Logan B. v. Dcs

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
LOGAN B., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, J.B., I.B., Appellees.
No. 1 CA-JV 17-0327
FILED 5-24-2018
Appeal from the Superior Court in Maricopa County
No. JD530156
The Honorable Timothy J. Ryan, Judge
VACATED AND REMANDED WITH INSTRUCTIONS
COUNSEL
Maricopa County Public Advocate, Mesa
By David C. Lieb
Counsel for Appellant
Arizona Attorney General’s Office, Tucson
By Laura J. Huff
Counsel for Appellee, Department of Child Safety
LOGAN B. v. DCS, et al.
Opinion of the Court
OPINION
Judge Jennifer B. Campbell delivered the opinion of the Court, in which
Judge Patricia A. Orozco joined.1 Presiding Judge Michael J. Brown
dissented.
C AM P B E L L, Judge:
¶1 Logan B. (“Father”) challenges the juvenile court’s failure to
make written findings in its order terminating his parental rights to his
children J.B. and I.B. We hold that even if the court makes oral findings of
fact on the record, a written termination order that recites only conclusions
of law regarding the statutory grounds for termination and best interests is
insufficient as a matter of law. Such an order fails to comply with the
requirement in both Arizona Revised Statutes (“A.R.S.”) section 8-538(A)
and Arizona Rule of Procedure for the Juvenile Court 66(F)(2)(A) that a
termination order must contain written findings.2
FACTS AND PROCEDURAL BACKGROUND
¶2 In July 2016 the Department of Child Safety (“DCS”) filed a
dependency petition alleging J.B. and I.B. (collectively, the “children”) were
dependent. DCS alleged substance abuse based on Father’s use of heroin,
marijuana, and morphine. DCS also alleged neglect because of Father’s
inability to provide the necessities of life for the children and because he
cared for them while under the influence of drugs.3 The court later
adjudicated the children dependent.
1The Honorable Patricia A. Orozco, Retired Judge of the Arizona
Court of Appeals, Division One, has been authorized to sit in this matter
pursuant to Article VI, Section 3 of the Arizona Constitution.
2Absent material revisions after the relevant date, we cite the current
versions of statutes and rules.
3 DCS alleged Father violated a safety plan that permitted the
children to remain in the home with their mother and prohibited Father
from returning to the home until he demonstrated 30 days of sobriety. The
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LOGAN B. v. DCS, et al.
Opinion of the Court
¶3 In April 2017, DCS moved to terminate Father’s parental
rights on the statutory grounds of abandonment, A.R.S. § 8-533(B)(1),
substance abuse, A.R.S. § 8-533(B)(3), and six months in an out-of-home
placement, A.R.S. § 8-533(B)(8)(b). DCS also alleged termination was in the
children’s best interests.
¶4 Father later failed to appear for a pretrial conference. The
juvenile court found Father’s failure to appear was without good cause and
granted DCS’s motion to proceed with the termination hearing in absentia.
¶5 After receiving exhibits and hearing testimony presented by
a DCS case manager, the juvenile court made findings of facts and
conclusions of law by oral pronouncement on the record at the conclusion
of the hearing. The juvenile court found DCS failed to prove abandonment
but did prove the grounds of chronic substance abuse and out-of-home
placement by clear and convincing evidence, and stated relevant factual
findings. The court also found by a preponderance of evidence that
termination of Father’s parental rights was in the children’s best interests,
again providing its factual findings orally.
¶6 The juvenile court later entered a final written order
terminating Father’s parental rights to the children. The final order read as
follows:
THE COURT FINDS by clear and convincing evidence that
the State has proven the allegation of a history of chronic
abuse of dangerous drugs and controlled substances with
respect to [Father].
THE COURT FINDS beyond a preponderance of the evidence
that it would be in the children’s best interest[s] to sever the
father’s parental rights.
The final order was devoid of any factual findings to support the legal
conclusions about the statutory ground for termination or factual findings
to justify that termination was in the children’s best interests.4
mother’s parental rights were later terminated. She is not a party to this
appeal.
4 As later discussed, the juvenile court’s order did not include any
findings regarding the out-of-home placement ground. Infra ¶ 21.
3
LOGAN B. v. DCS, et al.
