Willie G. & Bonnie H. v. Ades, Nycole G. ( 2005 )

FILED BY CLERK
JUL 29 2005
IN THE COURT OF APPEALS COURT OF APPEALS
STATE OF ARIZONA DIVISION TWO
DIVISION TWO
WILLIE G., )
) 2 CA-JV 2004-0065
Appellant, ) 2 CA-JV 2004-0066
) (Consolidated)
v. ) DEPARTMENT B
)
ARIZONA DEPARTMENT OF ) OPINION
ECONOMIC SECURITY and )
NYKOLE G., )
)
Appellees. )
)
)
BONNIE H., )
)
Appellant, )
)
v. )
)
ARIZONA DEPARTMENT OF )
ECONOMIC SECURITY and )
NYKOLE G., )
)
Appellees. )
)
APPEALS FROM THE SUPERIOR COURT OF PIMA COUNTY
Cause No. 12152400
Honorable Elizabeth Peasley-Fimbres, Judge Pro Tempore
AFFIRMED
Joan Spurney Caplan Tucson
Attorney for Appellant Willie G.
Jacqueline Rohr Tucson
Attorney for Appellant Bonnie H.
Terry Goddard, Arizona Attorney General
By Dawn R. Williams Tucson
Attorneys for Appellee Arizona
Department of Economic Security
P E L A N D E R, Chief Judge.
¶1 Appellants Willie G. and Bonnie H. appeal from the juvenile court’s order of
July 14, 2004, adjudicating their daughter, Nykole G., a dependent child. In these
consolidated appeals, the parents collectively challenge the court’s jurisdiction to entertain
the dependency proceeding and the sufficiency of the evidence establishing that Nykole was
dependent as to Willie. They also argue the juvenile court abused its discretion and
deprived them of constitutional rights by refusing to let them appear telephonically at the
contested dependency hearing and in other respects.
¶2 As defined in A.R.S. § 8-201(13)(a), a dependent child includes one:
(i) In need of proper and effective parental care and
control and who has no parent or guardian, or one who has no
parent or guardian willing to exercise or capable of exercising
such care and control[;]
(ii) Destitute or who is not provided with the necessities
of life, including adequate food, clothing, shelter or medical
care[; or]
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(iii) A child whose home is unfit by reason of abuse,
neglect, cruelty or depravity by a parent, a guardian or any
other person having custody or care of the child.
The petitioner’s burden of proof in a dependency proceeding is a preponderance of the
evidence. A.R.S. § 8-844(C)(1); In re Cochise County Juvenile Action No. 5666-J, 133
Ariz. 157, 159, 650 P.2d 459, 461 (1982).
Factual and Procedural Background
¶3 Before Nykole was born on June 5, 2001, the Arizona Department of
Economic Security (ADES) and Child Protective Services (CPS) had been involved over a
period of years with Bonnie and four older children not fathered by Willie. ADES had first
filed dependency petitions in 1993 and 1994 as to Bonnie’s daughters Alexandria and
Blake, born in 1992 and 1994. Bonnie ultimately relinquished her parental rights to those
two in 1996. She gave birth to a third daughter, Bridget, in 1997 and to a son, Anthony, in
1999. ADES took Bridget and Anthony into protective custody in 2000, and they were
adjudicated dependent as to Bonnie in September of that year. Within days of Nykole’s
birth in June 2001, ADES filed a dependency petition as to her as well, and the juvenile
court adjudicated Nykole dependent as to both Bonnie and Willie in September 2001.
¶4 The parents appealed, and this court reversed the adjudication in September
2002, finding ADES had failed to prove by a preponderance of the evidence that Nykole was
in fact dependent as to either Bonnie or Willie. Bonnie H. v. Ariz. Dep’t of Econ. Sec.,
Nos. 2 CA-JV 2001-0077, 2 CA-JV 2001-0078 (consolidated) (memorandum decision filed
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Sept. 13, 2002). The dependency proceeding as to Nykole was dismissed soon after our
mandate issued, and Nykole was returned to her parents’ custody in December 2002. In
light of those and other events, severance proceedings that had been pending as to Bridget
and Anthony were also dismissed. The dependency proceeding remained open as to them,
but the case plan goal for Bridget and Anthony was changed from severance to family
reunification.
