Opinion
1 CA-JV 21-0309
05-03-2022
BURRIS B., Appellant, v. DEPARTMENT OF CHILD SAFETY, A.O., Appellees.
Maricopa County Public Advocate's Office, Mesa By Suzanne Sanchez Counsel for Appellant Arizona Attorney General's Office, Tucson By Autumn Spritzer Counsel for Appellee Department of Child Safety
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County No. JD533226 The Honorable Jeffrey A. Rueter, Judge
Maricopa County Public Advocate's Office, Mesa By Suzanne Sanchez Counsel for Appellant
Arizona Attorney General's Office, Tucson By Autumn Spritzer Counsel for Appellee Department of Child Safety
Judge Samuel A. Thumma delivered the decision of the Court, in which Presiding Judge Maria Elena Cruz and Judge Michael J. Brown joined.
MEMORANDUM DECISION
THUMMA, Judge
¶1 Burris B. appeals the superior court's order terminating his parental rights to A.O. on abandonment and length-of-felony sentence grounds. Because he has shown no error, the order is affirmed.
FACTS AND PROCEDURAL HISTORY
¶2 Burris and Tamera Y. are the biological parents of A.O., born in February 2020. Because Burris and Tamera are enrolled members of the Navajo Nation, the Indian Child Welfare Act (ICWA) applies. See 25 U.S.C. §§ 1902, 1903 (2022).
Absent material revisions after the relevant dates, statutes and rules cited refer to the current version unless otherwise indicated.
¶3 Burris has been in prison all of A.O.'s life for a felony aggravated assault conviction. His expected release date is in the first half of 2022. Within days of her birth, the Department of Child Safety (DCS) took A.O. into care given Burris' incarceration and concerns that Tamera was unable or unwilling to provide proper care due to substance abuse, mental illness and an inability to provide for A.O.'s basic needs. A.O. was placed with a maternal relative. Tamera was offered various services, including parent-aide services, a psychological consultation, a substance abuse assessment, substance abuse treatment, a team decision-making meeting, transportation, urinalysis testing and visitation.
¶4 In June 2020, Tamera stopped participating in services and her whereabouts were unknown for most of these proceedings. Tamera later tried to relinquish her parental rights to A.O. and to consent to termination, but she did not satisfy procedural requirements. The court terminated Tamera's parental rights when she failed to attend the severance adjudication, and she is not a party to this appeal.
¶5 While in prison, Burris took general classes and joined the waitlist for a parenting class. Testing established Burris' paternity in late 2020. The court found A.O. dependent as to Burris in January 2021 and adopted a severance and adoption case plan. Burris repeatedly asked that his sister be considered as a placement, suggesting the possibility of guardianship. Although DCS conducted a home study for Burris' sister, A.O. has been placed with a maternal relative for the two years this matter has been pending.
¶6 DCS' severance motion alleged abandonment and length of felony sentence. See Ariz. Rev. Stat. (A.R.S.) §§ 8-533(B)(1), (4). At a September 2021 severance adjudication, the court received exhibits, heard testimony (including ICWA testimony) and closing argument and took the matter under advisement. In a 19-page ruling, the court granted the motion on both grounds alleged, also finding that severance was in A.O.'s best interests. The court also found A.O.'s placement was ICWA compliant, that DCS made active efforts to reunify the Indian family but had been unsuccessful, that DCS had shown beyond a reasonable doubt that Burris having custody of A.O. would result in serious emotional and physical damage to the child and that Burris had "no relationship with the child and will not be in a position to parent the child for a considerable period of time."
¶7 This court has jurisdiction over Burris' timely appeal pursuant to Article 6, Section 9, of the Arizona Constitution, A.R.S. §§ 8-235(A), 12-120.21(A), 12-2101(A) and Ariz. R.P. Juv. Ct. 103-104.
DISCUSSION
¶8 A superior court properly severs parental rights when it finds clear and convincing evidence of a statutory ground for termination under A.R.S. § 8-533(B) and a preponderance of the evidence proves termination is in the child's best interests. Valerie M. v. Ariz. Dep't of Econ. Sec, 219 Ariz. 331, 334 ¶ 9 (2009). Where ICWA applies, two additional findings are required: (1) "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); accord Ariz. R.P. Juv. Ct. 66(C), and (2) evidence beyond a reasonable doubt that the parent's continued custody of the child is likely to result in serious emotional or physical damage to the child, 25 U.S.C. § 1912(f).