Opinion of the Court
¶7 Father timely appealed. We have jurisdiction pursuant to
A.R.S. § 8-235(A) and Arizona Rule of Procedure for the Juvenile Court
103(A).
DISCUSSION
¶8 Father argues the juvenile court committed an error of law
when entering a final order lacking any written factual findings in support
of its conclusions of law. We agree.
I. Purported Waiver
¶9 Father did not raise this argument in the juvenile court.
Generally, failure to raise an argument in the juvenile court waives the issue
on appeal. See Christy C. v. Ariz. Dep’t of Econ. Sec., 214 Ariz. 445, 452, ¶ 21
(App. 2007). But the decision to find waiver is discretionary. See Marianne
N. v. Dep’t of Child Safety, 243 Ariz. 53, 56, ¶ 13 (2017) (citing City of Tucson
v. Clear Channel Outdoor, Inc., 209 Ariz. 544, 552 n.9, ¶ 33 (2005)) (decision to
deem issue waived is “jurisprudential, not jurisdictional”).
¶10 DCS urges waiver here, citing Christy C., 214 Ariz. at 452,
¶¶ 20-21. In Christy C., this court concluded the parent had waived her
argument that the court’s final order did not comply with A.R.S. § 8-538(A)
by raising it for the first time on appeal. 214 Ariz. at 452, ¶ 21. Christy C. is
distinguishable. There, the final order contained some factual findings,
albeit the parent argued those findings were insufficiently detailed. Id.
Christy C. accords with this court’s decision to apply the waiver doctrine
when a party first raises the issue of insufficient findings on appeal and the
order includes at least some statutorily required factual findings. See, e.g.,
Antonio M. v. Ariz. Dep’t of Econ. Sec., 222 Ariz. 369, 371, ¶¶ 5-6 (App. 2009)
(father waived argument raised for the first time on appeal that termination
order should have made more specific factual findings); see also Banales v.
Smith, 200 Ariz. 419, 420, ¶¶ 1, 6-8 (App. 2001) (father could not newly
challenge sufficiency of trial court’s detailed order that contained numerous
findings of fact and conclusions of law but omitted a required best interests
finding under A.R.S. § 25-403).
¶11 In this case, Father raises an issue of law. That is, Father’s
argument is that the juvenile court’s final written order is insufficient
because it contains only conclusions of law without any factual findings. In
similar circumstances, we have exercised our discretion, choosing not to
find waiver. See Nold v. Nold, 232 Ariz. 270, 272-73, ¶¶ 7-10 (App. 2013)
(declining to find waiver when family court’s custody order made no
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LOGAN B. v. DCS, et al.
Opinion of the Court
written factual findings regarding the statutorily mandated best interests
findings; best interests of child trumps waiver doctrine); Reid v. Reid, 222
Ariz. 204, 207-08, ¶¶ 11, 14-20 (App. 2009) (declining to find waiver;
omission of statutorily required best interests findings in custody order
demonstrated omission was not “mere oversight”; order merely stated
court’s custody determination was in the children’s best interests and court
had considered the relevant factors under A.R.S. § 25-403(A)). The waiver
doctrine is not “an unalterable rule.” Reid, 222 Ariz. at 208, ¶ 16. We are not
dealing with a question of whether the court merely overlooked some
factual findings; we are addressing an order devoid of any factual findings.
See id. at 208, ¶¶ 15-16. Moreover, Father raises an issue of great public
importance that is likely to reoccur, thus providing an additional reason not
to find waiver. See In re Leon G., 204 Ariz. 15, 17 n.1, ¶ 2 (2002) (noting
exception to general rule of waiver when issue raised is of great public
importance and likely to reoccur.) Because this is a reoccurring problem, we
choose to exercise our discretion and will not find waiver in this limited
circumstance.5 We therefore decline to find waiver, and address the issue
on the merits.
II. Written Findings
¶12 We review de novo issues of statutory interpretation and the
interpretation of rules. Premier Physicians Grp., PLLC v. Navarro, 240 Ariz.
193, 194-95, ¶ 6 (2016) (interpretation of statutes); Valerie M. v. Ariz. Dep’t of
Econ. Sec., 219 Ariz. 155, 161, ¶ 19 (App. 2008) (interpretation of rules).
