James S. v. Dcs ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
JAMES S., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, S.S., S.S., Appellees.
No. 1 CA-JV 18-0150
FILED 2-14-2019
Appeal from the Superior Court in Coconino County
No. JD201500008
The Honorable Margaret A. McCullough, Judge Pro Tempore
VACATED; REMANDED
COUNSEL
Coconino County Public Defender’s Office, Flagstaff
By Sandra L.J. Diehl
Counsel for Appellant
Arizona Attorney General’s Office, Phoenix
By Toni M. Valadez
Counsel for Appellee Department of Child Safety
JAMES S. v. DCS, et al.
Decision of the Court
MEMORANDUM DECISION
Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Judge Jon W. Thompson joined. Presiding Judge Jennifer M. Perkins
concurred in part and dissented in part.
W I N T H R O P, Judge:
¶1 James S. (“Father”) appeals the juvenile court’s order
terminating his parental rights to his two youngest children (“the
children”). Father argues the court violated his due process rights by: (1)
improperly converting his initial termination hearing (the “initial hearing”)
to a termination adjudication hearing (the “accelerated adjudication
hearing”) after he failed to appear in court; and (2) refusing to allow him to
testify at the accelerated adjudication hearing once he subsequently
appeared before the court. In this decision, we again discuss the minimal
due process safeguards applicable to an accelerated termination
adjudication hearing under Arizona Rules of Procedure for the Juvenile
Court (“Rule”) 64(C) and 65(C)(6)(c) as outlined in the recent Arizona
Supreme Court decision Brenda D. v. Dep’t of Child Safety, 243 Ariz. 437(2018).
¶2 For the following reasons, we vacate the juvenile court’s order
terminating Father’s parental rights and remand for a termination
adjudication hearing consistent with this decision.
FACTS AND PROCEDURAL HISTORY1
¶3 In February 2015, Father was arrested for driving under the
influence of alcohol with the children in the car. The Department of Child
Safety (“DCS”) took custody of the children and filed a petition alleging
that the children were dependent due to Father’s neglect. Father struggles
with alcohol addiction, and he has been arrested multiple times due to his
intoxication. DCS removed the children from Father’s care, and the juvenile
1 “We view the facts in the light most favorable to upholding the
juvenile court’s order.” Ariz. Dep’t of Econ. Sec. v. Matthew L., 223 Ariz. 547,
549, ¶ 7 (App. 2010) (citation omitted).
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court found the children dependent.2 After Father successfully participated
in a substance-abuse program, the court dismissed the dependency and
returned the children to Father’s care. Father relapsed in February 2016,
and DCS again removed the children from Father’s custody and filed a
second dependency petition. After the filing of the second petition, Father’s
adult daughter offered to serve as the children’s permanent guardian.
Unfortunately, the permanent guardianship process was unsuccessful, and
DCS filed a motion requesting that the court permanently terminate
Father’s parental rights so that the children could be adopted. At the time
of filing, the children had been out of Father’s care for twenty-three months.
¶4 An initial hearing was held pursuant to Rule 65 on March 5,
2018. Father failed to appear, and DCS and the children’s guardian ad litem
(“GAL”) moved to convert the initial hearing into an accelerated
adjudication hearing.3 Father’s attorney requested that the court forgo
converting the hearing and instead allow her to submit Father’s denial as
to the allegations in the motion for termination. The court refused the
request and found that Father failed to appear without good cause shown.
The court then accelerated the resolution of the motion for termination’s
merits by allowing DCS to present evidence in support of its motion
pursuant to Rule 65(C)(6)(c).
¶5 Because the children are members of the Navajo Nation, the
provisions of the Indian Child Welfare Act (“ICWA”) applied to the
accelerated adjudication hearing. Under ICWA, DCS is required to prove
through an expert witness specializing in child services for native children
that active efforts had been made to keep the family together but were
unsuccessful, and that continued custody of the children by Father would
likely result in serious emotional or physical harm to the children. 25 U.S.C.
§ 1912(f) (2018). Not surprisingly, DCS’ expert witness was not present and
did not testify at the March hearing.
¶6 Although the court recognized it was unable to either close
the record or terminate Father’s rights without the ICWA expert witness
testimony, the court made findings of fact on the record. Specifically, it
2 The location of the children’s mother is unknown.
3 On February 12, 2018, Father signed a “Form 3 Notice”
acknowledging that failure to appear at a scheduled hearing may result in
the proceedings going forward in his absence and the court terminating his
parental rights.
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found DCS had sufficiently proved the required state statutory grounds for
termination, including the best interests of the children. In addition, the
court found that Father’s absence deemed him to have “admitted the
allegations in the [p]etition.” A subsequent hearing to take the ICWA
testimony was set for the following month. After the March hearing, Father
filed a motion for reconsideration as to the court’s ruling to convert the
initial hearing due to his failure to show good cause. The court denied the
motion.
¶7 Father appeared for the April hearing. At the beginning of
the hearing, Father’s attorney requested the court allow Father to testify
concerning his ability to parent, but the court denied her request. The court
held that Father waived his rights to testify as to any information relating
to its statutory grounds for termination and best-interests findings, and
Father’s testimony would be allowed only as to the unresolved federal
ICWA requirements. Father’s attorney maintained that the April hearing
was simply a continuation of the initial termination hearing—not an
accelerated adjudication hearing—and Father still had a right to offer
testimony regarding the statutory grounds for termination and the best
interests of the children. The court disagreed and proceeded to hear
testimony from DCS’ ICWA expert witness.
