Opinion
No. 2 CA-JV 2019-0074
09-04-2019
JEANNE A., Appellant, v. DEPARTMENT OF CHILD SAFETY AND D.T., Appellees.
COUNSEL Sarah Michèle Martin, Tucson Counsel for Appellant Mark Brnovich, Arizona Attorney General By Cathleen E. Fuller, 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NOT FOR PUBLICATION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. JD20170439
The Honorable Susan Kettlewell, Judge Pro Tempore
AFFIRMED
COUNSEL Sarah Michèle Martin, Tucson
Counsel for Appellant Mark Brnovich, Arizona Attorney General
By Cathleen E. Fuller, Assistant Attorney General, Tucson
Counsel for Appellee Department of Child Safety
MEMORANDUM DECISION
Presiding Judge Staring authored the decision of the Court, in which Judge Brearcliffe and Judge Eppich concurred. STARING, Presiding Judge:
¶1 Jeanne A., mother of D.T., born in February 2019, challenges the juvenile court's May 2019 order terminating her parental rights to D.T. based on the prior severance ground after a hearing held in her absence. See A.R.S. § 8-533(B)(10). Jeanne contends her due process rights were violated because she did not receive proper notice of the initial severance hearing or of the consequences of her failure to appear. She also challenges the sufficiency of the evidence to support the statutory ground for severance and the court's best-interests finding. We affirm for the reasons stated below.
The juvenile court also terminated the parental rights of D.T.'s father, who is not a party to this appeal. We thus refer only to Jeanne, rather than "the parents" in this decision.
¶2 The juvenile court may terminate a parent's rights if the court finds at least one of the statutory grounds for termination by clear and convincing evidence and by a preponderance of the evidence that termination of the parent's rights is in the child's best interests. Titus S. v. Dep't of Child Safety, 244 Ariz. 365, ¶ 15 (App. 2018) (citing A.R.S. §§ 8-533(B), 8-537(B); Kent K. v. Bobby M., 210 Ariz. 279, ¶ 41 (2005)). On appeal, we view the evidence in the light most favorable to sustaining the court's ruling, affirming the order unless it is clearly erroneous. Alma S. v. Dep't of Child Safety, 245 Ariz. 146, ¶ 18 (2018).
Factual and Procedural Background
¶3 Two of Jeanne's other children, P.T. and J.T., born in 2014 and 2015, were adjudicated dependent in September 2017. Although Jeanne failed to appear at various hearings during those dependency proceedings, she did appear at a December 2018 initial severance hearing, at which she signed a copy of Form 3, Ariz. R. P. Juv. Ct., confirming she had received and understood the "Notice to Parent in Termination Action." Form 3 apprised Jeanne of various rights and also admonished her she was required to attend the termination hearings and that if she failed to do so without good cause, the court could find she had waived her legal rights and admitted the grounds in the motion for termination, and terminate her parental rights in her absence.
¶4 D.T. was born as a "Substance Exposed Newborn" in February 2019, and the Department of Child Safety (DCS) took her into custody two days later. DCS filed a dependency petition as to D.T., alleging Jeanne had not remedied the circumstances causing P.T. and J.T. to be dependent and had not consistently participated in reunification services. DCS also alleged Jeanne had substance abuse and possible mental health issues and had exposed D.T. to methamphetamine and marijuana in utero. In an April 8, 2019 ruling, the juvenile court adjudicated D.T. dependent, noting Jeanne had signed a Notice to Parent in a Dependency Action as to D.T. in February 2019, and deeming the allegations in the dependency petition admitted in light of Jeanne's voluntary absence from the March 20 dependency adjudication hearing. At a contested severance hearing regarding P.T. and J.T. held in Jeanne's absence on April 2, the court severed Jeanne's parental rights to P.T. and J.T. based on out-of-home-placement. See § 8-533(B)(8)(c).
¶5 Shortly thereafter, at an April 22, 2019 dependency review hearing regarding D.T., which Jeanne's attorney attended without her, DCS requested D.T.'s case plan be changed to severance and adoption; although the minute entry from that hearing does not show whether the juvenile court expressly ruled on DCS's request, the court nonetheless set dependency review and initial severance hearings for May 20. DCS filed a motion to terminate Jeanne's rights to D.T. on May 1, alleging chronic substance abuse and prior severance grounds, pursuant to § 8-533(B)(3), (B)(10), which it served on her attorney. Jeanne was also served, through her attorney, with DCS's Notice of Hearing on Motion for Termination of Parent-Child Relationship, as required by Rule 64(C), Ariz. R. P. Juv. Ct., expressly advising her of the upcoming hearing on May 20, and admonishing her:
You have a right to appear as a party in this proceeding. You are advised that your failure to personally appear in court at the initial hearing, pretrial conference, status conference, or termination adjudication, without good cause shown, may result in a finding that you
have waived your legal rights and have admitted the allegations in the [Termination] Motion. In addition, if you fail to appear without good cause, the hearing may go forward in your absence and may result in termination of your parental rights based upon the record and the evidence presented to the Court.
