Opinion
No. 1 CA-JV 18-0174
01-10-2019
JARVIS D., JERIALE T., Appellants, v. DEPARTMENT OF CHILD SAFETY, J.D., G.D., THE NAVAJO NATION, Appellees.
COUNSEL Harris & Winger PC, Flagstaff By Chad Joshua Winger Counsel for Appellants Arizona Attorney General's Office, Tucson By Autumn Spritzer 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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 Coconino County
No. JD201600046
The Honorable Margaret A. McCullough, Judge
AFFIRMED
COUNSEL Harris & Winger PC, Flagstaff
By Chad Joshua Winger
Counsel for Appellants Arizona Attorney General's Office, Tucson
By Autumn Spritzer
Counsel for Appellee Department of Child Safety
MEMORANDUM DECISION
Judge Kent E. Cattani delivered the decision of the Court, in which Presiding Judge Jennifer B. Campbell and Judge Paul J. McMurdie joined. CATTANI, Judge:
¶1 Jarvis D. ("Jarvis") and Jeriale T. ("Jeriale") (collectively, "Fathers") appeal from the superior court's termination of their parental rights as to their respective children J.D. and G.D. (collectively, "Children"). For reasons that follow, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 Jarvis and Tamara D. ("Mother") are the biological parents of J.D., born in July 2008. Jeriale and Mother are the biological parents of G.D., born in August 2016. Both Children are members of the Navajo Nation.
Mother's rights as to both J.D. and G.D. were previously terminated, and she is not a party to this appeal.
A. Jarvis and J.D.
¶3 Jarvis was incarcerated prior to J.D.'s birth and was in and out of prison until July 2014. The record is unclear regarding Jarvis's contacts with J.D. prior to 2014, But Jarvis saw J.D. occasionally in 2014 and lived with her for a few months that year until August. In 2015, Jarvis was convicted and incarcerated again and has not lived with J.D. since. Jarvis's scheduled release date is April 2019.
¶4 Following his incarceration, Jarvis had no contact with J.D. until 2017, when he began communicating with J.D. as a result of J.D.'s involvement with the Department of Child Safety ("DCS"). Jarvis's communication with J.D. consisted of nine letters sent over the course of seven months; Jarvis indicated that he did not write more often because he waited for J.D. to write back.
¶5 During his incarceration, Jarvis completed several self-improvement programs, including one focused on parenting communication skills. He also completed a seven-month drug and alcohol education program and attended Alcoholics Anonymous meetings every week.
¶6 In August 2017, DCS moved to sever Jarvis's parental rights, alleging abandonment, neglect, and length of felony sentence. See Ariz. Rev. Stat. ("A.R.S.") § 8-533(B)(1), (2), (4). After conducting an evidentiary hearing, the superior court severed Jarvis's parental rights, finding all three statutory grounds and that severance would be in J.D.'s best interests.
B. Jeriale and G.D.
¶7 After her birth in August 2016, G.D. lived with both Jeriale and Mother. In November 2016, Jeriale and Mother were homeless and moving from hotel to hotel daily. The family was staying at a hotel in Flagstaff when Mother was arrested for a domestic violence incident. Mother assaulted another woman for reportedly engaging in sexual acts with Jeriale in the hotel room; three-month-old G.D. was present in the room during the underlying acts and the physical altercation that followed. Police reported that the hotel room was dirty, Jeriale appeared intoxicated, and G.D. was coughing and sneezing. Jeriale had not taken G.D. to the doctor and was not aware of her past medical history; Mother later told DCS that G.D. was behind on her immunizations. DCS also observed that Jeriale did not provide proper neck support when holding G.D. Jeriale also appeared to be impaired and admitted to "smoking trees" when questioned about any drug or alcohol usage.
¶8 After the November 2016 domestic violence incident, DCS determined that (1) Jeriale was unable to provide for G.D., (2) he failed to understand her vulnerability as an infant, and (3) G.D. was in danger of future domestic violence and the possibility of homelessness. G.D. was then placed with a foster family, and DCS recommended substance abuse services for both parents. Jeriale failed to set up visitations with G.D.'s foster family and delayed scheduling drug testing. He later tested positive for marijuana and did not complete the ongoing required drug tests.
¶9 With the help of DCS, Jeriale visited G.D. for three weeks after she was removed while Mother was in jail. Jeriale then left Flagstaff with Mother and ceased contact with G.D. with the exception of leaving a message with someone he could not remember. He subsequently was in jail in Maricopa County beginning in April 2017 for a period of roughly eight months after "running amuck" in Phoenix with Mother. He admitted that he did not reach out to DCS before being arrested and he did not make any requests for services while in Phoenix. Once he was in jail, he received letters from DCS regarding future contact with G.D. In November 2017, Jeriale received a sentence of 21 months. He re-established contact with G.D. with the help of DCS, and he is set to be released in July 2019. While in prison, Jeriale completed a parenting class, other self-improvement courses and Alcoholics Anonymous, and signed up to take the GED.
