Yvette L. 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

YVETTE L., Appellant,

v.

DEPARTMENT OF CHILD SAFETY, N.R., D.R., J.R., Appellees.

No. 1 CA-JV 20-0006
FILED 8-25-2020

Appeal from the Superior Court in Maricopa County
No. JD35998
The Honorable David O. Cunanan, Judge

VACATED AND REMANDED

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
 YVETTE L. v. DCS et al.
Decision of the Court

MEMORANDUM DECISION

Judge D. Steven Williams delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge David D. Weinzweig
joined.

W I L L I A M S, Judge:

¶1 Yvette L. (“Mother”) appeals the juvenile court’s order
severing her parental rights to her children, N.R., D.R., and J.R. (collectively
the “Children”). We vacate the termination order, but remand because the
dependency is ongoing.

FACTUAL AND PROCEDURAL HISTORY

¶2 Mother and Osbaldo R.1 (“Father”) are the biological parents
of the Children. In May 2018, Mother was arrested, incarcerated, and
charged with federal felony offenses arising in New Mexico. Upon her
release from custody in June 2018, Mother contacted police to report the
Children missing. During the police and Arizona Department of Child
Safety (“DCS”) investigation, Mother recanted after remembering the
Children were with their grandmother. Mother self-reported suffering from
anxiety, depression, bipolar disorder, seizures, and acknowledged she
faced the likelihood of future incarceration. Mother’s erratic and seemingly
impaired behavior led DCS to take temporary custody of the Children and
file a dependency petition. The petition alleged Mother had neglected the
Children due to her substance abuse and mental health issues and failed to
provide for the Children’s basic needs. The Children remained with
grandmother who had been caring for them.

¶3 When Mother failed to appear for a pretrial conference in
August 2018, the Children were adjudicated dependent. Thereafter,
Mother’s participation in reunification services was inconsistent. When
Mother failed to appear at a review hearing in February 2019, the Guardian
ad Litem (“GAL”) requested a change in case plan to severance and
adoption. The juvenile court granted the request, and the GAL filed a
motion to terminate Mother’s parental rights on the ground of

1Father’s parental rights were terminated in the same proceeding when he
entered a no contest plea, but he is not a party to this appeal.

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Decision of the Court

abandonment. Mother spent additional time incarcerated in New Mexico
through January 2019, and again towards the end of 2019 after violating the
terms of her probation. While out-of-custody, Mother participated in
counseling as a term of probation in her criminal case. Mother maintained
somewhat regular contact with the Children, both during her incarceration,
and once she was released from custody. Despite being unaware of
Mother’s whereabouts during much of 2019, DCS was aware of Mother’s
ongoing participation in counseling, as well as her contact with the
Children.

¶4 The severance trial was held in December 2019. At the
conclusion of the trial, and following closing arguments, the following
exchange took place between the court and the GAL:

[Court]: I think there’s a time [in] care argument that has been
made as well –- are you asking to amend your petition to
reflect it to conform with the evidence that’s been presented?

[GAL]: I would so move, Your Honor.

¶5 Over Mother’s objection, the court then amended the motion
for termination to include a second ground for severance, namely a fifteen-
month out-of-home placement ground. The juvenile court then terminated
Mother’s parental rights on the amended ground of fifteen-months in an
out-of-home placement, as well as based upon the best interests of the
Children. In a subsequent written order, issued two months later, the
juvenile court added abandonment as a basis for termination. Mother
timely appealed, and we have jurisdiction pursuant to A.R.S. §§ 8-235(A),
12-2101(A), and 12-120.21(A).

DISCUSSION

¶6 We review a severance ruling for an abuse of discretion,
accepting the court’s factual findings unless clearly erroneous, Mary Lou C.
v. Ariz. Dep’t of Econ. Sec., 207 Ariz. 43, 47, ¶ 8 (App. 2004), and viewing the
evidence in the light most favorable to sustaining the court’s ruling, Manuel
M. v. Ariz. Dep’t of Econ. Sec., 218 Ariz. 205, 207, ¶ 2 (App. 2008). 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,” we
will affirm an order terminating parental rights if reasonable evidence
supports the order. Jordan C. v. Ariz. Dep’t of Econ. Sec., 223 Ariz. 86, 93, ¶ 18
(App. 2009) (quoting Ariz. Dep’t of Econ. Sec. v. Oscar O., 209 Ariz. 332, 334,
¶ 4 (App. 2004)). “To justify termination of the parent-child relationship,
the [juvenile] court must find, by clear and convincing evidence, at least one

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of the statutory grounds set out in [A.R.S. §] 8-533,” and find, by a
preponderance of the evidence “that termination is in the best interest[s] of
the child[ren].” Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 249, ¶ 12
(2000); accord Ariz. R.P. Juv. Ct. 66(C).

