SALT RIVER PIMA-MARICOPA INDIAN COMMUNITY

SALT RIVER PIMA-MARICOPA INDIAN COMMUNITY

COURT OF APPEALS

10,005 E. OSBORN RD. SCOTTSDALE, AZ 85256 (480)362.6315

GLORIA VASQUEZ,

Appellant/Respondent

Appeal Case No.: APJ-22-0001

Trial Case No.: J-19-0064

______

In the Matter of:

OPINION AND ORDER

M. WB

(DOB: 02/18/2005)

Before: Justices Robert N. Clinton, Siera Russell and Mary Guss

This matter is before the Court on the appeal of the Permanent Guardian, Gloria Vasquez,

(Permanent Guardian or Guardian) from an adverse order of the Juvenile Court dated January

31, 2022 (Juvenile Court Order) granting a Petition to Remove Guardian (Petition) filed by the

Guardian ad Litem in this matter. For reasons more fully explained below, this Court reverses

the Juvenile Court Order, directs the Permanent Guardian to be restored and M.WB (the

Juvenile) be returned to her care and custody immediately, and the Petition to be dismissed with

prejudice.

Background

Appellant was appointed as M.WB.'s permanent legal guardian by the SRPMIC Juvenile

Court on August 21, 2019. The Juvenile was a dependent child since October 30, 2018,

and the permanent guardianship with his grandmother achieved permanency for him.

The Juvenile Court retained jurisdiction over the child and guardian pursuant to S.R.O.

§10-123(a)(1) by requiring the guardian and Social Services to submit an annual report.

In March 2021, Guardian had a total of ten children living in her home along with two

other adults (Aunt and Uncle) during the pandemic lockdown. On March 10, 2021 four

of these children (E.C., S.W.Jr., A.W. and D.WB. or "the four children") reported to the

Salt River Police Department (SRPD) and Child Protective Services (CPS) physical

abuse by Guardian, Aunt and Uncle, along with neglect by not being provided adequate

food, basic necessities and medical care. A Dependency Petition on the four children

was filed on March 16, 2021, with the Juvenile Court naming Guardian along with the

parents. The allegations as to Guardian were physical abuse and neglect. While noting

she wished to retain the guardianship of the remaining children, the Permanent

Guardian voluntarily relinquished guardianship of the four children, resulting in Guardian

being dismissed from the Dependency Petition.

On April 26, 2021, the child's GAL filed the Petition to Remove Guardian of M.WB

alleging three grounds for removal pursuant to S.R.O. § 10-124(a)(3). At trial, the GAL

presented testimony of witnesses and Petitioner's exhibits were admitted.The parties

agreed to strike the testimony of GAL's witness Sandy Corral along with Plaintiffs

Exhibits 11 and 12.

At the hearing on the Petition to Remove Guardian for M. WB, the Guardian ad Litem,

the Petitioner, basically sought to try the grounds for removal of the four children that

had never been presented to the Court since the Guardian had voluntarily relinquished

guardianship of the four children in the prior proceeding. At the hearing in this matter,

the Guardian ad Litem never presented any evidence whatsoever of abuse or neglect of

M. WB. The Guardian ad Litem claimed in her opening statement that S.R.O. § 10124(a)(3)(h) does not require that M. WB be a victim of abuse, only that “a child” have

suffered such abuse at the hands of the Permanent Guardian. A summary of the

hearing follows derived primarily from the excellent, accurate, and detailed description

provided in the Initial Brief of the Appellant. 1

1 Both parties provided truly excellent and very helpful briefs to this Court. The Court thanks counsel for

both sides for their diligent and helpful efforts on behalf of their clients.

In the Matter of M. WB., No. A.P.J. 22-0001, Opinion and Order

Page 2 of 20

Witness Kimberly Dent, Pediatric Nurse Practitioner

Petitioner's witness, Ms. Dent testified that on March 12, 2021, at the request of CPS

Investigative Case Manager Ari Marquez and Detective Campos, she completed

individual physical evaluations on the four children due to reports of physical abuse and

neglect. The children were: E.C. (12 years/ 11months old), S.W.Jr. (14 years/9 months

old), A.W. (14 years/4 months old), and D.WB. (15 years/1 month old). Ms. Dent did not

conduct a physical evaluation of M.WB. or any other children in Guardian's home.

Ms. Dent testified that all the four children's vital signs (body weight, height, BMI, heart

rate, temperature), along with specific examinations including head/neck, eye, ear, oral,

cardiovascular, lung, abdominal, extremities, musculoskeletal, and neurological were all

in normal range. The four children's general appearances were noted as no apparent

distress, cooperative with the exam, awake, well developed, well nourished, and well

groomed, with only E.C. noted to appear withdrawn.

