Jorden B. v. Dcs, L.B.

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JORDEN B., Appellant,

v.

DEPARTMENT OF CHILD SAFETY, L.B., Appellees.

No. 1 CA-JV 21-0188
FILED 1-18-2022

Appeal from the Superior Court in Maricopa County
No. JD39266
The Honorable Christopher Whitten, Judge

AFFIRMED

COUNSEL

Maricopa County Public Advocate, Mesa
By Suzanne W. Sanchez
Counsel for Appellant

Arizona Attorney General’s Office, Phoenix
By Emily M. Stokes
Counsel for Appellee Department of Child Safety
 JORDEN B. v. DCS, L.B.
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Randall M. Howe delivered the decision of the court, in
which Judge Brian Y. Furuya and Judge Michael J. Brown joined.

H O W E, Judge:

¶1 Jorden B. (“Mother”) appeals the juvenile court’s order
terminating her parental rights to L.B. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 We view the facts in the light most favorable to sustaining the
juvenile court’s order. Demetrius L. v. Joshlynn F., 239 Ariz. 1, 2 ¶ 2 (2016).
Mother is the biological mother of L.B. and two other minor children.1
Mother was not married to the children’s fathers. L.B. was born in March
2020, and at the time of L.B.’s birth, Mother tested positive for
methamphetamine, amphetamine, cannabinoids, and Fentanyl. L.B. tested
positive for methamphetamine, amphetamine, and cannabinoids, and
presumptive positive for Fentanyl. L.B. underwent withdrawal treatment.
Mother told hospital staff that she used substances daily, even throughout
the pregnancy, and was homeless. Hospital staff observed her suspicious
behaviors, which indicated that she was likely under the influence of drugs.

¶3 Hospital staff confronted Mother about her recent substance
abuse, but she left the hospital without being discharged and without L.B.
The Department soon after took custody of the other children and placed
them with a relative. After L.B. was discharged from the hospital, she lived
with her paternal grandparents (“Grandparents”), who were willing to
adopt her. Because L.B. had been in the hospital and has a different father
from her siblings, the Department did not place her with her siblings. The
Department placed L.B.’s siblings with their paternal aunt and uncle, a
non-adoptive placement because they would likely be reunified with their

1 L.B.’s father—who was incarcerated at the time of the Department’s
involvement—and the two other children—who do not share the same
father with L.B.—are not subject to this appeal. Her father’s rights were also
terminated.

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father. Despite the siblings’ separation, Grandparents intended to
coordinate frequent visitation and contact with her siblings.

¶4 Meanwhile, the Department provided Mother with the
following services: substance-abuse treatment with TERROS,
transportation, substance-abuse testing with Physicians Services,
Incorporated (“PSI”), supervised visitation, and parent aide. Mother was
eventually discharged from TERROS for failing to maintain contact with it.
She also never provided a drug test at PSI, initially attended visits but
stopped, and failed to appear for three intakes at the parent-aide service.

¶5 The Department petitioned for dependency of L.B., and the
court found that she was a temporary ward and set hearings on the petition.
Before the dependency hearing, the Department disclosed a list of exhibits
in its initial disclosure statement. Mother objected to the introduction of the
exhibits in part because the Department’s list was “incredibly vague and
ma[de] it impossible for Mother to ascertain what evidence [the
Department was] actually planning to admit at trial.” The court conducted
a dependency hearing, admitted the exhibits, and found by a
preponderance of the evidence that L.B. was dependent as to Mother based
on neglect due to Mother’s substance abuse and her unwillingness or
inability to properly and effectively provide for L.B.’s basic needs. The case
plan, however, remained family reunification.

¶6 A month later, the Foster Care Review Board found that no
progress was being made toward establishing permanency but that L.B.
was healthy and eating well in her Grandparents’ home. Mother continued
not to engage in her case plan, participate in services, or attend visits. The
juvenile court held a permanency planning hearing for L.B. and Mother did
not appear. The court found that Mother’s failure to appear was not
supported by any good cause. The court further found that L.B. continued
to be dependent. The court held subsequent report and review hearings,
which Mother also did not attend, again without good cause.

