Brandon K. v. Dep't of Child Safety

Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court

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

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

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

MEMORANDUM DECISION

GASS, 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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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 bestinterests 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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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...