Emily B., Andrew D. 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

EMILY B, ANDREW D., Appellants,

v.

DEPARTMENT OF CHILD SAFETY, A.B., N.D., Appellees.

No. 1 CA-JV 19-0150
FILED 6-2-2020

Appeal from the Superior Court in Navajo County
No. S0900JD201800026
The Honorable Michala M. Ruechel, Judge

AFFIRMED

COUNSEL

The Brewer Law Office, Show Low
By Benjamin M. Brewer
Counsel for Appellant, Mother

The Lara Group PLC, Mesa
By Matthew Lara
Counsel for Appellant, Father

Arizona Attorney General’s Office, Mesa
By Thomas Jose
Counsel for Appellee, Department of Child Safety
 EMILY B., ANDREW D. v. DCS, et al.
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Jennifer B. Campbell delivered the decision of the Court,
in which Judge Lawrence F. Winthrop and Paul J. McMurdie joined.

C A M P B E L L, Judge:

Emily B. (“Mother”) and Andrew D. (“Father”) (collectively
“Parents”) appeal the juvenile court’s order terminating their parental
rights to their children, Abbigail and Nicklous (the “Children”), on the
grounds of neglect and prolonged substance abuse. Because reasonable
evidence supports the court’s order, we affirm.

BACKGROUND

Parents have a long history with the Department of Child
Safety (“DCS”). This is their fourth out-of-home dependency proceeding
arising out of parental substance abuse. The services DCS provided Parents
in prior dependencies included substance abuse counseling and drug
testing, parenting skills classes, and supervised visitation. In each previous
case, the court ultimately returned the Children to Parents.

Parents have a history of criminal behavior and domestic
violence directly linked to alcohol abuse. As relevant here, during 2018,
police reports documented six “alcohol and violence-related” events.

DCS became involved again with the Parents in August 2018
after receiving a report from the child abuse hotline concerning Abbigail.1
The girl had returned from school to find her Parents intoxicated. Feeling
“overwhelmed,” she went out to the patio, began screaming, and
eventually called her aunt to come and help. Trying to avoid a scene
outside, Parents grabbed Abbigail by her arms and dragged her into the
house. Once inside, she tried to leave her bedroom, but Father pulled her
arm again to keep her from leaving. The daughter sustained a “crush”
injury, bruising, and a strained muscle in her arm. Show Low Police
Department responded, but neither Parent was arrested.

1 Father is Abbigail’s stepfather, but he testified he treats her as his own
child.

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DCS scheduled a Team Decision Making meeting for ten days
after the incident. The morning the meeting was to be held, Father called to
reschedule and was told DCS would seek temporary custody of the
Children.

At the time the meeting was to be held, the case manager and
a police officer arrived at Parents’ home to serve a court authorized removal
and a temporary custody notice. According to a DCS report and testimony,
the case manager found Father “passed out on the floor” with “his leg
hanging out of the patio door,” and Mother “passed out on the couch.” DCS
took the Children into custody. Later that day, Mother was arrested for
disorderly conduct and “threatening-intimidating,” and Father was
voluntarily committed to in-patient psychiatric care for suicidal ideation.
The Children were eventually placed with their aunt and uncle.

DCS filed a dependency petition August 2018, and the court
found the Children dependent in January 2019 as to both Parents.

Throughout the dependency, Parents continued to drink
alcohol excessively. For example, on a day Parents cancelled a scheduled
visit with the Children, the police conducted a welfare check and found
Mother in the car with empty and full shooter bottles of alcohol. Mother
drank another shooter in front of the deputy, and both Parents later
admitted to drinking that day. According to a report by the guardian ad
litem, on this occasion, Parents had “chosen to spend the day drinking
rather than having their [C]hildren for a visit.” Both Parents then entered
rehabilitation facilities.

In September 2018, DCS moved to terminate both Parents’
parental rights on the statutory grounds of neglect, willful child abuse, and
chronic substance abuse pursuant to A.R.S. § 8-533(B)(2), (3). At the outset
of the two-day severance hearing, Mother objected to DCS’s proffered
exhibits, but the court overruled the objection because Mother had not filed
a written objection to the exhibits before trial. DCS also filed a motion to
waive a social study, which the court denied. Following the hearing, the
court terminated Parents’ rights to both Children pursuant to A.R.S.
§ 8-533(B)(2), (3).

