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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE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

KARI M.
, Appellant
,

v.

DEPARTMENT OF CHILD SAFETY, B.M., MUSCOGEE CREEK

NATION
, Appellee s

.
No. 1 CA

- JV 20

- 038 9

Appeal from the Superior Court in Maricopa County

No. JD 531327 The Honorable Jeffrey A. Rueter
, Judge

VACATED AND REMANDED

COUNSEL
David W. Bell Attorney at Law, Higley By David W. Bell Counsel for Appellant

Arizona Attorney General’s Office
, Phoenix By Emily M. Stokes C ounsel for Appellee

, Department of Child Safety

FILED 4-29-2021KARI M. 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 David B. Gass and Judge David D. Weinzweig joined.

B R O W N , Judge:

¶1 Kari M. (“Mother”) appeals the juvenile court’s order granting guardianship of her son, B.M., to his grand parents

. For the following reasons , we vacate the order and remand for further proceedings.

BACKGROUND

¶2 Mother has disabilities affect ing her cognitive functioning, judgment, speech
, and balance; she is considered a vulnerable adult by A dult P rotective S ervices a nd has night blindness

. B.M. is a n Indian child under the Indian Child Welfare Act (“ICWA”). A fter B.M.’s birth, Mother and B .M. resi ded with the boy’s maternal grandparents (“Grandparents”) for six years , and Grandparents assisted with B.M.’s care during that time

. ¶3 In November 2016 , Mother moved into an assisted

- living home with B.M. and allowed the in

- home providers to babysit B.M. , which caused him t o be fearful

. B.M. told Mother one of the providers would threaten and yell at him , but she continued to rely on th at provider to care for the child

. Law enforcement eventually investigated , and Mother and B.M. m oved b ack in with Grandparents. When Mother moved out again around April 2017, Grandparents obtained temporary sole legal decision

making for B.M. through the family court.

¶4 In December 2017, B.M.’s best

- interests attorney in the family court matter filed a dependency petition in the juvenile court alleging Mother was unable to independently care for B.M. T he Department of Child Safety (“DCS”) then joined as a part y to the petition and B.M. remained with Grandparents

. ¶5 Meanwhile
, Mother rented an apartment and worked at various times as a caretaker and in a classroom ; she also received monthly S ocial S ecurity disability payments

. DCS provided her with services, including two psychological evaluations, a neuropsychological evaluation, individual and family c ounseling , and a parent aide with visitation. Mother began her parent

- aide service in February 2018. DCS referred B.M. forKARI M. v. DCS, et al. Decision of the Court

3 individual counseling, and between April and June, B.M.’s counselor included Mother in a few family sessions. The counselor ended the sessions when they became unproductive. DCS offered no more family counseling

. ¶6 In June 2018, Mother completed a psychological evaluation with Dr. Alex Levitan

. During the interview, Mother said she had no close friendships and lacked a social support network. Dr. Levitan diagnosed Mother with an adjustment disorder and borderline intellectual functioning. He explained her diagnoses could affect her ability to parent by decreasing her capacity to function independently and problem

- so lve appropriately. Accordingly, he warned that “[i]t is vital that [Mother] is able to utilize her support systems in order to mitigate deficits in her ability to discharge [her] parental responsibilit[ies].” Dr. Levitan opined that because Mother did no t appear to have social, non

- professional supports available to her at that time, B.M. would be at an elevated risk of parentification and harm in her care.

¶7 In August 2018, the juvenile court found B.M. dependent after a contested hearing and set a case plan of family reunification. B.M. remained with Grandparents. That same month, Mother’s parent

- aide service closed successfully

. She had met all but one of her program goals: articulating a protection plan for B.M. At closure, the parent aide exp lained that Mother “appears to know how to protect [B.M.] in the moment, but will need to further explore thinking ahead and a plan to keep [him] safe in the future.” As late as February 2019
, DCS reported to the juvenile court:

S ince discharging from [parent

- aide] services, [Mother] has continued to learn how to plan for protection of her child as well as manage his behaviors and engage him in various activities during visits. This is evidenced by [Mother] articulating clear and appro priate plans to this [case manager] on how she would respond to safety issues with the child, including but not limited to encountering a similar situation with her DDD caregivers and child in which this case was opened with.
This paragraph was removed fro m subsequent DCS court reports, and DCS did not refer Mother for a second parent aide

. ¶8 In October 2018 , Mother fell and r equired some hospitalization. Her memory was temporarily affected ; s he did not remember what had happened, who her caregivers were, or that she had aKARI M. v. DCS, et al. Decision of the Court

4 child. After recovering, Mother followed her caregivers’ recommendations and moved into a first

- level apartment in the same complex.