¶8 On May 25, 2018, the court issued an order terminating
Father’s parental rights. The court restated its earlier finding that Father
had a chronic substance abuse problem that prevented him from
“exercising proper and effective parental care and control” for the children.
In addition, the court reiterated its finding that termination of Father’s
parental rights was in the best interests of the children because it would
facilitate their opportunity for adoption. As required under ICWA, the
court also found that active efforts had been made to keep the family
together but were unsuccessful, and that continued custody of the children
by Father would likely result in serious emotional or physical harm to the
children.
¶9 Father timely appealed the juvenile court’s order. We have
jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution;
Arizona Revised Statutes (“A.R.S.”) section 8-235(A); and Arizona Rule of
Procedure for the Juvenile Court 103(A).
ANALYSIS
¶10 “Parents possess a fundamental liberty interest in the care,
custody, and management of their children.” Kent K. v. Bobby M., 210 Ariz.
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Decision of the Court
279, 284, ¶ 24 (2005) (citing Santosky v. Kramer, 455 U.S. 745, 753-54 (1982)).
These rights are not absolute, and the termination of parental rights may
occur under certain circumstances. Id. When adjudicating the termination
of parental rights, a court must ensure parents receive “fundamentally fair
procedures” pursuant to the Due Process Clause of the Fourteenth
Amendment. See id.¶11 Juvenile court proceedings operate differently than other civil
trial courts. See David G. v. Pollard, 207 Ariz. 308, 312-13, ¶¶ 21-24 (2004).
The court has flexibility to achieve what is in a child’s best interests. See id.
at 313, ¶ 22. In doing so, the court often must strike a balance between
“respect[ing] the informality and flexibility that characterize juvenile
proceedings” and “ensur[ing] that such proceedings comport with the
fundamental fairness demanded by the Due Process Clause.” Id. at ¶ 24
(internal quotation omitted). Even though the court has broad discretion in
conducting proceedings to terminate parental rights, the proceeding must
not be “devoid of any of the attributes customarily ascribed to procedural
due process and fairness.” In re Juvenile Action No. J-75482, 111 Ariz. 588,
596 (1975) (Struckmeyer, J., concurring); see also Ruben M. v. Ariz. Dep’t of
Econ. Sec., 230 Ariz. 236, 240, ¶ 21 (App. 2012) (“[T]he legislature has
imposed significant procedural safeguards to ensure due process [at
termination proceedings].”).
¶12 Father argues the juvenile court violated his procedural due
process rights by converting the March initial hearing into an accelerated
termination adjudication hearing and in limiting his testimony at the April
hearing. We review each issue separately.
I. The Court Properly Exercised Its Discretion in Converting the
Initial Hearing to a Termination Adjudication Hearing
¶13 Father asserts that at the March hearing his attorney was
prepared to enter a denial on his behalf regarding the allegations in the
motion for termination, but the court erroneously refused to allow Father’s
attorney to do so. Instead, at the request of DCS and the GAL, the court
accelerated the process and conducted what Father characterizes as a
“drive-by” termination adjudication hearing—even though the court knew
DCS was not prepared to present its case. DCS argues Father had notice of
the initial hearing before he failed to appear, and the court correctly
exercised its discretion under the Arizona Rules of Procedure for the
Juvenile Court when it converted the hearing. We review the interpretation
of court rules de novo. Brenda D., 243 Ariz. at 442, ¶ 15 (citation omitted).
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Decision of the Court
¶14 If after proper notice a parent fails to appear at an initial
hearing, Rules 64(C) and 65(C)(6)(c) authorize the juvenile court to convert
the initial termination hearing into a termination adjudication hearing.
Trisha A. v. Dep’t of Child Safety, 245 Ariz. 24, 31-32, ¶ 20 (App. 2018). After
determining that DCS has met its burden of proof, the court may then
terminate a parent’s rights in absentia. Id. This court recently discussed the
drawbacks of accelerated adjudication hearings in Trisha A. Id. at 32, ¶ 21.
In doing so, we observed that counsel for parents are often ill prepared at
such an accelerated hearing because they are surprised by the parent’s
failure to appear. Id. Although we ultimately concluded that the juvenile
court’s decision to convert various preliminary hearings into termination
adjudication hearings is discretionary, we advised that a better practice
may be “to rule only that the parent has waived participation at the missed
pretrial proceeding, and allow the severance issue to proceed to the final
adjudication hearing as scheduled.” Id. at 34, ¶ 31.
¶15 Here, the court found Father received proper notice for the
March hearing and did not have good cause for his failure to appear. As
such, the court found that Father had admitted the allegations of the DCS
motion and waived his right to participate in the hearing. Having exercised
that discretion, the court then heard testimony from a DCS representative
as to the statutory basis for termination and the best interests of the
children. Although the court did not formally state on the record that the
initial hearing was being converted into an accelerated adjudication
hearing, the court had the authority to do so pursuant to Rule 65(C)(6)(c).
We continue to believe that the better practice would have been for the
court to deem Father’s rights waived as to the initial hearing and allow the
termination adjudication hearing to proceed on schedule.4 See Trisha A., 245
Ariz. at 34, ¶ 31. Nonetheless, we recognize the legislature has also vested
the juvenile court with discretion to convert the hearings as it sees fit—as
long as parents receive adequate notice and are represented by counsel at
the hearing. See A.R.S. § 8-863(C); Brenda D., 243 Ariz. at 446, ¶ 30. Here,
Father’s attorney was present for the entire March hearing, and she cross-
examined DCS’ witness. But because of Father’s unanticipated absence,
Father’s attorney was not in a position to present any affirmative evidence
on Father’s behalf. On this record, the court did not abuse its discretion or
otherwise violate Father’s due process rights when it proceeded with the
4 A termination adjudication hearing must be held “no later than
ninety (90) days after the permanency hearing.” Ariz. R.P. Juv. Ct. 66(B). A
permanency hearing for the children was held on February 12, 2018, so the
court had until May 14, 2018 to hold the termination adjudication hearing.
