The Navajo Nation v. Dcs, B.P.

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

THE NAVAJO NATION,
Appellant,

v.

DEPARTMENT OF CHILD SAFETY, B.P.,
Appellees.

No. 1 CA-JV 21-0225
FILED 2-10-2022

Appeal from the Superior Court in Maricopa County
No. JD35914
The Honorable Julie Ann Mata, Judge

JURISDICTION ACCEPTED; RELIEF DENIED

COUNSEL

Rothstein Donatelli, LLP, Tempe, AZ & Albuquerque, NM
By April Olson, Glennas’ba B. Augborne Arents, Alicia Consuelo Lopez,
Wouter Zwart
Counsel for Appellant

John L. Popilek, P.C., Scottsdale
By John L. Popilek
Counsel for Appellee B.P.

Arizona Attorney General’s Office, Tucson
By Jennifer R. Blum
Counsel for Appellee Department of Child Safety
 THE NAVAJO NATION v. DCS, B.P.
Decision of the Court

MEMORANDUM DECISION

Acting Presiding Judge David D. Weinzweig delivered the decision of the
Court, in which Judge Paul J. McMurdie and Chief Judge Kent E. Cattani
joined.

W E I N Z W E I G, Judge:

¶1 This case concerns the placement preferences set forth in the
Indian Child Welfare Act of 1978 (“ICWA”). The Navajo Nation (“Nation”)
appeals the denial of its motion to change physical custody of an Indian
child in foster care, arguing the superior court improperly found good
cause to depart from ICWA’s preferences. For the reasons that follow, we
accept jurisdiction but deny the requested relief.

FACTS AND PROCEDURAL BACKGROUND

¶2 Nelturiah Segay (“Mother”) is the biological parent of B.P.,
born in September 2014. In late-May 2018, Mother was arrested and
charged with domestic violence for punching her boyfriend several times
in the face. B.P. observed the incident. Because there was no alternative
caretaker present for B.P., the police called the Department of Child Safety.

¶3 B.P. was removed from the home and placed in a licensed,
non-Indian foster home. His foster parents were Kristin and Steven. DCS
petitioned for dependency on June 1. A DCS representative called the
Nation and left a voicemail on June 4 because Mother said she was a
member. DCS formally notified the Nation about the dependency
proceedings by certified letter on July 5.

¶4 A Guardian Ad Litem (“GAL”) was appointed in early June.
After a hearing on September 11, the court found B.P. dependent as to
Mother. A representative of the Nation called into the hearing. With a case
plan of family reunification, the Nation preferred that B.P. be placed in the
Phoenix area. But neither the Nation nor Mother identified any ICWA
placements for B.P. The court therefore found good cause to depart from
ICWA placement preferences and approved B.P.’s placement in the non-
Indian foster home of Kristin and Steven.

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¶5 The Nation then assigned a senior social worker, Celeste
Smith, to the case. Ms. Smith actively tried but could not find an ICWA
placement for B.P. DCS had likewise “looked for an ICWA-compliant
placement,” but was “never able to find one.” All the while, B.P. continued
to live in the same foster home with the same foster parents.

¶6 According to several reports from the Court-Appointed
Special Advocate between January 2019 and September 2020, B.P. had
formed a “deep attachment” with his “kind, patient and loving” foster
parents. The CASA Advocate also reported that B.P.’s foster parents were
trying to nurture his Navajo roots by visiting the Navajo reservation,
reading books about Navajo culture, and learning the Navajo language.

Severance and ICWA Placement in Ohio

¶7 In the meantime, family reunification efforts failed, and DCS
orally moved to change the case plan to severance and adoption in July
2019. A pretrial conference was held on February 11, 2020, and the court
heard from the Nation’s Celeste Smith, who “emphasized that at this time
there is good cause to deviate from the placement preferences of the Indian
Child Welfare Act” because Mother “still maintains her parent-child
relationship, there are no Navajo Nation foster homes available, and the
only homes available would be adoptive homes.”

¶8 About two weeks later, the Nation recommended an ICWA,
pre-adoption placement to DCS for the first time. The ICWA placement
was located in Ohio, but the family traveled regularly to Arizona. And
though not immediate blood relatives, B.P. belonged to the same clan as the
Ohio family. The Nation asked DCS to facilitate visits between B.P. and the
Ohio family. Because the placement was out-of-state, however, DCS was
required to conduct a professional evaluation under the Interstate Compact
for the Placement of Children (“ICPC”). See A.R.S. § 8-548. By this time,
B.P. had lived in the same foster home with foster parents Kristin and
Steven for more than 630 days.

