Opinion
1 CA-JV 21-0282
03-08-2022
KANISHA S., JIM B., Appellants, v. DEPARTMENT OF CHILD SAFETY, Z.B., Z.B., Appellees.
Clark Jones Esq., Mesa Counsel for Appellant/Father Czop Law Firm, PLLC, Higley By Steven Czop Counsel for Appellant/Mother Arizona Attorney General's Office, Phoenix By Jennifer R. Blum Counsel for Appellee
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County No. JD36024 The Honorable Sara Agne, Judge The Honorable Julie Ann Mata, Judge
Clark Jones Esq., Mesa
Counsel for Appellant/Father
Czop Law Firm, PLLC, Higley
By Steven Czop
Counsel for Appellant/Mother
Arizona Attorney General's Office, Phoenix
By Jennifer R. Blum
Counsel for Appellee
Presiding Judge Paul J. McMurdie delivered the Court's decision, in which Vice Chief Judge David B. Gass and Judge Angela K. Paton joined.
MEMORANDUM DECISION
MCMURDIE, JUDGE:
¶1 Parents Kanisha S. ("Mother") and Jim B. ("Father") (collectively "Parents") appeal from the juvenile court's order terminating their parental rights to their children Quentin (age 3) and Marcus (age 4). Parents argue the court erred by terminating their rights under the recurrent removal ground, A.R.S. § 8-533(B)(11)-a termination ground that was not alleged before trial- and under the nine-months' time-in-care ground, A.R.S. § 8-533(B)(8)(a). Parents claim there was insufficient evidence that they substantially neglected or wilfully refused to remedy the circumstances that caused the children to be placed out of the home. We conclude the court erred by terminating under a ground that was not alleged, making several erroneous findings, and incorrectly applying the standard for termination under A.R.S. § 8-533(B)(8)(a). Because we cannot determine the errors were harmless, we vacate and remand.
We use pseudonyms to protect the children's identities.
FACTS AND PROCEDURAL BACKGROUND
¶2 Mother and Father have a history of heroin use. Mother used heroin while pregnant with Quentin and, during her pregnancy, sought medication-assisted treatment and was prescribed methadone. Quentin was born substance exposed and treated for opioid withdrawal in June 2018. The children were removed from Parents' custody. The court adjudicated the children dependent, finding Parents' drug use had adversely affected the children, and it would conflict with the children's welfare to return them to Parents' care, despite Parents' demonstrated sobriety at the time of the hearing. The court noted that Parents minimized their past drug use and denied the need for treatment.
¶3 In DCS's first case report, authored in July 2018, DCS recommended Parents participate in six services: (1) hair-follicle testing, (2) urinalysis, (3) substance-abuse treatment, (4) supervised visitation, (5) parenting classes, and (6) training with a parent aide. In November 2018, along with the initial six services, DCS referred Parents for psychological evaluations.
¶4 Parents fully participated in some services but inconsistently engaged in others. DCS requested that Parents participate in urinalysis to identify recent drug use and hair-follicle testing to detect more historical use. Mother's hair tested positive for methamphetamine, opioids, and heroin in June. Later, Father's hair tested positive for methamphetamine. In July, DCS referred Parents for substance-abuse treatment. During their new-patient intake, Parents stated they were only using methadone. It was recommended that Parents receive standard outpatient services after intake.
¶5 Between July 2018 and February 2019, Mother participated in urinalysis regularly, missing 16 of 70 tests. In October 2018, she completed standard-outpatient treatment. Mother then enrolled in a group-therapy program focused on parenting in recovery but did not attend. She participated in a psychological evaluation in November 2018 and was diagnosed with antisocial personality disorder, opioid disorder, cannabis disorder, and child neglect. The psychologist recommended she continue with her methadone treatment and receive individual counseling to assess and address identified issues. In January 2019, DCS recommended Mother self-refer for individual counseling.
A DCS case manager testified that she believed Mother's diagnosis of child neglect concerned Mother neglecting her children, but Mother's diagnosis related to the neglect she suffered as a child.
