STATUS OF THE ADOPTIVE PARENT

Number of Children

1,600 1,400 1,200 1,000
800 600 400 200
0

1,229 49.7%

1,207 54.3%

1,197 48.5%

976 43.9%

31 1.3%

30 1.4%

11 0.5%

8 0.4%

Divorced

Married

Single

Length of Time

Widowed

April 2015 - September 2015, N=2,468

October 2014 - March 2015, N=2,221

Page 64 of 69

Case 2:15-cv-01259-NVW Document 173 Filed 04/05/16 Page 104 of 108

Child Welfare Reporting Requirements

April 1, 2015 - September 30, 2015

CHART 38 THE NUMBER OF CHILDREN WITH A CASE PLAN GOAL OF ADOPTION WHO WERE IN
AN ADOPTIVE PLACEMENT BY THE RELATIONSHIP OF THE ADOPTIVE PARENT

Number of Children

1,400 1,200 1,000
800 600 400 200
0

1,184 48.0%

1,090 49.0%

987 40.0%

854 38.5%

297 12.0%

277 12.5%

Relative

Non-Relative Length of Time

Foster Parent

April 2015 - September 2015, N=2,468

October 2014 - March 2015, N=2,221

DISRUPTIONS
TABLE 49 THE NUMBER OF CHILDREN WITH A CASE PLAN GOAL OF ADOPTION WHO WERE IN
AN ADOPTIVE PLACEMENT AND DISRUPTED BY AGE AND ETHNICITY

By Age Under 1 Ages 1 – 5 Ages 6 – 8 Ages 9 – 12 Ages 13 – 17 18 and Over
Total

Number 0 0 0 0 3 0 3

Percentage 0.0% 0.0% 0.0% 0.0%
100.0% 0.0%
100.0%

Ethnicity Caucasian Hispanic African American American Indian Asian Other
Total

Number 1 1 1 0 0 0 3

Percentage 33.3% 33.3% 33.3% 0.0% 0.0% 0.0% 100.0%

Page 65 of 69

Case 2:15-cv-01259-NVW Document 173 Filed 04/05/16 Page 105 of 108

Child Welfare Reporting Requirements

April 1, 2015 - September 30, 2015

CHART 39 THE NUMBER OF CHILDREN WITH A CASE PLAN GOAL OF ADOPTION WHO WERE IN
AN ADOPTIVE PLACEMENT AND DISRUPTED BY THE MARITAL STATUS OF THE ADOPTIVE PARENT

Number of Children

6

4 57.1% 4 3 42.9%

2

0

0

0.0%

0.0%

0

Divorced

2 66.7%

1 33.3%

Married Length of Time

Single

0 0.0%

0 0.0%

Widowed

April 2015 - September 2015, N=3

October 2014 - March 2015, N=7

CHART 40 THE NUMBER OF CHILDREN WITH A CASE PLAN GOAL OF ADOPTION WHO WERE IN
AN ADOPTIVE PLACEMENT AND DISRUPTED BY THE RELATIONSHIP OF THE ADOPTIVE PARENT
6

Number of Children

4 2
66.7%
2

2 28.6%

1 33.3%

1 14.3%

0 Relative

Non-Relative / Non-Foster Parent

4 57.1%
0 0.0%
Foster Parent

April 2015 - September 2015, N=3

October 2014 - March 2015, N=7

Page 66 of 69

Case 2:15-cv-01259-NVW Document 173 Filed 04/05/16 Page 106 of 108

Child Welfare Reporting Requirements

April 1, 2015 - September 30, 2015

ADOPTIVE SERVICES
CHART 41 THE NUMBER OF CHILDREN WITH A FINALIZED ADOPTION

Number of Children

1,700

1,500 1,300 1,100
900

1,224

1,025

1,270

1,186

1,552

1,629

1,576

1,215

700
October April 2012- October April 2013- October April 2014- October April 20152011 - September 2012 - September 2013 - September 2014 - September March 2012 2012 March 2013 2013 March 2014 2014 March 2015 2015

There were 1,576 children with a finalized adoption during the reporting period. Chart 42 displays the number of children with a finalized adoption during the reporting period by the average length of time in out-of-home placement before adoptive placement.

CHART 42 THE NUMBER AND PERCENTAGE OF CHILDREN WITH A FINALIZED ADOPTION BY
AVERAGE LENGTH OF TIME IN OUT-OF-HOME PLACEMENT BEFORE ADOPTIVE PLACEMENT

Number of Children

1,400 1,200 1,000
800 600 400 200
0

925 58.7%

1,146 70.3%

Less than 1 year

470 29.8%

342 21.0%

141 9.0%

88 5.4%

1 to 2 years

2 to 3 years

Length of Time

40 2.5%

53 3.3%

More than 3 years

April 2015 - September 2015, N=1,576

October 2014 - March 2015, N=1,629

Page 67 of 69

Case 2:15-cv-01259-NVW Document 173 Filed 04/05/16 Page 107 of 108

Child Welfare Reporting Requirements

April 1, 2015 - September 30, 2015

The chart below displays the number of children with a finalized adoption by average length of time in adoptive placement before the final order of adoption.

CHART 43 THE NUMBER AND PERCENTAGE OF CHILDREN WITH A FINALIZED ADOPTION BY AVERAGE LENGTH OF TIME IN ADOPTIVE PLACEMENT BEFORE THE FINAL ORDER
OF ADOPTION

Number of Children

1,200 1,000
800 600 400 200
0

889 56.9%

755 46.3%

439 27.9%

597 36.7%

201 12.8%

220 13.5%

37 2.4%

57 3.5%

Less than 1 year

1 to 2 years

2 to 3 years

Length of Time

More than 3 years

April 2015 - September 2015, N=1,576

October 2014 - March 2015, N=1,629

Number of Children

CHART 44 THE NUMBER OF CHILDREN WITH A FINALIZED ADOPTION BY THE MARITAL
STATUS OF THE ADOPTIVE PARENT

1,200 1,000
800 600 400 200
0

31 2.0%

31 1.9%

Divorced

984 62.4%

921 56.5%

Married

April 2015 - September 2015, N=1,576

557 35.3%

674 41.4%

Single

4 0.3%

3 0.2%

Widowed

October 2014 - March 2015, N=1,629

Page 68 of 69

Case 2:15-cv-01259-NVW Document 173 Filed 04/05/16 Page 108 of 108

Child Welfare Reporting Requirements

April 1, 2015 - September 30, 2015

CHART 45 THE NUMBER OF CHILDREN WITH A FINALIZED ADOPTION BY THE RELATIONSHIP
OF THE ADOPTIVE PARENT TO THE CHILD

Number of Children

1,000 800 600 400 200 0

809 51.3%

659 40.5%

621 39.4%

800 49.1%

146 9.3%

170 10.4%

Relative

Non-Relative / Non-Foster Parent

Foster Parent

April 2015 - September 2015, N=1,576

October 2014 - March 2015, N=1,629

Page 69 of 69

 
 Case 2:15-cv-01259-NVW Document 244 Filed 03/16/17 Page 1 of 20

1 WO

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8

9 A.D., C.C., L.G., and C.R., by Carol Coghlan Carter, and Dr. Ronald Federici,
10 their next friends; S.H. and J.H., a married couple; M.C. and K.C., a married couple;
11 K.R. and P.R., a married couple; for themselves and on behalf of a class of
12 similarly-situated individuals,

No. CV-15-01259-PHX-NVW ORDER

13

Plaintiffs,

14 v.

15 Kevin Washburn, in his official capacity as

Assistant Secretary of Indian Affairs, 16 Bureau of Indian Affairs; Sally Jewell, in

17

her official capacity as Secretary of the Interior, U. S. Department of the Interior;

18

Gregory A. McKay, in his official capacity as Director of Arizona Department of Child

19 Safety,

20

Defendants,

21

Gila River Indian Community and the Navajo Nation,

22 Intervenor Defendants.

23

24

25

Before the Court are motions to dismiss the First Amended Complaint by the

26 Federal Defendants (Doc. 178) and the State Defendant (Doc. 179), the Responses, and

27 the Replies. Also before the Court are motions to dismiss the First Amended Complaint

28 by the Intervenor-Defendants Gila River Indian Community (Doc. 217) and the Navajo

Case 2:15-cv-01259-NVW Document 244 Filed 03/16/17 Page 2 of 20

1 Nation (Doc. 218), the response, and the replies. Amicus curiae briefs have been filed in

2 support of and in opposition to the motions to dismiss.

3

In this action the adult Plaintiffs and those who have undertaken to speak for the

4 child Plaintiffs attempt to challenge parts of the Indian Child Welfare Act (“ICWA”) as

5 unconstitutional racial discrimination. They also challenge Congress’s power to enact

6 laws regulating state court proceedings and ousting state laws concerning foster care

7 placement, termination of parental rights, preadoptive placement, and adoptive

8 placements of some off-reservation children of Indian descent. More specifically, these

9 are children whose parents elected to leave Indian Country and take up residence off

10 reservation with the benefits of and obligations under state law of all other persons within

11 the jurisdiction of the state and outside Indian Country.

