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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

PEARSON Y., Appellant,

v.

DEPARTMENT OF CHILD SAFETY, L.Y.,

THE QUECHAN INDIAN TRIBE, Appellees.

No. 1 CA-JV 20-0097 

Appeal from the Superior Court in Maricopa County

No. JD 29791 

The Honorable Sara J. Agne, Judge

AFFIRMED

COUNSEL

David W. Bell, Attorney at Law, Higley

By David W. Bell

Counsel for Appellant

Arizona Attorney General’s Office, Tucson

By Dawn R. Williams

Counsel for Appellee, Department of Child Safety

Rosette LLP, Attorneys at Law, Chandler

By Julian Angelo Nava

Counsel for The Quechan Indian Tribe

FILED 9-1-2020
PEARSON Y v. DCS, et al.

Decision of the Court

2

MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which 

Presiding Judge Jennifer M. Perkins and Judge David B. Gass joined.

B R O W N, Judge:

¶1 Pearson Y. (“Father”) appeals the juvenile court’s order 

terminating his parental rights to his son, L.Y., born in 2014. Father 

challenges the court’s findings that (1) good cause existed to deviate from 

the Indian Child Welfare Act (“ICWA”) placement preferences, (2) the 

Department of Child Safety (“DCS”) made active efforts to comply with 

such preferences, and (3) termination was in L.Y.’s best interests. For the 

following reasons, we affirm. 

BACKGROUND

¶2 Father and Lisa T. (“Mother”) are the biological parents of 

L.Y., who is an enrolled member of the Quechan Tribe (“Tribe”) and eligible 

for enrollment in the Navajo Nation because Father is Navajo. L.Y. has been 

diagnosed with autism spectrum disorder. Because of his developmental 

and behavioral needs, L.Y. receives services through the Department of 

Developmental Disabilities and is enrolled in the Arizona Long Term Care 

System, which means he has significant delays that will inhibit him for a 

lengthy period of time. L.Y. attends a special daycare developmental 

preschool and engages in behavioral, occupational, physical, and speech 

therapy. 

¶3 In January 2015, DCS took L.Y. into custody and filed a

petition for dependency, alleging Mother and Father neglected the child. In 

December, the juvenile court dismissed the dependency and returned L.Y. 

to Mother’s custody, with Father being allowed supervised visitation with 

L.Y. 

¶4 In March 2017, DCS again took L.Y. into custody. In its 

dependency petition, DCS alleged Mother and Father were neglecting L.Y. 

due to substance abuse. Mother admitted she was drinking a liter of vodka 

per day to help her cope with pain resulting from a domestic violence 

incident. DCS alleged Father was using methamphetamine. During a team 

decision-making meeting, Father was “uncooperative and aggressive,” and 
PEARSON Y v. DCS, et al.

Decision of the Court

3

appeared to be “under the influence of a substance.” The petition also 

alleged Mother and Father exposed L.Y. to domestic violence in the home 

and failed to provide him a safe environment. DCS acknowledged L.Y. was 

an Indian child and stated ICWA applied. DCS notified the Navajo Nation 

and the Tribe of the dependency proceeding. 

¶5 The juvenile court held a permanency planning hearing and 

pretrial conference in August 2017. Father failed to appear at the hearing, 

and the court found L.Y. dependent as to Father, with a case plan of family 

reunification concurrent with severance and adoption. 

¶6 L.Y. was placed in the same foster home—a non-ICWA 

placement—that had provided for his care during his first year of life. Over 

the course of the 2017 dependency, DCS investigated several placement 

possibilities that complied with ICWA, including family members. The 

Tribe did not object to L.Y.’s foster home placement, but indicated it would 

seek to place L.Y. in a tribal placement if the case plan changed to severance 

and adoption. At a July 2018 report and review hearing, after the juvenile 

court denied DCS’s request to change the case plan to severance and 

adoption, a representative for the Tribe informed the court that the Tribe 

and DCS were attempting to place L.Y. in an ICWA-compliant placement. 

