In re Dependency of M.K.

Summary

The Arizona Court of Appeals, Division Two, reviewed a juvenile court order finding good cause to deviate from the Indian Child Welfare Act's placement preferences and allowing M.K. to remain with a non-Indian, non-relative placement. The court held that the juvenile court committed multiple legal errors, including failing to adequately consider evidence concerning trauma, extraordinary needs, the parent's placement preference, and the effect of an initial placement made in violation of ICWA requirements. The order was reversed and the matter remanded with directions to grant the motion for a change of physical custody.

Holdings

1. The Court of Appeals had appellate jurisdiction because the challenged order was a final order under A.R.S. § 8-235 and Rule 601(b)(2)(M), Ariz. R. P. Juv. Ct., and the application of ICWA made the order distinguishable from an ordinary nonfinal placement determination.
2. A party seeking to depart from ICWA's hierarchical placement preferences bears the burden of proving good cause by clear and convincing evidence, and the record did not contain such evidence here.
3. A placement may not depart from ICWA preferences based solely on ordinary bonding or attachment resulting from time spent in a nonpreferred placement made in violation of ICWA.
4. The juvenile court erred by failing to make a legal determination concerning the Indian parent's preference that M.K. be placed with Melissa.
5. The juvenile court improperly treated the preferred extended-family placement and the non-Indian foster placement as being on equal footing and effectively shifted the burden to Melissa to prove that she was the most appropriate placement.

Questions Presented

1. Whether the Court of Appeals had appellate jurisdiction over the juvenile court's order concerning deviation from ICWA placement preferences.
2. Whether the juvenile court abused its discretion by finding good cause to deviate from ICWA's placement preferences without clear and convincing evidence.
3. Whether the juvenile court improperly relied on trauma, ordinary bonding, and attachment formed during an initial placement that violated ICWA notice and qualified-expert-witness requirements.
4. Whether the juvenile court failed to consider the Indian parent's placement preference and improperly shifted the burden of proof to the preferred extended-family placement.
5. Whether the juvenile court's findings concerning M.K.'s extraordinary needs were supported by the evidence.

Disposition

reversed_and_remanded