The Severance Trial

¶9 The severance trial was held less than four months later, on
June 17. Just weeks before the trial, the Nation intervened in B.P.’s
dependency action, contesting the child’s non-ICWA placement but not the
severance.

¶10 The court terminated Mother’s parental rights and found
good cause for B.P. to remain in his placement. As relevant here, the court

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Decision of the Court

found that B.P. is “very bonded” with his “current placement,” and “there
are no Navajo Nation foster homes available, and the only homes available
would be adoptive homes.” The court observed that Mother “still
maintains her parent-child relationship” and “she does not want the child
moved from his current placement based on that bond.” And the court
cited to the “testimony of the [Nation’s own] qualified expert witness [Ms.
Smith,] emphasiz[ing] that at this time there is good cause to deviate from
the placement preferences of the Indian Child Welfare Act.”

¶11 On September 1, the CASA Advocate voiced concern about
B.P.’s mental health if relocated from his foster parents to the Ohio
placement:

CASA appreciates the interest of the Navajo Nation in its
children and its desire to continue the heritage and culture of
the Nation through [its] children. However, it has been over
two years since [B.P.] came into the care of DCS and his foster
parents. To remove [B.P.] from the only family he has known
since he came into care and to move him to a Navajo military
family currently residing in Ohio who will immediately adopt
him without fostering first, inflicts unacceptable trauma to
this child.

While this may be what the Nation considers to be in the best
interest of the child, CASA believes there are less traumatic
ways in which [B.P.] can retain his Navajo heritage and grow
up to be a confident young man. [A]t the end of the day, [B.P.]
is all that matters.

The Nation Moves to Change Physical Custody

¶12 Two days later, on September 3, the Nation moved the court
to change physical custody of the child from the Arizona foster home to the
Ohio family under ICWA and Arizona’s placement preferences.

¶13 The motion was premature, however, because Ohio’s ICPC
office only approved the placement in October, about five weeks after DCS
sent the ICPC referral. DCS objected on that ground. B.P.’s GAL also
objected, arguing that good cause existed to deviate from ICWA’s
placement preferences, and emphasizing that B.P. would suffer trauma if
uprooted from his Arizona foster home and moved to Ohio. The GAL
pointed to the child’s night terrors, that he had never met the Ohio
placement and had formed a strong bond to his foster parents, and that
Mother wanted B.P. to remain with his current placement. The Foster Care

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Review Board likewise expressed “concern[] about the potential move so
late in the case after [B.P.] has bonded significantly to the foster parents.”

¶14 At the Nation’s request, the court ordered DCS to facilitate
virtual visits between B.P. and the Ohio placement, and simultaneously
ordered an expedited best-interests and bonding assessment of the foster
parents.

¶15 Dr. Mastikian, a licensed psychologist, conducted the best
interests and bonding assessment in October. He interviewed the foster
parents and watched them interact with B.P. through a two-way mirror for
30-45 minutes. After the assessment, Dr. Mastikian concluded that B.P.’s
current foster parents were meeting his “basic and advanced needs,” and
“he has been thriving while in their care.” He also considered the impact
of the Nation’s request to place B.P. in Ohio:

It could be detrimental to the child’s future cognitive,
behavioral, and emotional development if he is hastily
removed from his current placement and relocated to the
home of a family who he has never met (despite them being
from the same tribe and clan). Furthermore, the records
indicate that the residuals of documented past trauma have
made the child uncomfortable with change and anxious when
his routine is disrupted.

¶16 Dr. Mastikian described “the child’s concerning signs of
behavioral and emotional decompensation since contact with the Ohio
family began,” recommended that visits between B.P. and the Ohio
placement be suspended, and suggested that contact with the Ohio
placement “be reconsidered in order to protect the child from undue
distress which could potentially result in harm to the child” if the
concerning behaviors did not abate.

¶17 Only two months into the virtual visits, in December 2020,
DCS filed an emergency motion to suspend them, claiming that B.P.
“reacted poorly” to the video calls, which triggered “alarming” behavior.
According to DCS, the child “object[ed] to the calls,” clung to his foster
parents, “returned to bed-wetting after video visits,” and “made self-
harming gestures such as scratching himself and head banging.”

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Evidentiary Hearing on Motion to Change Physical Custody

¶18 Between January and April 2021, the superior court
conducted a five-day evidentiary hearing on the Nation’s motion to change
physical custody. By this time, B.P. had been in his foster placement for
nearly three years.

