In Re Term of Parental Rights as to O.F. ( 2023 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
IN RE TERMINATION OF PARENTAL RIGHTS AS TO O.F.
No. 1 CA-JV 23-0059
FILED 8-15-2023
Appeal from the Superior Court in Maricopa County
No. JD40690
The Honorable Julie Ann Mata, Judge
AFFIRMED
COUNSEL
Maricopa County Public Advocate’s Office, Mesa
By Suzanne W. Sanchez
Counsel for Appellant
Arizona Attorney General’s Office, Phoenix
By Bailey Leo
Counsel for Appellee Department of Child Safety
MEMORANDUM DECISION
Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge David D. Weinzweig and Judge Michael S. Catlett joined.
IN RE TERM OF PARENTAL RIGHTS AS TO O.F.
Decision of the Court
C R U Z, Judge:
¶1 P.F. (“Mother”) appeals the superior court’s order
terminating her parental rights to her child, O.F. For the following reasons,
we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 O.F. was born in 2021 and was exposed to methamphetamine
in utero. Mother tested positive for amphetamine, fentanyl, and THC the
day after O.F.’s birth. She disclosed that she had used methamphetamine
every other day during her pregnancy and that she began using drugs at
the age of eleven. The Department of Child Safety (“DCS”) removed O.F.
from Mother’s care and filed a dependency petition. The superior court
found O.F. dependent and approved a case plan of family reunification.
DCS put reunification services in place.
¶3 Mother consistently tested positive for methamphetamine
throughout the dependency. Although she completed parenting and
domestic violence classes, Mother was inconsistent with visitation and was
closed out of case aide and visitation services on multiple occasions.
Mother was closed out at TERROS, which provided Mother with substance
abuse treatment, for failing to make progress. In September 2022, DCS
moved to terminate Mother’s parental rights pursuant to Arizona Revised
Statutes (“A.R.S.”) section 8-533(B)(3) (chronic substance abuse) and
(B)(8)(c) (fifteen months’ out-of-home placement).
¶4 Mother, who was represented by counsel, appeared at the
termination hearing and informed the court that she did not want to contest
the allegations in the termination motion. After a colloquy, the superior
court found Mother had knowingly, intelligently, and voluntarily waived
her right to contest the allegations in the termination motion. A DCS case
manager provided testimony, and at the conclusion of the hearing, the
superior court terminated Mother’s parental rights on the grounds alleged
in the motion.1
¶5 Mother filed an untimely notice of appeal. On this court’s
motion we stayed the appeal to permit Mother to seek relief under Arizona
Rule of Procedure for Juvenile Court (“Rule”) 603(a)(5)(A). The superior
1 The superior court also terminated the parental rights of O.F.’s
father. He is not a party to this appeal.
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IN RE TERM OF PARENTAL RIGHTS AS TO O.F.
Decision of the Court
court granted leave for Mother to file a new notice of appeal within seven
days of the court’s order, and she did so. We have jurisdiction pursuant to
A.R.S. §§ 8-235(A), 12-120.21(A)(1), and 12-2101(A)(1).
DISCUSSION
¶6 Mother first argues the superior court violated her due
process rights by accepting her no-contest admission. She claims that her
waiver of her right to trial was not knowing, voluntary, and intelligent
because the superior court failed to advise her that (1) DCS bore the burden
of proving the allegations of the termination motion and (2) she had the
right to present documentary evidence.
¶7 Rule 353(e) addresses no contest pleas in termination
proceedings. We review the interpretation of court rules de novo. Timothy
W. v. Dep’t of Child Safety, 240 Ariz. 231, 232, ¶ 6 (App. 2016). In interpreting
a court rule, we apply general principles of statutory construction and begin
with the plain language of the rule. Id. When a parent enters a no contest
plea, the superior court does not automatically terminate the parent’s
parental rights. Rule 353(e). Instead, the superior court “must”:
(1) determine whether the parent understands the rights
being waived;
(2) determine whether the parent knowingly, intelligently,
and voluntarily . . . does not contest the allegations;
(3) determine whether a factual basis exists to support the
termination of parental rights; and
(4) make the findings and enter the orders in [Rule 353](h).
Id.¶8 Here, the superior court advised Mother that by pleading no
contest, she was giving up her right to a trial on the termination motion,
including her right to have her attorney confront and cross-examine any
witness who testified against her, her right to call her own witnesses, the
right to have the court compel her witnesses to appear and testify on her
behalf, and the right to request the termination proceedings be closed to the
public. Mother affirmatively indicated on the record that she understood
she was giving up those rights. Cf. Rule 352(c)(5) (at initial termination
hearing superior court must advise parent of the parent’s rights to an
attorney, to have a trial on the termination petition or motion, to call
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IN RE TERM OF PARENTAL RIGHTS AS TO O.F.