Ms. Dent testified that she had concerns of physical abuse for all four children based on

the children's self-reporting to her, but that she could not say with any medical certainty

what caused the injuries, and it was not her role to determine if the children were being

truthful in their disclosures. Ms. Dent observed E.C. and S.W.Jr. with linear scars on

their arms. On cross-examination Ms. Dent admitted these findings were minor injuries

and scratches, which would not result in serious physical injury or death. A.R. reported

being hit with a belt on her bottom resulting in bruises and blisters, but Ms. Dent did not

observe these injuries due to the child wishing not to be examined on her bottom. Ms.

Dent did observe A.R. with various bruising, abrasions and scars on her extremities and

upper thigh. Ms. Dent observed scars on D.WB.'s knuckles on his right hand, which the

child stated was from defending himself against family members hitting him. Ms. Dent

testified that her statement regarding these scars being defensive in nature was based

The Court also notes that some of the facts described below involving rationing or withholding of food

occurred during the COVID-19 pandemic while the family was in lockdown, making grocery shopping

difficult at best – an important context hardly noted or considered by the Juvenile Court.

In the Matter of M. WB., No. A.P.J. 22-0001, Opinion and Order

Page 3 of 20

solely on the history D. WB provided and nothing more.

Ms. Dent testified all four children disclosed that the refrigerator and pantry where the

food was kept was locked and they did not have access to the food except for what the

Guardian provided. Further, she testified all children indicated they were only given

water to drink. E.C. and A.W. reported the Guardian provided dry cereal and peanut

butter sandwiches for food; whereas S.W.Jr. and D.WB. reported being given only

peanut butter sandwiches for food. A.R. reported food was used as a form of

punishment by the Guardian and the other six children (other than the four-reporting

neglect) in the home were able to eat whatever they wanted. D.WB. disclosed hoarding

and stealing food because the food was not enough. Ms. Dent did not conduct a

nutritional assessment on these children, as such an assessment is not within her

expertise. Ms. Dent testified that the children appeared well nourished, and all were in

the normal ranges for height, BMI and weight, but nonetheless she had concerns about

nutritional neglect.

Ms. Dent testified and recorded in all the examination reports her concerns of physical

abuse and nutritional neglect based on the children's reports of being provided limited

variety of food and water with no access to additional food due to the refrigerator and

pantry being locked. She opined, "Adolescence is a period of rapid growth, and they

require a variety of food and calories to meet their daily nutritional requirements." Ms.

Dent stated, A diet deficit in nutrition can have an adverse effect on brain development,

cognition, and behavior that can extend into adulthood. Overall, this is worrisome for

child physical abuse and neglect, specifically nutritional neglect." As to A.R. and D.WB.,

Ms. Dent expressed the concern of"withholding food as punishment can result in short

and long term emotional and psychological effects."

Social Services Investigative Case Worker with CPS Ariadna Marquez

Petitioner's witness Ms. Marquez conducted a joint CPS investigation with the Salt River

Police Department (SRPD) on March 10, 2021, into the allegations of abuse and

In the Matter of M. WB., No. A.P.J. 22-0001, Opinion and Order

Page 4 of 20

neglect by the four children. Ms. Marquez spoke to each child individually and all

reported the same allegations. CPS and SRPD decided that forensic interviews of the

four children would be necessary given a criminal child abuse investigation also

occurring. Ms. Marquez along with the SRPD went to the Guardian's home in the early

morning hours on March 11, 2021 and observed the other six children (M.WB., R.W.,

B.WB., L.W., S.W., C.M.Jr.) in the home. The home was found clean. It had running

water and there was plenty of food in the unlocked pantry, two refrigerators and cabinets

that were stocked with food. Some medications were found, and Guardian was advised

by CPS to lock the medications out of reach of the children. The Guardian explained the

pantry was kept locked because thirteen people lived in the home and the family would

just go through the food fast and it was hard for her to provide for everyone. At this time

the family was under "stay-at-home orders." According to Ms. Marquez, the six children

did not show any visible signs of abuse or neglect, did not appear malnourished and no

safety concerns were noted.

CPS proceeded to offered the Guardian an out-of-home safety plan if Guardian could

identify a safety monitor who the four children could live with while the ongoing

CPS/SRPD investigations determined if the home was safe for the four children to

return. Guardian did not have a relative who could serve as safety monitor; therefore,

CPS served Guardian a notice of removal at that time. CPS did not remove any of the

six children still in the home.

During her investigation on March 10 and 11, 2021, Ms. Marquez noted that the four

children did not report to her any concerns about the safety of the remaining six children

in the home. Only two of the four children reported any use of alcohol or substance

abuse going on in the home. The four children expressed that they could no longer keep

what was going on the home "a secret"; Ms. Marquez testified that such statements

alone did not give her concern.

