In Re Dependency of M.K.

IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO

IN RE DEPENDENCY OF M.K.

Nos. 2 CA-JV 2025-0038, 2 CA-JV 2025-0039,
and 2 CA-JV 2025-0040 (Consolidated)
Filed May 1, 2026

Appeal from the Superior Court in Cochise County
No. JD202300032
The Honorable John F. Kelliher Jr., Judge

REVERSED AND REMANDED

COUNSEL

Kristin K. Mayes, Arizona Attorney General
By Dawn R. Williams, Assistant Attorney General, Tucson
Counsel for Appellant Department of Child Safety

Jacobson, Magnuson, Anderson & Halloran P.C., Saint Paul, Minnesota
By Joy P. Parker and Joseph Halloran
Counsel for Intervenor/Appellant White Earth Indian Child Welfare

Kewenvoyouma Law PLLC, Tempe
By Verrin T. Kewenvoyouma and Lorenzo E. Gudino, Pro Hac Vice
Counsel for Intervenor/Appellant Melissa K.

Charles N. Kendall Jr., Cochise County Public Defender
By Brian J. Molitor, Deputy Public Defender, Sierra Vista
Counsel for Appellee Minor M.K.

Nuccio & Shirly P.C., Tucson
By Salvatore Nuccio
Counsel for Intervenors/Appellees Ryann D. and Denisse A.H.
IN RE DEPENDENCY OF M.K.
Opinion of the Court

Rothstein Donatelli LLP, Tempe
By April E. Olson and Wouter Zwart

and

Native American Rights Fund, Anchorage, Alaska
By Sydney Tarzwell, Pro Hac Vice

and

Indian Law Clinic, Michigan State University College of Law, East
Lansing, Michigan
By Kathryn Fort, Pro Hac Vice
Counsel for Amici Curiae Fort McDowell Yavapai Nation, Gila River Indian
Community, Navajo Nation, Pascua Yaqui Tribe, Salt River Pima-Maricopa
Indian Community, and Tohono O’odham Nation

OPINION

Presiding Judge Vásquez authored the opinion of the Court, in which
Chief Judge Staring and Judge Brearcliffe concurred.

V Á S Q U E Z, Presiding Judge:

¶1 In this dependency proceeding, the Department of Child
Safety (DCS), along with intervenors the White Earth Nation and Melissa
K., (collectively, “appellants”) challenge the juvenile court’s May 2025 order
finding good cause to deviate from the placement preferences of the Indian
Child Welfare Act of 1978 (ICWA), 25 U.S.C. §§ 1901–1963, and allowing
M.K. to remain with his current non-relative, non-Indian placement. For
the following reasons, we reverse the court’s order and remand the case
with directions to grant the motion for change of physical custody.

Factual and Procedural Background

¶2 M.K. was born to Raven I. and Caleb K. in February 2023. He
was born substance exposed, and, shortly after their discharge from the
hospital, Raven relapsed and left M.K. in the care of his paternal
step-grandmother. Caleb was also using drugs at the time. In April 2023,
DCS filed a dependency petition, alleging that M.K. was dependent as to

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Opinion of the Court
both parents due, in part, to their substance abuse and inability to provide
M.K. with basic necessities. M.K. was eligible for enrollment with the White
Earth Nation.

¶3 At the initial dependency hearing in early May 2023, the
juvenile court found that ICWA applied, and, after Raven did not object,
the court found good cause to deviate from the ICWA placement
preferences. Raven expressed her desire to enter a no-contest plea to the
allegations in the dependency petition, and the court accepted her plea.
However, the court granted DCS’s request not to adjudicate M.K.
dependent until a qualified expert witness (QEW) was available to testify,
as required by ICWA. Days later, DCS provided notice to the White Earth
Nation and the Bureau of Indian Affairs (BIA) of the proceeding and the
next scheduled hearing. M.K. was placed in a non-Indian, licensed foster
home in Marana with Ryann D. and Denisse A.H.

¶4 At the next hearing in July 2023, counsel for DCS explained
that they had yet to receive a response from the White Earth Nation, and
the juvenile court found the tribe had been properly served with notice but
failed to appear. There being no objection, the court also found good cause
to deviate from the ICWA placement preferences, keeping M.K. with Ryann
and Denisse. In October 2023, the court dismissed Caleb as a party to the
proceeding after he had died.