¶10 DCS nevertheless moved to sever Jeriale's parental rights, alleging abandonment, neglect and failure to protect from abuse, chronic substance abuse, and six-months' time in care. See A.R.S. § 8-533(B)(1), (2), (3), (8)(b). After an evidentiary hearing at which Jeriale's case was consolidated with Jarvis's case, the superior court severed Jeriale's rights, finding all alleged statutory grounds except abuse, and that severance would be in G.D.'s best interests.
¶11 Both Fathers timely appealed, and we have jurisdiction under A.R.S. § 8-235(A).
DISCUSSION
I. Indian Child Welfare Act.
¶12 Both Fathers raise several issues regarding DCS's alleged failure to comply with requirements under the Indian Child Welfare Act ("ICWA"), 25 U.S.C. §§ 1901 to 1963, which applies when an Indian child is the subject of severance proceedings. See Steven H. v. Ariz. Dep't of Econ. Sec., 218 Ariz. 566, 568, ¶ 1 (2008). The purpose of ICWA is to protect the integrity of Indian tribes through the implementation of federal standards for removal of Indian children. See id. at 570, ¶ 12.
¶13 Under ICWA, a party seeking to sever parental rights involving an Indian child must first prove 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). ICWA further requires a determination, based in part on a qualified expert's testimony and found beyond a reasonable doubt, "that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child." Id. at § 1912(f).
¶14 Both Fathers argue that (1) no qualified expert, as required under ICWA, testified as to serious emotional or physical harm, and (2) DCS did not show that it made active efforts to prevent the breakup of the Indian family or that the breakup of the Indian family was necessary to protect the child.
A. Qualified Expert Witness.
¶15 Both Fathers argue that DCS's ICWA witness Delphine Segody, was not qualified to serve as an expert witness, and that DCS did not establish an adequate foundation for her testimony regarding the possibility of future emotional or physical harm to the Children. Fathers also argue that because Ms. Segody did not meet with either Father, she was thus unqualified to opine on their ability to care for a child.
¶16 We will not overturn the superior court's determination of a witness's competence to offer expert testimony absent "a clear abuse of discretion and resulting prejudice." Lohmeier v. Hammer, 214 Ariz. 57, 64, ¶ 25 (App. 2006). We review de novo the court's interpretation of ICWA's statutory provisions. Steven H., 218 Ariz. at 570, ¶ 14.
¶17 Neither Father challenged during trial Ms. Segody's qualifications to serve as an expert witness. An objection to testimony "must be made either prior to or at the time it is given, and failure to do so constitutes a waiver." Estate of Reinen v. N. Ariz. Orthopedics, Ltd., 198 Ariz. 283, 286, ¶ 9 (2000). Waiver notwithstanding, Fathers fail to show that Ms. Segody's testimony was improper. Under ICWA federal regulations, an expert witness must be qualified to testify regarding both the likelihood of emotional or physical damage to a child in the parent's custody and the cultural standards of the child's tribe. 25 C.F.R. § 23.122(a).
¶18 Here, DCS established that Ms. Segody was qualified as an expert witness. Ms. Segody, who is Navajo, testified that she works for the Navajo Nation, she has been qualified as an expert pursuant to ICWA, and she has been recognized by the tribal community as knowledgeable in tribal customs as they pertain to family organization. She has testified as an ICWA witness for over 10 years and in over 50 cases. She testified that she is familiar with both Fathers' cases through attending hearings, communicating with DCS social workers, and reading court orders and minute entries. Additionally, she addressed the likelihood of future harm to both Children, testifying regarding the difficulty Fathers would encounter while trying to stay sober once out of prison and the potential harm to the Children caused by waiting for permanency.
¶19 Fathers also argue that Ms. Segody's testimony was purely speculative and thus insufficient to show the likelihood of future harm. But Fathers mischaracterize Ms. Segody's testimony. She conceded that her opinion as to G.D.'s future in Jeriale's care was in some sense speculative because it had not yet occurred; however, the rest of her opinion was based on Fathers' history as to employment, Navajo tradition, and the relationships between both Fathers and their respective children.
