                                 IN THE
             ARIZONA COURT OF APPEALS
                             DIVISION ONE


     GILA RIVER INDIAN COMMUNITY, DESTINY O., Appellants,

                                    v.

      DEPARTMENT OF CHILD SAFETY, D.B., J.L., S.L.1, Appellees.

                           No. 1 CA-JV 15-0178
                             FILED 12-8-2015


          Appeal from the Superior Court in Maricopa County
                            No. JD 510468
            The Honorable Shellie F. Smith, Judge Pro Tem

                     VACATED AND REMANDED


                               COUNSEL

Office of General Counsel, Sacaton
By Sunshine Whitehair, Linus Everling, Julian Nava
Co-Counsel for Appellant Gila River Indian Community

Rothstein, Donatelli, Hughes, Dahlstrom & Schoenburg, LLP, Tempe
By April E. Olson
Co-Counsel for Appellant Gila River Indian Community




1       On the court’s own motion, it is ordered amending the caption as
reflected in this opinion, which shall be used for all future filings.
                  GILA RIVER, DESTINY O. v. DCS, et al.
                          Opinion of the Court

Arizona Attorney General’s Office, Mesa
By JoAnn Falgout, Amanda L. Adams
Counsel for Appellee Department of Child Safety

Law Office of Sara J. Smith, PLLC, Goodyear
By Sara J. Smith
Counsel for Foster Parent Intervenors



                                 OPINION

Presiding Judge Margaret H. Downie delivered the Opinion of the Court,
in which Judge Patricia A. Orozco and Judge Maurice Portley joined.


D O W N I E, Judge:

¶1            The Gila River Indian Community (the “Community”)
appeals the denial of its motion to change physical custody of a dependent
Indian child in foster care. The Community challenges the juvenile court’s
determination that good cause exists to deviate from placement
preferences set forth in the Indian Child Welfare Act (“ICWA”). We hold
that good cause to deviate from ICWA placement preferences must be
established by clear and convincing evidence. Because it is not apparent
that the juvenile court applied this heightened standard of proof, we
vacate its good cause determination and remand for reconsideration
applying the clear and convincing evidence standard.

                 FACTS AND PROCEDURAL HISTORY

¶2             D.B. was born in November 2012 and is the second youngest
of four daughters born to Destiny O. (“Mother”). Three months after
D.B.’s birth, the Department of Child Safety (“DCS”) filed a dependency
petition, alleging on information and belief that D.B. was not an Indian
child.2 Mother had advised the agency that D.B.’s father had Indian blood
but was not an enrolled member of a tribe.



2      The Arizona Department of Economic Security originated this
action but was later replaced by the Department of Child Safety. See S.B.
1001, 51st Leg., 2d Spec. Sess. (Ariz. 2014).

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                 GILA RIVER, DESTINY O. v. DCS, et al.
                         Opinion of the Court

¶3            In March 2013, DCS placed D.B. with a non-Indian foster
family. D.B.’s father subsequently enrolled in the Community, and in
June 2013, the Community intervened in the juvenile court proceedings.
D.B. also became an enrolled member of the Community.

¶4             The initial case plan called for reunification with Mother.
DCS placed D.B. back in Mother’s care in February 2014 but returned her
to the foster home one week later upon learning that Mother had allowed
D.B.’s father to be present in the home, notwithstanding a no-contact
order as to the children due to his guilty plea to felony child abuse.

¶5            The juvenile court changed the case plan to severance and
adoption in April 2014. In July 2014, DCS placed D.B.’s youngest sister in
the same foster home with D.B. Shortly thereafter, the Community
advised it had found an ICWA-compliant placement, and it moved to
change D.B.’s custody.3 The Community urged the court to place D.B.
with her father’s cousin, whom the Community refers to as D.B.’s “aunt.”

¶6           After an evidentiary hearing, the juvenile court denied the
Community’s motion to change D.B.’s custody. The court found good
cause to deviate from ICWA placement preferences, articulating the
following findings:

             D.B. has received good care from her foster parents.
             D.B. has been in the foster parents’ care for nearly her entire
              life, and they “are the only parents she knows.”
             “Significant attachment and bonding” has occurred between
              D.B. and the foster parents.
             D.B. “understands her relationship with her sister . . . [and] a
              bond between the two has already begun to be established.”




3      D.B.’s father is not the two older girls’ father, and he denied
paternity of the youngest child and refused to submit to paternity testing.
As far as our record reflects, D.B. is the only one of the four siblings
subject to ICWA. See 25 U.S.C. § 1903(4) (“’Indian child’ means 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[.]”).