¶6 Between July 2018 and February 2019, Parents attended every visit offered with the children and fully participated in parent-aide services. In November 2018, Parents moved to have the children returned. See Rule 59 Ariz.RJuv.Pro. After an evidentiary hearing, the court found that Parents received exemplary reports from the parent aides and progressed in their methadone treatment. The court also found that Father, who had been inconsistent in testing and outpatient treatment, had reengaged in the treatment and had recently taken a hair-follicle test. Despite their less-than-perfect engagement in services, the court found that Parents had proven by a preponderance of the evidence that the children's return would not create a substantial risk of harm to their physical, mental, or emotional health or safety and ordered them returned to Parents' care.
We note Father completed another intake for standard outpatient treatment on January 17, 2019, but according to updated records that DCS did not offer into evidence at the time, Father failed to attend the later four sessions and was not engaged in the program by the February 22 hearing date.
¶7 DCS reported that Mother's and Father's parenting capacities remained diminished in several aspects when the children were returned but stopped offering parent-aide services. DCS instead began offering family reunification services. The family reunification team considered Parents to have successfully completed the service in August 2019. Parents continued to engage in methadone treatment and, in March 2019, underwent intake for individual counseling at a behavioral health clinic. But Mother attended only two individual counseling sessions before being discharged from the service for nonattendance. Father attended one individual counseling session and was similarly discharged. Parents ceased participating in urinalysis shortly after the children were returned to their care, testing twice in May before being discharged from the service in July for nonattendance.
¶8 In December 2019, DCS moved to remove the children from Parents' custody after receiving reports that Parents were neglecting the children. DCS alleged that then-two-year-old Marcus had been discovered walking down the street in just a diaper. Parents were also reported to have left the children home alone and with inappropriate caregivers. DCS alleged that Mother had driven Marcus without a car seat and had left him and another child alone in the car in the early morning hours while she shopped for groceries. The court granted the motion, and the dependency continued with the children in out-of-home placements.
¶9 After the children were removed in December 2019, DCS recommended that Parents participate in substance-abuse testing, substance-abuse treatment, and supervised visitation. DCS also recommended Mother participate in individual counseling and Father obtain a psychological evaluation.
¶10 DCS referred Parents for substance-abuse treatment in January 2020. But the provider did not recommend that Parents participate in outpatient treatment after intake when Parents claimed that their current substance use was limited to prescribed methadone. A DCS case manager assigned to Parents' case testified that the recommendation was based on Parents' failure to disclose past use of illegal substances. But DCS had provided documentation of Parents' previous poly-substance abuse, and Parents disclosed past use of heroin. When oral swabs from the intake later tested positive for THC, Parents were recommended for outpatient treatment. But the recommendations were withdrawn when Parents informed the provider that they were registered to use medical marijuana. The November 2020 and February 2021 DCS case reports state that Parents were not recommended for substance-abuse treatment.
¶11 Mother attended an intake appointment for individual counseling and substance-abuse treatment on April 15, 2020. She completed a substance-abuse group therapy program in February 2021. DCS's final case report stated that Mother completed individual counseling through the same provider in February 2021.
¶12 Parents missed several visits in December 2019 and January 2020 but attended each visit between March and December 2020. A parent aide sometimes supervised visitation. Mother testified that a new parent aide was assigned to their case in September or October 2019. She claimed the new parent aide often canceled sessions with short notice and was not an effective instructor. Mother claimed the parent aide would give Parents learning material before discussing unrelated matters with Parents for the rest of the sessions. Mother eventually became frustrated and reached out to the parent aide's supervisor and discovered that the supervisor was unaware that the parent aide had missed sessions. Parents requested a new parent aide, but their request was denied. DCS's final case report stated that "Parents became irritated with the parent aide and refused to attend skill sessions." In January, visits began being supervised by another provider, and Parents soon resumed attending the offered visits.
