Opinion
No. 2 CA-JV 2018-0094
10-10-2018
ZACHARY M., Appellant, v. DEPARTMENT OF CHILD SAFETY, H.M., AND H.-M., Appellees.
COUNSEL Joel Feinman, Pima County Public Defender By David J. Euchner, Assistant Public Defender, Tucson Counsel for Appellant Mark Brnovich, Arizona Attorney General By Laura J. Huff, Assistant Attorney General, Tucson Counsel for Appellee Department of Child Safety
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f); Ariz. R. P. Juv. Ct. 103(G). Appeal from the Superior Court in Pima County
No. JD20160387
The Honorable Alyce L. Pennington, Judge Pro Tempore
AFFIRMED
COUNSEL Joel Feinman, Pima County Public Defender
By David J. Euchner, Assistant Public Defender, Tucson
Counsel for Appellant Mark Brnovich, Arizona Attorney General
By Laura J. Huff, Assistant Attorney General, Tucson
Counsel for Appellee Department of Child Safety
MEMORANDUM DECISION
Judge Brearcliffe authored the decision of the Court, in which Chief Judge Eckerstrom and Judge Vásquez concurred. BREARCLIFFE, Judge:
¶1 Zachary M. appeals from the juvenile court's May 2018 order terminating his parental rights to his three-year-old daughter, "Helen," and his two-year-old daughter, "Hannah," both "Indian child[ren]" within the meaning of the Indian Child Welfare Act, 25 U.S.C. §§ 1901 through 1963 (ICWA). See 25 U.S.C. § 1903(4). Zachary argues the termination fails to comply with ICWA's evidentiary requirements. We affirm the court's ruling.
"Helen" and "Hannah" are pseudonyms.
The juvenile court also terminated the parental rights of the girls' mother, Georgia B., who is an enrolled member of the White Mountain Apache Tribe. She is not a party to this appeal.
Factual and Procedural Background
¶2 In June 2016, the Department of Child Safety (DCS) received a report that nine-month-old Helen had sustained a non-accidental spiral facture on her right femur. Both DCS and law enforcement investigators responded to the hospital. Although Zachary and Georgia B. provided similar explanations for the injury, none of them were "consistent with the injury sustained" or medical findings. In June 2017, both parents were placed on probation after pleading guilty to charges of felony child abuse related to this incident. There was also a history of reported domestic violence between Zachary and Georgia, and Zachary was taken into custody on an active arrest warrant. In addition, one of Zachary's relatives, who was sometimes "heavily intoxicated," was living with the couple due to his own domestic violence altercation, and the couple had allowed him to care for Helen.
¶3 DCS took temporary custody of Helen and filed a dependency petition in which it alleged Zachary had neglected her, and the juvenile court adjudicated her dependent on June 27, 2016. When Hannah was born in September, DCS took her into temporary custody as well, alleging in a new dependency petition that she was also at risk for abuse and neglect. Zachary asked that Hannah's dependency be determined on submitted evidence, and the court adjudicated her a dependent child later that month. Both children were placed with one of Zachary's relatives, which the juvenile court found to be compliant with ICWA placement preferences.
¶4 In November 2016, psychologist Jill Plevell, Ph.D. conducted a psychological evaluation of Zachary. She reported he was a poor historian, as he denied a domestic violence incident witnessed by "numerous" others and had offered different explanations for Helen's injury. According to Dr. Plevell, test results "suggested that he is likely to be easily triggered by stress, be unreasonable when angry, express emotion without restraint, and lack empathy." She found Zachary's condition consistent with "a domestic violence pattern" and diagnoses of "Personal History of Sexual Abuse, Stimulant Use Disorder, in Sustained Remission," and "Alcohol Use Disorder, in Sustained Remission," as well as a "provisional diagnosis" of "Antisocial Personality Disorder." She specifically emphasized her finding with respect to antisocial personality disorder, noting, "Individuals with this disorder tend to be resistant to treatment. If [Zachary] is not successfully treated, risks to the child[ren] are not moderated."
Dr. Plevell appears to have referred to an incident in which Zachary reportedly "got on top of [Georgia], took away her purse, and confronted bystanders who attempted to help her."