¶9 In November 2 018, Mother completed a ne uro psychological evaluation with Dr. Kelly Rodriguez. The evaluation confirmed that Mother has impairments in speech, cognitive flexibility, motor coordination, and memory. Along with Mother’s previous diagnoses, Dr. Rodriguez diagnosed her with a neuro developmental disorder
, explaining that the diagnosis affects Mother’s decision

- making, problem

solving, and adaptation to environmental changes

. Dr. Rodriguez opined that these limitations could “potentially affect ” Mother’s ability to provide a safe env ironment for B.M. and recommended that Mother participate in counseling with a doctorate

- level therapist.

¶10 I n February 2019
, the DCS case manager gave Mother a list of doctorate

- level counselors covered by her insurance and offered to help schedul e the intak e appointment

. Mother declined DCS’s help

. I nstead
, she sought counseling through the Family Involvement Center
, which did not provide her with a doctorate

- level therapist

. That same month, DCS provid ed Mother with partially unsupervised visits, and the court ordered family counseling for Mother and Grandparents , which they pursued through the Family Involvement Center

. Grandfather , however, only participated for a few weeks. In April, Mother progres sed to fully unsupervised visits. In June, DCS referred Mother to Dr. Elizabeth Capps

Co n kle for doctorate

- level individual therapy.

¶11 In September 2019, Mother began facing financial difficulties
, and in November her church paid her rent

. She also completed a nother psychological evaluation with Dr. Rodriguez , who again reported that Mother’s ability to parent could be im paired by her limitations in developing and using resources and support, cognitive flexibility , decision

making, and organization and planning. In December, Mother progressed to unsupervised overnight visits with B.M. Each time DCS increased Mother ’s visits , however, B.M. displayed anxiety and troublesome behaviors.

¶12 In January 2020, DCS moved to appoint Grandparents as permanent guardians of B.M

. A bout two months later, Mother was evicted from her apartment for failure to pay rent

. With assistance from the Department of Developmental Disabilities, Mother soon moved into an assisted

- living fac ility that d id not allow children. In April
, the counselor providing family therapy to Mother and Grandparents ended the service because progress had stalled
, and she wanted Mother and G randmother toKARI M. v. DCS, et al. Decision of the Court

5 address some issues individual ly before resuming therapy as a family

. Twice between May and June 2020, Mother went to the hospital for heat exhaustion. Sometime before November, Mother again secured independent housing.

¶13 The juvenile court held a guardianship adjudication hearing

ove r four days between June and November 2020. At the hearing, Dr. Capps

- Conkle testified that Mother underst ood the reasons for DCS’s involvement and had made a lot of progress in understanding how the dependency affected her relationship with B.M. Mother had also (1) made significant improvement in understanding and evaluating her choices in any given situation ; and (2) show ed “great progress” in her problem

solving skills and in utilizing coping strategies.

¶14 Dr. Capps

- Conkle testified further t hat Mothe r had shown some improvement in locating and utilizing resources but still “struggle[d] with a natural support system,” though she had “good insight about that and is willing to put herself out there to . . . start to create those natural supports.” Ultim ately, Dr. Capps

- Conkle explained that Mother “always comes to sessions ready to work,” “expresses insight,” and overall, had “really done well in therapy

. ” S he was unaware of any significant gaps in Mother’s ability to parent. During closing arguments, all the parties believed that DCS would need to prove the elements of the guardianship motion by clear and convincing evidence.

¶15 Shortly a fter DCS filed an amended guardian ship motion that included the required ICWA allegations, t he juvenile court dismissed the dependency and appointed Grandparents as B.M.’s permanent guardians. The court’s order made the findings required under both ICWA and state law but did not identify the burden of proof the court applied. Mother timely appealed. 1 About a week later, the court issued its appointment order, which recited the statutory findings required by state law and by ICWA , and noted its findings were made by beyond a reasonable doubt. 2

1 Although B.M.’s father was included in the juvenile court’s order granting the petition, he did not participate in any of the guardianship proceedings or appeal the juvenile court’s rulings.

2 After our initial review of the appellate briefs and the juvenile court record, we ordered the parties to provide expedited supplemental briefing address ing (1) DCS’s burden of proof on its guardianship motion, givenKARI M. v. DCS, et al. Decision of the Court

6 DISCUSSION

¶16 As relevant here, a court may establish a permanent guardianship if the guardianship is in the child’s best interests and all of the following are true :

1

. T he child has been adjudicated a dependent child

. . . .
2

. [T] he child has been in the custody of the prospective permanent guardian for at least nine months

. . . .
3

. [ T ] he department or agency has made reasonable efforts to reunite the parent and child and further efforts would be unproductive

. . . .

