Andrea F., Joshua W. v. Dcs, E.W. ( 2021 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
ANDREA F., JOSHUA W., Appellants,
v.
DEPARTMENT OF CHILD SAFETY, E.W., Appellees.
No. 1 CA-JV 20-0074
FILED 1-19-2021
Appeal from the Superior Court in Maricopa County
Nos. JD 36906
JS 19894
The Honorable M. Scott McCoy, Judge
REVERSED AND REMANDED
COUNSEL
Maricopa County Public Advocate, Mesa
By Suzanne W. Sanchez
Counsel for Appellant, Mother
John L. Popilek PC, Scottsdale
Counsel for Appellant, Father
Arizona Attorney General’s Office, Phoenix
By Doriane F. Neaverth
Counsel for Appellee, Department of Child Safety
ANDREA F., JOSHUA W. V. DCS, E.W.
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Jennifer B. Campbell delivered the decision of the Court,
in which Judge Lawrence F. Winthrop and Chief Judge Peter B. Swann
joined.
C A M P B E L L, Judge:
¶1 Andrea F. (“Mother”) and Joshua W. (“Father”) appeal the
termination of their parental rights to Edward.1 When terminating
parental rights, the superior court must make specific findings of fact and
conclusions of law to support the termination. Ariz. R.P. Juv. Ct.
(“Juvenile Rule”) 66(F)(2)(a). Because the findings and conclusions here
were insufficient to enable meaningful appellate review, we reverse and
remand.
BACKGROUND
¶2 Mother and Father are the biological parents of Edward,
born in 2017, and Jacob, who was born in December 2018 and died the
following month.2
¶3 Shortly before Edward’s first birthday, his femur was
fractured by blunt force trauma. A pediatrician discovered the fracture
when Mother and Father took Edward to his one-year well-child checkup
in January 2018. Edward’s leg was swollen and tender to the touch.
Mother told the pediatrician that the child had not been bearing weight on
his leg for about a week. The parents offered the pediatrician no
explanation for the injury. At the same visit, Edward was diagnosed with
failure to thrive.
¶4 Jacob was born in December 2018, a healthy infant with no
birth complications. In January 2019, Mother nursed Jacob, spending
approximately half an hour alone with the baby while Father showered.
1 Pseudonyms are used for the children to protect their identity.
2 The facts recited here are taken from the record in the combined
dependency-severance trial.
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ANDREA F., JOSHUA W. V. DCS, E.W.
Decision of the Court
After the feeding, the baby continued to cry. Mother then left him with
Father to go to the store.
¶5 When Mother got home approximately 15 minutes later,
Father was holding Jacob, who was “limp,” “unresponsive,” and “gasping
for air.” Jacob felt warm to the touch, so Mother took him outside to cool
him down while Father searched the internet for possible causes of the
baby’s maladies. Father’s internet searches indicated that Jacob needed
urgent medical attention.
¶6 Mother and Father discussed calling an ambulance but
decided not to because it would be too expensive. They did not call 9-1-1,
their health insurance nurse line, or their pediatrician’s office. The parents
did not attempt any rescue breathing or CPR. Instead, Mother drove Jacob
to a nearby urgent care, arriving about half an hour after she found him in
respiratory distress.3
¶7 At the urgent care, a nurse quickly took Jacob to a treatment
room, called for an ambulance, and summoned an emergency physician.
The medical team administered oxygen until the ambulance arrived and
transferred Jacob to the nearest hospital. Later, Jacob was airlifted to
Phoenix Children’s Hospital. He was placed on life support and died ten
days later.
¶8 The medical examiner who conducted Jacob’s autopsy
determined the cause of his death was blunt craniocervical trauma and the
manner of death was homicide. The autopsy revealed a skull fracture,
subscapular hemorrhages, epidural hemorrhages, bilateral subacute and
acute subdural hemorrhages, global hypoxic ischemia encephalopathy,
bilateral optic nerve sheath and retinal hemorrhages, multilevel
hemorrhages in the dorsal root ganglia and nerve roots of the cervical
spine, and fractures of the left femur and left tibia.
