Pearson Y. v. Dcs ( 2020 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
PEARSON Y., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, L.Y.,
THE QUECHAN INDIAN TRIBE, Appellees.
No. 1 CA-JV 20-0097
FILED 9-1-2020
Appeal from the Superior Court in Maricopa County
No. JD 29791
The Honorable Sara J. Agne, Judge
AFFIRMED
COUNSEL
David W. Bell, Attorney at Law, Higley
By David W. Bell
Counsel for Appellant
Arizona Attorney General’s Office, Tucson
By Dawn R. Williams
Counsel for Appellee, Department of Child Safety
Rosette LLP, Attorneys at Law, Chandler
By Julian Angelo Nava
Counsel for The Quechan Indian Tribe
PEARSON Y v. DCS, et al.
Decision of the Court
MEMORANDUM DECISION
Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Jennifer M. Perkins and Judge David B. Gass joined.
B R O W N, Judge:
¶1 Pearson Y. (“Father”) appeals the juvenile court’s order
terminating his parental rights to his son, L.Y., born in 2014. Father
challenges the court’s findings that (1) good cause existed to deviate from
the Indian Child Welfare Act (“ICWA”) placement preferences, (2) the
Department of Child Safety (“DCS”) made active efforts to comply with
such preferences, and (3) termination was in L.Y.’s best interests. For the
following reasons, we affirm.
BACKGROUND
¶2 Father and Lisa T. (“Mother”) are the biological parents of
L.Y., who is an enrolled member of the Quechan Tribe (“Tribe”) and eligible
for enrollment in the Navajo Nation because Father is Navajo. L.Y. has been
diagnosed with autism spectrum disorder. Because of his developmental
and behavioral needs, L.Y. receives services through the Department of
Developmental Disabilities and is enrolled in the Arizona Long Term Care
System, which means he has significant delays that will inhibit him for a
lengthy period of time. L.Y. attends a special daycare developmental
preschool and engages in behavioral, occupational, physical, and speech
therapy.
¶3 In January 2015, DCS took L.Y. into custody and filed a
petition for dependency, alleging Mother and Father neglected the child. In
December, the juvenile court dismissed the dependency and returned L.Y.
to Mother’s custody, with Father being allowed supervised visitation with
L.Y.
¶4 In March 2017, DCS again took L.Y. into custody. In its
dependency petition, DCS alleged Mother and Father were neglecting L.Y.
due to substance abuse. Mother admitted she was drinking a liter of vodka
per day to help her cope with pain resulting from a domestic violence
incident. DCS alleged Father was using methamphetamine. During a team
decision-making meeting, Father was “uncooperative and aggressive,” and
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PEARSON Y v. DCS, et al.
Decision of the Court
appeared to be “under the influence of a substance.” The petition also
alleged Mother and Father exposed L.Y. to domestic violence in the home
and failed to provide him a safe environment. DCS acknowledged L.Y. was
an Indian child and stated ICWA applied. DCS notified the Navajo Nation
and the Tribe of the dependency proceeding.
¶5 The juvenile court held a permanency planning hearing and
pretrial conference in August 2017. Father failed to appear at the hearing,
and the court found L.Y. dependent as to Father, with a case plan of family
reunification concurrent with severance and adoption.
¶6 L.Y. was placed in the same foster home—a non-ICWA
placement—that had provided for his care during his first year of life. Over
the course of the 2017 dependency, DCS investigated several placement
possibilities that complied with ICWA, including family members. The
Tribe did not object to L.Y.’s foster home placement, but indicated it would
seek to place L.Y. in a tribal placement if the case plan changed to severance
and adoption. At a July 2018 report and review hearing, after the juvenile
court denied DCS’s request to change the case plan to severance and
adoption, a representative for the Tribe informed the court that the Tribe
and DCS were attempting to place L.Y. in an ICWA-compliant placement.
¶7 In February 2019, the juvenile court changed the case plan to
severance and adoption. DCS then moved to terminate both parents’
parental rights, alleging they were unable to discharge parental
responsibilities because each had a history of chronic substance abuse and
they failed to remedy the circumstances that caused L.Y. to be in an out-of-
home-placement for more than 15 months. See A.R.S. § 8-533(B)(3), (8). At
the contested termination hearing, the court received testimony from the
parents’ psychologist, DCS’s safety specialist, an ICWA-qualified expert,
and Mother. Father chose not to testify and the court drew a negative
inference from his decision, explaining that whether Father was sober
enough to be able to provide minimally adequate parenting of L.Y. was a
matter “uniquely within Father’s knowledge.”