¶5 In January 2024, DCS identified M.K.’s paternal
great-grandmother, who lives in Minnesota, and his paternal cousin
Melissa, who lives in Phoenix with her husband and son, as possible
placements. Several months later, in June 2024, DCS filed a motion for
change of physical custody of M.K. to Melissa. Ryann and Denisse sought
to intervene in the matter to contest the removal. Melissa also sought to
intervene, with DCS joining her motion. The juvenile court granted both
motions to intervene and scheduled an evidentiary hearing on the motion
for change of physical custody.

¶6 At a September 2024 hearing, the juvenile court heard
testimony from a QEW. Afterward, it again accepted Raven’s no-contest
plea and then adjudicated M.K. dependent as to her.1 No objection having
been made, the court also found good cause to deviate from the ICWA
placement preferences. The QEW did not object to the deviation at that

1 Although the juvenile court previously found M.K. was “a
dependent child,” it later explained that it had mistakenly done so because
QEW testimony had not yet been received.

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Opinion of the Court
time, apparently because he opposed disrupting the placement before the
hearing on the motion for change of physical custody.

¶7 A four-part evidentiary hearing on the motion for change of
physical custody was held between January and May 2025. On the first day,
counsel for the White Earth Nation appeared and requested to intervene on
the tribe’s behalf. The juvenile court granted that request. In May 2025, the
court issued its order finding good cause to deviate from the ICWA
placement preferences and denying DCS’s motion for change of physical
custody. This appeal followed.

Jurisdiction

¶8 We, as well as the appellants, recognize the inconsistency in
our case law concerning whether we have appellate jurisdiction over this
matter. In prior cases of a similar procedural posture, this court has both
determined that it had appellate jurisdiction, Gila River Indian Cmty. v. Dep’t
of Child Safety, 238 Ariz. 531, ¶ 7 (App. 2015); Navajo Nation v. Ariz. Dep’t of
Econ. Sec., 230 Ariz. 339, ¶ 12 (App. 2012), and has accepted special-action
jurisdiction without deciding whether it had appellate jurisdiction, Navajo
Nation v. Dep’t of Child Safety, No. 1 CA-JV 21-0225, ¶ 23 (Ariz. App. Feb. 10,
2022) (mem. decision); Alexandra K. v. Dep’t of Child Safety, No. 1 CA-JV
19-0081, ¶ 11 (Ariz. App. Oct. 17, 2019) (mem. decision).

¶9 Our jurisdiction is prescribed by statute. Brionna J. v. Dep’t of
Child Safety, 247 Ariz. 346, ¶ 7 (App. 2019). Section 8-235, A.R.S., provides
this court with appellate jurisdiction over “a final order of the juvenile
court.” Rule 601(b), Ariz. R. P. Juv. Ct., then sets forth a comprehensive list
of what constitutes a “final order.”

¶10 As relevant here, Rule 601(b)(2)(M) provides that final orders
include “any other order that is final pursuant to Arizona case law.” When
this rule was enacted in July 2022, Ariz. Sup. Ct. Order R-20-0044 (Dec. 8,
2021), at least two published cases indicated that we had appellate
jurisdiction in these circumstances, Gila River Indian Cmty., 238 Ariz. 531,
¶ 7; Navajo Nation, 230 Ariz. 339, ¶ 12. We presume our supreme court was
aware of this case law when enacting Rule 601(b)(2)(M). Cf. Cochise County
v. Faria, 221 Ariz. 619, ¶ 13 (App. 2009) (assuming legislature knows
existing law when enacting statute). Moreover, the application of ICWA
makes this case distinguishable from the typical placement determination
over which we lack appellate jurisdiction. See Jessicah C. v. Dep’t of Child
Safety, 248 Ariz. 203, ¶¶ 10-17 (App. 2020) (we consider practical effect of
order to determine finality); see also 25 U.S.C. § 1915 (federal policy
providing placement preferences for dependent Indian children); Navajo

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Opinion of the Court
Nation, 230 Ariz. 339, ¶ 14 (we construe ICWA liberally in favor of
preserving tribal families); In re Coconino Cnty. Juv. Action No. J-10175, 153
Ariz. 346, 349 (App. 1987) (trial court “must, in the absence of good cause to
the contrary,” follow ICWA). We therefore conclude we have appellate
jurisdiction here.2

Discussion

¶11 Appellants maintain that the juvenile court erred in finding
good cause to deviate from the ICWA placement preferences. We review
the court’s finding of good cause for an abuse of discretion. Navajo Nation,
230 Ariz. 339, ¶ 14. A court abuses its discretion if it misapplies the law, it
fails to consider the evidence, it commits an error of law in reaching a
discretionary decision, or there is no substantial basis for its discretionary
findings. Ruben M. v. Ariz. Dep’t of Econ. Sec., 230 Ariz. 236, ¶ 13 (App. 2012);
Grant v. Ariz. Pub. Serv. Co., 133 Ariz. 434, 455-56 (1982).

