Brandon K., Delia B. 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

BRANDON K., DELIA B., Appellants,

v.

DEPARTMENT OF CHILD SAFETY, J.K., A.K., Appellees.

No. 1 CA-JV 21-0146
FILED 11-2-2021

Appeal from the Superior Court in Maricopa County
No. JD37036
The Honorable Michael J. Herrod, Judge

VACATED IN PART; AFFIRMED IN PART

COUNSEL

Maricopa County Public Advocate’s Office, Mesa
By Suzanne Sanchez, Seth Draper
Counsel for Appellant Delia B.

Maricopa County Legal Defender’s Office, Phoenix
By Jamie R. Heller
Counsel for Appellant Brandon K.

Arizona Attorney General’s Office, Mesa
By Tom Jose
Counsel for Appellee Department of Child Safety
 BRANDON K., DELIA B. v. DCS et al.
Decision of the Court

MEMORANDUM DECISION

Judge David B. Gass delivered the decision of the court, in which Presiding
Judge D. Steven Williams and Judge James B. Morse Jr. joined.

G A S S, Judge:

¶1 Father and mother appeal the superior court’s decision to
terminate their parental rights. They raise three issues on appeal. First, they
argue the superior court violated their due process rights when it
conducted their termination hearing virtually. Second, they assert
reasonable evidence did not support the superior court’s finding that
termination of their parental rights served the children’s best interests.
Third, they argue the superior court committed reversible error by
including erroneous factual findings regarding their child A.K.’s age and
adoptability.

¶2 Because the combination of video and telephonic termination
proceedings did not deprive father and mother of their due process rights
and the superior court based its best-interests determination upon
reasonable evidence, even with the erroneous factual findings concerning
A.K., we affirm the termination order. We, however, vacate the superior
court’s decision to strike the erroneous factual findings from its original
decision terminating parents’ parental rights because father filed the notice
of appeal before the superior court made this modification.

FACTUAL AND PROCEDURAL HISTORY

¶3 Father and mother have three minor children—J.K., A.K., and
K.K. K.K. reached adulthood before the superior court completed the
termination process.

¶4 The Department of Child Safety (DCS) became involved with
this family and filed a petition to take all three children into temporary
physical custody. At that time, DCS alleged the children were “dependent
due to abuse or neglect . . . .” DCS based this allegation, in part, on mother
leaving the children at home alone so she could visit father in California.
While mother was visiting father, the family was evicted from their home.
The superior court subsequently issued an order placing the children in
DCS’s temporary legal care.

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¶5 A month after the superior court placed the children with
DCS, mother moved to change the children’s placement to father’s aunt and
uncle. The superior court placed the children as mother requested, but it
ordered father and mother not to reside with the children’s paternal great
aunt and uncle.

¶6 DCS subsequently learned father and mother have a history
of domestic violence and father committed domestic violence in the
children’s presence. DCS also learned father and mother had “opioid
addictions and used illegally obtained opioids in the home while the
children were present.”

¶7 Father and mother have been in a methadone treatment
program for their opioid addictions. They, however, have not sought any
other services to treat the underlying causes of their substance abuse issues.
They also have not sought any services to treat the underlying causes of
their domestic violence issues.

¶8 During the dependency, both parents failed to acquire stable
housing despite assistance from DCS and Casey Family Programs. Casey
provides intensive services for parents during the reunification process.

¶9 Because father and mother failed to remedy their substance-
abuse problems and housing instability, DCS moved to terminate their
parental rights as to A.K., and as to J.K. a month later.