¶19 The court heard from several witnesses, including Dr.
Mastikian and Michael Whitworth, a clinical therapist who had worked
with B.P. since January 2020. Dr. Mastikian told the court it was not in B.P.’s
best interest to be moved from his current foster home because he had
formed a “secure and healthy attachment” with the foster parents.
Stressing the importance of B.P.’s heritage, Dr. Mastikian said his opinion
would have been “much different” if the foster parents were not “willing
to keep the child connected.” Mr. Whitworth testified about B.P.’s extreme
reactions to the possibility of leaving the foster parents and his concerning
responses to virtual visits with the Ohio placement. Dr. Mastikian told the
court that B.P. would face serious emotional harm if removed from the
foster parents.

¶20 Celeste Smith and Dr. Priscilla Roth-Wall testified for the
Nation. Ms. Smith testified that good cause was not present to deviate from
ICWA’s placement preferences after the Nation identified the Ohio
placement, and explained the importance of raising B.P. in the Navajo
culture. Dr. Roth-Wall, a clinical child psychologist, was hired a few
months before the hearing and did not interview B.P., the foster parents or
the Ohio placement. Based on Dr. Mastikian’s report, she testified that B.P.
“has as much as possible, as much as he is able, formed an attachment
relationship with these foster parents,” but shows signs of “ambivalent
attachment.”

¶21 The court denied the Nation’s motion on June 23, 2021,
finding good cause to deviate from ICWA’s placement preferences. The
court stressed the evidence and testimony that B.P. would suffer
psychological harm if moved from the foster parents to the Ohio placement:

Here, the Court has been provided with examples of
regression when the child felt insecure. The Court heard
testimony that many of the behaviors, bed wetting, night
tremors and scratching of the arms and face, were observed
when the child had visits with Mother, if visits with Mother
were suspended and video visits with the [Ohio placement].

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Decision of the Court

The Court draws the conclusion that the child regressed when
the child felt his security was threatened.

¶22 Among the factual findings in its lengthy order, the court
found (1) the Nation had been timely notified and kept apprised of the
dependency; (2) the Nation had not found an ICWA-compliant placement
for B.P. until almost two years after he was removed and placed with the
foster parents; (3) during that time, B.P. had developed a loving bond with
the foster parents; (4) the foster parents had tried to nurture B.P.’s
connection to the tribe; (5) the foster parents were prepared “to sign an
agreement as a condition of adoption [that] would require continued
contact” with the Nation; (6) B.P. had a “strong bond” with Mother and she
nurtured his cultural roots; (7) the Nation believed this bond should
continue; and (8) the foster parents would “maintain regular, in person
contact” between B.P., Mother and maternal grandparents “for the
foreseeable future.” The court also concluded that ICWA could not have
been violated until October 2020, when the Ohio placement was approved
by ICPC; and, since then, “all statutes and rules were adhered to.”

¶23 The Nation appeals. We exercise our discretion to treat this
appeal as a petition for special action and do not decide if we have
independent jurisdiction under A.R.S. §§ 8-235(A) and 12-120.01(A)(1). See
Alexandra K. v. Dep’t of Child Safety, 1 CA-JV 19-0081, 2019 WL 5258095, at
*2, ¶11 (Ariz. App. Oct. 17, 2019) (mem. decision).

DISCUSSION

¶24 The Nation contends the superior court erred by finding good
cause to deviate from ICWA’s placement preferences, arguing the court
applied an incorrect burden of proof, mistakenly considered the bond
between B.P. and the foster parents, and improperly considered the
perspective and input of Mother after her parental rights were terminated.
The Nation also makes two evidentiary arguments.

¶25 We review de novo the interpretation and application of
ICWA, Gila River Indian Cmty. v. Dep't of Child Safety, 238 Ariz. 531, 534, ¶
10 (App. 2015), but review a finding of good cause to deviate from ICWA
preferences for an abuse of discretion, Navajo Nation v. Ariz. Dep’t of Econ.
Sec., 230 Ariz. 339, 343, ¶ 14 (App. 2012).

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Indian Child Welfare Act of 1978

¶26 Congress passed the Indian Child Welfare Act of 1978 to
promote the welfare of Indian children and preserve the stability of Indian
tribes in response to “abusive child welfare practices” that separated Indian
children “from their families and tribes through adoption or foster care
placement.” Adoptive Couple v. Baby Girl, 570 U.S. 637, 637 (2013) (quoting
Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 32 (1989)); see also
25 U.S.C. § 1902.