¶8 The juvenile court granted DCS’s motion, finding DCS
proved the alleged grounds as to both parents and termination was in L.Y.’s
best interests. The court also addressed ICWA compliance, finding DCS
engaged in active efforts to prevent the breakup of L.Y.’s family and good
cause existed to depart from ICWA placement preferences. Father timely
appealed. The Tribe joined in the appeal by filing a notice in support of
Father’s appeal pursuant to ARCAP 13(h). Mother is not a party to this
appeal.
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PEARSON Y v. DCS, et al.
Decision of the Court
DISCUSSION
¶9 To terminate Father’s parental rights, DCS was required to
prove by clear and convincing evidence that a statutory ground for
termination exists, and by a preponderance of evidence that termination is
in the child’s best interests. Crystal E. v. Dep’t of Child Safety, 241 Ariz. 576,
577, ¶ 4 (App. 2017); Ariz. R.P. Juv. Ct. 66(C). In addition, because L.Y. is
an Indian child, DCS had to (1) prove beyond a reasonable doubt that
continued custody by Father would “likely result in serious emotional or
physical damage” to L.Y., and (2) satisfy the juvenile court that active efforts
were made to “provide remedial services and rehabilitative programs
designed to prevent the breakup of [L.Y.’s] family and that those efforts
have proven unsuccessful.” Ariz. R.P. Juv. Ct. 66(C); see also 25 U.S.C. §
1912(d), (f); Valerie M. v. Ariz. Dep’t of Econ. Sec., 219 Ariz. 331, 333, ¶ 3
(2009).
¶10 Father does not challenge the juvenile court’s finding that
DCS proved the statutory grounds for termination by clear and convincing
evidence or the court’s finding that DCS established beyond a reasonable
doubt that continued custody by Father would likely result in serious
emotional or physical damage to L.Y. Instead, Father’s arguments are
centered on whether good cause existed to deviate from ICWA’s
preferences for placement of a dependent child. The Tribe supports
Father’s arguments.
A. Departure from ICWA Placement Preferences
¶11 The juvenile court may depart from ICWA placement
preferences only upon a good cause finding, and we review such a finding
for an abuse of discretion. Navajo Nation v. Ariz. Dep’t of Econ. Sec., 230 Ariz.
339, 343, ¶ 14 (App. 2012). We do not substitute our opinion for that of the
juvenile court, and we will uphold the court’s factual findings unless they
are unsupported by evidence. Id. at 344, ¶ 14; Ariz. Dep’t of Econ. Sec. v.
Matthew L., 223 Ariz. 547, 549, ¶ 7 (App. 2010).
¶12 ICWA establishes the following placement preferences: first
with “a member of the Indian child’s extended family,” second with “a
foster home licensed, approved, or specified by the Indian child’s tribe,”
third with “an Indian foster home licensed or approved by an authorized
non-Indian licensing authority,” and finally, with “an institution for
children approved by an Indian tribe or operated by an Indian organization
which has a program suitable to meet the Indian child’s needs.” 25 U.S.C.
§ 1915(b).
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PEARSON Y v. DCS, et al.
Decision of the Court
¶13 In finding good cause existed to depart from ICWA
placement preferences, the juvenile court supported its determination
based on several factors, including: (1) “no suitable options could be located
despite active efforts by DCS and the tribes,” (2) “the testimony of the
qualified [ICWA] expert witness,” (3) “the abundance of evidence showing
[L.Y.’s] growth in [the current] placement,” including the placement’s
ability to meet L.Y.’s many special needs, (4) L.Y.’s “parents’ and tribes’ lack
of objections” to the current placement, (5) “the placement’s willingness to
continue exposing [L.Y.] to his cultural heritage,” and (6) “the Mother’s
evident good, working relationship with placement.”