“When the text is clear and unambiguous, we apply the plain meaning and
our inquiry ends.” State v. Burbey, 243 Ariz. 145, 147, ¶ 7 (2017) (citing
Stambaugh v. Killian, 242 Ariz. 508, 509, ¶ 7 (2017)).
¶13 Before terminating a parent’s parental rights, the juvenile
court must find at least one statutory ground by clear and convincing
evidence, A.R.S. §§ 8-533, -537(B), and find, by a preponderance of the
evidence, that termination is in a child’s best interests, Kent K. v. Bobby M.,
5 After the filing of a timely notice of appeal, and “for good cause,”
this court may suspend the appeal and revest jurisdication in the juvenile
court for the limited purpose of allowing the court to make the required
written findings. See ARCAP 3(b); see also Ariz. R.P. Juv. Ct. 103(B). We note
that such procedures inject delay. We also note that under the Arizona
Rules of Juvenile Procedure, an appellant has 15 days to file a notice of
appeal after entry of the juvenile court’s final order, Ariz. R.P. Juv. Ct.
104(A), and the rules do not provide for any time-extending motions that
extend the time to file a notice of appeal.
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LOGAN B. v. DCS, et al.
Opinion of the Court
210 Ariz. 279, 288, ¶ 41 (2005). If the juvenile court finds DCS has met this
burden, the juvenile court is required to enter written findings terminating
the parent-child relationship. A.R.S. § 8-538(A) (an order terminating the
parent-child relationship “shall be in writing and shall recite the findings
on which the order is based”); 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.”).
¶14 Importantly, under Rule 66(F)(2)(a) the juvenile court must
“[m]ake specific findings of fact in support of the termination of parental
rights and grant the motion or petition for termination.” In Ruben M. v. Ariz.
Dep’t of Econ. Sec., this court held that to comply with Rule 66(F)(2)(a), the
order must specify the juvenile court’s conclusions of law and “at least one
factual finding sufficient to support each of those conclusions of law.” 230
Ariz. 236, 240-41, ¶¶ 22, 25-26 (App. 2012). The number of factual findings
required will depend on the complexity of the issues but must be
“sufficiently specific to enable the appellate court to provide effective
review.” Id. at 241, ¶ 25. Although Ruben M. addressed a different issue
(whether the juvenile court’s summary written factual findings were
sufficient), it is clear the court implicitly held it is an error of law to enter a
final termination order that omits any factual findings. Id. at 241, ¶¶ 25-27
(concluding court’s summary findings were sufficiently specific as grounds
for court’s judgment were “simple” and “straightforward”).
¶15 Ruben M. set forth what is minimally required: at least one
sufficiently specific finding to support each of the court’s conclusions of
law. Id. at 240, ¶ 22. We recognize that the juvenile court is not required to
list each and every fact relied upon in making its findings. Christy C., 214
Ariz. at 451-52, ¶ 19. Nonetheless, written findings, including findings of
fact, must include “all of the ‘ultimate’ facts—that is, those necessary to
resolve the disputed issues.” Ruben M., 230 Ariz. at 242, ¶ 25 (quoting Elliott
v. Elliott, 165 Ariz. 128, 132 (App. 1990)). “’[U]ltimate facts’ are at least ‘the
essential and determinative facts on which the conclusion was reached.
They are the controlling facts, without which the court cannot correctly
apply the law’ in resolving the disputed issues in the case.” Miller v. Bd. of
Supervisors of Pinal Cty., 175 Ariz. 296, 300 (1993) (citing Star Realty Co. v.
Sellers, 73 N.M. 207, 208–09 (1963)) (order that omitted ultimate facts
provided no basis for the court to determine whether trial court’s legal
conclusions were sound); see also Gilliland v. Rodriquez, 77 Ariz. 163, 167
(1954) (“The ultimate test of the adequacy thereof is whether they are
pertinent to the issues and comprehensive enough to provide a basis for the
decision.”).
6
LOGAN B. v. DCS, et al.
Opinion of the Court
¶16 DCS argues the juvenile court made sufficiently specific
findings as required by Rule 66(F)(2)(a) and within the meaning of Ruben
M., because the court made “detailed factual findings on the record.”
