Opinion
No. 2 CA-JV 2017-0198
05-08-2018
ALEXANDER T., Appellant, v. DEPARTMENT OF CHILD SAFETY AND K.T., Appellees.
COUNSEL Peter G. Schmerl P.C., Tucson By Peter G. Schmerl Counsel for Appellant Mark Brnovich, Arizona Attorney General By Cathleen E. Fuller, Assistant Attorney General, Tucson Counsel for Appellee Department of Child Safety Pima County Office of Children's Counsel, Tucson By Sybil Clarke Counsel for Minor
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NOT FOR PUBLICATION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. JD20160711
The Honorable Deborah Pratte, Judge Pro Tempore
AFFIRMED
COUNSEL Peter G. Schmerl P.C., Tucson
By Peter G. Schmerl
Counsel for Appellant Mark Brnovich, Arizona Attorney General
By Cathleen E. Fuller, Assistant Attorney General, Tucson
Counsel for Appellee Department of Child Safety Pima County Office of Children's Counsel, Tucson
By Sybil Clarke
Counsel for Minor
MEMORANDUM DECISION
Chief Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Staring and Judge Brearcliffe concurred. ECKERSTROM, Chief Judge:
¶1 Alexander T., father of K.T., born in June 2016, appeals from an order entered following a November 2017 dependency review hearing, challenging the juvenile court's finding that the Department of Child Safety (DCS) had made reasonable efforts to provide him with reunification services during his incarceration. We affirm.
¶2 DCS filed a dependency petition as to Alexander and as to K.T.'s mother, Shakira E., in October 2016, based on the allegation that the parents had neglected the child by exposing her to domestic violence and possible substance abuse. Although K.T. had been removed from the home, she was placed with Shakira. K.T. was adjudicated dependent as to Alexander in November 2016, after he entered a plea of no contest to the allegations in the petition. The court ordered DCS to provide the reunification services outlined in the case plan.
¶3 Over the next year, DCS provided Alexander with a variety of services, including healthy-relationships classes, individual therapy, domestic-violence classes, and a parent-child relationship assessment. His compliance with the case plan and participation in services was inconsistent. After dependency review hearings in February, May, and August 2017, the juvenile court found DCS had made reasonable efforts to provide the family with reunification services.
¶4 On October 23, 2017, Alexander was arrested for armed robbery and was held in the Pima County jail. At the dependency review hearing on November 16, he conceded his compliance with services had not been consistent before he was incarcerated and asked DCS to "assist with providing services to him while incarcerated." The parties and the juvenile court discussed what was available to Alexander while he was incarcerated, including the possibility of arranging an online program for him. DCS urged Alexander to explore what services could be arranged internally through the jail, explaining that, although previously it had provided parents with a packet of materials for a self-help parenting program called "Love and Logic," it no longer did so because of copyright issues and because it felt parents needed in-person classes. Alexander's counsel then offered to look into the matter further but objected to the court's finding that Alexander was not compliant with the case plan because there were no services being provided. He added that DCS was not making reasonable efforts "if [it is] providing no services to him, and . . . asking him to do it on his own."
¶5 At the end of the hearing, the juvenile court found the child's dependency continued to exist, and found Alexander was minimally compliant with the case plan. The court emphasized that the dependency was at a critical point because K.T. had been out of the home for over a year and Alexander had a small window of time within which to reunify. The court added that his incarceration had "restricted" what he could participate in to comply. The court urged Alexander to sign up for classes while in jail that he thought might "be relevant" and added that his counsel and DCS would communicate with one another if there were any other programs that could be implemented during his incarceration. The court then found DCS had made "reasonable efforts in this matter," specifying the services it had provided up until Alexander's recent incarceration. This appeal followed.
¶6 Citing In re Yavapai County Juvenile Action No. J-8545, 140 Ariz. 10, 15 (1984), DCS first contends this court lacks jurisdiction of this appeal because a finding of reasonable efforts is not an appealable order for purposes of A.R.S. § 8-235(A) since it does not conclusively define the rights or duties of a party to the dependency action. In that case, our supreme court determined that "orders declaring children dependent and orders reaffirming findings that children are dependent are final orders subject to appeal by aggrieved parties." Id. at 14.