¶7 A short time later, the Department moved to terminate
Mother’s parental rights to L.B., arguing that her failure to maintain a
normal parent-child relationship for six months constituted prima facie
evidence of abandonment and that she had failed to participate in visitation
and the Department’s recommended services. The Department also argued
that she was unable to parent due to her history of substance abuse, which
could continue for an “indeterminate period” under A.R.S. § 8–533(B)(3).
The juvenile court held a termination hearing, and Mother failed to appear,
again without good cause. The court ruled that her failure to appear waived

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her right to contest the termination of her parental rights based on the
allegations in the motion for termination. Nevertheless, the court set the
evidentiary hearing for the following month.

¶8 Mother appeared at the evidentiary hearing and expressed
her desire to contest the termination action. The court warned her that if she
failed to appear without good cause at subsequent hearings, the court could
order termination without her ability to contest it. Counsel gave their
statements and L.B.’s guardian ad litem told the court that Mother had not
visited L.B. The court reset the hearing as a contested termination hearing
later that day, so that Mother could speak with her counsel, with whom she
failed to maintain contact. Despite her agreement to appear and the court’s
warnings, Mother again failed to appear at the reset hearing later that same
day. The court determined that Mother’s failure to appear was without
good cause and proceeded with the hearing in absentia.

¶9 During the hearing, the Department asked the court to admit
seven marked exhibits, several of which the court had admitted into
evidence during previous dependency hearings. These exhibits consisted of
Department progress reports, disclosed through the Juvenile Access
Communication Exchange (“JAX”) before each hearing, and PSI records.
One of the exhibits did not even concern Mother, only L.B.’s father.
Mother’s counsel objected to their admission because the Department did
not provide Mother or her counsel with a list or copies of the exhibits before
the hearing pursuant to Arizona Rule of Procedure for the Juvenile Court
(“Rule”) 44, allegedly making it “very difficult for counsel to do her job.”
The court noted that this issue needed to be addressed at another time and
that the Department should comply with the rules. Notwithstanding its
statement, the court elected to proceed, admitted the exhibits, and heard
testimony. Grace Blanco, a Department safety specialist, testified that
although Mother initially visited with L.B., she eventually stopped
attending and failed to appear three times for the parent-aide intake,
resulting in closure of the service. She also testified about Mother’s failure
to participate in TERROS or drug test through PSI. Ms. Blanco also testified
that L.B. was less than three years old and that for more than six months,
Mother had failed to maintain a normal parental relationship with L.B. She
added that L.B. was “thriving” with Grandparents, who were meeting her
needs in providing her with clothing, food, and shelter. Mother’s counsel
did not cross-examine Ms. Blanco or offer her own evidence.

¶10 The court considered the exhibits, testimony, arguments of
counsel, and written submission of the parties in thereafter granting the
Department’s motion for termination. The court found that clear and

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convincing evidence existed to terminate Mother’s parental rights under
A.R.S. § 8–533. More specifically, it found that Mother had abandoned L.B.
and failed to maintain a “normal parental relationship” with her by not
providing her with reasonable support, regular contact, or normal
supervision for at least six months. The court further found that her history
of substance abuse provided “reasonable grounds to believe that the
condition [would] continue for a prolonged indeterminate period,” that
L.B. was in out-of-home care for six months or longer, and that Mother took
no steps to remedy the circumstances. Further, the court found that the
Department made diligent efforts to provide Mother with necessary
services and treatment, in which she did not actively participate, and that
termination would be in L.B.’s best interests because “it would further the
plan of adoption” and give her permanency and stability. In addition, the
court found that Grandparents were the “least restrictive placement,” she
was adoptable, and continuing the parent-child relationship would be
detrimental to her. Mother timely appeals.

DISCUSSION

¶11 Mother argues that this court should vacate and remand the
termination order because (1) the Department failed to follow Rule 44 in not
disclosing a list and copies of exhibits before the evidentiary hearing,
thereby violating her due process right to meaningful notice and
warranting preclusion of the evidence; and (2) the court abused its
discretion in its best interests determination because it discounted the
separation of siblings. We review constitutional issues and the
interpretation of statutes and court rules de novo. Brenda D. v. Dep’t of Child
Safety, 243 Ariz. 437, 442 ¶ 15 (2018). A trial court has broad discretion in
evidentiary rulings, and thus we will review the court’s decision for an
abuse of discretion and resulting prejudice. Lashonda M. v. Ariz. Dep’t of
Econ. Sec., 210 Ariz. 77, 82–83 ¶ 19 (App. 2005). 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), we will affirm a termination
decision unless no reasonable evidence supports it, Xavier R. v. Joseph R., 230 Ariz. 96, 100 ¶ 11 (App. 2012).

