Kari M. v. Dcs

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
FILED 4-29-2021
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
KARI M. v. DCS, et al.
Decision of the Court
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 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. 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
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KARI M. v. DCS, et al.
Decision of the Court
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
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KARI M. v. DCS, et al.
Decision of the Court
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, problem-
solving, 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 Capps-
Conkle 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, 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. 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
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KARI M. v. DCS, et al.
Decision of the Court
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 problem-
solving 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
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Decision of the Court
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.
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KARI M. v. DCS, et al.
Decision of the Court
¶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
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KARI M. v. DCS, et al.
Decision of the Court
¶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.
AMY M. WOOD • Clerk of the Court
FILED: AA
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