¶13 Mother provided a hair follicle that was negative for the substances tested in November 2019. She did not participate in urinalysis testing between December 2019 and March 2020. A DCS case manager testified that Mother complied with testing from March 2020 until at least January 2021, when that case manager left the position. Mother did not test between March 2021 and late May 2021. She submitted a hair follicle for analysis on May 27 that tested positive for THC only and testified that she resumed testing before the May 28 trial date. Although urinalysis records were not submitted for the time between the May 28 and August 23 trial dates, counsel for DCS remarked during the closing argument that "[i]t's probable that Mother is not using drugs at this point based on her participation in UAs."
¶14 In November 2019, Father provided a hair follicle that was negative for the substances tested. He failed to participate in urinalysis testing between December 2019 and March 2020. Father participated in urinalysis between April and July 2020, missing only one test. His tests were positive for methadone and THC. Between March 2020 and February 2021, Father participated in 79 of 98 urinalysis tests. The DCS case manager testified that Father stopped participating in urinalysis in March 2021. Mother testified that Father participated in only two urinalysis tests between March and May. Father submitted a hair follicle for analysis on July 10, 2021, which tested positive only for THC.
¶15 In July 2020, after Father's psychological evaluation, DCS recommended obtaining individual counseling and a psychiatric evaluation. Father began participating in individual counseling in December 2020 and attended 19 sessions by the final trial day. Father did not obtain a psychiatric assessment.
¶16 In April 2020, DCS moved to terminate Mother and Father's parental rights to Quentin and Marcus under the six- and nine-months' time-in-care grounds, A.R.S. §§ 8-533(B)(8)(b) and 8-533(B)(8)(a). A contested termination hearing commenced on December 1, 2020. The hearing continued for three days in March and one day in May before concluding in August 2021. The State offered testimony from the case managers assigned to the dependency before resting on March 25.
The children were over three years old when the juvenile court issued its ruling, precluding termination under the six-months' time-in-care ground. See A.R.S. § 8-533(B)(8)(b).
¶17 After the state rested, the children's guardian ad litem moved to amend the petition to allege termination under the fifteen-months' time-in-care ground, A.R.S. § 8-533(B)(8)(c). Parents objected to the motion, arguing that the amendment would deny them due process. The court denied the motion, recognizing Parents did not have a chance to cross-examine the State's witnesses on the new ground and received inadequate notice.
¶18 The court issued a ruling terminating Mother and Father's parental rights. The court's minute entry incorrectly stated that DCS proceeded under A.R.S. § 8-533(B)(11), the recurrent removal ground, along with the nine-months' time-in-care ground. The court found that DCS had proven both grounds by clear and convincing evidence.
The court also terminated the parental rights of John Doe, a fictitious party, incorrectly finding that Father's paternity had not been established. But the court had dismissed the petition against John Doe after DCS asserted Father's paternity had been established and requested that John Doe be dismissed.
¶19 Following termination, Parents appealed. We have jurisdiction under A.R.S. §§ 8-235(A) and 12-120.21(A)(1).
DISCUSSION
¶20 Parents argue the court erred by (1) terminating Parents' rights under a ground never alleged in DCS's petition, (2) finding Parents substantially neglected or wilfully refused to remedy the circumstances causing the children to be placed out of home, and (3) finding termination was in the children's best interests.
Because we vacate on other grounds, we do not consider whether the court erred by finding termination was in the children's best interests.
¶21 We will affirm the superior court's termination order "absent an abuse of discretion or unless the court's findings of fact were clearly erroneous." E.R. v. DCS, 237 Ariz. 56, 58, ¶ 9 (App. 2015).
¶22 DCS concedes that the superior court erred by terminating the parent-child relationship based on the recurrent removal ground, which was not alleged before the trial, but argues that the court correctly terminated Mother and Father's parental rights under the nine-months' time-in-care ground.
