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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

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

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 

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 
ALEXANDRA K. v. DCS, I.G.

Decision of the Court

3

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 
ALEXANDRA 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. § 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.