¶10 Because of the COVID-19 pandemic and before the trial date,
the Arizona Supreme Court issued an administrative order permitting
juvenile courts to hold proceedings virtually with teleconferencing or
videoconferencing. See Ariz. Sup. Ct. Admin. Order No. 2020-197 (Dec. 3,
2020). Consistent with the Administrative Order, the superior court made
plans to hold the termination hearing virtually. Upon learning of the
superior court’s plans to hold a virtual termination proceeding, mother
filed a motion to require all parties and witnesses to appear in person for
the hearing. Mother made these requests because she feared the virtual
hearing would infringe on her right to a fair trial, arguing the virtual format
would not provide the same procedural safeguards as an in-person hearing.
Father joined the motion. DCS and the children’s guardian ad litem (GAL)
objected. The superior court denied the motion.

¶11 Mother then filed a motion asking the superior court to hold
the hearing in person or to stay the proceeding until it could be heard in
person. Father offered no position, but DCS and the GAL again objected.

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Decision of the Court

The superior court denied the request, moving forward with its plans to
hold a virtual hearing.

¶12 After the virtual hearing, the superior court found DCS
proved by clear and convincing evidence adequate grounds for terminating
both parents’ parental rights under A.R.S. §§ 8-533.B.3 (chronic substance
abuse) and 8-533.B.8(c) (out-of-home placement for a period over fifteen
months). The superior court also found by a preponderance of the evidence
termination was in the children’s best interests. Father and mother timely
appealed. In the order, the superior court made factual errors in its best-
interests determination regarding A.K.’s age and adoptability.

¶13 After father filed his notice of appeal, DCS moved to strike the
superior court’s erroneous best-interests findings. Specifically, DCS moved
to strike the portions of the superior court’s decision saying A.K.—now an
eight-year-old child—“will likely age out before an adoption can be
completed” and other erroneous findings based on her “turn[ing] 18[-years-
old] on June 13, 2021.” The superior court granted DCS’s motion as
submitted.

¶14 Because none of the parties mentioned the superior court’s
factual errors in their briefs on appeal, this court ordered the parties to
submit supplemental briefing to determine: (1) whether the superior court
had jurisdiction to strike portions of its April 19, 2021 order after the parents
filed a notice of appeal; (2) whether the superior court’s best-interests
determination stands if the superior court lacked jurisdiction to strike the
inaccurate findings in its April 19, 2021 order; and (3) whether the superior
court’s remaining findings support a best-interests determination if the
superior court had jurisdiction to strike the record.

¶15 This court has jurisdiction under article VI, section 9, of the
Arizona Constitution, and A.R.S. §§ 8-235.A, 12-120.21.A.1, and 12-
2101.A.1.

ANALYSIS

¶16 To terminate parental rights, the superior court must find by
clear and convincing evidence a statutory ground for termination under
A.R.S. § 8-533, and by a preponderance of the evidence termination of the
parental rights will be in the children’s best interests. See Alma S. v. Dep’t of
Child Safety, 245 Ariz. 146, 149–50, ¶ 8 (2018). This court views the evidence
in the light most favorable to sustaining the superior court’s ruling and will
affirm if reasonable evidence supports the ruling. See Jordan C. v. Ariz. Dep’t
of Econ. Sec., 223 Ariz. 86, 93, ¶ 18 (App. 2009).

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 BRANDON K., DELIA B. v. DCS et al.
Decision of the Court

I. The superior court lacked jurisdiction to modify the April 19, 2021
termination order.

¶17 Generally, in juvenile cases, a superior court lacks jurisdiction
to modify its order after a party files a notice of appeal. See Ariz. R.P. Juv.
Ct. 103(F). Rule 103(F) provides exceptions for the general rule. None of the
Rule 103(F) exceptions apply here. See Francine C. v. Dep’t of Child Safety, 249
Ariz. 289, 298, ¶ 25 n.3 (App. 2020) (citing Logan B. v. Dep’t of Child Safety,
244 Ariz. 532, 537, ¶ 11 n.5 (App. 2018)). Because this court did not revest
jurisdiction in the superior court under Rule 103(F)(1), either on its own
motion or otherwise, the superior court could act only if a listed exceptions
apply.

