Jorden B. v. Dep't of Child Safety

JORDEN B., Appellant, v. DEPARTMENT OF CHILD SAFETY, L.B., Appellees.

No. 1 CA-TV 21-0188

Court of Appeals of Arizona, First Division

January 18, 2022

Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court

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

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

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

MEMORANDUM DECISION

HOWE, 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 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 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 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 f 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 Leon. Sec., ...