I. The Court Did Not Abuse Its Discretion When It Found DCS Made Active Efforts to Avoid the Breakup of the Indian Family.
¶9 Burris first argues that active efforts were not made by DCS to provide him with remedial services and rehabilitative programs. Although not defined by statute, where applicable, this requirement necessitates "proof that active efforts have been made to preserve the parent-child relationship and those efforts have proved unsuccessful." S.S. v. Stephanie H., 241 Ariz. 419, 425 ¶ 21 (App. 2017) (citation omitted).
¶10 As applied, Burris has been incarcerated during all of A.O.'s life and has never had a relationship with the child. He has never met A.O., never requested visits, never spoke to the DCS case worker, and apart from sending the toddler several letters, he has failed to show any meaningful effort at creating a relationship with the child. "[W]hen an Indian parent abandons an Indian child prior to birth and that child has never been in the Indian parent's legal or physical custody, there is no 'relationship' that would be 'discontinued]' - and no 'effective entity' that would be 'end[ed]' - by the termination of the Indian parent's rights." Adoptive Couple v. Baby Girl, 570 U.S. 637, 651 (2013). Because Burris had no relationship with A.O., active efforts were not required. Id. at 641 (holding 25 U.S.C. § 1912(d) "active efforts" requirement "is inapplicable when . . . the parent abandoned the Indian child before birth and never had custody of the child").
¶11 Burris argues that Adoptive Couple is distinguishable because he has never affirmatively expressed that he does not want to be his child's parent. Burris, however, does not substantively challenge the abandonment ground the court found DCS had proven. Accordingly, although he may have never affirmatively stated he does not want to be involved in the child's life, he has abandoned A.O. nonetheless.
¶12 Burris further argues that "when circumstances not of his choosing preclude a parent from being the custodial parent, such parent retains the right to active efforts." It is true that, "[w]hat constitutes 'active efforts' will vary, depending on the circumstances, the asserted grounds for severance and available resources." Stephanie H., 241 Ariz. at 425 ¶ 21. Burris' incarceration during the entirety of this case limited the possible range of active efforts that could be provided here. DCS provided Burris paternity testing, completed a requested home study for his sister and offered services to Tamera to try to keep the Indian family together.
¶13 To the extent that ICWA focuses on active efforts to preserve the Indian family, Adoptive Couple, 570 U.S. at 643, Burris has not shown the superior court erred in finding the services provided met that requirement. Tamera was offered various services, including parent-aide services, a psychological consultation, a substance abuse assessment, substance abuse treatment, a team decision making meeting, transportation, urinalysis testing and visitation.
¶14 To the extent that ICWA focuses on active efforts to preserve the relationship between Burris and A.O., Stephanie H., 241 Ariz. at 425 ¶ 21, Burris does not suggest additional specific services DCS could have provided or how any other services would have changed the outcome of this case. And as the superior court correctly noted, an incarcerated parent has an ongoing duty to fully assert his or her rights at every opportunity to "establish and strengthen the emotional bonds" between the parent and the child. See Kenneth B. v. Tina B., 226 Ariz. 33, 37 ¶ 21 (App. 2010). Burris has not done so here. Thus, Burris has not shown that the court erred in finding DCS satisfied the active efforts requirement.
II. The Court Did Not Abuse Its Discretion When It Found Termination Was in A.O.'s Best Interests.
¶15 DCS was required to prove that severance was in A.O.'s best interests. Alma S. v. Dep't of Child Safety, 245 Ariz. 146, 149-50 ¶ 8 (2018). "Termination is in the child's best interest if either: (1) the child will benefit from severance; or (2) the child will be harmed if severance is denied." Id. at 150 ¶ 13. In challenging the best interests finding, Burris argues that A.O.'s placement with Tamera's "distant relative" instead of his sister violates the purpose of ICWA to preserve the familial relationship. Burris cites no legal authority for that proposition. Nor does he make any meritorious challenge to the superior court's finding that A.O.'s placement was ICWA compliant. Moreover, the best interests analysis assesses the termination of parental rights, not a child's placement. See Alma S., 245 Ariz. at 149-50 ¶ 8. Burris has shown no error in the best interests finding.
CONCLUSION
¶16 The order terminating Burris' parental rights to A.O. is affirmed.