Jacqueline R. v. Dcs, J.R. ( 2015 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
JACQUELINE R., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, J.R., Appellees.
No. 1 CA-JV 15-0169
FILED 11-5-2015
Appeal from the Superior Court in Maricopa County
No. JD13423
The Honorable Connie Contes, Judge
REMANDED
COUNSEL
Maricopa County Office of the Public Advocate, Mesa
By Suzanne Sanchez, David C. Lieb
Counsel for Appellant
Arizona Attorney General’s Office, Mesa
By Nicholas Chapman-Hushek
Counsel for Appellee DCS
JACQUELINE R. v. DCS, J.R.
Decision of the Court
MEMORANDUM DECISION
Judge Peter B. Swann delivered the decision of the court, in which Presiding
Judge Kenton D. Jones and Judge Samuel A. Thumma joined.
S W A N N, Judge:
¶1 Jacqueline R. (“Mother”) appeals the order terminating her
parental rights to her son, J.R. (“Child”). She contends that the termination
order failed to state the factual basis for its finding that termination was in
the best interests of Child, and that the order is therefore invalid. We agree
that the order contained no specific findings to support the best interests
determination. We therefore remand to the juvenile court to make the
required findings.
FACTS AND PROCEDURAL HISTORY
¶2 Child was born on May 10, 2014. Shortly before the birth,
Mother had moved from Texas to Arizona. Child was born substance-
exposed, and the Department of Child Safety (“DCS”) implemented a safety
plan. Shortly after the birth, Mother violated the safety plan. DCS removed
Child from Mother’s custody on June 2, 2014.
¶3 In August, the court found Child dependent as to Mother
because of unemployment, housing insecurity and drug use. DCS
implemented a family-reunification plan concurrent with a plan of
severance and adoption.1 The plan included semiweekly drug testing,
substance-abuse treatment, and psychological counseling. During that
time, Child remained with a foster family.
¶4 Mother participated in once-weekly supervised visits with
Child until she was arrested and extradited to Texas on drug possession
and prostitution charges in September. The case aide reported at the time
that Mother “was very nurturing with her son during the visits.” Mother
did not, however, participate in drug testing as required, testing only three
1 The court found Child dependent as to his father, and DCS moved
to terminate his rights, as well. The father had an additional statutory
allegation of abandonment as he had no contact with Child after August
2014. He did not contest the termination of parental rights for Child and
has not appealed.
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JACQUELINE R. v. DCS, J.R.
Decision of the Court
times between August and January. And during her incarceration, the
service providers closed out her treatment and counseling services for non-
attendance.
¶5 Before a scheduled review hearing, the Foster Care Review
Board (“the Board”) recommended changing the permanency goal from
reunification to adoption, on the grounds that Mother had not participated
in services or visits during her incarceration. The Board also noted that DCS
had “significant service gaps or system problems,” as it did not have a
written case plan for Child, and that the Board needed “current
documentation . . . to better assess the progress of the case.” Mother was
released from custody and returned to Arizona in early November; she was
present at the hearing. The court declined to alter the permanency plan but
gave DCS leave to seek severance if Mother did not fully comply with the
services provided.
¶6 Mother resumed supervised visitation after the review
hearing. But during those visits, she appeared to have psychological or
substance-abuse issues, as she talked to herself and yelled at the case aide
about nonexistent marks on Child. She ceased visiting Child after
November 28, 2014. The case manager referred her again for drug testing
and counseling, but she did not participate in any services after the review
hearing. Mother did not appear at the next review hearing in February
2015, having been hospitalized for mental health care, and the court granted
DCS’s motion to change the case plan to severance and adoption.
¶7 In March, DCS moved to sever the parent-child relationship,
alleging that Mother had a history of chronic dangerous drug abuse
pursuant to A.R.S. § 8-533(B)(3), and Child, who was under three years old,
had been in an out-of-home placement for six months or longer pursuant to
A.R.S. § 8-533(B)(8)(b). Mother contested the termination in person at the
initial hearing, denying the allegations. The court warned her that if she
failed to appear at the severance hearing, she would waive her rights and
the allegations against her would be deemed admitted. She resumed drug
testing after the hearing but tested only three times, testing positive for
drugs on the last test.