12

Plaintiffs seek a declaration that certain provisions of the Indian Child Welfare Act

13 and of the Guidelines for State Courts and Agencies in Indian Child Custody Proceedings 14 published on February 25, 2015 (“2015 Guidelines”)1 by the Department of the Interior,

15 Bureau of Indian Affairs (“BIA”), violate the United States Constitution, federal civil

16 rights statutes, and Title VI of the Civil Rights Act by requiring State courts to treat

17 Indian children differently than non-Indian children in child custody proceedings. They

18 seek to enjoin the Federal Defendants from enforcing these provisions and the State

19 Defendant from complying with and enforcing these provisions. The Guidelines do not

20 have the force of law. They might be viewed uncharitably as avoiding the rule-making

21 requirements of the Administrative Procedures Act but still having enough of the look of

22 regulations that judges and others will follow them anyway.

23

In ICWA, adopted in 1978, Congress responded to the increasing adoption by non-

24 Indian families of Indian children resident off-reservation and subject to the exclusive

25 jurisdiction of state courts. Congress enacted ICWA:

26

. . . to protect the best interests of Indian children and to promote the

27

stability and security of Indian tribes and families by the establishment of

28

1 80 Fed. Reg. 10146–10159 (Feb. 25, 2015) (superseding and replacing the

guidelines published at 44 Fed. Reg. 67584–67595 (Nov. 28, 1979)).

- 2 -

Case 2:15-cv-01259-NVW Document 244 Filed 03/16/17 Page 3 of 20

1

minimum Federal standards for the removal of Indian children from their

2

families and the placement of such children in foster or adoptive homes

which will reflect the unique values of Indian culture, and by providing for

3

assistance to Indian tribes in the operation of child and family service

4

programs.

5 25 U.S.C. § 1902.

6

From the outset Plaintiffs have grounded sweeping challenges to ICWA and the

7 2015 Guidelines on vague or narrow allegations of their own experience with ICWA.

8 The motions to dismiss probe the jurisdictional specifics of each Plaintiff’s allegations.

9 I. REGULATORY BACKGROUND

Congress authorized the Department of the Interior to make rules and regulations 10

necessary for carrying out provisions of ICWA. 25 U.S.C. § 1952. The Department 11

promulgated regulations to govern funding and administering Indian child and family 12

service programs as authorized by ICWA. 25 C.F.R. § 23.1. The regulations also 13

addressed notice procedures for involuntary child custody proceedings involving Indian 14

children, but they “did not address the specific requirements and standards that ICWA 15

imposes upon State court child custody proceedings, beyond the requirements for 16

contents of the notice.” 80 Fed. Reg. 10146, 10147. To supplement the regulations, the 17

Department published guidelines for State courts to use in interpreting many of ICWA’s 18

requirements in Indian child custody proceedings. Id. In 2015, the Department published 19

the updated 2015 Guidelines to supersede and replace the guidelines published in 1979. 20

Id. Like the previous guidelines, the 2015 Guidelines are not tethered to regulations. 21

The 2015 Guidelines “provide standard procedures and best practices to be used in 22

Indian child welfare proceedings in State courts.” 80 Fed. Reg. 10146, 10147. They 23

state, “In order to fully implement ICWA, these guidelines should be applied in all 24

proceedings and stages of a proceeding in which the Act is or becomes applicable.” Id. at 25

10150. Although the 2015 Guidelines are not binding, Arizona courts nevertheless have 26

considered them in interpreting ICWA. Gila River Indian Cmty. v. Dep’t of Child Safety, 27

238 Ariz. 531, 535 (Ct. App. 2015); Gila River Indian Cmty. v. Dep’t of Child Safety, 240 28

Ariz. 385, 389 n.12 (Ct. App. 2016).

- 3 -

Case 2:15-cv-01259-NVW Document 244 Filed 03/16/17 Page 4 of 20

1

In June 2016, the Department added a new subpart to its regulations implementing

2 ICWA, which “addresses requirements for State courts in ensuring implementation of

3 ICWA in Indian child-welfare proceedings and requirements for States to maintain

4 records under ICWA.” 81 Fed. Reg. 38778, 38778 (June 14, 2016). The regulations in

5 the new subpart “clarify the minimum Federal standards governing implementation of

6 [ICWA] to ensure that ICWA is applied in all States consistent with the Act’s express

7 language, Congress’s intent in enacting the statute, and to promote the stability and

8 security of Indian tribes and families.” 25 C.F.R. § 23.101.

9

The new subpart became effective on December 12, 2016. None of the provisions

10 of the new subpart affects a proceeding under State law that was initiated before

11 December 12, 2016, but the provisions of the new subpart do apply to any subsequent

12 proceeding in the same matter or affecting the custody or placement of the same child.

13 23 C.F.R. § 23.143. For example, the new subpart does not apply to a foster care

14 placement proceeding initiated in November 2016, but it does apply to an adoptive

15 placement proceeding initiated in January 2017 for the same child.

16

In conjunction with the new subpart of ICWA regulations, on December 12, 2016,

17 the Department published Guidelines for Implementing the Indian Child Welfare Act

18 (“2016 Guidelines”), which replaced the 1979 and 2015 versions. Under each heading,

19 the 2016 Guidelines provide the text of the regulation (if there is one), guidance,

20 recommended practices, and suggestions for implementation.

21

The Amended Complaint does not challenge any regulations or the 2016

22 Guidelines. It challenges only certain provisions of ICWA and the 2015 Guidelines.

23 II. THE AMENDED COMPLAINT

24

A. Procedural Background

25

On July 6, 2015, Plaintiffs filed a Civil Rights Class Action Complaint for

26 Declaratory and Injunctive Relief. (Doc. 1.) On December 18, 2015, during oral

27 argument regarding standing issues raised in motions to dismiss, Plaintiffs’ counsel

28 indicated that Plaintiffs would like to amend their complaint to add additional plaintiffs.

- 4 -

Case 2:15-cv-01259-NVW Document 244 Filed 03/16/17 Page 5 of 20

1 (Doc. 122.) On February 22, 2016, the Court ordered Plaintiffs to file a status report

2 stating whether and when they planned to amend their complaint to add additional

3 plaintiffs. (Doc. 145.) On February 29, 2016, Plaintiffs reported they wanted to amend

4 their complaint to add two children and their foster/preadoptive parents as plaintiffs and

5 to update facts regarding pending State court proceedings. (Doc. 149.) On March 2,

6 2016, Plaintiffs sought leave to file an amended complaint, which Defendants opposed by

7 arguing, among other things, that both the proposed additional plaintiffs and the original

8 plaintiffs lacked standing. (Docs. 150, 160, 162.) On April 4, 2016, the Court granted

9 Plaintiffs leave to amend their complaint and denied the pending motions to dismiss as

10 moot. (Doc. 172.)

11

On April 5, 2016, Plaintiffs’ First Amended Civil Rights Class Action Complaint

12 for Declaratory, Injunctive, and Other Relief (“Amended Complaint”) was filed. (Doc.

13 173.) On April 22, 2016, the Federal Defendants and the State Defendant filed motions

14 to dismiss the Amended Complaint. (Docs. 178, 179.) On September 29, 2016, the Gila

15 River Indian Community and the Navajo Nation were granted permissive intervention,

16 and their proposed motions to dismiss the Amended Complaint were filed. (Doc. 216.)

17

B. Plaintiffs’ Claims for Relief

18

Count 1 of the Amended Complaint alleges that 25 U.S.C. §§ 1911(b), 1912(d),

19 1912(e), 1912(f), 1915(a), 1915(b) and §§ A.2, A.3, B.1, B.2, B.4, B.8, C.1, C.2, C.3,

20 D.2, D.3, F.1, F.2, F.3, F.4 of the 2015 Guidelines violate the equal protection guarantee

21 of the Fifth Amendment. Count 2 alleges that the same statutes and provisions of the

22 2015 Guidelines violate the due process guarantee of the Fifth Amendment. Count 3

23 alleges that the State Defendant’s compliance with the challenged statutes and sections of

24 the 2015 Guidelines violates the substantive due process and equal protection clauses of

25 the Fourteenth Amendment.

26

Count 4 alleges that ICWA exceeds the federal government’s power under the

27 Indian Commerce Clause and the Tenth Amendment and impermissibly commandeers

28 State courts and State agencies. Count 5 alleges that the challenged statutes and sections

- 5 -

Case 2:15-cv-01259-NVW Document 244 Filed 03/16/17 Page 6 of 20

1 of the 2015 Guidelines violate Plaintiffs’ associational freedoms under the First

2 Amendment by forcing them to associate with tribes and tribal communities. Count 6

3 alleges that the BIA exceeded its authority by publishing §§ C.1, C.2, and C.3 of the 2015

4 Guidelines, which expand application of § 1911(b) beyond its terms. Count 7 seeks

5 nominal damages of $1 to each of the named Plaintiffs and to each of the members of the

6 class they seek to represent under Title VI of the Civil Rights Act, 42 U.S.C. 7 §§ 2000d-2000d-7.2

8

C. The Parties

9

The Amended Complaint is filed on behalf of Plaintiffs and all off-reservation

10 Arizona-resident children with Indian ancestry and all off-reservation Arizona-resident

11 foster, preadoptive, and prospective adoptive parents in child custody proceedings

12 involving children with Indian ancestry.