Ms. Marquez made the referrals for the four children to undergo medical exams by Ms.

In the Matter of M. WB., No. A.P.J. 22-0001, Opinion and Order

Page 5 of 20

Dent and was present for each exam on March 12, 2021. Ms. Marquez advised Ms.

Dent before the physical exams of the four children's allegations of abuse and neglect.

Ms. Marquez testified that Ms. Dent's reports were consistent with the disclosures made

by the four children to her and SRPD regarding abuse and neglect, meaning the

children were not being properly fed in the home.

On March 12, 2021, Ms. Marquez was present for only two forensic interviews of A.W.

and D.WB., but testified she reviewed all four children's forensic interviews. Ms.

Marquez's testimony regarding the two forensic interviews she observed was that the

children's disclosures were consistent about the physical abuse, not having enough

food, not feeling safe in the home and that they were the only children in the home

having these experiences. Ms. Marquez testified these interviews were enough to

"substantiate the allegations." On March 15, 2021, Guardian expressed to CPS that

she wanted to voluntarily relinquish guardianship of the four children.

Based on the investigation and up until that time, a Dependency Petition on the four

children was filed on March 16, 2021, with the Juvenile Court naming Guardian along

with the parents. The allegations as to Guardian were physical abuse and neglect, while

noting she wished to relinquish the guardianship of the four children. Guardian

voluntarily relinquished guardianship of the four children, resulting in Guardian being

dismissed from the Dependency Petition.

Ms. Marquez testified she believed M.BW., along with the other five children remaining

in Guardian's home, was safe. This conclusion was based on a multi-membered team

that had interviewed the four removed children and seven of the ten children (including

M.WB.) who underwent forensic interviews. All accounts were consistent that the four

removed children were the only children subjected to the reported abuse/neglect. None

of the children interviewed/questioned by CPS or in a forensic interview disclosed

M.WB. was the subject of any abuse. There were no obvious, visible signs of any child

abuse or neglect as to the six children in the home. Based on conversations during the

In the Matter of M. WB., No. A.P.J. 22-0001, Opinion and Order

Page 6 of 20

investigation with the family, and the six remaining children in the home, the safety

concerns around the four removed children were no longer a current safety concern in

Guardian's home.

Additionally, Ms. Marquez found M.WB., who was sixteen, to be" ... older and able to

care for himself. He's also able to speak and say his needs and wants or if his needs

are not being met or if his safety is threatened in any way." On June 9, 2021, while

Guardian was at work, Ms. Marquez testified that she spoke with M.WB. in the home.

When she asked M.WB. about the pantry being locked, M.WB. stated that since the four

children were removed the pantry was no longer locked and he had access to the food

at all times. Ms. Marquez testified specifically regarding M.WB.'s other statements

during the home visit:

"So, I asked him if he could speak with me. He was hesitant at first, but he

complied. I asked him how he was doing. He said he was doing fine. He

reported, I let me pretty much speak freely at first. He said he, excuse me, kind

of had an idea of why I was there that day. And he was upset initially and stating

that he could not believe what the other children had done and how much they

had messed things up, those were his words, in the house. I asked him how he

felt now that the other four children were gone. He said that things were a lot

better. That they weren't as stressed, they were also his words, about being in

the house. He said that everything was just more peaceful. And that he knew

that it was wrong to feel happy that they were gone, but that's how he felt. He

said he was glad that they were gone. I asked him ifhe felt safe in the house. He

said yes. He said that he's always felt safe. He said that he grew up really

without a mom and that the grandmother really is his mom. I asked him if felt that

we needed to find an alternative placement for him. He became very sad. He

said he did not have anybody. He said that they had always grown up without a

lot of relative involvement. He said that being in the house with grandmother was

the only home he knew and that he, if he were to be removed from there that he

knew that he would end up in a group home like, like the other children, and he

did not want that." "He said that he felt safe. That things were a lot better and

that he did not want to leave. He said that if, he felt that he was not being treated

right that he would be more than comfortable in telling other people, even if it

was not CPS."

Ms. Marquez's assessment was that M.WB. was not vulnerable as to the alleged abuse

In the Matter of M. WB., No. A.P.J. 22-0001, Opinion and Order

Page 7 of 20

or neglect and a lack of risk existed as to M.WB. Based on her investigation, Ms.

Marquez concluded that there was no risk of serious physical injury or substantial risk of

serious physical injury or death to M.WB. if he remained in Guardian's care and there

was no immediacy of threats or danger to M.WB., which she stated was CPS's standard

for removal of a child from the home. No other incidents or reports as to child safety had

been reported about Guardian's home from the remaining children since the removal of

the four children.