¶5 As detailed in the juvenile court's termination order, DCS offered an extensive array of services over the next eighteen months, including supervised visitation, drug testing, substance abuse assessment and treatment, case management, transportation, a psychological evaluation, individual counseling, couples therapy, parent-child relationship assessment and therapy, adult recovery team meetings, child and family team (CFT) meetings, team-decision-making meetings, parenting classes, domestic violence classes, parent coaching, healthy relationship classes, and anger management classes. The court noted that Zachary had completed some of these services, but "[m]any of the[m]" were "closed out due to non-attendance" or Zachary's unwillingness to participate. For example, in November 2017, DCS reported Zachary's random drug tests had been "suspended," as he had failed to participate since May 22, 2017, when he tested positive for THC, and he had been "closed out" of individual counseling in July 2017 after failing to attend multiple visits.
During the course of the dependency, Zachary also tested positive for THC in September 2016 and for methamphetamine in January 2017. He was rarely fully compliant with drug testing protocols within any given month, and missed numerous call-ins and tests before the service was suspended.
¶6 Domestic violence also continued to be an issue throughout the proceeding, and Zachary never completed domestic violence services. At trial, the DCS case manager explained Zachary's apparent ability to benefit from anger management services varied over the course of the long dependency. For example, the case manager observed that Zachary sometimes is "able to step out" and remove himself from a situation when he becomes upset—but "other times he struggles with his anger," as when he would "yell and scream" at the placement at CFT meetings, and DCS staff would "have to kind of calm him down."
¶7 In April 2017, the therapist providing Zachary and Georgia with couples counseling suspended that service "due to ongoing concerns for domestic violence between" the two. According to DCS, the therapist had reported that, after eight visits, the couple did not understand "what domestic violence was" and did not seem to "believe that their behaviors were consistent with domestic violence." Then in May 2017, police were called about a domestic violence incident between Zachary and Georgia. In an application for an order of protection following that incident, Georgia reported Zachary had kicked and hit her and locked her out of the home. The couple completed a parent-child relationship assessment and were scheduled to begin associated therapy in September 2017, but the therapist reported they would require separate therapists for individual work, due to evidence of domestic violence he observed during their first session. Zachary never returned to continue the therapy.
¶8 In October 2017, Georgia reported another instance of domestic violence, and, in November, the juvenile court changed the case plan goal to severance and adoption. DCS filed a motion to terminate Zachary's parental rights on grounds of neglect, A.R.S. § 8-533(B)(2); chronic substance abuse, § 8-533(B)(3); and length of time in care, § 8-533(B)(8)(c). At a contested termination hearing in April 2018, the court heard testimony from both parents, the DCS investigator, the ongoing DCS case manager, Dr. Plevell, and Cora Hinton, an ICWA representative for the White Mountain Apache Tribe who was qualified as an expert ICWA witness. In an under-advisement ruling, the court terminated Zachary's parental rights on all grounds alleged. This appeal followed.
Discussion
¶9 Generally, the juvenile court may terminate a person's parental rights if it finds, by clear and convincing evidence, that at least one statutory ground for termination exists and, by a preponderance of the evidence, that termination is in the best interests of the children. Valerie M. v. Ariz. Dep't of Econ. Sec., 219 Ariz. 331, ¶ 9 (2009). When a termination proceeding pertains to Indian children, ICWA requires two additional findings. Yvonne L. v. Ariz. Dep't of Econ. Sec., 227 Ariz. 415, ¶ 20 (App. 2011). First, the court must find, by clear and convincing evidence, that "active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful." 25 U.S.C. § 1912(d); Yvonne L., 227 Ariz. 415, ¶ 26. Second, the court must make "a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child[ren] by the parent . . . is likely to result in serious emotional or physical damage to the child." 25 U.S.C. § 1912(f).
¶10 We view the evidence in the light most favorable to upholding the juvenile court's order. Manuel M. v. Ariz. Dep't of Econ. Sec., 218 Ariz. 205, ¶ 2 (App. 2008). We will affirm an order terminating parental rights unless we must say as a matter of law that no reasonable person could find those essential elements proven by the applicable evidentiary standard. Denise R. v. Ariz. Dep't of Econ. Sec., 221 Ariz. 92, ¶ 10 (App. 2009).