¶8 Though Mother had notice of the April severance hearing, she
did not appear. The court found that her absence was without good cause
and that by her absence she had waived her rights, and the court deemed
the allegations admitted. The hearing proceeded in her absence. The case
manager testified that Child needed permanence, the foster parents were
willing to adopt, and Mother had failed to engage in services. The court
determined that both statutory bases alleged were proven by clear and
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JACQUELINE R. v. DCS, J.R.
Decision of the Court
convincing evidence and laid out the facts in support of its conclusions.
With regard to the best interests analysis, the court stated simply that “[t]he
Department has also met its burden of proof by a preponderance of the
evidence that termination of parental rights is in the best interests of this
child.” The order contains substantially the same language: “THE COURT
FINDS that the Department has proven by the preponderance of the
evidence that the termination of the parent-child relationship is in the best
interests of the child.” The court granted the motion for severance based
on the record and the case manager’s testimony.
¶9 Mother timely appeals.
DISCUSSION
¶10 Mother claims that the juvenile court’s severance order is
unsound because it failed to state the factual basis for its conclusion that
severance was in the best interests of the child. We agree.
¶11 To sever parental rights, the court must find clear and
convincing evidence of at least one statutory ground for severance, and that
a preponderance of the evidence shows that severance is in the best
interests of the child. A.R.S. § 8-533(B); Jennifer G. v. Ariz. Dep’t of Econ. Sec.,
211 Ariz. 450, 453, ¶ 12 (App. 2005). The best interests determination must
explain “how the [children] would benefit from a severance or be harmed
by the continuation of the relationship.” Raymond F. v. Ariz. Dep’t of Econ.
Sec., 224 Ariz. 373, 379, ¶ 30 (App. 2010) (citation omitted).
¶12 The court’s order must articulate specific findings of fact to
support the severance. A.R.S. § 8-538(A); Ariz. R.P. Juv. Ct. 66(F)(2)(a).
Those findings should allow this court “to determine exactly which issues
were decided and whether the lower court correctly applied the law.”
Ruben M. v. Ariz. Dep’t of Econ. Sec., 230 Ariz. 236, 240, ¶ 24 (App. 2012). We
accept the court’s findings of fact unless they are not supported by any
reasonable evidence, and we will affirm the severance order unless it is
clearly erroneous. Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 280, ¶ 4
(App. 2002).
¶13 Here, the order does not contain findings to support the
severance order. Mother does not contend that the court’s findings were
inadequate to support the conclusion that at least one statutory basis for
severance existed, and we agree that those findings were sufficient. But the
court made no findings in support of the determination that severance is in
the best interests of Child.
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JACQUELINE R. v. DCS, J.R.
Decision of the Court
¶14 DCS concedes that the court did not state the basis for its best
interests determination, and urges us to affirm based on findings that the
court could have made.2 The court did state that its decision was “[b]ased
upon the testimony and evidence presented and all matters of record . . . all
of which the Court incorporates into the Court’s findings and orders.” But
A.R.S. § 8-538(A) provides that the order “shall recite the findings on which
the order is based.” (Emphasis added.) Absent such findings, we have no
basis upon which to determine whether the court properly exercised its
discretion based upon the evidence before it. In view of the order’s
noncompliance with the statute, we have no alternative but to remand for
entry of appropriate findings.
¶15 According to DCS, the court “could have reasonably found”
that Child would be harmed by the continuing relationship or benefited by
the severance; DCS suggests that we “decide that the court could have
reasonably based [the best interests] conclusion on the implied finding that
termination would benefit [Child].” (Emphasis added.) That is the issue:
the court could have made such findings, but it did not. Though the record
contains some evidence to support a finding that termination was in the
best interests of Child, the evidence was not one-sided. And it is not the
proper function of an appellate court to manufacture findings that the trial
court did not make. See Jesus M., 203 Ariz. at 282, ¶ 13 (“Whether severance
is in the child’s best interests is a question of fact for the juvenile court to
determine.”).
CONCLUSION
¶16 For the foregoing reasons, we remand to the juvenile court to
make specific findings concerning the best interests of Child.
:ama
2 DCS contends that Mother waived her objections to the findings by
not raising them in the juvenile court. We reject this argument. The duties
imposed on the court by statute are self-executing and do not require
affirmative invocation by litigants.
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