At trial, CPS's position was Guardian should not be removed and it would be in M.WB.'s

best interests to remain in the home. In Ms. Marquez's assessment, Guardian had

cooperated, maintained positive, regular contact with CPS while following all in-home

services recommendations with a good mindset. Guardian had provided M.WB. with a

safe environment while meeting his basic needs. M.WB. reported feeling safe in the

home and it would negatively impact M.WB. to be removed as he would have to be

placed in a group home as CPS did not have any permanent placements, even for the

other four children.

Ms. Marquez followed up with M.WB. in July of2021 at an unannounced visit to the

home. Ms. Marquez observed his demeanor to be more outgoing and he seemed in

"better spirits." M.WB. stated that things were going good for him, and he was

considering getting a job at Walmart, which Guardian supported. He enjoyed being at

home instead of school because of the pandemic. He expressed he continued to feel

safe in the home and did not want to leave his mom/grandmother as "things were finally

happy in the home."

Upon redirect examination Ms. Marquez acknowledged that she was familiar with some

situations in which not all children in a home are the targets of abuse, but the abuse is

focused on one particular child; however, she could not confidently answer if that were

the situation occurring in Guardian's home. Ms. Marquez confirmed that she felt the

level of abuse substantiated as to the four children rose to serious physical, substantial

In the Matter of M. WB., No. A.P.J. 22-0001, Opinion and Order

Page 8 of 20

risk of harm; thus, resulting in their removal from the home and later a dependency was

filed.

The Court asked Ms. Marquez if she had been ready to proceed with the Dependency

Petition filed as to the four children and Guardian, before the Guardian had been

dismissed as a party from the Dependency case. Ms. Marquez answered "yes". The

Judge asked Ms. Marquez if she was testifying in the context of the removal trial that

the Dependency Petition allegations against the Guardian regarding the four children

are true and Ms. Marquez answered in the affirmative. Next, the Court inquired of Ms.

Marquez what the general practice of Social Services is regarding a person applying for

guardianship and if a background check is performed and if the petition for guardianship

is affected by a history from Social Services. Ms. Marquez answered in the affirmative

that this is the practice.

SRPD Detective Carlos Campos

Detective Campos responded to the Salt River Family Advocacy Center on March 10,

2021, regarding the four children's allegations of abuse and neglect in Guardian's home.

Detective Campos accompanied CPS to the Guardian's home that evening. Detective

Campos observed all seven children's forensic interviews. (E.C., A.W., S.W.Jr., D.WB.,

M.WB., B.WB., and R.W.) Detective Campos testified that the case was referred to

the"Tribal Prosecutor's Office" but was declined for prosecution. His testimony was he

was "unable to come up with enough information to prove or disapprove the allegations"

of physical abuse, neglect and mistreatment in not being fed appropriately and food

being withheld as punishment. Detective Campos read from his report that there was a

lack of physical evidence and conflicting statements amongst the multiple children and

adults involved, causing him to believe the criteria for criminal charges to be filed were

not met. He testified that the four children reporting abuse provided one set of

allegations and the other three children who were interviewed later gave conflicting and

opposite statements. Detective Campos stated that the children found in Guardian's

In the Matter of M. WB., No. A.P.J. 22-0001, Opinion and Order

Page 9 of 20

home at the time of the walk-through with CPS appeared normal and healthy and

nothing alarming or out of the ordinary observed.

As to M.WB.'s forensic interview, Detective Campos confirmed M.WB. said he was

never physically abused. Detective Campos observed M.WB.'s interview in real-time.

Detective Campos interviewed Guardian as part of the investigation. Guardian

described her methods of disciplining the children included talking to them and sending

them to their rooms. Guardian explained the reason she locked the pantry was due to

the children taking or hoarding food especially, sweets and junk foods. Guardian

described how mealtimes were managed in the home for so many people. Guardian

said that the Uncle would get involved when the children were physically fighting to

break up the fights.

Mesa Police Department Forensic Interviewer Drue Siekman

On March 17, 2021, Ms. Siekman conducted video-taped forensic interviews of S.W.Jr.

and E.C., with Detective Campos and a CPS case worker observing. Ms. Siekman also

authored a report after the children's interviews. Ms. Siekman summarized at trial that

during S.W.Jr.'s forensic interview he disclosed "chronic physical abuse" of himself and

the other three children (E.C., A.W. and D.WB.) and "chronic neglect" by the withholding

of food. "Chronic" was the word Ms. Siekman used to describe S.W.Jr.'s disclosures.

