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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
APRILLEANN H., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, A.L., A.L., R.M., Appellees.
No. 1 CA-JV 20-0135
FILED 10-15-2020
Appeal from the Superior Court in Maricopa County
No. JD 36077
The Honorable Sam J. Myers, Judge
REVERSED IN PART; VACATED AND REMANDED IN PART
COUNSEL
Maricopa County Legal Defender’s Office, Phoenix
By Jamie R. Heller
Counsel for Appellant
Arizona Attorney General’s Office, Tucson
By Cathleen E. Fuller
Counsel for Appellee, Department of Child Safety
APRILLEANN H. v. DCS, et al.
Decision of the Court
MEMORANDUM DECISION
Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Jennifer M. Perkins and Judge David B. Gass joined.
B R O W N, Judge:
¶1 Aprilleann H. (“Mother”) appeals the juvenile court’s order
terminating her parental rights to three of her children (collectively, “the
children”), on grounds of abandonment, nine months’ out-of-home
placement, and fifteen months’ out-of-home placement. For the following
reasons, we reverse the court’s rulings on abandonment and nine months’
out-of-home placement. We vacate the court’s ruling on fifteen months’
out-of-home placement and remand for further proceedings.
BACKGROUND
¶2 Mother and Alfred L. are the biological parents of A.L. and
A.L., twins, who were born in 2014. Mother and an unknown father are the
biological parents of R.M, who was born in 2015. Neither Alfred L. nor the
other alleged father are parties to this appeal.
¶3 In April 2018, Mother left the children with a friend, who took
them to a doctor and dentist. Each of the children faced various medical
issues at the time, including failure to thrive. In July 2018, the Department
of Child Safety (“DCS”) filed a dependency petition alleging the children
were dependent as to Mother due to substance abuse and neglect.
¶4 Mother entered a no contest plea to the dependency petition,
and the juvenile court found the children dependent as to Mother based on
substance abuse and neglect. The court approved a case plan of family
reunification and ordered DCS to provide services to Mother, including
substance abuse assessment and treatment through TERROS, urinalysis
testing through PSI (a drug testing facility), visitation, and parenting
classes.
¶5 At the September 2019 review hearing, Mother explained she
had delivered her fourth child in June 2019 by C-section, which caused a
delay in completion of services. She requested that DCS give her another
TERROS referral and that she be referred for a hair follicle test. Over
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APRILLEANN H. v. DCS, et al.
Decision of the Court
Mother’s objection, the juvenile court approved DCS’s request to change
the case plan to reunification concurrent with severance and adoption.
¶6 Mother failed to appear at the December 2019 review hearing
when the court approved changing the case plan to severance and
adoption. DCS then filed a motion to terminate Mother’s parental rights
based on abandonment, as well as nine and fifteen months’ out-of-home
placement. Because Mother did not appear at the January 2020 initial
severance hearing, the court found no good cause for her absence and thus
she waived her right to contest the termination petition. At DCS’s request,
the court indicated it would preserve “service and mother’s failure to
appear to a future hearing.”
¶7 Mother was not present at the severance hearing held in
March 2020. After receiving brief testimony from a DCS caseworker and
admitting four DCS reports, the most recent of which was dated December
11, 2019, the court orally granted DCS’s motion on each ground alleged and
determined that severance was in the children’s best interests. DCS then
lodged its proposed findings of fact, conclusions of law, and order, which
the juvenile court signed. Mother timely appealed.
DISCUSSION
¶8 Mother challenges the sufficiency of the evidence as to each
ground for termination, and she contends the termination order contains
various findings that lack support in the record.
¶9 To sever parental rights, the juvenile court must first
determine, by clear and convincing evidence, that a statutory ground for
termination exists. Crystal E. v. Dep’t of Child Safety, 241 Ariz. 576, 577, ¶ 4
(App. 2017). We will affirm the court’s order if it is supported by reasonable
evidence. Mary Lou C. v. Ariz. Dep’t of Econ. Sec., 207 Ariz. 43, 47, ¶ 8 (App.
2004). We accept the court’s factual findings unless they are clearly
erroneous. James S. v. Ariz. Dep’t of Econ. Sec., 193 Ariz. 351, 354, ¶ 10 (App.
1998). We do not reweigh the evidence because 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).
A. Fifteen Months’ Out-of-Home Placement
¶10 To meet its burden under the fifteen-months’ ground, DCS
was required to prove (1) it made diligent efforts to provide appropriate
reunification services, (2) the children were in an out-of-home placement
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APRILLEANN H. v. DCS, et al.
Decision of the Court
for at least fifteen months, (3) Mother was unable to remedy the
circumstances that caused the children to be in out-of-home placement, and
(4) a substantial likelihood existed that Mother would not be capable of
exercising proper and effective parental care and control in the near future.
A.R.S. § 8-533(B)(8)(c). In deciding whether DCS satisfied its burden, the
juvenile court was required to “consider the availability of reunification
services to the parent and the participation of the parent in these services.”
Id. § 8-533(D).
¶11 As an initial matter, a parent in a severance action is required
to appear at court hearings, including the termination adjudication hearing.