13

Plaintiff A.D. is an enrolled member of the Gila River Indian Community.

14 Parental rights of A.D.’s biological parents have been terminated by the State court.

15 Plaintiffs S.H. and J.H., a married couple, are foster/preadoptive parents of A.D. and have

16 taken care of A.D. since birth. Their petition to adopt A.D. was pending in the State

17 court on April 5, 2016. Neither S.H. nor J.H. is an enrolled member of an Indian tribe or

18 eligible for membership in an Indian tribe.

19

Plaintiff C.C. is an enrolled member of the Navajo Nation. Parental rights of

20 C.C.’s biological parents were terminated, and adoption of C.C. by Plaintiffs M.C. and

21 K.C. was finalized by the State court in November 2015. C.C. continuously remained in

22 foster care with M.C. and K.C. for four years before the adoption was finalized. Neither

23 M.C. nor K.C. is an enrolled member of an Indian tribe or eligible for membership in an

24 Indian tribe.

25

2 Section 2000d states: “No person in the United States shall, on the ground of

26 race, color, or national origin, be excluded from participation in, be denied the benefits

27

of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” Section 2000d-7 provides that in a suit against a State for violating

28 § 2000d, remedies are available to the same extent they are available in a suit against any

public or private entity other than a State.

- 6 -

Case 2:15-cv-01259-NVW Document 244 Filed 03/16/17 Page 7 of 20

1

Plaintiff C.R. is eligible for membership in and is a child of a member of, or is

2 already an enrolled member of, the Gila River Indian Community. Plaintiff L.G. is

3 C.R.’s half-sibling and is not eligible for membership in the Pascua Yaqui Tribe of

4 Arizona. L.G. and C.R. were taken into protective custody when C.R. was born and L.G.

5 was about two years old. As of April 5, 2016, the parental rights of C.R.’s and L.G.’s

6 biological parents had not been terminated by the State court, which is treating C.R.’s and

7 L.G.’s cases as one. C.R. and L.G. have continuously remained in foster care with

8 Plaintiffs K.R. and P.R., a married couple, who want to adopt C.R. and L.G.

9

The Amended Complaint names Carol Coghlan Carter and Dr. Ronald Federici as

10 “next friends” to A.D., C.C., C.R., L.G., and all off-reservation children with Indian

11 ancestry in the State of Arizona in child custody proceedings.

12

The Federal Defendants are Kevin Washburn in his official capacity as Assistant

13 Secretary of Indian Affairs, BIA, and Sally Jewell in her official capacity as Secretary of

14 the Interior, U.S. Department of the Interior. The State Defendant is Gregory McKay in

15 his official capacity as Director of Arizona Department of Child Safety. Intervenor

16 Defendants are the Gila River Indian Community and the Navajo Nation, both federally

17 recognized tribes.

18 III. LEGAL STANDARD

19

On a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), all

20 allegations of material fact are assumed to be true and construed in the light most

21 favorable to the nonmoving party. Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir.

22 2009). To avoid dismissal, a complaint need contain only “enough facts to state a claim

23 for relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

24 (2007). The principle that a court accepts as true all of the allegations in a complaint

25 does not apply to legal conclusions or conclusory factual allegations. Ashcroft v. Iqbal,

26 556 U.S. 662, 678 (2009).

27

Under Rule 12(b)(1), a defendant may challenge the plaintiff’s jurisdictional

28 allegations by either (1) attacking the plaintiff’s allegations as insufficient on their face to

- 7 -

Case 2:15-cv-01259-NVW Document 244 Filed 03/16/17 Page 8 of 20

1 invoke federal jurisdiction or (2) contesting the truth of the plaintiff’s factual allegations,

2 usually by introducing evidence outside the pleadings. Leite v. Crane Co., 749 F.3d

3 1117, 1121 (9th Cir. 2014). The first, a facial attack, is resolved by the district court as it

4 would be under Rule 12(b)(6), i.e., accepting the plaintiff’s allegations as true and

5 drawing all reasonable inferences in the plaintiff’s favor, the court determines whether

6 the allegations are legally sufficient to invoke the court’s jurisdiction. Id. The second, a

7 factual attack, requires the plaintiff to support its jurisdictional allegations with

8 competent proof, under the same evidentiary standard applied on summary judgment.

9 Thus, the plaintiff bears the burden of proving by a preponderance of the evidence that

10 each of the requirements for subject matter jurisdiction has been met. Id.

11 IV. STANDING

12

A. Requirements for Article III Standing

13

“A suit brought by a plaintiff without Article III standing is not a ‘case or

14 controversy,’ and an Article III federal court therefore lacks subject matter jurisdiction

15 over the suit.” Braunstein v. Arizona Dep’t of Transp., 683 F.3d 1177, 1184 (9th Cir.

16 2012). “Standing must be shown with respect to each form of relief sought, whether it be

17 injunctive relief, damages or civil penalties.” Bates v. United Parcel Serv., Inc., 511 F.3d

18 974, 985 (9th Cir. 2007) (citing Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC),

19 Inc., 528 U.S. 167, 185 (2000)).

20

To satisfy Article III standing, a plaintiff must show:

21

(1) [he or she] has suffered an “injury in fact” that is (a) concrete and

particularized and (b) actual or imminent, not conjectural or hypothetical;

22

(2) the injury is fairly traceable to the challenged action of the defendant;

23

and (3) it is likely, as opposed to merely speculative, that the injury will be

redressed by a favorable decision.

24 Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180–81

25 (2000). “The party invoking federal jurisdiction bears the burden of establishing these

26 elements.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992).

27 For an equal protection claim, a plaintiff may show an “injury in fact” caused by

28 denial of equal treatment:

- 8 -

Case 2:15-cv-01259-NVW Document 244 Filed 03/16/17 Page 9 of 20

1

When the government erects a barrier that makes it more difficult for

2

members of one group to obtain a benefit than it is for members of another

group, a member of the former group seeking to challenge the barrier need

3

not allege that he would have obtained the benefit but for the barrier in

4

order to establish standing. The “injury in fact” in an equal protection case of this variety is the denial of equal treatment resulting from the imposition

5

of the barrier, not the ultimate inability to obtain the benefit.

6 Ne. Fla. Chapter, Associated Gen. Contractors of America v. Jacksonville, 508 U.S. 656,

7 666 (1993). “[E]qual treatment under the law is a judicially cognizable interest that

8 satisfies the case or controversy requirement of Article III, even if it brings no tangible

9 benefit to the party asserting it.” Davis v. Guam, 785 F.3d 1311, 1316 (9th Cir. 2015)

10 (citing Heckler v. Matthews, 465 U.S. 728, 739 (1984)). “Unequal treatment is an injury

11 even if curing the inequality has no tangible consequences.” Id.

12

However, even in the equal protection context, “a plaintiff must assert a

13 particularized injury, rather than a generalized grievance.” Braunstein, 683 F.3d at 1185.

14 “Even if the government has discriminated on the basis of race, only those who are

15 ‘personally denied’ equal treatment have a cognizable injury under Article III.” Id.

16 (finding plaintiff had not provided any evidence the government’s racial preference

17 program affected him personally or had impeded his ability to compete for work on an

18 equal basis).

19

Ordinarily, the existence of federal jurisdiction depends on the facts as they

20 existed when the complaint was filed. Lujan, 504 U.S. at 569 n.4.

21

B. Injury in Fact that Is Concrete and Particularized, Actual or

Imminent, and Fairly Traceable to the Challenged Action 22

The Amended Complaint challenges 25 U.S.C. §§ 1911(b), 1912(d), 1912(e), 23

1912(f), and 1915(b) and certain sections of the 2015 Guidelines on multiple grounds,

24

including denial of equal treatment, due process, and associational freedoms. 25

1. Section 1911(b): Jurisdiction-Transfer Provision 26
Section 1911(b) requires State courts to transfer any proceeding for the foster care

27 placement of, or termination of parental rights to, an Indian child not domiciled or

28 residing within the reservation of the child’s tribe to the tribal court upon petition of

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Case 2:15-cv-01259-NVW Document 244 Filed 03/16/17 Page 10 of 20

1 either parent, the Indian custodian, or the Indian child’s tribe, in the absence of good

2 cause to the contrary, objection by either parent, or declination by the tribal court of such

3 tribe. The Amended Complaint does not allege that transfer of jurisdiction has been

4 sought for any of the child Plaintiffs except for A.D.