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                 GILA RIVER, DESTINY O. v. DCS, et al.
                         Opinion of the Court

             The foster parents “have become licensed to have four foster
              children in their home, and are working to have [D.B.]’s
              other two sisters come live in the same home.”
             Placement with the aunt was not proposed until “late in the
              game,” and no evidence was presented that the aunt “has
              any relationship or bond with [D.B.], other than seeing her at
              a family function when she was less than two months old.”
             Emotional damage would result if D.B. were removed from
              her current placement.
             The foster family has agreed that D.B. will “learn about her
              tribal heritage if she remains with them.”
             The foster family is amenable to an open adoption and
              ensuring that D.B. “will know her Native American
              Culture.”
             “Although it would be easier for [D.B.] to be exposed
              comprehensively to the Community’s culture by living with
              a Community family, she could still be so exposed through
              the cooperative efforts of her relatives and the current
              placement.”
¶7           The Community timely appealed. We have jurisdiction
pursuant to Arizona Rule of Procedure for the Juvenile Court 103(A) and
Arizona Revised Statutes (“A.R.S.”) sections 8-235(A) and 12-120.21(A)(1).

                               DISCUSSION

¶8             The Community argues the juvenile court erred by refusing
to move D.B. to an available ICWA-preferred placement. The Community
further contends the good cause determination is not supported by
sufficient evidence. We first address the applicable standard of proof.

I.     Evidentiary Standard

¶9            The juvenile court found that the record offered “substantial
support” for its good cause determination. The court did not, however,
articulate the standard of proof it applied — likely because no one raised
the issue. Although we could, as DCS urges, find that the Community has
waived the issue, we instead exercise our discretion to consider the matter
on the merits because it presents a pure question of law that affects
important rights and is likely to recur. Cf. Yvonne L. v. Ariz. Dep’t of Econ.
Sec., 227 Ariz. 415, 419, ¶¶ 17–18 (App. 2011) (choosing to analyze

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                  GILA RIVER, DESTINY O. v. DCS, et al.
                          Opinion of the Court

standard of proof for “active efforts” under ICWA, notwithstanding
appellant’s failure to raise issue in juvenile court); City of Tempe v. Fleming,
168 Ariz. 454, 456 (App. 1991) (tenet that argument not made in trial court
cannot be asserted on appeal is procedural, not jurisdictional, and may be
suspended at appellate court’s discretion). “In a case where the placement
of a young child is at issue, allocation of the burden of proof in the trial
court’s assessment of good cause is an issue of vital importance and
sufficient magnitude to warrant relaxation of the rule of [waiver].”4 In re
Alexandria P., 176 Cal. Rptr. 3d 468, 489 (App. 2014).

¶10           We interpret ICWA provisions de novo. See Valerie M. v. Ariz.
Dep’t of Econ. Sec., 219 Ariz. 331, 334, ¶ 10 (2009). “In interpreting ICWA,
we attempt to give effect to the will of Congress as expressed in the
statutory language, which we construe liberally in favor of the interest in
preserving tribal families.” Id.

¶11           Congress has delineated placement preferences for
dependent Indian children in 25 U.S.C. § 1915. In making adoptive
placements, preference shall be given, “in the absence of good cause to the
contrary,” to: (1) a member of the child’s extended family; (2) other
members of the child’s tribe; or (3) other Indian families. 25 U.S.C. §
1915(a). In the context of foster and “preadoptive” placements, preference
shall be given, “in the absence of good cause to the contrary,” to a
placement with: (1) extended family; (2) a foster home licensed, approved,
or specified by the child’s tribe; (3) an Indian foster home licensed or
approved by an authorized non-Indian licensing authority; or (4) “an
institution for children approved by an Indian tribe or operated by an
Indian organization which has a program suitable to meet the Indian
child’s needs.” 25 U.S.C. § 1915(b).

¶12           Although Congress has dictated standards of proof
elsewhere in ICWA, see, e.g., 25 U.S.C. § 1912(e) (foster care placement
requires clear and convincing evidence that continued custody by parent


4        At oral argument, DCS suggested we order supplemental briefing
regarding the standard of proof. We decline to do so. Parties act at their
peril in assuming an appellate court will apply the doctrine of waiver,
thereby foregoing an opportunity to address an identified issue on the
merits. Moreover, a young child’s permanency is at stake, dictating
against further delay in these proceedings.




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                  GILA RIVER, DESTINY O. v. DCS, et al.
                          Opinion of the Court

or Indian custodian is likely to result in serious emotional or physical
damage); 25 U.S.C. § 1912(f) (termination of parental rights requires proof
beyond a reasonable doubt that continued custody is likely to result in
serious emotional or physical damage), it has not done so in the context of
good cause determinations under § 1915. When Congress has not
mandated a standard of proof under ICWA, we typically look to state law.
Cf. Valerie M., 219 Ariz. at 334–35, ¶¶ 10, 16–17 (court applies the law, state
or federal, that provides higher standard of protection).

