Opinion
No. 1 CA-JV 16-0233
12-06-2016
RAYANDA K., Appellant, v. DEPARTMENT OF CHILD SAFETY, G.K., G.K., K.K., J.K., Appellees.
COUNSEL Maricopa County Public Advocate's Office, Mesa By David C. Lieb Counsel for Appellant Arizona Attorney General's Office, Phoenix By Amber E. Pershon Counsel for Appellee Department of Child Safety
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. JD30360
The Honorable John R. Ditsworth, Judge
AFFIRMED
COUNSEL Maricopa County Public Advocate's Office, Mesa
By David C. Lieb
Counsel for Appellant Arizona Attorney General's Office, Phoenix
By Amber E. Pershon
Counsel for Appellee Department of Child Safety
MEMORANDUM DECISION
Judge Lawrence F. Winthrop delivered the decision of the Court, in which Presiding Judge Kent E. Cattani and Judge Samuel E. Vederman joined. WINTHROP, Judge:
The Honorable Samuel E. Vederman, Judge of the Arizona Superior Court, has been authorized to sit in this matter pursuant to Article 6, Section 3, of the Arizona Constitution.
¶1 Rayanda K. ("Mother") appeals the juvenile court's order terminating her parental rights to G.K., G.K., K.K., and J.K. (collectively, "the children"). Mother contends the court failed to make the required findings of fact for either severance ground, and that the court failed to make the required findings of fact and conclusions of law regarding the children's best interests. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
We view the facts and the reasonable inferences therefrom in the light most favorable to sustaining the juvenile court's determinations. Jordan C. v. Ariz. Dep't of Econ. Sec., 223 Ariz. 86, 93, ¶ 18, 219 P.3d 296, 303 (App. 2009).
¶2 Mother is the biological mother of the children, who were born between April 2005 and November 2012.
¶3 In April 2015, the Department of Child Safety ("DCS") took the children into temporary physical custody after Mother and Ryan Christopher Murray ("Father") tested positive for morphine and police found drug paraphernalia within reach of the children. At the time, both parents were unemployed and homeless.
Father is the biological father of three of the four children; although service was perfected by publication, no other party appeared at the hearing or asserted any parental rights. Father did not appeal the juvenile court's decision severing his parental rights and is not a party to this appeal.
¶4 DCS subsequently initiated dependency proceedings, alleging the children were dependent as to Mother due to substance abuse and mental health concerns. The dependency petition alleged that (1) Mother reported a long history of substance abuse and left drug paraphernalia within reach of the children; (2) Mother had failed to provide the children with the basic necessities of life; and (3) Mother reported a history of post-partum depression and feelings of depression. Mother denied the allegations, but waived her right to contest them, submitting the issue to the court.
¶5 In November 2015, the children were adjudicated dependent as to Mother. The court approved a case plan of reunification for all of the children, with a concurrent case plan of severance and adoption as to J.K. To support the goal of family reunification, the court ordered that Mother receive parent aide services, a psychological evaluation, transportation assistance, visitation, substance abuse treatment, and substance abuse testing.
Neither Mother nor her attorney objected to these services, suggested they were inadequate, or requested any additional services at that time.
¶6 Over the next year, the children continued in out-of-home care. Mother failed to participate in the services designed to address her substance abuse and did not visit the children between March and May 2016. Additionally, Mother missed more than twenty-six scheduled urinalysis tests.
¶7 In May 2016, DCS moved to terminate Mother's parental rights based on substance abuse and her failure to remedy the circumstances that caused the children to remain in out-of-home care. DCS set forth factual allegations, describing in detail that, although Mother had been offered various services, she was unable to demonstrate sobriety and she did not consistently participate in the services offered. Accordingly, pursuant to Arizona Revised Statutes ("A.R.S.") section 8-533(B)(3) and (8)(a) (Supp. 2015), DCS alleged that: (1) Mother was unable to discharge parental responsibilities because of a history of chronic substance abuse and there were reasonable grounds to believe that the condition would continue for a prolonged indeterminate period, and (2) Mother substantially neglected or willfully refused to remedy the circumstances that caused the children to remain in out-of-home care for more than nine months, due to her substance abuse. Similarly, DCS also identified the factual circumstances as to why termination of Mother's parental rights was in the best interests of the children.
We cite the current version of all statutes if no revisions material to our decision have occurred since the relevant dates.
¶8 Mother did not appear at the initial severance hearing in June 2016. Finding no good cause for Mother's failure to appear, the court proceeded to hear evidence on the severance motion. The DCS case manager testified that, in her opinion, Mother was unable to discharge her parental responsibilities because of a history of chronic substance abuse. The case manager further testified that Mother admitted using heroin and tested positive for morphine in April 2015, and had failed to demonstrate sobriety since that time, testing positive for methamphetamine, heroin, codeine, and morphine in May 2016, and missing more than twenty-six random urinalysis tests.