Decision of the Court
witnesses, to cross-examine witnesses called by another party, and to have
the court compel the attendance of witnesses). Mother cites no authority,
and we are not aware of any, for the proposition that a parent’s admission
cannot be knowing, intelligent, and voluntary if the superior court does not
specifically advise a parent that (1) DCS bears the burden of proving the
termination allegations and (2) by giving up her right to trial, the parent is
giving up her right to present documentary evidence. The court’s colloquy
sufficiently advised Mother of the rights she was waiving. And,
additionally, although the superior court accepted Mother’s no contest plea,
it still gave Mother’s counsel the opportunity to present “[a]ny additional
evidence or testimony” after the DCS case manager testified, but her
counsel chose not to do so. The superior court did not err when it accepted
Mother’s waiver as knowing, intelligent, and voluntary.
¶9 Mother next argues the superior court violated her due
process rights by failing to make all of the required findings of fact in its
order terminating her parental rights. “We review the sufficiency of
findings of fact de novo as a mixed question of fact and law.” Francine C. v.
Dep’t of Child Safety, 249 Ariz. 289, 296, ¶ 14 (App. 2020).
¶10 Arizona law requires termination orders to “be in writing”
and “recite the findings on which the order is based.” A.R.S. § 8-538; see
also Rule 353(h)(2)(A) (superior court must “make specific findings of fact
in support of the termination of parental rights.”).
¶11 “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. v. Ariz. Dep’t of Econ. Sec., 230 Ariz.
236, 240, ¶ 24 (App. 2012). To terminate parental rights, the superior court
must “conclude that the petitioner has proved by clear and convincing
evidence that at least one of the statutory grounds for termination is met,
and that the petitioner has proved by a preponderance of the evidence that
severance of parental rights would be in the best interest of the child.” Id.
at ¶ 22. The superior court “must specify at least one factual finding
sufficient to support each of those conclusions of law.” Id. “Findings must
include all of the ultimate facts—that is, those necessary to resolve the
disputed issues.” Id. at 241, ¶ 25 (citation and internal quotation marks
omitted). Factual findings are insufficient when they are so lacking in detail
that this court must search the record to uncover ultimate facts that the
superior court may have relied upon or guess about the process by which
the court reached its decision. Logan B. v. Dep’t of Child Safety, 244 Ariz. 532,
538-39, ¶¶ 17-19 (App. 2018).
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IN RE TERM OF PARENTAL RIGHTS AS TO O.F.
Decision of the Court
¶12 DCS argues Mother waived this issue. Even if Mother did not
waive this issue by failing to object to the sufficiency of the superior court’s
findings of fact below, the superior court’s findings of fact were sufficient
in this case.
¶13 Here, the superior court was required to state what facts
supported its conclusion that DCS had proven that Mother had a history of
chronic substance abuse, rendering her unable to discharge her parental
responsibilities, and there existed reasonable grounds to believe her
condition would continue for a prolonged indeterminate period. See A.R.S.
§ 8-533(B)(3). The court was also required to state what facts supported its
conclusion that DCS had proven that O.F. had been in an out-of-home
placement for fifteen months or longer, DCS had made a diligent effort to
provide appropriate reunification services, Mother had been unable to
remedy the circumstances causing O.F. to be in an out-of-home placement,
and there was a substantial likelihood that she would not be capable of
exercising proper and effective care and control in the near future. See
A.R.S. § 8-533(B)(8)(c). Finally, the court was required to state what facts
supported its conclusion that DCS had proven by a preponderance of the
evidence that termination was in O.F.’s best interests. See A.R.S. § 8-533(B);
Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 22 (2005).
¶14 The superior court’s order stated that its “Conclusions of Law
. . . constitute[d] Findings of Fact as may be appropriate.” The order
detailed at length Mother’s long history of drug use before and after O.F.’s
birth, including her criminal history of drug charges, her inability to
demonstrate sobriety throughout the dependency as evidenced by monthly
positive drug tests, and her failure to engage in substance abuse treatment.
The order further detailed DCS’s efforts to provide additional reunification
services, Mother’s failure to complete most of those services, and the fact
that O.F. had been in an out-of-home placement for more than fifteen
months, since March 2021, pursuant to a court order. Finally, in support of
the court’s conclusion that termination was in O.F.’s best interests, the
court’s order stated the following facts—O.F. was adoptable and was living
in an adoptive placement that was meeting his needs, and continuation of
the parent-child relationship would be detrimental to O.F. because it would
delay permanency for him. We find no error or violations of due process
in the superior court’s order terminating Mother’s parental rights to O.F.
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IN RE TERM OF PARENTAL RIGHTS AS TO O.F.
Decision of the Court
CONCLUSION
¶15 For the foregoing reasons, we affirm the superior court’s
order terminating Mother’s parental rights to O.F.
AMY M. WOOD • Clerk of the Court
FILED: AA
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