Donald W. v. Dcs, M.D. , 247 Ariz. 9 ( 2019 )

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
DONALD W., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, M.D., Appellees.
No. 1 CA-JV 18-0322
FILED 5-21-2019
Appeal from the Superior Court in Maricopa County
No. JD20444
The Honorable Karen A. Mullins, Judge
The Honorable Jacki Ireland, Judge Pro Tempore
The Honorable William Brotherton, Judge (retired)
The Honorable Joan A. Sinclair, Judge
VACATED AND REMANDED
COUNSEL
Denise L. Carroll Esq., Scottsdale
By Denise Lynn Carroll
Counsel for Appellant
Arizona Attorney General’s Office, Phoenix
By Sandra L. Nahigian
Counsel for Appellee
Donald W. v. DCS
Opinion of the Court
OPINION
Presiding Judge Paul J. McMurdie delivered the opinion of the Court, in
which Judge Randall M. Howe and Judge Jennifer B. Campbell joined.
M c M U R D I E, Judge:
¶1 The issue before the court is whether sufficient evidence
supports the termination of parental rights based on fifteen months’
time-in-care. We hold that a termination based on fifteen-months’
out-of-home placement requires the court to consider the totality of the
circumstances throughout the dependency when determining whether the
Department of Child Safety (“DCS”) made a diligent effort to provide
appropriate reunification services, including whether DCS’s failure to act
reasonably and diligently contributed to the circumstances causing the
child to remain in out-of-home placement. We further hold that a request
through the Interstate Compact on the Placement of Children (“ICPC”) is
not required when the evidence does not support a dependency concerning
the out-of-state parent. Given the absence of evidence in this case, we vacate
the termination judgment.
FACTS AND PROCEDURAL BACKGROUND
¶2 Donald W. (“Father”) met Q’Nique T. (“Mother”) in
Sacramento, California, where they lived together for a short time. After
discovering she was pregnant, Mother moved to Arizona. Given the brevity
of the relationship, Father was unsure if he was the biological father of
Mother’s unborn child. He told Mother that if he was the child’s father, he
wanted to parent the child. Father maintained contact with Mother until
October 2014. Father later discovered that Mother had married someone
else around the time she stopped communicating with him.
¶3 Mother gave birth to Melody in Arizona on December 5, 2014.
DCS took custody of Melody from the hospital the next day and placed her
in foster care. 1 DCS filed a dependency petition regarding Melody naming
1 Mother’s parental rights to Melody were terminated, and she is not
a party to this appeal. DCS removed Melody from Mother’s care because
she had previously failed to protect another child from abuse.
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Mother, her husband, and a John Doe.
¶4 On January 2, 2015, Mother reached out to Father for the first
time since October 2014 and told him that her husband was Melody’s father.
Skeptical, Father called Mother’s husband, who informed him Melody was
in DCS’s custody. On January 3, 2015, Father called the assigned DCS case
manager, Lucero Garcia, explaining that he believed he was Melody’s
father and requested a paternity test. The case manager told him that the
judge would have to award him a paternity test.
The Dependency Action
¶5 DCS amended the dependency petition to include Father.
After alleging that Father was not married to Mother and had not
established paternity, the amended petition read:
5. Father is unable to parent due to neglect. Father
is unable to provide his child with the basic
necessities of life, including, food, clothing,
shelter and support.
6. Father has abandoned his child. Father has
failed to maintain a normal parental
relationship without just cause. Father has
failed to send cards, gifts, letters or child
support since the child’s birth.
The case manager signed the verification, swearing to the veracity of the
petition’s contents. In the amended petition, DCS requested the court issue
a judgment of paternity, but it only included Mother’s assertion that her
husband was Melody’s father and did not mention that Father had
contacted DCS believing he was Melody’s father.
¶6 On March 9, 2015, the court held Father’s initial dependency
hearing, where he denied the unfitness allegations in the petition. At the
hearing, the court ordered DCS to conduct a paternity test and scheduled a
dependency hearing for May. The results of the paternity test, dated April
15, 2015, confirmed Father was Melody’s father. Immediately following
receipt of the test results, Father, to show the court that he cared about his
child and wanted custody of Melody, enrolled in a thirteen-week parenting
class, which he completed in August 2015.
¶7 Although the child had been in DCS custody from birth, after
the dependency hearing the court found “[Melody] is dependent as to
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[Father] based on inability to parent due to neglect and abandonment.” The
court set the case plan as “family reunification concurrent with severance
and adoption.” DCS stated that once Father was on the birth certificate, it
would submit an ICPC. 2 On May 27, 2015, DCS filed its notice of lodging
the order of paternity, which the court issued two weeks later. By this time,
Melody was seven months old.
¶8 Sometime in the summer of 2015, DCS initiated an ICPC with
California. In November 2015, the court held a review hearing, where it
addressed the pending ICPC, directed DCS to provide a written transition
plan to move Melody to California with Father, and found Melody
continued to be dependent. The ICPC report, dated December 2015, was
favorable to placement with Father. The ICPC social worker in California
interviewed Father in his home, then separately interviewed his ex-wife,
children, and a friend. The report noted that Father’s ex-wife stated: “[he]
was a good father, who cares and provides for his children.” After
interviewing Father’s children at their school, the social worker further
noted that “[i]t is obvious that [the children] feel loved and cared for by
their father and that he is very involved in their lives.” The ICPC concluded:
[Father] had good references and all stated that [he] is an
excellent parent to his children. From observation it appears
that he has a positive relationship with his children and they
look to him for attention and affection. [Father] was the non
2 The purpose and policy of the Interstate Compact on the Placement
of Children is to create a system by which states “cooperate with each other
in the interstate placement of children.” A.R.S. § 8-548; ICPC Regulation
2(5)(d), 7(6)(a) (the receiving state conducts an investigation of the
proposed placement, including a background check and home study and
renders a placement decision).The Association of Administrators of the
Interstate Compact on the Placement of Children (“AAICPC”) is comprised
of a Compact Administrator from each state and is authorized by Article
VII of the ICPC to promulgate regulations (“ICPC Regulation”). A.R.S.
§ 8-548, art. VII. The American Public Human Services Agency (“APHSA”)
acts as the AAICPC’s Secretariat and administers the ICPC. The ICPC
Regulations cited throughout can be found at
https://aphsa.org/OE/AAICPC/ICPC_Regulations.aspx. Although
Arizona has codified some ICPC Regulations, “[the Arizona] regulations
supplement those authorities and must be read in conjunction with them.”
Ariz. Admin. Code (“A.A.C.”) R21-5-102.
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offending parent and has been diligent in seeking custody
from the court in Arizona.
* * *
Placement of the child, [Melody], with [Father], is approved.
Please send a [Form] 100(B), confirming the ICPC placement
of the child with the father. Please include any additional
requests for services from Sacramento County, including
courtesy supervision.
¶9 Early in the dependency, Father asked DCS for the foster
placement’s contact information because he wanted to check on Melody.