¶5 Bridget and Anthony were not returned to Bonnie’s physical custody until
February 2004. Despite the passage of over three years since the children had been
adjudicated dependent, by February 2004, Bonnie and Willie still had not achieved stable
employment, steady income, or independent housing. They and Nykole had been living with
Willie’s parents and planning to move to Kentucky to live with an aunt once Bonnie
regained custody of Bridget and Anthony. On March 26, 2004, the juvenile court expressly
denied permission for Bonnie and Willie to take Bridget and Anthony from Arizona to
Kentucky, stating:
At this point I don’t feel comfortable saying[, “]Okay, you can
move to Kentucky now.[”] I want to see a period of time in
which the children are placed with you and things are going
well. I’m really encouraged by what I’m hearing, but I need to
see a bit more time.
¶6 Nonetheless, sometime between April 9 and April 11, Bonnie and Willie took
all three children and left Arizona for Kentucky. ADES learned that the family was in a
motel in Texas and arranged for authorities there to pick up Bridget and Anthony on April
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11. ADES then filed a dependency petition as to Nykole and obtained a court order
authorizing CPS to take her into custody. The same authorities picked Nykole up on April
13 and placed her in a temporary foster home with Bridget and Anthony. Although all three
children were returned to Arizona, Bonnie and Willie did not return but, instead, continued
to Kentucky without the children.
¶7 In May 2004, the juvenile court denied the parents’ oral request for permission
to appear telephonically at the contested dependency hearing. In June, it denied a written
motion to reconsider its ruling. Neither parent appeared in person at the contested
dependency hearing on July 7, at which the state presented the testimony of five witnesses
and other evidence, and the juvenile court found Nykole’s dependency had been proved by
a preponderance of the evidence as to both parents.
Legal Issues
¶8 Bonnie and Willie first challenge the jurisdiction of the juvenile court to order
Nykole to be taken into custody in Texas and to entertain dependency proceedings in
Arizona. Bonnie argues that, because Nykole was not the subject of a pending dependency
action or custody order when she left the state, Arizona lacked jurisdiction over her once she
was physically outside Arizona. Both Bonnie and Willie argue that the Uniform Child
Custody Jurisdiction and Enforcement Act (UCCJEA), A.R.S. §§ 25-1001 through 25-1067,
does not apply in these circumstances. Matters of statutory interpretation are questions of
law, which we review de novo. Mary Lou C. v. Ariz. Dep’t of Econ. Sec., 207 Ariz. 43, ¶
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9, 83 P.3d 43, 47 (App. 2004). Our review of mixed questions of fact and law is similarly
de novo. Wilmot v. Wilmot, 203 Ariz. 565, ¶ 10, 58 P.3d 507, 510 (2002).
¶9 Contemporaneously with its motion for an order authorizing CPS to take
custody of Nykole in Texas, ADES filed a dependency petition concerning Nykole,
mistakenly entitled “Third Amended Dependency Petition.” Although ADES had indeed
filed a previous dependency petition and two subsequent amended petitions, all three
preceded our decision on appeal, which reversed the September 2001 adjudication of
dependency and led in turn to the termination of that proceeding. As a result, the new
petition was mistitled an “amended” petition. ADES rectified the mistake three days later
by filing a “dependency petition and petition for paternity and financial responsibility.”
¶10 Willie argues that the order authorizing ADES to take custody of Nykole was
invalid because the “third amended dependency petition” on which it was based had been
invalid. Although the petition was indeed mislabeled, it was replaced almost immediately
by the substantively similar, and correctly titled, dependency petition filed three days later.