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Decision of the Court
accelerated adjudication hearing after Father failed to appear for the
scheduled initial hearing.
II. The Bifurcated Accelerated Adjudication Hearing
A. The Court Violated Father’s Due Process Rights by Limiting
His Ability to Testify at the April Hearing
¶16 Father next argues the court improperly refused to allow him
to testify at the April hearing even though DCS had not finished presenting
its case-in-chief. Although the court accepted a brief offer of proof from
Father’s attorney regarding his current status, the court did not allow
Father to take the stand and offer his own testimony on any non-ICWA
related issue. Father’s attorney argued before the court that Father had a
“right to be able to present evidence on what’s in the best interests of [his]
children,” but the court disagreed.5 The court explained it had already
determined that DCS met its burden of proof relative to all of the statutory
grounds for termination, including best interests. On appeal, Father cites
Brenda D. to support his argument.
¶17 DCS also cites to Brenda D. and argues Father “waived his
rights to be present, to participate, and to testify” regarding any of the
statutory grounds for termination or best-interests findings.
¶18 In Brenda D., our Supreme Court addressed how Rules 64(C)
and 65(C)(6)(c) “apply when a parent, without good cause, appears late for
a termination adjudication hearing, after the juvenile court has already
found [a] waiver” of the parent’s right to participate at the hearing. Brenda
D., 243 Ariz. at 440, ¶ 1. Our Supreme Court determined:
[I]f a parent appears late for a hearing, but at a stage of the
proceedings where an opportunity to contest and present
evidence still exists, it would be an abuse of the juvenile court’s
discretion to impose the full-waiver sanctions, including finding a
waiver of the parent’s right to contest the factual allegations in the
motion. But the court’s earlier finding of waiver remains
effective as to the portions of the hearing during which the
parent was absent, and the court need not start the hearing
5 “Though Father did not object with the magic words of due process,
he implicitly raised the same arguments below that he now presents on
[appeal] and therefore adequately preserved the issue for our review.” Volk
v. Brame, 235 Ariz. 462, 469 n.6, ¶ 22 (App. 2014) (internal quotation
omitted).
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Decision of the Court
over or provide an opportunity for re-examining witnesses
with the parent present.
Id. at 444-45, ¶ 25 (emphasis added). This is a close question but applying
the holding in Brenda D. and recognizing the fundamental rights at stake,
we conclude the juvenile court abused its discretion and violated Father’s
due process rights at the April hearing.
¶19 Rule 66 outlines the procedures required to conduct an
accelerated adjudication hearing. See Ariz. R.P. Juv. Ct. 65(C)(6)(c) (stating
an initial hearing that has been converted to a termination adjudication
hearing must be conducted in accordance with Rule 66). Recognizing that
the juvenile court system operates in a distinct manner, Rule 66(D) allows
the court flexibility to proceed “as informal as the requirements of due
process and fairness permit.” Nevertheless, Rule 66(D) requires an
accelerated adjudication hearing have some semblance of structure “similar
to the trial of a civil action before the court without a jury.” Significant to
this case, Rule 66(F)(2) also requires that a court wait until after the
conclusion of the entire termination adjudication hearing before weighing
the evidence and making its findings of fact in support of terminating
parental rights.
¶20 In a typical civil bench trial, the plaintiff (here, DCS) presents
its case first and offers evidence relevant to all the requisite elements of their
cause of action. After the plaintiff rests, the defendant (here, Father)
presents his case in the same manner. In this case, the court weighed
evidence and made findings of fact on the record at the March hearing
knowing that DCS had not finished presenting its case-in-chief—
discounting the chance that Father would appear at the continuation of the
termination hearing. In doing so, the court erroneously bifurcated the
hearing into a state law portion and a federal law portion, thereby violating
Rule 66(D) and (F).
¶21 We agree with DCS that, under Brenda D., the court had
discretion to determine that Father waived his rights to re-examine the DCS
case representative. Nevertheless, we conclude Father still had the right to
present his own independent testimony as a witness at the April hearing.
Because Father appeared before the close of the accelerated adjudication
hearing, he did not waive his right to participate from that point forward,
and the court’s finding of waiver as to all allegations in the DCS motion was
premature. See Brenda D., 243 Ariz. at 444, ¶ 24. If the hearing was
supposed to be conducted similar to a civil bench trial, then Father still had
a right to be heard after DCS finished presenting its case. See In re Estate of
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Decision of the Court
Snure, 234 Ariz. 203, 204, ¶ 6 (App. 2014) (“A person facing a potential state
deprivation of life, liberty, or property is entitled to due process of law,”
and an essential component of due process is the “opportunity to be
heard.”). Allowing the court to bifurcate a termination adjudication trial
into state and federal issues and provide separate findings in that regard
would render Rule 66(F)(2) meaningless, and “[w]e will not interpret
statutes or rules in a manner that renders portions of their text
superfluous.” See Brenda D., 243 Ariz. at 443, ¶ 20 (citation omitted).
¶22 We recognize a trial court in a civil action generally has broad
discretion in determining when to bifurcate a trial. See Ariz. R. Civ. P. 42(b).