DCS refused and did not allow Father to have contact with the foster
mother until Melody was almost one year old. DCS then gave Father the
foster mother’s email address, and the two began communicating weekly
with updates and exchanging pictures of Melody. In January 2016, DCS
finally allowed Father to have contact with Melody, and he began sending
“Glide videos.” 3 Father recorded and sent the video messages to the foster
mother’s phone. She showed the videos to Melody and recorded messages
from Melody to send back to Father. Father and the foster mother
established a routine of exchanging Glide videos several times a day, which
they continued throughout the dependency proceedings.
¶10 Although California sent DCS the ICPC approval letter in
December 2015, during the February 2016 review hearing, the case manager
stated incorrectly that the ICPC had only been “verbally approved.” Again,
the juvenile court found Melody continued to be dependent. Father
attended the February 2016 hearing and anticipated visiting Melody for the
first time in person while in Arizona. Because DCS failed to communicate
with Father regarding a visit before the hearing, no visit was scheduled.
However, Father was able to see Melody for one hour at a fast-food
restaurant with the foster mother.
3 Glide is an instant video messaging platform for mobile devices. The
app enables a user to send a brief video clip, up to five minutes, in a similar
manner as sending a text message. Recipients can watch and respond to the
video instantly or later. Glide (software), Wikipedia,
https://en.wikipedia.org/wiki/Glide_(software) (last visited May 16,
2019).
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¶11 In April 2016, the case manager finally emailed Father a
transition plan:
Just to reiterate our conversation from today. You will try to
come out twice a month if possible to Arizona to visit Melody
as much as you can. You will also begin calling Melody every
Monday, Wednesday, Fridays [sic] and Sunday at 630pm. The
phone call should be about 5–10 minutes. This way Melody
gets to know your voice and also recognize it. Lastly, you will
notify me at least two weeks in advance when you plan to
visit Melody so that I can submit a case aide request.
Father began calling Melody as directed. In addition, he continued to
exchange the Glide videos, and he rented a car and drove his mother, father,
and son to Arizona for a weekend visit to meet Melody. In the June 2016
DCS Report, while still reporting that “[Father] will need to be further
assessed to determine appropriate services,” the case manager stated:
[I have] attempted to coordinate with [Father] to set up a
transition plan for [Melody] to be moved into his care,
however he has failed to follow through with the transition
plan. [DCS] no longer believes that it is in the child’s best
interest to place her in the care of his [sic] father as he does
not appear to be committed in the reunification process.
¶12 On July 12, 2016, DCS moved to terminate Father’s rights
based on abandonment and fifteen months’ time-in-care. At the time of the
motion, Melody was 19 months old, and DCS was still making efforts to
locate an adoptive placement. Despite DCS moving for termination, Father
continued to visit Melody when he was financially able and consistently
communicated with her through Glide videos.
¶13 When reviewing the case plan in September 2016, the Foster
Care Review Board expressed its concern with the case manager’s lack of
communication. It reported that she was not present for the review;
attempts to contact the case manager and her supervisor were unsuccessful;
and she failed to provide a current case plan document for review. The
Board determined “there are significant service gaps or system problems”
and it was “unable to conduct a thorough review” because it had
“inadequate information.”
¶14 By October 2016, DCS closed the ICPC because there had “not
been any progress made toward transitioning Melody to [Father].” The
October 2016 DCS Report stated that because Father had only visited
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Melody twice, he “[did] not appear to be interested in reunifying with his
daughter.” In April 2017, when Melody was two and a half years old, the
juvenile court ordered Father to complete a Bonding/Best Interest
Evaluation (“Bonding Assessment”), which was conducted by Dr. Mary
Oakley on June 6, 2017.
July 2017 Termination Hearing
¶15 The court heard evidence on DCS’s termination motion in
July 2017 (“2017 Hearing”). At the hearing, the case manager testified that
DCS wanted once-a-month visits at first, then intended to increase the
number of required visits before reunification even though Father “had
indicated that he had money issues, financially, and he wasn’t able to
complete” once-a-month visitation.
¶16 At the hearing, the case manager was asked why DCS had not
sent Melody to California to visit Father. She stated: “Because we just can’t
send the child out there. We know—that’s not the process. We normally
increase contact with the parents.” The court questioned whether DCS had
a program to offer financial assistance to out-of-state parents. The case
manager responded: “Not that I know of, no.” When asked if DCS could
have moved Melody into a California placement to be closer to Father, she
responded: “I don’t believe so.”
¶17 After hearing the evidence, the court stated:
I’m sad to hear that this case has been going on for all this
period of time . . . . But I don’t think . . . if you’re [in] a
long-distance situation, [and] you could only afford to come
once a month or once every two months, [too] bad, we’re
going to sever your child from you. I don’t think that was
what was intended [under the time-in-care statute].
The court concluded it could not “sever rights, because people are poor”
and denied DCS’s motion for termination. The court then ordered DCS to
(1) “staff with the unit psychologist regarding all factors in this matter
including father’s financial status to develop a transition plan”; (2) provide
transportation for Father’s visits, including airfare and transportation to
and from the airport and the visitation center to see Melody; and (3) have
the visits occur once a month, pending the opinion of the unit psychologist
and the transition plan.
¶18 DCS objected to paying for Father’s airfare, stating it “is the
most expensive way” and that DCS does not have “unlimited resources.”
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However, the court determined, “as [the case manager] stated, it’s a long
drive from Sacramento,” and flying was the most reasonable option. The
court held that the “option needs to at least be tried” because “I cannot, in
good conscience, say . . . you’re too poor, so we’re going to sever you.”
¶19 DCS booked and paid for Father’s visit in September 2017,
which he attended. But DCS failed to produce the court-ordered transition
plan. The October 2017 DCS Report stated:
[The case manager] has also consulted with the unit
consultant to come up with a transition plan to transition
[Melody] into father’s care, however the unit psychologist
indicated that this needed to be done with the assigned
evaluator that completed the [Bonding Assessment] as she
had more knowledge as to the relationship between the father
and child.
Before Father’s October 2017 visit, the court held a review hearing and
ordered Father to increase his visits to weekly, six hours on Saturday and
six hours on Sunday. DCS again objected to purchasing Father’s airfare, and
the court modified the order to allow DCS to reimburse Father upon arrival.
Accordingly, Father purchased the airfare for the last weekend of October
2017 and the first weekend in November 2017.
¶20 When Father arrived for his October visit, DCS did not
immediately reimburse him as the court ordered it to do. Instead, on
November 1, 2017, DCS moved to modify the court’s order, this time
requesting permission to reimburse Father within three weeks of receiving
his claim to allow for approval and processing. Father arrived for his
November 6, 2017 visit before the court ruled on DCS’s motion. Again, DCS
did not reimburse Father on arrival. On November 21, 2017, the court
granted DCS’s motion, vacated the October order, and ordered DCS to
reimburse Father “for his travel expenses up to three weeks after [DCS]
receives a receipt for the purchase of travel.”
¶21 DCS failed to reimburse Father within the three weeks per the
court order. Because of the out-of-pocket expense and reimbursement
delay, Father was no longer able to afford to travel to Arizona for the
weekly visits, and he canceled the visits scheduled for the remainder of
November. In the DCS Report dated January 26, 2018, the case manager
acknowledged that “[Father] also reported that he was waiting to get the
flight refunds from DCS so that he could book another flight.” She testified
that she did not know how long it took for Father to receive reimbursement
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checks, and there had been a “lack of communication” that caused “an
issue.” In February 2018, DCS again moved to terminate the parent-child
relationship based on fifteen months’ out-of-home placement. By then,
Melody was a little over three years old.
