Opinion
No. 1 CA-JV 12-0158
01-10-2013
LOREN R., Appellant, v. ARIZONA DEPARTMENT OF ECONOMIC SECURITY, B.B., Appellees.
Thomas C. Horne, Arizona Attorney General By Micheal F. Valenzuela, Assistant Attorney General Attorneys for Appellee Arizona Department of Economic Security Maricopa County Public Advocate By Suzanne W. Sanchez, Deputy Public Advocate Attorneys for Appellant
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
(Not for Publication - Rule 103(G) Ariz. R.P, Juv.Ct., ARCAP 28)
Appeal from the Superior Court in Maricopa County
Cause No. JD18028
The Honorable A. Craig Blakey, Judge
AFFIRMED
Thomas C. Horne, Arizona Attorney General
By Micheal F. Valenzuela, Assistant Attorney General
Attorneys for Appellee Arizona Department of Economic Security
Phoenix Maricopa County Public Advocate
By Suzanne W. Sanchez, Deputy Public Advocate
Attorneys for Appellant
Mesa BROWN, Judge ¶1 Loren R. ("Father") appeals the juvenile court's order severing his parental rights to his son, B.B. Because B.B. is an Indian child, these proceedings are subject to the Indian Child Welfare Act ("ICWA"), 25 U.S.C. §§ 1901 to -1963 (2012). Father argues there was insufficient evidence to support the court's finding that the Arizona Department of Economic Security ("ADES") made active but unsuccessful efforts to prevent the breakup of the Indian family as ICWA requires. For the following reasons, we affirm.
On the court's own motion, we amend the caption to protect the identity of the minor child. The above caption should be used on all documents filed in this appeal.
BACKGROUND
¶2 Father and Elsa R. ("Mother") are the biological parents of B.B., born in 2003. Their relationship ended, however, prior to B.B.'s birth and Father did not become aware of the child until October 2010. Thus, B.B. was raised by Mother for the first six years of his life. ¶3 In May 2009, Child Protective Services ("CPS") received a report alleging that Mother had neglected her children, including B.B. When police and CPS arrived, they observed "syringes at the children['s] reach, knives on the floor, [a] dead animal in the kitchen area, [and] children sleeping outside on the sidewalk." Mother had recently been released from a psychiatric hospital, which she had been in and out of at least three times the previous month, and she was threatening suicide. There was also ongoing domestic violence in her home and in the children's presence. Because of the health and safety risk, CPS took B.B. and his siblings into custody. CPS placed B.B. and his sister in the home of a fellow tribal member, B.B.'s sister's biological father. ¶4 ADES filed a dependency petition, alleging B.B. and his siblings were dependent as to Mother due to mental illness, neglect, substance abuse, and domestic violence. As to B.B., the petition alleged his father as "John Doe" because his true identity or whereabouts were unknown to ADES at the time. The court found the children dependent as to Mother and approved a family reunification case plan incorporating the following services: parent aide, substance abuse assessment/treatment, random drug testing, supervised visitation, one on one parenting classes, transportation, and housing. Mother refused to take advantage of these services, however, and failed to remedy her situation. Consequently, the juvenile court terminated Mother's parental rights in February 2011. Mother did not appeal. ¶5 Meanwhile, in 2005, Father had been sentenced to serve a seven-year federal prison term in Kentucky. According to Father, in October 2010 he learned of B.B.'s existence from Mother. In December 2010, ADES located Father and filed an amended dependency petition. To confirm the allegation and to comply with its obligations under ICWA, ADES offered Father a paternity test in April 2011, which confirmed he was B.B.'s biological father. The juvenile court subsequently found B.B. dependent as to Father and approved a case plan of "severance and adoption." The court stated that "[s]ervices to be offered to the father will be what he is able to avail himself of while incarcerated." In August 2011, ADES then moved to terminate Father's parental rights as to B.B. on the grounds of abandonment and length of sentence. A contested severance hearing was held on June 11, 2012 to accommodate Father's release from prison. ¶6 CPS case manager Clara Elmore testified that when she learned of Father's paternity test results, she sent Father a letter introducing herself and encouraging him to participate in any services the prison offered. She also explained that if Father wanted to send gifts or letters to B.B., he could send them to her attention. Father sent one introductory letter to Elmore, but nothing for B.B. Elmore also testified that CPS was "unable to offer any additional services . . . because [Father] is out of state and we don't provide any CPS services in the correctional facilities." Despite Father's incarceration, however, Elmore looked into the possibility of setting up an introductory meeting between Father and B.B. if Father was released prior to the severance hearing. The meeting did not occur because Father remained incarcerated up to the severance hearing. Additionally, Elmore testified that after she found out Father was B.B.'s biological father, she slowly began talking about Father with B.B., inquiring as to whether B.B. wanted to visit, write, receive telephone calls or have any other type of contact with Father. B.B. said he did not want any contact. At the time of the severance hearing, CPS was still providing therapy as needed to B.B. and was covering B.B.'s medical and dental services. ¶7 Following the hearing, the court granted ADES' motion to sever, finding that Father failed to maintain a normal parental relationship with B.B. The court also found that "continued custody of [B.B.] by Father would be emotionally or physically damaging to the child" and that "active efforts were made to provide remedial services and rehabilitative programs to prevent the breakup of the Indian family . . . [which] have proved unsuccessful[.]" The court further determined it was not in B.B.'s best interests to be reunited with Father. Father appealed the order terminating his parental rights.