¶6 Jeanne failed to appear at the May 20 hearing, at which her attorney advised the juvenile court she had not had any contact with her client "for a substantial period of time." The court noted that DCS previously had provided Jeanne with reunification services for P.T. and J.T., and "currently" was providing such services for D.T. It also stated the case plan goal for D.T. had been reunification "but for" DCS's recent motion for termination. DCS pointed out that an attorney had been appointed to represent Jeanne at D.T.'s preliminary protective hearing, which Jeanne had attended in person, and asserted that the attorney had been properly served with the motion to terminate her rights to D.T.
¶7 The juvenile court summarized the hearings related to all three children that Jeanne had failed to attend and reviewed the admonishing language in the Notice to Parent in Dependency Action in regard to D.T., which Jeanne had personally received and signed. The court then asked DCS's attorney if he thought the language in that document provided sufficient notice to proceed with the severance hearing in Jeanne's absence. Despite noting the language could be more "explicit," DCS maintained the admonishment was nonetheless "appropriate" to give Jeanne sufficient notice. The court permitted the initial severance hearing to proceed, taking judicial notice that Jeanne's rights to P.T. and J.T. had been terminated in April 2019, and then severing Jeanne's rights to D.T. on the prior severance ground, § 8-533(B)(10), and finding that termination was in D.T.'s best interests.
Notice of Severance Hearing
¶8 On appeal, Jeanne argues the juvenile court violated her right to due process by terminating her parental rights without adequate notice, specifically asserting the court failed to comply with the requirements set forth in Rules 64(C) and 66(D)(2), Ariz. R. P. Juv. Ct. She contends the "only" notice she received that her parental rights to D.T. could be terminated was the Notice to Parent in Dependency Action provided at the preliminary protective hearing in February 2019. She asserts she was not notified the case plan goal had changed to severance and adoption or that the dependency review hearing would also be an initial severance hearing, and she was not provided with "constitutionally sufficient notice" of the consequences of her failure to appear at that hearing.
In her reply brief, Jeanne argues for the first time that she "could not have had any notice" that the case plan goal had changed from family reunification to severance and adoption because the juvenile court failed to make a best-interests determination as required by A.R.S. § 8-862(B)(1) or to comply with Rule 64(A), Ariz. R. P. Juv. Ct. Because Jeanne did not raise this argument in her opening brief, we do not consider it. Nelson v. Rice, 198 Ariz. 563, n.3 (App. 2000) (party waives argument by failing to raise it in opening brief); Wasserman v. Low, 143 Ariz. 4, 9 n.4 (App. 1984); see also Ariz. R. Civ. App. P. 13(c) ("a reply brief . . . must be strictly confined to rebuttal of points made in the appellee's answering brief"); Ariz. R. P. Juv. Ct. 106(A) ("ARCAP 13 and 14 shall apply in appeals from final orders of the juvenile court . . . ."). We similarly do not address Jeanne's assertion, raised for the first time in the final paragraph of her reply brief, that "the juvenile court committed fundamental error."
¶9 Rule 64 applies to proceedings to terminate parental rights and provides that a parent must be served with a copy of the motion or petition for termination and notice of all relevant hearings and must be informed of the consequences of failing to attend such hearings. Specifically, Rule 64(C) states that the notice must "advise the parent . . . that failure to appear at the initial hearing, pretrial conference, status conference or termination adjudication hearing, without good cause, may result in a finding that the parent . . . has waived legal rights, and is deemed to have admitted the allegations in the motion or petition for termination." See also A.R.S. § 8-863(A). Rules 65(C)(6)(c) and 66(D)(2), Ariz. R. P. Juv. Ct., complement Rule 64(C), providing that, if a parent has received the notice required by Rule 64(C) and fails to appear at the initial severance hearing or the termination adjudication hearing, respectively, the parent may be deemed to have waived his or her rights and admitted the allegations of the severance motion or petition, and the case may proceed in the parent's absence. See also § 8-863(C) (providing that, if parent fails to appear at severance hearing after receiving notice required by § 8-863(A), court "may find that the parent has waived the parent's legal rights and is deemed to have admitted the allegations of the petition by the failure to appear" and may terminate rights based on record and evidence).
