IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

S.S., S.S., Appellants,

v.

STEPHANIE H., GARRETT S., COLORADO RIVER INDIAN TRIBES, 

Appellees.

No. 1 CA-JV 16-0163

Appeal from the Superior Court in La Paz County

No. S1500SV201200004

The Honorable Douglas Camacho, Judge Pro Tempore

AFFIRMED

COUNSEL

Rideout Law, PLLC, Lake Havasu City

By Wendy Marcus

Counsel for Appellants

Jessica L. Quickle, Attorney at Law, Parker

By Jessica L. Quickle

Counsel for Appellee Mother

Office of the Attorney General, Colorado River Indian Tribes, Parker

By Elizabeth M. Lorina-Mills, LeeAnne Kane

Counsel for Appellees Colorado River Indian Tribes
S.S., S.S. v. STEPHANIE H., et al

Opinion of the Court

2

OPINION

Presiding Judge Diane M. Johnsen delivered the opinion of the Court, in 

which Judge Jon W. Thompson and Judge John C. Gemmill joined.1

J O H N S E N, Judge:

¶1 This appeal requires us to consider application of the Indian 

Child Welfare Act of 1978 ("ICWA") to a private severance proceeding

brought by an Indian parent against a non-Indian parent on grounds of 

abandonment. For the reasons that follow, we affirm the superior court's 

denial of the requested severance.

FACTS AND PROCEDURAL HISTORY

¶2 Stephanie H. ("Mother") and Garrett S. ("Father") have two 

children, born in 2000 and 2002, respectively. Upon Mother and Father's 

divorce in 2005, the court awarded Mother "sole primary care, custody, and 

control" of the children and granted Father visitation.

¶3 In February 2009, Mother and the children abruptly moved

from Northern Arizona to a town south of Phoenix without the court's 

permission and without notice to Father. On Father's ex parte petition for 

relief, the court found the children were at risk of harm and awarded Father

"temporary sole legal and physical custody." At the return hearing, Mother 

lied about the children's whereabouts. After the children were returned to 

Father a few days later, the court found Mother guilty of perjury and

imposed a term of probation that required her to submit to drug testing and 

substance-abuse counseling.

¶4 A few months later, the court awarded Father "continued sole 

legal and physical custody" of the children, contingent upon his submission 

to hair follicle drug testing. The court granted Mother supervised 

visitation, also contingent upon hair follicle drug testing. Father complied 

with the drug test requirement within a few weeks, but Mother did not. At 

a review hearing in August 2009, the court reaffirmed that Mother could 

 

1 The Honorable John C. Gemmill, Retired Judge of the Court of 

Appeals, Division One, has been authorized to sit in this matter pursuant 

to Article VI, Section 3 of the Arizona Constitution.
S.S., S.S. v. STEPHANIE H., et al

Opinion of the Court

3

have "no visitation and no contact by any means (phone, texting, and 

visiting schools) with the children until the drug testing [was] completed." 

After that order, Mother took and passed three hair follicle drug tests, one 

in 2010 and two in 2014. Between June 2011 and October 2013, as a 

requirement of her probation, Mother submitted to 72 random urinalyses,

69 of which were negative. In August 2011, she successfully completed a 

12-step drug and alcohol recovery program.

¶5 Father filed a petition to sever Mother's parental rights in 

December 2012, alleging abandonment and neglect pursuant to Arizona 

Revised Statutes ("A.R.S.") section 8-533(B)(1), (2) (2017).

2 Various pretrial 

proceedings and several reassignments of judicial officers caused trial to be 

delayed until January 2016. In the meantime, Mother made multiple childsupport payments between August 2012 and March 2014 and completed a 

parenting class. Mother also filed for visitation in 2013 and 2014. Father 

opposed Mother's petitions for visitation, which the court denied. By the 

time of trial, Mother had not seen the children since May 2009.

¶6 The Colorado River Indian Tribes intervened in the severance 

case and fully participated at trial. All parties acknowledged that the two 

children were Indian children under ICWA, 25 U.S.C. § 1903(4) (2012). 

Accordingly, before the court could sever Mother's parental rights, Father

would need to prove that (1) active efforts were made to prevent the 

breakup of the Indian family, (2) those efforts were unsuccessful and (3)

continued custody by Mother was likely to result in serious emotional or 

physical damage to the children. See 25 U.S.C. § 1912(d), (f) (2012).