¶9 After Jacob was fatally injured, the Department of Child
Safety (“DCS”) filed a petition to designate Edward, the older boy,
dependent and to terminate the parents’ parental rights under A.R.S. § 8-
533(B)(2). DCS alleged that both Mother and Father either neglected or
failed to protect Edward and Jacob from neglect, and that they wilfully
3 The amount of time was heavily disputed at the hearing. The
testimony was inconsistent but would support anywhere from about 20–
45 minutes, depending on travel times.
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ANDREA F., JOSHUA W. V. DCS, E.W.
Decision of the Court
abused Edward and Jacob or failed to protect the children from willful
abuse by the other parent. The abuse and neglect resulted in Edward’s
fractured femur and, ultimately, Jacob’s death.
¶10 At a combined dependency-termination trial, DCS called a
nurse practitioner on the Child Protection Team at Phoenix Children’s
Hospital to testify. Mother called an associate professor of pediatrics who
is board-certified in pediatric emergency medicine and child abuse
pediatrics. The nurse practitioner testified the break of Edward’s femur
occurred 10–14 days before the x-ray was taken; Mother’s expert said it
happened more than six or seven days before. Both agreed the fracture
was highly suspicious of non-accidental trauma. According to the nurse,
Mother told her Edward’s femur was fractured by getting caught in a crib
rail. At trial, however, Mother acknowledged the explanation came from
the diagnosing pediatrician and offered no other cause for the fracture.
¶11 Additionally, Mother testified Father was to blame for
Jacob’s death. Father exercised his Fifth Amendment right to decline to
testify about either child’s injuries. Both the nurse practitioner and
Mother’s expert witness testified that Edward’s injury would have been
painful.
¶12 After the hearing, the superior court issued a minute entry
order stating that it intended to grant the severance and directed DCS to
lodge proposed findings of fact and conclusions of law. The court
ultimately adopted the DCS findings and conclusions in large part,
terminating Mother’s and Father’s parental rights. Mother and Father,
now divorced, separately appeal.
DISCUSSION
¶13 Parents have a “fundamental liberty interest in the care,
custody, and management of their children.” Kent K. v. Bobby M., 210 Ariz.
279, 284, ¶ 24 (2005) (citing Santosky v. Kramer, 455 U.S. 745, 753 (1982)).
That right, however, is not absolute. “The State can terminate parental
rights under specified circumstances and procedures,” Michael J. v. Ariz.
Dept. of Econ. Sec., 196 Ariz. 246, 248, ¶ 12 (2000), as long as the procedures
are fair and satisfy due process requirements, Kent K., 210 Ariz. at 284,
¶ 24.
¶14 The Arizona “legislature and supreme court have
established significant procedural safeguards to protect the fundamental
right at stake in juvenile proceedings.” Francine C. v. Dep’t of Child Safety,
249 Ariz. 289, 295, ¶ 12 (App. 2020). Before it may terminate a parent’s
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ANDREA F., JOSHUA W. V. DCS, E.W.
Decision of the Court
rights, the superior court must find at least one statutory ground for
termination under A.R.S. § 8-533(B) by clear and convincing evidence,
Kent K., 210 Ariz. at 284, ¶ 22, then determine by a preponderance of the
evidence that severance is in the child’s best interests, Sandra R. v. Dep’t of
Child Safety, 248 Ariz. 224, 227, ¶ 12 (2020).
¶15 We will affirm the termination of parental rights unless it is
clearly erroneous. Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 280, ¶ 4
(App. 2002). A ruling is clearly erroneous if it is unsupported by
substantial evidence. Desiree S. v. Dep’t of Child Safety, 235 Ariz. 532, 534,
¶ 7 (App. 2014); see also Mealey v. Arndt, 206 Ariz. 218, 221, ¶ 12 (App.