Detailed factual findings made orally on the record do not comply with the
safeguards that the legislature, by statute, and our supreme court, by rule,
have implemented to protect the due process rights of parents in a
termination proceeding. Parents have a fundamental interest in the care,
custody, and control of their children protected by the Due Process Clause
of the United States Constitution. Mara M. v. Ariz. Dep’t of Econ. Sec., 201
Ariz. 503, 507, ¶ 24 (App. 2002) (citing Santosky v. Kramer, 455 U.S. 745, 753
(1982)); Troxel v. Granville, 530 U.S. 57, 66 (2000). That right is not absolute
but there are “specified circumstances and procedures” that must be
followed when terminating the parent-child relationship. Michael J. v. Ariz.
Dep’t of Econ. Sec., 196 Ariz. 246, 248, ¶ 12 (2000). “Because of the
fundamental right at stake in severance proceedings, the legislature has
imposed significant procedural safeguards to ensure due process.” Ruben
M., 230 Ariz. at 240, ¶ 21. Those safeguards, as further implemented by Rule
66(F)(2)(a), require written factual findings when a court terminates
parental rights.
¶17 We may not, as DCS suggests, ignore the requirement of
written findings and simply search the record to uncover ultimate facts the
court may have relied upon, or infer findings the court may have made, in
reaching the decision to enter an order of termination. Cf. Ariz. Dep’t of Econ.
Sec. v. Matthew L., 223 Ariz. 547, 549–50, ¶ 10 (App. 2010) (when court denies
a motion to terminate parental rights, A.R.S. § 8–538(A) does not require
written findings; appellate court may look to the record to determine
whether reasonable evidence supports court’s denial of motion to
terminate). To do so would nullify the requirement that the juvenile court
enter a written termination order and “recite the findings on which the
order is based,” A.R.S. § 8-538(A), and render Rule 66(F)(2)(a) meaningless,
see Brenda D. v. Dep’t of Child Safety, 243 Ariz. 437, 443, ¶ 20 (2018) (“We will
not interpret statutes or rules in a manner that renders portions of their text
superfluous.”) (citing Bilke v. State, 206 Ariz. 462, 464, ¶ 11 (2003)); see also
Parker v. City of Tucson, 233 Ariz. 422, 430, ¶ 20 (App. 2013) (“We will not
rewrite statutes to effectuate a meaning different than the one the
legislature intended.”).
¶18 We have long emphasized that the purpose of requiring
written findings is to aid appellate review. See, e.g., Ruben M., 230 Ariz. at
240, ¶ 24; Stein v. Stein, 238 Ariz. 548, 551, ¶ 10 (App. 2015); Miller, 175 Ariz.
at 299. But written findings also serve other important purposes, including
“prompt[ing] judges to consider issues more carefully because ‘they are
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LOGAN B. v. DCS, et al.
Opinion of the Court
required to state not only the end result of their inquiry, but the process by
which they reached it.’” Miller, 175 Ariz. at 299 (quoting United States v.
Merz, 376 U.S. 192, 199 (1964)).
¶19 “As the trier of fact in a termination proceeding, the juvenile
court ‘is in the best position to weigh the evidence, observe the parties,
judge the credibility of witnesses, and resolve disputed facts.’” Jennifer S. v.
Dep’t of Child Safety, 240 Ariz. 282, 286, ¶ 16 (App. 2016) (quoting Jordan C.
v. Ariz. Dep’t of Econ. Sec., 223 Ariz. 86, 93, ¶ 18 (App. 2009)). As an appellate
court, “[o]ur task for factual findings is solely to confirm that there is some
reasonable evidence in the record to sustain them,” not to reweigh the
evidence. Ariz. Dep’t of Econ. Sec. v. Oscar O., 209 Ariz. 332, 336, ¶ 14 (App.
2004). Even when the court may have set forth some of its findings and
conclusions on the record at the conclusion of the termination hearing, the
requirement to state its findings in a written order allows the juvenile court
to reflect on the record before memorializing its findings in writing. It is
improper for this court to determine in the first instance what ultimate facts
the juvenile court would have reduced to writing to support its conclusions
of law.6 See Kelsey v. Kelsey, 186 Ariz. 49, 50-51 (App. 1996) (when written
findings are required, this court “may not affirm simply because we may
find some possible basis for [the trial court’s written] conclusion in the
record”; rather, “[i]t must be clear [from the findings] how the court
actually did arrive at its conclusions”).
6As an appellate court we review the record before us, but we cannot
disregard the requirements governing the entry of a termination order.
