Opinion
No. 1 CA-JV 13-0203
01-30-2014
JAMES H., Appellant, v. ARIZONA DEPARTMENT OF ECONOMIC SECURITY, A.H., R.H., T.H., Appellees.
COUNSEL John L. Popilek, P.C., Scottsdale By John L. Popilek Counsel for Appellant Arizona Attorney General's Office, Phoenix By Nicholas Chapman-Hushek Counsel for Appellee Arizona Department of Economic Security
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
Appeal from the Superior Court in Maricopa County
No. JD 6342
The Honorable Cari A. Harrison, Judge
AFFIRMED
COUNSEL
John L. Popilek, P.C., Scottsdale
By John L. Popilek
Counsel for Appellant
Arizona Attorney General's Office, Phoenix
By Nicholas Chapman-Hushek
Counsel for Appellee Arizona Department of Economic Security
MEMORANDUM DECISION
Judge Lawrence F. Winthrop delivered the decision of the Court, in which Presiding Judge Patricia A. Orozco and Judge Kenton D. Jones joined. WINTHROP, Judge:
¶1 James H. ("Father") appeals from the juvenile court's order extending the temporary suspension of visitation with A.H., R.H., and T.H. ("the Children"). Specifically, Father argues (1) the temporary suspension of visitation without an evidentiary hearing violates his constitutional right to due process and (2) the length of time attributable to the visitation suspension should be "tolled" for purposes of the time out-of-home provision of Arizona Revised Statutes ("A.R.S.") section 8-533(B)(8) (West 2014). For the following reasons, we affirm.
We cite the current Westlaw versions of the applicable statutes and court rules unless changes material to our analysis have since occurred.
FACTS AND PROCEDURAL HISTORY
¶2 In November 2012, Child Protective Services ("CPS") removed the Children from the custody of Father and Starra B. ("Mother") following allegations of abuse. That same month the Arizona Department of Economic Security ("ADES") commenced a dependency proceeding against Father and Mother.
Mother's case is not subject to this appeal.
¶3 The next month, CPS held the first visitation between the Children, Father, and Mother. According to the CPS report of the visit, the Children "looked terrified" at the prospect of being in the same room as Father and Mother. One child refused to enter the visitation room, while the other two children alternated between leaving the room and hiding behind the CPS employees. According to the CPS report, "[t]here was little interaction between the parents and children" during the visitation.
¶4 Given the adverse reaction of the Children to the visit, CPS consulted with a psychologist, who recommended that CPS "temporarily discontinue visitation until the children's therapist can successfully assist them to feel safer in their [parents'] presence." ADES then filed an emergency motion to suspend visitation between the Children and Father and Mother. Although Mother filed a response to this emergency motion, Father did not. The juvenile court then granted the motion, temporarily suspending visitation. Following a February 2013 hearing, the juvenile court found the Children dependent as to Father and Mother.
¶5 At a June 2013 court proceeding, after six months without a visit, Father made an oral motion for visitation rights. The juvenile court then scheduled an evidentiary hearing on the matter for July 10, 2013, and directed the parents to file written motions seeking reinstatement of visitation. Prior to that hearing, Mother filed a written motion for visitation with the juvenile court. Mother's motion was filed only on her own behalf and contained factual information and arguments specific to Mother and her current status. However, because Father failed to file a written motion at the direction of the juvenile court, ADES sought a continuance of the evidentiary hearing. The juvenile court granted that continuance.
Appellant has not included a transcript from this June 4 hearing in the record on appeal.
There is no record of Father having filed that written motion, nor does he contend he did so.
¶6 At the July 10, 2013 proceeding, the juvenile court explained that it was converting the scheduled evidentiary hearing into a status conference because of Father's failure to file a written motion on the matter. Father orally urged the court to lift the order suspending visitation. Father also argued that, for purposes of the termination statutes, the juvenile court should "toll" the months that Father could not have contact with the Children pursuant to the visitation suspension.
