In Re Dependency of M.K.

── In Re Dependency of M.K. ── Court: Court of Appeals of Arizona Date: May 01, 2026 Category: General IN THE ARIZONA COURT OF APPEALS DIVISION TWO IN RE DEPENDENCY OF M.K. Nos. 2 CA-JV 2025-0038, 2 CA-JV 2025-0039, and 2 CA-JV 2025-0040 (Consolidated) Filed May 1, 2026 Appeal from the Superior Court in Cochise County No. JD202300032 The Honorable John F. Kelliher Jr., Judge REVERSED AND REMANDED COUNSEL Kristin K. Mayes, Arizona Attorney General By Dawn R. Williams, Assistant Attorney General, Tucson Counsel for Appellant Department of Child Safety Jacobson, Magnuson, Anderson & Halloran P.C., Saint Paul, Minnesota By Joy P. Parker and Joseph Halloran Counsel for Intervenor/Appellant White Earth Indian Child Welfare Kewenvoyouma Law PLLC, Tempe By Verrin T. Kewenvoyouma and Lorenzo E. Gudino, Pro Hac Vice Counsel for Intervenor/Appellant Melissa K. Charles N. Kendall Jr., Cochise County Public Defender By Brian J. Molitor, Deputy Public Defender, Sierra Vista Counsel for Appellee Minor M.K. Nuccio & Shirly P.C., Tucson By Salvatore Nuccio Counsel for Intervenors/Appellees Ryann D. and Denisse A.H.  IN RE DEPENDENCY OF M.K. Opinion of the Court Rothstein Donatelli LLP, Tempe By April E. Olson and Wouter Zwart and Native American Rights Fund, Anchorage, Alaska By Sydney Tarzwell, Pro Hac Vice and Indian Law Clinic, Michigan State University College of Law, East Lansing, Michigan By Kathryn Fort, Pro Hac Vice Counsel for Amici Curiae Fort McDowell Yavapai Nation, Gila River Indian Community, Navajo Nation, Pascua Yaqui Tribe, Salt River Pima-Maricopa Indian Community, and Tohono O’odham Nation OPINION Presiding Judge Vásquez authored the opinion of the Court, in which Chief Judge Staring and Judge Brearcliffe concurred. V Á S Q U E Z, Presiding Judge: ¶1 In this dependency proceeding, the Department of Child Safety (DCS), along with intervenors the White Earth Nation and Melissa K., (collectively, “appellants”) challenge the juvenile court’s May 2025 order finding good cause to deviate from the placement preferences of the Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C. §§ 1901–1963, and allowing M.K. to remain with his current non-relative, non-Indian placement. For the following reasons, we reverse the court’s order and remand the case with directions to grant the motion for change of physical custody. Factual and Procedural Background ¶2 M.K. was born to Raven I. and Caleb K. in February 2023. He was born substance exposed, and, shortly after their discharge from the hospital, Raven relapsed and left M.K. in the care of his paternal step-grandmother. Caleb was also using drugs at the time. In April 2023, DCS filed a dependency petition, alleging that M.K. was dependent as to 2  IN RE DEPENDENCY OF M.K. Opinion of the Court both parents due, in part, to their substance abuse and inability to provide M.K. with basic necessities. M.K. was eligible for enrollment with the White Earth Nation. ¶3 At the initial dependency hearing in early May 2023, the juvenile court found that ICWA applied, and, after Raven did not object, the court found good cause to deviate from the ICWA placement preferences. Raven expressed her desire to enter a no-contest plea to the allegations in the dependency petition, and the court accepted her plea. However, the court granted DCS’s request not to adjudicate M.K. dependent until a qualified expert witness (QEW) was available to testify, as required by ICWA. Days later, DCS provided notice to the White Earth Nation and the Bureau of Indian Affairs (BIA) of the proceeding and the next schedul