¶7 Whether a juvenile court's reasonable-efforts finding is appealable depends on the context in which the finding was made and the practical effect of the order on the parent's rights. See Jewel C. v. Dep't of Child Safety, 784 Ariz. Adv. Rep. 32, ¶ 3 (Ct. App. Feb. 5, 2018). Here, that finding was made in the context of a dependency review hearing and the resulting order was a final, appealable order as to an aggrieved party such as a parent. See In re Maricopa Cty. Juv. Action No. JD-6236, 178 Ariz. 449, 451 (App. 1994) ("[O]rders arising from periodic review of dependency placement arrangements are appealable."). The finding that K.T.'s dependent status continued to exist was intertwined with questions regarding Alexander's compliance with the case plan, and whether DCS was fulfilling its obligation to provide reasonable and appropriate reunification services.
¶8 The Alabama Court of Appeals decision in O.Y.P. v. Lauderdale County Department of Human Resources, 148 So. 3d 1081 (Ala. Civ. App. 2014), which DCS cites in its answering brief, is distinguishable. The appeal in that case was taken from an order entered after a permanency hearing, id. at 1082, which, as this court found in Rita J. v. Arizona Department of Economic Security, 196 Ariz. 512, ¶ 9 (App. 2000), is not an appealable order. Similarly, in In re Interest of Kenneth B., ___ N.W.2d ___, 25 Neb. App. 578, 586 (2018), the court dismissed an appeal from an order entered after a permanency hearing that changed the permanency objective from family reunification to guardianship without eliminating the father's ability to reunify. We conclude the reasonable-efforts finding here was part of a dependency review hearing and we have jurisdiction of this appeal.
¶9 Alexander argues the juvenile court's reasonable-efforts finding is not supported by the record because DCS was not providing him services while he was incarcerated, from October 12 to the date of the review hearing on November 16. He asserts that DCS was requiring him to "fend for himself" by placing the burden on him to "find[] services that may or may not be available to him in the Pima County Jail." Alexander concedes that the services DCS previously had been providing may not have been available to him while he was incarcerated, but insists DCS "has a duty to assess the situation and provide the services it can," citing the Alaska Court of Appeals decision in A.A. v. State, Department of Family & Youth Services, 982 P.2d 256 (Alaska 1999). Alexander asserts DCS "must do more than passively stand by[ and] excuse itself because it does not have a copyright to use self-study materials" it previously had provided incarcerated parents, compelling him to provide his own services. We will not disturb a juvenile court's order if there is reasonable evidence in the record to support the court's factual findings. See Denise R. v. Ariz. Dep't of Econ. Sec., 221 Ariz. 92, ¶ 10 (App. 2009).
¶10 Because a parent's incarceration necessarily limits the kinds of services DCS can provide a parent, it is axiomatic that the juvenile court may consider the fact that the parent is incarcerated in determining whether services are reasonable. Cf. Christy C. v. Ariz. Dep't of Econ. Sec., 214 Ariz. 445, ¶ 17 (App. 2007) ("incarceration will as a practical matter typically preclude all but minimal visits" between parent and child). Nor is DCS "required to provide every conceivable service or to ensure that a parent participates in each service it offers." In re Maricopa Cty. Juv. Action No. JS-501904, 180 Ariz. 348, 353 (App. 1994).
¶11 We agree with DCS that rather than support Alexander's argument, the Alaska court's decision in A.A. supports DCS's position and the juvenile court's ruling. There, the court recognized that "the practical circumstances surrounding a parent's incarceration—the difficulty of providing resources to inmates generally, the unavailability of specific resources, and the length of incarceration—may have a direct bearing on what active remedial efforts are possible." A.A., 982 P.2d at 261. Here, the parties and the court explored services that might exist in the jail system and the issues with other kinds of services. DCS as well as the court encouraged Alexander to avail himself of any services he could obtain while in jail.
¶12 Moreover, we agree with DCS that Alexander's claim is, in some respects, premature. At the time of the review hearing, he had only been in jail for about four weeks. This gave DCS little time to learn about his incarceration and determine whether and what kind of services could be provided during his incarceration. As we stated, the transcript reflects DCS and Alexander's counsel were exploring that very thing. Whether they were able to arrange such services remained to be seen at that point in time. The reasonable-efforts finding was based on the services DCS had provided during the months that preceded his arrest. There is ample evidence in the record supporting that finding. We reject Alexander's suggestion that the short period of time between his incarceration and the review hearing within which services could not be provided somehow negates the courts reasonable-efforts finding.
DCS has informed this court that Alexander was released from jail in January 2018, and suggests this claim is moot. But the reasonableness of DCS's services during the period of his incarceration at the time of the dependency review hearing is not rendered moot by his subsequent release. --------
¶13 The juvenile court's order is affirmed.