## Facts

- T.L.M., a non-Native woman, had a child with A.J.B., a member of the Tohono O’odham Nation.
- The Arizona Department of Economic Security filed a dependency petition in Arizona superior court, alleging T.L.M. could not care for the child, the child was at risk in her custody, and the father’s identity was unknown.
- The superior court made the child a ward of the court and placed the child in the physical custody of T.L.M.’s relatives.
- After learning A.J.B. was the father and a member of the Nation, the state filed an amended dependency petition identifying the child as an “Indian child” for purposes of the Indian Child Welfare Act (ICWA).
- The Nation moved to intervene in the dependency proceeding, and the court granted intervention.
- In August 1995, the court transferred physical custody to the child’s paternal grandmother, who lived on the reservation.
- T.L.M. did not object to the placement change and was not advised that her lack of objection could be treated as consent to a transfer of jurisdiction to tribal court.
- The Nation moved under ICWA to transfer jurisdiction of the dependency proceeding to the tribal court.
- T.L.M. objected to transferring the case to tribal court.
- The superior court denied the transfer motion, reasoning that although there was no “good cause” for the state court to keep the case, ICWA required the court to retain jurisdiction because a parent objected.
- The Nation appealed from the order denying transfer.

## Issues

1. Under ICWA’s transfer provision, does a parent’s objection require the state court to deny a tribe’s motion to transfer a state dependency proceeding to tribal court, even when the state court finds no “good cause” to keep the case?
2. Did the mother’s earlier acquiescence in moving physical custody to the paternal grandmother on the reservation amount to consent to tribal jurisdiction, or waive her right to object to transfer?

## Decision

- The Court of Appeals affirmed the superior court’s order denying the Nation’s motion to transfer the dependency proceeding to tribal court.
- The court held that ICWA’s transfer framework makes transfer unavailable when either parent objects; the objection operates as an express statutory exception to transfer.
- The court rejected the argument that the mother’s failure to object to the child’s placement with the paternal grandmother on the reservation amounted to consent to transfer jurisdiction or a waiver of the statutory right to object.
- Because a parent objected, the state court properly retained jurisdiction, regardless of the court’s view that “good cause” to keep the case was absent.

## Legal Principles

- Under ICWA (25 U.S.C. § 1911(b)), a state court must transfer a covered child-custody proceeding to tribal court on petition of a parent or the tribe, absent “good cause to the contrary,” but transfer is not available when either parent objects.
- A parent’s objection to transfer is a separate statutory bar to transfer and is not resolved by a “good cause” inquiry.
- A change in a child’s physical placement, including placement with a relative on a reservation, does not by itself transfer subject-matter jurisdiction from state court to tribal court.
- A waiver of a statutory right in an ICWA transfer dispute will not be inferred from silence or acquiescence in a placement decision where the record does not show a clear, informed relinquishment of the right to object to jurisdictional transfer.

## Conclusion

The Arizona Court of Appeals affirmed the denial of the Nation’s ICWA transfer motion because ICWA does not permit transfer to tribal court when a parent objects, and the mother’s earlier lack of objection to the child’s placement with the paternal grandmother on the reservation did not constitute consent to, or waiver regarding, a transfer of jurisdiction.


In re Appeal in Maricopa County, 922 P.2d 319 (1996)