Logan B. v. Dep't of Child Safety

422 P.3d 1072

LOGAN B., Appellant,

v.DEPARTMENT OF CHILD SAFETY, J.B., I.B., Appellees.

No. 1 CA-JV 17-0327

Court of Appeals of Arizona, Division 1.

FILED May 24, 2018

Maricopa County Public Advocate, Mesa, By David C. Lieb, Counsel for Appellant

Arizona Attorney General’s Office, Tucson, By Laura J. Huff, Counsel for Appellee, Department of Child Safety

Judge Jennifer B. Campbell delivered the opinion of the Court, in which Judge Patricia A. Orozco joined.¹ Presiding Judge Michael J. Brown dissented.

CAMPBELL, Judge:

¶ 1 Logan B. ("Father") challenges the juvenile court’s failure to make written findings in its order terminating his parental rights to his children J.B. and I.B. We hold that even if the court makes oral findings of fact on the record, a written termination order that recites only conclusions of law regarding the statutory grounds for termination and best interests is insufficient as a matter of law. Such an order fails to comply with the requirement in both Arizona Revised Statutes ("A.R.S.") section 8–538(A) and Arizona Rule of Procedure for the Juvenile Court 66(F)(2)(A) that a termination order must contain written findings.²

FACTS AND PROCEDURAL BACKGROUND

¶ 2 In July 2016 the Department of Child Safety ("DCS") filed a dependency petition alleging J.B. and I.B. (collectively, the "children") were dependent. DCS alleged substance abuse based on Father’s use of heroin, marijuana, and morphine. DCS also alleged neglect because of Father’s inability to provide the necessities of life for the children and because he cared for them while under the influence of drugs.³ The court later adjudicated the children dependent.

¶ 3 In April 2017, DCS moved to terminate Father’s parental rights on the statutory grounds of abandonment, A.R.S. § 8–533(B)(1), substance abuse, A.R.S. § 8–533(B)(3), and six months in an out-of-home placement, A.R.S. § 8–533(B)(8)(b). DCS also alleged termination was in the children’s best interests.

¶ 4 Father later failed to appear for a pretrial conference. The juvenile court found Father’s failure to appear was without good cause and granted DCS’s motion to proceed with the termination hearing in absentia.

¶ 5 After receiving exhibits and hearing testimony presented by a DCS case manager, the juvenile court made findings of facts and conclusions of law by oral pronouncement on the record at the conclusion of the hearing. The juvenile court found DCS failed to prove abandonment but did prove the grounds of chronic substance abuse and out-of-home placement by clear and convincing evidence, and stated relevant factual findings. The court also found by a preponderance of evidence that termination of Father’s parental rights was in the children’s best interests, again providing its factual findings orally.

¶ 6 The juvenile court later entered a final written order terminating Father’s parental rights to the children. The final order read as follows:

THE COURT FINDS by clear and convincing evidence that the State has proven the allegation of a history of chronic abuse of dangerous drugs and controlled substances with respect to [Father].

THE COURT FINDS beyond a preponderance of the evidence that it would be in the children’s best interest[s] to sever the father’s parental rights.

The final order was devoid of any factual findings to support the legal conclusions about the statutory ground for termination or factual findings to justify that termination was in the children’s best interests.⁴

¶ 7 Father timely appealed. We have jurisdiction pursuant to A.R.S. § 8–235(A) and Arizona Rule of Procedure for the Juvenile Court 103(A).

DISCUSSION

¶ 8 Father argues the juvenile court committed an error of law when entering a final order lacking any written factual findings in support of its conclusions of law. We agree.

I. Purported Waiver

¶ 9 Father did not raise this argument in the juvenile court. Generally, failure to raise an argument in the juvenile court waives the issue on appeal. See Christy C. v. Ariz. Dep’t of Econ. Sec. , 214 Ariz. 445, 452, ¶ 21, 153 P.3d 1074, 1081 (App. 2007). But the decision to find waiver is discretionary. See Marianne N. v. Dep’t of Child Safety , 243 Ariz. 53, 56, ¶ 13, 401 P.3d 1002, 1005 (2017) (citing City of Tucson v. Clear Channel Outdoor, Inc. , 209 Ariz. 544, 552 n.9, ¶ 33, 105 P.3d 1163, 1171 (2005) ) (decision to deem issue waived is "jurisprudential, not jurisdictional").