Ms. Siekman testified S.W.Jr. disclosed that the food in the home was locked, and he

resorted to stealing food, as did the other three children, especially D.WB. Ms. Siekman

testified that during E.C.'s forensic interview, she disclosed various incidents in which

she or another child was physically hit or scratched. E.C. disclosed the limited food the

four children were provided like S.W.Jr. had also described, as a baggie of dry cereal in

the morning and peanut butter sandwiches later in the day if food was provided. E.C.

described an incident in which the four children were punished for stealing food by

having to sleep outside in the cold during the night. E.C. also disclosed not being

provided feminine products and being told by Guardian and Aunt to use underwear or

In the Matter of M. WB., No. A.P.J. 22-0001, Opinion and Order

Page 10 of 20

socks. E.C. disclosed the other six children in the home were treated differently, better

and were given different kinds of food than the four of them. Ms. Siekman testified that

neither child disclosed in their forensic interviews that M.WB. was physically abused or

fed only peanut butter sandwiches or cereal or that he stole food.

Court's Comments

Following closing arguments and just prior to taking the matter under advisement, the

Court commented on the legal analysis it would take and how the ruling would be

determined as to the decision of the involuntary removal of Guardian pursuant to S.R.O.

§10-124(a)(3). The Court stated that while there had been a question on whether

M.WB. had been abused, the Court was focusing on the Guardian's actions or

capabilities; therefore, the Court's ruling would be based solely on whether the GAL

proved by clear and convincing evidence the allegations in the Petition. The Court

further indicated that the decision is a determination of whether Guardian did not uphold

her duties as permanent legal guardian. The Court acknowledged M.WB. wanted to

remain with Guardian. The Court expressed no desire to further distress M.WB.

Guardian's Advocate urged the Court to hold an in-camera interview with M.WB. who

wanted to address the Court. The Court declined to hold an in-camera interview with

M.WB. as he had not been called as a witness.

Order Formal Hearing on Petition to Remove Guardian

Four months later, on January 31, 2022, the Court issued its written order granting the

Petition to Remove Guardian based only on one alleged ground: Guardian willfully and

intentionally inflicted serious or chronic emotional abuse upon a child. S.R.O. § 10124(a)(3)(h). The findings of fact focused on the four children removed from Guardian's

home and their allegations of abuse and neglect, but no factual findings were made

specifically as to M.WB. or his best interests. The Court made one specific finding:

"13. The Court FINDS that the actions of the guardian upon the four child victims

In the Matter of M. WB., No. A.P.J. 22-0001, Opinion and Order

Page 11 of 20

make her unsuitable to be legal guardian of any other child."

The Court also noted that it gave “considerable weight” to “[t]he statement read into the

record by witness Pediatric Nurse/Practitioner. Kimberly Dent that “. . . withholding food

as punishment and/or not providing enough food can result in short term and long term

emotional and psychological effects.” The Court made its conclusion that grounds to

involuntarily remove Guardian existed pursuant to S.R.O. § I0-124(a)(3)(h) and " ... it

was not in M.WB.'s best interests to allow Guardian to remain, due to lack of suitability

and character." The Court's Order also purported to find “that the actions of the guardian

upon the four child victims makes her unsuitable to be a legal guardian of any other

child.”

Appellant filed a Motion to Reconsider with the Court on February 4, 2022, which the

Court denied on February 11, 2022.

Appellant filed a timely Notice of Appeal on February 9, 2022 and later filed an

Amended Notice of Appeal on Feburary 24, 2022. This appeal ensued. 2

Discussion

This matter involves the Permanent Guardian for the Juvenile at issue in this case.

S.R.O. § 11-168 states an important permanency policy which governs the Tribal Courts

in all juvenile matters:

Sec. 11-168. Permanency policy.

(a) The policy of the Community is to protect the best interests of its

children and to promote the stability of its families by setting forth standards

that reflect its cultural values while providing children a stable foundation in

a permanent home. Every child deserves a permanent and stable home,

and to be protected from emotional and mental harm caused by separation

2 In her Initial Brief, Appellant requested oral argument in this matter.The Court has determined that

since most of the dispositive issues in this case involve questions of law and were well briefed by both

sides, oral argument would not materially advance the Court's understanding of the issues and would

substantially delay final resolution of this appeal to the detriment of the Juvenile. For this reason the

Appellant's request for oral argument is denied.

In the Matter of M. WB., No. A.P.J. 22-0001, Opinion and Order

Page 12 of 20

from his or her family and uncertain temporary placement.

(b) Consistent with these policies, all departments and agencies of the

Community, and the Community court, shall protect dependent children

from unnecessary prolonged separation from their parent(s) and extended

family and from uncertain temporary placement.

(Emphasis supplied). Section 11-168(b) expressly directs the Community courts to

adhere to this permanency policy. Since the Juvenile here has known the Permanent

Guardian (his grandmother) as his “mom” for most of his life, the Guardian ad Litem

must present an extraordinary compelling case to interfere with this relationship months

before the Juvenile became an adult. For various reasons enumerated below, the

Guardian ad Litem completely failed to present such a case.