¶7 In February 2019, the juvenile court changed the case plan to 

severance and adoption. DCS then moved to terminate both parents’ 

parental rights, alleging they were unable to discharge parental 

responsibilities because each had a history of chronic substance abuse and 

they failed to remedy the circumstances that caused L.Y. to be in an out-ofhome-placement for more than 15 months. See A.R.S. § 8-533(B)(3), (8). At 

the contested termination hearing, the court received testimony from the 

parents’ psychologist, DCS’s safety specialist, an ICWA-qualified expert, 

and Mother. Father chose not to testify and the court drew a negative 

inference from his decision, explaining that whether Father was sober 

enough to be able to provide minimally adequate parenting of L.Y. was a 

matter “uniquely within Father’s knowledge.” 

¶8 The juvenile court granted DCS’s motion, finding DCS 

proved the alleged grounds as to both parents and termination was in L.Y.’s 

best interests. The court also addressed ICWA compliance, finding DCS 

engaged in active efforts to prevent the breakup of L.Y.’s family and good 

cause existed to depart from ICWA placement preferences. Father timely 

appealed. The Tribe joined in the appeal by filing a notice in support of 

Father’s appeal pursuant to ARCAP 13(h). Mother is not a party to this 

appeal. 
PEARSON Y v. DCS, et al.

Decision of the Court

4

DISCUSSION

¶9 To terminate Father’s parental rights, DCS was required to 

prove by clear and convincing evidence that a statutory ground for 

termination exists, and by a preponderance of evidence that termination is 

in the child’s best interests. Crystal E. v. Dep’t of Child Safety, 241 Ariz. 576, 

577, ¶ 4 (App. 2017); Ariz. R.P. Juv. Ct. 66(C). In addition, because L.Y. is 

an Indian child, DCS had to (1) prove beyond a reasonable doubt that 

continued custody by Father would “likely result in serious emotional or 

physical damage” to L.Y., and (2) satisfy the juvenile court that active efforts 

were made to “provide remedial services and rehabilitative programs 

designed to prevent the breakup of [L.Y.’s] family and that those efforts 

have proven unsuccessful.” Ariz. R.P. Juv. Ct. 66(C); see also 25 U.S.C. § 

1912(d), (f); Valerie M. v. Ariz. Dep’t of Econ. Sec., 219 Ariz. 331, 333, ¶ 3

(2009). 

¶10 Father does not challenge the juvenile court’s finding that 

DCS proved the statutory grounds for termination by clear and convincing 

evidence or the court’s finding that DCS established beyond a reasonable

doubt that continued custody by Father would likely result in serious 

emotional or physical damage to L.Y. Instead, Father’s arguments are 

centered on whether good cause existed to deviate from ICWA’s 

preferences for placement of a dependent child. The Tribe supports 

Father’s arguments. 

A. Departure from ICWA Placement Preferences

¶11 The juvenile court may depart from ICWA placement 

preferences only upon a good cause finding, and we review such a finding 

for an abuse of discretion. Navajo Nation v. Ariz. Dep’t of Econ. Sec., 230 Ariz. 

339, 343, ¶ 14 (App. 2012). We do not substitute our opinion for that of the 

juvenile court, and we will uphold the court’s factual findings unless they 

are unsupported by evidence. Id. at 344, ¶ 14; Ariz. Dep’t of Econ. Sec. v. 

Matthew L., 223 Ariz. 547, 549, ¶ 7 (App. 2010). 

¶12 ICWA establishes the following placement preferences: first 

with “a member of the Indian child’s extended family,” second with “a 

foster home licensed, approved, or specified by the Indian child’s tribe,” 

third with “an Indian foster home licensed or approved by an authorized 

non-Indian licensing authority,” and finally, with “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). 
PEARSON Y v. DCS, et al.

Decision of the Court

5

¶13 In finding good cause existed to depart from ICWA

placement preferences, the juvenile court supported its determination

based on several factors, including: (1) “no suitable options could be located 

despite active efforts by DCS and the tribes,” (2) “the testimony of the 

qualified [ICWA] expert witness,” (3) “the abundance of evidence showing 

[L.Y.’s] growth in [the current] placement,” including the placement’s

ability to meet L.Y.’s many special needs, (4) L.Y.’s “parents’ and tribes’ lack 

of objections” to the current placement, (5) “the placement’s willingness to 

continue exposing [L.Y.] to his cultural heritage,” and (6) “the Mother’s 

evident good, working relationship with placement.” 