July 2018 Termination Hearing
¶22 The juvenile court held a second termination trial in July 2018
(“2018 Hearing”). The termination motion cited Father’s “unstable
employment,” which it stated “ha[d] been a frequent problem since the
beginning of this case,” that Father “ha[d] been unable to demonstrate an
ability to parent the child,” and that “Father ha[d] failed to establish and
maintain a normal parental relationship with his child.”
¶23 The court found that Father’s “substantial failure to engage in
visitation” was the circumstance that was currently causing Melody to
remain in out-of-home placement, and that, despite DCS’s reimbursement
of Father’s travel expenses, he had not been able to remedy the
circumstance. The court additionally found that termination was in
Melody’s best interests, and granted DCS’s motion to terminate the
parent-child relationship. Melody was three and a half years old.
¶24 Father timely appealed, and we have jurisdiction under
A.R.S. § 8-235(A) and Arizona Rule of Procedure for the Juvenile Court
103(A).
DISCUSSION
¶25 The juvenile court terminated the parent-child relationship
under A.R.S. § 8-533(B)(8)(c), which requires DCS to establish by clear and
convincing evidence that: (1) Melody had been in court-ordered
out-of-home placement for at least fifteen months; (2) DCS made a “diligent
effort to provide appropriate reunification services”; but despite that effort,
(3) Father had been unable to remedy the circumstance causing Melody to
be in court-ordered out-of-home care; and (4) there was “a substantial
likelihood that [Father would] not be capable of exercising proper and
effective parental care and control in the near future.” See Roberto F. v.
ADES, 232 Ariz. 45, 56, ¶ 51 (App. 2013); Jordan C. v. ADES, 223 Ariz. 86, 93,
¶ 17 (App. 2009). “When the statutory grounds for termination are
challenged, we will affirm a termination order unless we must say as a
matter of law that no one could reasonably find the evidence supporting
statutory grounds for termination to be clear and convincing.” Jordan C., 223
Ariz. at 93, ¶ 18 (quotation omitted).
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¶26 Here, the court erred by failing to consider the totality of the
circumstances surrounding Melody’s time in care. Because the court did not
identify the “circumstance” causing the out-of-home placement, both the
origin and any cause arising during the dependency, the court was unable to
properly conclude that: DCS had made a diligent effort to provide
appropriate reunification services (“diligent efforts”); Father was unable to
remedy the circumstance; and Father was unlikely to be able to parent
effectively in the near future. After reviewing Father’s and DCS’s actions
throughout the three and a half years Melody was in DCS’s custody, we
hold that no one could reasonably find the evidence supporting the
statutory grounds for termination to be clear and convincing.
A. The Court-Ordered Out-of-Home Placement Was Based on a
Factually Deficient Dependency Petition and Insufficient
Evidence.
¶27 The first issue that must be reviewed under A.R.S.
§ 8-533(B)(8) is the “circumstance” causing out-of-home placement.
Because the substantive statutory grounds are “synonymous with
unfitness,” as “[t]hey address the most serious instances of parental abuse,
neglect, or incapacity,” the reason causing out-of-home placement must be
one that indicates parental unfitness. Alma S. v. DCS, 245 Ariz. 146, 150,
¶¶ 9–10 (2018). The juvenile court has the authority to place a dependent
child in out-of-home care only if placing the child “with the child’s parents
is contrary to the child’s welfare.” A.R.S. § 8-845(A). A dependent child is
defined by A.R.S. § 8-201(15). Generally, a dependent child lacks a parent
willing and able to exercise proper and effective parental care and control,
or in other words, lacks a fit parent. A.R.S. § 8-201(15)(a)(i). Nothing in the
record supports a finding that Melody is, or has ever been, dependent as to
Father.
1. The Court Ordered Out-of-Home Placement Was Based on
a Factually Deficient and Unsupportable Petition.
¶28 Relating to Father, the primary cause of Melody’s
out-of-home care was the court’s dependency finding in May 2015. At that
time, no evidence showed that Father was an unfit parent, or that living
with Father was contrary to Melody’s welfare. Melody had been in DCS’s
custody since birth. Father contacted DCS when Melody was less than one
month old. Nevertheless, without any investigation, DCS filed a petition
alleging that Melody was dependent due to abuse or neglect as to Father.
DCS claimed that “Father is unable to parent due to neglect. Father is
unable to provide his child with the basic necessities of life, including, food,
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clothing, shelter and support,” and “Father has abandoned his child. Father
has failed to maintain a normal parental relationship without just cause.
Father has failed to send cards, gifts, letters or child support since the child’s
birth.” The petition did not state any facts supporting these conclusions. See
A.R.S. § 8-841(B)(3) (the dependency petition must include “[a] concise
statement of the facts to support the conclusion that the child is
dependent”).
¶29 Under A.R.S. § 8-201(25)(a), “neglect” 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[.]
And under A.R.S. § 8-201(1), “abandoned” means
the failure of the parent to provide reasonable support and to
maintain regular contact with the child, including providing
normal supervision. Abandoned includes a judicial finding
that a parent has made only minimal efforts to support and
communicate with the child. Failure to maintain a normal
parental relationship with the child without just cause for a
period of six months constitutes prima facie evidence of
abandonment.
See also Pima County Juv. Action No. S-114487, 179 Ariz. 86, 96 (1994) (“What
constitutes reasonable support, regular contact, and normal supervision
varies from case to case. It is often difficult . . . for the unwed father to
provide support or supervision, or to even maintain contact. Nonetheless,
the father must take concrete steps to establish the legal or emotional bonds
linking parent and child.”). The petition’s generic assertions failed to
support the conclusion that an out-of-state parent—seeking to establish
paternity of a less than one-month-old child, who has been in DCS custody
since birth—abused, neglected, or abandoned the child. See A.R.S.
§ 8-841(B)(3) (the dependency petition must include “[a] concise statement
of the facts to support the conclusion that the child is dependent”).
¶30 Moreover, the record is devoid of any evidence supporting the
unfitness allegations in the petition, a fact DCS acknowledged at oral
argument before this court. Mother had lived with Father in Sacramento,
where the couple conceived Melody. Mother decided to move to Arizona.
Even so, Father proactively maintained contact with Mother and told her
he wanted to be involved in parenting the child. Mother ended the
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communication with Father once she married. Despite Mother’s deception
in telling Father that he was not Melody’s father, he called Mother’s
husband, found out Melody was in DCS’s care, and immediately contacted
DCS requesting a paternity test. The case manager told Father to contact the
juvenile court, which he did. Father diligently complied with the ordered
paternity test, appeared for the hearings, participated in parenting classes,
and contested the allegations in the dependency petition. No evidence
supported a dependency finding that Father failed to take concrete steps to
establish a legal and emotional bond with Melody, or that Father neglected
or abused Melody. Thus, DCS lacked a factual basis to allege that Melody
was a dependent child. 4
2. The Court Ordered Out-of-Home Placement Was Based on
an Unsupported Dependency Finding.
