Rebecca W. v. Derek B., R.B. ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
REBECCA W., Appellant,
v.
DEREK B., R.B., Appellees.
No. 1 CA-JV 20-0195
FILED 12-1-2020
Appeal from the Superior Court in Mohave County
No. S8015SV202000001
The Honorable Megan A. McCoy, Judge Pro Tempore
AFFIRMED
COUNSEL
The Law Offices of Michael and Casey, Phoenix
By Sarah J. Michael, Robert Ian Casey
Counsel for Appellant
Derek B., Kingman
Appellee
REBECCA W. v. DEREK B., R.B.
Decision of the Court
MEMORANDUM DECISION
Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Jennifer B. Campbell and Chief Judge Peter B. Swann
joined.
W I N T H R O P, Judge:
¶1 Rebecca W. (“Mother”) appeals from the superior court’s
decision terminating her parental rights. For the following reasons, we
affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Mother and Derek B. (“Father”) are the biological parents of
R.B., born in March 2016. Throughout R.B.’s life, Mother has struggled with
drug abuse and has been in and out of prison. The child briefly lived with
both parents; however, after Father witnessed Mother using drugs while
home with the child, Mother moved out, and Father became the primary
care provider when the child was approximately one year old. In 2019,
Father petitioned for sole custody of R.B., which the court granted to Father
when Mother did not respond to the petition.
¶3 In early 2020, Father petitioned to terminate Mother’s
parental rights, citing numerous grounds under Arizona Revised Statutes
(“A.R.S.”) section 8-533(B). The court ordered a social study to evaluate the
parents and R.B. pursuant to A.R.S. § 8-536. The social study documented
Father’s and Mother’s respective drug problems, Father’s successful
treatment, and R.B.’s progress. The study also noted Father’s fiancée had
bonded with R.B. and wished to adopt the child.
¶4 Father represented himself throughout the proceedings and
did not file a list of witnesses or exhibits before the termination hearing. A
copy of the completed social study was filed with the court approximately
one week before the hearing date. Mother, through counsel, objected to the
court taking judicial notice of the social study “unless [the author] testifies
to it.” The court found the social study admissible under Arizona Rule of
Procedure for the Juvenile Court (“Rule”) 66(E). The court also allowed
Father to testify, noting “the Court cannot imagine a scenario in which the
Respondent was unaware that that would be happening.”
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REBECCA W. v. DEREK B., R.B.
Decision of the Court
¶5 Mother, Father, and the author of the social study testified at
the termination hearing. After hearing the testimony and reviewing the
social study, the court found clear and convincing evidence that Mother
had abandoned and neglected R.B. and that she was unable to fulfill her
parental obligations because of ongoing drug use. See A.R.S. § 8-533(B)(1),
(2), (3). The court also found termination to be in R.B.’s best interests. The
court granted Father’s petition to terminate Mother’s parental rights.
¶6 Mother timely appealed. We have jurisdiction pursuant to
A.R.S. §§ 8-235(A) and 12-2101(A)(1).
ANALYSIS
¶7 On appeal, Mother does not challenge either the court’s
statutory findings supporting termination or the court’s findings
concerning R.B.’s best interests; instead, she argues the superior court erred
in admitting the social study and permitting testimony from Father and the
study’s author despite Father’s failure to file a disclosure statement. We
discuss Mother’s arguments below, but note the superior court has broad
discretion in ruling on issues of disclosure and discovery, and we will not
reverse a ruling unless the court has abused its discretion and caused unfair
prejudice to a party. Marquez v. Ortega, 231 Ariz. 437, 441, ¶ 14 (App. 2013);
Larsen v. Decker, 196 Ariz. 239, 241, ¶ 6 (App. 2000).
¶8 As to the social study, Mother argues the superior court
ignored Rule 44(B) in admitting the study over her objection. Rule 66(E),
however, provides a court-ordered social study “is admissible as evidence
unless a party has filed a notice of objection” pursuant to Rule 44. See A.R.S.
§ 8-537(B); cf. Ariz. Dep’t of Econ. Sec. v. Superior Court (Armstrong), 181 Ariz.
469, 471 (App. 1994) (“[I]n severance actions, when any party timely,
specifically, and properly objects to portions of a social study report, such
portions of that report are not admissible into evidence.”). Mother admits
she did not file such an objection, even after the author filed the social study
report with the court. Further, the record shows that her objection to the
study at the hearing was qualified: She objected to its admission “unless”
the study’s author testified. In fact, the study’s author did testify and was
cross-examined by Mother’s counsel. On this record, the court did not
abuse its discretion in admitting the social study, and Mother was not
unfairly prejudiced by its admission.
¶9 Mother contends the superior court erred in admitting
testimony from the study’s author. We disagree. “A court generally must
hear any competent and potentially significant evidence that bears on the
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REBECCA W. v. DEREK B., R.B.
Decision of the Court
best interests of the child,” despite any failure to disclose pursuant to Rule
44. James A. v. Dep’t of Child Safety, 244 Ariz. 319, 321-22, ¶ 8 (App. 2018).
Here, the parties each had a copy of the study in advance of the hearing.
As previously noted, Mother’s counsel’s only objection to admission of the
study was that the author be subject to cross-examination. The court
accordingly arranged for the author to appear, and Mother’s counsel had a
full opportunity to question the author concerning her investigation and
opinions. On this record, the court did not abuse its discretion or otherwise
err in permitting the study’s author to testify, and Mother has not
demonstrated any unfair prejudice.
¶10 Mother also argues the court erred in permitting Father to
testify as an undisclosed witness. Her argument that his testimony created
a “trial by surprise” is unavailing, as Mother included Father in her
disclosed list of witnesses and noted he would testify “as to the allegations
of the petition.” At the hearing, Father in fact testified as to the allegations
in his petition, and Mother, through her attorney, cross-examined him.
Mother has not demonstrated any abuse of discretion or legal error, nor has
she identified any unfair prejudice.
¶11 Finally, Mother argues the alleged evidentiary errors violated
her right to due process. As we have discussed, we find the superior court
did not abuse its discretion nor commit the evidentiary errors that Mother
alleges. More importantly, Mother has not demonstrated that the
proceedings were fundamentally unfair so as to deprive her of due process.
See Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 24 (2005); see also Brenda D. v.
Dep’t of Child Safety, 243 Ariz. 437, 448, ¶ 39 (2018) (explaining due process
violation does not warrant reversal without a showing of prejudice).
CONCLUSION
¶12 For the foregoing reasons, we affirm the superior court’s
decision terminating Mother’s parental rights.
AMY M. WOOD • Clerk of the Court
FILED: AA
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