¶12 In 1978, Congress enacted ICWA to address, in part, the
“alarmingly high percentage of Indian families [that] are broken up by the
removal, often unwarranted, of their children from them by nontribal
public and private agencies.” 25 U.S.C. § 1901(4). To that end, Congress
established minimum 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. Thus, “[b]y 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.’” Gila River Indian
Cmty., 238 Ariz. 531, ¶ 14 (quoting In re Pima Cnty. Juv. Action No. S-903, 130
Ariz. 202, 203 (App. 1981)). In short, Congress expressly enacted ICWA to
address special circumstances arising in cases involving Indian children.

¶13 “ICWA articulates a strong federal policy that, ‘where
possible, an Indian child should remain in the Indian community.’” Id. ¶ 15
(quoting Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 37 (1989)). In
making foster care or preadoptive placements, courts must give preference,
“in the absence of good cause to the contrary,” to a placement with: (1) “a
member of the Indian child’s extended family”; (2) “a foster home licensed,
approved, or specified by the Indian child’s tribe”; (3) “an Indian foster

2 Even if we lacked appellate jurisdiction, we would exercise our

discretion to accept special-action jurisdiction. See Brionna J., 247 Ariz. 346,
¶ 14 (“Given the fluid, time-sensitive nature of placement determinations,
we find it appropriate to exercise special action jurisdiction here.”).

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Opinion of the Court
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). These placement preferences
“are hierarchical,” meaning courts “may only place the child with someone
in a [hierarchically] lower-ranked group when there is no available
placement in a higher-ranked group.” Haaland v. Brackeen, 599 U.S. 255, 267
(2023). Arizona courts are bound to apply these placement preferences in
ICWA cases. Id. at 286; see also A.R.S. § 8-815(b); Ariz. R. P. Juv. Ct. 111(a).

¶14 ICWA does not define “good cause.” Navajo Nation, 230 Ariz.
339, ¶ 19. However, the BIA promulgated regulations, published in the
Code of Federal Regulations, which provide guidance, and to which our
courts are similarly bound.3 See 25 C.F.R. § 23.101; see also Ariz. R. P. Juv.
Ct. 321(b) (juvenile court “must” follow 25 C.F.R. §§ 23.131 through 23.132
in departing from ICWA placement preferences). According to 25 C.F.R.
§ 23.132(c), a court’s finding of good cause to depart from the ICWA
placement preferences “should be based on one or more of the following”:

(1) The request of one or both of the Indian
child’s parents, if they attest that they have
reviewed the placement options, if any, that
comply with the order of preference;

(2) The request of the child, if the child is of
sufficient age and capacity to understand
the decision that is being made;

(3) The presence of a sibling attachment that
can be maintained only through a particular
placement;

(4) The extraordinary physical, mental, or
emotional needs of the Indian child, such as
specialized treatment services that may be
unavailable in the community where

3In 2016, the BIA adopted binding regulations to aid in the uniform

implementation of ICWA. Holly C. v. Tohono O’odham Nation, 247 Ariz. 495,
n.17 (App. 2019). “Our supreme court has amended juvenile court rules to
reflect the authority of these regulations.” Id.

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families who meet the placement
preferences live;

(5) The unavailability of a suitable placement
after a determination by the court that a
diligent search was conducted to find
suitable placements meeting the preference
criteria, but none has been located. . . .

See also Ariz. R. P. Juv. Ct. 321(b)(3). However, a “placement may not depart
from the preferences based solely on ordinary bonding or attachment that
flowed from time spent in a non-preferred placement that was made in
violation of ICWA.” 25 C.F.R. § 23.132(e); see also Ariz. R. P. Juv. Ct.
321(b)(5).

¶15 This “good cause” exception is an integral part of ICWA’s
placement preferences, which has been described as “[t]he most important
substantive requirement imposed on state courts.” Miss. Band of Choctaw
Indians, 490 U.S. at 36. This is so because “the presumption is that
placement of the child in accordance with ICWA preferences is in the best
interest of the child.” Navajo Nation, 230 Ariz. 339, ¶ 18. Thus, a party
asserting good cause to deviate from the placement preferences bears the
burden of proof by clear and convincing evidence. Ariz. R. P. Juv. Ct.
321(b)(2); see Gila River Indian Cmty., 238 Ariz. 531, ¶ 19. This heightened
standard fosters ICWA’s policies and the placement preferences identified
therein. Gila River Indian Cmty., 238 Ariz. 531, ¶¶ 18-19; see also Kent K. v.
Bobby M., 210 Ariz. 279, ¶ 25 (2005) (evidence is clear and convincing if it
makes the thing to be proved highly probable or reasonably certain).