¶18 DCS argues the superior court acted within its Rule 103(F)(4)
authority, which allows the superior court to make rulings on issues
“remaining before it or newly presented to it” if “the juvenile court’s ruling
on the issue would not legally or practically prevent the appellate court
from granting the relief requested on appeal.” But father filed his notice of
appeal on April 20, 2021. DCS did not file its motion to amend the order
until April 22, 2021—two days after the superior court was divested of
jurisdiction. Accordingly, at the time DCS filed its motion to amend, the
issue of whether the superior court made factual errors regarding A.K.’s
age and adoptability was before this court, not the superior court. See Ariz.
R.P. Juv. Ct. 103(F). And DCS’s motion to amend did not rely on a newly
presented issue. Instead, DCS’s motion sought to address the best-interests
issue and the accuracy of the superior court’s ruling. This very issue,
however, came before this court in the petition itself—and, therefore, the
notice of appeal divested the superior court of jurisdiction upon filing. As
such, regardless of whether “the juvenile court’s ruling on the issue would
not legally or practically prevent the appellate court from granting the relief
requested on appeal,” the superior court could not rule on the issue or strike
any portion of its earlier ruling. DCS, therefore, misplaces its reliance on
Rule 103(F)(4).

¶19 In short, the superior court lacked jurisdiction on May 6, 2021,
when it entered DCS’s proposed order amending the termination ruling
dated April 19, 2021. We, therefore, vacate the May 6, 2021 order.

II. The superior court did not violate father’s and mother’s due
process rights by holding their termination hearing using a
combination of video and telephonic means.

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Decision of the Court

¶20 This court reviews denials of motions to continue for abuse of
discretion. See Yavapai Cnty. Juv. Action No. J-9365, 157 Ariz. 497, 499 (App.
1988). But this court reviews due process challenges de novo. See Solorzano v.
Jensen, 250 Ariz. 348, 350, ¶ 9 (App. 2020). This court reviews procedural
due process challenges under the test established in Mathews v. Eldridge, 424
U.S. 319, 333–35 (1976). Dep’t of Child Safety v. Beene, 235 Ariz. 300, 305, ¶ 11
(App. 2014). Under the Mathews test, this court balances four factors: (1) the
nature of the proceedings; (2) the private interests at stake; (3) the interests
of the state; and (4) the risk that the procedures used will lead to erroneous
decisions. Id. This court will reverse only if father and mother establish the
superior court prejudiced a substantial right. See Roberto F. v. Ariz. Dep’t of
Econ. Sec., 232 Ariz. 45, 50, ¶ 18 (App. 2013) (quoting Creach v. Angulo, 189
Ariz. 212, 214 (1997)). They cannot rely on speculation but instead must
prove sufficient prejudice to establish a reasonable fact finder could have
reached a different result. See Brenda D. v. Dep’t of Child Safety, 243 Ariz. 437,
448, ¶ 38 (2018).

¶21 Father and mother argue the superior court violated their due
process rights by denying their motion for witnesses and parties to appear
in person and mother’s motion either to continue the hearing or for
emergency stay, and instead conducting their termination hearing virtually
rather than in person. We disagree.

¶22 Using the Mathews test, the superior court did not err. To
begin, termination hearings are of critical importance. See Beene, 235 Ariz.
at 306, ¶ 13. We are mindful of the parents’ significant interest in raising
their children and the children’s significant interest in permanency. See id.
The State has a strong interest in seeing the parents receive a fair trial and
in achieving prompt permanency for the children. See id.