¶31 Notwithstanding the baseless dependency petition, the
juvenile court had an independent obligation to make findings “based upon
the record and evidence presented” to “[d]etermine whether a factual basis
exists to support a finding of dependency.” Ariz. R.P. Juv. Ct. 55(D)(1)(c)
(court must determine whether a factual basis exists even when the parent
admits or does not contest); Ariz. R.P. Juv. Ct. 55(D)(2) (the petitioner must
satisfy the burden of proof based upon the record and present evidence
even when the parent fails to appear); see also Pima County Juv. Action No.
86192, 151 Ariz. 359, 361 (App. 1986) (an allegation contained in the
dependency petition is not itself evidence; Rule 55 “implies without
question that evidence from which the court may make findings must be
presented”).
4 The lack of factual support for the allegations in the petition relating
to Father’s unfitness creates significant concerns about the ethical propriety
of filing the dependency petition claiming Father abused or neglected and
abandoned Melody. See Ariz. R. Sup. Ct. 42, ER 3.3(a)(1) (“A lawyer shall
not knowingly . . . make a false statement of fact or law to a tribunal or fail
to correct a false statement of material fact or law previously made to the
tribunal by the lawyer . . . .”); Ariz. R. Sup. Ct. 42, ER 3.1 (“A lawyer shall
not bring or defend a proceeding, or assert or controvert an issue therein,
unless there is a good faith basis in law and fact for doing so that is not
frivolous . . . .”); In re Alexander, 232 Ariz. 1, 5–7, ¶¶ 12–21 (2013) (ER 3.1
requires an attorney to be sufficiently informed “about the applicable facts
and law to make good faith and nonfrivolous arguments” when filing and
maintaining an action).
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¶32 If the juvenile court does not find by a preponderance of the
evidence that the allegations contained in the petition are true, “the court
shall dismiss the petition” and must “return the child to the parent.” A.R.S.
§ 8-844(C)(2); Ariz. R.P. Juv. Ct. 55(E)(2). On the other hand, if the court
determines the petitioner has met its burden, the court is required to “[s]et
forth specific findings of fact in support of” the dependency finding in the
form of a signed order or minute entry. Ariz. R.P. Juv. Ct. 55(E)(3).
¶33 The juvenile court held the contested dependency hearing in
May 2015. Father “den[ied] the allegations in the petition, but submit[ted]
the issue of dependency to the Court for determination.” The court
admitted a DCS Report dated April 21, 2015, into evidence. The court
considered “the information in [the DCS Report] as well as the allegations
in the petition,” and concluded:
first of all, the allegations of the petition [are] true by a
preponderance of the evidence. This child is dependent as to
[Father], based on inability to parent due to neglect and
abandonment.
The only information in the report relevant to Father was that “[the
paternity test] determined that [Father] cannot be excluded as the biological
father of [Melody]. [Father] reports that he wants his child to be placed in
his care and an ICPC will soon be submitted for him” “to determine if he is
able to care for [Melody].” The report noted that “[Father] will need to be
further assessed to determine appropriate services.”
¶34 Nothing in the April 2015 DCS Report supported DCS’s
allegations against Father of abuse, neglect, or abandonment, nor did it
establish that Melody lacked a parent who was willing or able to exercise
proper and effective care and control. Instead, the April 2015 DCS Report
demonstrated that Father was Melody’s parent, he wanted custody of her,
and DCS lacked any knowledge to support its contention that Father could
not care for Melody. Father’s attorney did not appeal the dependency order,
and the erroneous dependency finding was not recognized throughout the
subsequent hearings. Nor was this complete lack of evidence
considered—more than three years later—at the termination hearing.
3. The Court Erred By Continuing Out-of-Home Care to Allow
DCS Time to Investigate Father’s Fitness to Parent.
¶35 The court’s dependency finding enabled DCS to extend
Melody’s time in out-of-home care to investigate whether she was
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dependent. But DCS’s lack of knowledge concerning Father’s fitness is not
a basis to keep a child in out-of-home placement.
¶36 Father has an “inalienable right” to parent his child “without
obstruction or interference from this state,” A.R.S. § 1-602(A), (D); see also
Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 24 (2005) (“Parents possess a
fundamental liberty interest in the care, custody, and management of their
children.” (citing Santosky v. Kramer, 455 U.S. 745, 753 (1982))). DCS has not
provided—nor have we found—statutory authority permitting DCS to
withhold custody of a child from its parent while DCS investigates the
parent without some evidence of unfitness. See Ariz. State Dep’t of Pub.
Welfare v. Barlow, 80 Ariz. 249, 252 (1956) (“Because the child has attained a
favored, beneficent status in our social and legal systems does not detract
from the well-settled rule that the right of parents to the custody of minor
children is both a natural and a legal right.”).
¶37 The court made the dependency finding and allowed DCS to
initiate an ICPC. Father’s attorney did not appeal whether the ICPC was
appropriate under these circumstances. Therefore, we assume without
deciding that the court properly allowed the ICPC. However, because of
the delay it caused, and because DCS continues to argue both in its briefing
and in oral argument that “DCS cannot place [Melody] out of state without
an approved ICPC evaluation,” we find it necessary to address the
applicability of an ICPC with an out-of-state parent.
4. The Lack of an ICPC Cannot be the Cause for Maintaining
a Child in DCS Care; Rather it Has to be Based on Parental
Unfitness Found by a Court.
¶38 An ICPC is not required when evidence does not support a
dependency as to the out-of-state parent. See In re Emoni W., 48 A.3d 1, 6
(Conn. 2012) (ICPC does not apply to out-of-state non-custodial parent);
accord In re C.B., 116 Cal. Rptr. 3d 294, 302 (Cal. Ct. App. 2010); In re Alexis
O., 959 A.2d 176, 182 (N.H. 2008). An ICPC is intended for out-of-state
placement of a dependent child. A.R.S. § 8-548, art. II(d) (“’Placement’ means
the arrangement for the care of a child in a family free or boarding home or
in a child-caring agency . . . .“); A.R.S. § 8-548, art. III(a) (“No sending
agency shall send, bring, or cause to be sent or brought into any other party
state any child for placement in foster care or as a preliminary to a possible
adoption [without complying with the ICPC].” (emphasis added)).
¶39 Previously, this court held in ADES v. Leonardo that “[i]t is not
contrary to the description of ‘placement’ . . . to find that the description
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Donald W. v. DCS
Opinion of the Court
includes placement of a child who is the subject of a protective action and
in the legal custody of the state in a home with an out-of-state parent whose
rights have been ‘diminished or severed by the action or order of any
Court.’” 200 Ariz. 74, 80, ¶ 17 (App. 2001) (quoting ICPC Regulation 3(3)
(2001)). The court applied the requirement of the ICPC to a nonoffending
parent who did not have “full custodial rights” after a dissolution
preceding. In doing so, the court reasoned that, although not having full
custodial rights did not make a parent presumably unfit, “he or she must
be investigated to ensure that the child would be safe if placed with that
parent.” Id. at 81, ¶ 20.