5

In A.D.’s case, the Arizona Court of Appeals affirmed the juvenile court’s denial

6 of the Gila River Indian Community’s motion to transfer jurisdiction. Gila River Indian

7 Cmty. v. Dep’t of Child Safety, 240 Ariz. 385, 379 P.3d 1016 (Ct. App. Aug. 11, 2016).

8 The court explained that ICWA defines four types of child custody proceedings: foster

9 care placement, termination of parental rights proceedings, preadoptive placement, and

10 adoptive placement. Id. at 390, 379 P.3d at 1021. Section 1911(b) provides only for

11 transfer of foster care placement or termination of parental rights proceedings. The court

12 explained that under ICWA the term “foster care placement” is limited to “where parental

13 rights have not been terminated,” and therefore § 1911(b) does not allow transfer to tribal

14 court of State preadoptive and adoptive placement proceedings occurring after parental

15 rights have terminated. Id. The court found:

16

In this case, neither A.D.’s biological parents nor the Community sought to

17

transfer the proceedings from the juvenile court to the Community’s Children’s Court before termination of parental rights. By the time the

18

Community moved to transfer, A.D.’s case had progressed to the point

where the biological parents’ rights had been terminated and legal custody

19

had been permanently placed with DCS [the Arizona Department of Child

20

Safety], the juvenile court had found the foster parents were an adoptive

placement, and the court had authorized DCS to facilitate permanent

21

placement of A.D. through adoption. Further, an adoption petition had

22

been filed. By not moving to transfer jurisdiction before termination of the

biological parents’ rights, the Community effectively waived its right to

23

seek transfer of jurisdiction under 25 U.S.C. § 1911(b).

24 Id. at 391, 379 P.3d 1022. Thus, the Gila River Indian Community did not seek to

25 enforce § 1911(b), but rather it sought a transfer of jurisdiction not authorized by

26 § 1911(b).

27

It can be inferred that A.D. and her foster parents suffered a concrete and

28 particularized injury as a result of the Gila River Indian Community’s litigation.

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Case 2:15-cv-01259-NVW Document 244 Filed 03/16/17 Page 11 of 20

1 However, their injury resulted from the Gila River Indian Community’s frivolous

2 invocation of § 1911(b) for a proceeding it plainly does not authorize. Their injury is

3 fairly traceable to the Gila River Indian Community’s groundless intrusion into their

4 preadoptive and adoptive proceeding beyond the scope of § 1911(b), but not to § 1911(b) 5 itself.3

6

Thus, the Amended Complaint does not allege facts showing that any of the

7 Plaintiffs suffered a concrete and particularized injury, actual or imminent, and fairly

8 traceable to § 1911(b).

9

2. Section 1912(d): Active Efforts Provision

10

Section 1912(d) requires State officials to make “active efforts . . . to provide

11 remedial services and rehabilitative programs designed to prevent the breakup of the

12 Indian family” and to show “that these efforts have proved unsuccessful” before an

13 Indian child may be placed in foster care or parental rights may be terminated. Although

14 ICWA does not define “active efforts,” § A.2 of the 2015 Guidelines defines “active

15 efforts” as:

16

Active efforts are intended primarily to maintain and reunite an Indian child

with his or her family or tribal community and constitute more than

17

reasonable efforts as required by Title IV-E of the Social Security Act (42

18

U.S.C. § 671(a)(15)).

19 80 Fed. Reg. 10146, 10150. Section A.2 also states: “‘Active efforts’ are separate and

20 distinct from requirements of the Adoption and Safe Families Act (ASFA), 42 U.S.C.

21 § 1305” and “ASFA’s exceptions to reunification efforts do not apply to ICWA 22 proceedings.” Id. at 10150-51.4 See also 2015 Guidelines, §§ A.3, B.1, B.2, B.4, B.8,

23 D.2.

24

25

3 Neither the Amended Complaint nor the appellate decision in A.D.’s case states

26 that the Gila River Indian Community sought transfer of jurisdiction based on §§ C.1,

27

C.2, and C.3 of the 2015 Guidelines, which fail to explain that transfer under § 1911(b) is limited to proceedings for foster care placement or termination of parental rights.

28

4 The 2016 Guidelines expressly avoid comparison of “active efforts” and

“reasonable efforts.” They do not refer to ASFA’s exceptions.

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Case 2:15-cv-01259-NVW Document 244 Filed 03/16/17 Page 12 of 20

1

Under 42 U.S.C. § 671(a)(15)(B), in order for a State to obtain federal financial

2 assistance for foster care programs, the State plan must require that “reasonable efforts

3 shall be made to preserve and reunify families [] prior to the placement of a child in

4 foster care.” Section 671(a)(15)(D) provides exceptions to the “reasonable efforts”

5 requirement if a court of competent jurisdiction has determined that the parent has

6 subjected the child to “aggravated circumstances,” such as abandonment, torture, chronic

7 abuse, and sexual abuse, or has committed murder or other specific crimes.

8

The Amended Complaint alleges that because § 1912(d) does not include ASFA’s

9 exceptions, it requires “active efforts” to reunify families even when the children were

10 abandoned, tortured, chronically abused, or sexually abused by family members.

11 However, § 671(a)(15) applies only to foster care placement, and the Amended

12 Complaint does not allege that any reunification attempts were made before foster care

13 placement for any of the child Plaintiffs. Moreover, it does not allege that attempts were

14 made to reunify any of the child Plaintiffs with family members who had abandoned,

15 tortured, chronically abused, or sexual abused them.

16

The Amended Complaint also alleges that the “active efforts” provision of

17 § 1912(d) requires more than the “reasonable efforts” required under § 671(a)(15), and it

18 delays child custody proceedings, thereby depriving Indian children and their foster

19 parents legal recognition of their family status, resulting in uncertainty and great distress.

20 Section 1912(d) requires reunification attempts only before foster care placement and

21 termination of parental rights, and the Amended Complaint does not allege that any

22 reunification attempts were made before the child Plaintiffs were placed in foster care.

23 Therefore, the only possible particularized injury fairly traceable to § 1912(d) that any of 24 the Plaintiffs could have suffered is delay in termination of parental rights.5

25

26

5 The Amended Complaint also alleges that “active efforts” provision requires

27

Indian children to associate with tribes and tribal communities, but it cites only to a section of the 2015 Guidelines regarding designating an Indian child’s tribe. The

28 Amended Complaint does not allege that any of the child Plaintiffs was required to

associate with tribes or tribal communities during reunification attempts.

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Case 2:15-cv-01259-NVW Document 244 Filed 03/16/17 Page 13 of 20

1

The Amended Complaint alleges that C.R. and L.G. were placed in foster care

2 with P.R. and K.R. at the time of C.R.’s birth. It alleges that State officials initially

3 attempted reunification with C.R.’s biological mother through weekly supervised visits,

4 but changed the case management plan to severance in September 2015. It does not

5 allege that any reunification attempts were made other than weekly supervised visits with

6 the biological mother. As of April 5, 2016, the parental rights of C.R.’s and L.G.’s birth

7 parents had not been terminated. The Amended Complaint does not allege that parental

8 rights for C.R. and L.G. would have been terminated more quickly if “reasonable efforts”

9 under § 671(a)(15) had been made instead of “active efforts” under § 1912(d).

10

The Amended Complaint does not allege that any attempt was made to reunify

11 C.C.’s family or A.D.’s family before parental rights were terminated.

12

Thus, the Amended Complaint does not allege facts showing that any of the

13 Plaintiffs suffered a concrete and particularized injury, actual or imminent, and fairly

14 traceable to § 1912(d).

15

3. Section 1912(e): Higher Evidentiary Standard for Foster Care

16

Placement

Section 1912(e) prohibits foster care placement “in the absence of a determination, 17

supported by clear and convincing evidence, including testimony of qualified expert 18

witnesses, that the continued custody of the child by the parent or Indian custodian is 19

likely to result in serious emotional or physical damage to the child.” See also 2015 20

Guidelines, § D.3(a). The Amended Complaint alleges that Arizona law requires only a 21

showing of “reasonable grounds,” “probable cause,” “reasonable efforts,” or 22

“preponderance of the evidence” at various stages of proceedings leading to foster care 23

placement of children. It further alleges that “ICWA’s higher burden of proof requires 24

[the Department of Child Safety] to disregard to a greater extent the safety and security of 25

children with Indian ancestry based solely on the race of these children.” 26

The Amended Complaint alleges that C.C. was taken into protective custody after 27

his biological mother was convicted of a felony. It alleges that A.D. and C.R. were taken 28

into protective custody at birth. L.G., who shares the same biological mother as C.R.,

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Case 2:15-cv-01259-NVW Document 244 Filed 03/16/17 Page 14 of 20

1 was taken into protective custody at the same time as C.R., and ICWA had no application

2 to L.G. before C.R. was born. The Amended Complaint does not allege facts showing

3 that foster care placement for any of the child Plaintiffs was delayed or that any of the

4 child Plaintiffs was exposed to greater risk of harm because of ICWA’s higher

5 evidentiary standard.

6

Thus, the Amended Complaint does not allege facts showing that any of the

7 Plaintiffs suffered a concrete and particularized injury, actual or imminent, and fairly

8 traceable to § 1912(e).