2003) (stating that substantial evidence is any relevant evidence that
allows a reasonable mind to draw the same conclusion). The court “is in
the best position to weigh the evidence, observe the parties, judge the
credibility of witnesses, and resolve disputed facts.” Ariz. Dep’t of Econ.
Sec. v. Oscar O., 209 Ariz. 332, 334, ¶ 4 (App. 2004). We therefore view the
evidence in the light most favorable to upholding the verdict. See Maricopa
Cnty. Juv. Action No. JD–5312, 178 Ariz. 372, 376 (App. 1994).
¶16 When the superior court finds that a petitioner has met its
burden of proof for severance, the court must “[m]ake specific findings of
fact in support of the termination of parental rights,” Juvenile Rule
66(F)(2)(a), which must be “in the form of a signed order or set forth in a
signed minute entry,” Juvenile Rule 66(F). See also A.R.S. § 8-538(A)
(“Every order of the court terminating the parent-child relationship . . .
shall be in writing and shall recite the findings on which the order is based
. . . .”). The court must specify at least one factual finding to support each
of its conclusions of law. Ruben M. v. Ariz. Dep’t of Econ. Sec., 230 Ariz. 236,
240, ¶ 22 (App. 2012). Additionally, “[f]indings must include all of the
‘ultimate’ facts—that is, those necessary to resolve the disputed issues.” Id.
at 241, ¶ 25 (quotation marks omitted) (citing Elliott v. Elliott, 165 Ariz.
128, 132, (App. 1990)). We review the sufficiency of findings of fact de
novo as a mixed question of fact and law. Murphey Farrell Dev., LLLP v.
Sourant, 229 Ariz. 124, 128, ¶ 13 (App. 2012).
I. The superior court’s Under Advisement Ruling did not violate
Mother’s or Father’s due process
¶17 Mother and Father each argues the superior court’s Under
Advisement Ruling minute entry violated their rights to specific findings
of fact. In its entirety, the minute entry read:
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ANDREA F., JOSHUA W. V. DCS, E.W.
Decision of the Court
The Court took this matter under advisement after receipt of
written closing arguments from all parties. After careful
consideration,
THE COURT FINDS that DCS has established by clear and
convincing evidence grounds to terminate the parental
rights of both Mother and Father.
THE COURT FURTHER FINDS by a preponderance of the
evidence that it is in [Edward‘s] best interests to terminate
the parental rights of both parents.
Because the Court intends to grant the severance,
IT IS ORDERED that DCS lodge proposed findings of fact
and conclusions of law on or before February 11, 2020.
Mother argues the minute entry lacked the specificity required to
determine:
what grounds were alleged, what evidence the court found
persuasive, what witnesses the court found credible . . . and
whether it believed Mother (or Father, for that matter)
abused [Jacob] or [Edward], or whether the court believed
that Mother (or Father) failed to protect [Jacob] or [Edward]
from abuse.
Father argues that “[f]rom [the minute entry], it is impossible to glean
which of the Department’s many theories the trial court accepted.”
¶18 Had that minute entry been the final order of the court, the
parents’ argument would be valid. That is not the case. While the minute
entry would be insufficient by itself to satisfy constitutional and statutory
requirements, it was not the superior court’s final order in the matter.
After DCS filed its proposed findings and conclusions, the court reviewed
and revised them. The court then signed and issued the revised version as
a final order. Accordingly, Father’s and Mother’s argument directed to the
minute entry order is without merit.
II. The court did not err by ordering proposed findings of fact and
conclusions of law or by adopting them, as revised
¶19 Mother next argues it is unfair, under Santosky v. Kramer, “to
have the court abdicate [to DCS] its responsibility” to make its own
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ANDREA F., JOSHUA W. V. DCS, E.W.
