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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

## A RIZONA 

## C OURT OF 

## A PPEALS

D IVISION O NE

ALEXANDRA K. Intervenor/ Appellant

,

v.

DEPARTMENT OF CHILD SAFETY, I.G.

, Defendant s/Appellees.

No. 1 CA

- JV 16

- 0340

Appeal from the Superior Court in Maricopa County

No. JD527122

The Honorable Karen L. O’Connor

, Judge

VACATED AND REMANDED

COUNSEL

McCarthy W eston, PLLC, Flagstaff By Phillip (Jay) McCarthy Jr. Counsel for Intervenor/

Appellant

Arizona Attorney General’s Office

, Mesa By Ashlee N. Hoffman n C ounsel for Defendant/Appellee Department of Child SafetyALEXANDRA K. v. DCS, I.G.

Decision of the Court

2 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

a rgues the court err ed 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 he r 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/ter mination 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 an d 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

. T he juvenile court then granted Appellant’s subsequent unopposed motion to designate the dependency proceeding as an ICWA ca se 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 currentALEXANDRA K. v. DCS, I.G.

Decision of the Court

3 placement, two expert w itnesses, 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, appl ying ICWA at that stage of the proceedings was untimely, citing Gila River Indian Cmty. v. Dep’t of Chi l d Safety , 240 Ariz. 38 5 (App. 2016) (review granted Feb. 14, 2017)

. After Appellant appealed , the juvenile court granted her request

to stay the adopti on 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 preference s 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 invo lves 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. § 1 902. 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. Holyfiel d , 490 U.S.
30, 50, n. 24 (1989) (quoting Pima Cnty. Juv. Action N o. S

– 90 3 , 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 , involve d only the question of whether the Community was entitled to transfe r a dependency proceeding to its tribal children’s court after parental rights ha d been

terminated

. Id. at 389

, ¶ 11. Referencing the plain language of the ICWA provision relied on by th e Community, we held that ICWA does not allowALEXANDRA K. v. DCS, I.G.

Decision of the Court

4 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. § 1 915(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 p hysical custody and remand for further proceedings , directing the juvenile court to apply ICWA in determining an adopti ve placement for I.G.