The error in the title of the first petition was one of form, not substance, and it was promptly
remedied. We decline to hold that the error in labeling the petition invalidated the juvenile
court’s attendant order authorizing CPS to take Nykole into custody pursuant to the general
authority conferred by A.R.S. § 8-821.
¶11 Like Arizona, Texas also has adopted the UCCJEA, Tex. Fam. Code Ann.
§§ 152.001 through 152.317, which encompasses dependency proceedings among the
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various “[c]hild custody proceeding[s]” to which the Act applies. A.R.S. § 25-1002(4)(a).
An Arizona court “has jurisdiction to make an initial child custody determination” if Arizona
“is the home state of the child on the date of the commencement of the proceeding.” § 25-
1031(A)(1). Pursuant to § 25-1031(A)(4), Arizona also has jurisdiction if no other state
would have jurisdiction under any of the alternative criteria specified in § 25-1031(A)(1),
(2), or (3).
¶12 Clearly, Arizona was Nykole’s “home state” by virtue of her having lived here
since her birth, including “at least six consecutive months immediately before the
commencement” of the dependency proceeding. § 25-1002(7)(a). Notwithstanding her
removal from the state only days before ADES filed the correctly titled dependency petition,
Arizona remained Nykole’s home state for purposes of the UCCJEA. Moreover, no other
state qualified as her home state under the definitions of § 25-1002(7)(a), making Arizona’s
jurisdiction manifest under either § 25-1031(A)(1) or (A)(4). We thus reject the parents’
contentions that the juvenile court lacked jurisdiction over this dependency proceeding.
¶13 Second, the parents contend the juvenile court abused its discretion by
refusing to allow them to participate in the contested dependency hearing by telephone from
Kentucky. We review a juvenile court’s ruling on a discretionary matter for a clear abuse
of the court’s discretion. E.g., In re Stephanie B., 204 Ariz. 466, ¶ 8, 65 P.3d 114, 116
(App. 2003) (determination of restitution award); William Z. v. Ariz. Dep’t of Econ. Sec.,
192 Ariz. 385, ¶ 9, 965 P.2d 1224, 1226 (App. 1998) (ruling on timeliness of motion to
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intervene); In re Pima County Severance Action No. S-2248, 159 Ariz. 302, 305, 767 P.2d
25, 28 (App. 1988) (rulings on requests for psychological examination of child and for
consolidation of one sibling’s termination hearing with another’s dependency hearing).
Determining what constitutes good cause for a party’s failure to appear at a hearing is
“largely discretionary.” John C. v. Sargeant, 208 Ariz. 44, ¶ 13, 90 P.3d 781, 784 (App.
2004).
¶14 Rule 42, Ariz. R. P. Juv. Ct., 17B A.R.S., provides that a juvenile court “may
permit telephonic testimony or argument or video conferencing in any dependency,
guardianship or termination of parental rights hearings.” The juvenile court thus had the
authority, but not an obligation, to allow the parents to appear by telephone rather than in
person. At a settlement conference in June 2004, at which Bonnie and Willie did appear
by telephone, the court admonished them that their personal appearances would be required
for the contested dependency hearings and that the court would “in all likelihood” deem
their absence from those proceedings an admission to the allegations of the dependency
petition.
¶15 The parents then filed a joint motion to reconsider, citing their “extremely
limited financial resources” as the reason they would “have great difficulty” returning to
Tucson for the hearing. As authority for their request to appear by telephone rather than in
person, they cited John C., which held that a father’s incarceration in a federal prison had
constituted good cause for his failure to appear at a jury trial in an action to terminate his
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parental rights. “[A] telephonic appearance [at a severance trial] is an acceptable alternative
to personal appearance when personal appearance is prevented by incarceration.” 208 Ariz.
44, ¶ 17, 90 P.3d at 785.