¶23 With those interests in mind and consistent with due process,
even before the COVID-19 pandemic, Arizona’s Rules of Procedure for the
Juvenile Court allow for “telephonic testimony or argument or video
conferencing in any dependency, guardianship or termination of parental
rights hearings.” See Ariz. R.P. Juv. Ct. 42 (emphasis added). Considering the
dangers posed by the COVID-19 pandemic, virtual hearings have allowed
Arizona’s courts to serve the public while at the same time protecting the
rights of those involved in the termination hearing process. See Candice B. v.
Dep’t of Child Safety, 1 CA-JV 20-0207, 2021 WL 345396, at *4, ¶ 16 (Ariz.
App. Feb. 2, 2021) (mem. decision) (conducting a termination hearing using
a combination of video and telephonic means does not violate a parent’s
due process rights); see also State v. Story, 1 CA-CR 20-0523, 2021 WL
3160854, at *2, ¶ 11 (Ariz. App. July 27, 2021) (mem. decision) (allowing

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jurors to appear via videoconferencing for jury selection does not violate a
criminal defendant’s due process rights).

¶24 This court’s ruling in Candice B. is instructive and persuasive.
See 1 CA-JV 20-0207, at *3–4, ¶¶ 13–16. In Candice B., the superior court
planned to hold a parent’s termination hearing telephonically to avoid
health risks associated with COVID-19. Id. at *3, ¶ 13. Upon learning of the
superior court’s plans, the parent moved to continue the trial until the
hearing could be held in person. Id. The superior court denied the parent’s
motion. Id. This court affirmed because the parent showed “no indication
that [the parent] was prevented from fully participating in the trial or that
the court could not adequately judge the credibility of the witnesses.” Id. at
*4, ¶ 16.

¶25 Candice B. is on point. See id. at *3–4, ¶¶ 13–16. Father’s and
mother’s case here is analogous to the parent’s case in Candice B. See id. Both
cases involved due process challenges to termination hearings merely
because the superior court scheduled the hearings to be held virtually as a
measure to protect litigants from the dangers posed by COVID-19. See id.
Father and mother have not identified any reason for us to resolve this case
differently. And father and mother had other procedural safeguards at their
disposal during the termination hearing. Arizona’s Rules of Evidence
provide several means of challenging a witness’ credibility, such as
challenging a witness’ character for truthfulness (Ariz. R. Evid. 608),
impeaching by prior past convictions (Ariz. R. Evid. 609), and impeaching
by prior inconsistent statements (Ariz. R. Evid. 613).

¶26 In short, father and mother had available and adequate
procedural safeguards. See Candice B., 1 CA-JV 20-0207, at *3–4, ¶¶ 13–16.
The superior court did not violate father’s and mother’s due process rights
by holding a virtual termination hearing. See id. Accordingly, the superior
court did not abuse its discretion in denying mother’s motion to continue.
See J-9365, 157 Ariz. at 499. The superior court, therefore, also did not abuse
its discretion in denying father’s and mother’s motion to appear in person.

III. Reasonable evidence supported the superior court’s finding
termination served the children’s best interests.

¶27 The parents do not challenge the superior court’s findings on
the grounds for termination, instead they challenge only its best-interests
determination. Once the superior court determines DCS proved a statutory
ground for termination, “the focus shifts to the interests of the child as
distinct from those of the parent.” See Kent K. v. Bobby M., 210 Ariz. 279, 285,

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¶31 (2005). “[T]ermination is in the child’s best interests if either: (1) the
child will benefit from the [termination]; or (2) the child will be harmed if
[termination] is denied.” Alma S., 245 Ariz. at 150, ¶ 13. This court will
affirm the superior court’s best-interests determination if it is supported by
reasonable evidence. Id. at 151, ¶ 18.

A. The superior court did not make an erroneous best-interests
determination merely because it held a virtual termination
hearing.

¶28 Father and mother argue reasonable evidence did not support
the superior court’s termination of their parental rights because the
superior court did not base its witness credibility determinations on in-
person testimony. Because the virtual termination hearing did not violate
father’s and mother’s procedural due process rights and they had other
procedural safeguards to determine witness credibility, we disagree. See
supra ¶¶ 20–25.