¶7 At the close of Father’s case, Mother moved to dismiss 

pursuant to Arizona Rule of Procedure for the Juvenile Court 66(F)(3). The 

court ruled Father had offered sufficient evidence to go forward on 

abandonment but not neglect. The court found sufficient evidence to show 

severance would be in the best interests of the children, see A.R.S. § 8-533(B), 

and, addressing one of the required ICWA elements, "at least some" 

evidence that continued custody by Mother was likely to result in serious 

emotional or physical damage to the children, see 25 U.S.C. § 1912(f). The 

court, however, granted Mother's motion to dismiss because it found Father 

had not offered sufficient evidence to prove unsuccessful "active efforts" to 

prevent breakup of the family. See 25 U.S.C. § 1912(d).

 

2 Absent material revision after the relevant date, we cite a statute's 

current version.
S.S., S.S. v. STEPHANIE H., et al

Opinion of the Court

4

¶8 The children timely appealed the dismissal of the petition for 

severance.3 We have jurisdiction under Article 6, Section 9, of the Arizona 

Constitution and pursuant to A.R.S. §§ 8-235(A) (2017), 12-1201(A)(1) (2017) 

and Arizona Rule of Procedure for the Juvenile Court 103(A).

DISCUSSION

A. Application of ICWA to a Private Severance of a Non-Indian's 

Parental Rights.

¶9 The children first argue ICWA does not apply to a private 

petition to sever and, in particular, does not apply to an Indian parent's 

petition to sever the parental rights of a non-Indian parent. They contend

ICWA is aimed at abusive child-welfare practices carried out by nontribal 

public and private agencies, see Adoptive Couple v. Baby Girl, 133 S. Ct. 2552, 

2557 (2013), and argue the severance petition at issue here presents no such 

concern.4

¶10 Congress adopted ICWA, 25 U.S.C. §§ 1901-1963, after finding 

that "an alarmingly high percentage of Indian families [were] broken up by 

the removal, often unwarranted, of their children from them by nontribal 

public and private agencies." See 25 U.S.C. § 1901(4) (2012); H.R. Rep. No. 

95-1386, at 9 (1978) ("Surveys . . . indicate that approximately 25-35 percent 

of all Indian children are separated from their families."). Accordingly, 

 

3 Father has not appeared in this appeal.

4 "This court reviews de novo the interpretation and application of a 

statute." Michael J., Jr. v. Michael J., Sr., 198 Ariz. 154, 156, ¶ 7 (App. 2000). 

"In interpreting a statute, we first look to the language of the statute itself." 

Cross v. Elected Officials Ret. Plan, 234 Ariz. 595, 603, ¶ 26 (App. 2014). "If the 

language is clear, the court must 'apply it without resorting to other 

methods of statutory interpretation.'" Bilke v. State, 206 Ariz. 462, 464, ¶ 11 

(2003) (quoting Hayes v. Cont'l Ins. Co., 178 Ariz. 264, 268 (1994)). "If the 

language is not clear, we consider other factors such as 'the context of the 

statute, the language used, the subject matter, its historical background, its 

effects and consequences, and its spirit and purpose.'" Cross, 234 Ariz. at 

603, ¶ 26 (quoting In re Estate of Jung, 210 Ariz. 202, 204, ¶ 12 (App. 2005)). 

Unless otherwise stated, we assume the legislature "accords words their 

natural and obvious meaning," which often may be discerned from a 

dictionary definition. State v. Jones, 188 Ariz. 388, 392 (1997).
S.S., S.S. v. STEPHANIE H., et al

Opinion of the Court

5

ICWA provides "minimum Federal standards for the removal of Indian 

children from their families." 25 U.S.C. § 1902 (2012).

¶11 The federal act applies to a "child custody proceeding," 

including a "termination of parental rights," involving an "Indian child." See 

25 U.S.C. § 1903(1)(ii); Maricopa County Juv. Action No. A-25525, 136 Ariz. 

528, 531 (App. 1983). An "Indian child" under ICWA is "any unmarried 

person who is under age eighteen and is either (a) a member of an Indian 

tribe or (b) is eligible for membership in an Indian tribe and is the biological 

child of a member of an Indian tribe." 25 U.S.C. § 1903(4).

¶12 As Mother and the Tribes argue, ICWA’s plain language does 

not limit its scope to proceedings brought by state-licensed or public 

agencies. By its own terms, ICWA applies to any petition to terminate a 

parent's rights. 25 U.S.C. § 1903(1)(ii) ("'termination of parental rights' . . . 

shall mean any action resulting in the termination of the parent-child 

relationship"). "Read naturally, the word 'any' has an expansive meaning, 

that is, 'one or some indiscriminately of whatever kind.'" United States v. 