However, Rule 66(F)(2) expressly limits this discretion in the context of
juvenile court proceedings. Our Supreme Court explained in Kent K., that
our juvenile court procedures are different than other states’ procedures
because “Arizona does not explicitly bifurcate its termination proceedings.”
Kent K., 210 Ariz. at 286, ¶ 32. Instead, Arizona “considers the separate
inquiries required under section 8-533.B in a single hearing.” Id. Following
Kent K., if we are to afford parents of both native and non-native children
the same procedural due process under the law, the fact-finding stage in a
termination adjudication hearing must be conducted after the presentation
of all the evidence—including ICWA.
¶23 In this setting, reading the various Arizona Supreme Court
cases and procedural rules in harmony, the April session was simply a
continuation of the March accelerated adjudication hearing, and the
juvenile court should have allowed Father to present any additional
evidence—including his testimony on the best-interests issue—after DCS
had completed its case-in-chief. Indeed, much of the required findings
under ICWA overlap with the factors used by the court to determine the
best interests of a child under A.R.S. § 8-533(B). See Demetrius L. v. Joshlynn
F., 239 Ariz. 1, 4, ¶ 16 (2016). Given the nature of the best-interests inquiry,
the court should have heard Father’s testimony before making its ultimate
determination. Notwithstanding the statutory grounds for termination
having been established, the possibility remained that Father’s current
circumstances may have mitigated the court’s consideration of those
deficiencies and his testimony would clearly be relevant for the court’s
ultimate determination as to the best-interests issue.
B. The Dissent
¶24 Our dissenting colleague concludes that Father’s due process
rights were satisfied because the court accepted his attorney’s brief offer of
proof. We recognize the juvenile court operates in a unique, and of
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necessity, a somewhat flexible manner; however, to the extent our Supreme
Court and the Arizona Rules of Procedure for the Juvenile Court provide a
framework for conducting accelerated termination adjudication
proceedings, the juvenile court must adhere to that framework to ensure
parents have an adequate opportunity to contest the termination of their
parental rights.
¶25 Respectfully, the dissent’s reliance on a “clearly erroneous”
standard of review, as outlined in Alma S., is misplaced. See Alma S. v. Dep’t
of Child Safety, 245 Ariz. 146, 151, ¶¶ 17-18 (2018). There, our Supreme Court
addressed the appellant’s argument that insufficient evidence supported
the juvenile court’s order. Id. The appellant’s challenge led the court to
analyze the sufficiency of the evidence supporting the juvenile court’s
decision, and the Supreme Court stated it would “affirm the severance
order unless it [was] clearly erroneous.” Id. Here, Father is challenging the
procedure afforded to him at his accelerated termination adjudication
hearing. Thus, the sufficiency of evidence mounted against Father’s
position on the merits has no bearing on his ability to offer his own
testimony and have that testimony be “meaningfully” considered as a part
of the court’s best-interests findings. Hamdi v. Rumsfeld, 542 U.S. 507, 530
(2004) (“[T]he right to procedural due process is ‘absolute’ in the sense that
it does not depend upon the merits of a claimant’s substantive assertions.”)
(quoting Carey v. Piphus, 435 U.S. 247 (1978)); see also Fuentes v. Shevin, 407
U.S. 67, 87 (1972) (“The right to be heard does not depend upon an advance
showing that one will surely prevail at the hearing.”).
¶26 Next, the dissent recognizes that the juvenile court
impermissibly weighed the evidence and made findings of fact at the March
hearing but asserts the procedures in this case did not introduce a
“constitutionally impermissible risk of erroneous deprivation of Father’s
parental rights” in violation of Mathews v. Eldridge, 424 U.S. 319 (1976). We
disagree.
¶27 The risk was present because, unlike the dissent’s assertion
that Father’s attorney admitted the allegations in the petition, Father’s late
appearance meant he did not admit the allegations in the petition, and the
hearing remained a contested action. See Brenda D., 243 Ariz. at 444, ¶ 25.
This court has previously held “[d]ue process requires that when there are
disputed issues of fact as to a child’s best interests, ‘the court must allow
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the parties to present evidence before it makes its finding.’” 6 Cruz v. Garcia,
240 Ariz. 233, 237, ¶ 16 (App. 2016) (citing Murray v. Murray, 239 Ariz. 174,
179, ¶ 18 (App. 2016)); cf. In re Kory L., 194 Ariz. 215, 219-20, ¶¶ 11-15 (App.
1999) (holding a mother’s procedural due process rights were violated
when the juvenile court held a restitution hearing and ordered her to pay
restitution on her son’s behalf without allowing her an opportunity to
contest the amount of the restitution).
¶28 The record shows that the court weighed the evidence and
made its findings of fact and conclusions of law before the end of the initial
hearing and simply reiterated those findings in the termination order.
Allowing Father’s attorney to submit an offer of proof at the April hearing
did not provide a substantive cure to the premature findings—as offers of
proof cannot be considered evidence used to support a finding of fact or
conclusion of law. See State v. Towery, 186 Ariz. 168, 178-79 (1996)
(explaining an offer of proof is not a proper method to submit admissible
evidence to the trial court, but instead its purpose is to show “with
reasonable specificity what the evidence would have shown” so that an
appellate court can have an understanding of whether the trial court erred
in excluding the evidence); see also Molloy v. Molloy, 158 Ariz. 64, 68 (App.
