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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

KARI M., Appellant,

v.

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

NATION, Appellees.

No. 1 CA-JV 20-0389

Appeal from the Superior Court in Maricopa County

No. JD531327

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

Counsel for Appellee, Department of Child Safety

FILED 4-29-2021
KARI 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 grandparents. For the 

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

BACKGROUND

¶2 Mother has disabilities affecting her cognitive functioning, 

judgment, speech, and balance; she is considered a vulnerable adult by 

Adult Protective Services and has night blindness. B.M. is an Indian child

under the Indian Child Welfare Act (“ICWA”). After B.M.’s birth, Mother 

and B.M. resided 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 to be fearful. B.M. told Mother one of the providers would 

threaten and yell at him, but she continued to rely on that provider to care 

for the child. Law enforcement eventually investigated, and Mother and 

B.M. moved back in with Grandparents. When Mother moved out again 

around April 2017, Grandparents obtained temporary sole legal decisionmaking 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. The Department of 

Child Safety (“DCS”) then joined as a party 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

Social Security disability payments. DCS provided her with services, 

including two psychological evaluations, a neuropsychological evaluation, 

individual and family counseling, and a parent aide with visitation. Mother 

began her parent-aide service in February 2018. DCS referred B.M. for 
KARI 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-solve 

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 not 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 explained 

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: 

Since 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 appropriate 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 from subsequent DCS court reports, and DCS 

did not refer Mother for a second parent aide. 

¶8 In October 2018, Mother fell and required some 

hospitalization. Her memory was temporarily affected; she did not 

remember what had happened, who her caregivers were, or that she had a 
KARI 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 2018, Mother completed a neuropsychological 

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 neurodevelopmental disorder, 

explaining that the diagnosis affects Mother’s decision-making, problemsolving, and adaptation to environmental changes. Dr. Rodriguez opined 

that these limitations could “potentially affect” Mother’s ability to provide 

a safe environment for B.M. and recommended that Mother participate in 

counseling with a doctorate-level therapist. 

¶10 In February 2019, the DCS case manager gave Mother a list of 

doctorate-level counselors covered by her insurance and offered to help 

schedule the intake appointment. Mother declined DCS’s help. Instead, 

she sought counseling through the Family Involvement Center, which did 

not provide her with a doctorate-level therapist. That same month, DCS 

provided 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 progressed to fully 

unsupervised visits. In June, DCS referred Mother to Dr. Elizabeth CappsConkle 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 another

psychological evaluation with Dr. Rodriguez, who again reported that 

Mother’s ability to parent could be impaired by her limitations in 

developing and using resources and support, cognitive flexibility, decisionmaking, 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. About 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 facility that did 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 Grandmother to 
KARI M. v. DCS, et al.

Decision of the Court

5

address some issues individually 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 

over four days between June and November 2020. At the hearing, Dr. 

Capps-Conkle testified that Mother understood 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) showed “great progress” in her problemsolving skills and in utilizing coping strategies. 

¶14 Dr. Capps-Conkle testified further that Mother 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.” Ultimately, Dr. Capps-Conkle explained that Mother “always 

comes to sessions ready to work,” “expresses insight,” and overall, had 

“really done well in therapy.” She 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 after DCS filed an amended guardianship motion that 

included the required ICWA allegations, the 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 

addressing (1) DCS’s burden of proof on its guardianship motion, given 
KARI 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. The 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 likelihood 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, the court must “give primary consideration to the 

physical, 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, when 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 emotional 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 The 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. § 1912(d)-(e). At the guardianship hearing, all 

the parties cited the 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 know 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 procedures’ 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 that order contains the legal 

conclusions required for a guardianship, it does not rectify any previous 

error on the burden of proof. Due 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 Cnty. Juv. Action No. JS-4130, 132 

Ariz. 486, 488 (App. 1982) (vacating and remanding when termination 

proceedings occur under incorrect burden of proof). For these same 

reasons, we decline DCS’s assertion that Mother’s counsel invited the error. 

CONCLUSION
KARI M. v. DCS, et al.

Decision of the Court

8

¶21 We vacate the guardianship order and remand to the juvenile 

court 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 appointing a permanent guardian, which was premised on the 

guardianship order.