Gonzales, 520 U.S. 1, 5 (1997) (quoting Webster's Third New International 

Dictionary 97 (1976)). It follows that Congress did not intend that ICWA 

would apply only to termination proceedings commenced by state-licensed 

or public agencies. See D.J. v. P.C., 36 P.3d 663, 673 (Alaska 2001) ("ICWA 

applies to termination proceedings when a party other than the state seeks 

the termination."); In re N.B., 199 P.3d 16, 19 (Colo. App. 2007) ("ICWA's 

plain language is not limited to action by a social services department."); In 

re D.A.C., 933 P.2d 993, 1000-01 (Utah App. 1997) (ICWA applies to any 

proceeding in juvenile court with permanent consequences to the parentchild relationship).

¶13 Further, Congress explicitly excluded dissolution and 

delinquency proceedings from its definition of "child custody proceeding." 

25 U.S.C. § 1903(1). Had it also intended to exclude private termination 

proceedings, we presume it would have done so expressly. See Hillman v. 

Maretta, 133 S. Ct. 1943, 1953 (2013) (“[W]here Congress explicitly 

enumerates certain exceptions to a general prohibition, additional 

exceptions are not to be implied, in the absence of evidence of a contrary 

legislative intent.” (quoting Andrus v. Glover Constr. Co., 446 U.S. 608, 616-

17 (1980))). Accordingly, and in the absence of any authority to the 

contrary, we conclude that ICWA applies to a private termination 

proceeding just as it applies to a proceeding commenced by a state-licensed 

private agency or public agency.
S.S., S.S. v. STEPHANIE H., et al

Opinion of the Court

6

¶14 The children also argue, however, that ICWA does not apply 

because termination of Mother's rights would not result in the breakup of 

an Indian family, given that they would remain in the custody of their 

Indian parent, Father.

¶15 Although Congress might have crafted ICWA to exclude 

petitions to sever the rights of non-Indian parents, no such exclusion 

appears in the statute, which, as we have said, expressly applies to "any 

action resulting in the termination of the parent-child relationship." 25 

U.S.C. §§ 1903(1)(ii); see 25 U.S.C. § 1912(d), (f). Moreover, under the statute, 

"parent" means "any biological parent . . . of an Indian child." 25 U.S.C. §

1903(9). Given this and ICWA's definition of "termination of parental 

rights," id. § 1903(1)(ii), the plain language of the act reveals its focus is not 

on custody proceedings that affect Indian parents, but instead is on custody 

proceedings that affect Indian children. See id. § 1903(1)(ii). This conclusion 

is further supported by ICWA's stated purpose. See id. § 1902 ("The 

Congress hereby declares that it is the policy of this Nation to protect the 

best interests of the Indian children and to promote the stability and 

security of Indian tribes and families by the establishment of minimum 

Federal standards for the removal of Indian children from their families."); 

see In re Adoption of T.A.W., 383 P.3d 492, 500 (Wash. 2016) (application of 

ICWA depends on the status of the child).5

¶16 Accordingly, the superior court did not err by applying the 

requirements of ICWA to Father's petition to terminate Mother's parental 

rights.

B. "Active Efforts" When Severance Is Based on Abandonment.

¶17 ICWA imposes certain procedural and substantive 

requirements in cases involving the termination of parental rights involving 

Indian children, but otherwise contemplates that termination proceedings 

in state courts will proceed according to state law. Valerie M. v. Ariz. Dep't 

 

5 Rules recently issued by the Bureau of Indian Affairs ("BIA") 

addressing "requirements for State courts in ensuring implementation of 

ICWA in Indian child-welfare proceedings" are informative. Indian Child 

Welfare Act Proceedings, 81 Fed. Reg. 38778-01, 38778 (June 14, 2016) (to be 

codified at 25 C.F.R. pt. 23). Under these rules, which took effect December 

12, 2016, "Indian family," in the context of 25 U.S.C. 1912(d), "means the 

Indian child's family." Id. at 38798; see also In re T.A.W., 383 P.3d at 500. 

Here, in addition to Father, this includes Mother, even though she is not a 

member of a tribe. See Adoptive Couple, 133 S. Ct. at 2562.
S.S., S.S. v. STEPHANIE H., et al

Opinion of the Court

7

of Econ. Sec., 219 Ariz. 331, 334-35, ¶¶ 14, 16 (2009) ("[Congress] recognized

that federal requirements would be in addition to state law requirements, 

which will themselves prevail over federal law if they are more protective 

of parental rights."); see also 25 U.S.C. § 1921 (2012).

¶18 Among the additional federal protections ICWA imposes is 

that:

[a]ny party seeking to effect . . . termination of parental rights 

to[] an Indian child under State law shall satisfy the court that 

active efforts have been made to provide remedial services 

and rehabilitative programs designed to prevent the breakup 

of the Indian family and that these efforts have proved 

unsuccessful.