¶16 Here, in its May 2025 order, the juvenile court determined that
25 C.F.R. § 23.132(c)(2), (3), and (5) did not apply, instead apparently
relying on (1) and (4). The court, however, made only two conclusions of
law in reaching its ultimate decision. First, the court found “by clear and
convincing evidence that [M.K.] would suffer trauma if removed from his
current placement, as well as the service providers currently in place, and
that trauma would be severe, and is not in [M.K.’s] best interest.” Second,
the court found “by clear and convincing evidence that the extraordinary
physical, mental and emotional needs of [M.K.] are such, that removing him
from his current placement places [him] at a significant risk of future
harm.” Appellants challenge several aspects of the court’s order, which we
address in turn.

¶17 At the outset, however, we want to acknowledge our general
legal principles that we presume the juvenile court knows and applies the

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law and that we do not reweigh evidence on appeal, instead deferring to
the juvenile court’s ability to make factual findings and credibility
determinations. See Fuentes v. Fuentes, 209 Ariz. 51, ¶ 32 (App. 2004); Jesus
M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, ¶ 12 (App. 2002). These
important principles are the foundation of appellate review. In this case, in
light of the juvenile court’s numerous legal errors and highly inappropriate
statements, as explained below, these principles have limited applicability.
See Brewer v. Peterson, 9 Ariz. App. 455, 458 (1969) (“The controlling law, as
we see it, is that an appellate court must assume that the trial court did no
wrong, in the absence of a showing to the contrary.”) (emphasis added).

I. Trauma

¶18 Appellants first challenge the sufficiency of the evidence to
support the juvenile court’s conclusion that M.K. “would suffer trauma if
removed” from Ryann and Denisse. They maintain that this conclusion
was based on “the court’s own theories and opinions” and overlooks
testimony that “being raised by blood relatives is protective against the
early trauma of removal and foster care changes for Indian children, and
that Indian children raised with relatives have better long-term mental
health outcomes.”

¶19 Trauma is not identified in 25 C.F.R. § 23.132(c) as a relevant
consideration to justify departing from the ICWA placement preferences.
However, the juvenile court tied its finding of trauma in this case to M.K.’s
best interests, which may nonetheless be considered. See Navajo Nation, 230
Ariz. 339, ¶¶ 17, 22. Yet, we must bear in mind that “Congress was
skeptical of using ‘vague standards like the best interests of the child,’ and
intended good cause to be a limited exception, rather than a broad category
that could swallow the rule.” Indian Child Welfare Act Proceedings, 81
Fed. Reg. at 38847 (quoting H.R. Rep. No. 95-1386, at 19 (1978)). As the
Supreme Court has explained, ICWA requires state courts “to place an
Indian child with an Indian caretaker, if one is available,” regardless of
whether “the child is already living with a non-Indian family and the state
court thinks it in the child’s best interest to stay there.” Haaland, 599 U.S. at
264.

¶20 Here, M.K.’s pediatrician, Dr. Samantha Mansfield, and an
early intervention specialist, Pamela Abare, who has been providing M.K.
with developmental support, testified that M.K. will suffer “trauma” if his
placement is changed to Melissa. They seemingly agreed this is not due to
any fault of Melissa but, instead, the “change” or “disruption” itself and the
trauma would be “exacerbated” by M.K.’s developmental issues and other
conditions. But both Dr. Mansfield and Abare admitted to being unfamiliar

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Opinion of the Court
with studies establishing harm to Indian children when they are removed
from their family or reservation.

¶21 Christina Andrews, the executive director for a Native
American health organization, testified specifically as to that harm. She
described the “generational trauma” for the Indian community and the
corresponding importance of an Indian child being placed with a blood
relative, as opposed to a non-Indian foster family. She further explained
that placing an Indian child with a non-Indian foster family can result in a
sense of “ambiguous loss” for the child, as well as aggression and anger,
which can ultimately engender feelings of disenfranchisement and lead to
mental-health issues and substance abuse.