¶10 At the April 22, 2019 dependency review hearing, which Jeanne did not attend, her attorney was advised of the May 20 initial severance hearing. In addition, on May 1, Jeanne was served, through her attorney, with the Motion for Termination of Parent-Child Relationship—that motion contained specific language asking the court to affirm the initial severance hearing, set for May 20, and requesting that it "enter an order terminating the parent-child relationship" with D.T. after the hearing. On that same day, Jeanne was also served, again through her attorney, with a Notice of Hearing on Motion for Termination of Parent-Child Relationship, which contained the requisite language and admonishments required by Rule 64(C).
¶11 Notably, Jeanne does not argue that service through her attorney was inadequate. Nor would we find such an argument persuasive. In Mara M. v. Ariz. Dep't of Econ. Sec., 201 Ariz. 503, ¶¶ 22, 25, 28 (App. 2002), we explained that personal service is not required when a motion to terminate parental rights is filed in the course of ongoing dependency proceedings because the juvenile court's jurisdiction already has been established, and a termination motion is a matter "in furtherance of the exercise of the . . . court's continuing authority" in those proceedings. In addition, the service of a termination motion through a parent's attorney, as authorized by Rule 64(D)(2), and Rule 5(c), Ariz. R. Civ. P., comports with due process when a parent, like Jeanne, had already appeared in the dependency proceeding, knew that an attorney had been appointed to represent her, and had been put on notice that her parental rights could be terminated, but nonetheless failed to maintain consistent contact with her attorney. See Mara M., 201 Ariz. 503, ¶¶ 27-28.
¶12 Not only had Jeanne previously met with her attorney at the preliminary protective hearing regarding D.T., but the same attorney had represented her during the proceedings related to P.T. and J.T. She nonetheless failed to maintain contact with her attorney. We thus find unpersuasive Jeanne's argument that she was not provided sufficient notice of the proceedings or that the "only" notice she received was the Notice to Parent in a Dependency Action in February 2019.
Additionally, the DCS specialist assigned to D.T.'s case testified that two weeks before the May 20 hearing, she had reminded Jeanne about the upcoming hearing and that Jeanne was aware that DCS planned to terminate her parental rights to D.T.
Prior Severance Ground
¶13 Jeanne next argues the juvenile court erred by terminating her parental rights based on the prior severance ground pursuant to § 8-533(B)(10). That provision authorizes the termination of parental rights when "the parent has had parental rights to another child terminated within the preceding two years for the same cause and is currently unable to discharge parental responsibilities due to the same cause." § 8-533(B)(10). Jeanne contends that, because D.T. was in care for such a short time before her parental rights to her were terminated in May 2019, "[t]here was insufficient evidence to establish that the same cause existed to justify termination . . . under A.R.S. § 8-533(B)(10)." She also maintains DCS was required to prove "that further efforts toward reunification would be futile," citing Mary Lou C. v. Ariz. Dep't of Econ. Sec., 207 Ariz. 43 (App. 2004). As used in § 8-533(B)(10), the term "same cause" refers to the factual reasons that led to the prior termination, not to the statutory grounds that supported the severance. Mary Lou C., 207 Ariz. 43, ¶ 11. Here, the juvenile court addressed this very issue:
Although [D.T.] is only a few months old, the prior history of this case indicates that [J.T. and P.T.] have been in the custody of the Department since August of 2017. So we are fast approaching two years in care.
During that time, the parents engaged in very few services. They were unable to overcome what appear to be significant substance abuse issues and they did not engage in other services that would permit . . . [D.T.] to be returned to them.
The real[i]ty is, that based on the parents' history thus far, failure to terminate the parental rights to [D.T.] at this time will mean that [D.T.] will stay in foster care for an extended period of time only to find herself in a position once again
where unless something extremely dramatic happens, the parents will continue to fail to address the issues that brought [D.T.] to the Court's attention.
¶14 In its minute entry ruling severing Jeanne's parental rights to D.T., the juvenile court similarly found that DCS had "made reasonable efforts to effectuate a case plan of family reunification and ha[d] been ready, willing, and able to provide reunification services, previously with regard to [P.T. and J.T.], and currently as to [D.T.]," and also found "[w]ith regard to [D.T.], the parents are very minimally compliant [with services], if compliant at all." The record likewise establishes that DCS made reasonable efforts to provide Jeanne with reunification services after D.T. was born, to no avail.