9

4. Section 1912(f): Higher Evidentiary Standard for Termination

10

of Parental Rights

Section 1912(f) prohibits termination of parental rights “in the absence of a 11

determination, supported by evidence beyond a reasonable doubt, including testimony of 12

qualified expert witnesses, that the continued custody of the child by the parent or Indian 13

custodian is likely to result in serious emotional or physical damage to the child.” See 14

also 2015 Guidelines, § D.3(b). The Amended Complaint alleges that ICWA’s 15

requirement of evidence “beyond a reasonable doubt” is greater than what would 16

otherwise be required. Arizona law requires that the party seeking termination of 17

parental rights establish statutory grounds by “clear and convincing evidence” and 18

establish the best interests of the child by “a preponderance of the evidence.” The 19

Amended Complaint alleges that the parental rights of the biological parents of A.D. and 20

C.C. have been terminated, and the parental rights of the biological parents of C.R. and 21

L.G. have not been terminated. It does not allege that the termination proceedings were 22

affected by the evidentiary standard required by § 1912(f) in any way. 23

Thus, the Amended Complaint does not allege facts showing that any of the 24

Plaintiffs suffered a concrete and particularized injury, actual or imminent, and fairly 25

traceable to § 1912(f). 26

5. Section 1915(a): Adoptive Placement Preferences 27

The Amended Complaint alleges that the foster care/preadoptive and adoption 28
placement preferences imposed by §§ 1915(a) and 1915(b) and by the 2015 Guidelines

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Case 2:15-cv-01259-NVW Document 244 Filed 03/16/17 Page 15 of 20

1 §§ F.1, F.2, F.3, and F.4 “single out and treat differently children with Indian ancestry . . .

2 [and] the non-Indian adults involved in the care and upbringing of children with Indian

3 ancestry.” (Doc. 173 at 27, ¶ 115.) It also alleges that §§ 1915(a) and 1915(b) “violate

4 the substantive due process rights of children with Indian ancestry and those of adults

5 involved in their upbringing who have an existing family-like relationship with the child”

6 because each of them “deserves an individualized, race-neutral determination under

7 uniform standards when courts make foster/preadoptive care and adoption placement

8 decisions.” (Id. at 28, ¶ 121.)

9

Section 1915(a) requires:

10

In any adoptive placement of an Indian child under State law, a preference

11

shall be given, in the absence of good cause to the contrary, to a placement with (1) a member of the child’s extended family; (2) other members of the

12

Indian child’s tribe; or (3) other Indian families.

13 Although ICWA does not define “good cause,” § F.4 of the 2015 Guidelines states: “The

14 good cause determination does not include an independent consideration of the best

15 interest of the Indian child because the preferences reflect the best interests of an Indian 16 child in light of the purposes of the Act.” 80 Fed. Reg. 10146, 10158.6

17

For all adoptive placements, Arizona law requires the Department of Child Safety

18 or an adoption agency to “place a child in an adoptive home that best meets the safety,

19 social, emotional, physical and mental health needs of the child.” A.R.S. § 8-103(C).

20 Other relevant factors for consideration include placement with the child’s siblings,

21 placement with a member of the child’s extended family or a person or foster parent who

22 has a significant relationship with the child, and established relationships between the

23 child and the prospective adoptive family. Id. Adoption proceedings include

24 certification of the adoptive parents, completion of a social study, a court hearing,

25

26

6 The 2016 Guidelines, § H.4, state: “Congress determined that a placement with

27

the Indian child’s extended family or Tribal community will serve the child’s best interest in most cases. A court may deviate from these preferences, however, when good cause

28 exists.” Section H.4 and 25 C.F.R. § 23.132 explain how a determination of “good

cause” to depart from the placement preferences should be made.

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Case 2:15-cv-01259-NVW Document 244 Filed 03/16/17 Page 16 of 20

1 consideration of multiple factors, and judicial findings on the record regarding the best

2 interests of the child pursuant to law.

3

The Amended Complaint does not allege that the Gila River Indian Community

4 has proposed or likely will propose any adoptive placements under § 1915(a) for A.D. It

5 does not allege that A.D.’s adoption has been delayed by § 1915(a)’s placement

6 preferences.

7

The Amended Complaint alleges that C.C.’s adoption was delayed by the Navajo

8 Nation’s repeated efforts to find an adoption placement compliant with § 1915(a)’s

9 preferences because M.C. and K.C. could not file a petition for adoption until the State

10 court declared that there was good cause to deviate from ICWA’s adoption placement

11 preferences. It alleges that C.C. was repeatedly required to visit with strangers who were

12 proposed as potential ICWA-compliant placements. But it does not allege facts, rather

13 than mere conclusions, showing that C.C.’s adoption would have been completed more

14 quickly and C.C. would not have been introduced to strangers if § 1915(a) did not apply.

15

The Amended Complaint alleges that the Gila River Indian Community has

16 proposed and will continue to propose ICWA-compliant adoption placements for C.R.

17 and L.G. and that but for the application of ICWA, C.R. and L.G. likely would have been

18 cleared for adoption by P.R. and K.R. It alleges that C.R. and L.G. were placed together

19 in foster care with P.R. and K.R., as required by Arizona law, because C.R. and L.G. are

20 well-bonded siblings. The Amended Complaint does not allege facts, rather than mere

21 conclusions, showing that the consolidated adoption proceeding for C.R. and L.G. would

22 have been completed more quickly if § 1915(a) did not apply.

23

Thus, the Amended Complaint does not allege facts showing that any of the

24 Plaintiffs suffered a concrete and particularized injury, actual or imminent, and fairly

25 traceable to § 1915(a).

26

6. Section 1915(b): Foster Care/Preadoptive Placement Preferences

27

Section 1915(b) states:

28

Any child accepted for foster care or preadoptive placement shall be placed

in the least restrictive setting which most approximates a family and in

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Case 2:15-cv-01259-NVW Document 244 Filed 03/16/17 Page 17 of 20

1

which his special needs, if any, may be met. The child shall also be placed

2

within reasonable proximity to his or her home, taking into account any

special needs of the child. In any foster care or preadoptive placement, a

3

preference shall be given, in the absence of good cause to the contrary, to a

4

placement with—

5

(i) a member of the Indian child’s extended family;

(ii) a foster home licensed, approved, or specified by the Indian

6

child’s tribe;

7

(iii) an Indian foster home licensed or approved by an authorized

8

non-Indian licensing authority; or

9

(iv) an institution for children approved by an Indian tribe or operated by an Indian organization which has a program suitable to

10

meet the Indian child’s needs.

11

The Amended Complaint alleges that A.D. was taken into protective custody at

12 birth, A.D. was placed in foster care with S.H. and J.H., and they have taken care of A.D.

13 ever since. It alleges that C.C. was taken into protective custody when he was less than 14 one year old and he continuously remained in foster care with M.C. and K.C. for four 15 years before they adopted him in November 2015. The Amended Complaint alleges that

16 C.R. was taken into protective custody at birth and placed in foster care with K.R. and 17 P.R. At the same time, C.R.’s half-sibling L.G. was placed in foster care with K.R. and 18 P.R. The Amended Complaint does not allege any delay in, or effect on, the foster care

19 placements of the child Plaintiffs caused by § 1915(b).

20

Thus, the Amended Complaint does not allege facts showing that any of the

21 Plaintiffs suffered a concrete and particularized injury, actual or imminent, and fairly

22 traceable to § 1915(b).

23

7. Sections C.1, C.2, and C.3 of the 2015 Guidelines

24

Count 6 of the Amended Complaint alleges that the BIA exceeded its authority by

25 issuing §§ C.1, C.2, and C.3 of the 2015 Guidelines, which make transfer of jurisdiction

26 available during all child custody proceedings, including preadoptive placement and

27 adoptive placement proceedings. (Doc. 173 at 32.) Under 25 U.S.C. § 1911(b), the right

28

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Case 2:15-cv-01259-NVW Document 244 Filed 03/16/17 Page 18 of 20

1 to request a transfer to tribal jurisdiction is available only in proceedings for foster care 2 placement or termination of parental rights.7

3

Section C.1(a) refers to “each distinct Indian child custody proceeding.” 80 Fed.

4 Reg. 10146, 10156. Section C.1(b) states, “The right to request a transfer occurs with

5 each proceeding” and provides an example involving only foster care placement and

6 termination of parental rights. Id. Section C.1(c) states, “The right to request a transfer is

7 available at any stage of an Indian child custody proceeding, including during any period

8 of emergency removal.” Id. Section C.3(c) states: “In determining whether good cause

9 [not to transfer] exists, the court may not consider whether the case is at an advanced

10 stage or whether transfer would result in a change in the placement of the child . . . .” Id.

11 These provisions are inconsistent with § 1911(b)’s limitation to proceedings for foster

12 care placement and termination of parental rights.

13

However, the Amended Complaint does not allege that transfer was requested

14 during a preadoptive or adoptive placement proceeding for C.C., C.R., or L.G. Although

15 the Gila River Indian Community sought transfer of A.D.’s proceedings after termination

16 of parental rights, the Amended Complaint does not allege that the Gila River Indian

17 Community contended that the 2015 Guidelines authorized transfer of preadoptive and

18 adoptive placement proceedings. Therefore, the Amended Complaint does not allege

19 facts showing that any of the Plaintiffs suffered a concrete and particularized injury,

20 actual or imminent, and fairly traceable to §§ C.1, C.2, and C.3 of the 2015 Guidelines.