I. Disclosure of exhibits

¶12 The juvenile court did not abuse its discretion in admitting
some of the exhibits, and any error it did commit was harmless. If a parent
fails to timely appear for the termination hearing without good cause
shown, the court may find that the parent has waived their legal rights and

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admitted the allegations in the motion for termination. A.R.S. § 8–863(C);
Rule 66(D)(2). The court may then terminate the parent-child relationship
“based on the record and evidence presented,” A.R.S. § 8–863(C), which
includes evidence admitted during previous dependency hearings, Adrian
E. v. Ariz. Dep’t of Econ. Sec., 215 Ariz. 96, 102 ¶ 23 (App. 2007). Although
Rule 44 requires that parties disclose a list and copies of the exhibits that
they intend to use at the termination hearing, Rule 44(D)(2), (B)(2)(e), the
presentation of evidence . . . “shall be as informal as the requirements of
due process and fairness permit[,]” Rule 66(D). If a party fails to comply
with Rule 44, “the court may impose sanctions” upon that party, which
includes precluding evidence, granting a continuance, and entering an
order against a party. Rule 44(G) (emphasis added).

¶13 Here, Mother does not contest the grounds for termination or
that the Department failed to meet its burden of proof. Rather, she argues
that the Department violated her due process rights by not strictly
complying with Rule 44’s prescriptions. Due process requires reasonable
notice and an opportunity to be heard. See In re Maricopa Cty. Juv. Action No.
JS-501904, 180 Ariz. 348, 355 (App. 1994). But Mother failed to appear at the
evidentiary hearing. Thus, the court could consider (1) that she admitted
the allegations in the motion as true, and (2) the record and evidence
presented in making its termination determination. In fact, the Department
had already disclosed the progress reports in connection with previous
hearings, and their admission during those hearings secured their inclusion
as part of the record—a point Mother does not contest. See Rule 45(C) (the
Department must disclose progress reports to a parent no later than 10 days
before review hearings). Thus, the court was permitted to consider these
exhibits during the termination hearing. Even so, evidence that the court
considered here not only included the seven exhibits but also testimony,
arguments of counsel, and written submissions of the parties.

¶14 Mother argues that the Rule 44 violation prejudiced her in not
giving her notice of the evidence and in having the testifying witness be the
author of only one exhibit. A report is not necessarily inadmissible as
evidence if its author does not testify. Alice M. v. Dep’t of Child Safety, 237
Ariz. 70, 73 ¶ 10 (App. 2015). To reverse a ruling, the court’s error must have
prejudiced a party, and prejudice must appear from the record. Walsh v.
Walsh, 230 Ariz. 486, 494 ¶ 24 (App. 2012). Here, the exhibits’ admission did
not prejudice her. Although the termination implicates Mother’s substantial
rights, any error the court may have made is harmless because the record
demonstrates that she and her counsel had previously received most of
these exhibits. Thus, because the purpose of disclosure is to avoid undue

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delay or surprise, Wells v. Fell, 231 Ariz. 525, 528 ¶ 13 (2013), the use of the
exhibits should not have surprised her or her counsel.

¶15 Even if the court erred in admitting the remaining exhibits,
such error was also harmless because the court would have still found
termination of Mother’s parental rights proper by clear and convincing
evidence regardless of these previously undisclosed exhibits. See Rule
66(C); Alice M., 237 Ariz. at 73 ¶ 12. First, the court could consider the
allegations in the motion for termination as true because Mother failed to
appear at the hearing. Second, Ms. Blanco’s testimony helped support the
statutory grounds for abandonment: L.B. was less than three years old and
in foster care for more than six months, and Mother did not visit her or
participate in services. Third, L.B.’s guardian ad litem spoke to Mother’s
lack of participation in visits. Taking the motion, testimony, and other
statements together with the exhibits already in the record, sufficient
evidence exists such that any reasonable judge would have found
termination of Mother’s rights warranted.