¶22 It appears that the juvenile court did not consider Andrews’s
testimony. The court found that “[t]he other parties did not offer any
evidence to contradict the testimony and opinions of Dr. Mansfield and
Pamela Abare.” But Andrews’s testimony did just that, at least with regard
to the potential harm or trauma M.K. could suffer as a result of his
placement not being changed to a blood relative versus remaining with a
non-Indian foster family. Cf. Johnson v. Elson, 192 Ariz. 486, ¶ 11 (App. 1998)
(we may infer additional findings of fact and conclusions of law necessary
to sustain trial court’s order “as long as those findings are reasonably
supported by the evidence, and not in conflict with any express findings”
(emphasis added)). Indeed, underlying ICWA is “Congress’ concern over
the placement of Indian children in non-Indian homes . . . based in part on
evidence of the detrimental impact on the children themselves of such
placements outside their culture.” Miss. Band of Choctaw Indians, 490 U.S. at
49-50. As stated in findings adopted by Congress in establishing ICWA,
“removal of Indian children from their cultural setting seriously impacts a
long-term tribal survival and has damaging social and psychological
impact on many individual Indian children.” Id. at 50 (quoting S. Rep. No.
95-597, at 52 (1977)); see Haaland, 599 U.S. at 303-05 (Gorsuch, J., concurring)
(discussing “long-lasting adverse health and emotional effects”); see also
Miss. Band of Choctaw Indians, 490 U.S. at 33 & n.1 (discussing “serious
adjustment problems” for Indian children, during adolescence, placed in
non-Indian homes).

¶23 Additionally, the juvenile court apparently disregarded
Abare’s testimony that any trauma M.K. would suffer as a result of
changing his placement could be minimized with a thoughtful transition
plan. As stated above, we do not reweigh the evidence. See Jesus M., 203
Ariz. 278, ¶ 12. But the record here establishes this fact, which was not
otherwise challenged and yet appears nowhere in the court’s ruling. See
State v. Matthews, No. 2 CA-CR 2024-0106, ¶ 16, 2026 WL 73963 (Ariz. App.

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Opinion of the Court
Jan. 9, 2026) (superior court erred by overlooking undisputed evidence).
The court thus abused its discretion in failing to consider this evidence. See
Ruben M., 230 Ariz. 236, ¶ 13; Grant, 133 Ariz. at 455-56.

II. Extraordinary Physical, Mental, or Emotional Needs

¶24 Appellants also challenge the juvenile court’s conclusion that
M.K.’s “extraordinary physical, mental, and emotional needs” are such
“that removing him from his current placement places [him] at a significant
risk of future harm.” They argue that the court failed to explain what M.K.’s
“‘extraordinary physical, mental and emotional needs’ are or what ‘future
harm’ he would be at risk of.”

¶25 Under ICWA, “the physical, mental, and emotional needs of
the Indian child [are] paramount.” Indian Child Welfare Act Proceedings,
81 Fed. Reg. at 38839. As such, 25 C.F.R. § 23.132(c)(4) provides courts with
discretion “to consider any unique needs of a particular Indian child” in
determining whether to deviate from the placement preferences. Id. at
38844. However, those needs must be “extraordinary.” 25 C.F.R.
§ 23.132(c)(4); see also Extraordinary, Merriam-Webster, https://merriam-
webster.com (last visited Mar. 3, 2026) (“going beyond what is usual,
regular, or customary”); Extraordinary, Black’s Law Dictionary (12th ed.
2024) (“[b]eyond what is usual, customary, regular, or common”).

¶26 In addition, 25 C.F.R. § 23.132(c)(4) provides an important
qualification: “The extraordinary physical, mental, or emotional needs of
the Indian child, such as specialized treatment services that may be unavailable
in the community where families who meet the placement preferences live.”
(Emphasis added.) Although this language does not limit 25 C.F.R.
§ 23.132(c)(4) to only that situation—unavailable services—it provides an
important guidepost in the regulation’s application. See Such as,
Merriam-Webster, https://merriam-webster.com (last visited Apr. 2, 2026)
(“used to introduce an example or series of examples”).

¶27 In this case, Dr. Mansfield testified that, largely because M.K.
was born substance-exposed, he had speech delays, gross-motor delays,
developmental delays, exotropia (meaning one of his eyes turns in a
different direction), and bilateral ear tubes. She also testified that he was at
risk of being on the autism spectrum. But she explained that when they
administered a standardized test to evaluate M.K.’s development, the
results were not “extremely abnormal” and that she did not consider certain
behaviors exhibited by M.K.—specifically, “tantrumming”—to be unusual.
Abare also testified that M.K.’s needs were “out of the ordinary” for
“children on the whole” but not for other substance-exposed children.