¶23 Under A.R.S. § 8-533(B)(8)(a), the superior court may terminate a parent-child relationship if the State has made a diligent effort to provide appropriate reunification services, the child has been in an out-of-home placement for a cumulative total period of nine months or longer, and the parent has substantially neglected or wilfully refused to remedy the circumstances that caused the child to be placed out of the home. "[P]arents who make appreciable, good faith efforts to comply with [services] will not be found to have substantially neglected to remedy the circumstances that caused the out-of-home placement, even if they cannot completely overcome their difficulties." Marina P. v. ADES, 214 Ariz. 326, 331, ¶ 30 (App. 2007), as corrected (Apr. 26, 2007) (quoting Maricopa County Juv. Action No. JS-501568, 177 Ariz. 571, 576 (App. 1994)). We have explained that efforts, not outcomes, are the court's focus in determining whether parents have substantially neglected or wilfully refused to remedy their circumstances:
In terminations resulting from the amount of time that a child has been in court-supervised care outside of the child's home, section 8-533(B)(8)(a) provides the shortest period-nine months-in which termination may occur. To achieve this expedited termination, the moving party must establish that the parent has "substantially neglected or willfully refused" to cure the circumstances that had caused the child to remain in a court-supervised placement out of the parent's care. Thus, the test focuses on the level of the parent's effort to cure the circumstances rather than the parent's success in actually doing so.Marina P., 214 Ariz. at 329, ¶ 20.
¶24 There is no simple formula for determining whether parents have substantially neglected or wilfully refused to remedy their circumstances. We have explained that
[b]ecause the statute creates a negative standard (substantial neglect), it is difficult to define the level of effort that would exempt a parent from severance. Semantically, substantial compliance is not the opposite of substantial neglect. The opposite of neglect is care, attention, or heed. The dictionary defines substantial as "considerable in . . . amount." American Heritage Dictionary 1791 (3d ed. 1992). The opposite of this is insubstantial, trivial, or [de minimis]. Thus, compliance under subsection (B)(6)(a) sufficient to avoid severance requires, at a minimum, something more than trivial or [de minimis] efforts at remediation.JS-501568, 177 Ariz. at 576, n.1.
¶25 Under A.R.S. § 8-538, "[e]very order of the court terminating the parent-child relationship . . . shall be in writing and shall recite the findings on which the order is based." And the court's findings must be sufficiently specific to allow the reviewing court to determine whether the trial court correctly applied the law. Ruben M. v. ADES, 230 Ariz. 236, 241, ¶ 25 (App. 2012).
¶26 In concluding that Parents had substantially neglected or wilfully refused to remedy their circumstances, the court made several unsupported findings. The court found:
Both Mother and Father are unwilling to participate in an in-home safety plan with an appropriate responsible adult. Mother and Father still believe the allegations alleged during both removals are unfounded. Given the allegations on ongoing substance abuse, leaving the children unsupervised, and making unsafe impulsive parenting decisions like driving with the children in the car unrestrained, the Court finds both Mother and Father have substantially neglected or willfully refused to participate in necessary reunification services offered by DCS. Father has a new criminal case pending[]. Father has yet to complete the psychiatric evaluation. Neither parent is consistently drug testing.
The Court finds both parents initially engaged in some services. The children were returned to [Parents'] care over DCS objection and then the parents regressed into poor decision making that prompted re-removal. The parents then began minimally engaging but chose to disengage in February 2021. While they clearly love their children, and their children love them, it is not enough to thwart relapse and disengagement long-term. This pattern rises to the level of substantial neglect and willful refusal. It appears they know what to do to have the children returned but are unwilling and unable to sustain the efforts required to keep the children safe long-term.
¶27 The court's finding that Parents were unwilling to participate in an in-home safety plan appears to be based on language in a DCS case report first drafted in January 2020. That report stated
[Parents] are not willing for an in-home safety plan with an appropriate responsible adult as they believe the DCS allegations are unfounded and DCS involvement is no longer warranted among their family. They do not have appropriate responsible adults that would pass a DCS and DPS check. If they were to identify a responsible adult, the responsible adult must provide 24/7 supervision of the family to ensure that [the children] are properly supervised, not left unattended physically and their immediate needs are met on a consistent basis.