¶40 However, Leonardo failed to identify authority allowing for
continued state custody of a child in the absence of evidence that an
out-of-state parent is unfit. See Barlow, 80 Ariz. at 252 (“The best of
intentions and the greatest zeal to care for neglected, dependent, or
delinquent children do not justify the violation of the constitutional
provisions as to due process that are involved in removing a child from the
custody of its parent.” (quoting In re Godden, 63 N.W.2d 151, 156 (Neb.
1954))). Moreover, ICPC evaluations are based on subjective criteria, unlike
dependency and termination, and if the regulations are read too broadly,
the denial of an ICPC could effectively terminate the relationship between
a child and a fit parent.
[A]gency caseworkers have the power to effectively terminate
the parent’s relationship with the child by finding that the
placement would be contrary to the child’s interest, a wholly
subjective standard. The ICPC denies courts the ability to
make the ultimate decision, and the parent is not given an
adequate opportunity to appeal the caseworker’s
determination in either an administrative or judicial
proceeding.
Vivek S. Sankaran, Out of State and Out of Luck: The Treatment of
Non-Custodial Parents Under the Interstate Compact on the Placement of
Children, 25 Yale L. & Pol’y Rev. 63, 80 (2006). Because of the parent’s
fundamental right to parent his or her child, the use of an ICPC to deny a
parent custody of a child must constitute a “fundamentally fair procedure.”
See Santosky, 455 U.S. at 754–55. Therefore, a court must oversee the ICPC
process to ensure the parent’s rights are adequately protected.
¶41 To ameliorate the problem presented in Leonardo, the
AAICPC amended ICPC Regulation 3 in 2011. See also In re Emoni W., 48
A.3d at 7, n.8 (declining to take a position regarding the propriety of the
15
Donald W. v. DCS
Opinion of the Court
court’s analysis in Leonardo, recognizing that the regulations in effect at the
time of the decision had changed). Arizona codified the amended ICPC
Regulation 3(b), see A.A.C. R21-5-105(B)(3) (effective January 2, 2016),
which states:
[T]he ICPC does not apply . . . [w]hen a sending court or
agency seeks an independent (not ICPC related) courtesy
check for placement with a parent from whom the child was
not removed, the responsibility for credentials and quality of
the courtesy check rests directly with the sending court or
agency and the person or party in the receiving state who
agrees to conduct the courtesy check without invoking the
protection of the ICPC home study process. This does not
prohibit a sending state from requesting an ICPC.
Thus, when DCS discovers that a child in its care has an out-of-state parent,
the regulation allows it—in addition to the conventional mechanisms it
employs to investigate a parent—to request a courtesy check from the
parent’s home state. Accord In re Emoni W., 48 A.3d at 11 (an agency can
investigate an out-of-state parent without an ICPC). The ability to request a
courtesy check, however, does not authorize DCS to hold a child in its care
for an indeterminant amount of time simply because it lacks an ICPC
approval. Unless DCS has a reasonable basis for believing the out-of-state
parent is unfit, it must turn over the child to the parent.
¶42 If sufficient evidence supports a dependency concerning the
out-of-state parent, the regulation does not prevent the court from ordering
an ICPC, or a priority placement ICPC, when appropriate. See ICPC
Regulation 7 (“The intent of [Regulation 7] is to expedite ICPC approval or
denial by a receiving state for the placement of a child with a parent, . . . and
to . . . [h]elp protect the safety of children while minimizing the potential
trauma to children caused by interim or multiple placements while ICPC
approval to place with a parent or relative is being sought through a more
comprehensive home study process.”). A denied ICPC alone does not
preclude a parent from gaining custody of the child. The court must
determine if the parent is unfit based on the evidence, which may include
the results from a home study or a denied ICPC.
¶43 Here, the juvenile court ordered that DCS initiate a new ICPC
in July 2017 after denying DCS’s first motion for termination. Without
evidence of parental unfitness, however, DCS had no authority to delay
moving Melody to Father’s care pending out-of-state approval. The results
of the subsequent ICPC could not prohibit Father from obtaining custody
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Donald W. v. DCS
Opinion of the Court
of Melody so long as the results did not establish sufficient evidence for the
court to find Melody dependent as to Father.
5. The Court Erred By Continuing the Dependency, Causing
Melody to Remain in Out-of-Home Placement.
¶44 California approved the original ICPC in December 2015. See
DCS: Policy and Procedure Manual (“DCS Pol’y & Proc.”), Referral to
ICPC, Ch. 5, § 40 (“If the placement is approved, the DCS Specialist may at
that time place the child in the receiving state.”). 5 However, by this time
DCS was concerned that Melody had been in DCS’s care for almost one
year. Therefore, it wanted to set up a plan with Father to ensure that Melody
transitioned smoothly into Father’s care. Although a transition plan may be
ideal, DCS’s authority is governed by statute. DCS, again, has not provided
this court with any authority that allows it to withhold a child from a fit
parent until it creates and institutes a transition plan. It is undisputed that
in December 2015, Melody had a parent willing and able to provide the
necessary care. Thus, at that point, Melody was not dependent, and the
court lacked authority to continue Melody’s out-of-home dependency for
DCS’s transition plan.
B. DCS Failed to Make a Diligent Effort to Provide Appropriate
Services.
¶45 As stated, based on our review of the record, the evidence
does not support a cause for Melody to be in DCS care related to Father.
Assuming, without deciding, that Father’s failure to appeal the original
dependency finding could be cause for Melody to be in DCS’s care, we must
determine whether, at the time of the termination hearing, reasonable
evidence supported the juvenile court’s finding that despite DCS’s diligent
efforts, Father had been unable to remedy the circumstances causing
Melody to be in court-ordered out-of-home placement. A.R.S.
§ 8-533(B)(8)(c); see also Jordan C., 223 Ariz. at 96, ¶ 31, n.14.
¶46 As the agency responsible for Melody’s care, DCS had a
constitutional obligation to attempt to unite her with her father. Jordan C.,
223 Ariz. at 93, ¶ 19. As DCS recognizes, its duty necessitates that it “make
reasonable efforts to preserve the family.” Marina P. v. ADES, 214 Ariz. 326,
333, ¶ 37 (App. 2007); see Santosky, 455 U.S. at 753–54 (“When the State
5 Citations to DCS’s Policy and Procedure Manual can be found at
https://extranet.azdcs.gov/DCSPolicy/.
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Donald W. v. DCS
Opinion of the Court
moves to destroy weakened familial bonds, it must provide the parents
with fundamentally fair procedures.”). A “reasonable effort” requires DCS
“to undertake measures with a reasonable prospect of success.” Mary Ellen
C. v. ADES, 193 Ariz. 185, 192, ¶ 34 (App. 1999).
¶47 Unlike DCS’s constitutional duty to make reasonable efforts,
when moving to terminate a parent-child relationship under one of the
time-in-care grounds, DCS must show that its efforts were not only
reasonable but also diligent. A.R.S. § 8-533(B)(8); see Mary Ellen C., 193 Ariz.
at 191, ¶¶ 30–32 (discussing the difference between “reasonable efforts”
and “diligent efforts”). Diligence ensures that a parent’s liberty interest in
raising his or her child, and the desire to correct the circumstances that are
causing parental unfitness, is balanced with the effect that the passage of
time without stability and permanency has on the child.
