Lourdes R. v. Robert O., A.O. ( 2019 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
LOURDES R., Appellant,
v.
ROBERT O., A.O., Appellees.
No. 1 CA-JV 18-0462
FILED 6-6-2019
Appeal from the Superior Court in Maricopa County
No. JS19352
The Honorable Eartha K. Washington, Commissioner
VACATED AND REMANDED
APPEARANCES
Lourdes R., Protected Address
Appellant
David W. Bell Attorney at Law, Higley
By David W. Bell
Counsel for Appellee Robert O.
MEMORANDUM DECISION
Presiding Judge Michael J. Brown delivered the decision of the Court, in
which Judge Jon W. Thompson and Judge Kenton D. Jones joined.
LOURDES R. v. ROBERT O., A.O.
Decision of the Court
B R O W N, Judge:
¶1 Lourdes R. (“Mother”) appeals the juvenile court’s order
denying her petition to terminate Robert O.’s (“Father”) parental rights.
For the following reasons, we vacate the order and remand for further
proceedings.
BACKGROUND
¶2 Mother and Father are the biological parents of A.O., born in
2007. Mother and Father never married but they lived together after A.O.’s
birth until their relationship ended in 2011 and Father moved out. In 2012,
Mother’s current husband (“Stepfather”) moved in with her and A.O.
Mother and Stepfather married in 2014. Stepfather desires to adopt A.O.
¶3 In January 2018, Mother filed a pro per petition to terminate
Father’s parental rights on grounds of abandonment, neglect/abuse, and
incapacity. Father then filed a request in family court to establish parenting
time, but apparently the matter was on hold during the pendency of this
proceeding. In Mother’s petition, she requested that the social study
otherwise required by Arizona Revised Statutes (“A.R.S.”) section 8-536(A)
be waived because A.O. was in a stable home and “doing a social study
may scare her.” In its order setting the initial termination hearing, the court
stated it was “undetermined if [a] social study is required at this time.”
Minute entries from the initial termination hearing and a subsequent
pretrial conference do not reference the social study.
¶4 At the outset of the August 2018 termination hearing, Father
asked the court to order Mother to obtain a social study because he had
reason to believe there had been parental alienation in the case by Mother,
and either Mother or Stepfather had been convicted of driving under the
influence and had a breathalyzer in their vehicle. In response, the court
stated, “that will be part of the case. I can order the social study.” The court
then noted it would make its “official ruling” once the social study “comes
in.”
¶5 In closing arguments, A.O.’s guardian ad litem (“GAL”)
noted that Mother had not presented any evidence of abuse/neglect or
incapacity. He then stated his position on abandonment:
The abandonment ground, which is [that] Father[] failed to
maintain a normal parent-child relationship and has not
provided for the child. I think that’s pretty clear. I think in
2011, right before December and Christmastime, he had no
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Decision of the Court
further contact with the child. And he said he tried a couple
times a week for two years, then just stopped. At two years,
[that] would put it around 2013, meaning we have no real
further efforts until once this action is filed in 2018. So that’s
about five years almost. And the fact of the matter is Father
knew he had a child out there, knew he wasn’t having contact
and sat on his rights. So I think there is clear and convincing
evidence of abandonment.
When the court asked about the child support Father had provided, the
GAL responded that support can be one factor to consider but Father did
not provide any support from 2011 to 2014 until Mother took action to
compel payment. After discussing various points about best interests, he
concluded: “I have concerns about whether it is in the best interests of the
child to be adopted and have Father’s parental rights terminated.”
¶6 The juvenile court took the matter under advisement. Its
subsequent minute entry summarizing the termination hearing noted
Father’s request that the court order Mother to obtain a social study and
stated: “IT IS ORDERED granting the request. The Court will make its final
ruling upon receipt of the social study.” The minute entry did not include
a deadline for Mother to submit the social study.
¶7 Two months later, the juvenile court issued its ruling denying
Mother’s petition. The court found that Mother failed to provide the social
study as ordered and, in addition to presenting no evidence of neglect,
abuse, or lack of capacity, Mother did not meet her burden to show Father
abandoned A.O. The court explained that while the question of
abandonment in this case “is a tough one,” Father’s consistent child support
payments since 2014 and Mother’s resistance in allowing him to see A.O.
coupled with his decision to limit contact with A.O. while he was
completing drug treatment did not rise to the level of abandonment
contemplated by A.R.S. § 8-531(1). The court also reasoned, “[t]he fact
that [Father] is formally pursuing contact with the child in family court . . .
and has tried to communicate with her since the severance petition was
filed leads [the] Court to believe that he is pursuing and not abandoning his
parental responsibilities.” Mother timely appealed.
DISCUSSION
¶8 To support an order terminating parental rights, the juvenile
court must find, by clear and convincing evidence, at least one statutory
ground warranting termination, and by a preponderance of the evidence,
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that a termination of the parent-child relationship is in the child’s best
interest. Crystal E. v. Dep’t of Child Safety, 241 Ariz. 576, 577, ¶ 4 (App. 2017).
We will not disturb a court’s ruling absent an abuse of discretion or unless
there is no reasonable evidence to support the court’s findings. Mary Lou
C. v. Ariz. Dep’t of Econ. Sec., 207 Ariz. 43, 47, ¶ 8 (App. 2004). An abuse of
discretion occurs when the court misapplies the law. See Ruben M. v. Ariz.