¶16 Bonnie and Willie, of course, were not incarcerated but, rather, elected to
leave the state with Nykole and her half-siblings. Then, despite knowing that the children
were being returned to Arizona, the parents chose to move to Kentucky without them. The
juvenile court found the parents’ absence was entirely voluntary, noting that they had left
Arizona surreptitiously and in contravention of the court’s express refusal to permit them
to do so in Bridget’s and Anthony’s dependency proceeding.
¶17 Although the court stated additional reasons for denying the parents’ request
to appear telephonically—the need to observe and monitor their behavior during the
hearing, particularly in light of Bonnie’s previous inappropriate, profane, and disrespectful
behavior in court; the “chronic problems” with the court’s unreliable telephone system; and
the anticipated length of the hearing—the court appears to have assigned greatest weight to
the voluntary nature of the parents’ departure and their resulting absence from the state. We
do not find its reasoning arbitrary, capricious, or inappropriate. See Quigley v. City Court,
132 Ariz. 35, 37, 643 P.2d 738, 740 (App. 1982) (abuse of discretion “is discretion
manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons”).
Even if another court might have ruled differently, see Toy v. Katz, 192 Ariz. 73, 83, 961
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P.2d 1021, 1031 (App. 1997), we cannot say the juvenile court abused its discretion by
insisting that Bonnie and Willie attend the dependency hearing in person.
¶18 Next, the parents contend that, by refusing to permit them to appear
telephonically and confer with counsel during the dependency hearing, the court denied
them due process and the right conferred by Rule 52(C)(4)(b), Ariz. R. P. Juv. Ct., to
confront and cross-examine the witnesses against them. The record does not support their
contention. Instead, it reflects that Bonnie and Willie were properly served the dependency
petition and notice of all hearings, were represented by counsel throughout, and were told
repeatedly by the court that their presence was required at all hearings and that their failure
to appear could result in Nykole’s being adjudicated dependent in their absence. The
essential requirements of procedural due process are reasonable notice and an opportunity
to be heard. J.D.S. v. Franks, 182 Ariz. 81, 95, 893 P.2d 732, 746 (1995); In re Pima
County Juvenile Action No. S-949, 131 Ariz. 100, 101, 638 P.2d 1346, 1347 (App. 1981).
Bonnie and Willie clearly received both.
¶19 On June 30, one week before the dependency adjudication hearing, the court
denied the parents’ joint motion to reconsider its earlier ruling on their oral request to attend
the hearing telephonically. In denying the motion to reconsider, the court underscored its
previous admonitions and its ruling requiring the parents to be physically present for the
hearing as contemplated by Rule 55(D)(2), Ariz. R. P. Juv. Ct. Although the parents now
argue they were financially unable to return to Arizona for the hearing, the juvenile court
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was entitled to view that as an unfortunate but easily foreseeable consequence of their
decision to leave the state and move to Kentucky.
¶20 The juvenile court cannot be said to have deprived Bonnie and Willie of their
constitutional rights simply by refusing to specially accommodate circumstances the parents
had themselves created by removing Bonnie’s two dependent children from the jurisdiction
and moving away, in contravention of an express ruling by the court. If Bonnie and Willie
were subsequently unable to exercise their rights to attend the dependency hearing, confer
with counsel, confront the witnesses against them, and otherwise participate in the
proceeding, that was a direct result of their decision to ignore the juvenile court’s ruling,
leave the state, and effectively forfeit the rights they now claim they were denied. We reject
their argument.
¶21 Finally, both parents contend there was no reasonable evidence to support the
court’s finding that Nykole was dependent as to Willie. On review of an adjudication of
dependency, we view the evidence in the light most favorable to sustaining the juvenile
court’s findings. In re Maricopa County Juvenile Action No. JD-5312, 178 Ariz. 372, 376,
873 P.2d 710, 714 (App. 1994). We generally will not disturb a dependency adjudication
unless no reasonable evidence supports it. In re Maricopa County Juvenile Action No.