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¶28 To address these concerns, M.K. was attending speech
therapy and had graduated from physical therapy. He was seeing an
ophthalmologist and wearing an eye patch to treat the exotropia. He was
meeting with Abare to address his developmental needs and he was seeing
a developmental pediatrician in addition to Dr. Mansfield to monitor the
other concerns.

¶29 As appellants point out, the juvenile court did not articulate
why it concluded that M.K.’s “extraordinary physical, mental and
emotional needs” were such that deviation was appropriate. Assuming the
court was concerned about his medical and developmental needs as
identified above, neither Dr. Mansfield nor Abare testified that these needs
were, in and of themselves, “extraordinary.” Instead, they seemed to
suggest that M.K.’s needs were manageable.

¶30 Perhaps more importantly, the record shows that for all of
M.K.’s medical and developmental needs, there were appropriate service
providers available in the Phoenix area, if he were to be placed with
Melissa. Indeed, at least some of the providers M.K. currently sees in
Tucson could continue to see him virtually in Phoenix. There is thus no
substantial basis in the record for the juvenile court’s conclusion that “the
extraordinary physical, mental and emotional needs of [M.K.] are such, that
removing him from his current placement places [him] at a significant risk
of future harm.” See Ruben M., 230 Ariz. 236, ¶ 13; Grant, 133 Ariz. at 455-56.

¶31 Appellants also contend that the juvenile court’s
“extraordinary needs” finding was actually based on its finding that M.K.
had “attached” to Ryann and Denisse. They further maintain, “Because
M.K.’s foster placement was made in violation of ICWA’s Notice and QEW
requirements, the [c]ourt’s reliance solely on bonding with [Ryann and
Denisse] for its good cause determination is an error of law.”

¶32 Under ICWA, “[n]o foster care placement . . . proceeding shall
be held until at least ten days after receipt of notice by . . . the tribe or the
Secretary.” 25 U.S.C. § 1912(a). In addition, the juvenile court cannot order
a foster care placement “in the absence of a determination, supported by
clear and convincing evidence, including testimony of qualified expert
witnesses, that the continued custody of the child by the parent or Indian
custodian is likely to result in serious emotional or physical damage to the
child.” 25 U.S.C. § 1912(e).

¶33 Here, in May 2023, the juvenile court found good cause to
deviate from the ICWA placement preferences, allowing M.K. to be placed
with Ryann and Denisse. However, the White Earth Nation and the BIA

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did not receive notice of the proceeding until after that hearing. In addition,
the court did not hear testimony from the QEW until September 2024, after
it had repeatedly found good cause to deviate from the ICWA placement
preferences and allowed M.K. to remain with Ryann and Denisse. Because
a foster placement ordered without QEW testimony violates ICWA, the
court could not depart from the placement preferences “based solely on
ordinary bonding or attachment that flowed from time spent” in that
placement. 25 C.F.R. § 23.132(e); see also Ariz. R. P. Juv. Ct. 321(b)(5).

¶34 We recognize the difficulty in complying perfectly with
ICWA, particularly given the time constraints and sometimes immediate
need to place an at-risk child. However, the purpose of 25 C.F.R. § 23.132(e)
is to address “concerns that parties may benefit from failing to identify that
ICWA applies, conduct the required notifications, or identify preferred
placements.” Indian Child Welfare Act Proceedings, 81 Fed. Reg. at 38846.
While it can be difficult for children to shift between placements, “one way
to limit any disruption is to mandate careful adherence to procedures that
minimize errors in temporary or initial custodial placements.” Id.

¶35 Based on the record before us, we agree with appellants that
M.K.’s attachment to Ryann and Denisse was, at bottom, the basis of the
juvenile court’s decision. The court noted in its findings of fact that M.K.
had “attached” to Ryann and Denisse “during the time ‘good cause’ was
found to deviate from ICWA preferences and before the ICWA preferred
placement was identified.” However, there was no corresponding finding
of M.K.’s attachment to Melissa and her family, despite their “significant”
visitation with each other. To the extent the court relied solely on M.K.’s
bonding with Ryann and Denisse to justify deviating from the placement
preferences, it erred as a matter of law because the initial placement was
made in violation of ICWA.4 See 25 C.F.R. § 23.132(e).

4Viewing the record as a whole, we have little confidence that the

juvenile court meaningfully considered the ICWA requirements. Notably,
the court made a number of gratuitous, unprofessional statements related
to the applicability of ICWA. And when counsel for the White Earth Nation
was trying to explain to the court how it had violated ICWA, the court
seemingly denied all fault, instead blaming the tribe for its untimely
response. The court sarcastically quipped that the tribe could have used
“carrier pigeon[s], smoke signals.” Such comments are racially charged and
extremely inappropriate.