¶48 When a parent substantially neglects or willfully refuses
diligent efforts, the court may terminate the parent-child relationship at
nine months. A.R.S. § 8-533(B)(8)(a); see also A.R.S. § 8-533(B)(8)(b)
(six-months’ time-in-care for a child under three years old). But when the
parent tries to preserve the parent-child relationship, the State must
additionally prove that “there is a substantial likelihood that the parent will
not be capable of exercising proper and effective parental care and control
in the near future.” A.R.S. § 8-533(B)(8)(c). Until a parent is deemed unfit
and unable to correct the problem, it remains in the child’s best interests to
unite the child with the parent. See Santosky, 455 U.S. at 760 (“[T]he child
and his parents share a vital interest in preventing erroneous termination
of their natural relationship.”). This case highlights the importance of such
a requirement. The passage of time not only exacerbated the circumstances
but also served as the basis the court ultimately found for terminating the
parent-child relationship.
¶49 Termination under A.R.S. § 8-533(B)(8)(c) requires the child to
be in court-ordered out-of-home placement for a “cumulative” total of
fifteen months, and DCS must make diligent efforts for the entire time the
case plan is reunification. Jordan C., 223 Ariz. at 96, ¶ 30. But the court must
also consider the totality of the circumstances when determining whether
DCS has made diligent efforts. Intermittent efforts by DCS cannot be
regarded as diligent when they undermine the parent. DCS is obliged to
work with the parent toward a shared goal of reunification throughout the
statutory period.
¶50 Although what constitutes a diligent effort will vary by case
based on the family’s unique circumstances, a diligent effort requires—at
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Donald W. v. DCS
Opinion of the Court
the least—DCS to identify the conditions causing the child’s out-of-home
placement, provide services that have a reasonable prospect of success to
remedy the circumstances as they arise throughout the time-in-care period,
maintain consistent contact with the parent, and make reasonable efforts to
assist the parent in areas where compliance proves difficult. See Jordan C.,
223 Ariz. at 96, ¶ 30. Diligence on DCS’s part ensures the time a child spends
in out-of-home placement does not unnecessarily damage the parent-child
relationship.
1. DCS Failed to Offer Appropriate Services to Remedy the
Circumstances Causing the Out-of-Home Placement Before
Moving for Termination.
¶51 DCS’s lack of diligence at the onset created the
circumstance—the absence of a bond—that DCS relied on to maintain
Melody in out-of-home placement. DCS then demanded Father remedy the
condition by imposing unreasonable requirements on him, which
undermined his efforts and needlessly prolonged the dependency.
a. DCS Contributed to the Circumstances By
Conducting an Eight-Month Investigation into
Father’s Ability to Parent Without Any Evidence of
Parental Unfitness.
¶52 The only circumstance that caused Melody to remain in
out-of-home care after Father established legal parentage was DCS’s
uncertainty concerning Father’s fitness. DCS had no evidence that Father
was unfit and failed to act before pursuing a dependency to resolve its
unfounded concern. See In re Emoni W., 48 A.3d at 11. Rather than making
diligent efforts to transition Melody to Father’s care, DCS chose to
undertake an eight-month investigation into whether Father was fit.
¶53 The April 2015 DCS Report stated that DCS would submit an
ICPC. In the May 2015 hearing, the court asked DCS whether the ICPC was
underway. DCS said that the ICPC would be sent after Father was placed
on Melody’s birth certificate. Yet, DCS did not lodge the order of paternity
for nearly two months after paternity was presumed—which was four
months after Father requested a paternity test. The case manager testified
that she “believed” she had submitted the ICPC in the summer of 2015.
Because of Melody’s age—and because Father is Melody’s parent—Father
was eligible for a priority placement ICPC, requiring the receiving agency
to complete the request within 20 business days. See ICPC Regulation
7(9)(e); DCS Pol’y & Proc., Overview of ICPC, Ch. 5, § 39 (DCS may request
the court order a priority ICPC when the child is under four years old). DCS
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Donald W. v. DCS
Opinion of the Court
did not request a priority placement ICPC and unnecessarily delayed its
investigation of Father.
b. DCS Failed to Make a Diligent Effort By Instituting
a Transition Plan That Had No Likelihood of
Success.
¶54 The approved ICPC did not result in immediate unification.
The case manager testified at the 2018 Termination Hearing that
“[California] wanted us to do a transition process for Melody but that never
got completed, so then [the ICPC] ultimately was denied.” Without any
factual basis, DCS blamed Father’s “lack of commitment to Melody,” for the
unsuccessful unification.
¶55 The record refutes the case manager’s claims that the ICPC
approval was conditional, or that California ultimately denied it. Other
than the ICPC approval letter, DCS had no communication with California.
See DCS Pol’y & Proc., ICPC Placements, Ch. 5, § 41 (all significant verbal
communication with the sending or receiving agency should be
documented). The language in the letter was conclusive: “Placement of the
child . . . is approved. Please send a [Form ICPC-100(B)], confirming the
ICPC placement of [Melody] with [Father].” Once the ICPC is approved,
“[i]t is up to the sending entity . . . to decide if and when to place the child.” 6
The October 2016 DCS Report stated that the “ICPC packet has now been
closed.” (Emphasis added.) DCS’s attorney later admitted that California
had not denied the 2015 ICPC; instead, DCS allowed it to lapse.
¶56 DCS maintains that the circumstance that caused Melody to
remain in out-of-home placement was the perceived lack of a bond between
Melody and Father. Because Melody was uneasy around people that she
did not know, DCS claimed it “implemented a transition plan that would
allow Father to build a relationship with [Melody] in anticipation of her
moving to his care.” Why DCS required any transition plan after the initial
ICPC is unclear. Melody was not in an adoptive placement, and she could
6 See APHSA, ICPC FAQ,
https://aphsa.org/AAICPC/AAICPC/icpc_faq_2.aspx (last visited May
16, 2019) (emphasis added); see also ICPC State Pages, California,
http://icpcstatepages.org/california/homestudies/ (last visited May 16,
2019) (in California, an approved home study is valid for two years).
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Donald W. v. DCS
Opinion of the Court
have been removed from the foster mother’s care at any time for a variety
of reasons.
¶57 DCS expressed concern that Melody and Father lacked a bond
in November 2015—even before the results of the ICPC were known—and
before it permitted contact between Father and Melody. In response to
DCS’s concern, the court directed DCS “to provide a written transition plan
of Melody to the father” at that time. Five months later, the case manager
finally sent Father an email that DCS refers to as the transition plan. The
email suggested—but did not require—Father “try to come out twice a
month to Arizona to visit Melody as much as [he] can,” and to “begin
calling Melody” for 5–10 minutes, four times a week for Melody to “get[] to
know [Father’s] voice and also recognize it.” To support Father in
completion of the transition, the case manager testified that DCS also
offered supervised visitation if he was able to come to Arizona.
¶58 The in-person visitation plan lacked any prospect of success.