¶20 Further, Fathers' argument that Ms. Segody is the Navajo social worker that has been assigned to this case from its inception is incorrect. The child's regularly-assigned social worker cannot serve as the qualified expert witness. 25 C.F.R. § 23.122(c). But here, Ms. Segody testified that she was not the primary social worker on cases, including this one, and that she was not assigned to the case until December 2016—after the investigation was completed.
¶21 Thus, the superior court did not err by finding that Ms. Segody was qualified to offer testimony as an expert witness.
B. Active Efforts.
¶22 Before terminating parental rights involving an Indian child, a court must find, by clear and convincing evidence, that "active efforts" have been made and were unsuccessful in trying to prevent the breakup of the Indian family. 25 U.S.C. § 1912(d); Yvonne L. v. Ariz. Dep't of Econ. Sec., 227 Ariz. 415, 421, ¶ 26 (App. 2011).
¶23 Fathers argue that DCS failed to engage in active efforts because DCS did not come to the prison to communicate with Fathers, did not set up visitation with J.D. and G.D., and did not personally provide rehabilitation services. Fathers also maintain that the DCS case manager did not testify regarding what services were in place for either Father and that the superior court never made findings that active efforts proved unsuccessful.
¶24 ICWA and Arizona case law do not explicitly define "active efforts," instead suggesting that the required efforts will vary from case to case depending on the underlying circumstances. S.S. v. Stephanie H., 241 Ariz. 419, 425, ¶ 21 (App. 2017); see also 25 C.F.R. § 23.2 (directing that active efforts must be "tailored to the facts and circumstances of the case" and listing examples of potential services). Further, "neither ICWA nor Arizona law mandates that [DCS] provide every imaginable service or program designed to prevent the breakup of the Indian family before the court may find that 'active efforts' took place." Yvonne L., 227 Ariz. at 423, ¶ 34.
¶25 Here, Ms. Segody testified that DCS made efforts to place both children with known relatives, searched for additional relatives, and attempted (albeit unsuccessfully) to place G.D. and J.D. together in the same home. J.D. was placed with her maternal aunt and G.D. similarly had contact with her maternal family. In Jeriale's case, DCS established services for substance-abuse testing and treatment before he was incarcerated, but Jeriale failed to schedule the services. Jeriale visited G.D. on three occasions, but he subsequently left with Mother and moved to Phoenix. DCS encouraged Fathers to write to their children and engage in activities available at the prison, such as substance abuse or parenting programs.
¶26 Ms. Segody testified that DCS could not provide optimum services to Fathers because they were incarcerated, and that their incarceration prevented DCS from implementing typical services for both Fathers. Ms. Segody also testified that she was unable to provide support to the family because most services that members of the Navajo Nation can receive are on the reservation, and here, both Fathers were incarcerated.
¶27 Similarly, although visitation is encouraged under 25 C.F.R. § 23.2(7), the visitation must be "consistent with the need to ensure the health, safety, and welfare of the child." Here, DCS witnesses testified that visitation with J.D. did not occur because she expressed that she did not wish to see her father. The court did not abuse its discretion by finding that forcing J.D. to visit her father in prison was not consistent with ensuring the health, safety, and welfare of the child. As to G.D., she was only two years old and the trip to prison would have taken an entire day, thus creating unwanted stress for her due to the prison environment and the amount of travel that would have been required.
¶28 Overall, DCS actively attempted to keep the Indian family together; these efforts were cut short by Fathers' incarceration, which made it difficult for DCS to provide a full range of services. Although DCS was unable to place both children with other family members and was unable to provide further services to either Father due to their incarceration, the record reflects "active efforts" by DCS to preserve the Indian family.
II. Severance Rulings.
¶29 Both Fathers challenge the superior court's findings underlying its severance rulings. Under Arizona law, the court must find, by clear and convincing evidence, the existence of one of several statutory grounds for termination. See A.R.S. §§ 8-533(B), -537(B). Additionally, the court must find by a preponderance of the evidence that termination of parental rights is in the best interests of the child. A.R.S. § 8-533(B); Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 22 (2005). Each Father disputes the superior court's findings of statutory grounds for severance, and each Father challenges the court's findings that severance was in the Children's best interests.
¶30 We view the evidence in the light most favorable to affirming the superior court's ruling. Ariz. Dep't of Econ. Sec. v. Matthew L., 223 Ariz. 547, 549, ¶ 7 (App. 2010). We will not overturn a superior court's findings unless no reasonable evidence supports them. Id.