¶13            This Court has addressed other ICWA-related proof issues,
see, e.g., Yvonne L., 227 Ariz. at 421, ¶ 26 (clear and convincing evidence
required for “active efforts” determination), but the question before us is
one of first impression under Arizona law. And because the issue is how
to lawfully deviate from federally mandated placement preferences, it is
difficult to identify a true state law analog. We therefore find instructive
the legislative history of ICWA, as well as other jurisdictions’ resolution of
the question. See Alexandria P., 176 Cal. Rptr. 3d at 491 (“[C]ourts have
almost universally concluded that Congress intended a nationally
consistent standard of proof for the good cause exception.”).

¶14            The impetus for ICWA was a concern that “an alarmingly
high percentage of Indian families are broken up by the removal, often
unwarranted, of their children” and “an alarmingly high percentage of
such children are placed in non-Indian foster and adoptive homes and
institutions.” 25 U.S.C. § 1901(4). Congress found that states “have often
failed to recognize the essential tribal relations of Indian people and the
cultural and social standards prevailing in Indian communities and
families.” 25 U.S.C. § 1901(5). By enacting ICWA, “Congress declared a
two-fold national policy: the protection of the best interests of Indian
children, and the promotion of stable and secure Indian tribal entities.”
Pima Cty. Juv. Action No. S-903, 130 Ariz. 202, 203 (App. 1981); see also 25
U.S.C. § 1902 (“The Congress hereby declares that it is the policy of this
Nation to protect the best interests of 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 and the placement of such children in foster or adoptive homes
which will reflect the unique values of Indian culture . . . .”).

¶15           ICWA articulates a strong federal policy that, “where
possible, an Indian child should remain in the Indian community.” Miss.
Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 37 (1989). The United
States Supreme Court has called the adoptive placement preferences set
forth in § 1915(a) ICWA’s “most important substantive requirement

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                 GILA RIVER, DESTINY O. v. DCS, et al.
                         Opinion of the Court

imposed on state courts.” Id. at 36-37. And even in the context of foster
placements, deviations from ICWA preferences remove, or at the very
least, distance an Indian child from his or her native community —
something likely to occur more readily under a preponderance of the
evidence standard.

¶16            Guidelines developed by the Bureau of Indian Affairs to
assist state courts and agencies in implementing ICWA apply the clear
and convincing standard. See Guidelines for State Courts and Agencies in
Indian Child Custody Proceedings (“Guidelines”), 80 Fed. Reg. 10146-02.
Although the Guidelines are not binding, we nevertheless consider them
in interpreting ICWA. See, e.g., Navajo Nation v. Ariz. Dep’t of Econ. Sec.,
230 Ariz. 339, 345, ¶ 19 (App. 2012) (relying on Guidelines for nonbinding
guidance on how to interpret “good cause”); Maricopa Cty. Juv. Action No.
JS-8287, 171 Ariz. 104, 108 (App. 1991) (consulting Guidelines in deciding
whether good cause existed to deny petition to transfer custody matter to
tribal court).

¶17            The current version of the Guidelines states that a party
seeking a deviation from ICWA preferences “bears the burden of proving
by clear and convincing evidence the existence of ‘good cause’ to deviate
from the placement preferences.” Guidelines at 10158. The Department of
the Interior recently incorporated this provision into a proposed rule. See
Regulations for State Courts and Agencies in Indian Child Custody
Proceedings (“Regulations”), 80 Fed. Reg. 14880-01, 14892. If adopted, the
Regulations will be binding on state courts. See Regulations at 14881.

¶18            Additionally, the clear majority view of other state courts is
that clear and convincing evidence is required. See, e.g., Native Vill. of
Tununak v. Alaska, 303 P.3d 431, 448, 453 (Alaska App. 2014) (overruling
earlier precedent regarding adoptive placements and concluding a
preponderance of the evidence standard does not sufficiently ensure
“courts will properly consider ICWA’s policy mandates in making §
1915(a) good cause determinations.”), vacated in part on other grounds by
334 P.3d 165 (Alaska 2014); Alexandria P., 176 Cal. Rptr. 3d at 490
(“ICWA’s policy goal of promoting the stability and security of Indian
tribes and families persuades us to join the growing number of state
courts . . . that apply the clear and convincing standard of proof to good
cause determinations under section 1915.”); In re Adoption of Baby Girl B.,
67 P.3d 359, 374, ¶ 78 (Ok. App. 2003) (A clear and convincing standard
will foster ICWA policies “and the preferences stated therein and will
assist with the effort to avoid inadvertent interjection of cultural bias into
the proceeding.”); People ex rel. S. Dakota Dep’t of Soc. Servs., 795 N.W.2d

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                 GILA RIVER, DESTINY O. v. DCS, et al.
                         Opinion of the Court

39, 44, ¶ 24 (S.D. 2011) (“The ‘clear and convincing’ standard appears to be
the better-reasoned approach.”). But see Dep’t of Human Servs. v. Three
Affiliated Tribes of Fort Berthold Reservation, 236 Or. App. 535, 552, n.17
(2010) (disagreeing in a footnote with a “passing” argument advocating
clear and convincing evidence standard, noting that under Oregon law, a
preponderance of the evidence standard applies to permanency hearings).