In a detailed ruling, the court took judicial notice of the
Parents’ previous dependency cases and sua sponte waived the social
study. The court found that Parents neglected the Children and were
unable to discharge their parental responsibilities due to prolonged
substance abuse that was likely to continue. The court also found that

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termination was in the best interests of the Children because they were
thriving in their aunt and uncle’s care, could maintain relationships with
other family members through this familial placement, and would benefit
from stability because their aunt and uncle intended to adopt them. Parents
timely appealed.

DISCUSSION

I. Termination Ground of Neglect Regarding Father

Father only challenges the juvenile court’s termination based
on neglect, arguing the court gave undue weight to the “biased testimony”
of Mother’s relatives and that the findings were “confusing” because the
court used Abbigail’s “injury as evidence that the Parents’ neglect caused
unreasonable risk of harm to child’s health or welfare” while also finding
that the “state did not meet its burden of proof that the child was abused or
that there was serious physical or emotional injury.”

Neither Parent’s contest the juvenile court’s termination of
their parental rights based on prolonged substance abuse. This court can
affirm the termination of parental rights on any single statutory ground,
and upon doing so, does not need to address other grounds on which the
juvenile court ruled. Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 251,
¶ 27 (2000). In light of the evidence in support of the juvenile court’s finding
regarding the ground of prolonged substance abuse, which Father does not
dispute on appeal, we decline to address Father’s argument regarding the
court’s neglect finding.

II. Judicial Notice

Both Parents argue the juvenile court abused its discretion
and denied them due process by taking judicial notice of their prior
dependency cases. Each contends that because the juvenile court did not
announce during the hearing that it would take judicial notice, the court
erred by depriving them of notice and an opportunity to be heard.

“A court may take judicial notice of the record in another
action tried in the same court.” Reidy v. O’Malley Lumber Co., 92 Ariz. 130,
132, (1962); see Ariz. R. Evid. 201(b)(2) (“The court may judicially notice a
fact that is not subject to reasonable dispute because it . . . can be accurately
and readily determined from sources whose accuracy cannot reasonably be
questioned.”). Further, “[t]he court may take judicial notice at any stage of
the proceeding.” Ariz. R. Evid. 201(d). Rule 201(e) states that upon a “timely
request, a party is entitled to be heard on the propriety of taking judicial

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notice and the nature of the fact to be noticed. If the court takes judicial
notice before notifying a party, the party, on request, is still entitled to be
heard.” Ariz. R. Evid. 201(e) (emphasis added).

At the termination hearing, multiple witnesses testified about
the prior dependencies, and neither Parent objected to that testimony.
Having failed to object to testimony about the prior dependencies, Parents
then failed to exercise their right under Rule 201(d) to be heard after the
court took judicial notice of the dependencies in its termination order
without informing the parties ahead of time that it would do so. Instead,
Parents simply filed their respective notices of appeal. “We do not consider
arguments raised for the first time on appeal except under exceptional
circumstances.” In re MH 2008-002659, 224 Ariz. 25, 27, ¶ 9 (App. 2010).
Because Parents did not object in the juvenile court after the court took
judicial notice, we will not address their argument on appeal.

III. Reasonable Efforts to Provide Reunification Services

Parents argue the juvenile court abused its discretion by
finding that DCS was not required to provide Parents with additional
reunification services. Mother specifically argues that the court “did not
rule on the issue of futility if additional services were offered.”

DCS is not required to provide every conceivable service or
“undertake rehabilitative measures that are futile.” Mary Ellen C. v. ADES, 193 Ariz. 185, 192 (App. 1999). Here, the court implicitly found that
“grounds for not providing reunification services existed,” expressly
agreeing with DCS’s contention that additional services “were [not] likely
to result in long term modifications in behavior to the extent that the
[C]hildren could be safely returned to the [Parents].” Based on the evidence
of the Parents’ historical repeated failures to make behavioral changes in
three prior dependencies, the juvenile court acted within its discretion by
deciding additional services would be futile.

Moreover, contrary to Mother’s contention, at the onset of this
fourth dependency, the court did in fact order additional services for her.
As the court explained in its termination order, because “Mother was
pregnant, . . . the court felt that services were needed to allow the best
chance for a healthy birth.” Services DCS provided to Mother included
individual counseling, parent aide services, facilitated visitation, and
substance abuse assessment and treatment. Despite receiving these
additional services, however, Mother continued to abuse alcohol.