21

Therefore, all of the pending motions to dismiss the Amended Complaint will be

22 granted, and the Amended Complaint will be dismissed for lack of jurisdiction and lack

23 of standing.

24

Plaintiffs have not sought leave to further amend their complaint, and leave to do

25 so will not be granted. Although leave to amend a pleading should be freely given “when

26 justice so requires,” Fed. R. Civ. P. 15(a)(2), courts should consider five factors: bad

27

7 Consistent with § 1911(b), the 2016 Guidelines and 25 C.F.R. § 23.115 expressly

28 limit the right to request a transfer to proceedings for foster care placement and

termination of parental rights.

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Case 2:15-cv-01259-NVW Document 244 Filed 03/16/17 Page 19 of 20

1 faith, undue delay, prejudice to the opposing party, futility of amendment, and whether

2 the plaintiff has previously amended the complaint. Johnson v. Buckley, 356 F.3d 1067,

3 1077 (9th Cir. 2004). Courts have “especially broad” discretion to deny leave to amend

4 where the plaintiff already has had one or more opportunities to amend a complaint.

5 Ascon Props., Inc. v. Mobil Oil Co., 866 F.2d 1149, 1161 (9th Cir. 1989); Moore v.

6 Kayport Package Exp., Inc., 885 F.2d 531, 538 (9th Cir. 1989) (“Leave to amend need

7 not be given if a complaint, as amended, is subject to dismissal.”).

8

Plaintiffs initiated this action on July 6, 2015, alleging a putative class so

9 numerous that joinder of all members is impracticable, but despite being granted leave to

10 amend, they have not named any plaintiffs with standing to challenge any provisions of

11 ICWA or the 2015 Guidelines. Further leave to amend would cause undue delay and

12 likely would be futile.

13

The legal questions Plaintiffs wish to adjudicate here in advance of injury to

14 themselves will be automatically remediable for anyone actually injured. The very

15 allegations of wrongfulness are that such injuries will arise in state court child custody

16 proceedings, directly in the court processes or in actions taken by state officers under the

17 control and direction of judges in those proceedings. Any true injury to any child or

18 interested adult can be addressed in the state court proceeding itself, based on actual facts

19 before the court, not on hypothetical concerns. If any Plaintiffs encounter future real

20 harm in their own proceedings, the judge in their own case can discern the rules of

21 decision. They do not have standing to have this Court pre-adjudicate for state court

22 judges how to rule on facts that may arise and that may be governed by statutes or

23 guidelines that this Court may think invalid.

24

IT IS THEREFORE ORDERED that the Federal Defendants’ Motion to Dismiss

25 First Amended Complaint (Doc. 178), the State Defendant’s Motion to Dismiss

26 Plaintiffs’ First Amended Civil Rights Complaint for Declaratory, Injunctive, and Other

27 Relief (Doc. 179), the Gila River Indian Community’s Motion to Dismiss (Doc. 217), and

28 the Navajo Nation’s Amended Motion to Dismiss (Doc. 218) are granted.

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Case 2:15-cv-01259-NVW Document 244 Filed 03/16/17 Page 20 of 20

1

IT IS FURTHER ORDERED that the First Amended Civil Rights Class Action

2 Complaint for Declaratory, Injunctive, and Other Relief (Doc. 173) is dismissed for lack

3 of standing.

4

IT IS FURTHER ORDERED that the Clerk of the Court enter judgment

5 dismissing this action without prejudice for lack of jurisdiction and lack of standing.

6

Dated this 16th day of March, 2017.

7

8

Neil V. Wake

9

Senior United States District Judge

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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 Case: 17-15839, 08/06/2018, ID: 10966701, DktEntry: 75-1, Page 1 of 4

NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

FILED
AUG 06 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

CAROL COGHLAN CARTER, next friend of A.D., C.C., L..G. and C.R., minors next friend of A.D. next friend of C.C. next friend of L.G. next friend of C.R.; et al.,
Plaintiffs-Appellants,
v.
JOHN TAHSUDA, in his official capacity as Assistant Secretary of Bureau of Indian Affairs; et al.,
Defendants-Appellees,
GILA RIVER INDIAN COMMUNITY and NAVAJO NATION,
Intervenor-DefendantsAppellees.

No. 17-15839 D.C. No. 2:15-cv-01259-NVW MEMORANDUM*

Appeal from the United States District Court for the District of Arizona
Neil V. Wake, District Judge, Presiding
Argued and Submitted June 13, 2018
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

Case: 17-15839, 08/06/2018, ID: 10966701, DktEntry: 75-1, Page 2 of 4
San Francisco, California Before: SCHROEDER, EBEL,** and OWENS, Circuit Judges.
Plaintiffs-Appellants include Indian children, their adoptive parents and next friends. They filed this action in the United States District Court in Arizona against the Assistant Secretary of Indian Affairs for the Bureau of Indian Affairs, the United States Secretary of the Interior, and the Director of the Arizona Department of Child Safety, seeking to challenge the constitutionality of various provisions of the Indian Child Welfare Act (“ICWA”), 25 U.S.C. § 1901 et seq. The Gila River Indian Community and the Navajo Nation intervened to defend the constitutionality of the Act. The district court concluded Plaintiffs lack Article III standing. Plaintiffs appeal from this dismissal. We hold this action is now moot.
Adoption proceedings were pending at all times during the litigation in the district court. Defendants moved to dismiss the action, contending that Plaintiffs lacked Article III standing and could not state a constitutional claim upon which relief could be granted. The district court examined the complaint with respect to each of the challenged provisions and ruled that Plaintiffs lacked standing because none had been harmed by any conduct traceable to ICWA.
** The Honorable David M. Ebel, United States Circuit Judge for the U.S. Court of Appeals for the Tenth Circuit, sitting by designation.
2

Case: 17-15839, 08/06/2018, ID: 10966701, DktEntry: 75-1, Page 3 of 4
We do not reach the standing inquiry, however, because a subsequent development has rendered this action moot. Plaintiffs have never suggested they suffered any economic damages. Their original complaint sought only declaratory and injunctive relief relating to ICWA’s application to their adoption proceedings. While Plaintiffs’ appeal from the district court’s dismissal was going forward, however, Plaintiffs’ adoptions all became final. The relief Plaintiffs sought to redress their alleged injuries is no longer available to them.
Appellees argue, and we agree, that the case is therefore now moot. The named plaintiffs are no longer subject to ICWA, and they do not allege that they will be in the imminent future. See Bayer v. Neiman Marcus Grp., Inc., 861 F.3d 853, 864–68 (9th Cir. 2017). Plaintiffs counter that there will be members of a yetto-be-certified class that have redressable claims, but this argument is unavailing. At least one named plaintiff must present a justiciable claim unless an exception applies. See O’Shea v. Littleton, 414 U.S. 488, 494 (1974); Lierboe v. State Farm Mut. Auto. Ins. Co., 350 F.3d 1018, 1022–23 (9th Cir. 2003). None of these Plaintiffs do, and no exception applies here, cf. Pitts v. Terrible Herst, Inc., 653 F.3d 1081, 1090 (9th Cir. 2011).
Plaintiffs’ suggestion that their belated addition of a claim for nominal damages saves the case from mootness fails. While Plaintiffs were still in the
3

Case: 17-15839, 08/06/2018, ID: 10966701, DktEntry: 75-1, Page 4 of 4
district court, they had seen the possibility that all their claims for injunctive and declaratory relief could become moot, so they filed an amended complaint adding a claim for nominal damages under Title VI of the Civil Rights Act against the Director of Arizona’s Department of Child Safety. The Supreme Court has admonished this Court that “a claim for nominal damages . . . asserted solely to avoid otherwise certain mootness, b[ears] close inspection.” Arizonans for Official English v. Arizona, 520 U.S. 43, 71 (1997).
Here the claim does not survive such inspection. Plaintiffs have never alleged actual or punitive damages. They can cite no case supporting the proposition that a claim for nominal damages, tacked on solely to rescue the case from mootness, renders a case justiciable. See id. at 68–71. Plaintiffs cite Bernhardt v. County of Los Angeles, 279 F.3d 862 (9th Cir. 2002), where, in addition to mooted claims for injunctive relief, the original complaint alleged claims for compensatory and punitive damages. Id. at 872. We said in Bernhardt that the possibility of nominal damages avoided mootness of the entire case, see id. at 872–73, but there was no belated claim asserted solely to avoid mootness as there was in this case, and which the Supreme Court frowned upon in Arizonans for Official English.
We vacate the district court’s judgment dismissing for lack of standing and remand to the district court with instructions to dismiss the action as moot.
VACATED AND REMANDED.
4

 
 Case 2:15-cv-01259-NVW Document 216 Filed 09/29/16 Page 1 of 10

1 WO

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8

A.D., C.C., L.G., and C.R., by Carol 9 Coghlan Carter, and Dr. Ronald Federici,
their next friends; S.H. and J.H., a married 10 couple; M.C. and K.C., a married couple;
K.R. and P.R., a married couple; for 11 themselves and on behalf of a class of
similarly-situated individuals, 12

No. CV-15-01259-PHX-NVW ORDER

13

Plaintiffs,

14 v.