Decision of the Court
findings of fact and conclusions of law. 455 U.S. at 754. Father points to
Elliott, where this court held that the superior court has “a duty to exercise
its independent judgment in making findings concerning [the] facts” on
which it bases a severance order. 165 Ariz. at 135. Father argues that, by
adopting DCS’s proposed findings and conclusions with only a few
changes, the court did not satisfy this duty.
¶20 DCS contends that Mother and Father waived this argument
by failing to object below to the order directing DCS to lodge findings and
conclusions. Courts consistently hold that when a party has properly
invoked a rule allowing the party to request findings and conclusions, see
Ariz. R. Civ. P. 52(a), and the court fails to make the requisite findings, the
party waives the error by not bringing it to the court’s attention in a post-
judgment motion. Trantor v. Fredrikson, 179 Ariz. 299, 301 (1994); Elliott,
165 Ariz. at 134. However, “[a] party cannot waive a requirement that our
legislature has imposed upon the juvenile court for the primary purpose
of aiding an appellate review.” Francine C., 249 Ariz. at 298, ¶ 25. Under
A.R.S. § 8-538(A), every severance order must be in writing and state the
findings on which the order is based. “The primary purpose for requiring
a court to make express findings of fact and conclusions of law is to allow
the appellate court to determine exactly which issues were decided and
whether the lower court correctly applied the law.” Ruben M., 230 Ariz. at
240, ¶ 24. Accordingly, Mother and Father could not and did not waive
their argument that the severance order here failed to comply with the
statute.
¶21 When the superior court is required to make findings
concerning the ultimate facts of a case, as under A.R.S. § 8-538 and
Juvenile Rule 66, “[i]t may adopt proposed findings that the parties
submit, but only if those findings are consistent with the ones that it
reaches independently after properly considering the facts.” Elliott, 165
Ariz. at 134. If the proposed findings fail to address all the ultimate facts,
the court must supplement them. Id. (citing Fritts v. Ericson, 87 Ariz. 227,
234 (1960)).
¶22 Mother and Father have not shown that the superior court
here abdicated its responsibility to make findings and conclusions to DCS.
The court did not merely sign the proposed findings of fact and
conclusions of law. Rather, it amended DCS’s proposed findings and
conclusions by annotating them with handwritten notes paying close
enough attention to correct even a small typo. Whether the court
originally penned or merely revised the proffered findings and
conclusions is immaterial. The Elliott court explicitly permitted the lower
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ANDREA F., JOSHUA W. V. DCS, E.W.
Decision of the Court
court to “direct the parties to submit proposed findings and conclusions
or additional memoranda.” Elliott, 165 Ariz. at 137. Here, too, the court
was free to direct the parties to submit proposed findings and conclusions
and was free to adopt any of those findings and conclusions it determined
were appropriate.
III. The Findings and Conclusions are insufficient to enable
meaningful appellate review
¶23 Finally, Father argues the superior court’s findings and
conclusions failed to address all the ultimate facts of the case and failed
“to elucidate which theories it accepted, and to provide any factual basis
for its decision.” Mother argues the court failed to give details regarding
witness credibility or the court’s decision-making process.
¶24 As stated above, the primary purpose of requiring the court
that orders a severance to make express findings and conclusions is so the
appellate court can determine which issues were decided and whether the
court correctly applied the law. Ruben M., 230 Ariz. at 240, ¶ 24. In this
context, “findings also serve other important purposes, including
prompt[ing] judges to consider issues more carefully because they are
required to state not only the end result of their inquiry, but the process
by which they reached it.” Logan B. v. Dep’t of Child Safety, 244 Ariz. 532,
538, ¶ 18 (App. 2018) (alteration in original) (quotation marks omitted)
(quoting Miller v. Bd. of Supervisors, 175 Ariz. 296, 299 (1993)).