¶16 Mother also argues that the court should have sanctioned the
Department by precluding the evidence. However, evidence preclusion is
not favored. See Jimenez v. Chavez, 234 Ariz. 448, 452 ¶ 18 (App. 2014)
(preclusion is a proper sanction only if “no less stringent sanctions will
suffice”). Further, the Rules should “be interpreted in a manner designed
to protect the best interests of the child, giving paramount consideration to
the health and safety of the child.” Rule 36. Precluding evidence that would
further L.B.’s best interests and support termination when proper would be
contrary to the intent of the Rules. The court properly gave paramount
consideration to L.B.’s health and safety over disclosure requirements that,
even if violated, had no effect on the outcome of the ruling. Therefore, the
court did not abuse its discretion because reasonable evidence supports the
court’s decision and any error committed was harmless.

II. Best interests determination

¶17 The court did not abuse its discretion in its best interests
determination because reasonable evidence supports the court’s decision to
allow the siblings to live in separate foster homes. Mother challenges only
the juvenile court’s finding of best interests and not the statutory grounds
for termination. To terminate parental rights, the juvenile court must find
by clear and convincing evidence the existence of at least one statutory
ground under A.R.S. § 8−533 and by a preponderance of the evidence that
termination would be in the child’s best interests. A.R.S. § 8–533(B); Rule
66(C); Jennifer S. v. Dep’t of Child Safety, 240 Ariz. 282, 286 ¶ 15 (App. 2016).

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Termination of parental rights is in a child’s best interests if the child will
benefit from the termination or be harmed if the relationship continues.
Alma S. v. Dep’t of Child Safety, 245 Ariz. 146, 150 ¶ 13 (2018).

¶18 Whether a child will benefit from termination requires
considering whether the current placement is meeting the child’s needs, the
child is adoptable, and an adoption plan is in place. Demetrius L., 239 Ariz.
at 1, 3–4 ¶ 12. Other primary considerations include the child’s stability and
security, id. at 4 ¶ 15, the parent’s prospects for rehabilitation, Alma S., 245
Ariz. at 151 ¶ 15, as well as the child’s health and safety, Rule 36. The
interests of the parent and child diverge once the juvenile court has found
one of the statutory grounds for termination by clear and convincing
evidence. Kent K. v. Bobby M., 210 Ariz. 279, 286 ¶ 35 (2005). Thus, the best
interests analysis “focuses primarily upon the interests of the child, as
distinct from those of the parent,” id. at 287 ¶ 37, and the juvenile court
considers the totality of the circumstances, Timothy B. v. Dep’t of Child Safety,
250 Ariz. 139, 145 ¶ 20 (App. 2020).

¶19 Reasonable evidence supports the juvenile court’s finding of
best interests. L.B. is adoptable and Grandparents are willing to adopt her,
they are meeting her needs, and she is “thriving” in their care. Termination
will benefit L.B. because if Mother’s parental rights are not terminated, L.B.
will remain in foster care, delaying permanency. Mother’s failure to attend
visits or to participate in and complete recommended services has
demonstrated that her prospects for rehabilitation are quite low.
Grandparents will thus offer her stability and security. The court therefore
did not err in determining that termination was in L.B.’s best interests.

¶20 Mother nonetheless argues that the court discounted the fact
that L.B. and her siblings are in different foster homes because the court did
not address it in its findings of fact. In doing so, she points to
the Sibling Information Exchange Program under A.R.S. § 8–543 and
believes that her children may not have contact with each other. Because
the juvenile court’s primary consideration is the best interests of the child,
it has substantial discretion when placing dependent children. Antonio P. v.
Ariz. Dep’t of Econ. Sec., 218 Ariz. 402, 404 ¶ 8 (App. 2008). While placing
siblings together is an important consideration, other factors such as
stability, security, health, and safety are paramount. See Rule 36; see also
Demetrius L., 239 Ariz. at 3–4 ¶ 15. The juvenile court found that L.B. would
be harmed if Mother’s parental rights were not terminated. Further, the
record supports that Grandparents intend to coordinate frequent visitation
and contact with her siblings. The juvenile court also found that L.B. is in
the least restrictive placement. See A.R.S. § 8–513(B).

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¶21 Because reasonable evidence supports the factual basis
underlying the juvenile court’s finding of termination and best interests, the
court did not abuse its discretion.

CONCLUSION

¶22 For the foregoing reasons, we affirm.

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

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