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In light of the circumstances, there is sufficient evidence in the
record to justify the court’s finding that DCS made reasonable efforts to
reunify the family.

IV. Waiver of Social Study

Father argues the juvenile court abused its discretion and
denied him due process by sua sponte waiving the social study after
previously denying DCS’s waiver motion. He contends he was not allowed
to object to the waiver or make a record regarding the necessity of a social
study.

“On the filing of a petition, the court shall order DCS to . . .
conduc[t] a . . . social study . . . .” A.R.S. § 8-536(A). “The social study shall
include the circumstances of the petition, the social history, the present
condition of the child and parent, proposed plans for the child and other
facts pertinent to the parent-child relationship.” Id. However, the court may
waive the requirement of the social study based on the best interests of the
child. A.R.S. § 8-536(C); Matter of Appeal in Pima Cty. Juvenile Severance
Action No. S-2710, 164 Ariz. 21, 24 (App. 1990) (finding the juvenile court
did not err in waiving the social study when evidence was presented on the
“crucial issues” that a social study would likely address), disapproved on
other grounds by Matter of Appeal in Maricopa Cty. Juvenile Action No. JS-
500274, 167 Ariz. 1 (1990).

Here, the court received evidence on the “crucial issues” that
the social study would have covered, including circumstances giving rise
to the petition to terminate parental rights, the Parents’ history of alcohol
abuse and its effect on the Children, the present condition of the Children
and the plan for the Children to be adopted by their aunt. Accordingly, the
court did not abuse its discretion by waiving the social study.

V. Mother’s “Appreciable Efforts”

Relying on Donald W., Sr. v. Arizona Department of Economic
Security, 215 Ariz. 199, 205, ¶ 16 (App. 2007), as amended (Oct. 19, 2007),
opinion vacated in part (Oct. 19, 2007),2 Mother contends that the juvenile
court abused its discretion in terminating her parental rights in light of her

2 We note that Donald W. is a memorandum decision and is not regarded
as precedent. See John M. v. Ariz. Dep’t of Econ. Sec., 217 Ariz. 320, 323, ¶ 8
(App. 2007) (declining to consider Donald W. because the Arizona Supreme
Court vacated it in part and designated the remaining portions as a
memorandum decision).

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“appreciable efforts” to comply with her rehabilitative services. She argues,
“[s]everance is not appropriate when a parent has made ‘appreciable,’
efforts to comply with remedial programs outlined by [DCS].”

Mother confuses the elements of the various statutory
grounds for termination. In Donald W., the issue before the court was the
termination of parental rights based on time-in-care under A.R.S. § 8-
533(B)(8)(a), which requires a showing that “the parent has substantially
neglected or willfully refused to remedy the circumstances that cause the
child to be in an out-of-home placement.” We stated in Donald W. that
“appreciable, good faith efforts” by a parent to comply with services may
logically preclude a finding under the nine-months’ time in care ground.
215 Ariz. at 205, ¶ 16. Here, however, the juvenile court did not terminate
Mother’s rights pursuant to the nine-months’ time in care ground, but
instead found two other grounds for termination, neglect and substance
abuse.

These grounds do not require the court to consider a parent’s
“appreciable efforts.” See A.R.S. § 8-533(B)(2), (3). Accordingly, the juvenile
court did not err by failing to make such findings.

VI. Ineffective Assistance of Counsel

Mother asserts her trial counsel was ineffective because he
failed to timely object to 43 exhibits the juvenile court admitted at the
hearing, and that, as a result, the severance proceedings were
fundamentally unfair. Mother does not, however, present any legal
argument for why the exhibits should not or could not have been admitted,
had timely objections been raised. For that reason, we need not address the
merits of her contention that her counsel was ineffective.

Nevertheless, we note that no Arizona court has reversed a
termination order based on ineffective assistance of counsel. See John M.,
217 Ariz. at 324, ¶ 12; but see Matter of Appeal in Gila Cty. Juvenile Action No.
J-3824, 130 Ariz. 530, 533, 536 (1981) (reversing and remanding where the
appellant was denied her right to a guardian ad litem and received
ineffective assistance of counsel), disapproved on other grounds by Matter of
Appeal in Pima Cty. Juvenile Action No. S-919, 132 Ariz. 377 (1982). In other
words, contrary to the premise of Mother’s argument, whether ineffective
assistance of counsel can result in reversal of a severance in Arizona,
remains an open question.