¶14 Father argues the court lacked good cause to depart from 

ICWA placement preferences and DCS did not diligently attempt to find an

ICWA-compliant placement. The record shows otherwise. The juvenile 

court clearly articulated the factors that support its good cause 

determination. Indeed, the court’s minute entries over the course of the 

dependency reveal that neither Father, Mother, nor the Tribe objected to the 

placement, and that a Tribal representative acknowledged DCS and the 

Tribe had engaged in efforts to find an ICWA-compliant placement. The 

ICWA expert witness opined that although the placement was not ICWAcompliant, there was good cause to depart from the placement preferences 

because the foster home was able to meet L.Y.’s extensive special needs. 

And Mother testified to her positive relationship with the placement. 

¶15 A court may determine, as occurred here, that departure from 

ICWA placement preferences is appropriate; the factors the court must 

consider “are case-specific, but in all cases must be balanced against the 

statutory presumption that placement consistent with ICWA preferences is 

in the best interest of the child.” Navajo Nation, 230 Ariz. at 346, ¶24. The 

record shows the juvenile court based its good-cause determination on 

permissible factors, including, among other things, the “extraordinary 

physical, mental, or emotional needs” of L.Y., and 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 25 C.F.R. § 23.132(c)(4), (5) (2016). 

¶16 Accordingly, the court properly balanced case-specific factors 

when it determined departure from ICWA placement preferences was 

appropriate. Father has shown no abuse of discretion. 
PEARSON Y v. DCS, et al.

Decision of the Court

6

B. Active Efforts Under ICWA

¶17 Father argues the juvenile court committed reversible error 

when it found DCS made active efforts to prevent the breakup of L.Y.’s

family. DCS must prove active efforts by clear and convincing evidence, 

but we review the evidence in the light most favorable to upholding the 

court’s finding. Yvonne L. v. Ariz. Dep’t of Econ. Sec., 227 Ariz. 415, 421–22, 

¶¶ 26–27 (App. 2011). 

¶18 We disagree that DCS failed to meet its burden of proving it 

made active efforts to prevent break-up of the relationship. Father does not 

specify what facts show DCS’s failure to undertake active efforts, other than 

to argue that L.Y.’s placement in a non-ICWA-compliant placement did not 

constitute active efforts. Father cites no authority for the proposition that a

non-ICWA-compliant placement means DCS has failed as a matter of law 

to undertake the active efforts. Instead, his only argument on this point 

rests on the non-ICWA placement. 

¶19 As noted above, the juvenile court did not abuse its discretion 

in deviating from ICWA placement preferences. Moreover, the court based 

its active efforts finding on significant evidence: Father was offered case 

management, substance abuse treatment and testing, visits with L.Y., and a 

psychological evaluation. DCS workers arranged transportation for Father 

to visit L.Y., and a DCS employee even accompanied Father to a store to 

teach him how to shop for L.Y.’s specific dietary needs. Father either chose 

not to engage or did not comply with many of the services DCS offered. 

Thus, the court did not err in finding that DCS made active efforts as 

required by ICWA. 

C. Best Interests 

¶20 When assessing the best interests of the child, the juvenile 

court’s primary concern must be the child’s stability and security. Alma S. 

v. Dep’t of Child Safety, 245 Ariz. 146, 150, ¶ 12 (2018). Termination is 

appropriate if “(1) the child will benefit from severance; or (2) the child will 

be harmed if severance is denied.” Id. at ¶ 13. In determining that 

severance was in L.Y.’s best interests, the court noted the presence of a 

statutory ground for severance had a negative effect on the child and that 

the immediate availability of an adoptive family for L.Y. favored severance. 

The court also found that based on Father’s active alcohol abuse, L.Y. would 

suffer serious emotional or physical damage if Father’s parental rights were 

not terminated. 
PEARSON Y v. DCS, et al.

Decision of the Court

7

¶21 Father argues the juvenile court erred in determining 

termination of his rights was in L.Y.’s best interests but does not challenge

any of the court’s findings related to L.Y.’s best interests. Rather, Father 

essentially repeats the same contentions addressed above—that DCS did 

not comply with ICWA standards by failing to find an ICWA-complaint

placement and failing to make active efforts to prevent the breakup of the 

Indian family. But as we explained, those arguments are not persuasive. 

Accordingly, reasonable evidence supports the best interests finding. 

CONCLUSION

¶22 We affirm the juvenile court’s order terminating Father’s 

parental rights to L.Y.