Although we have held that “we will presume that the juvenile court made
every finding necessary to support the severance order if reasonable
evidence supports the order” and “[i]f the juvenile court fails to expressly
make a necessary finding, we may examine the record to determine
whether the facts support that implicit finding,” Mary Lou C. v. Ariz. Dep’t
of Econ. Sec., 207 Ariz. 43, 50, ¶ 17 (App. 2004), under our case law these
principles have been applied only in cases in which the termination order
contained written factual findings. See id. at 46-47, 49-50, ¶¶ 6, 14-18; Matter
of Pima Cty. Severance Action No. S-2397, 161 Ariz. 574, 576-77 (App. 1989);
Matter of Appeal In Pima Cty. Severance Action No. S-1607, 147 Ariz. 237, 238
(1985); In re Maricopa Cty., Juvenile Action No. JS–3594, 133 Ariz. 582, 584-85
(App. 1982). We have never held that we will do so absent any written
factual findings.
8
LOGAN B. v. DCS, et al.
Opinion of the Court
¶20 In this case, Father failed to appear at a pretrial conference.
After finding Father failed to appear without good cause, the juvenile court
exercised its discretion to proceed with the termination hearing. Marianne
N., 243 Ariz. at 57-58, ¶¶ 19-22; Ariz. R.P Juv. Ct. 64(C). Father’s failure to
appear therefore resulted in a waiver of his legal rights, and he was deemed
to have admitted the allegations contained within DCS’s motion for
termination of his parental rights. Marianne N., 243 Ariz. at 57-58, ¶ 22; see
also Brenda D., 243 Ariz. at 445-46, ¶ 29. Nonetheless the juvenile court,
based on the limited record before it, was still required to find whether DCS
had met its burden. To do so, the juvenile court was required to state in
writing the ultimate facts on which it relied in reaching its conclusions of
law. That is, the juvenile court was required to state what facts supported
its conclusion that DCS had proven that Father had a history of chronic
substance abuse, rendering him unable to discharge his parental
responsibilities, and there existed reasonable grounds to believe his
condition would continue for a prolonged indeterminate period within the
meaning of A.R.S. § 8-533(B)(3). The court was further required to state
what ultimate facts supported its legal conclusion that DCS had proven by
a preponderance of the evidence that termination of Father’s parental rights
was in the children’s best interests. Therefore, the juvenile court erred as a
matter of law when it made findings of fact on the record, but then entered
a termination order containing only conclusions of law.
¶21 Father also argues the juvenile court erred as a matter of law
by omitting a written conclusion of law confirming the oral pronouncement
that DCS had proven the ground of six months in an out-of-home
placement. We agree that the juvenile court’s on the record conclusions of
law are inconsistent with the court’s written order, which makes no
reference to this ground of termination. See supra ¶¶ 5-6.
¶22 Accordingly, we vacate the juvenile court’s termination order
and remand for the limited purpose of allowing the juvenile court to enter
its written factual findings and conclusions of law, based on the existing
record. The lack of written findings is the sole issue Father raises on appeal.
Therefore, on remand Father cannot later elect to raise additional issues on
appeal. Rather, Father is limited to challenging the sufficiency of the
juvenile court’s written findings of fact. He may also challenge the court’s
conclusions of law and findings of fact regarding the six months in an out-
of-home placement ground, which was not included in the juvenile court’s
termination order. All other issues are precluded by Father’s failure to raise
them in this appeal. See Bike Fashion Corp. v. Kramer, 202 Ariz. 420, 425, ¶ 20
(App. 2002) (issues which should have been raised in the first appeal may
not be raised nor considered by appellate court in a subsequent appeal).
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LOGAN B. v. DCS, et al.
Opinion of the Court
CONCLUSION
¶23 For the foregoing reasons, we vacate the juvenile court’s
termination order and remand the matter to the juvenile court. On remand,
we direct the juvenile court to enter written findings of fact and conclusions
of law based on the existing record, as required by A.R.S. § 8-538(A) and
Rule 66(F)(2)(a).