¶27 ICWA hinges on “the fundamental assumption that it is in the
Indian child’s best interest” to protect his or her “relationship to the tribe.”
Holyfield, 490 U.S. at 50 n.24 (quoting Pima Cnty. Juv. Action No. S–903, 130
Ariz. 202, 204 (App. 1981)). To that end, ICWA sets forth a list of preferred
placements for an Indian child: (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). ICWA then presumes that an Indian child’s best interest
is served when so placed.1 To overcome the presumption, the party seeking
to depart from ICWA’s placements must show “good cause.” Navajo
Nation, 230 Ariz. at 345, ¶ 18. “In other words, absent other factors
amounting to good cause to deviate from ICWA preferences, keeping a
Native American child with his or her community and tribe is presumed to
be in the best interests of the child as well as the tribe and community.” Id.
at 344–45, ¶ 17.

¶28 ICWA does not define “good cause,” leaving “state courts with
flexibility in determining the disposition of a placement proceeding
involving an Indian child.” Id. at 345, ¶¶ 19, 21 (quoting Guidelines for
State Courts; Indian Child Custody Proceedings, 44 Fed. Reg. 67,584 (Nov.
26, 1979)). To fill the definitional void, the Bureau of Indian Affairs offers
guidance and five non-exhaustive factors, advising that a finding of good
cause “should be based on one or more” of these factors:

• the request of one or both of the Indian child’s parents if they
attest that they have reviewed the ICWA placement options,

• the request of the child, if the child is of sufficient age and
capacity,

1 Arizona has a parallel state law, which recognizes the same order of
preference. See A.R.S. § 8-815(B).

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• the presence of a sibling attachment that can be maintained only
through a particular placement,

• the extraordinary physical, mental, or emotional needs of the
Indian child, such as specialized treatment services that may be
unavailable in the community where families who meet the
placement preferences live, and

• the unavailability of a suitable placement after a determination by
the court that a diligent search was conducted.

25 C.F.R. § 23.132(c); see also Indian Child Welfare Act Proceedings, 81 Fed.
Reg. 38,777, 38,839 (June 14, 2016).

I. Standard and Burden of Proof
¶29 The Nation first argues the superior court applied an
incorrect, lower standard to find “good cause.” The party that moves to
depart from the Guidelines bears the burden to prove “good cause” by clear
and convincing evidence. Gila River Indian Cmty. at 536, ¶ 19. We discern
no error here. The court correctly identified the clear and convincing
standard in its order, and we presume the court applied the law correctly.
State v. Williams, 220 Ariz. 331, 334, ¶ 9 (App. 2008).

II. Reasonable Evidence
¶30 The Nation next contends the superior court lacked the
evidence to find good cause. We review a finding of good cause to deviate
from ICWA preferences for abuse of discretion. Navajo Nation, 230 Ariz. at
343, ¶ 14. We will uphold the court’s findings unless not supported by
reasonable evidence, and will not substitute our opinion for that of the trial
court. Id.

¶31 The superior court did not err. The court heard expert
testimony that B.P. would suffer emotional harm if separated from the
foster parents he has known for most of his life, jeopardizing his stability
and security. See Alma S. v. Dep’t of Child Safety, 245 Ariz. 146, 150, ¶ 12
(2018) (child’s interest in stability and security “must be the court’s primary
concern” in custody proceedings). The record reveals that B.P. formed a
close bond to his foster parents of three years, whom he called “mom” and
“dad,” and that B.P. would suffer severe emotional distress and regression
if he were to be removed. See Maricopa Cnty. Juv. Action No. A-25525, 136
Ariz. 528, 534 (App. 1983) (child’s removal from placement with whom it
bonded would cause “psychological damage” relevant in finding good

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cause to deviate from ICWA’s adoptive placement preference). B.P. had
lived with the same foster parents for much of his life.

¶32 The record shows that B.P. continued to enjoy a “strong
bond” with Mother. The court also emphasized the foster parents’
commitment to maintaining B.P.’s Navajo roots and their willingness to
facilitate that relationship with Mother and his maternal grandparents. See
Navajo Nation, 230 Ariz. at 349, ¶ 38 (“While the record shows that it would
be easier for [the child] to be exposed comprehensively to Navajo culture
by living with a Navajo family, there is evidence supporting the juvenile
court’s finding that he could still be so exposed through the cooperative
efforts of his relatives and the current placement.”).