A. Contrary to the Argument of the Guardian ad Litem and the Theory of the

Juvenile Court, Section 10-124(a)(3)(h) of the Salt River Ordinance Requires

Proof of Abuse of the Juvenile Involved in the Guardianship, Not of Another

Child, for Termination of a Permanent Guardianship.

The parties and the Juvenile Court agreed that the dispositive section of the Salt River

Ordinances was Section 10-124(a)(3)(h). That section reads as follows:

(3) Grounds for involuntary removal of a guardian. Any one of the following

allegations proven by the Community at trial shall be grounds for the

involuntary removal of a guardian:

...

h. The guardian willfully or intentionally inflicted serious or chronic

emotional abuse upon a child; . . . .

(Emphasis supplied). The parties clearly disagree, however, as to the meaning of “a

child” as used in Section 10-124(a)(3)(h). Starting with the Opening Statement at the

hearing in the Juvenile Court, the Guardian ad Litem has consistently maintained that “a

child” means any child, not the child subject to the guardianship in question. The entire

case advanced at the hearing by the Guardian ad Litem to support removal was based

on that theory. The Permanent Guardian disagreed and has maintained that “a child”

means the child subject to the guardianship, arguing that the Permanent Guardian

In the Matter of M. WB., No. A.P.J. 22-0001, Opinion and Order

Page 13 of 20

cannot be removed without some showing of abuse of the juvenile in question and that

such removal is in the best interest of that juvenile. The Juvenile Court erroneously

adopted the position of the Guardian ad Litem, noting that the issue before that court in

the removal proceeding was not whether the Juvenile had been abused but the

suitability of the Permanent Guardian.

This Court finds that the interpretation of Section 10-124(a)(3)(h) advanced by the

Guardian ad Litem, and accepted by the Juvenile Court, is in error as a matter of law.

Overlooked by all parties and the Juvenile Court in interpreting Section 10-124(a)(3)(h)

is another closely related subsection that permits removal of a permanent guardian

where “ [t]he guardian has had a separate guardianship or parental rights as to another

child involuntarily terminated.” S.R.O. §10-124(a)(3)(f).

When juxtaposed with Section 10-124(a)(3)(h) the express language of Section 10124(a)(3)(f) demonstrates the drafters of the former section meant “a child” to refer to

the child subject to the guardianship, not some other child. First, and most important,

Section 10-124(a)(3)(f) demonstrates that when the code drafters meant to refer to

“another child” they did so expressly, not by substituting the article “a” for the article

“the” in Section 10-124(a)(3)(h), as argued by the Guardian ad Litem. The express

reference to “another child” two subsections above Section 10-124(a)(3)(h) indicates

that “a child” in that subsection references the child subject to the guardianship in

question. Second, clearly had the Permanent Guardian not voluntarily relinquished

guardianship over the four children in the prior proceeding, she might have been

removed as Permanent Guardian for the Juvenile under Section 10-124(a)(3)(f) had she

been adjudicated to have abused the four children and involuntarily been removed as

their guardian. But that is not what happened! She voluntarily relinquished her

guardianship without any adjudication and was dismissed from the case. The theory

advanced by the Guardian ad Litem, and apparently accepted by the Juvenile Court,

would enlarge the grounds for removal of a guardian beyond what Section 10-124(a)(3)

(f) permits. That result not only flies in the face of the intent of the drafters as reflected

In the Matter of M. WB., No. A.P.J. 22-0001, Opinion and Order

Page 14 of 20

by the clear difference in language used in Sections 10-124(a)(3)(f) & (h), it also would

deny the Permanent Guardian any effective legal notice of the consequence of her

voluntary relinquishment of the guardianship of the four children – a serious due

process problem which needs little more discussion. Put simply, the Guardian ad Litem

simply cannot use a proceeding under Section 10-124(a)(3)(h) to adjudicate abuse of

another child or children and ascribe to that adjudication, the limited consequences set

forth in Section 10-124(a)(3)(f). Finally, where permanent guardianships of minors are

involved, this more limited reading of “a child” as used in Section 10-124(a)(3)(h) is

virtually compelled by the permanency policy of Section 11-168 discussed above.

Where no abuse of the minor involved in the guardianship has been shown, the

Community courts have no justification for interfering with the permanent home of the

minor under the guardianship.

Thus the entire legal theory of the Petition advanced by the Guardian ad Litem and

accepted by the Tribal Court offered no justification under the Salt River Ordinances for

the removal of the Permanent Guardian. Consequently, the Order of the Juvenile Court

was in error as a matter of law.

B. Even Were the Court to Accept the Interpretation of Section 10-124(a)(3)

(h) Offered by the Guardian ad Litem, No Abuse of the Type Required by

That Section is Shown on This Record, As A Matter of Law

In the Petition, the Guardian ad Litem alleged three grounds for removal of the

Permanent Guardian: (1) The Guardian willfully or intentionally inflicted serious or

chronic emotional abuse upon a child; (2) The Guardian engaged in egregious conduct

that poses a risk to a child's wellbeing; and (3) the guardian had knowledge of emotional

or physical abuse or neglect of a child and failed to protect that child from such harm.