B R O W N, Judge, dissenting:
¶24 I agree that the order terminating Father’s rights should have
included written findings. See Ariz. R.P. Juv. Ct. 66(F). The juvenile court’s
omission has caused unnecessary delay in these proceedings; however, that
does not mean Father can properly wait, without consequence, to raise that
issue for the first time on appeal. Cf. Shawanee S. v. Ariz. Dep’t. of Econ. Sec.,
234 Ariz. 174, 178-79, ¶ 16 (App. 2014) (explaining that a “parent’s failure
to assert legitimate complaints in the juvenile court about the adequacy of
services needlessly injects uncertainty and potential delay into the
proceedings, when important rights and interests are at stake and
timeliness is critical”). This point is especially relevant here, where the only
issue Father raises on appeal is the lack of written findings. Contrary to
Father’s position on appeal, the absence of such findings does not mean we
are obligated to vacate the termination order, remand, allow the court to
make written findings (perhaps on an identical record), and provide Father
another opportunity to appeal that will be considered many months from
now. See Monica C. v. Ariz. Dep’t of Econ. Sec., 211 Ariz. 89, ¶ 22 (App. 2005)
(“Failure to comply with the Arizona Rules of Procedure for Juvenile Court
does not necessarily require a reversal.”).
¶25 As a general rule, a party that attempts to raise an issue for
the first time on appeal has waived that issue. Christy C. v. Ariz. Dep’t of
Econ. Sec., 214 Ariz. 445, 452, ¶¶ 20–21 (App. 2007) (applying waiver based
on parent’s failure to object to the lack of specificity in a termination order).
Although waiver is not based on jurisdictional grounds, appellate courts
apply it for many important reasons, including the well-established
principle that a party “may not ‘sit back and not call the trial court’s
attention to the lack of specificity finding on a critical issue, and then urge
on appeal that mere lack of a finding on that critical issue as a grounds for
reversal.’” Id. at 452, ¶ 21 (quoting Bayless Inv. & Trading Co. v. Bekins Moving
10
LOGAN B. v. DCS, et al.
Brown, J., Dissenting
& Storage Co., 26 Ariz. App. 265, 271 (1976)); see also Marianne N. v. Dep't of
Child Safety, 243 Ariz. 53, 55, ¶ 13 (2017) (explaining that waiver is
“jurisprudential, not jurisdictional”).
¶26 In my view, the majority fails to present compelling reasons
why waiver should not apply here. See Trantor v. Fredrikson, 179 Ariz. 299,
300 (1994) (“[A]bsent extraordinary circumstances, errors not raised in the
trial court cannot be raised on appeal” because “a trial court and opposing
counsel should be afforded the opportunity to correct any asserted
defects[.]”). Instead, several factors cut in favor of holding that Father
waived his argument challenging the juvenile court’s lack of written
findings.
¶27 First, this court has repeatedly applied waiver when a party
to a termination proceeding fails to object to alleged errors committed by
the juvenile court and seeks to challenge such errors on appeal. See, e.g.,
Shawanee S., 234 Ariz. at 178-79, ¶ 16 (applying waiver to adequacy of
services argument); Cecilia A. v. Ariz. Dep’t of Econ. Sec., 229 Ariz. 286, 289,
¶ 11 (App. 2012) (applying waiver to due process argument); Antonio M. v.
Ariz. Dep’t of Econ. Sec., 222 Ariz. 369, 371, ¶ 6 (App. 2009) (“[W]hen a party
fails to object below to ‘the alleged lack of detail in the juvenile court’s
findings,’ the issue is deemed waived when raised for the first time on
appeal . . . .” (quoting Marco C. v. Sean C., 218 Ariz. 216, 220 n.3, ¶ 12 (App.
2008))); Kimu P. v. Ariz. Dep’t of Econ. Sec., 218 Ariz. 39, 44 n.3, ¶ 19 (App.
2008) (applying waiver to issues relating to “alleged procedural defects”
that were not raised in the juvenile court); Christy C., 214 Ariz. at 452, ¶ 21
(finding waiver as to sufficiency of findings).
¶28 Second, more than 30 years ago our supreme court directed
that “the juvenile court will be deemed to have made every finding
necessary to support the judgment.” Pima Cty. Severance Action No. S-1607,
147 Ariz. 237, 238 (1985). That principle is consistent with the waiver
doctrine, and should be applied here. Mary Lou C. v. Ariz. Dep’t of Econ. Sec.,
207 Ariz. 43, 50, ¶ 17 (App. 2004) (“If the juvenile court fails to expressly
make a necessary finding, we may examine the record to determine
whether the facts support that implicit finding.”). And unless the supreme
court modifies that principle, we are bound to follow it. See State v. Albe, 148
Ariz. 87, 89 (App. 1984) (“This court as an intermediate appellate court is
not empowered to overturn a decision of the supreme court of this state.”).