1988) (explaining that offers of proof in a civil matter “serve the dual
function of enabling the trial court to appreciate the context and
consequences of an evidentiary ruling and enabling the appellate court to
determine whether [the exclusion of the evidence] was harmful”). Even if
it wanted to adopt different findings, the court could not have used the offer
of proof as a basis to change its best-interests finding, and therefore did not
give Father a chance to “meaningfully” present evidence for the best
interests of his children.
¶29 The United States Supreme Court has made clear “procedural
due process rules are shaped by the risk of error inherent in the truthfinding
process as applied to the generality of cases, not the rare exceptions.”
6 The dissent argues Father’s attorney had a chance to offer evidence
of Father and the children’s “strong bond” at the March hearing but chose
not to do so. Contrary to this argument, the record shows, and the dissent
quotes, that Father’s attorney directed the court to the pre-hearing reports
as support for Father’s position on the best interests of the children. The
pre-hearing reports both identified the strong bond Father had with the
children. Nonetheless, this evidence has no bearing on Father’s right to
testify on the best-interests issue, and the court’s deviation from the
procedural rules prevented Father from properly offering that testimony
before the best-interests finding was made.
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Eldridge, 424 U.S. at 344. Allowing the juvenile court to weigh evidence and
make findings before the conclusion of a severance hearing unreasonably
puts parents at risk of an “erroneous deprivation” of their parental rights—
particularly in ICWA cases where more evidence must be produced to
allow termination of parental rights. In addition, not allowing a parent who
appears before the end of an accelerated adjudication hearing the
opportunity to testify before severing their parental rights greatly increases
the chance the juvenile court will produce unjustified determinations
regarding a child’s best interests. See Murray, 239 Ariz. at 179, ¶ 18
(“[W]hen contested, a best-interests finding must be based on evidence, not
argument.”).
¶30 Given the classification of parental rights as a fundamental
liberty interest, Santosky, 455 U.S. at 753, and the potential irrevocable harm
that might be caused to a child by severing parental rights in such a fast-
tracked fashion as an accelerated adjudication hearing, the juvenile court’s
de facto bifurcation of Father’s accelerated adjudication hearing did not
provide Father with the fundamentally fair procedure that due process
requires. If the opportunity to be “meaningfully heard” is to have any real
place in the context of accelerated termination adjudication proceedings,
the juvenile court must adhere to the procedural requirements outlined in
the Arizona Rules of Procedure for the Juvenile Court and by our Supreme
Court. Such guideposts are in place to protect a parent’s fundamental right
to care for their children. See Lassiter v. Dep’t of Soc. Serv. of Durham Cty.,
452 U.S. 18, 27 (1981) (“[A] parent’s desire for and right to the
companionship, care, custody and management of his or her children is an
important interest . . . [and] a parent’s interest in the accuracy and justice
of the decision to terminate his or her parental status is, therefore a
commanding one.”) (internal quotation omitted).
CONCLUSION7
¶31 Because an essential component of due process is the
opportunity to be “meaningfully heard,” we conclude the court committed
a due process violation by, in essence, adjudicating the state and federal
7 Father also contends that the juvenile court erred by hearing
testimony from an unqualified expert witness and that DCS failed to
present sufficient evidence to support the court’s best-interests finding.
Because we vacate and remand the decision of the juvenile court, we do not
address these other issues raised by Father. See Schwab v. Matley, 164 Ariz.
421, 422 (1990) (stating where one issue is dispositive, a court need not reach
other issues presented on appeal).
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termination requirements in a bifurcated fashion. In doing so, the juvenile
court impermissibly limited Father’s ability to testify or otherwise
participate at the April hearing.
¶32 In holding that Father’s due process rights were violated, we
do not address whether DCS in fact presented sufficient evidence to
support the termination of Father’s parental rights. It may be the case that
on remand the juvenile court reaches the same conclusion. Nevertheless,
sitting as a court of review, it is our duty to ensure all parents are afforded
their constitutional rights in the severance process.
¶33 Therefore, we vacate the juvenile court’s order terminating
Father’s parental rights and remand for a new termination adjudication
hearing consistent with this decision.
P E R K I N S, J., concurring in part and dissenting in part:
¶34 I concur in part and respectfully dissent in part. I agree with
the majority’s analysis in part I that, while not the best practice, it was
within the juvenile court’s discretion to accelerate the March hearing. With
regard to part II, however, two concerns lead me to disagree with the
majority’s conclusion that the juvenile court failed to afford Father due
process. First, the court cured any due process issues when it entertained
Father’s offer of proof. Second, it was within the juvenile court’s discretion
to de facto bifurcate the proceeding. I therefore respectfully dissent from part
II of the majority’s analysis.
¶35 Due process demands “notice reasonably calculated, under
all the circumstances, to apprise interested parties of the pendency of the
actions and afford them an opportunity to present their objections.”
Armstrong v. Manzo, 380 U.S. 545, 550 (1965); see also U.S. Const. amend. V,
IX, XIV § 1; Ariz. Const. Art. 2 §§ 4, 33; Jeff D. v. Dep’t of Child Safety, 239
Ariz. 205, 208, ¶ 10 (App. 2016); In re Appeal in Maricopa Cty. Juv. Action No.
