Opinion
No. 2 CA-JV 2017-0025
07-07-2017
SARAH L., Appellant, v. DEPARTMENT OF CHILD SAFETY AND J.H., Appellees.
COUNSEL Richard A. Beck, Tucson Counsel for Appellant Mark Brnovich, Arizona Attorney General By Cathleen E. Fuller, Assistant Attorney General, Tucson Counsel for Appellee Department of Child Safety Pima County Office of Children's Counsel, Tucson By John Waters Counsel for Minor
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NOT FOR PUBLICATION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. JD20140507
The Honorable K.C. Stanford, Judge
VACATED AND REMANDED
COUNSEL Richard A. Beck, Tucson
Counsel for Appellant Mark Brnovich, Arizona Attorney General
By Cathleen E. Fuller, Assistant Attorney General, Tucson
Counsel for Appellee Department of Child Safety Pima County Office of Children's Counsel, Tucson
By John Waters
Counsel for Minor
MEMORANDUM DECISION
Presiding Judge Vásquez authored the decision of the Court, in which Judge Staring and Judge Kelly concurred. VÁSQUEZ, Presiding Judge:
The Hon. Virginia C. Kelly, a retired judge of this court, is called back to active duty to serve on this case pursuant to orders of this court and our supreme court.
¶1 Sarah L. appeals from the juvenile court's order terminating her parental rights to her son, J.H., born February 2011, on neglect grounds. She asserts insufficient evidence supports the court's finding of neglect and that she was not given adequate notice her rights could be terminated on the basis found by the court. We agree she was not provided sufficient notice and therefore vacate the order terminating her parental rights.
¶2 "On review of a termination order, we view the evidence in the light most favorable to sustaining the juvenile court's decision." Jade K. v. Loraine K., 240 Ariz. 414, ¶ 2, 380 P.3d 111, 112 (App. 2016). In early June 2014, the Department of Child Safety (DCS) received reports that Jeremy, J.H.'s father and Sarah's boyfriend, had sexual contact with Sarah's eldest daughter, N.L., who was then twelve years old. There were also allegations of domestic violence and substance abuse by both parents. When informed of N.L.'s accusation, Sarah stated, "that never happened." The children were removed from the home about two months later, and the state filed a dependency petition.
Jeremy, N.L., and Sarah's youngest daughter, L.L., are not parties to this appeal.
¶3 Jeremy did not contest the dependency and, in October 2014, the juvenile court found J.H. dependent as to him. After a contested hearing, it found J.H. dependent as to Sarah in January 2015. In February 2016, Sarah moved to have J.H. returned to her custody pursuant to Rule 59, Ariz. R. P. Juv. Ct. DCS objected, and filed a motion to terminate her parental rights to J.H. on neglect grounds pursuant to A.R.S. § 8-533(B)(2) and time-in-care grounds pursuant to § 8-533(B)(8)(c). It also moved to terminate Jeremy's parental rights on abuse, mental illness, and time-in-care grounds. See § 8-533(B)(2), (B)(3), (B)(8)(c).
¶4 After an eight-day contested hearing, the juvenile court terminated both parents' rights. It found termination was in J.H.'s best interests and, as to Jeremy, concluded DCS had shown termination was warranted on all alleged grounds. As to Sarah, the court determined DCS had not shown termination was warranted on time-in-care grounds, but terminated her parental rights on the basis of neglect. It found Sarah had provided "food, clothing, shelter and medical care" to J.H. but that "[n]eglect in this case hinges on the form of supervision" she had provided "when the disclosure of inappropriate sexual behavior of [Jeremy] came to light. When this case was initiated [Sarah] did not believe the allegations of [N.L.] and chose to believe the denials of [Jeremy]. She was willing at that time to leave [J.H.] in his sole care" despite later realizing N.L. "was truthful and [Jeremy] untruthful and consequently he poses an unreasonable risk to all children including [J.H.]" The court denied Sarah's Rule 59 motion as moot. This appeal followed.
¶5 A juvenile court may terminate a parent's rights if it finds clear and convincing evidence of a statutory ground for severance and finds by a preponderance of the evidence that termination is in the child's best interests. A.R.S. §§ 8-533(B), 8-537(B); Kent K. v. Bobby M., 210 Ariz. 279, ¶ 41, 110 P.3d 1013, 1022 (2005). However, due process requires that a parent be given adequate notice of any potential ground for termination of parental rights, including adequate notice of the state's legal theory supporting that ground. See In re Maricopa Cty. Juv. Action No. JS-50194, 180 Ariz. 348, 355, 884 P.2d 234, 241 (App. 1994); cf. Marina P. v. Ariz. Dep't of Econ. Sec., 214 Ariz. 326, ¶¶ 35-38, 152 P.3d 1209, 1215-16 (App. 2007) (declining to affirm termination on basis not alleged). Notice is adequate only if the parent had a meaningful opportunity to prepare a defense. See Roberto F. v. Ariz. Dep't of Econ. Sec., 232 Ariz. 45, ¶ 44, 301 P.3d 211, 221 (App. 2013).