¶14 Father argues the court lacked good cause to depart from
ICWA placement preferences and DCS did not diligently attempt to find an
ICWA-compliant placement. The record shows otherwise. The juvenile
court clearly articulated the factors that support its good cause
determination. Indeed, the court’s minute entries over the course of the
dependency reveal that neither Father, Mother, nor the Tribe objected to the
placement, and that a Tribal representative acknowledged DCS and the
Tribe had engaged in efforts to find an ICWA-compliant placement. The
ICWA expert witness opined that although the placement was not ICWA-
compliant, there was good cause to depart from the placement preferences
because the foster home was able to meet L.Y.’s extensive special needs.
And Mother testified to her positive relationship with the placement.
¶15 A court may determine, as occurred here, that departure from
ICWA placement preferences is appropriate; the factors the court must
consider “are case-specific, but in all cases must be balanced against the
statutory presumption that placement consistent with ICWA preferences is
in the best interest of the child.” Navajo Nation, 230 Ariz. at 346, ¶24. The
record shows the juvenile court based its good-cause determination on
permissible factors, including, among other things, the “extraordinary
physical, mental, or emotional needs” of L.Y., and the “unavailability of a
suitable placement after a determination by the court that a diligent search
was conducted to find suitable placements meeting the preference criteria,
but none has been located.” See 25 C.F.R. § 23.132(c)(4), (5) (2016).
¶16 Accordingly, the court properly balanced case-specific factors
when it determined departure from ICWA placement preferences was
appropriate. Father has shown no abuse of discretion.
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PEARSON Y v. DCS, et al.
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B. Active Efforts Under ICWA
¶17 Father argues the juvenile court committed reversible error
when it found DCS made active efforts to prevent the breakup of L.Y.’s
family. DCS must prove active efforts by clear and convincing evidence,
but we review the evidence in the light most favorable to upholding the
court’s finding. Yvonne L. v. Ariz. Dep’t of Econ. Sec., 227 Ariz. 415, 421–22,
¶¶ 26–27 (App. 2011).
¶18 We disagree that DCS failed to meet its burden of proving it
made active efforts to prevent break-up of the relationship. Father does not
specify what facts show DCS’s failure to undertake active efforts, other than
to argue that L.Y.’s placement in a non-ICWA-compliant placement did not
constitute active efforts. Father cites no authority for the proposition that a
non-ICWA-compliant placement means DCS has failed as a matter of law
to undertake the active efforts. Instead, his only argument on this point
rests on the non-ICWA placement.
¶19 As noted above, the juvenile court did not abuse its discretion
in deviating from ICWA placement preferences. Moreover, the court based
its active efforts finding on significant evidence: Father was offered case
management, substance abuse treatment and testing, visits with L.Y., and a
psychological evaluation. DCS workers arranged transportation for Father
to visit L.Y., and a DCS employee even accompanied Father to a store to
teach him how to shop for L.Y.’s specific dietary needs. Father either chose
not to engage or did not comply with many of the services DCS offered.
Thus, the court did not err in finding that DCS made active efforts as
required by ICWA.
C. Best Interests
¶20 When assessing the best interests of the child, the juvenile
court’s primary concern must be the child’s stability and security. Alma S.
v. Dep’t of Child Safety, 245 Ariz. 146, 150, ¶ 12 (2018). Termination is
appropriate if “(1) the child will benefit from severance; or (2) the child will
be harmed if severance is denied.” Id. at ¶ 13. In determining that
severance was in L.Y.’s best interests, the court noted the presence of a
statutory ground for severance had a negative effect on the child and that
the immediate availability of an adoptive family for L.Y. favored severance.
The court also found that based on Father’s active alcohol abuse, L.Y. would
suffer serious emotional or physical damage if Father’s parental rights were
not terminated.
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PEARSON Y v. DCS, et al.
Decision of the Court
¶21 Father argues the juvenile court erred in determining
termination of his rights was in L.Y.’s best interests but does not challenge
any of the court’s findings related to L.Y.’s best interests. Rather, Father
essentially repeats the same contentions addressed above—that DCS did
not comply with ICWA standards by failing to find an ICWA-complaint
placement and failing to make active efforts to prevent the breakup of the
Indian family. But as we explained, those arguments are not persuasive.
Accordingly, reasonable evidence supports the best interests finding.
CONCLUSION
¶22 We affirm the juvenile court’s order terminating Father’s
parental rights to L.Y.
AMY M. WOOD • Clerk of the Court
FILED: AA
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