See A.R.S. § 8-537(C); Ariz. R.P. Juv. Ct. (“Rule”) 66(D)(2). The juvenile
court may proceed in the parent’s absence and terminate the parent-child
relationship based upon the record and evidence presented if the court
finds that a parent had proper notice and failed to appear without good
cause. See Rule 66(D)(2). Mother does not argue she did not receive notice
of the hearings she missed, including the initial severance hearing and the
severance hearing, was not informed of the consequences for failing to
appear, or that she had good cause for failing to appear. Thus, underlying
our review of the sufficiency of the evidence is the presumption that by
failing to appear, Mother admitted the allegations of the motion for
termination. See Rule 66(D)(2). Nonetheless, DCS was still required to
present clear and convincing evidence supporting the alleged grounds.
See Manuel M. v. Ariz. Dep’t of Econ. Sec., 218 Ariz. 205, 212, ¶ 23 (App. 2008).
¶12 Addressing the ground of fifteen months’ out-of-home
placement, the juvenile court found that DCS made diligent efforts to offer
Mother reunification services, but she failed to maintain a consistent or
appropriate relationship with the children. The court also found that
Mother (1) did not participate in substance-abuse treatment, (2) failed to
test through PSI, (3) minimally participated in visitation, and (4) took no
steps to remedy the circumstances causing her children to be in an out-of-
home placement. Mother argues that various findings, including these
four, are not supported by the record. She also asserts the record lacks
evidence showing she was unable to remedy her substance abuse or
neglect—the reasons the children were removed from her care.
¶13 Citing Aleise H. v. Dep’t of Child Safety, 245 Ariz. 569 (App.
2019), DCS contends Mother waived her ability to challenge the court’s
findings on appeal because she failed to object to the proposed findings
before the juvenile court signed them. In Aleise H., we concluded that a
mother who challenged a termination order waived her newly-raised
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APRILLEANN H. v. DCS, et al.
Decision of the Court
argument that the juvenile court failed to “set forth case-specific findings of
fact to support its best-interests determination.” Id. at 573, ¶¶ 11–14.
¶14 We are not persuaded by DCS’s contention that a parent
waives the ability to argue for the first time on appeal that certain findings
lack support in the record. Unlike Aleise H., and the cases cited therein,
Mother does not argue the juvenile court’s findings were inadequate or
lacked specificity. See, e.g., Antonio M. v. Ariz. Dep’t of Econ. Sec., 222 Ariz.
369, 371, ¶ 6 (App. 2009) (stating that when a party fails to object to “lack of
detail” in the court’s findings, “the issue is deemed waived when raised for
the first time on appeal” (citation omitted)); Christy C. v. Ariz. Dep’t of Econ.
Sec., 214 Ariz. 445, 452, ¶¶ 20–21 (App. 2007) (applying waiver to issues
relating to alleged insufficiency of findings first raised on appeal). Instead,
she argues the findings are not supported by the record. DCS cites no
authority holding that a parent waives the right to challenge the sufficiency
of the evidence on appeal by asserting for the first time that certain findings
are not supported by the record. Indeed, when a parent challenges the
sufficiency of the evidence on appeal, it is our duty to determine whether
the severance findings are supported by reasonable evidence, or in other
words, not clearly erroneous. Mary Lou C., 207 Ariz. at 47, ¶ 8 (“We will not
disturb the juvenile court’s disposition absent an abuse of discretion or
unless the court’s findings of fact were clearly erroneous, i.e., there is no
reasonable evidence to support them.” (citation omitted)).
¶15 Given the important rights at stake in a severance proceeding,
when DCS submits proposed findings to the juvenile court, it is incumbent
on DCS to strive for accuracy in preparing those findings. And we
encourage parents’ counsel to object to proposed findings when they are
clearly erroneous, and thus avoid unnecessary delay that may otherwise
occur by waiting to raise the issue 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”). Nonetheless, the juvenile court has the ultimate
responsibility to ensure that a severance order’s findings are supported by
the evidence. See Rule 66(F)(2)(a) (providing that “[a]ll findings and orders
shall be in the form of a signed order or set forth in a signed minute entry”
and, if the movant met its burden of proof, “the court shall . . . [m]ake
specific findings of fact in support of the termination of parental rights and
grant the motion or petition for termination”); Ruben M. v. Ariz. Dep’t of
Econ. Sec., 230 Ariz. 236, 240, ¶ 24 (App. 2012) (explaining that findings in a
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APRILLEANN H. v. DCS, et al.
Decision of the Court
severance case should allow an appellate court “to determine exactly which
issues were decided” and whether the juvenile court “correctly applied the
law”).
¶16 The findings made here, that Mother did not participate in
substance-abuse treatment and failed to test through PSI, are not supported
by the record. Mother participated in at least two substance-abuse
assessments through TERROS. She was assigned to an intensive outpatient
program, where she was “minimally engaged,” and was later closed out of
TERROS based on her lack of engagement. Although Mother’s
participation in drug testing was at times inconsistent, the record confirms
that from September 2018 through February 2019, Mother was scheduled
for 48 tests and completed 30; the results were negative. From March
through August 2019 she was scheduled to participate in 46 tests and
completed 40, all of which came back negative. Mother participated in a
hair follicle test in 2018, but the results of the test are not in the record.