JS-734, 25 Ariz. App. 333, 339 (1975). In determining whether the juvenile
court provided due process, Arizona courts apply the familiar framework
from Mathews v. Eldridge, 424 U.S. 319, 335 (1976). Kent K., 210 Ariz. at 286,
¶ 33; see also Samiuddin v. Nothwehr, 243 Ariz. 204, 211, ¶ 20 (2017); Dep’t of
Child Safety v. Beene, 235 Ariz. 300, 304–08, ¶¶ 10–20 (App. 2014). The
dispositive question for us under Eldridge turns on the extent to which the
procedure presents the risk of erroneous deprivation of Father’s rights. We
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Perkins, J., concurring in part and dissenting in part
review constitutional issues de novo, Marianne N. v. Dep’t of Child Safety, 243
Ariz. 53, 55, ¶ 12 (2017), but view the facts “in the light most favorable to
upholding the juvenile court’s order.” Brenda D., 243 Ariz. at 447, ¶ 35
(quoting Ariz. Dep’t of Econ. Sec. v. Matthew L., 223 Ariz. 547, 549, ¶ 7 (App.
2010)).
¶36 In this case and under the facts presented, I cannot say the
juvenile court’s procedure introduced a constitutionally impermissible risk
of erroneous deprivation of Father’s parental rights.
¶37 At the March hearing, Father was represented by counsel who
cross-examined the State’s witnesses, and the juvenile court allowed
Father’s counsel to present a case. Brenda D., 243 Ariz. at 446, ¶¶ 30–31. Near
the end of the hearing, Father’s counsel admitted the allegations in the
petition:
THE COURT: . . . the State grounds need to be proved by a
clear and convincing. The stepped-up burden is for ICWA
testimony. Any comment, [Father’s counsel]?
[Father’s counsel]: Your Honor, we don’t have any ICWA
testimony today.
THE COURT: Understood. I’m just saying for the State
grounds. Any comment?
[Father’s counsel]: I do not. I think the report establishes those.
(Emphasis added). The juvenile court then made the following findings:
that it had jurisdiction; that the State met its burden in proving the 15
months’ time in care ground; that the State met its burden in proving the
history of chronic drug or alcohol abuse ground; and that termination of
parental rights would be in the children’s best interests. After making these
findings on the record, the juvenile court set the date for the April hearing
to take ICWA testimony. At the conclusion of the March hearing, the
juvenile court entered its findings in an unsigned minute entry.
¶38 Father’s counsel could have presented argument at the March
hearing that Father had a strong bond with the children and, because of that
fact, termination of his parental rights may not have been in the children’s
best interests. On November 20, 2017, the children’s attorney wrote to the
court:
14
JAMES S. v. DCS
Perkins, J., concurring in part and dissenting in part
As counsel for the minors, I want to emphasize that I cannot
support a plan that would cut off the relationship between
these minors and their father. Frankly, that position is the
same even if I look at my role as being guardian ad litem.
These children are greatly bonded to their father and cutting him
completely out of their lives is not what they want and is likewise
not in their best interests.
(Emphasis added). The children’s attorney attended the March hearing, and
the court explicitly offered Father’s counsel the opportunity to present an
argument, yet neither offered any evidence or argument to refute DCS’s
case on the children’s best interests. See Ariz. R.P. Juv. Ct. 40.1(C); 40.2(E).
¶39 At the April hearing, Father was once again represented by
counsel who cross-examined the State’s witness. Though it limited Father’s
testimony to ICWA, the juvenile court allowed Father’s counsel to enter the
following offer of proof:
I will let the Court know, in the form of an offer of proof, that
father has moved in with a treatment sober community . . ..
He has indicated there is a family room available, and he
believes that this program will help maintain sobriety and
will help him with the children. There are other adults there
– obviously they would need background checks by DCS –
but there are other adults who would be willing to supervise
the children. Two of the other persons are present today.
That would be the substance of his testimony. And it would
be our position that it would be in the best interests of the
children to try that, before we go to the ultimate, essentially
losing the father for these children.
The court then heard argument on whether it should accept the offer of
proof, after which the court stated, “I will consider your offer of proof. Was
there anything you wanted to add to it?” Father’s counsel then added that
Father has a strong bond with the children, and that breaking that bond
would be detrimental to the children. The court again entered findings of
fact in an unsigned minute entry at the conclusion of the hearing.
¶40 In my opinion, the juvenile court met its due process
requirements because it gave Father the opportunity to make a substantive
offer of proof for his proposed testimony on the statutory grounds. See, e.g.,
Eldridge, 424 U.S. at 333 (due process requires opportunity to be heard at a
meaningful time and in a meaningful manner); Carroll v. Robinson, 178 Ariz.
15JAMES S. v. DCS
Perkins, J., concurring in part and dissenting in part
453, 461 (App. 1994) (“At a minimum, due process requires notice and a
hearing where the individual has a meaningful opportunity to confront the
evidence against him.”) (quoting Brady v. Gebbie, 859 F.2d 1543, 1554 (9th
Cir. 1988)). The court accepted and considered Father’s substantive offer of
proof before it terminated his parental rights. I believe that a substantive
offer of proof is a meaningful manner in which to be heard, and that the
time prior to the termination of one’s parental rights is a meaningful time
at which to be heard. See A.R.S. § 8-537(A) (court shall hold a hearing in a
contested termination proceeding).
¶41 The substance of Father’s offer of proof was meaningful
because it went towards the state statutory grounds. In February 2016, DCS
removed the children from Father and filed a dependency petition on the
grounds that Father neglected the children due to substance abuse. In
February 2018, DCS moved to terminate Father’s parental rights on the
grounds of fifteen months’ time in care and inability to discharge parental
responsibilities due to chronic substance abuse. Father’s offer of proof
stated that he was living in a sober community, which has more to do with
whether his alcoholism “will continue for a prolonged indeterminate
period,” or whether he can remedy the circumstances that brought the
children into dependency, A.R.S. § 8-533(B)(3), (B)(8)(c), than it does with
the provision of remedial services or “serious emotional or physical
damage to the child[ren],” 25 U.S.C. § 1912(d), (f). Because the court
considered the substance of Father’s proof at the April hearing, I cannot
agree that it violated his due process rights.