15

Kevin Washburn, in his official capacity as Assistant Secretary of Indian Affairs,

16

Bureau of Indian Affairs; Sally Jewell, in her official capacity as Secretary of the

17

Interior, U. S. Department of the Interior; Gregory A. McKay, in his official capacity

18 as Director of Arizona Department of Child Safety,

19 Defendants.
20

21

22

Before the Court are the Motion of the Gila River Indian Community to Intervene

23 as Defendant (Doc. 47) and the Amended Motion to Intervene by the Navajo Nation

24 (Doc. 198). Defendants Kevin Washburn and Sally Jewell (“Federal Defendants”)

25 consent to the motions, Defendant Gregory McKay (“State Defendant”) takes no

26 position, and Plaintiffs oppose the motions. Oral argument was heard on September 28,

27 2016.

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1 I. 2

BACKGROUND Plaintiffs filed this action on behalf of themselves and all off-reservation Arizona-

3 resident children with Indian ancestry and all off-reservation Arizona-resident foster,

4 preadoptive, and prospective adoptive parents in child custody proceedings involving

5 children with Indian ancestry. Plaintiffs seek a declaration that provisions of the Indian

6 Child Welfare Act (“ICWA”), specifically 25 U.S.C. §§ 1911(b), 1912(d), 1912(e),

7 1912(f), 1915(a), 1915(b), and the 2015 Guidelines issued by the Bureau of Indian

8 Affairs, §§ A.2, A.3, B.1, B.2, B.4, B.8, C.1, C.2, C.3, D.2, D.3, F.1, F.2, F.3, F.4, violate

9 the United States Constitution, federal civil rights statutes, and Title VI of the Civil

10 Rights Act. They seek to enjoin the Federal Defendants from enforcing these provisions

11 and the State Defendant from complying with and enforcing these provisions. In

12 addition, Plaintiffs allege that ICWA exceeds the federal government’s power under the

13 Indian Commerce Clause and the Tenth Amendment, but do not expressly seek a

14 declaration that all of the provisions of ICWA are unconstitutional.

15

Plaintiff C.C. is an enrolled member of the Navajo Nation. Parental rights of

16 C.C.’s birth parents were terminated, and adoption of C.C. by Plaintiffs M.C. and K.C.

17 was finalized by the state court in November 2015.

18

Plaintiff A.D. is an enrolled member of the Indian Community. Plaintiff C.R. is

19 eligible for membership in and is a child of a member of, or is already an enrolled

20 member of, the Indian Community. Plaintiff L.G. is C.R.’s half-sibling and is not eligible

21 for membership in the Pascua Yaqui Tribe of Arizona. Parental rights of A.D.’s, C.R.’s,

22 and L.G.’s birth parents have been terminated by the state court, which is treating C.R.’s

23 and L.G.’s cases as one.

24

The Gila River Indian Community (“Indian Community”) and the Navajo Nation

25 are both federally recognized tribes and seek to intervene as of right as defendants in this

26 case and, in the alternative, to intervene permissively.

27

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Case 2:15-cv-01259-NVW Document 216 Filed 09/29/16 Page 3 of 10

1 II. INTERVENTION OF RIGHT

2

A. Legal Standard

3

On timely motion, the court must permit anyone to intervene who “claims an

4 interest relating to the property or transaction that is the subject of the action, and is so

5 situated that disposing of the action may as a practical matter impair or impede the

6 movant’s ability to protect its interest, unless existing parties adequately represent that

7 interest.” Fed. R. Civ. P. 24(a)(2). “Courts are guided primarily by practical and

8 equitable considerations.” Arakaki v. Cayetano, 324 F.3d 1078, 1083 (9th Cir. 2003).

9

“[A]n applicant for intervention as of right must demonstrate that: (1) the

10 intervention application is timely; (2) the applicant has a significant protectable interest

11 relating to the property or transaction that is the subject of the action; (3) the disposition

12 of the action may, as a practical matter, impair or impede the applicant’s ability to protect

13 its interest; and (4) the existing parties may not adequately represent the applicant’s

14 interest.” Prete v. Bradbury, 438 F.3d 949, 954 (9th Cir. 2006) (citations omitted). The

15 requirements are broadly interpreted in favor of intervention. Citizens for Balanced Use

16 v. Montana Wilderness Ass’n, 647 F.3d 893, 897 (9th Cir. 2011). However, “[f]ailure to

17 satisfy any one of the requirements is fatal to the application.” Perry v. Proposition 8

18 Official Proponents, 587 F.3d 947, 950 (9th Cir. 2009).

19

Timeliness. Three factors are considered to determine whether an intervention

20 motion is timely: (1) the stage of the proceeding when the motion is filed; (2) the

21 prejudice to other parties; and (3) the reason for and length of the delay. League of

22 United Latin Am. Citizens v. Wilson, 131 F.3d 1297, 1302 (9th Cir. 1997).

23

Interest. To demonstrate a related significant protectable interest, the applicant

24 must show an interest that is protectable under some law and there is a relationship

25 between the legally protected interest and the claims at issue. Arakaki, 324 F.3d at 1084.

26 The “relationship” requirement generally is satisfied only if the resolution of the

27 plaintiff’s claims actually will affect the applicant. Id. The applicant may not inject

28 unrelated issues into the pending litigation. Id. The applicant need not establish a

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1 specific legal or equitable interest, but an economic stake in the outcome of the litigation

2 is not sufficient. Greene v. United States, 996 F.2d 973, 976 (9th Cir. 1993).

3

Potential impairment of interest. “The question of whether protectable interests

4 will be impaired by litigation must be put in practical terms rather than in legal terms.”

5 Akina v. Hawaii, __ F.3d __, 2016 WL 450186, *5 (9th Cir. Aug. 29, 2016) (citation

6 omitted). Where the applicant remains free to bring a separate action or pursue

7 alternative means of achieving its ultimate objective, the disposition of the action may not

8 impair or impede the applicant’s ability to protect its interest. See id. “Speculative

9 possibility” of future impairment of an interest does not outweigh the interjection of

10 unnecessary and distracting considerations by an intervenor. United States v.

11 Washington, 593 F.3d 790, 801 (9th Cir. 2010) (treaty tribes were not entitled to

12 intervene in recognition proceedings even though a newly recognized tribe might assert

13 treaty rights in the future). However, a court must consider whether factual and legal

14 determinations made in the current proceeding, when upheld by an appellate ruling, may

15 impair the applicant’s interest by a stare decisis effect in any parallel or subsequent

16 litigation. United States v. State of Or., 839 F.2d 635, 638 (9th Cir. 1988).

17

Adequacy of representation. “The burden on proposed intervenors in showing

18 inadequate representation is minimal, and would be satisfied if they could demonstrate

19 that representation of their interests ‘may be’ inadequate.” Arakaki, 324 F.3d at 1086.

20 Three factors are considered in determining adequacy of representation by the existing

21 parties: “(1) whether the interest of a present party is such that it will undoubtedly make

22 all of a proposed intervenor’s arguments; (2) whether the present party is capable and

23 willing to make such arguments; and (3) whether a proposed intervenor would offer any

24 necessary elements to the proceeding that other parties would neglect.” Id. The most

25 important factor is how the interest of the prospective intervenor’s interest compares with

26 the interests of existing parties. Id. If the prospective intervenor’s interest is identical to

27 that of an existing party, a compelling showing is required to demonstrate that

28 representation is inadequate. Id. “When an applicant for intervention and an existing

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1 party have the same ultimate objective, a presumption of adequacy of representation

2 arises.” Id.

3

“There is also an assumption of adequacy when the government is acting on behalf

4 of a constituency that it represents.” Id. “In the absence of a very compelling showing to

5 the contrary, it will be presumed that a state adequately represents its citizens when the

6 applicant shares the same interest.” Id.; see League of United Latin Am. Citizens, 131

7 F.3d at 1305-06 (governor and state attorney general’s vigorous defense of challenged

8 initiative both in court and in the political arena demonstrated they were ready, willing,

9 and able to protect prospective intervenor’s asserted interest in upholding the initiative).

10

To make a compelling showing that the government will not provide adequate

11 representation in defending its statute, a prospective intervenor must demonstrate more

12 than that it is a beneficiary protected by the statute, Stuart v. Huff, 706 F.3d 345, 353 (4th

13 Cir. 2013), or that it has greater firsthand knowledge of the impact of legislation on

14 private individuals than does the government, Prete, 438 F.3d at 958 n.13. But a

15 prospective intervenor may make a compelling showing by demonstrating that its

16 interests are narrower than, and not subsumed in, that of the government. Californians

17 For Safe & Competitive Dump Truck Transp. v. Mendonca, 152 F.3d 1184, 1190 (9th

18 Cir. 1998) (union members’ interests were potentially “more narrow and parochial” than

19 the interests of the public at large); Mille Lacs Band of Chippewa Indians v. State of

20 Minn., 989 F.2d 994, 1001 (8th Cir. 1993) (counties’ and landowners’ interests in land

21 value were “narrower and more parochial” than the state’s interest in protecting fish and

22 game).