This language was included without change in the case reports that followed in March, July, and November 2020, and February 2021. But the case manager who drafted the reports testified that DCS could not institute such a plan because no appropriate responsible adult was willing to serve in that capacity.
¶28 The court's finding that Parents "began minimally engaging but chose to disengage in February 2021" is either incorrect or incomplete. The conclusion does not specify which service Parents ceased performing at that time, but it is clear from the record that Parents did continue to participate in some services after February 2021, including visitation, Father's doctorate-level individual counseling, and Mother's narcotics-anonymous meetings and methadone treatment.
¶29 In addition, in another section of the minute entry, the court found "Father has not submitted any urinalysis testing since the children were removed in December 2019," however, DCS reported that Father participated in 79 of 98 urinalysis tests between March 2020 and February 2021. The court's only finding about the services provided by the family reunification team in April 2019 was that DCS "arranged for a Family Reunification Team to work with the family to ensure a successful reunification by providing services in the home during the transition," but that "Mother and Father did not participate." This finding is, at best, incomplete.
¶30 DCS reported that although Parents' participation was inconsistent, they completed the service according to the reunification team. DCS's October 2019 report stated that "[Parents] did show minimal engagement with their family reunification team, yet presented ongoing concerns of missing appointments and not meeting with the team in their physical home. [Parents] were successfully closed out of services on 08/15/19. [Parents] denied after care services through FRT." The report then states, "Overall, [DCS] acknowledges [Parents'] personal progress with employment, housing and reunifying with their children, yet [DCS's] concerns have yet to be alleviated given their lack of comprehensive engagement throughout the dependency."
¶31 There is no reported opinion stating the standard to apply when an appellate court determines a superior court termination order is based on multiple findings, and some are erroneous. We have, however, addressed the issue in an unpublished memorandum decision. See Ellesse J. v. DCS, No. 1 CA-JV 17-0182, 2017 WL 6376362, at *6, ¶¶ 26-30 (Ariz. App. Dec. 14, 2017) (mem. decision). In Ellesse, we applied the same standard that reviewing courts apply in the criminal sentencing context when deciding whether to vacate a sentence by the superior court when the court has exercised discretion based on multiple factors, including some unsupported or improper. Id. In that context, the reviewing court affirms only where the record shows the superior court would have reached the same result without considering the improper factors. State v. Ojeda, 159 Ariz. 560, 562 (1989). If we applied this standard, we would vacate the order based on the court's erroneous findings.
¶32 The court made several supported findings of Parents' unsatisfactory efforts - including that Parents participated inconsistently in urinalysis and Father failed to obtain a psychiatric evaluation-but these findings are overshadowed by the court's erroneous findings that Parents refused to participate in an in-home safety plan and disengaged in all services after February 2021 and that Father stopped participating in urinalysis in December 2019. In this case, it is not clear that relying solely on findings supported by the record, the superior court would have concluded that Parents substantially neglected or wilfully refused to remedy the circumstances causing the children to be placed out of the home.
¶33 But we need not apply an uncertain standard to vacate based on the court's erroneous findings alone because the court also erred by incorrectly applying the standard under A.R.S. § 8-533(B)(8)(a). The court improperly focused on Parents' progress rather than efforts toward remedying the circumstances that caused the children to be placed out of the home. Although the court made some supported findings about Parents' efforts, the court ultimately incorrectly applied the standard, finding "Given the allegations on ongoing substance abuse, leaving the children unsupervised, and making unsafe impulsive parenting decisions like driving with the children in the car unrestrained, the Court finds both Mother and Father have substantially neglected or willfully refused to participate in necessary reunification services offered by DCS." Thus, the court's focus on Parent's success rather than "on the level of the parent's effort to cure the circumstances" was error. Marina P., 214 Ariz. at 329, ¶ 20.
¶34 The court erred by terminating under a ground not alleged in DCS's petition, making several erroneous findings, and incorrectly applying the legal standard to terminate Parents' rights under A.R.S. § 8-533(B)(8)(a). We, therefore, vacate the order and remand for a new severance trial.
CONCLUSION
¶35 We reverse and remand.