B.B. is an enrolled member of the Gila River Indian Community ("the Community"), which was notified of the dependency proceedings and successfully moved to intervene.
At the severance hearing, the court granted ADES's motion to withdraw the ground of length of incarceration from the severance motion.
The contested hearing was continued due to Father's incarceration in Kentucky. On May 1, 2012, Father was released from prison. When he arrived at the bus station in Arizona, the Maricopa County Sheriff's Office took him into custody based on an outstanding warrant from 2004.
Bryan Donahue, ICWA expert for the Community's Social Services, testified that the Community was in favor of B.B.'s placement and did not object to Father's parental rights being terminated.
On July 9, 2012, the juvenile court entered an unsigned under advisement ruling terminating Father's parental rights to B.B. On July 12, Father filed a notice of appeal "regarding the severance order filed on July 9, 2012." The court entered its findings of fact and conclusions of law in a signed order on August 10. Although Father's appeal of the severance order was premature, we have jurisdiction because, after the unsigned order granting the motion for termination, "no decision of the court could change and the only remaining task [wa]s merely ministerial." Craig v. Craig, 227 Ariz. 105, 107, ¶ 13, 253 P.3d 624, 626 (2011) (citation omitted).
DISCUSSION
¶8 Father contests only the sufficiency of the evidence to support the court's ultimate finding of active efforts under ICWA. When a severance petition concerns an Indian child, ICWA applies and requires ADES to "satisfy the court 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). To meet this standard, a court must find by clear and convincing evidence that active efforts were made to prevent the breakup of the Indian family. See Yvonne L. v. Ariz. Dep't of Econ. Sec., 227 Ariz. 415, 421, ¶ 26, 258 P.3d 233, 239 (App. 2011). The juvenile court is in the "best position to weigh the evidence, observe the parties, judge the credibility of witnesses, and make appropriate findings." Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, 280, ¶ 4, 53 P.3d 203, 205 (App. 2002). "[W]e will accept the juvenile court's findings of fact unless no reasonable evidence supports those findings, and we will affirm a severance order unless it is clearly erroneous." Id. (citation omitted) ¶9 Father argues that if the permanent guardianship that he suggested had been established, he and the child could have participated in additional services. He contends that ADES failed to provide him any services other than a paternity test, an invitation to participate in prison services, and encouragement to send letters. As a result, he asserts that "CPS failed to make the active efforts that ICWA requires." We disagree. ¶10 "[N]either ICWA nor Arizona law mandates that ADES 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, 258 P.3d at 239 (citing Maricopa County Juv. Action No. JS-501904, 180 Ariz. 348, 353, 884 P.2d 234, 239 (App. 1994)). We understand Father to be arguing in part that CPS should have considered a permanent guardianship to give him an opportunity, after he was released from custody, to develop a relationship with B.B. While that could have been an option for CPS and the juvenile court, CPS explained that it refused to entertain a permanent guardianship because of its concern for the best interests of the child. This concern is the overriding consideration, even in cases involving Indian children. See Navajo Nation v. Ariz. Dep't of Econ. Sec., 230 Ariz. 339, ____, ¶ 17, 284 P.3d 29, 34-35 (App. 2012); see also 25 U.S.C. § 1902 (declaring ICWA's policy to "protect the best interests of Indian children"). The record supports this concern because it was unclear when Father would be released from custody (especially after his incarceration on returning to Arizona) and B.B. and Father had no relationship with each other in their entire lives. ¶11 Father also asserts ADES was required to provide him the time and opportunity to participate in services, which it did not do because, by the time CPS contacted him, "the case plan already was severance and