¶29 The superior court found J.K. adoptable because J.K.’s family
placement was willing to adopt. See Dominique M. v. Dep’t of Child Safety,
240 Ariz. 96, 98, ¶ 11 (App. 2016) (explaining “it is well established that
‘adoptable’ status is a benefit that may, in consideration with other factors,
support the ‘best interests’ finding”). The superior court also determined
“[t]he children would benefit from termination because they would have
stable homes free from substance abuse and domestic violence.” The
superior court went on to find continuing placement with their paternal
great aunt and uncle would serve the children’s best interests because it
would “allow the children to maintain relationships with [their] extended
family . . . .”

B. Even with the superior court’s erroneous factual findings
regarding A.K.’s age and adoptability, the superior court’s
best-interests determination is based on reasonable
evidence.

¶30 Father and mother argue the superior court’s best-interests
determination must be reversed because it made erroneous findings
regarding A.K.’s age and adoptability. We disagree.

¶31 We agree the superior court made factual errors when it
found A.K.—now an eight-year-old child—“will turn age 18 on June 13,
2021” and, therefore, “will likely age out before an adoption can be
completed.” Though the superior court tried to cure this defect by later
striking the erroneous findings, it lacked jurisdiction to do so because father

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Decision of the Court

already filed a notice of appeal. See supra ¶¶ 17–19. The superior court,
however, did not commit reversible error because its best-interests
determination sufficiently rested on other findings. Supra ¶ 29.

¶32 A child’s adoptability is just one factor in the best-interests
analysis. See Audra T. v. Ariz. Dep’t of Econ. Sec., 194 Ariz. 376, 377, ¶ 5 (App.
1998) (explaining “[o]ne factor the court may properly consider in favor of
[termination] is the immediate availability of an adoptive placement”). This
court has affirmed a superior court’s decision to terminate a parent’s
parental rights despite erroneously finding a child is adoptable when other
factors weigh in favor of termination. William C. v. Vanessa L., 2 CA-JV 2017-
0212, 2018 WL 1831919, *2–4, ¶¶ 10–15 (Ariz. App. Apr. 17, 2018). Here, the
superior court’s finding A.K. was not adoptable because of the child’s age
would militate against termination, so the error is without prejudice
because A.K. is in fact much younger and adoptable. Cf. id. (reasoning an
erroneous finding of adoptability did not warrant reversal). This case
involves the inverse of the superior court’s error in William C., rendering
any error more likely to be harmless. See id. Further, this court has affirmed
a superior court’s termination order when its best-interests determination
contained other erroneous factual findings. Adriana R. v. Dep’t of Child
Safety, 1 CA-JV 17-0243, 2017 WL 6521055, at *4, ¶ 13 (Ariz. App. Dec. 21,
2017).

¶33 The issue is whether accurate factual findings in the record
sufficiently support the best-interests determination. Here, the superior
court made other valid findings supporting its best-interests determination.
See supra ¶ 29 (finding the children “would benefit from termination
because they would have stable homes free from substance abuse and
domestic violence” and placement with their paternal great aunt and uncle
would “allow the children to maintain relationships with [their] extended
family . . .”). These additional findings independently support the superior
court’s decision to terminate mother’s and father’s parental rights. See, e.g.,
Aliese H. v. Dep’t of Child Safety, 245 Ariz. 569, 572, ¶ 10 (App. 2018) (holding
a best-interests determination “independently” supported by either the
benefit the children would receive if they were “placed with a familial,
potentially adoptive placement” or the detriment they would experience
from “remain[ing] in care for an indefinite period”); Mary Lou C. v. Ariz.
Dep’t of Econ. Sec., 207 Ariz. 43, 50, ¶ 19 (App. 2004) (finding of a benefit or
a harm is sufficient to support best-interests determination).

¶34 The superior court, therefore, based its best-interests
determination upon reasonable evidence, notwithstanding the errors.

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CONCLUSION

¶35 Based on the above, we vacate the superior court’s May 6,
2021 order and affirm the April 19, 2021 decision.

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

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