A. Abandonment.
¶31 Fathers both argue that they did not abandon their children. See A.R.S. § 8-533(B)(1). Abandonment reflects a parent's failure to support or maintain a relationship with the child, and it includes "a judicial finding that a parent has made only minimal efforts to support and communicate with the child." A.R.S. § 8-531(1). A parent's unjustified failure to maintain a normal parent-child relationship for six months is prima facie evidence of abandonment. Id. Imprisonment alone neither justifies severance based on abandonment nor provides a defense against severance; it is simply "one factor to be considered." Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, 250, ¶ 22 (2000) (citations omitted). If circumstances such as imprisonment inhibit a parent's ability to bond with his child, the parent must make overt efforts to establish the parental relationship and "vigorously assert his legal rights." Id. (citation omitted). Thus, a parent's conduct must show that he wishes to maintain a relationship with the child; subjective intent is not enough. Id.
¶32 Here, the record supports the superior court's finding that Jarvis abandoned J.D. Jarvis only lived with J.D. for a few months at a time before his incarceration. From August 2014 to 2017, during Jarvis's incarceration, he did not have any contact with J.D. and only initiated contact with her at DCS's suggestion. The fact that DCS involvement was the only catalyst for communication shows that Jarvis made very minimal efforts to maintain a relationship with his daughter. During incarceration, he did not maintain regular contact with J.D.; writing nine letters over a seven-month timespan does constitute some form of communication, but does not show that Jarvis "vigorously assert[ed] his legal rights" to build a relationship with his daughter. See id. (citation omitted). Jarvis claimed that J.D. "disappeared on [him]," but did not make any efforts to find her. The evidence shows that Jarvis made at most minimal efforts to remain in contact with J.D. and failed to establish a parental relationship. Thus, the superior court did not err by finding that Jarvis abandoned J.D.
¶33 The record also supports the superior court's finding that Jeriale abandoned G.D. Jeriale similarly made only limited efforts to bond with G.D. Three weeks after DCS took G.D. into care, Jeriale left town with Mother and was arrested four months later. He did not provide any support for G.D. during that time. Jeriale only began communicating with G.D.'s foster family after DCS located him in jail and facilitated contact. Over a period of six months, Jeriale sent four letters to G.D.'s foster family. Two-year-old G.D. could not visit due to her age and the length of time needed for a visit. Thus, Jeriale's letters were his only form of communication with her and her foster family. Although his letters arguably show that he cares for G.D., we look at his actions and not his subjective intent when determining if he abandoned her. See id. The evidence shows that Jeriale made only minimum efforts to maintain contact with G.D., and that was only after being prompted to do so by DCS. Accordingly, we affirm the superior court's finding of abandonment.
¶34 Fathers also challenge the other statutory severance grounds found by the superior court. However, because we affirm based on abandonment, we need not address other grounds. See Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, 280, ¶ 3 (App. 2002).
B. Best Interests.
¶35 To find that termination of parental rights is in the best interests of the child, the superior court must conclude, by a preponderance of the evidence, that the "child would benefit from a severance or be harmed by the continuation of the relationship." Maricopa Cty. Juv. Action No. JS-500274 , 167 Ariz. 1, 5 (1990). The court may properly consider whether a current placement is meeting the needs of the child and whether there is an available adoptive placement. Audra T. v. Ariz. Dep't of Econ. Sec., 194 Ariz. 376, 377, ¶ 5 (App. 1998).
¶36 Jarvis argues that termination of parental rights was not in J.D.'s best interests because DCS did not show that Jarvis was unfit as a father. But here, the record supports the superior court's finding that severance would benefit J.D. Her foster family provides her with a safe and stable home in a substance-free and domestic violence-free environment. Although Jarvis testified that he intends to stay sober after his release from prison, other evidence reflected that it is difficult for a past drug user to adjust to a sober lifestyle when out of prison, and that such an adjustment takes time. J.D. had already formed a connection with her aunt and expressed a desire to be adopted by her. The record supports a finding that continued custody by Jarvis would delay permanency due to the length of his sentence, the time needed for readjustment, and potential stress to the child. Given these factors and J.D.'s very minimal relationship with her father, the evidence was sufficient for the superior court to conclude that termination of parental rights was in J.D.'s best interests.
¶37 Jeriale also argues that termination of parental rights is not in G.D.'s best interests because DCS did not show that Jeriale was an unfit parent. The superior court found, however, that Jeriale had abandoned G.D. Moreover, G.D.'s foster home provides her a healthy, non-violent family environment, and G.D. is now placed with her older sister and is likely to achieve permanency there, which is beneficial to her. Given G.D.'s minimal, almost non-existent relationship with Jeriale prior to his incarceration, the superior court did not abuse its discretion by finding that termination of parental rights was in her best interests.
CONCLUSION
¶38 For the foregoing reasons, we affirm the court's severance orders as to both Fathers.