¶19            Based on these authorities, we are persuaded that the
heightened standard of “clear and convincing” evidence should apply
when Arizona courts decide whether good cause exists to deviate from
ICWA foster or adoptive placement preferences. Because it is unclear
what standard of proof the juvenile court applied here, we remand the
good cause determination for reconsideration. Although we need not
reach some of the parties’ remaining arguments, we address certain issues
likely to recur on remand.

II.   Good Cause Determination

¶20           ICWA does not define “good cause” in the relevant context.
And while the Guidelines offer non-binding guidance, good cause is
ultimately a matter of discretion, which is to be exercised in light of
myriad factors specific to a given case. See Navajo Nation, 230 Ariz. at 345–
46, ¶¶ 19, 24. Appellate courts review good cause determinations for an
abuse of discretion. Id. at 343, ¶ 14.

¶21          To the extent the Community contends state courts may only
consider factors enumerated in the Guidelines, we disagree.5 We have
previously held that Arizona courts are not so limited and may, for
example, consider bonding between a child and his or her foster parents.
See Navajo Nation, 230 Ariz. at 345–46, ¶¶ 20, 25 (Court may consider
bonding in assessing good cause because Guidelines “are not exclusive


5     The Guidelines limit consideration to four factors: (1) the parents’
requests; (2) the child’s request; (3) “extraordinary physical or emotional
needs of the child,” which “does not include ordinary bonding or
attachment that may have occurred as a result of a placement or the fact
that the child has, for an extended amount of time, been in another
placement that does not comply with the Act;” and (4) unavailability of a
placement after a showing by the agency and a determination by the court
“that active efforts have been made to find placements meeting the
preference criteria, but none have been located.” Guidelines at 10158.


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                  GILA RIVER, DESTINY O. v. DCS, et al.
                          Opinion of the Court

and are advisory in nature, so we need not limit our inquiry for good
cause to these factors.”); see also Maricopa Cty. Juv. Action No. A-25525, 136
Ariz. 528, 534 (App. 1983) (“It is patently clear that Congress envisioned
situations in which the child’s best interest may override a tribal or family
interest-the preferences for placement are to be followed absent ‘good
cause to the contrary.’”).6 And the record simply does not support the
Community’s argument that the juvenile court relied solely on ordinary
bonding. The court cited D.B.’s bond with her foster family as one of
several factors it considered in finding good cause to deviate from ICWA
placement preferences.

¶22           Nor did the juvenile court err by relying on opinions and
testimony offered by DCS’ expert witness — psychologist Al Silberman —
even though his opinions differed in some respects from those of Byron
Donahue, ICWA case manager for the Community. A trial court has
broad discretion in determining whether a witness is competent to testify,
see Lohmeier v. Hammer, 214 Ariz. 57, 64, ¶ 25 (App. 2006), and if there are
reasonable inferences to be drawn from conflicting evidence and disputed
facts, an appellate court will not substitute its judgment for that of the trial
court, United Calif. Bank v. Prudential Ins. Co. of Am., 140 Ariz. 238, 302
(App. 1983).

¶23           It is the role of the juvenile court on remand to weigh the
strength and quality of all of the evidence presented, including the
testimony of Dr. Silberman and Mr. Donahue, to determine whether DCS
established good cause by clear and convincing evidence. See Hollis v.
Indus. Comm’n, 94 Ariz. 113, 116 (1963) (appellate court does not weigh
conflicting evidence). The difference between a preponderance of the
evidence standard and proof by clear and convincing evidence is not
merely academic. The former “essentially allocates the risk of error
equally between the parties involved” because a party need only show
that the fact sought to be proved is more probable than not. Kent K. v.
Bobby M., 210 Ariz. 279, 284–85, ¶ 25 (2005). In contrast, under a clear and
convincing evidence standard, “the thing to be proved is highly probable
or reasonably certain.” Id. We leave to the juvenile court’s discretion
whether to request additional briefing, argument, or evidence in
reconsidering its good cause determination.

6      Language from the Guidelines that forbids “independent
consideration of the best interest of the Indian child” does not appear in
the proposed rule. Compare Guidelines at 10158, with Regulations at
14892.

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                 GILA RIVER, DESTINY O. v. DCS, et al.
                         Opinion of the Court

                             CONCLUSION

¶24           For the reasons stated, we vacate the juvenile court’s finding
of good cause to deviate from ICWA placement preferences and remand
for reconsideration based on a clear and convincing standard of proof.




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