¶6 As we noted above, DCS's termination motion sought severance based on neglect under § 8-533(B)(2) and time-in-care grounds under § 8-533(B)(8)(c). In relevant part, the motion cited § 8-533(B)(2) and the definition of neglect from A.R.S § 8-201(25). It further stated:
Pursuant to § 8-533(B)(2), termination is warranted if "the parent has neglected or wilfully abused a child. This abuse includes serious physical or emotional injury or situations in which the parent knew or reasonably should have known that a person was abusing or neglecting a child." Neglect, as relevant here, is defined as "[t]he inability or unwillingness of a parent . . . of a child to provide that child with supervision, food, clothing, shelter or medical care if that inability or unwillingness causes unreasonable risk of harm to the child's health or welfare." § 8-201(25). --------
[Sarah] failed to protect [N.L.] from sexual abuse by her partner, [Jeremy]. When [N.L.] revealed that she had been sexually abused, the mother did not report the abuse or take any protective action. The mother has openly stated she does not believe the sexual abuse happened, despite multiple professionals and relatives deeming [N.L.]'s disclosure credible.The motion also alleged:
[Sarah] has exposed [J.H.] to domestic violence. The mother disclosed to the visit supervisor that [Jeremy] had hit her on the head, leaving a bump, and also that she had to cover up a black eye for a court appearance. All three of the mother's children have reported being hit by [Jeremy].
[J.H.] has special medical needs and must be provided with a very strictly supervised diet. There are numerous reports of the mother not adhering to the diet or attempting to prevent the visit supervisor from reading food labels to be sure the child had appropriate food. Visit notes . . . indicated that the mother continues to attempt to provide [J.H.] with food that is not approved by [his] treating doctor given his medical condition. The mother has been provided with specific information regarding [J.H.]'s dietary needs and has attended his medical appointments.
¶7 These allegations are not sufficient to place Sarah on notice her parental rights could be terminated because she allegedly had left J.H. in Jeremy's care after learning of N.L.'s accusation. DCS has cited no authority, and we find none, suggesting that mere recitation of the governing statutes is sufficient notice allowing a parent adequate opportunity to defend against an allegation of neglect, particularly when multiple children are involved. We cannot agree with DCS's apparent suggestion that an allegation of neglect as to one child necessarily encompasses all of a parent's children. Further, DCS opted to make specific allegations of neglectful conduct, which suggest it did not intend to allege other bases for a finding of neglect. Cf. Cent. Hous. Inv. Corp. v. Fed. Nat'l Mortg. Ass'n., 74 Ariz. 308, 311, 248 P.2d 866, 867 (1952) ("[T]he expression in a contract of one or more things of a class, implies the exclusion of all things not expressed, although all would have been impliedly included had none been specifically expressed.").
¶8 DCS did not seek to amend its termination motion pursuant to Rule 15, Ariz. R. Civ. P. See Ariz. R. P. Juv. Ct. 66(D) ("The presentation of evidence at the termination adjudication hearing shall be as informal as the requirements of due process and fairness permit and shall generally proceed in a manner similar to the trial of a civil action before the court without a jury."); Roberto F., 232 Ariz. 45, ¶ 44, 301 P.3d at 221 (addressing Rule 15 in severance proceeding). But, pursuant to Rule 15(b)(2), "[w]hen an issue not raised by the pleadings is tried by the parties' express or implied consent, it must be treated in all respects as if it had been raised in the pleadings." And the failure to seek amendment "does not affect the result of the trial of that issue." Id. An issue cannot be deemed to have been tried by consent, however, if the record does not show the parties raised it. See Hill v. Chubb Life Am. Ins. Co., 182 Ariz. 158, 161, 894 P.2d 701, 704 (1995).
¶9 DCS does not suggest that the parties tried by consent the question whether Sarah had neglected J.H. by leaving him in Jeremy's care despite the absence of that allegation from DCS's motion to terminate Sarah's parental rights. Nor does the record support that conclusion. DCS did not assert in its opening statement or closing argument that the juvenile court could terminate Sarah's parental rights because she had left J.H. in Jeremy's care. And, there is scant relevant evidence in the record. There was no testimony that Sarah had reason to believe that an accusation Jeremy had sexual contact with a twelve-year-old girl meant he might have a sexual interest in his three-year-old son. Nor was there specific testimony that Sarah had left J.H. in his care, much less that it would have been unreasonable for her do so. See § 8-201(25). Indeed, the most relevant evidence on this issue appears to be that DCS had considered leaving J.H. in his parents' home despite N.L.'s allegations, ultimately removing him because of the parents' behavior during a team decision-making meeting and because of "allegations that [Jeremy] was physically disciplining [J.H.] in an inappropriate manner."
¶10 DCS suggests we may affirm the juvenile court's termination order on neglect grounds because there is other evidence in the record to support that ground. It asserts "the court made findings about domestic violence in the home" and it had "presented evidence that [J.H.] was adversely affected by it." Thus, DCS concludes, the evidence "supports a finding that [J.H.] was at risk of harm in [Sarah's] . . . care." But the court, despite having the opportunity to do so, did not conclude those facts warranted a finding that Sarah's conduct had caused an unreasonable risk of harm to J.H. See §§ 8-201(25), 8-533(B)(2). Although DCS is correct that we may affirm a court's order for any reason supported by the record, Navajo Nation v. Ariz. Dep't of Econ. Sec., 230 Ariz. 339, ¶ 14, 284 P.3d 29, 34 (App. 2012), we decline to affirm an order based on factual findings the court did not make, see Ariz. Dep't of Econ. Sec. v. Oscar O., 209 Ariz. 332, ¶ 4, 100 P.3d 943, 945 (App. 2004) ("A juvenile court as the trier of fact in a termination proceeding is in the best position to weigh the evidence, observe the parties, judge the credibility of witnesses, and resolve disputed facts.").
¶11 We vacate the juvenile court's order terminating Sarah's parental rights to J.H.