¶11 On appeal, Zachary does not dispute the juvenile court's findings with respect to state law grounds for termination or its ruling that, as a matter of state law, termination of parental rights is in the children's best interests. Instead, he maintains the court abused its discretion in finding ICWA's requirements were met. He argues the evidence was insufficient to establish either DCS's active efforts to reunify the family or the likelihood that the children would suffer serious emotional or physical damage if returned to Zachary's care.
As Zachary's brief suggests, the juvenile court's order contains minor misstatements with respect to ICWA's requirements. Specifically, the court stated it had found "beyond a reasonable doubt" that DCS made active, albeit ultimately unsuccessful, efforts "to provide remedial and rehabilitative programs designed to prevent the breakup of this Indian family." As noted above, however, the relevant evidentiary standard for this determination is proof by clear and convincing evidence. Yvonne L., 227 Ariz. 415, ¶ 26. Similarly, ICWA requires evidence beyond a reasonable doubt that "continued custody of the child by the parent" would "likely . . . result in serious emotional or physical damage to the child." 25 U.S.C. § 1912(f) (emphasis added). The court's omission of an expression of likelihood, in stating that return of the children "would result" in such harm, was likely inadvertent. Predicting that events will certainly occur in the future, beyond a reasonable doubt, is more than the law requires. In addressing Zachary's argument that the court "abused its discretion in finding that [DCS] complied with the requirements of [ICWA]," we consider the court's order in the context of the evidentiary standards that apply to ICWA findings. See Yvonne L., 227 Ariz. 415, ¶¶ 20, 26.
"Active Efforts"
¶12 Primarily, Zachary contends the juvenile court "abused its discretion in relying on Hinton's testimony that DCS made active efforts toward reunification," asserting her testimony was "devoid of evidentiary support." In challenging Hinton's credibility, Zachary relies heavily on her responses to a series of hypothetical questions posed by Georgia's counsel during cross-examination. For example, counsel asked Hinton, "If one of the barriers in this case is [that Georgia] didn't have a phone[ and] can't communicate, . . . and [DCS ] didn't provide a phone, how does that satisfy active efforts?" Hinton's initial response—to this and similar hypotheticals about transportation ("if [it] is an issue") and housing ("[i]f the biggest barrier is housing")—was that, under such circumstances, she believed DCS would not have satisfied "active efforts" if it failed to provide, respectively, "a phone," "rides or . . . a monthly bus pass," or "housing." But Hinton also stated she was aware of the extensive list of services DCS had provided and agreed that, considering the case as a whole, DCS had made the active efforts required by ICWA.
In making this assertion, Zachary appears also to challenge Hinton's testimony that the children's placement with his relative was ICWA-compliant. See 25 U.S.C. § 1915(a) (listing first placement preference as "a member of the child's extended family"). Although questions related to a child's placement may be relevant to a court's determination of a child's best interests—a determination not challenged here—placement is otherwise subject to specific objections and independent appeal throughout the dependency process. See In re Yavapai Cty. Juv. Action No. J-8545, 140 Ariz. 10, 14 (1984). It therefore is not properly before us in this proceeding, and we will not consider it.
¶13 Moreover, as suggested by some of Hinton's testimony, some of the hypotheticals posed were based on flawed premises. For example, Zachary has failed to identify any portion of the record suggesting the absence of bus passes or a cell phone for Georgia posed a significant barrier to reunification. In their testimony, the parents barely mentioned transportation. The most that was said was Georgia's statement that she sometimes missed visits because "I don't really have a ride. I don't have a car"—facetiously suggesting to DCS counsel, "Unless you can let me use your car to get to my visits." But, as Hinton noted, when this was raised, DCS moved the visits to the couple's apartment to ameliorate the issue. Hinton also noted that DCS successfully communicated with the couple by email after Zachary intentionally broke Georgia's cell phone during a bout of domestic violence in October 2017.
¶14 The DCS case manager acknowledged that "housing issues . . . have been constantly in flux throughout the case," with Zachary remaining in a residence for as long as nine months "through services provided to him from Old Pueblo [Services]." He explained he had worked with caseworkers from that agency and La Frontera, the primary behavioral service provider, to ensure payment for housing located during the dependency; had "referred [the parents] to obtain temporary housing through shelters if needed"; and had "asked La Frontera to assist them in locating apartments that would work with them." He said DCS, the service providers, and the parents were "all working together as a team to solve these issues," noting that DCS "itself does not have [housing] programs but . . . utilizes community resources to help the parents obtain that stability." He explained it simply "would not work" for him to "call[] apartment complexes" on the parents' behalf, because he would just be told to "send them in to put in an application."