¶7 After the juvenile court affirmed its previous order temporarily suspending visitation, Father filed this appeal. We have appellate jurisdiction pursuant to the Arizona Constitution Article 6, Section 9 and A.R.S. §§ 8-235, 12-120.21(A)(1), and 12-2101(A)(1).
DISCUSSION
¶8 Father argues on appeal that the failure of the juvenile court to hold an evidentiary hearing on the temporary suspension of visitation is a violation of his due process rights. Father also contends that he is entitled to "tolling" with regard to A.R.S. § 8-533(B)(8) for the period of time the suspension is in place.
I. Due Process and the Evidentiary Hearing
¶9 We review alleged constitutional violations de novo. See State v. McGill, 213 Ariz. 147, 159, ¶ 53, 140 P.3d 930, 942 (2006). Parents have a fundamental right to associate with their children. Maricopa County Juv. Action No. JD-5312, 178 Ariz. 372, 873 P.2d 710 (App. 1994). This right does not disappear because the parent has lost temporary custody of his child to the state. See Maricopa County Juv. Action No. JS-500274, 167 Ariz. 1, 4, 804 P.2d 730, 733 (1990). This right is not absolute, however. See Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, 248, ¶ 12, 995 P.2d 682, 684 (2000). A court may limit this fundamental right "under certain circumstances, so long as the parents whose rights are to be [limited] are provided with 'fundamentally fair procedures' that satisfy due process requirements." Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 24, 110 P.3d 1013, 1018 (2005) (quoting Santosky v. Kramer, 455 U.S. 745, 754 (1982)). Among the requirements of due process are notice and the opportunity to be heard. See Huck v. Haralambie, 122 Ariz. 63, 65, 593 P.2d 286, 288 (1979).
¶10 In this case, the juvenile court imposed a temporary suspension of Father's right to associate with the Children. "The individual's right not to be deprived of a fundamental constitutional grant without due process of law extends to temporary deprivations as well as to those which are permanent." Pima County Juv. Action No. J-46735, 112 Ariz. 170, 171, 540 P.2d 642, 643 (1975).
¶11 Father argues that the juvenile court has violated his right to associate with the Children by failing to hold an evidentiary hearing regarding the temporary suspension of visitation. After Father's oral motion at the June hearing, the juvenile court scheduled an evidentiary hearing for July 10. Prior to that proceeding, ADES sought a continuance because Father failed to follow the directive of the juvenile court to file a written motion. Our own review of the record does not reveal a written motion on behalf of Father either seeking reinstatement of visitation or seeking an evidentiary hearing. By contrast, Mother filed such a written motion prior to the scheduled hearing. On this record, without prejudice to Father's ability to comply with the court's directive and to file a written motion seeking an end to the temporary suspension of visitation, we affirm the decision of the trial court to continue the evidentiary hearing, and we affirm its order to temporarily suspend visitation pending such hearing.
Father also contends in his reply brief that ADES "has deprived Father of his basic due process rights" by withholding the Children from visitation. However, we will not discuss the merits of this argument because it was raised for the first time in the reply brief. See ARCAP 13 ("The appellant may file a reply brief, but it shall be confined strictly to rebuttal of points urged in the appellee's brief.").
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II. Lack of Ripeness for "Tolling"
¶12 Father also maintains on appeal that the juvenile court should "toll" the length of time attributable to the visitation suspension from being used against him for purposes of the time out-of-home provision of A.R.S. § 8-533(B)(8). We need not reach the merits of Father's argument. ADES has not filed a motion for termination of parental rights; accordingly, this issue is not ripe for determination by the juvenile court, let alone this court on appeal. See Winkle v. City of Tucson, 190 Ariz. 413, 415 949 P.2d 502, 504 (1997).
CONCLUSION
¶13 For the foregoing reasons, we affirm the decision of the juvenile court.