Many decades ago, our Supreme Court held that the juvenile
court may not bar a parent from appearing with retained counsel in a

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dependency proceeding. Ariz. State Dep’t of Public Welfare v. Barlow, 80 Ariz.
249, 253 (1956). Given that the law affords a hearing to a parent in a
dependency, the court held that the denial of a parent’s request to be
represented by retained counsel in that hearing would violate due process.
Id. As for a parent’s right to appointed counsel in a dependency, the United
States Supreme Court has held that although the Due Process Clause of the
United States Constitution does not require appointment of counsel for
every indigent parent facing termination of his parental rights, “[w]ise
public policy . . . may require that higher standards be adopted than those
minimally tolerable under the Constitution.” Lassiter v. Dep’t of Soc. Servs. of
Durham County, N.C., 452 U.S. 18, 31–32, 33–34 (1981). Indeed, in 1970, the
Arizona legislature enacted what is now A.R.S. § 8-221(B), which states, “[i]f
a juvenile, parent or guardian is found to be indigent and entitled to
counsel, the juvenile court shall appoint an attorney to represent the person
or persons unless counsel for the juvenile is waived by both the juvenile
and the parent or guardian.” We have held this requires the appointment
of counsel for indigent parents in termination proceedings.3 See Tammy M.
v. Dep’t of Child Safety, 242 Ariz. 457, 461, ¶ 13 (App. 2017); see also Brenda D.
v. Dep’t of Child Safety, 243 Ariz. 437, 447, ¶ 36 (2018). The statute, however,
does not specify that a parent’s counsel must be effective, let alone articulate
how effectiveness might be measured and assessed.

Consistent with Barlow and notwithstanding Lassiter, Arizona
courts continue to hold that a parent’s right to counsel in termination
proceedings is of “constitutional dimension.” Daniel Y. v. Ariz. Dep’t of Econ.
Sec., 206 Ariz. 257, 260, ¶¶ 12, 14 (App. 2003); see, e.g., Christy A. v. Ariz.
Dep’t of Econ. Sec., 217 Ariz. 299, 307, ¶ 28 (App. 2007) (“For termination
adjudication hearings, indigent parents have a right to appointed counsel
pursuant to [statute] and the Due Process Clause of the United States
Constitution.”); Denise H. v. Arizona Dep’t of Econ. Sec., 193 Ariz. 257, 259,
¶ 6 (App. 1998) (stating an indigent parent’s right to counsel is afforded by
statute and by the Due Process Clause.).

In the criminal context, a defendant’s right to effective
assistance of counsel is rooted in the Sixth Amendment. Strickland v.
Washington, 466 U.S. 668, 691–92 (1984) (the “purpose of the Sixth
Amendment guarantee of counsel is to ensure that a defendant has the
assistance necessary to justify reliance on the outcome of the proceeding.”).
Relying on Lassiter, however, the Ninth Circuit recently declined to

3 The phrase “and entitled to counsel” in A.R.S. § 8-221(B) was added in
1997 and, upon our review of Arizona caselaw, no court since has been
asked to determine the significance of the amendment.

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recognize a parent’s right to counsel in termination proceedings as being
rooted in the Sixth Amendment, because, “[b]y its terms, the Sixth
Amendment applies only to ‘criminal prosecutions.’” O’Neal v. Sherman, 2014 WL 5810308, at 3 (9th Cir. 2014) (citing Lassiter, 452 U.S. at 23–32).

Instead, a parent’s right to counsel in a termination
proceeding in Arizona is dually rooted in statute and the Due Process
Clause. The nature or quality of the legal representation to which a parent
is entitled in Arizona, presently an open question, must be derived from
one or both of those two bases.