Father told the case manager that he would only be able to visit “every four
months . . . so [he could] save enough money to actually be able to come
out . . . .” and “make sure that [his] bills [were] taken care of.” Father
testified that DCS told him “that’s going to be a problem,” but he did not
believe there was “any leeway” and understood DCS’s position to be “do
this or . . . you don’t see your daughter.” The case manager confirmed that
DCS was aware that “he had money issues . . . and he [wouldn’t be] able to
complete [the plan].”
¶59 However, DCS did not modify the visitation
recommendation, work with Father to establish a plan with which Father
could comply, or attempt to send Melody to California to visit Father. The
case manager testified that she did not try to secure financial assistance for
Father’s visits, and she was not aware if DCS offered such services. See In re
Riva M., 235 Cal. App. 3d 403, 414 (1991) (an effort to assist where
compliance proves difficult may include helping to provide transportation).
Father did travel to Arizona to visit Melody twice between March and June
2016.
¶60 Although DCS maintains that Father should have engaged in
a calling plan to successfully bond with Melody, other than hearing his
voice, it is not clear what DCS hoped to accomplish by requiring him to
make several phone calls per week with a child who was only one and a
half years old. Even at the time of the 2017 Hearing—when Melody was
two and a half years old—the case manager testified that “she kind of
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Donald W. v. DCS
Opinion of the Court
babbles on, because she can’t really say a lot of words right now” and
admitted that phone calls with an infant were “almost of [no] value.”
¶61 In the June 2016 DCS Report—within three months of sending
the transition-plan email—DCS stated that it “no longer believe[d] that it
[was] in the child’s best interest to place her in the care of his [sic] father as
he does not appear to be committed in the reunification process” and
recommended changing the case plan to severance and adoption. In its
subsequent termination motion, DCS falsely claimed that “Father ha[d]
failed to keep most of the weekly appointments for telephonic contact with
the child.”
¶62 The foster mother reported that Father missed only five calls
of the fifty days on which Father would have been scheduled to call in that
period. More importantly, Father was establishing a relationship with
Melody in the best way he could under the circumstances. In addition to
the scheduled telephone calls, Father and the foster mother—without the
assistance of DCS—developed their routine of sending the Glide videos
every morning and night to accommodate both of their schedules. Because
of the Glide videos, Melody was able to acknowledge Father’s face and
voice. Melody responded to Father’s Glide videos by saying “hi daddy,”
“babbling,” and sending him kisses.
2. DCS Failed to Make a Diligent Effort By Failing to
Communicate With Father When It Perceived that His
Efforts Were Deficient.
¶63 DCS’s plan lacked justification, and the case manager
acknowledged that the requirements were “not feasible” for Father, yet
DCS failed to help Father comply. Consequently, the plan was guaranteed
to increase Melody’s time in the out-of-home placement, which
strengthened Melody’s attachment to the foster mother, and created a
circumstance Father could not remedy effectively.
¶64 Although DCS’s July 2016 motion for termination alleged that
the lack of a bond precluded Father from being able to care for Melody,
DCS did not commission Dr. Oakley to perform the Bonding Assessment
until immediately before the July 2017 Hearing, almost one year later. By
then, Dr. Oakley observed that Melody had a “strong attachment to [the
foster mother],” and concluded that, if removed from the foster mother’s
care, Melody “may incur long-term negative effects.” She opined that
although “distance [was] why [Father] ha[d] not spent more time with
22
Donald W. v. DCS
Opinion of the Court
[Melody],” “the longer [Melody was] out of [Father’s] home, the harder it
[would] be for her to transition from her home with [the foster mother].”
¶65 Based on Dr. Oakley’s assessment, DCS maintained that the
lack of a bond—a situation it had effectively created—could be remedied
only by frequent in-person visitation. DCS argued that termination was
appropriate because “we don’t know whether Father is willing to relocate
to establish a relationship. And we don’t know how long that would take
as well.” The case manager testified that Glide videos—which Father had
been consistently sending daily for over a year and a half—were not
interactive like “Skype” and were insufficient for creating and maintaining
a “normal parent-child relationship.”
¶66 DCS failed to inform Father of the deficiencies it perceived
with his compliance with the case plan and did not allow Father to satisfy
its requirements. See Roberto F., 232 Ariz. at 56, ¶ 54 (“fault . . . lies with
[DCS], not Father” when DCS fails to inform him that his attempt to satisfy
the case plan failed or is deficient). Father testified that he used Glide to
communicate because Melody was unable to use the phone on her own,
and, although he attempted to use other video chat services, the foster
mother was familiar only with Glide and Father was limited to what she
knew how to use.
¶67 Even if Glide videos were somehow less effective than a
“more interactive chat,” it was DCS’s duty to communicate the purported
deficiency to Father and to teach the foster mother how to use alternative
methods or arrange for someone to facilitate the type of communication
that it would consider acceptable. As it was, without the foster mother’s
cooperation with Father, it is uncertain whether DCS would have facilitated
any contact for Father and Melody. See Santosky, 455 U.S. at 763 (“Indeed,
because the child is already in agency custody, the State even has the power
to shape the historical events that form the basis for termination.”).
C. The Court Erred By Considering Only DCS’s Efforts in the Final
Seven Months of the Time-in-Care, and By Finding that Those
Efforts Were Diligent.
¶68 By failing to consider the totality of the circumstances of the
dependency, the court erroneously found that because “DCS allowed
visitation every weekend and paid for his travel from Sacramento to
Arizona,” DCS made a diligent effort; and “[t]he failure of reunification
[was] due to Father’s failure to participate, not due to any failure by DCS.”
The conclusion was erroneous for two reasons. First, the court abused its
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Donald W. v. DCS
Opinion of the Court
discretion by only considering DCS’s efforts in the final seven months of
the more than three and a half years Melody was in DCS’s custody. Second,
the evidence does not support the finding.
1. The Court Erred By Finding DCS Made Diligent Efforts
Because It Failed to Consider DCS’s Contribution to the
Circumstances Existing at the Time of the Hearing.
¶69 The court’s order reflects a finding based solely on the
services the court ordered following the 2017 Hearing. However, under
A.R.S. § 8-533(B)(8), the court was required to examine not only the final
months but the entire dependency.
¶70 From the finding of dependency in May 2015 until June 2016,
the case plan was reunification. At that point—just 11 months after the
dependency finding—DCS moved to change the plan to severance and
adoption. After the July 2017 Hearing, the court reinstituted the
reunification plan, but DCS again moved to change the plan to severance
and adoption in February 2018. Although the case plan was reunification
for a cumulative total of fifteen months, DCS failed to diligently provide
appropriate services to remedy the circumstances as DCS believed them to
be, and its intermittent efforts only undermined Father’s efforts and
prolonged the dependency. The juvenile court failed to consider these
circumstances.
¶71 Examples of DCS’s failure to follow the court’s orders are
numerous. In July 2017, the court ordered DCS to “staff with the unit
psychologist regarding all factors in this matter including father’s financial
status to develop a transition plan.” The October 2017 DCS Report states
that the unit psychologist recommended Dr. Oakley prepare the transition
plan because she was familiar with Father and Melody’s relationship. This
result was anticipated and addressed in the 2017 Hearing and the court’s
order. But the two subsequent DCS Reports prepared before the 2018
Hearing made no mention of a transition plan. Nor did the case manager
testify that one was created or in place.