I. The Juvenile Court Erred in Amending the Motion for Termination at the
Conclusion of Trial

¶7 At the conclusion of trial, following closing arguments, the
juvenile court inquired whether the GAL desired to amend the motion for
termination to include the ground of fifteen months in an out-of-home
placement as a basis for severance. See A.R.S. § 8-533(B)(8)(c). Once the
court inquired, the GAL orally moved for the amendment, and, over
Mother’s objection, the court granted the same. Mother argues the GAL’s
motion to amend was untimely.

¶8 “Adequate notice is a fundamental element of due process.”
Roberto F. v. Ariz. Dep’t of Econ. Sec., 232 Ariz. 45, 55, ¶ 44 (App. 2013). And
although a severance trial should “be as informal as the requirements of
due process and fairness permit,” Ariz. R.P. Juv. Ct. 66(D), “[d]ue process
[also] requires prior notice of [allegations] so that the accused has a
meaningful opportunity for explanation and defense,” Comeau v. Ariz. State
Bd. of Dental Exam’rs, 196 Ariz. 102, 108, ¶ 28 (App. 1999).

¶9 Here, the juvenile court seemingly suggested, and then
granted, an amendment to the motion for termination after the presentation
of all evidence and arguments had concluded. Consequently, Mother was
given no advance notice of a fifteen month out-of-home placement
allegation, or opportunity to defend against the same. Indeed, DCS
concedes the error. Because the juvenile court violated Mother’s due
process rights by granting the amendment at the conclusion of trial, we
vacate the court’s order terminating Mother’s parental rights based upon
fifteen months in an out-of-home placement. See Roberto F., 232 Ariz. at 55-
56, ¶¶ 43-50 (holding the juvenile court violated a father’s due process
rights when it allowed the foster parents to amend the motion for
termination to add a new ground on the fourth day of a five-day severance
trial).

II. Abandonment

¶10 Although DCS’ dependency petition alleged neglect,
substance abuse and mental health as grounds for the dependency, the GAL
alleged only abandonment when seeking to terminate Mother’s parental
rights. Section 8-531(1) defines abandonment as:

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Decision of the Court

[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 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.

¶11 At the conclusion of the severance trial, the juvenile court
made findings based upon the dependency allegations, as opposed to the
motion for termination, namely: (1) neglect, (2) substance-abuse and (3)
mental-health. The court, however, did not address abandonment, the only
properly-alleged ground for severance.

¶12 Neither the GAL, who filed the motion for termination, nor
DCS who joined in the motion, noted the court’s omission or requested
findings regarding abandonment. The court directed the GAL to file
proposed findings of fact and conclusions of law within “ten days of [the
December 4, 2019 severance trial].”

Counsel, I am going to order that the –- Counsel provide
written findings of fact and conclusions of law to the Court
with[in] ten days of today’s date. Please circulate those to the
other parties as well for their approval or if they have any
modifications they wish to make the Court aware of.

¶13 Two months later, on February 5, 2020, the GAL filed the
proposed findings of fact and conclusions of law, a four-page document.
The court endorsed the proposed order the following day and it was filed
with the clerk’s office on February 11, 2020. The order is only partially
consistent with the findings made at trial. Specifically, the written order: (1)
omits any reference to neglect or substance abuse findings the court made
at trial, (2) includes findings the court made about the fifteen months in an
out-of-home placement ruling, and (3) adds a conclusion of law addressing
abandonment, which the court did not make nor did the court address.
Even then, there are no findings of fact, let alone the specific findings of fact
required for abandonment. See Ariz. R.P. Juv. Ct. 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”).

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¶14 The order entered by the court makes no findings of fact
addressing abandonment. Indeed, the only findings of fact in the order
describe the parties and that Mother was served with the motion for
termination through her attorney. The conclusions of law paraphrase and
address the statutory ground of abandonment. But such minimal
conclusions of law cannot save inadequate, but required, findings of fact.
See id.

¶15 Here, the GAL’s proposed order, which the court then
entered, does not accurately reflect the court’s findings made at trial and
does not make the findings of fact required for abandonment. Accordingly,
the record lacks the required specific findings to support the termination of
Mother’s parental rights. We, therefore, vacate the severance order and
remand for further proceedings.

CONCLUSION

¶16 We vacate the juvenile court’s order terminating Mother’s
parental rights to the Children, but remand because the dependency is
ongoing.

AMY M. WOOD • Clerk of the Court
FILED: AA

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