The Juvenile Court expressly found that the second and third grounds had not been

proven, a finding not contested in this appeal. Thus, even if this Court were to accept

the more expansive definition of “a child” as used in Section 10-124(a)(3)(h), it would

In the Matter of M. WB., No. A.P.J. 22-0001, Opinion and Order

Page 15 of 20

have to find that the record contained evidence that the Guardian willfully or intentionally

inflicted serious or chronic emotional abuse upon a child.

Section 10-124(a)(3)(h) expressly requires proof of “serious or chronic emotional

abuse.” (Emphasis supplied). It deals with emotional, not physical, abuse, the latter

being covered by other subsections. Chapter 10, unfortunately, contains no express

definition of emotional abuse. The Permanent Guardian argues, and this Court agrees,

that in the absence of such a definition in Chapter 10, the Court should look to the

related Chapter 11, dealing with Juveniles, in the context of the removal of a Permanent

Guardian for the Juvenile. Salt River Ordinances Section 11-2 defines abuse in relevant

part as:

Abuse means . . .infliction of or allowing another person to cause serious

emotional damage as evidenced by severe anxiety, depression, withdrawal

or aggressive behavior and which emotional damage is caused by the acts

or omissions of an individual having care, custody and control of a child.

(Emphasis supplied). Plainly the italicized language in the definition requires that the

serious emotional abuse actually be causing, not merely posing a risk of, the described

emotional damage – severe anxiety, depression, withdrawal or aggressive behavior.

While the Guardian ad Litem presented evidence of behaviors by the Permanent

Guardian directed toward the other four children that she claimed constituted emotional

abuse, absolutely no medical, psychological or other evidence was presented of severe

anxiety, depression, withdrawal or aggressive behavior. While one child did appear a bit

withdrawal at one interview, no evidence suggested that such withdrawal constituted

any type of emotional pattern for that child. Rather, the Guardian ad Litem and the

Juvenile Court relied on the theory that the actions of the Permanent Guardian could

cause, rather than had in fact caused, such emotional damage. Specifically the

Guardian ad Litem presented, and the Juvenile Court expressly “gave considerable

weight” to “[t]he statement read into the record by witness Pediatric Nurse/Practitioner.

Kimberly Dent that 'withholding food as a punishment and/or not being provided enough

In the Matter of M. WB., No. A.P.J. 22-0001, Opinion and Order

Page 16 of 20

food can result in short term and long term emotional and psychological effects.” Order,

Findings and Conclusions of Law, ¶ 12(a). Not only does this statement not expressly

say, although it may imply, that the “emotional and psychological effects” it discusses

were adverse or detrimental, it also completely fails to meet the express standards of

the definition of abuse found in Section 11-2. The testimony does not state that any of

the four children in question had actually suffered any of the emotional damage listed in

the statutory definition of abuse, merely that “emotional and psychological effects” “can

result” from behavior of the type the Permanent Guardian directed toward the four

children. That testimony was insufficient as a matter of law to satisfy the definition of

abuse set forth in Section 11-2. Thus, even were this Court to accept (which it does not)

the more expansive definition of “a child” offered by the Guardian ad Litem for purposes

of Section 10-124(a)(3)(h), the case presented by the Guardian ad Litem to substantiate

the Petition would still fail since the Guardian ad Litem failed as a matter of law to prove

abuse, as defined in Section 11-2. Emotional abuse under that section is not merely

detrimental behavior that could harm a child, it is such behavior that has harmed the

child “as evidenced” by the described adverse emotional effects.

C. Due Process of Law and the Rights of the Permanent Guardian

Both the Constitution of the Salt River Pima-Maricopa Indian Community and the federal

Indian Civil Rights Act guarantee that a person will not be deprived of life, liberty or

property without due process of law. SRPMIC Const. Art. XII, § 2; 25 U.S.C. § 1302(8).

The Constitution of the Salt River Pima-Maricopa Indian Community specifically

commands that due process of law be interpreted “as understood through the cultural

experience of the people of this community.”

In Santosky v. Kramer, 455 U.S. 745, 753-4 (1982), the United States Supreme Court

confronted the question of the due process rights of parents in proceedings to terminate

their parental rights. The Court majority wrote in that case:

In the Matter of M. WB., No. A.P.J. 22-0001, Opinion and Order

Page 17 of 20

The fundamental liberty interest of natural parents in the care, custody, and

management of their child does not evaporate simply because they have

not been model parents or have lost temporary custody of their child to the

State. Even when blood relationships are strained, parents retain a vital

interest in preventing the irretrievable destruction of their family life. If

anything, persons faced with forced dissolution of their parental rights have

a more critical need for procedural protections than do those resisting state

intervention into ongoing family affairs. When the State moves to destroy

weakened familial bonds, it must provide the parents with fundamentally

fair procedures.