The Due Process Clause of the United States Constitution
imports a “requirement of fundamental fairness, a requirement whose
meaning can be as opaque as its importance is lofty.” Lassiter, 452 U.S. at 24
(internal quotation omitted). Lassiter suggests that “[a]pplying the Due
Process Clause is therefore an uncertain enterprise which must discover
what ‘fundamental fairness’ consists of in a particular situation by first
considering any relevant precedents and then by assessing the several
interests at stake.” Id. at 24-25. No Arizona case has specified the bounds of
due process in this particular situation. John M. v. Ariz. Dep’t of Econ. Sec.,
217 Ariz. 320, 324, ¶ 12 (App. 2007); but see Matter of Appeal in Gila Cty.
Juvenile Action No. J-3824, 130 Ariz. 530, 536 (1981) (reversing and
remanding where appellant was denied her right to a guardian ad litem
and received ineffectual assistance of counsel). Instead, some Arizona
courts have assumed, without deciding, that Arizona recognizes ineffective
assistance of counsel as an independent ground for relief on appeal of a
termination order and then have addressed the issue as if it arose in the
context of the Sixth Amendment right to effective assistance of counsel. Id.
at 325, ¶ 17; cf. Matter of Appeal in Santa Cruz County Juv. Dep. Action Nos.
JD–89–006 and JD–89–007, 167 Ariz. 98, 101 (App. 1990) (assuming without
deciding that ineffective assistance of counsel “is properly raised in the
context of a dependency proceeding”).

In Lassiter, however, the Supreme Court distinguished
between the civil termination context and the criminal context: “The pre-
eminent generalization that emerges from [the Supreme Court] precedents
on an indigent’s right to appointed counsel is that such a right has been
recognized to exist only where the litigant may lose his physical liberty if
he loses the litigation.” 452 U.S. at 25. The court explained, “[t]he Court has
refused to extend the right to appointed counsel to include prosecutions
which, though criminal, do not result in the defendant’s loss of personal
liberty.” Id. at 26.

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Other jurisdictions vary in their approach to ineffective
assistance of counsel claims in termination proceedings. John M., 217 Ariz.
at 324, ¶ 13.

Compare, e.g., S.B. v. Dep’t of Children & Families, 851 So.2d 689
(Fla. 2003) (ineffective assistance claim recognized in appeal
of termination order, where right to counsel grounded in state
constitution, but not dependency order, where right to
counsel only statutory); In re Heather R., 269 Neb. 653, 694
N.W.2d 659, 664–65 (2005) (no ineffective assistance of
counsel claim in civil juvenile proceeding; allegation of
inadequate representation assessed as a due process claim to
fundamentally fair procedure); In re N.D.O., 121 Nev. 379, 115
P.3d 223, 224–25 (2005) (“no ineffective-assistance-of-counsel
Claim will lie” where counsel not
constitutionally required under Lassiter; Strickland standard),
with In re M.S., 115 S.W.3d 534, 544–45 (Tex. 2003) (statutory
right to counsel includes right to effective
counsel; Strickland standard); In re Geist, 310 Or. 176, 796 P.2d
1193, 1200–01 (1990) (statutory right to counsel “may prove
illusory” without remedy for ineffective assistance;
“fundamental fairness” standard).

And other states have adopted statutes that authorize
ineffective assistance of counsel claims and establish a procedure for review
in the trial court requiring a hearing on the issue. See, e.g., NJ RAR. 2:10-6.

“Parents possess a fundamental liberty interest in the care,
custody, and management of their children.” Kent K. v. Bobby M., 210 Ariz.
279, 284 (2005) (citing Santosky v. Kramer, 455 U.S. 745, 753 (1982)); see also
Michael J. 196 at Ariz. 246, 248 (2000). However, termination proceedings do
not jeopardize the physical liberty of any party. The best interests of a child
is the ultimate and most pervasive concern in dependency proceedings.
How will the child’s best interests be affected if the courts determine that
the right to counsel for Arizona termination proceedings necessarily
includes the right to effective counsel? If there is such a right, from where
is that right derived; and, if there is not, why are we using judicial resources
to address the issue each time it is raised? If there is no legal foundation for
such claims, should we not be dismissing them out of hand? Is it logical to
apply the Strickland test, a criminal standard, in the civil termination
context, given that the right to counsel is derived from completely different
sources―respectively, the Sixth Amendment to the Federal Constitution
versus an Arizona legislative enactment of Constitutional dimension?

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These questions will remain unless or until the legislature
enacts legislation or the Arizona Supreme Court rules on the issue.

CONCLUSION

For the foregoing reasons, we affirm.

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

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