Barbara M. v. Dcs

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
BARBARA M., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, A.D., V.D., Appellees.
No. 1 CA-JV 21-0281
FILED 3-8-2022
Appeal from the Superior Court in Maricopa County
No. JD37680
The Honorable Robert Ian Brooks, Judge
AFFIRMED
COUNSEL
Maricopa County Public Advocate Office, Mesa
By Suzanne W. Sanchez
Counsel for Appellant
Arizona Attorney General’s Office, Phoenix
By Emily M. Stokes
Counsel for Appellee Department of Child Safety
MEMORANDUM DECISION
Presiding Judge David D. Weinzweig delivered the decision of the Court,
in which Judge Brian Y. Furuya and Judge Jennifer M. Perkins joined.
BARBARA M. v. DCS et al.
Decision of the Court
W E I N Z W E I G, Judge:
¶1 Barbara M. (“Mother”) appeals the juvenile court’s order
terminating her parental rights to A.D. and V.D. We affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 Mother and Javier D. (“Father”) are the biological parents of
A.D. and V.D., born in July 2017 and August 2019, respectively.1 Mother
and Father had a history of domestic violence and substance abuse, which
the Department of Child Safety (“DCS”) learned about in May 2019.
Mother confirmed the domestic violence to DCS, conceding that A.D.
watched some of the fights. She also confirmed that Father’s “needles,
drugs, and paraphernalia” were “lying around the home” and A.D. had
“gotten ahold of the items, including the needles.”
¶3 DCS created an in-home safety plan for A.D. to remain with
her parents but attempts to implement the plan failed. DCS thus removed
A.D. and petitioned for dependency, alleging Mother could not parent due
to domestic violence. DCS also removed V.D. after her birth in August 2019
and petitioned for dependency on the same grounds. Mother did not
contest the dependency issue for either child and the court set the case plan
as family reunification. DCS offered reunification services to Mother,
including drug testing, drug treatment, domestic violence counseling and
parent-aide services.
¶4 Mother stumbled from there. Over the next 18 months, she
missed 103 urinalysis drug tests and refused to provide a hair follicle for
another. She failed many of the drug tests she did take. Mother did not
engage in substance abuse treatment, unsuccessfully closing out of several
drug treatment and domestic violence programs, and she never finished a
parent-aid program.
¶5 DCS moved to terminate Mother’s parental rights to A.D. and
V.D. on grounds of chronic substance abuse and fifteen-months out-of-
home placement. A.R.S. § 8-533(B)(3), (8)(c).
¶6 Mother attended the first severance hearing in June, a pretrial
conference during which the court advised Mother it might terminate her
parental rights without a trial if she failed to appear at the pretrial
conference in two months. She did not appear at the pretrial conference.
1 The juvenile court also terminated Father’s parental rights to both
children. He is not a party to this appeal.
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BARBARA M. v. DCS et al.
Decision of the Court
After finding she lacked good cause, the court determined that Mother
“waived her right to a trial” and would be “deemed to” admit the
allegations of the termination motion. The court held an accelerated
termination hearing. It received testimony from the DCS case manager. At
hearing’s end, the court terminated Mother’s parental rights to both
children “as to all grounds.” The court ordered DCS to “submit a proposed
Findings of Fact, Conclusions of Law, and Order to the Court,” noting “[t]he
Court’s order terminating parental rights will be final upon the signing of
said Order.”
¶7 Days later, DCS filed its proposed findings and conclusions
and a proposed order. The court adopted DCS’s proposed findings and
conclusions and signed the proposed order without making a change,
terminating Mother’s parental rights. Mother timely appealed. We have
jurisdiction under A.R.S. §§ 8-235, 12-120.21(A)(1), and 12-2101(A)(1).
DISCUSSION
¶8 Mother asserts the juvenile court violated her due process
rights. Specifically, Mother contends that by adopting DCS’s proposed
findings and conclusions in whole, the juvenile court “completely
delegated its legal conclusion-making and fact-finding function” to DCS,
insisting that “it is the court that must make the written findings.” We
review the interpretation of court rules, statutes and constitutional issues
de novo. Brenda D. v. Dep’t of Child Safety, 243 Ariz. 437, 442, ¶ 15 (2018).
¶9 As a threshold issue, DCS argues that because Mother failed
to object below, she waived the argument. She did not. See Francine C. v.
Dep’t of Child Safety, 249 Ariz. 289, 298, ¶ 25 (App. 2020) (“A party cannot
waive a requirement that our legislature has imposed upon the juvenile
court for the primary purpose of aiding an appellate review.”).
¶10 Returning to Mother’s argument, parents in termination
proceedings are entitled to “fundamentally fair procedures” tracking due
process. Ruben M. v. Dep’t of Econ. Sec., 230 Ariz. 236, 239, ¶ 12 (App. 2012)
(quoting Santosky v. Kramer, 455 U.S. 745, 754 (1982)). To ensure that parents
receive due process, “the legislature has imposed significant procedural
safeguards,” including A.R.S. § 8–538(A), which requires that “[e]very
order of the court terminating the parent-child relationship . . . shall be in
writing and shall recite the findings on which the order is based.” Id. at 240,
¶ 21. Arizona courts have adopted a similar rule. See Ariz. R.P. Juv. Ct.
66(F) (“All findings and orders shall be in the form of a signed order or set
forth in a signed minute entry.”); Ariz. R.P. Juv. Ct. 66(F)(2)(a) (courts must
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BARBARA M. v. DCS et al.
Decision of the Court
“[m]ake specific findings of fact in support of the termination of parental
rights”). Such findings and conclusions “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.
¶11 The juvenile court did not err. Neither § 8-538(A) nor Rule
66(F) prevents the juvenile court from requesting or adopting one party’s
proposed findings and conclusions, so long as the court reaches the same
findings and conclusions on its own assessment of the record. See Elliott v.
Elliot, 165 Ariz. 128, 134 (App. 1990) (the court “may adopt proposed
findings that the parties submit” when “those findings are consistent with
the ones that it reaches independently after properly considering the
facts”). Mother does not contend the court failed to independently consider
the record. Nor does Mother argue the findings or conclusions were
erroneous.
CONCLUSION
¶12 We affirm the termination order.
AMY M. WOOD • Clerk of the Court
FILED: AA
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