¶25 If the superior court fails to make sufficient findings of fact
and conclusions of law, the reviewing court “must tailor the proper
remedy [for] each case.” Francine C., 249 Ariz. at 299, ¶ 27 (quoting Miller,
175 Ariz. at 300). The appellate court generally will remand a matter to the
trial court for further findings but “it may also decide an appeal without
those findings if it is in a position to do so.” Miller, 175 Ariz. at 300.
“Where the record is so clear that the appellate court does not need the aid
of findings, the court may waive such defect on the ground that the error
is not substantial in that case.” Francine C., 249 Ariz. at 299, ¶ 27. However,
[w]here the basis on which the court reached a certain
conclusion is not clear, it is not enough that the appellate
court is able to derive bases on which the trial court could
have permissibly reached the decision it did from the record.
It must be clear how the court actually did arrive at its
conclusions. Otherwise, there is no assurance that the court
itself thought out each issue, and an appellate court cannot
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ANDREA F., JOSHUA W. V. DCS, E.W.
Decision of the Court
effectively review the decision-making process of the trial
court.
Id. at 297, ¶ 19 (citing Elliott, 165 Ariz. at 135).
¶26 There is substantial evidence in the record here, recounted in
the court’s findings and conclusions, to support DCS’s argument that
Mother and Father committed neglect under A.R.S. § 8-533(B)(2) by failing
to obtain timely medical care for Edward when his femur was fractured.
Additionally, substantial evidence supports DCS’s argument that Jacob
was severely abused, resulting in his death. However, the court’s findings
and conclusions are deficient in three respects. First, neither the minute
entry order nor the findings and conclusions identify the statutory
grounds on which the superior court made its ruling. Second, the findings
and conclusions fail to state which of DCS’s alternative theories the court
is adopting, or whether it adopted both. That is, the court did not indicate
whether it based severance on abuse, neglect, or both, related to Edward,
Jacob, or both, for Mother, Father, or both. Third, if the court relied on
neglect or abuse of Jacob, it did not specify its grounds for finding Mother
or Father unfit to care for Edward. Sandra R., 248 Ariz. at 227, ¶ 27 (“[A]
juvenile court is encouraged to make express findings concerning the risk
of harm to non-abused children.”).
¶27 Until the superior court clarifies the findings and
conclusions, we are unable to meaningfully review Mother’s and Father’s
remaining arguments.
IV. Dependency
¶28 One final issue requires review even though it was not
raised by any party. The record fails to contain an initial finding of
dependency. “Before the State may interfere with a parent’s right to
parent his or her child, it must prove the child is dependent under A.R.S.
§ 8-201(15)(a).” Francine C., 249 Ariz. at 295, ¶ 12. When the superior court
finds the State has proven the allegations in a dependency petition by a
preponderance of the evidence, it must “[s]et forth specific findings of fact
in support of a finding of dependency and adjudicate the child
dependent.” Juvenile Rule 55(C), (E)(3); see also A.R.S. § 8-844(C)(1)(a)(ii)
(the court must provide “[t]he factual basis for the dependency”). The
court’s findings and conclusions “shall be in the form of a signed order or
contained in a minute entry.” Juvenile Rule 55(E). In a dependency
proceeding, as with termination, the superior court need not detail every
fact that supports its ruling, Christy C. v. ADES, 214 Ariz. 445, 451―52, ¶ 19
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ANDREA F., JOSHUA W. V. DCS, E.W.
Decision of the Court
(App. 2007), but its findings must include all of the “ultimate facts,” Ruben
M., 230 Ariz. at 241, ¶ 25.
¶29 This case proceeded as both a contested dependency hearing
and severance trial. However, the court’s minute entry and its final order
are silent regarding a finding and adjudication of Edward’s dependency.
On remand the court should explicitly enter a finding of dependency
before proceeding to severance.
CONCLUSION
¶30 We reverse and remand this case to the superior court for
entry of factual findings and conclusions of law consistent with this
decision.
AMY M. WOOD • Clerk of the Court
FILED: AA
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