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III. Parent’s Placement Preference

¶36 DCS also argues that the juvenile court erred by failing to
consider Raven’s preference that M.K. be placed with Melissa. DCS points
out that, “in its conclusions of law, although the court listed the parental
preference language from the regulations, it did not indicate that the court
considered [Raven’s] preference.”

¶37 As stated above, under the regulations, in determining
whether there is good cause to deviate from the ICWA placement
preferences, the court “should” consider “[t]he request of one or both of the
Indian child’s parents, if they attest that they have reviewed the placement
options, if any, that comply with the order of preference.” 5 25 C.F.R.
§ 23.132(c)(1); see also Ariz. R. P. Juv. Ct. 321(b)(3)(A). The provision
requiring an attestation is “intended to help address concerns about
coercion.” Indian Child Welfare Act Proceedings, 81 Fed. Reg. at 38844.

¶38 Here, in its findings of fact, the juvenile court found that
Raven had not “attested to having reviewed the placement options” but
that her attorney “represented” that she preferred Melissa. Then, in its
conclusions of law, the court identified 25 C.F.R. § 23.132(c)(1) as relevant
but made no finding as to Raven’s preference. The record in this case makes
clear that Raven preferred M.K. to be placed with Melissa. But under 25
C.F.R. § 23.132(c)(1), a parent’s preference is relevant only if he or she
prefers a non-compliant placement, thereby providing good cause to
deviate. That was not the case here.

¶39 Nevertheless, ICWA itself plainly provides: “Where
appropriate, the preference of the Indian child or parent shall be
considered.” 25 U.S.C. § 1915(c); see also Indian Child Welfare Act
Proceedings, 81 Fed. Reg. at 38844 (“The statute explicitly provides that,
where appropriate, preference of the parent must be considered.”). This
statute does not require an attestation. 25 U.S.C. § 1915(c). The juvenile
court did not cite this provision or otherwise make any conclusion of law

5The regulations indicate that good cause “should” be based on one

or more of the five listed factors. 25 C.F.R. § 23.132(c); see also Ariz. R. P.
Juv. Ct. 321 (court “must” follow 25 C.F.R. § 23.132). We need not resolve
here if “should” limits the good cause finding to only those five factors.
Contrast Indian Child Welfare Act Proceedings, 81 Fed. Reg. at 38839
(“should” leaves open possibility that, in extraordinary circumstances,
court may find good cause to deviate from placement preferences for some
other reason), with McNutt v. McNutt, 203 Ariz. 28, ¶ 26 (App. 2002)
(“should” most commonly expresses obligation or duty).

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IN RE DEPENDENCY OF M.K.
Opinion of the Court
related to Raven’s preference. It again erred in this regard. See Ruben M.,
230 Ariz. 236, ¶ 13; Grant, 133 Ariz. at 455-56.

IV. Burden Shifting

¶40 Appellants also contend the juvenile court “improperly
shifted the burden of proof” by comparing placement with Ryann and
Denisse with that of Melissa, essentially putting them on “equal footing.”
They point out the “strong presumption in favor of ICWA’s placement
preference,” namely, Melissa.

¶41 As stated above, 25 U.S.C. § 1915(b) directs that a placement
preference “shall” be given to the Indian child’s extended family and tribe.
See Joshua J. v. Ariz. Dep’t of Econ. Sec., 230 Ariz. 417, ¶ 11 (App. 2012)
(“shall” usually indicates mandatory provision). “‘Giv[ing]’ a ‘preference’
means more than mere prioritization—it connotes the active bestowal of
advantages on some over others.” Indian Child Welfare Act Proceedings,
81 Fed. Reg. at 38839 (alteration in Indian Child Welfare Act Proceedings)
(quoting 25 U.S.C. § 1915(a)) (discussing identical language in 25 U.S.C.
§ 1915(a) that “preference shall be given, in the absence of good cause to the
contrary”).

¶42 Here, as appellants point out, the juvenile court found that
M.K. had two “willing placements able to care for him.” It also compared
the placements, noting that they both had taken steps to introduce M.K. to
his heritage. These statements fail to recognize that Melissa, as an extended
family member, is the preferred placement. See 25 U.S.C. § 1915(b).
Although the court noted that ICWA “require[s] placement” of M.K. with
Melissa absent clear and convincing evidence of good cause to deviate, this
statement was empty and insincere insofar as the court failed to
meaningfully apply the preference. See Gila River Indian Cmty., 238 Ariz.
531, ¶ 15; see also Haaland, 599 U.S. at 267 (Indians from any tribe outrank
unrelated non-Indians).

