Kristina J. v. Dcs, K.H.

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

KRISTINA J.,
Appellant,

v.

DEPARTMENT OF CHILD SAFETY, K.H.,
Appellees.

No. 1 CA-JV 20-0180
FILED 12-8-2020

Appeal from the Superior Court in Maricopa County
No. JD34757
The Honorable Jo Lynn Gentry, 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
 KRISTINA J. v. DCS, K.H.
Decision of the Court

MEMORANDUM DECISION

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

W E I N Z W E I G, Judge:

¶1 Kristina J. (“Mother”) appeals the juvenile court’s order
terminating her parental rights to K.H. She argues the Department of Child
Safety (“DCS”) did not prove a statutory ground for termination. Because
we cannot discern the court’s basis for an essential element, we vacate and
remand for clarification.

FACTS AND PROCEDURAL BACKGROUND

¶2 Mother and Father are the natural parents of K.H., born in
January 2012, and A.H., born in February 2013.1 They divorced in Georgia
in April 2014. The Georgia family court awarded Mother and Father joint
legal custody of K.H. and A.H. Father later took K.H. from Georgia to
Arizona without Mother’s consent.

¶3 DCS first learned about K.H. in September 2017 after Father
reportedly hit another child, his girlfriend’s son, in the face. DCS removed
K.H. from Father and petitioned for a dependency finding on the grounds
of neglect and abandonment. Father told DCS investigators that Mother
had not seen K.H. for at least two years. DCS did not know where Mother
lived in Georgia.

¶4 Father waited two months to inform Mother about K.H.’s
removal and the dependency proceedings. Mother contacted DCS. In
January 2018, Mother stipulated to the dependency based on K.H.’s
“behaviors” and the juvenile court found K.H. “dependent based upon
[K.H.’s] behaviors.” The court added that “no allegations of abuse or
neglect [had been found] regarding [M]other.” Because Mother remained
in Georgia, the juvenile court ordered DCS to begin the reunification

1 The juvenile court also terminated Father’s parental rights, but he is
not party to this appeal, which only concerns Mother’s parental rights to
K.H.

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Decision of the Court

process between Mother and K.H. under the Interstate Compact for the
Placement of Children (“ICPC”).2

¶5 Mother spoke to K.H. by telephone in March 2018 and sent
him pictures and video recordings. For the next six months, Mother had no
contact with K.H. and did not respond to inquiries from K.H.’s group home.
DCS arranged a video call between K.H. and Mother in October 2018. In
November 2018, Georgia’s Division of Child and Family Services (“DCFS”)
denied Mother’s ICPC referral because they could not schedule a home
study.

¶6 DCS sent a second ICPC referral to Georgia, citing Mother’s
“ability and desire to engage with the ICPC process,” but expressed concern
about Mother’s unresponsive periods. Mother finished several steps in the
second ICPC, including a background check and self-reported drug test.
She also had weekly telephone calls and monthly video calls with K.H.,
though she missed several scheduled calls. DCS encouraged Mother to visit
K.H. in Arizona. Mother said she lacked the resources to fund the trip and
sought an order requiring DCS to cover it. The court denied Mother’s
request.

¶7 K.H.’s paternal grandmother asked the Arizona court to place
K.H. with her in Georgia, sharing that she had also begun the ICPC process.
Mother objected. The court granted grandmother’s request in July 2019,
with Mother’s second ICPC pending. K.H. was placed with his paternal
grandmother in Georgia. With K.H. and Mother in Georgia, “DCS had
struggled to provide visits to Mother while it sought out an agency that
could supervise visits and provide transportation.”

¶8 In September 2019, Georgia DCFS denied Mother’s second
ICPC because she had been evicted from her apartment and because
Georgia allegations had surfaced that Mother hit A.H., K.H.’s sister.
Mother was told she needed to wait six more months before another ICPC
would be considered.

¶9 That same month, the juvenile court changed K.H.’s case plan
to severance and adoption. DCS moved to terminate Mother’s parental

2 We note that, before the dependency, the Arizona court conferred
with a Georgia court and confirmed that Arizona properly had jurisdiction
under the Uniform Child Custody Jurisdiction and Enforcement Act. See
A.R.S. § 25-1033.

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rights in October 2019 on the grounds of nine-months and fifteen-months
out-of-home placement.

¶10 The juvenile court held a one-day severance trial in April
2020. The assigned DCS case worker testified that Mother had “not made
any progress in having the child placed in her care.” Mother telephonically
testified.

¶11 In May 2020, the juvenile court found that DCS had proven
both out-of-home placement grounds by clear and convincing evidence and
terminated Mother’s parental rights to K.H. The court specifically found
that Mother “has substantially neglected or willfully 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).” The court added: “At the time this child came into
care, it was reported by Father that Mother had not seen this child in over
two years. Mother has been residing in Georgia since the beginning of the
dependency. . . . While Mother has visited with the child over the phone
and through video, she has not seen the child in person since well before
the dependency began. To date, Mother has not made progress through
ICPC to have her child approved to be placed with her.” The court also
found that termination was in K.H.’s best interests. Mother timely
appealed. We have jurisdiction. A.R.S. §§ 8-235(A), 12-120.21, and 12-
2101(A)(1).