¶33 The Nation counters with unpersuasive arguments that
would narrow the best-interests inquiry. The Nation argues the court
should not have considered B.P.’s bond with his foster parents. We
disagree. A child’s best interest invariably controls in all child custody
proceedings, and state courts must consider all factors bearing on that
interest. See Navajo Nation, 230 Ariz. at 345, ¶¶ 18, 24; see also Gila River
Indian Cmty., 238 Ariz. at 536, ¶ 20 (“[G]ood cause is ultimately a matter of
discretion, which is to be exercised in light of myriad factors specific to a
given case.”). Thus, “[w]e have determined that in finding good cause
under ICWA, a court may appropriately consider a child’s bonding and
attachment to a family and any emotional distress the child would
experience if removed.” Navajo Nation, 230 Ariz. at 346, ¶ 25 (collecting
cases).

¶34 The Nation also asserts that the court should not have
considered Mother’s thoughts on placement because her parental rights
had been terminated. But the Nation offers no authority for that argument,
and courts from across the nation have rejected similar arguments. See, e.g.,
Matter of Adoption of F.H., 851 P.2d 1361, 1364–65 (Alaska 1993) (trial court
properly considered natural mother’s request that child remain with non-
Indian adoptive placement, even though natural mother’s parental rights
were terminated; mother had a relationship with the child that would
continue after adoption); In re B.B.A., 224 P.3d 1285, 1288, ¶ 11 (Okla. Civ.
App. 2009) (court properly considered biological parents’ request that child
remain with non-Indian foster placement, even after father relinquished his
parental rights); In re Adoption of B.G.J., 133 P.3d 1, 10 (Kan. 2006) (court
properly considered “adamant” request of Indian child’s birth mother, who

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relinquished her parental rights, “that her child be placed with the
adoptive parents, and not with her extended family or the Tribe”).2

¶35 Moreover, the Nation’s argument is inconsistent with our
primary concern, which is B.P.’s best interest. See A.R.S. § 8-116; see also J-
A-25525, 136 Ariz. at 533-34 (“[I]t must be remembered that it is the child’s
best interests which are of primary concern in adoption proceedings.”).
Although Mother lost her parental rights, she was not ordered to stay away
from the child who loves her and enjoys her company.

III. DCS Did Not Violate ICWA
¶36 The Nation next argues that DCS and the superior court
violated ICWA, but the Nation offers no legal or factual basis for its
position. Even so, the record shows no violation. ICWA required DCS to
provide the Nation with formal notice of the dependency, which it did. See
25 U.S.C. § 1912(a); see also State in Interest of P.F., 405 P.3d 755, 762, ¶ 29
(Utah Ct. App. 2017) (describing “the only requirement [as] provid[ing]
notice to the child’s custodians and tribe”). DCS petitioned for dependency
on June 1. A DCS representative called the Nation and left a voicemail on
June 4 because Mother said she was a member. DCS formally notified the
Nation about the dependency proceedings by certified letter on July 5. The
Nation then agreed that good cause existed to place B.P. with his non-
Indian foster parents until late February 2020—almost 21 months after
removal. And it was not until October 2020, when the Ohio ICPC office
approved the Nation’s preferred placement, that DCS could have placed
B.P. in Ohio. The record does not show that DCS ignored ICWA or the
Nation.

IV. Evidentiary Arguments
¶37 The Nation contends the superior court should have excluded
Dr. Mastikian’s expert testimony under Arizona Rule of Evidence 702. We
review the court’s evidentiary decision for an abuse of discretion and will
not disturb the decision if “supported by any reasonable evidence.”
Lohmeier v. Hammer, 214 Ariz. 57, 61, ¶ 7 (App. 2006) (citation omitted).

¶38 The court did not abuse its discretion. Dr. Mastikian is a
licensed psychologist who met with B.P. and the foster parents to conduct

2 The Nation cites In re C.B.D., 394 P.3d 202, 204 (Mont. 2017), but that
case involved standing for placement decisions after parental rights were
terminated. Id. Mother does not assert legal standing here, and the court
may consider her input as one of several factors in favor of good cause.

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a bonding assessment at the superior court’s direction. Dr. Mastikian had
performed these bonding assessments for several years and he possessed
specialized knowledge about the severe mental distress that might befall
B.P. See State v. Boyston, 231 Ariz. 539, 544, ¶ 14 (2013). And at most, an
expert’s relative inexperience with ICWA would impact the weight of
testimony, not its admissibility. See McMurtry v. Weatherford Hotel, Inc., 231
Ariz. 244, 251, ¶ 16 (App. 2013) (safety expert’s “background and familiarity
with certain building regulations goes to the weight of his testimony, not
its admissibility”).

CONCLUSION

¶39 We accept jurisdiction but deny special action relief.

AMY M. WOOD • Clerk of the Court
FILED: AA

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