23

Where a tribe requested that the government place certain lands in trust for its

24 benefit, and the government had an obligation to represent the tribe’s interests, a “merely

25 theoretical risk of conflicting duties” did not demonstrate that the government was unable

26 to adequately protect the tribe’s interests in the litigation. South Dakota ex rel. Barnett v.

27 U.S. Dep’t of Interior, 317 F.3d 783, 786 (8th Cir. 2003). To establish inadequacy of

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Case 2:15-cv-01259-NVW Document 216 Filed 09/29/16 Page 6 of 10

1 representation, the tribe needed to identify specific tribal interests that could only be

2 protected by the tribe’s intervention. Id.

3

In determining whether the government will adequately defend a statute, the

4 government’s willingness to suggest a limiting construction that is narrower than that of

5 an intervention applicant may be considered. California ex rel. Lockyer v. United States,

6 450 F.3d 436, 444 (9th Cir. 2006). To overcome the presumption of adequacy of

7 representation, the applicant must demonstrate the likelihood—more than mere

8 theoretical possibility—that the government will abandon or concede a potentially

9 meritorious interpretation of the statute. Id. at 444-45 (the presumption of adequacy of

10 representation was rebutted by direct evidence the government would take a position that

11 actually compromised protection of the proposed intervenors’ interest); Freedom from

12 Religion Foundation, Inc. v. Geithner, 644 F.3d 836, 842 (9th Cir. 2011) (presumption

13 was not rebutted where prospective intervenor had presented no evidence the government

14 actually had urged a narrow interpretation and it was unclear whether a narrow

15 interpretation responsive to the constitutional challenge existed).

16

B. Analysis

17

Timeliness. Both motions to intervene were filed at an early stage of this case;

18 motions to dismiss the amended complaint by the Federal Defendants and the State

19 Defendant have not yet been decided. The timing of intervention will not cause prejudice

20 to other parties.

21

Significant and protectable interest and potential impairment of the interest. The

22 Indian Community and the Navajo Nation have significant protectable interests in the

23 welfare of their members who are named as plaintiffs in this case and in laws that protect

24 their relationship with all of their minor citizens. If Plaintiffs prevail, the Indian

25 Community and the Navajo Nation would be unable to enforce the challenged provisions

26 of ICWA. State court child custody proceedings would be significantly affected by

27 invalidation of ICWA provisions that protect the Indian Community’s and the Navajo

28 Nation’s interest in maintaining their relationship with their minor citizens, such as the

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Case 2:15-cv-01259-NVW Document 216 Filed 09/29/16 Page 7 of 10

1 requirement that active efforts be made to provide remedial services and rehabilitative

2 programs to prevent the breakup of the Indian family before foster care placement or

3 termination of parental rights; the burden of proof required for determining that the

4 continued custody of a child by the parent or Indian custodian is likely to result in serious

5 emotional or physical damage to the child; and preferences that favor placement with a

6 member of the Indian child’s tribe or foster home approved by the tribe.

7

In addition, the Indian Community and the Navajo Nation have a legal interest in

8 defining their membership requirements. But there is no such issue in this suit. As

9 conceded at oral argument, none of the 22 recognized Indian tribes in Arizona has a

10 membership requirement of less than one-quarter Indian blood. That is valid under any

11 view of implicit federal law limits on tribal membership criteria for ICWA or otherwise.

12 Plaintiffs challenge as racially discriminatory specific provisions of ICWA regardless of

13 the affected children’s quantum of Indian blood.

14

Adequacy of representation by existing parties. A presumption of adequacy of

15 representation arises because the Indian Community and the Navajo Nation share with

16 the governmental defendants the same ultimate objective, i.e., to uphold ICWA against

17 Plaintiffs’ constitutional challenge, and because the governmental defendants are acting

18 on behalf of a constituency that they represent. Although the Indian Community and the

19 Navajo Nation have made arguments that the governmental defendants have not made, no

20 one disputes that the governmental defendants are capable and willing to make those

21 arguments. No one contends that the governmental defendants are likely to suggest a

22 limiting construction of ICWA or to concede a potentially meritorious interpretation of

23 ICWA. No one contends that the governmental defendants have conflicting obligations.

24 Although the Indian Community and the Navajo Nation each have a particular interest in

25 maintaining its relationship with its individual members who are named as plaintiffs,

26 their interest in protecting the tribal-child relationship for every Indian child is shared by

27 the governmental defendants. The fact that the Indian Community and the Navajo Nation

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Case 2:15-cv-01259-NVW Document 216 Filed 09/29/16 Page 8 of 10

1 have information regarding specific children and tribal laws does not rebut the

2 presumption that the governmental defendants adequately represent their interests.

3

Therefore, the Indian Community and the Navajo Nation are not entitled to

4 intervention of right under Federal Rule of Civil Procedure 24(a)(2).

5 III. PERMISSIVE INTERVENTION

6 A. Legal Standard

7

On timely motion, the court may permit anyone to intervene who “has a claim or

8 defense that shares with the main action a common question of law or fact.” Fed. R. Civ.

9 P. 24(b)(1)(B). To obtain permissive intervention, an applicant must show: (1)

10 independent grounds for jurisdiction, (2) the motion is timely, and (3) the applicant’s

11 claim or defense and the main action have a question of law or fact in common. League

12 of United Latin Am. Citizens v. Wilson, 131 F.3d 1297, 1308 (9th Cir. 1997). “In

13 exercising its discretion, the court must consider whether the intervention will unduly

14 delay or prejudice the adjudication of the original parties’ rights.” Fed. R. Civ. P.

15 24(b)(3).

16
B. Analysis 17
Jurisdiction. The Court has subject matter jurisdiction under 28 U.S.C. §§ 1331 18
and 1346 of this action against federal defendants, challenging a federal statute as 19
violative of the United States Constitution, federal civil rights statutes, and Title VI of the 20
Civil Rights Act. The Indian Community and the Navajo Nation seek to intervene only 21
as defendants, not to assert additional claims. 22
Timeliness. The motions to intervene are timely. 23
Common question of law or fact. The Indian Community and the Navajo Nation 24
have questions of law and fact in common with the main action. They seek to defend the 25
constitutionality of the challenged provisions of ICWA, particularly against Plaintiffs’ 26
allegations that these provisions create unequal treatment based solely on the race of the 27
child and the adults involved. Indeed, the adequacy of the existing parties’ representation 28

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Case 2:15-cv-01259-NVW Document 216 Filed 09/29/16 Page 9 of 10

1 of the Indian Community and the Nation’s interests, which the Court has already found,

2 could not even arise if there were not common questions of fact and law.

3

Undue delay or prejudice to the adjudication of the original parties’ rights. The

4 Court finds that permitting intervention by the Indian Community and the Navajo Nation

5 will not cause any undue delay or prejudice to the adjudication of the existing parties’

6 rights. During oral argument, counsel for the prospective intervenors stated they did not

7 anticipate making discovery requests and they would abide by any limitations on

8 discovery that the Court may impose to mitigate possible burden on the existing parties.

9 Counsel further stated that Intervenors-Applicant want to participate in this case as

10 parties only for as long as their children members continue as named Plaintiffs. Further,

11 if the Indian Community and the Navajo Nation are permitted to intervene, other tribes

12 likely will not be allowed to intervene in the future because other tribes will be doubly

13 adequately represented by the governmental defendants and by these two intervenor

14 tribes. See Arakaki, 324 F.3d at 1087 (intervention by native Hawaiians denied where a

15 group of native Hawaiians already had successfully intervened as party).

16

Therefore, the Court will exercise its discretion to grant permissive intervention to

17 the Indian Community and the Navajo Nation under Federal Rule of Civil Procedure

18 24(b)(1)(B). If the Indian Community’s or the Navajo Nation’s participation as

19 intervenors should evidence the kinds of problems that weigh against permissive

20 intervention, such as expansion of issues or unwarranted burdens on existing parties, the

21 Court may reconsider this order in the future.

22

IT IS THEREFORE ORDERED that the Motion of the Gila River Indian

23 Community to Intervene as Defendant (Doc. 47) and the Amended Motion to Intervene

24 by the Navajo Nation (Doc. 198) are denied with respect to intervention of right and

25 granted for permissive intervention.

26 / / /

27 / / /

28 / / /

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Case 2:15-cv-01259-NVW Document 216 Filed 09/29/16 Page 10 of 10

1

IT IS FURTHER ORDERED that the Clerk is directed to file the Gila River

2 Indian Community’s proposed motion to dismiss (lodged as Doc. 47-1) and the Navajo

3 Nation’s proposed amended motion to dismiss (lodged as Doc. 199).

4

Dated this 29th day of September, 2016.

5

6

Neil V. Wake

7

Senior United States District Judge

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