DISCUSSION

¶12 Although not absolute, parents have “a fundamental liberty
interest in the care, custody, and management of their children.” Kent K. v.
Bobby M., 210 Ariz. 279, 284, ¶ 24 (2005). This court will affirm a severance
order unless it is clearly erroneous, and we accept the court’s factual
findings unless no reasonable evidence supports them. Jesus M. v. Ariz.
Dep’t of Econ. Sec., 203 Ariz. 278, 280, ¶ 4 (App. 2002).

¶13 Parental rights are properly terminated when the juvenile
court finds, by clear and convincing evidence, a statutory ground for
termination under A.R.S. § 8-533(B) and, by a preponderance of the
evidence, that termination is in the child’s best interests. Valerie M. v. Ariz.
Dep’t of Econ. Sec., 219 Ariz. 331, 334, ¶ 9 (2009).

¶14 Severance based upon nine months out-of-home placement
under A.R.S. § 8-533(B)(8)(a) requires proof that (1) the child had been in
court-ordered out-of-home placement for at least nine months; (2) DCS
made a “diligent effort to provide appropriate reunification services”; and
(3) despite these efforts, Mother has substantially neglected or willfully

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Decision of the Court

refused to remedy the circumstances causing the children to be in an out-
of-home placement.

¶15 Severance based upon fifteen months out-of-home placement
under A.R.S. § 8-533(B)(8)(c) requires proof that (1) the child has been
placed in out-of-home care for at least fifteen months; (2) DCS “has made a
diligent effort to provide appropriate reunification services”; (3) “the parent
has been unable to remedy the circumstances that cause the child to be in
an out-of-home placement”; and (4) “there is a substantial likelihood that
the parent will not be capable of exercising proper and effective parental
care and control in the near future.”

¶16 Mother argues the juvenile court failed to identify “the
circumstances” she failed to remedy at the time of the severance and that
DCS did not make “diligent effort to provide appropriate reunification
services,” which necessarily turns on the unremedied circumstances.
A.R.S. § 8-533(B)(8)(a), (c); Jordan C. v. Ariz. Dep’t of Econ. Sec., 223 Ariz. 86,
96, ¶ 31, n.14 (App. 2009) (explaining that relevant circumstances are those
“existing at the time of the severance that prevent a parent from being able
to appropriately provide for his or her children”). Both out-of-home
grounds require these common elements.

¶17 DCS claims the unremedied “circumstances” are Mother’s
failure “to timely engage in the necessary steps to establish a relationship
with [K.H.] and have [K.H.] placed in her care,” even if not stated in the
severance order, and that Mother waived any challenge to the adequacy of
reunification services.

¶18 Before addressing the merits, we hold that Mother did not
waive her challenge to the diligent efforts finding. See Shawanee S. v. Ariz.
Dep’t of Econ. Sec., 234 Ariz. 174, 178, ¶ 14 (App. 2014) (listing times when a
parent may preserve a challenge to DCS’s reasonable efforts). During court
hearings in December 2019 and February 2020, Mother objected to the
adequacy of DCS services. She also raised the issue at the severance trial,
arguing that DCS “provided little to no services for [Mother].”

¶19 On the merits, the juvenile court did not identify the
“circumstances” that Mother failed to remedy. Without that information,
this court cannot assess whether DCS offered appropriate reunification
circumstances. Donald W. v. Dep’t of Child Safety, 247 Ariz. 9, 17, ¶ 26 (App.
2019) (“Because the court did not identify the ‘circumstance’ causing the
out-of-home placement, both in origin and any cause arising during the
dependency, the court was unable to properly conclude that: DCS had made

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Decision of the Court

a diligent effort to provide appropriate reunification services [and that]
Father was unable to remedy the circumstance.” (emphasis in original)).

¶20 Aside from recognizing the denied ICPCs, the court only
found that Mother had not seen the child for a long time before dependency
and had “not shown the behavioral changes needed to appropriately parent
her child.” The court also found, incorrectly, that Mother had not “seen the
child in person since well before dependency began.” Mother had visited
with K.H. in Georgia after K.H. was placed with his maternal grandmother.
Beyond that, “[a] denied ICPC alone does not preclude a parent from
gaining custody of the child.” Id. at 21, ¶ 42. The juvenile court must still
“determine if the parent is unfit based on the evidence.” Id. And again, the
court found K.H. dependent as to Mother because of K.H.’s behaviors and
DCS made no abandonment allegation.

¶21 We do not reach or decide whether the record has sufficient
evidence to prove that Mother has not remedied the circumstances or to
prove that DCS provided adequate reunification services. Rather, we are
unable to address those issues unless we know what circumstances the
juvenile court relied on. E.R. v. Dep’t of Child Safety, 237 Ariz. 56, 60, ¶ 18
(App. 2015) (vacating and remanding termination decision where this court
could not discern whether the juvenile court properly identified the
circumstance a parent needed to address).

CONCLUSION

¶22 We vacate the juvenile court’s termination order and remand
for the court for clarification. The juvenile court may rule based on the
existing record or hold additional hearings as the court finds appropriate.
We do not reach Mother’s remaining arguments.

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

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