25 U.S.C. § 1912(d); see also In re T.A.W., 383 P.3d at 503 ("active efforts" 

requirement applies to private severance proceeding). The same 

requirement is imposed by Arizona Rule of Procedure for the Juvenile 

Court 66(C):

[I]f the child is an Indian child, . . . [t]he moving party . . . must 

also satisfy the court that active efforts have been made to 

provide remedial services and rehabilitative programs 

designed to prevent the breakup of the Indian family and that 

those efforts have proven unsuccessful.

Ariz. R.P. Juv. Ct. 66(C); see also Yvonne L. v. Ariz. Dep't of Econ. Sec., 227 

Ariz. 415, 421, ¶ 26 (App. 2011) ("[T]he necessary ICWA 'active efforts'

finding must . . . be made under the clear and convincing evidence 

standard.").

¶19 Although the superior court in this case found Father offered

sufficient evidence to go forward on his petition for severance based on 

abandonment, see A.R.S. § 8-533(B)(1), it dismissed the petition because it 

found he had offered insufficient evidence of unsuccessful "active efforts" 

to prevent the breakup of the family under 25 U.S.C. § 1912(d).

¶20 On appeal, the children argue the court erred by requiring 

Father to prove "active efforts" had been made to prevent abandonment. 

They offer no authority, however, for their contention that the "active 

efforts" mandate does not apply to a termination proceeding brought on the 

ground of abandonment. To the contrary, the statute allows no exception 

to the required proof of unsuccessful "active efforts" whenever "[a]ny party 
S.S., S.S. v. STEPHANIE H., et al

Opinion of the Court

8

seek[s] . . . termination of parental rights to an Indian child under state law." 

25 U.S.C. § 1912(d).

¶21 ICWA does not define "active efforts . . . to provide remedial 

services and rehabilitative programs designed to prevent the breakup of the 

Indian family." Nor does it specify who must make the required "active 

efforts." Rather, the statute only requires proof that active efforts have been 

made to preserve the parent-child relationship and those efforts have 

proved unsuccessful. See In re Pima County Juv. Action No. S-903, 130 Ariz. 

202, 208 (App. 1981); In re Crystal K., 276 Cal. Rptr. 619, 626 (Cal. App. 1990) 

("[R]emedial efforts must be directed at remedying the basis for the parental 

termination proceeding."); Guidelines for State Courts and Agencies in 

Indian Child Custody Proceedings, 80 Fed. Reg. 10146-02, 10156 (Feb. 25, 

2015). What constitutes "active efforts" will vary, depending on the 

circumstances, the asserted grounds for severance and available resources. 

25 U.S.C. § 1912(d); see In re Baby Boy Doe, 902 P.2d 477, 484 (Idaho 1995); In 

re C.A.V., 787 N.W.2d 96, 103-04 (Iowa App. 2010) ("The 'active efforts' 

requirement must be construed in the context of the existing 

circumstances.").6

¶22 The children argue there are no services that can prevent a 

parent from abandoning a child. Cf. A.R.S. § 8-533(B)(8) (petition to sever 

parental rights based on out-of-home placement requires proof "that the 

agency responsible for the care of the child has made a diligent effort to 

provide appropriate reunification services"). But "active efforts," 

particularly in the context of abandonment, will not always implicate 

formal public services. Under Arizona law, a parent abandons a child by 

failing "to provide reasonable support and to maintain regular contact with 

the child, including providing normal supervision." A.R.S. § 8-531(1). 

 

6 In its new rules, the BIA "recognizes that what constitutes sufficient 

'active efforts' will vary from case-to-case, and the definition . . . retains State 

court discretion to consider the facts and circumstances of the particular 

case before it." Indian Child Welfare Act Proceedings, 81 Fed. Reg. at 38791.

The financial and practical resources available to a party seeking 

termination are among the circumstances that bear on what "active efforts" 

might be required under ICWA. See In re C.A.V., 787 N.W.2d at 103; In re 

T.A.W., 383 P.3d at 509 (Madsen, C.J., dissenting in part) ("[M]other did all 

that she could do to facilitate the father's relationship with the Indian child; 

those efforts did not include the provision of agency or institutional 

resources and services that she did not have access to or which were 

otherwise unavailable.").
S.S., S.S. v. STEPHANIE H., et al

Opinion of the Court

9

Construing ICWA broadly to promote its stated purpose, we interpret the 

"active efforts" requirement of § 1912(d) in an abandonment proceeding to 

include informal private initiatives aimed at promoting contact by a parent 

with the child and encouraging that parent to embrace his or her 

responsibility to support and supervise the child. See In re C.A.V., 787 

N.W.2d at 103 (mother met "active efforts" requirement by "facilitating 

visits before [father's] incarceration and by inviting continued contact 

during his prison stay").