4

. The likeliho od that the child would be adopted is remote or termination of parental rights would not be in the child’s best interests.

A.R.S. § 8

- 871(A). A court may waive the requirement that DCS make reasonable efforts towards reunification if
, inter alia
, “[r]eunification . . . is not in the child’s best interests because the parent is unwilling or unable to properly care for the child.” A.R.S. § 8

- 871(A)(3)( b ). In evaluating the potential guardianship, t he court must “give primary consideration to the
p hysical, mental and emotional needs and safety of the child.” A.R.S. § 8

- 871(C).

¶17 Although the moving party generally must prove the elements of a guardianship by clear and convincing evidence, w he n ICWA applies the movant must prove the elements beyond a reasonable doubt. A.R.S. § 8

- 872(G); see also Ariz. R.P. Juv. Ct. 63(C) (“The moving party has the burden of proving the allegations contained in the motion by . . . in the case of an Indian child, beyond a reasonable doubt.”). The moving party in an ICWA case also must prove, “beyond a reasonable doubt, including testimony from a qualified expert witness, that continued custody of the child by the parent . . . is likely to result in serious emotio nal or physical damage” and that DCS has made “active efforts . . . to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that those efforts have proven unsuccessful.” Ariz. R.P. Juv. Ct. 63(C) ; 25 U.S.C

. § 1912(d)

- (e).

that B.M. is subject to ICWA, and (2) how that burden affects the outcome of this appeal.KARI M. v. DCS, et al. Decision of the Court

7 ¶18 T he record raises serious doubt whether the juvenile court held DCS to the correct burden

— proof beyond a reasonable doubt

— when it ruled DCS had established the requirements for a guardianship

. See A.R.S. § 8

- 872(G) ; 25 U.S.C

. § 19 12(d)

- (e)

. At the guardianship hearing, a ll the parties cited t he clear and convincing evidence standard

. Indeed, both parties concede in their supplemental briefs that they cited the incorrect burden of proof to the juvenile court

. The court did not correct the parties’ assertions , and its initial signed ruling , which contains specific factual findings on the state

- law guardianship elements as to Mother, is silent about the burden of proof the court applied.

¶19 Although trial judges are presumed to kn ow and correctly apply the law, Fuentes v. Fuentes , 209 Ariz. 51, 58, ¶ 32 (App. 2004), the parties’ reiterations of the incorrect burden and the juvenile court’s failure to express the correct burden at trial or in its initial order make it impossible
to conclude the result of the guardianship proceeding complied with the law

. See Kent K. v. Bobby M. , 210 Ariz. 279, 284, ¶ 24 (2005) (“Application of the proper standard of proof in a termination hearing is a critical component of the ‘fundamentally fair pr ocedures’ necessary to satisfy due process.”). To be sure , applying an incorrect burden of proof is both fundamental and prejudicial error when the correct burden imposes a heavier burden

. See State v. Escalante , 245 Ariz. 135, 141, ¶ 20 (2018) (Fundamental and prejudicial error are present when “the error . . . so profoundly distort [s] the trial that injustice is obvious without the need to further consider prejudice .”) ; see also State v. Murray , 250 Ariz. 543, 546, ¶ 1 (2021) (applying Escalante and holding that “prosecutor’s material misstatement of the reasonable

- doubt standard was both fundamental and prejudicial error because it went to the foundation of the case and deprived Defendants of an essential right ”)

. ¶20 DCS urges us to affirm the guardianship because the juvenile
court ’s order appointing a guardian found the guardianship elements “beyond a reasonable doubt.” Although t h at o rder contains the legal conclusions required for a guardianship
, it does not r ectify any previous

error on the burden of proof

. D ue process ensures the movant is held to the
proper burden of proof in the first instance

. E.R. v. Dep’t of Child Safety , 237 Ariz. 56, 59, ¶ 15 (App. 2015) (vacating order when juvenile court applied incorrect legal standard); In re Maricopa C n ty. Juv. Action No. JS

- 4130 , 132 Ari z . 486, 488 (App. 1982) (vacating and remanding when termination proceedings occur under incorr ect burden of proof). For these same reasons, we decline DCS’s assertion that Mother’s counsel invited the error.

CONCLUSIONKARI M. v. DCS, et al. Decision of the Court

8 ¶21 W e vacate the guardianship order and remand to the juvenile

co urt so it may determine whether DCS satisfied its burden to prove beyond a reasonable doubt the elements required under A.R.S. § 8

- 871(A)
, § 8

- 872(G), and ICWA, and if not, for further proceedings consistent with this decision. Because we vacate the guardianship order
, we also vacate the order a ppointing a p ermanent g uardian , which was premised on the guardianship order

.