¶15 Based on the juvenile court's findings, which the record fully supports, we reject Jeanne's argument that there was insufficient evidence to support the prior severance ground. As the court noted, Jeanne persistently failed to engage in reunification services, which were offered during the dependencies of all three of the children, or to make any meaningful progress to overcome the issues that had caused them to be placed in DCS's care.
Best Interests
¶16 Finally, Jeanne contends the juvenile court erred by finding termination was in D.T's best interests. At the severance hearing, D.T.'s attorney reported that DCS had to resubmit the paperwork for the Interstate Compact on the Placement of Children (ICPC) in order to facilitate the adoption of the children by their maternal grandfather and step-grandmother ("grandparents") in Florida. Pointing out that the grandfather had indicated that "maybe having all three kids at once was going to be a little too much," and that perhaps it would be better to have D.T. arrive after the other two children, Jeanne argues the court erroneously found that severance would benefit her so the grandparents could adopt her. She similarly argues the court erroneously concluded that failing to sever her rights would delay adoption and permanency, presumably asserting that a delay was inevitable in light of the grandfather's comment about not adopting all three children at the same time.
To the extent Jeanne suggests the juvenile court's best-interests finding was improper because the court failed to comply with Rules 64(C) and 66(D)(2), in light of our determination that no such error occurred, we decline to address that aspect of her argument.
¶17 "At the best-interests stage of the analysis, 'we can presume that the interests of the parent and child diverge because the court has already found the existence of one of the statutory grounds for termination by clear and convincing evidence.'" Alma S., 245 Ariz. 146, ¶ 12 (quoting Kent K., 210 Ariz. 279, ¶ 35). Thus, the juvenile court's focus must be on the child's best interests instead of the parent's, and "[t]he 'child's interest in stability and security' must be the court's primary concern." Id. (quoting Demetrius L. v. Joshlynn F., 239 Ariz. 1, ¶ 15 (2016)). Accordingly, "termination is in a 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. ¶ 13. That a child's current placement is meeting the child's needs is a proper factor for the court to consider in determining a child's best interests. See Audra T. v. Ariz. Dep't of Econ. Sec., 194 Ariz. 376, ¶ 5 (App. 1998). And, "[w]hen a current placement meets the child's needs and the child's prospective adoption is otherwise legally possible and likely, a juvenile court may find that termination of parental rights, so as to permit adoption, is in the child's best interests." Demetrius L., 239 Ariz. 1, ¶ 12. And, as our supreme court has made clear, a child need not be in an adoptive placement for a court to find termination is in that child's best interests. Id.
¶18 The DCS specialist testified that D.T. is an adoptable child; the grandparents, who had previously been approved as an adoptive placement through the ICPC, have indicated they wish to adopt her; and if that does not work out, an alternative placement could be found. She opined that termination is in D.T's best interests and that "[a]ll three children need to be together." She also acknowledged that Jeanne had not participated in "anything" other than visitation over the last several months, and that terminating Jeanne's parental rights would give D.T. permanency, while failure to terminate would require D.T. to remain in a foster home. In addition, D.T.'s attorney informed the court she was doing well in her current placement.
¶19 In its ruling severing Jeanne's parental rights to D.T., the juvenile court found DCS had established termination was warranted under § 8-533(B)(10) and would be in D.T.'s best interests. The court noted that termination would permit D.T. to be placed with her grandparents and her siblings, and that even if that did not occur, she is an adoptable child. The court further stated it would be detrimental to D.T. if Jeanne's rights were not terminated because it would take an "extended amount of time for an adoption to take place and for [D.T.] to achieve permanency." And, as we previously noted, the court pointed out that based on Jeanne's history, failure to sever her rights would mean that D.T. would remain in foster care for "an extended period of time," only to possibly find herself in the same position.
¶20 The juvenile court was well aware of the possible delays associated with placing D.T. with her grandparents, a factor it impliedly considered and balanced against Jeanne's failure to participate in services or to remedy the circumstances that led to D.T.'s removal. Jeanne has identified no error in the court's best-interests ruling. And, she essentially ignores the court's finding that, based on Jeanne's history, delaying severance would not benefit D.T., but would instead be detrimental to her. Ultimately, Jeanne is asking this court to reweigh the evidence on review, which we will not do. See Alma S., 245 Ariz. 146, ¶ 18. Because there is adequate evidence to support the court's conclusion that termination is in D.T.'s best interests, we find no error. Id.
¶21 Accordingly, we affirm the juvenile court order terminating Jeanne's parental rights to D.T.