¶23 In the abstract, "active efforts" to prevent a parent from 

abandoning a child might include, inter alia, informing the parent about the 

child's educational progress and interests; sending the parent photographs 

of the child; keeping the parent informed of irregular but significant 

expenses, such as medical expenses, to which the parent would be expected 

to contribute; and, where appropriate, inviting the parent to school and 

extracurricular events and allowing the child to accept communications 

from the parent. See, e.g., In re N.B., 199 P.3d at 25 ("[D]espite its finding of 

abandonment, the trial court also found that stepmother could have 

engaged in active efforts to provide remedial services and rehabilitative 

programs by informing the child of the identity of his biological mother and 

seeking to preserve the relationship between them by showing the child 

pictures of her.").

¶24 While arguing Mother abandoned the children by failing to 

contact, support and supervise them, Father offered no evidence at trial that 

anyone shared any information about the children with Mother or invited 

or encouraged her to contact, support or supervise the children. To the 

contrary, from 2009 on, Father obtained a series of protective orders that 

forbade her from any contact with the children; he testified he objected to 

all of Mother's efforts to regain visitation rights out of concern for her drug 

history and because he did not want to give her another chance to abscond 

with the children. Cf. Calvin B. v. Brittany B., 232 Ariz. 292, 297, ¶ 21 (App. 

2013) ("A parent may not restrict the other parent from interacting with 

their child and then petition to terminate the latter's rights for 

abandonment.").

¶25 At trial, Father's evidence of "active efforts" focused instead 

on the 2009 order in the dissolution proceeding that required Mother to 

undergo hair follicle drug testing before she could enjoy visitation with the 

children. Father argued Mother effectively abandoned the children by 

failing to comply with the drug test requirement. On appeal, the children 

contend that "active efforts" did not require Father to shoulder the burden 
S.S., S.S. v. STEPHANIE H., et al

Opinion of the Court

10

or expense of ensuring Mother complied with the drug testing order so as 

to be able to visit the children.

¶26 We need not decide whether the "active efforts" requirement 

of ICWA, 25 U.S.C. § 1912(d), required Father to try to ensure that Mother 

complied with the court's order to drug test because the record undercuts 

the premise of Father's contention at trial and the children's argument on 

appeal. The evidence showed that although Mother at first put off 

obtaining a hair follicle test, she underwent one such test in 2010 and two 

others in 2014. In addition, as part of her probation requirements, she 

submitted to 72 random drug tests between June 2011 and October 2013 and 

successfully completed a 12-step drug and alcohol recovery program. The 

superior court dismissed Father's petition before hearing Mother put on 

evidence why she was unable to regain visitation rights, notwithstanding 

her eventual compliance with the drug testing ordered in the dissolution. 

Nevertheless, on this record, the evidence was sufficient to support the 

superior court's finding that any "active efforts" to encourage Mother to 

address her drug issues had been successful, not unsuccessful, as ICWA 

requires.7

C. Equal Protection Challenge.

¶27 Without citation to authority, the children finally argue that 

application of ICWA to Father's petition violates their constitutional rights 

to equal protection, based on their "race and tribal affiliation." We join the 

several other courts that have concluded that the additional requirements 

ICWA imposes on severance of a parent's rights to an Indian child are based 

not on race, but on Indians' political status and tribal sovereignty, and that 

those requirements are rationally related to the federal government's desire 

to protect the integrity of Indian families and tribes. See, e.g., In re N.B., 199 

P.3d at 22-23 (citing cases).

 

7 Father testified he attempted to pay for a hair follicle test for Mother, 

but the court held that this alone, if true, was not an "active effort" in the 

absence of evidence that he let Mother know she would not have to pay for 

the test. Given the record shows that Mother eventually completed a 

successful drug-testing regime, we need not decide whether ICWA requires 

proof in a private severance proceeding of failed active efforts by the 

petitioner aimed at preventing severance. See 25 U.S.C. § 1912(d) (petitioner 

"shall satisfy the court that active efforts have been made . . . to prevent the 

breakup of the Indian family and that these efforts have proved 

unsuccessful").
S.S., S.S. v. STEPHANIE H., et al

Opinion of the Court

11

CONCLUSION

¶28 For the reasons set forth above, we affirm the superior court's 

dismissal of Father's petition for failure to comply with the requirement in 

25 U.S.C. § 1912(d) to show proof of unsuccessful "active efforts" to prevent 

the breakup of the family.