JD-500200, 163 Ariz. 457, 461, 788 P.2d 1208, 1212 (App. 1989). And, because “[t]he
primary consideration in a dependency case is always the best interest of the child, . . . the
juvenile court is vested with ‘a great deal of discretion.’” Ariz. Dep’t of Econ. Sec. v.
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Superior Court, 178 Ariz. 236, 239, 871 P.2d 1172, 1175 (App. 1994), quoting In re
Cochise County Juvenile Action No. 5666-J, 133 Ariz. 157, 160, 650 P.2d 459, 462
(1982).
¶22 Although Willie was not formally a party to the dependency proceeding on
Bonnie’s older children, Bridget and Anthony, he had accepted reunification services from
CPS and had been participating voluntarily in the case plan with Bonnie. When Bridget and
Anthony were returned to Bonnie’s custody in 2004, Willie, Bonnie, and all three children
were living with Willie’s parents in a two-bedroom apartment, and Willie was working
“various hours for a temporary agency.” Willie’s and Bonnie’s lack of stable housing,
employment, and income had long been an issue in the case and remained so when they
absconded with the children in April 2004.
¶23 When the authorities in Texas arrived to take Bridget and Anthony into
custody, they noted a strong odor of marijuana emanating from the motel room. In response
to questioning, Willie produced a quantity of marijuana from a tin box underneath a bed.
As a result, he was arrested, jailed, and charged with possessing marijuana, rendering him
obviously unable to care for Nykole. After Willie’s arrest and the removal of Bridget and
Anthony, Bonnie had no money, no place to stay, and no means of providing for Nykole.
She and Nykole were living in a shelter when authorities returned two days later to take
Nykole into custody.
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¶24 Once in protective custody in Texas, Nykole was discovered to have a nickel-
sized, greenish bruise on her back, which she said had resulted from her mother’s kicking
her in the back. Nykole was placed together with Bridget and Anthony in a temporary foster
home in Texas until an Arizona CPS parent aide arrived to bring all three children back to
Arizona. Told by the foster mother that something was wrong with Nykole’s stomach, the
aide noticed that Nykole appeared bloated. The aide believed Nykole was probably bloated
from constipation, although Nykole stated repeatedly that her mother had hit her and kicked
her in the stomach.
¶25 Even before the family had left Arizona, the same aide had seen a bite mark
on Nykole’s hand that Nykole had variously attributed to each of her parents. Bonnie
explained the mark by saying she had “had Nykki bite herself so she could see . . . what it
felt like” when Nykole bit other children. Particularly in combination, Nykole’s injuries
afforded evidence of Willie’s failure or inability to protect her from abuse at her mother’s
hands and, thus, of Nykole’s dependency. The juvenile court also took judicial notice of
Willie’s role in leaving Arizona with Bonnie and her children knowing that the court had
denied Bonnie permission to remove Bridget and Anthony from the state.
¶26 The CPS caseworker testified that she had spoken with Willie by telephone
in May 2004. He had called her to say he wanted the dependency proceedings transferred
to Kentucky and the children returned to his and Bonnie’s custody there. Willie said,
however, that neither he nor Bonnie would submit to random urinalyses and that Bonnie
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would not seek mental health services in Kentucky. Willie denied the need for either. In
the same conversation, he claimed to have a job and housing in Kentucky, but he never sent
CPS requested confirmation of either. He similarly failed to document his assertion that the
marijuana charges against him in Texas had been dismissed.
¶27 In sum, the evidence supported the juvenile court’s findings and was more than
sufficient to sustain its conclusion that Nykole was dependent as to both Willie and Bonnie,
neither of whom was exercising, or currently able to exercise, “proper and effective parental
care and control” of Nykole. § 8-201(13)(a)(i). We therefore affirm the juvenile court’s
order adjudicating Nykole dependent as to both parents.
____________________________________
JOHN PELANDER, Chief Judge
CONCURRING:
____________________________________
M. JAN FLÓREZ, Presiding Judge
____________________________________
PHILIP G. ESPINOSA, Judge
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