Nothing in the record indicates that Mother’s fourth child, who is not a
party to these proceedings, was born substance-exposed or removed from
Mother’s care. Thus, although her participation in substance-abuse
treatment was limited, and she failed to complete drug testing after August
2019, the juvenile court clearly erred in finding she did not participate in
those services.
¶17 Because Mother did participate in substance-abuse-related
services, the severance order is necessarily incorrect in stating that Mother
took “no steps to remedy the circumstances causing her children to be in
out of home care.” And this finding is wrong for other reasons.
¶18 DCS submitted a referral for supervised visits in July 2018.
The case aide reported that Mother “was appropriate during these visits
and engaged well with the children when she attended.” In October, the
visits ended due to Mother’s lack of engagement and the children’s
placement “becoming a barrier to visits.” All three of the children had
originally been placed in an “unlicensed kinship foster home,” but the
placement was changed after acting inappropriately with service providers
and “becoming a barrier to the case plan goal.” In January 2019, DCS
submitted a referral for a parent aide; Mother had visits with the children
once a week for four hours. The March 2019 case report indicates that
according to the case aides and parent aide, Mother engaged well with the
children and appeared to be emotionally bonded with them. Mother
attended 15 out of 23 visits and 7 out of 22 skill sessions with the parent
aide but was closed out of parent aide services in July due to lack of
engagement; she was assigned a DCS case aide later that month. In
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APRILLEANN H. v. DCS, et al.
Decision of the Court
September, the case aide reported that Mother “has been attending her
visits weekly, providing dinner for the children, and is attentive.” The next
month, Mother was assigned to a case aide with Maximum Family Care.
The case aide reported that Mother saw her children four out of six times in
October and was attentive, engaged, and appropriate during visits. Mother
participated in one visit in November. This evidence plainly demonstrates
that Mother took at least some steps to attempt to remedy the circumstances
that led to removal of her children.
¶19 Because we cannot tell whether the court would have
concluded that DCS met its burden of proving the grounds for termination
based on fifteen months out-of-home placement without the clearly
erroneous findings, we vacate the court’s order on this ground and remand
for further proceedings.
B. Nine Months’ Out-of-Home Placement
¶20 For similar reasons, we cannot sustain the court’s decision to
terminate Mother’s parental rights based on nine months’ out of home
placement. To prove termination on this ground, DCS was required to
show the children were in an out-of-home placement for at least nine
months pursuant to court order or voluntary placement “and the parent has
substantially neglected or wilfully refused to remedy the circumstances that
cause the child to be in an out-of-home placement.” A.R.S. § 8-533(B)(8)(a).
¶21 For the nine-months’ ground, the juvenile court made
essentially the same findings discussed above and concluded that “Mother
substantially neglected or willfully refused to remedy the circumstances
that cause the children to be in an out-of-home placement.” Mother argues
those findings lack supporting evidence and the record does not establish
substantial neglect or refusal to remedy the circumstance because she
participated in reunification services and made a good faith effort to
comply with services. We agree. Because the record lacks any reasonable
evidence supporting termination of Mother’s parental rights based on nine
months’ out-of-home placement, we reverse the court’s ruling on this
ground.
C. Abandonment
¶22 Abandonment is defined as:
[T]he failure of a parent to provide reasonable support and to
maintain regular contact with the child, including providing
normal supervision. Abandonment includes a judicial
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APRILLEANN H. v. DCS, et al.
Decision of the Court
finding that a parent has made only minimal efforts to
support and communicate with the child. Failure to maintain
a normal parental relationship with the child without just
cause for a period of six months constitutes prima facie
evidence of abandonment.
A.R.S. § 8-531(1).
¶23 Addressing abandonment, the termination order simply
incorporated the first sentence of the statute quoted above, and then stated
that Mother “paid no support; sent no cards, gifts, or letters; or made any
contact whatsoever with the child.” (Emphasis added.) Mother argues the
italicized portion of the order is not supported by the record. DCS agrees,
but contends the error is harmless. We are not persuaded. Given Mother’s
efforts to engage in reunification services, although inconsistent and
sporadic at times, the record before us lacks any reasonable evidence to
conclude that Mother abandoned her children. We therefore reverse the
court’s ruling on abandonment.
D. Best Interests
¶24 Mother also challenges the juvenile court’s finding that
termination is in the children’s best interests. Because we are not affirming
any of the statutory grounds for termination, we vacate the court’s best-
interests finding. See Alma S. v. Dep’t of Child Safety, 245 Ariz. 146, 149–50,
¶ 8 (2018) (explaining termination is a two-step process that first requires
proof of a statutory ground for termination).
CONCLUSION
¶25 For the foregoing reasons, we reverse the juvenile court’s
order terminating Mother’s parental rights on the grounds of abandonment
and nine months’ out-of-home placement. We vacate the court’s order
based on fifteen months’ out-of-home placement and remand for further
proceedings.
AMY M. WOOD • Clerk of the Court
FILED: AA
8