Mother does not contest the court's finding that her failure to appear was without good cause.
¶9 At the conclusion of the hearing, the court concluded that DCS had established the statutory bases for termination, and that severance of Mother's parental rights was in the children's best interests. Accordingly, the court terminated Mother's parental rights as to all four children.
¶10 Mother timely appealed, and we have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, A.R.S. § 8-235(A) (2014), and Rule 103(A) of the Arizona Rules of Procedure for the Juvenile Court.
ANALYSIS
¶11 Before severing parental rights, the court must find by clear and convincing evidence at least one statutory ground for severance, and by a preponderance of the evidence that severance is in the best interests of the children. See A.R.S. § 8-533(B); Jennifer G. v. Ariz. Dep't of Econ. Sec., 211 Ariz. 450, 453, ¶ 12, 123 P.3d 186, 189 (App. 2005).
¶12 Mother argues that the juvenile court's order terminating her parental rights is invalid because the court failed to make the required findings on the record or in the final written order. Mother also argues that the court failed to make the required findings of fact and conclusions of law to support a best interests finding.
DCS argues that Mother waived her challenge to the sufficiency of the juvenile court's findings by not raising it below. In our discretion, however, we choose to address Mother's argument on its merits. See Adams v. Valley Nat'l Bank of Ariz., 139 Ariz. 340, 342, 678 P.2d 525, 527 (App. 1984) (recognizing that courts prefer to decide cases on the merits rather than to dismiss summarily on procedural grounds). --------
¶13 A juvenile court's order must include findings of fact that support severance. A.R.S. § 8-538(A); Ariz. R.P. Juv. Ct. 66(F)(2)(a). The court's best interest determination must explain "how the [children] would benefit from a severance or be harmed by the continuation of the relationship." Raymond F. v. Ariz. Dep't of Econ. Sec., 224 Ariz. 373, 379, ¶ 30, 231 P.3d 377, 383 (App. 2010) (citation omitted). "The primary purpose for requiring a court to make express findings of fact and conclusions of law is to allow the appellate court to determine exactly which issues were decided and whether the lower court correctly applied the law." Ruben M. v. Ariz. Dep't of Econ. Sec., 230 Ariz. 236, 240, ¶ 24, 282 P.3d 437, 441 (App. 2012).
¶14 Here, at the severance hearing, the juvenile court stated on the record that it was, in essence, adopting and incorporating the allegations in the DCS petition, and that a "[b]asis for termination exists as to both parents pursuant to statute, that is chronic substance abuse and nine months['] time in care." In its final minute entry, the court stated that "[a] basis for termination exists pursuant to A.R.S. § 8-533 . . . substance abuse and 9 months['] time in care."
¶15 Regarding the best interest determination, the court similarly adopted and incorporated the allegations in the DCS petition, and stated on the record, "I find by preponderance of the evidence termination is in the best interests of the children." The final minute entry states, "THE COURT FINDS that the petitioner has proven by a preponderance of the evidence that termination of parental rights is in the children's best interest[s]."
¶16 The transcript of the severance hearing and the juvenile court's final minute entry indicate that the court did not separately state findings of fact for the severance grounds or the best interest determination. "[F]indings of fact and conclusions of law should be sufficiently specific to enable the appellate court to provide effective review." Id. at 241, ¶ 25, 282 P.3d at 442. The court is required to "recite the findings on which the order is based," and "make specific findings of fact." A.R.S. § 8-538(A); accord Ariz. R.P. Juv. Ct. 66(F)(2)(a). Here, no separate findings of fact are available for review. This is not optimal, and we remind the juvenile court of its obligation to affirmatively identify and formally state those facts that support both the statutory ground(s) for severance and the best interest determination. DCS urges us, in the alternative, to conduct a fundamental error review, arguing that the record more than supports the court's summary findings and conclusions of law. See Audra T. v. Ariz. Dep't of Econ. Sec., 194 Ariz. 376, 377, ¶ 2, 982 P.2d 1290, 1291 (App. 1998) (stating that appellate courts will not disturb the juvenile court's severance order unless there is no reasonable evidence to support its findings). Our alternatives, accordingly, are either to remand for the juvenile court to formally state its findings and to issue an amended order—which will only lead to another appeal, and further delay—or to acknowledge that, on this record, there is no fundamental error and affirm. We choose the latter. The evidence presented to the court was consistent with the allegations in the DCS petition and, as such, adequately supports the court's conclusions and order. Indeed, on appeal Mother does not contest the adequacy of the evidence on either prong. As such, we interpret the court's verbal and written order as adopting and incorporating the allegations in the DCS petition, which are more than supported in the record.
CONCLUSION
¶17 For the foregoing reasons, we affirm the severance of Mother's parental rights.