Dep’t of Econ. Sec., 230 Ariz. 236, 239, ¶ 13 (App. 2012). Additionally, we
review de novo legal issues that require interpretation and application of
the juvenile statutes. Mary Lou C., 207 Ariz. at 47, ¶ 9.
¶9 We first note that Mother’s three-page opening brief is
deficient. It contains no citations to legal authority and only a few
references to the record. See ARCAP 13(a)(7)(A) (stating that a brief must
include appropriate references to the record and supporting contentions for
each issue raised on appeal, together with citations to pertinent legal
authorities); Ariz. R.P. Juv. Ct. 106(A) (applying ARCAP 13 to juvenile
appeals). Given the significant liberty interests involved here, including
A.O.’s best interests, we exercise our discretion to address whether the
court erred in its handling of the social study issue, which Mother has
arguably challenged. See Ritchie v. Krasner, 221 Ariz. 288, 305, ¶ 62 (App.
2009) (holding that the failure to comply with ARCAP 13 can constitute
waiver of that claim); see also Dep’t of Child Safety v. Beene, 235 Ariz. 300, 304,
¶ 9 (App. 2014) (“[C]onsideration of the child’s best interests permeates
dependency and severance proceedings.”).
¶10 Mother complains that A.O.’s GAL failed to adequately
prepare her for the hearing. The GAL, however, was not appointed to
represent Mother’s interests or help prosecute her case; the GAL was
appointed to represent A.O.’s interests. See A.R.S. § 8-531(7) (defining
“guardian ad litem” as “a person appointed by the court to protect the
interest of a minor . . . in a particular case before the court”); Ariz. R.P. Juv.
Ct. 40(A) (“The court may appoint a guardian ad litem to protect the interest
of the child.”).
¶11 Mother also contends she was unaware she had to obtain the
social study. Although her contention is not technically correct because she
was advised of the requirement in the post-hearing minute entry, Mother’s
point fairly poses the question of whether the juvenile court erred by
relying on the absence of the social study when it denied Mother’s petition.
Section 8-536(A) provides as follows:
On the filing of a petition, the court shall order that the
department, an agency or another person selected by the
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court conduct or cause to be conducted a complete social
study and that a report in writing of such study be submitted
to the court before a hearing. The social study shall include the
circumstances of the petition, the social history, the present
condition of the child and parent, proposed plans for the child
and other facts pertinent to the parent-child relationship. The
report shall include a specific recommendation and the
reasons as to whether or not the parent-child relationship
should be terminated.
(Emphasis added). A court may waive the requirement of the social study
only if it “finds that to do so is in the best interest of the child.” A.R.S.
§ 8-536(C).
¶12 Here, the juvenile court erred by not ordering the social study
to be completed and the written report submitted prior to the hearing, as
required by A.R.S. § 8-536. The court did not waive the social study; thus,
it was obligated to order that a study be conducted and the resulting report
submitted before the hearing. The social study is intended to be
comprehensive, evidenced by the statutory requirements of what the
written report must include. See A.R.S. § 8-536(A). The purpose of the social
study is to give the court information, from an individual who is not a party
to the termination proceeding, surrounding the allegations of the petition,
past and present conditions of the child and the parents, and future plans
and other facts relating to the parent-child relationship. See id.
¶13 A social study may be particularly helpful in private
termination proceedings, where a court does not have the benefit of the
documentary evidence typically submitted in termination proceedings
filed by the Department of Child Safety. In this case, the statutory
requirement that the social study include a recommendation whether the
parent-child relationship should be terminated would be highly relevant to
the court’s decision. Cf. Beene, 235 Ariz. at 304, ¶ 9 (“[T]he rules governing
these proceedings ‘should be interpreted in a manner designed to protect
the best interests of the child, giving paramount consideration to the health
and safety of the child.’” (citation omitted)). For example, the study may
shed light upon (1) Mother’s resistance to Father’s attempts to see A.O.; (2)
whether the Stepfather has alienated A.O. against Father; (3) whether
Father maintained a normal parental relationship with A.O., especially
from 2011 to 2014 when he was not paying child support; and (4) whether
termination would be in A.O.’s best interests.
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¶14 Once the juvenile court knew it intended to grant Father’s
request for a social study, it should have continued the hearing until Mother
obtained one. Similarly, if the court wanted to proceed without the social
study, it needed to make the determination that it would be in A.O.’s best
interests to do so in advance of the hearing. Instead, the court ordered for
the first time, in its post-hearing minute entry and with no due date, that
Mother must provide the social study, and then determined her failure to
provide the social study supported denial of her petition. Moreover, the
court explicitly stated it would not rule on Mother’s petition until it
received the social study. Without additional notice to Mother that the
court no longer intended to follow its own order, her only opportunity to
object was by filing her notice of appeal. On this record, where the court
recognized that the issue of abandonment was “a tough one,” and the
statutorily-required social study could have shed much-needed light on the
issue, we conclude that additional proceedings are required.
CONCLUSION
¶15 We vacate the juvenile court’s order and remand for further
proceedings, including consideration of the previously-ordered social
study, which Mother shall submit to the court within a reasonable
timeframe on a date certain ordered by the court. The court shall allow the
parties the opportunity to question the author of the social study at an
evidentiary hearing, and to present additional evidence as the court deems
appropriate.
AMY M. WOOD • Clerk of the Court
FILED: JT
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