¶15 We appreciate that Hinton's opinion testimony was somewhat confusing with respect to whether DCS made "active efforts" on the specific issue of assisting Zachary in obtaining stable housing. Were that the only evidence available to the juvenile court, we might question whether it satisfied the standard of clear and convincing evidence. See Yvonne L., 227 Ariz. 415, ¶ 26.
¶16 But Hinton agreed she was influenced by all the services DCS had provided in ultimately concluding it had made the active efforts required by ICWA. Moreover, the juvenile court was not limited by Hinton's opinion on the issue of whether active efforts were made, and it could have reached that conclusion based solely on other evidence presented by DCS; expert testimony was not required. Yvonne L., 227 Ariz. 415, ¶ 32 (ICWA requires expert testimony in support of "possible harm" to children, but "does not mandate use of expert testimony to support the court's finding of 'active efforts'").
¶17 We conclude clear and convincing evidence supported the juvenile court's determinations that DCS made diligent, active efforts "to provide remedial services and rehabilitative programs designed to prevent the breakup" of this family, but that those efforts "have proved unsuccessful." 25 U.S.C. § 1912(d). The court has detailed the basis for these determinations in its ruling. We do not reweigh the evidence on review. Yvonne L., 227 Ariz. 415, ¶ 27.
Likelihood of Harm from Zachary's Continued Custody
¶18 Zachary further argues the juvenile court abused its discretion in concluding Zachary's continued custody of the children would "likely . . . result in serious emotional or physical damage to the child." 25 U.S.C. § 1912(f). We agree with Zachary that expert testimony to support this conclusion must be "forward looking"; that is, it must "relat[e] to the likelihood of future harm to the child." Steven H. v. Ariz. Dep't of Econ. Sec., 218 Ariz. 566, ¶ 19 (2008). But ICWA "does not require that the necessary expert testimony recite the specific language of § 1912(e)," or that it "be expressed in a particular way." Id. ¶ 22. Nor does ICWA "require that the experts' testimony provide the sole basis for the court's conclusion; ICWA simply requires that the testimony support that conclusion." Id. ¶ 20 (quoting E.A. v. State Div. of Family and Youth Servs., 46 P.3d 986, 992 (Alaska 2002)). We cannot agree with Zachary that the evidence was insufficient to support the court's determination of a likelihood of future harm.
¶19 Here, when asked whether the parents' continued custody of the children was likely to result in serious emotional or physical damage—mirroring the statutory inquiry—Hinton responded, "Yes. Due to the family's unstable living conditions and due to the inconsistent services that [were] provided to the family." When asked to clarify what she meant by inconsistent services, she responded that she meant "[t]he parents' participation," rather than the services offered by DCS. In addition, Dr. Plevell testified that her provisional diagnosis of Zachary's antisocial personality disorder would probably become a "firm diagnosis" "if he continue[d] to display the same kinds of problems despite intervention." And of course, the juvenile court was entitled to consider Dr. Plevell's earlier opinion that, in the absence of successful treatment, the children's risk of harm is "not moderated." As the court observed, Zachary and Georgia "have continued to engage in domestic violence." And Zachary even acknowledged at trial, "I stopped going to [domestic violence class] because I have a personality where I don't think I really need that class."
Zachary testified he did not believe he had "any issues with domestic violence," even though he had been reported to the police for domestic violence "[p]lenty of times." When asked if he had ever perpetrated domestic violence against Georgia, he responded, "No, not necessarily. Looking out for somebody is not really domestic violence"; he then explained he was trying to bring more structure into her life. --------
Disposition
¶20 The juvenile court has set forth its extensive factual findings and its legal reasoning in a fashion that has permitted this court and will allow any court in the future to understand its conclusions. We need not repeat that analysis here. See Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, ¶ 16 (App. 2002) (citing State v. Whipple, 177 Ariz. 272, 274 (App. 1993)). Furthermore, the juvenile court's findings and analysis are fully supported by the record. We therefore adopt the court's findings of fact and approve its conclusion that termination is warranted under state and federal law. The ruling terminating Zachary's parental rights is affirmed.