¶42 Contrary to the majority’s assertion, supra ¶ 26, I do not
concede that the juvenile court violated Rule 66(F) by making findings of
fact when it entered its minute entries. The rule states that “[a]ll findings
and orders shall be in the form of a signed order or set forth in a signed
minute entry.” Rule 66(F) (emphasis added). The court did not sign either
of the minute entries concerned here, so by its own plain language Rule
66(F) does not control. Instead, I think the findings in the minute entries
should be considered preliminary findings, subject to change until the court
adopted its final, signed, appealable order. See Ariz. R.P. Juv. Ct. 104(A); cf.
Rule 66(D)(2); Brenda D., 243 Ariz. at 443–44, ¶¶ 19–20, 22; accord Ariz. R.
Civ. P. 52(b), (c); Catalina Foothills Unified School Dist. No. 16 v. La Paloma
Prop. Owners Ass’n, Inc., 229 Ariz. 525, 529–30, ¶¶ 12–14 (App. 2012). The
majority does not suggest the juvenile court could not adopt different
findings in its final order than it had preliminarily set forth in its unsigned
minute entries. If the court could have adopted different findings of fact
after considering Father’s offer of proof, I do not see the entry of
preliminary findings as violative of due process.
16
JAMES S. v. DCS
Perkins, J., concurring in part and dissenting in part
¶43 Nor do I assert that Father waived his ability to contest the
termination because he arrived late. See supra ¶ 27. First, as noted infra ¶ 49,
I do not suggest the juvenile court engaged in best practices in this case, but
merely that it afforded Father the minimum process due to him. Second, I
believe the juvenile court complied with the mandate from Brenda D. that
Father’s waiver was “effective only for the portion of the hearing during
which [Father] was absent,” and that “the waiver end[ed] upon [Father’s]
appearance.” 243 Ariz. at 444, ¶ 24. The juvenile court allowed Father to
testify as to the ICWA factors, the only issue for which Father appeared,
and entertained Father’s offer of proof on the statutory grounds, an issue
on which it heard evidence prior to Father’s arrival. Further, and consistent
with the majority’s concerns expressed supra ¶ 29, due to the applicability
of ICWA, Father received more process in this case than he would have
otherwise. Given the facts of this case, the majority does not dispute that
the juvenile court would have been within its discretion to terminate
Father’s parental rights at the end of the March hearing had Father’s
children not been subject to ICWA. Compare A.R.S. § 8-533 with 25 U.S.C. §
1912; Brenda D., 243 Ariz. at 444, ¶ 24 (parent deemed to have admitted all
allegations in petition only if absent through entire hearing). To put it
succinctly, we agree that due process would not require the court to
consider Father’s offer of proof in a non-ICWA case that was otherwise
identical.
¶44 In any event, the presence of the offer of proof allows us “to
determine whether any error was harmful.” Horan v. Indus. Comm’n of Ariz.,
167 Ariz. 322, 325 (1991) (quoting Molloy, 158 Ariz. at 68). The substance of
Father’s offer of proof is legally insufficient to overcome the clear and
convincing evidence adduced by DCS because, during the children’s out of
home placement for over two years, Father had been in and out of treatment
and relapse. We are bound to “affirm a severance order unless it is clearly
erroneous.” Alma S., 245 Ariz. at 151, ¶ 18 (quoting Demetrius L., 239 Ariz.
at 3, ¶ 9). “A finding is clearly erroneous if no reasonable evidence supports
it.” In re B.S., 205 Ariz. 611, 614, ¶ 5 (App. 2003) (citation omitted).
¶45 The juvenile court may terminate a parent’s rights if it finds,
by clear and convincing evidence, that “the parent is unable to discharge
parental responsibilities because of . . . a history of chronic abuse of . . .
alcohol and there are reasonable grounds to believe that the condition will
continue for a prolonged indeterminate time.” A.R.S. § 8-533(B)(3). This
court has held that the history of substance abuse need not be “constant,
which is invariable and uniform,” but rather that it be inveterate and long-
lasting. Raymond F. v. Ariz. Dep’t of Econ. Sec., 224 Ariz. 373, 377, ¶ 16 (App.
2010) (citation omitted). Further, in determining whether a parent’s chronic
17
JAMES S. v. DCS
Perkins, J., concurring in part and dissenting in part
drug or alcohol abuse will continue for a prolonged indeterminate time, the
child’s interest in permanency takes precedence over a parent’s “uncertain
battle with drugs.” Id. at 379, ¶ 29 (quoting In re N.F., 579 N.W.2d 338, 341
(Iowa Ct. App. 1998)). In other words, when it comes to a parent’s substance
abuse, “children should not be forced to wait for their parent to grow up.”
Jennifer S. v. Dep’t of Child Safety, 240 Ariz. 282, 287, ¶ 17 (App. 2016)
(quoting Raymond F., 224 Ariz. at 378, ¶ 25).
¶46 Here, reasonable evidence supports the conclusions that
Father is unable discharge his parental responsibilities because of his
chronic history of alcohol abuse and that Father’s alcohol abuse will
continue for a prolonged indeterminate period. Father and the majority do
not dispute this. See infra ¶ 25. Further, the substance of Father’s offer of
proof does not undercut DCS’s evidence in any legally relevant manner.
