In Re Term of Parental Rights as to M.R. ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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 M.R.
No. 1 CA-JV 23-0023
FILED 8-31-2023
Appeal from the Superior Court in Maricopa County
No. JD533852
The Honorable Ashley V. Halvorson, Judge
AFFIRMED
COUNSEL
Maricopa County Public Advocate, Mesa
By Suzanne W. Sanchez
Counsel for Appellant
Arizona Attorney General’s Office, Tucson
By Jennifer L. Thorson
Counsel for Appellee Department of Child Safety
Sacks Tierney PA, Scottsdale
By Katya M. Lancero
Counsel for Appellee Pueblo of Laguna
IN RE TERM OF PARENTAL RIGHTS AS TO M.R.
Decision of the Court
MEMORANDUM DECISION
Vice Chief Judge Randall M. Howe delivered the decision of the court, in
which Judge Jennifer M. Perkins and Judge Daniel J. Kiley joined.
H O W E, Judge:
¶1 Juan A. (“Father”) appeals the juvenile court’s order
terminating his parental rights to his daughter, M.R., born in December
2020, on the grounds of abandonment and out-of-home placement for 15
months. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 We view the facts in the light most favorable to sustaining the
juvenile court’s order. Demetrius L. v. Joshlynn F., 239 Ariz. 1, 2 ¶ 2 (2016).
M.R. is an Indian child under the Indian Child Welfare Act (“ICWA”). See
25 U.S.C. § 1903(4) (defining “Indian child”). She is considered a descendant
of a member of the Pueblo of Laguna of New Mexico Tribe (“Tribe”).
¶3 Father and M.R.’s mother have a history of substance abuse.1
In December 2020, the Department of Child Safety received a report that
M.R. was born substance-exposed and suffered withdrawal symptoms. As
a result, the Department took custody of M.R. and placed her with her
maternal grandparents, who are enrolled members of the Tribe. The
Department also petitioned the juvenile court for M.R.’s dependency
because of Father’s neglect. In May 2021, the juvenile court found M.R.
dependent as to Father and approved family reunification as the case plan.
¶4 The Department offered Father family preservation services,
parent-aide sessions, substance-abuse testing, substance-abuse assessment
and treatment, counseling, and visitation with M.R. The Department also
tried to contact Father monthly by calling, texting, and emailing to establish
services. Father did not respond. At times, the Department was unaware of
Father’s whereabouts. Maternal grandmother later reported to the
Department that Father was homeless.
1 M.R.’s mother is not a party to this appeal; her parental rights were
terminated.
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IN RE TERM OF PARENTAL RIGHTS AS TO M.R.
Decision of the Court
¶5 Father failed to participate in visitations with M.R. He last
saw M.R. on her first birthday in December 2021. He also failed to
participate in any other services that the Department offered. But he self-
referred for substance-abuse treatment and received inpatient detox. He
claimed at a status conference that he had not received communications
about services from the Department. The Department then confirmed that
it had sent Father communications to the email address he was using
during these proceedings—the same email address that his counsel used to
successfully communicate with him.
¶6 The Department petitioned to terminate Father’s parental
rights, alleging abandonment and out-of-home placement for 15 months.
The Tribe moved to intervene, and the juvenile court granted the motion.
At the termination hearing, the Department’s program supervisor testified
that her numerous attempts to reach Father through calls and emails had
failed. She also testified that the Department had met Father only once
throughout this case. Finally, she testified that Father had not participated
in the services that the Department had provided and that termination was
in M.R.’s best interests because she would have a stable living environment.
¶7 The Department also elicited testimony from an employee in
its Tribal Relations Policy Section. She testified that she had worked for the
Department as an ICWA specialist for nine years and that she had been
providing qualified expert testimony about ICWA for about 10 years. She
testified that Father’s custody of M.R. was likely to result in serious
emotional or physical damage to her because of his lack of engagement in
the preservation services that would help eliminate the risk.
¶8 The Tribe’s ICWA expert testified that the Department had
made little to no efforts to work with the Tribe. According to her, the
Department tried to contact her fewer than 10 times. The Department also
did not ask the Tribe to locate and contact Father or to participate in M.R.’s
case planning. She also testified that the Department had not made “active
efforts” to provide Father with remedial services and rehabilitative
programs. Finally, she testified that the Tribe did not “honor [termination
and] adoption;” instead, it preferred guardianship.
¶9 The juvenile court found that the Department had proved
both grounds for termination of Father’s parental rights—abandonment
and out-of-home placement for 15 months. It also found that Father’s
continued custody of M.R. was likely to result in serious emotional or
physical damage to M.R. and that termination was in M.R.’s best interests.
It therefore terminated Father’s parental rights.
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IN RE TERM OF PARENTAL RIGHTS AS TO M.R.
Decision of the Court
¶10 Father timely appealed. We have jurisdiction. See Ariz. Const.
art. 6, § 9; A.R.S. §§ 8–235(A), 12–120.21(A)(1), –2101(A)(1).