adoption." As a general rule, Father is correct that ICWA's active efforts requirement mandates that ADES "provide parents the necessary time and opportunity to participate in programs designed to help [them] become effective parents." Yvonne L. , 227 Ariz. at 423, ¶ 34, 258 P.3d at 241 (internal quotations and citations omitted). However, we decline to hold ADES responsible for delays and interruptions in services because of his incarceration. See id. at 423 n.18, ¶ 34, 258 P.3d at 241; see also A.A. v. State, Dep't of Family & Youth Services, 982 P.2d 256, 261 (Alaska 1999) (explaining that a "parent's incarceration significantly affects the scope of the active efforts that the State must make to satisfy the statutory requirement."). Especially when, as here, those interruptions and delays affect the best interests of the child. See Navajo Nation, 230 Ariz. at ____, ¶ 17, 284 P.3d at 34-35. ¶12 Although incarceration does not eliminate ICWA's requirement of showing active efforts, "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-[has] a direct bearing on what active remedial efforts are possible." A.A. , 982 P.2d at 261; see also Dashiell R. v. State, Dep't of Health and Soc. Servs., Office of Children's Servs. , 222 P.3d 841, 849 (Alaska 2009) (circumstances to be considered when parent is incarcerated "include the duration of the parent's incarceration and the services possible for incarcerated parents"); Idaho Dep't of Health & Welfare v. Doe, 275 P.3d 23, 31 (Idaho 2012) (recognizing that "the types of remedial and rehabilitative services to be required under subsection 1912(d) depend on the facts of each case"). Due to these practical concerns, the scope of active efforts ICWA requires is narrowed when a parent is incarcerated. A.A., 982 P.2d at 261; see also In re Cari B., 763 N.E.2d 917 (Ill. App. Ct. 2002) (stating that a parent's incarceration diminishes the burden of active efforts, requiring efforts that are appropriate under the circumstances). ¶13 Father was incarcerated in Kentucky for approximately seven years and it is unclear from the record how long his incarceration will last in Arizona. Elmore testified she was unable to provide Father any additional services because of his incarceration in an out-of-state prison. Even though Elmore encouraged Father to communicate with B.B. through letters, gifts, or photographs, he did not take advantage of her recommendation; nor did he make telephone contact with B.B. ¶14 Not only did CPS encourage Father to do what he could to prevent the breakup of his family, as the juvenile court recognized, CPS also provided services to both B.B. and Mother. For example, Elmore discussed with B.B. the possibility of talking to and getting to know his father but B.B. rejected these efforts. And, ADES continues to provide B.B. with medical and dental treatment as well as therapy services as needed. ¶15 From this evidence, the juvenile court found "beyond a reasonable doubt that active efforts were made" but due to "mother's lack of compliance and Father's lack of interest, the efforts have proved unsuccessful." It further found that "[b]ecause Father was incarcerated in an out-of-state facility, the Department was limited to offering him a paternity test." The court agreed with CPS's opinion that Father's proposed services would have "deprived [B.B.] of the permanency and stability that he desperately needs" and that it "would be unjust to hold [B.B.] hostage hoping that Father will engage with the child." The record supports these findings; therefore, the court did not err by determining ADES made active efforts to prevent the breakup of the family.
We note the trial court only had to find by "clear and convincing evidence" that active efforts were made. See Yvonne L. , 227 Ariz. at 421, ¶ 26, 258 P.3d at 239.
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CONCLUSION
¶16 For the foregoing reasons, we affirm the juvenile court's order terminating Father's parental rights to B.B.
______________________
MICHAEL J. BROWN, Presiding Judge
CONCURRING:
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ANDREW W. GOULD, Judge
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DONN KESSLER, Judge