¶72 DCS failed to comply with the court’s orders regarding
providing Father airfare for his visits. Although Father purchased October
and November airfare and sent receipts, DCS refused to reimburse Father
for that travel upon his arrival in Arizona. Instead, on November 1, 2017,
DCS again moved to modify the juvenile court’s order, this time requesting
that it be permitted to wait three weeks to reimburse Father to allow for
approval and processing. Even after the court modified the order on
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Donald W. v. DCS
Opinion of the Court
November 21, 2017—based on the timeline and procedure DCS outlined in
its motion—DCS failed to reimburse Father for the visits consistent with the
court order.
¶73 The case manager testified that when Father sent her the
receipt, as he was directed, she forwarded it to the resource liaison who was
responsible for getting him to fill out the documentation. The additional
documentation was not mentioned in the court’s order or DCS’s motion.
The case manager admitted that because of a lack of communication there
was an issue with the reimbursement, and she did not know “exactly how
long it [took]” for Father to receive payments. Father, however, testified
reimbursement took between three to six months. He testified that he
contacted his attorney and DCS to follow up with the payment, which the
January 2018 DCS Report confirmed. Nevertheless, in February 2018, DCS
again moved to terminate the parent-child relationship citing Father’s failure
to visit.
2. The Court Erred By Finding that Father’s Failure to Visit
More Frequently Indicated He Lacked Parental Fitness.
¶74 Under A.R.S § 8-533(B)(8)(c), the court found that “the
circumstance[] existing now that ha[s] caused the Child to be in an
out-of-home placement [is] Father’s substantial failure to engage in
visitation.” The court supported its order for termination by finding that
DCS’s visitation requirement was reasonable considering Dr. Oakley’s
conclusion that Melody was strongly bonded to the foster mother. The
court then found that Father had failed to remedy the bonding problem and
would be unable to do so in the near future because (1) Father’s visits had
decreased since the Bonding Assessment; and (2) Father’s reason “to justify
his failure to visit the Child more frequently was financial,” but his “reason
lack[ed] credibility given that DCS reimburse[d] Father for his
transportation costs.” The record does not support the court’s two findings
regarding Father’s alleged shortcomings.
¶75 First, Father’s visits did not decrease after the Bonding
Assessment. Neither side disputes that Father made more visits in the eight
months following the Bonding Assessment than he did in the first two and
a half years of Melody’s life.
¶76 Second, DCS failed to provide evidence establishing timely
reimbursement of Father’s travel costs. At the end of the hearing, the court
requested reimbursement records because, it “was not really addressed in
DCS’s testimony, and [the court] ha[d] no record of reimbursements and
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Donald W. v. DCS
Opinion of the Court
whether they occurred when he arrived.” DCS’s attorney apologized for
not producing reimbursement records and stated that the “case manager
testified that the reimbursements were made.” However, the case manager
did not testify that the reimbursements were made. Of the four documented
flights that Father made after the July 2017 court order, the case manager
testified that DCS provided “one or two of those flights.” Regarding the
remaining flights that Father purchased, she could testify only to what the
court ordered, which was for DCS to reimburse within three weeks. She
specifically testified that she did not know how long it took to reimburse
Father. Father testified that “[he] booked those tickets in advance, and [he]
didn’t get a reimbursement until . . . three to six months later,” which is
supported by the case manager’s testimony that a lack of communication
had caused a delay in processing and the January 2018 DCS Report noting
Father had not received payment.
¶77 Ultimately, without evidence showing that DCS was
reimbursing Father per the court order, Father’s reason that he could not
continue visiting was not a matter of credibility, just pure mathematics.
DCS may not have unlimited resources, but Father’s resources are
demonstrably more limited. Father’s income was approximately $2000 a
month, he had $100 in savings, and he was living paycheck to paycheck.
When traveling to Arizona, Father was responsible for his hotel, food, and
“supplies” for Melody such as snacks and diapers. Had Father completed
weekly visits, DCS procedures would have required Father to spend his
entire monthly earnings on airfare and then wait for three to six months for
reimbursement. Such a process does not consider how Father would be able
to maintain his home and care for the other children in his care in California
while waiting for the reimbursement.
¶78 The evidence shows, and the case manager admitted, that
Father was complying with the court-ordered visitation before the court
modified the reimbursement order. Without evidence establishing that
DCS was reimbursing Father in a manner that allowed him to travel, the
evidence does not support a finding that Father’s failure to visit Melody
was due to parental unfitness. See Maricopa County Juv. Action No. JS-500274,
167 Ariz. 1, 5 (1990) (“The important consideration here is that there are
fundamental constitutional rights involved in severance cases. Such
constitutional rights can be overridden only by the combined elements of
statutorily defined improper behavior by the parent and the child’s best
interests.” (emphasis added)).
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Donald W. v. DCS
Opinion of the Court
D. The Court Erred By Finding That Father Was Not Able to Exercise
Proper Care and Control.
¶79 Finally, the court was required to find by clear and convincing
evidence that “there [was] a substantial likelihood that [Father would] not
be capable of exercising proper and effective parental care and control in
the near future.” A.R.S. § 8-533(B)(8)(c). Again, the record lacks evidence
that Father has ever been incapable of parenting Melody.
¶80 The ICPC noted: Father’s ex-wife stated “[he] was a good
father, who cares and provides for his children”; it was “obvious that [his
children] feel loved and cared for by their father and that he is very
involved in their lives”; Father’s references “all stated that [he] is an
excellent parent to his children”; and the ICPC caseworker observed “it
appears that he has a positive relationship with his children and they look
to him for attention and affection.” The case manager testified that
“[Melody] does do well during scheduled visits with Father.” Dr. Oakley
reported that she saw no “obvious risks” with his parenting, Father likely
had the skills to be an adequate parent, he appeared to care for Melody, he
was appropriate with her, and Father seemed to be bonded to her.
¶81 Moreover, under the circumstances, Father’s inability to
replicate the foster mother’s bond with Melody does not show that he was
“not capable of exercising proper and effective parental care and control.”
In any severance proceeding, the material issue facing the
court is whether a parent has the ability to properly parent
his/her child; it is irrelevant whether a child has a stronger
attachment to their foster parents, whether foster parents are
more “nurturing,” or whether foster parents might be more
capable or better parents than a natural parent.
Roberto F., 232 Ariz. at 54, ¶ 42. The severance statute does not permit
termination of a parent-child relationship based on the lack of a bond. As
previously discussed, any perceived lack of a bond between Melody and
Father was not because of Father’s lack of effort, but because of DCS’s delay,
contact restrictions, and substantial failure to try to unify Melody with
Father.
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Donald W. v. DCS
Opinion of the Court
CONCLUSION
¶82 Accordingly, because we find a complete absence of evidence
in the record to support the juvenile court’s findings and conclusions
supporting the termination of Father and Melody’s parent-child
relationship, we vacate the order.
AMY M. WOOD • Clerk of the Court
FILED: AA
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