DISCUSSION
¶11 Father argues that the State did not prove by clear and
convincing evidence that the Department made “active efforts” to prevent
the breakup of the family under ICWA. A juvenile court’s termination
determination is reviewed for an abuse of discretion. E.R. v. Dep’t of Child
Safety, 237 Ariz. 56, 58 ¶ 9 (App. 2015). The juvenile 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). Due process requires that we assess
whether a reasonable factfinder could conclude, based on the record, that
the Department met its clear and convincing evidentiary burden to sustain
the termination of parental rights. See Santosky v. Kramer, 455 U.S. 745,
747–48 (1982). We will uphold the court’s findings of fact “if supported by
adequate evidence in the record.” Christy C. v. Ariz. Dep’t of Econ. Sec., 214
Ariz. 445, 451–52 ¶ 19 (App. 2007) (quoting State v. Smith, 123 Ariz. 243, 247
(1979)).
¶12 To terminate parental rights, the juvenile court must find at
least one statutory ground under A.R.S. § 8–533 by clear and convincing
evidence and must find that termination is in the child’s best interests by a
preponderance of the evidence. A.R.S. § 8–537(B); Jennifer S. v. Dep’t of Child
Safety, 240 Ariz. 282, 286 ¶ 15 (App. 2016). ICWA applies when an Indian
child is the subject of a termination. See Yvonne L. v. Ariz. Dep’t of Econ. Sec.,
227 Ariz. 415, 419 ¶ 20 (App. 2011). Before terminating parental rights under
ICWA, the Department must prove (1) beyond a reasonable doubt that the
“continued custody of the child by the parent or Indian custodian is likely
to result in serious emotional or physical damage to the child,” Ariz. R.P.
Juv. Ct. 353(d)(1); 25 U.S.C. § 1912(f), and (2) prove by clear and convincing
evidence that “active efforts have been made to provide remedial services
and rehabilitative programs designed to prevent the breakup of the Indian
family and that those efforts have proven unsuccessful,” 25 U.S.C.
§ 1912(d); Yvonne L., 227 Ariz. at 420 ¶ 20.
¶13 “Active efforts” mean “affirmative, active, thorough, and
timely efforts intended primarily to maintain or reunite an Indian child
with his or her family.” 25 C.F.R. § 23.2. The parents must be assisted
“through the steps of a case plan and with accessing or developing the
resources necessary to satisfy the case plan.” Id. Active efforts “should be
conducted in partnership with the Indian child and the Indian child’s
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IN RE TERM OF PARENTAL RIGHTS AS TO M.R.
Decision of the Court
parents . . . and Tribe.” Id. They should be “tailored to the facts and
circumstances of the case.” Id. “[A]ctive efforts demand more than merely
drawing up a reunification plan and leaving the parent to use his or her
own resources to bring it to fruition.” Yvonne L., 227 Ariz. at 423 ¶ 34 n.17
(cleaned up). But “neither ICWA nor Arizona law mandates that [the
Department] provide every imaginable service or program designed to
prevent the breakup of the Indian family before the court may find that
‘active efforts’ took place.” Id. at 423 ¶ 34. Further, the Department cannot
force parents to engage in services but must provide them with the
“necessary ‘time and opportunity to participate in programs designed to
help [them] become’ effective parents.” Id. (quoting Maricopa Cnty. Juv.
Action No. JS-501904, 180 Ariz. 348, 353 (App. 1994)).
¶14 Relevant examples of active efforts include (1) identifying
appropriate services and actively assisting parents to obtain those services;
(2) inviting representatives of the child’s Tribe to provide the family with
support and services; (3) implementing “all available and culturally
appropriate family preservation strategies and facilitating the use of
remedial and rehabilitative services provided by the child’s Tribe”; (4)
supporting visitation with parents “in the most natural setting possible”;
(5) identifying community resources and assisting the parents in accessing
them; (6) “[m]onitoring progress and participation in services”; and (7)
considering alternative methods of addressing the parents’ needs where
services are unavailable. 25 C.F.R. § 23.2.
¶15 Here, reasonable evidence shows that the Department made
active, thorough, and timely efforts to provide remedial services and
rehabilitative programs to prevent the family breakup. The record supports
the juvenile court’s finding that the Department offered family preservation
services, parent-aide sessions, substance-abuse testing, substance-abuse
assessment and treatment, counseling, and visitation services. The
Department thus provided Father with the necessary time and opportunity
to participate in these programs designed to help him become an effective
parent. See Yvonne L., 227 Ariz. at 423 ¶ 34. The Department actively tried
to communicate with Father through phone calls, text messages, email,
in-person meetings, and service letters. And these attempts failed, despite
the Department’s using correct channels to communicate with Father. The
Department was not required to force Father to engage in the offered
services. Id. Lastly, termination would not separate M.R. from her cultural
heritage since she was placed with her grandparents, who are members of
the Tribe. Therefore, Father has shown no error.
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IN RE TERM OF PARENTAL RIGHTS AS TO M.R.
Decision of the Court
¶16 Father also argues that the juvenile court erred in finding that
his custody of M.R. was likely to result in serious emotional or physical
damage to M.R. He contends that the finding was not based on a qualified
expert witness testimony because the Department’s ICWA witness lacked
expertise about “the parenting norms” of the Tribe and “substance abuse
and its impact on parents of Indian Children.” But as the Department points
out, Father failed to challenge the Department’s ICWA witness’s
qualifications in the juvenile court, despite his counsel’s extensive
examination of her during the termination hearing. See Estate of Reinen v. N.
Ariz. Orthopedics, Ltd., 198 Ariz. 283, 286–87 ¶ 9 (2000) (explaining that
failure to object to the witness’s qualifications before or during the witness’s
testimony waived any objection to the witness’s qualifications). Father has
therefore waived this argument.
CONCLUSION
¶17 We affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
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