Since this Court is commanded to interpret the due process guarantees of SRPMIC

Const. Art. XII “as understood through the cultural experience of the people of this

community,” we agree with the Permanent Guardian that an extended family member,

here the grandmother, serving as Permanent Guardian should have the same due

process rights as any natural parent in any proceeding to terminate or interfere with the

permanent guardianship.

While this Court agrees with the Permanent Guardian that extended family members

serving as permanent guardians have the same due process rights as natural parents, it

does not agree with the implications of some of the arguments advanced by the

Permanent Guardian. The Permanent Guardian impliedly argued that both natural

parents and permanent guardians have some special substantive due process right to

retain their relationship with the child, irrespective of their conduct. Plainly no parent or

guardian has any property right in a child and their liberty interest in retaining their

relationship with the minor is limited, as the Santovsky case held, to assuring that when

a government “moves to destroy weakened familial bonds, it must provide the parents

with fundamentally fair procedures.” In short, the due process guarantees at issue are

procedural, not substantive.

As the United States Supreme Court held in Goldberg v. Kelly, 397 U. S. 254 (1970), the

essence of due process of law in a civil proceeding involves adequate and effective

notice and an opportunity to appear and defend. With two exceptions, the Permanent

Guardian does not dispute that she was afforded adequate and effective notice and a

lengthy hearing where she had a full opportunity to present her case and defend herself.

Thus, with two exceptions, the procedural requirements of due process of law were fully

satisfied in this proceeding.

The two exceptions involve the notice requirement of due process of law. First, while not

clearly raised by the Permanent Guardian, had this Court interpreted “a child” in Section

10-124(a)(3)(h) to reference any child, the language of Section 10-124(a)(3) would have

afforded the Permanent Guardian inadequate notice that her voluntary relinquishment of

the guardianship over the four children could still result in loss of guardianship over the

remaining children, a relationship she expressly sought to retain. This concern for due

process of law clearly weighed in favor of interpreting Section 10-124(a)(3)(h) more

In the Matter of M. WB., No. A.P.J. 22-0001, Opinion and Order

Page 18 of 20

strictly, as this Court did above. Second, and more important, nothing in the Petition or

the hearing provided the Permanent Guardian any notice that her guardianship rights

over the other remaining children or potential other minors needing her assistance was

at issue. Specifically, the Petition did not name the remaining children nor expressly

request her disqualification from serving as a temporary or permanent guardian for any

other children. Yet, the Order of the Juvenile Court expressly found “that the actions of

the guardian upon the four children makes her unsuitable to be a legal guardian of any

other child.” In this finding the Juvenile Court erred since it denied the Permanent

Guardian notice and an opportunity to be heard on that issue and thereby denied her

due process of law.3

Conclusion

For the reasons stated above, this Court must REVERSE the Order of the Juvenile

Court dated January 31, 2022, order that the Permanent Guardian be restored to her

former duties as Permanent Guardian of the Juvenile, order that the Juvenile be

immediately restored to her care and custody, and order that the Petition be dismissed

with prejudice.

3 While the Juvenile in question in this case was never directly a party to this proceeding or the appeal,

this Court cannot help but notice that he too may have been denied statutory rights and perhaps due

process of law when the Juvenile Court declined to interview him. Under S.R.O. § 11-174(4) at any

permanency hearing involving the placement of a child, the Juvenile Court must take account of “[t]he

child's desires if over the age of 14, or where otherwise deemed appropriate.” This Court believes that the

same rights should be afforded any juvenile over the age of 14 in any proceeding affecting their

placement, including a proceeding under Section 10-124. The Juvenile in this case was 17 years of age

at the time of the hearing. His advocate made clear that he wanted to address the Court and speak with

the Judge. The Juvenile Court judge denied his request because he was not on the witness list supplied

by the parties. While the juvenile's rights are not properly before this Court in this appeal, the Court

cannot help but note that it believes that decision was erroneous so as to guide future conduct of the

Juvenile Court.

In the Matter of M. WB., No. A.P.J. 22-0001, Opinion and Order

Page 19 of 20

ISSUED this, 8th day of June, 2022

SEAL

Electronically approved .

_____________/s/___________________

Robert N. Clinton, Justice

Electronically approved

_____________/s/___________________

Mary Gus, Justice

Electronically approved

_____________/s/___________________

Siera Russell, Justice

In the Matter of M. WB., No. A.P.J. 22-0001, Opinion and Order

Page 20 of 20