That Father spent two months in a sober living facility may show that his
alcohol abuse was not constant, but it does not refute that his alcohol abuse
was long-lasting, and it does not show that his alcohol abuse will abate in
the foreseeable future.
¶47 DCS first filed a dependency petition in February 2015,
alleging that it removed the children from Father’s care because police
arrested Father for driving while intoxicated with the children in the car.
Father then successfully engaged in counseling and drug testing, and DCS
returned the children to his care. The juvenile court—through the same
judge pro tempore who ultimately terminated Father’s parental rights—
dismissed that dependency in January 2016. In February 2016, DCS
petitioned the court for another dependency, this time alleging that it
removed the children from Father’s care because police arrested Father for
disturbing the peace after he drunkenly tried to start a fight outside of a
healthcare facility. DCS then provided Father with intensive outpatient
classes and urinalysis testing. Despite Father apparently suffering another
relapse in August 2016, DCS still remained hopeful that it could return the
children to Father because he had entered an inpatient alcohol abuse
treatment program. Unfortunately, DCS had to push back the planned
reunification, and cancel overnight visitation, after Father disclosed he had
had another relapse in February 2017. After this, police again arrested
Father for public intoxication and disorderly conduct in April 2017, and he
was apparently incarcerated for 60 days thereafter. Father’s probation then
required him to live in a child-free sober house for at least six months.
Furthermore, the CASA stated that Father had 26 alcohol-fueled contacts
with police between 2008 and 2014.
18
JAMES S. v. DCS
Perkins, J., concurring in part and dissenting in part
¶48 The evidence in the record reasonably supports the juvenile
court’s conclusions and there is no suggestion that contrary evidence exists.
Father’s troubles with alcohol began at least by 2008 and continued at least
until his arrest in April 2017. Reasonable evidence thus supports that Father
has a history of chronic alcohol abuse. DCS removed Father’s children for
alcohol-related reasons in both 2015 and 2016. DCS once removed the
children after Father was arrested for DUI with the children in the car and
once after Father failed to pick the children up from school because he was
in jail on an alcohol-related charge. These events reasonably support the
conclusion that Father cannot adequately discharge his parental
responsibilities due to alcohol abuse. And, despite successfully completing
several alcohol counseling programs, including inpatient treatment, Father
was unable to prevent a relapse over 14 months after DCS removed his
children for the second time. This reasonably supports the conclusion that
Father’s alcohol abuse will continue for a prolonged indeterminate time.
Given this record, I believe reasonable evidence supports termination of
Father’s rights under the ground of chronic substance abuse. See Raymond
F., 224 Ariz. at 379, ¶ 29 (“Father’s temporary abstinence from drugs and
alcohol does not outweigh his significant history of abuse or his consistent
inability to abstain during this case.”). The record also supports the court’s
conclusion that the children are adoptable and termination would benefit
them by furthering adoption plans. See A.R.S. § 8-102(A); Alma S., 245 Ariz.
at 150–51, ¶¶ 12–16.
¶49 To be clear, while I think that the juvenile court afforded
Father minimally adequate due process, I do not believe the juvenile court
engaged best practices in this case. It is within the juvenile court’s discretion
to find that a parent has waived his or her rights, at least until the parent
attends the hearing. See A.R.S. § 8-537(C) (“the court . . . may find that the
parent has waived the parent’s legal rights”); § 8-863(C) (“the court . . . may
find that the parent has waived the parent’s legal rights”); Brenda D., 243
Ariz. at 443–45, ¶¶ 19–20, 22–25; Rule 64(C) (“may result in a finding that
the parent . . . waived legal rights”); 65(C)(6)(c) (“hearing could go forward
in the absence of the parent . . . and that failure to appear may constitute a
waiver of rights”); 66(D)(2) (“failure to appear may constitute a waiver of
rights . . . the court may terminate parental rights based upon the record
and evidence presented”). The relevant rules and statutes do not make the
“juvenile court’s discretionary, front-end finding of waiver irrevocable,”
and it is an abuse of discretion for the juvenile court to “impose full-waiver
sanctions” when the parent appears for some part of the hearing. Brenda D.,
243 Ariz. at 444–45, ¶ 25. With the procedural posture in this case, I think it
would have been better practice to let Father testify at the April hearing on
any matter relevant to the termination. See Brenda D., 243 Ariz. at 448–49, ¶
19
JAMES S. v. DCS
Perkins, J., concurring in part and dissenting in part
42 (“In that scenario, testimony and other evidence admitted before the
parent’s late arrival need not be repeated. But, absent extraordinary
circumstances, the court should permit the tardy parent to testify and
present other available evidence if the parent so chooses.”). As explained
above, however, I disagree with the majority that the court’s failure to do
so violated Father’s constitutional rights.
¶50 In sum, I believe the juvenile court avoided violating Father’s
due process rights when it heard his offer of proof regarding the state
statutory termination grounds. Under the Eldridge framework, entry of the
offer of proof alleviated the risk that the court would erroneously deprive
Father of his fundamental right to parent. The offer of proof also allows this
court to determine whether Father suffered harm from any potential error;
I believe he did not. That said, I do not take waiver of constitutional rights
lightly, and suggest that the better practice is to err on the side of hearing
more parental testimony, not less. For these reasons, I find it unnecessary
to construe Rule 66(F) and therefore respectfully dissent from part II of the
majority’s analysis.
AMY M. WOOD • Clerk of the Court
FILED: AA
20