                      NOTICE: NOT FOR OFFICIAL PUBLICATION.
  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                  AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                     IN THE
              ARIZONA COURT OF APPEALS
                                 DIVISION ONE


                    ALEXANDRA K. Intervenor/Appellant,

                                         v.

      DEPARTMENT OF CHILD SAFETY, I.G., Defendants/Appellees.

                              No. 1 CA-JV 16-0340
                                FILED 3-14-2017


            Appeal from the Superior Court in Maricopa County
                              No. JD527122
                The Honorable Karen L. O’Connor, Judge

                       VACATED AND REMANDED


                                    COUNSEL

McCarthy Weston, PLLC, Flagstaff
By Phillip (Jay) McCarthy Jr.
Counsel for Intervenor/Appellant

Arizona Attorney General’s Office, Mesa
By Ashlee N. Hoffmann
Counsel for Defendant/Appellee Department of Child Safety
                       ALEXANDRA K. v. DCS, I.G.
                          Decision of the Court



                      MEMORANDUM DECISION

Chief Judge Michael J. Brown delivered the decision of the Court, in which
Judge Diane M. Johnsen and Judge James P. Beene joined.


B R O W N, Chief Judge:

¶1            Alexandra K. (“Appellant”) challenges the juvenile court’s
order denying her motion for change of physical custody of I.G. Appellant
argues the court erred when it failed to apply the Indian Child Welfare Act
(“ICWA”) in ruling on her motion, and specifically, in determining a
permanent adoptive placement for I.G. The Department of Child Safety
(“DCS”) concedes the error. For the following reasons, we vacate the
court’s order and remand for further proceedings.

¶2           In 2013, DCS removed I.G. (born in 2012) from her parents’
custody and placed her in foster care. I.G.’s mother later gave birth to
another child who was adopted by Appellant through a private adoption
arrangement. In August 2015, Appellant filed a motion in I.G.’s
dependency/termination proceedings to intervene/change physical
custody and suggested that the proceedings were subject to ICWA.
Explaining that DCS had confirmed ICWA was not applicable, and
concluding intervention was neither timely nor justified, the juvenile court
denied the motion.

¶3           Shortly thereafter, the juvenile court granted DCS’s motion to
terminate I.G.’s parent-child relationship. In addressing best interests, the
court acknowledged I.G.’s parents’ request that I.G. be “transitioned to
another placement and adopted by [Appellant],” but determined an
evidentiary hearing was needed to determine the best placement for I.G.
And, reversing its prior ruling, the court allowed Appellant to intervene
“for the purpose of determining [I.G.’s] permanent placement.”

¶4            After her parental rights were terminated, I.G.’s mother
enrolled with the Navajo Nation, rendering I.G. eligible for enrollment. The
juvenile court then granted Appellant’s subsequent unopposed motion to
designate the dependency proceeding as an ICWA case and conducted a
three-day evidentiary hearing to evaluate Appellant’s motion for change of
physical custody and oral request to determine I.G.’s permanent adoptive
placement. The court heard testimony from Appellant, the current


                                     2
                        ALEXANDRA K. v. DCS, I.G.
                           Decision of the Court

placement, two expert witnesses, and a representative of the Navajo
Nation. In denying Appellant’s request to change physical custody, the
juvenile court found that because I.G.’s mother did not enroll with the
Navajo Nation until after her parental rights were terminated, applying
ICWA at that stage of the proceedings was untimely, citing Gila River Indian
Cmty. v. Dep’t of Child Safety, 240 Ariz. 385 (App. 2016) (review granted Feb.
14, 2017). After Appellant appealed, the juvenile court granted her request
to stay the adoption of I.G. by the current placement pending the outcome
of this appeal.

¶5             It is undisputed that I.G. is an Indian child because she is
eligible for enrollment with the Navajo Nation. As a result, in the absence
of good cause, all placement decisions in the ongoing dependency must
comply with the ICWA placement preferences listed under 25 U.S.C.
§ 1915(a). See Coconino County Juv. Action No. J-10175, 153 Ariz. 346, 349
(App. 1987) (“Once it is determined that a dependency proceeding involves
an Indian child, the judge must, in the absence of good cause to the contrary,
follow the provisions of [ICWA].”).

¶6              Recognizing “that there is no resource that is more vital to the
continued existence and integrity of Indian tribes than their children,” 25
U.S.C. § 1901(3), ICWA establishes “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.” 25 U.S.C. § 1902. ICWA “is based on the fundamental
assumption that it is in the Indian child's best interest that its relationship
to the tribe be protected.” Miss. Band of Choctaw Indians v. Holyfield, 490 U.S.
30, 50, n. 24 (1989) (quoting Pima Cnty. Juv. Action No. S–903, 130 Ariz. 202,
204 (App.1981)). ICWA mandates that for adoptive placements “of an
Indian child under State law, a preference shall be given, in the absence of
good cause to the contrary, to a placement with (1) a member of the child's
extended family; (2) other members of the Indian child's tribe; or (3) other
Indian families.” 25 U.S.C. § 1915(a) (emphasis added).

¶7            Although the juvenile court agreed with counsel that ICWA
applied in determining I.G.’s permanent adoptive placement, the court
nonetheless determined that injecting ICWA at this late stage of the
proceedings would be “untimely,” relying on Gila River Indian Cmty., 240
Ariz. at 390-91, ¶¶ 17-18. That case, however, involved only the question
of whether the Community was entitled to transfer a dependency
proceeding to its tribal children’s court after parental rights had been
terminated. Id. at 389, ¶ 11. Referencing the plain language of the ICWA
provision relied on by the Community, we held that ICWA does not allow


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                       ALEXANDRA K. v. DCS, I.G.
                          Decision of the Court

jurisdiction to be transferred after parental rights have been terminated. Id.
at 392, ¶ 21. Nothing in our decision, however, suggested that ICWA’s
adoption placement preferences set forth in 25 U.S.C. § 1915(a) are no longer
effective after termination of parental rights. Thus, even though the present
case did not trigger ICWA compliance until after termination of the rights
of I.G.’s parents, the juvenile court is obligated to apply ICWA’s adoptive
placement preferences.

¶8           In light of the authorities cited above, and given DCS’s
concession of error, we conclude that the juvenile court erred when it
declined to apply ICWA in evaluating Appellant’s request that the court
consider an alternative adoptive placement. We therefore vacate the
juvenile court’s order denying Appellant’s motion for change of physical
custody and remand for further proceedings, directing the juvenile court to
apply ICWA in determining an adoptive placement for I.G.




                           AMY M. WOOD • Clerk of the Court
                           FILED: AA




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