¶43 The burden was on Ryann and Denisse, as well as M.K., who
opposed the ICWA-compliant placement, to establish good cause to deviate
by clear and convincing evidence. See Ariz. R. P. Juv. Ct. 321(b)(2); Gila
River Indian Cmty., 238 Ariz. 531, ¶ 19. However, the juvenile court made
several factual findings that seemed to place the burden on Melissa to
present evidence establishing that she was the most appropriate placement.
First, as discussed above, the court found that Melissa had failed to present
evidence to contradict the testimony of Dr. Mansfield and Abare. Second,
the court found that Melissa had been “unable to take full advantage of the
times available” for visitation with M.K. Third, the court found that she

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IN RE DEPENDENCY OF M.K.
Opinion of the Court
had not “reached out to [M.K.’s] current services providers” and had not
“identified service providers in [Phoenix] to replace the ones in Tucson.”
Because of Melissa’s position as the preferred placement, however, none of
these factual findings bear on the issue of whether Ryann and Denisse and
M.K. met their burden of proof.

V. Conclusion

¶44 The record before us does not contain clear and convincing
evidence of good cause to deviate from the ICWA placement preferences.
Melissa, as M.K.’s cousin, is the preferred placement. See 25 U.S.C.
§ 1915(b). It is presumed that M.K. being placed with Melissa is in M.K.’s
best interests. See Navajo Nation, 230 Ariz. 339, ¶ 18. Raven also prefers that
M.K. be placed with Melissa. See 25 U.S.C. § 1915(c). M.K. does have
significant medical and developmental needs; however, those needs are
being addressed, and it is undisputed that services are readily available in
Phoenix, where Melissa lives. See 25 C.F.R. § 23.132(c). It is also undisputed
that a thoughtful transition plan could alleviate added trauma to M.K.
stemming from a change in placement. In addition, because M.K.’s initial
placement with Ryann and Dennise was made in violation of ICWA, his
bonding with them—which we have no doubt exists—cannot serve as the
sole basis of good cause to deviate. See 25 C.F.R. § 23.132(e).

¶45 This is precisely the type of case that ICWA was enacted to
address. See Haaland, 599 U.S. at 265-66; Gila River Indian Cmty., 238 Ariz.
531, ¶ 14. We have an Indian child with both an extended family member
and a non-Indian foster family wishing to serve as placement. Because, as
a matter of law based on the record before us, no one could reasonably find
good cause to deviate by clear and convincing evidence, we are compelled
to reverse the juvenile court’s order.6 See Brionna J., 255 Ariz. 471, ¶ 31.

6 Because of this outcome, we need not address the White Earth
Nation and Melissa’s additional argument that the juvenile court was
biased “throughout the proceedings.” In any event, because this issue was
not raised below, it is waived on appeal. See Richter v. Dairy Queen of S.
Ariz., Inc., 131 Ariz. 595, 596 (App. 1982) (appellate court cannot consider
issues and theories not presented below); K.B. v. State Farm Fire & Cas. Co.,
189 Ariz. 263, 268 (App. 1997) (appellate court “generally [does] not
consider arguments, including ones concerning constitutional issues, raised
for the first time on appeal”).

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IN RE DEPENDENCY OF M.K.
Opinion of the Court
Disposition

¶46 This case is difficult because M.K. has two placements who
love him and want to care for him. However, in an ICWA case like this, the
law gives a strong preference to extended family members like Melissa.
Our courts must recognize that, as a matter of law, best interest
determinations involving Indian children are to be treated differently and
must be made in accord with ICWA. It is simply not sufficient to apply the
standard best-interests calculations our courts routinely and daily apply in
non-Indian children placements. The burden on those wanting to deviate
from that preference is steep—clear and convincing evidence of good cause.
That standard was not met here.

¶47 This case is also troubling because the juvenile court’s ruling
was replete with errors. Had those errors not been made, M.K. could have
been transitioned to living with Melissa sooner. Instead, the delay has
undoubtedly served to reinforce M.K.’s bond with Ryann and Denisse. We
are not unsympathetic to this situation. However, this is the result the law
requires. Accordingly, we reverse the juvenile court’s order denying DCS’s
motion for change of physical custody and remand the matter for the court
to grant that motion.

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