¶29 Third, applying waiver here avoids injecting additional
delays into these proceedings that are likely to result from vacating the
order and remanding for additional findings, from which Father can
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LOGAN B. v. DCS, et al.
Brown, J., Dissenting
presumably pursue another appeal. See Shawanee S., 234 Ariz. at 178-79, ¶
16. A prompt objection raised by Father with the juvenile court would have
given DCS the opportunity to address the error instead of waiting until it
was raised on appeal. Indeed, DCS would have been hard pressed in this
case to object to a request from Father for issuance of written findings,
which presumably would have resulted in a termination order that
complied with statutory and rule requirements. And it would have given
the juvenile court the opportunity to address, in the first instance, the error
Father now asserts on appeal.
¶30 Fourth, Father is incorrect in suggesting that applying waiver
here is unfair because no specific authority addresses how a party can object
to the sufficiency of the juvenile court’s findings and still preserve the right
to appeal. If the juvenile court fails to make sufficient findings, nothing
prevents a party from promptly bringing the matter to the court’s attention
by filing a motion for reconsideration, motion for additional findings, or
motion to amend. For decades, Arizona appellate courts have
acknowledged the propriety of a prompt motion to set aside where a party
asserts a procedural irregularity. See, e.g., David C. v. Alexis S., 240 Ariz. 53,
55, ¶ 5 (2016) (addressing merits of motion to set aside adoption); Christy A.
v. Ariz. Dep’t of Econ. Sec., 217 Ariz. 299 (App. 2007) (addressing merits of
motion to set aside entry of default and default judgment); Don L. v. Ariz.
Dep’t of Econ. Sec., 193 Ariz. 556 (App. 1998) (same), superseded by statute on
other grounds as stated in Marianne N., 243 Ariz. at 58, ¶¶ 23-25. The label
placed on the motion is less important than the content; the goal is to
provide the court and the opposing party with the opportunity to correct
errors in the termination order. See Ariz. R.P. Juv. Ct. 6 (stating that juvenile
court proceedings, “unless otherwise stated, shall be conducted as
informally as the requirements of due process and fairness permit, and shall
proceed in a manner similar to the trial of a civil action before the court
sitting without a jury”). To further preserve the right to appeal, a party may
file a timely notice of appeal and promptly seek an order from this court
staying the appeal until the juvenile court resolves the pending post-
hearing motion. See Ariz. R.P. Juv. Ct. 103(B) (stating that a juvenile court
order may be stayed pending appeal by an appellate court if “suitable
provision is made for the care and custody of the child”). By following this
procedure, the party gives the juvenile court (and other parties) the
opportunity to address alleged errors without delay. If the court denies the
motion, then the party has preserved the right to raise the issue on appeal,
and the troubling situation presented to us here is avoided.
¶31 Moreover, to the extent Father argues waiver would deprive
him of a remedy, that is, of course, a consequence of waiver. Father has not
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LOGAN B. v. DCS, et al.
Brown, J., Dissenting
shown how the order terminating his rights failing to include written
findings creates a due process issue or, if it did, that the issue resulted in
fundamental error. See Brenda D. v. Dep’t of Child Safety, 243 Ariz. 437, 457,
¶ 37 (2018) (noting appellant “did not object to either of the alleged due
process violations in the juvenile court (and did not even raise the alleged
violation of her right to testify in the court of appeals)” and concluding
“that fundamental error review applies”).
¶32 Father failed to appear at the hearing without good cause, but
was represented by counsel. The juvenile court could therefore presume
that Father admitted the allegations of the motion for termination. The court
then conducted an evidentiary hearing and verbally listed findings of fact
and conclusions of law from the bench. Unfortunately, those findings of fact
and conclusions of law were not repeated in the court’s written findings.
Father did not ask the superior court to clarify or take any other action in
that court; instead, he waited months to raise the issue with this court for
the first time on appeal. Given Father’s waiver, I would affirm the
termination order.
AMY M. WOOD • Clerk of the Court
FILED: AA
13