¶ 10 DCS urges waiver here, citing Christy C. , 214 Ariz. at 452, ¶¶ 20–21, 153 P.3d at 1081. In Christy C. , this court concluded the parent had waived her argument that the court’s final order did not comply with A.R.S. § 8–538(A) by raising it for the first time on appeal. 214 Ariz. at 452, ¶ 21, 153 P.3d at 1081. Christy C . is distinguishable. There, the final order contained some factual findings, albeit the parent argued those findings were insufficiently detailed. Id . Christy C. accords with this court’s decision to apply the waiver doctrine when a party first raises the issue of insufficient findings on appeal and the order includes at least some statutorily required factual findings. See, e.g. , Antonio M. v. Ariz. Dep’t of Econ. Sec. , 222 Ariz. 369, 371, ¶¶ 5–6, 214 P.3d 1010, 1012 (App. 2009) (father waived argument raised for the first time on appeal that termination order should have made more specific factual findings); see also Banales v. Smith , 200 Ariz. 419, 420, ¶¶ 1, 6–8, 26 P.3d 1190, 1191 (App. 2001) (father could not newly challenge sufficiency of trial court’s detailed order that contained numerous findings of fact and conclusions of law but omitted a required best interests finding under A.R.S. § 25–403 ).

¶ 11 In this case, Father raises an issue of law. That is, Father’s argument is that the juvenile court’s final written order is insufficient because it contains only conclusions of law without any factual findings. In similar circumstances, we have exercised our discretion, choosing not to find waiver. See Nold v. Nold , 232 Ariz. 270, 272–73, ¶¶ 7–10, 304 P.3d 1093, 1095–96 (App. 2013) (declining to find waiver when family court’s custody order made no written factual findings regarding the statutorily mandated best interests findings; best interests of child trumps waiver doctrine); Reid v. Reid , 222 Ariz. 204, 207–08, ¶¶ 11, 14–20, 213 P.3d 353, 356–57 (App. 2009) (declining to find waiver; omission of statutorily required best interests findings in custody order demonstrated omission was not "mere oversight"; order merely stated court’s custody determination was in the children’s best interests and court had considered the relevant factors under A.R.S. § 25–403(A) ). The waiver doctrine is not "an unalterable rule." Reid , 222 Ariz. at 208, ¶ 16, 213 P.3d at 357. We are not dealing with a question of whether the court merely overlooked some factual findings; we are addressing an order devoid of any factual findings. See id . at 208, ¶¶ 15–16, 213 P.3d at 357. Moreover, Father raises an issue of great public importance that is likely to reoccur, thus providing an additional reason not to find waiver. See In re Leon G. , 204 Ariz. 15, 17 n.1, ¶ 2, 59 P.3d 779, 781 n.1 (2002) (noting exception to general rule of waiver when issue raised is of great public importance and likely to reoccur.) Because this is a reoccurring problem, we choose to exercise our discretion and will not find waiver in this limited circumstance.⁵ We therefore decline to find waiver, and address the issue on the merits.

II. Written Findings

¶ 12 We review de novo issues of statutory interpretation and the interpretation of rules. Premier Physicians Grp., PLLC v. Navarro , 240 Ariz. 193, 194–95, ¶ 6, 377 P.3d 988, 989–90 (2016) (interpretation of statutes); Valerie M. v. Ariz. Dep’t of Econ. Sec ., 219 Ariz. 155, 161, ¶ 19, 195 P.3d 192, 198 (App. 2008) (interpretation of rules). "When the text is clear and unambiguous, we apply the plain meaning and our inquiry ends." State v. Burbey , 243 Ariz. 145, 147, ¶ 7, 403 P.3d 145, 147 (2017) (citing Stambaugh v. Killian , 242 Ariz. 508, 509, ¶ 7, 398 P.3d 574, 575 (2017) ).

¶ 13 Before terminating a parent’s parental rights, the juvenile court must find at least one statutory ground by clear and convincing evidence, A.R.S. §§ 8–533, –537(B), and find, by a preponderance of the evidence, that termination is in a child’s best interests, Kent K. v. Bobby M ., 210 Ariz. 279, 288, ¶ 41, 110 P.3d 1013, 1022 (2005). If the juvenile court finds DCS has met this burden, the juvenile court is required to enter written findings terminating the parent-child relationship. A.R.S. § 8–538(A) (an order terminating the parent-child relationship "shall be in writing and shall recite the findings on which the order is based"); Ariz. R.P. Juv. Ct. 66(F) ("All findings and orders shall be in the form of a signed order or set forth in a signed minute entry.").

¶ 14 Importantly, under Rule 66(F)(2)(a) the juvenile court must "[m]ake specific findings of fact in support of the termination of parental rights and grant the motion or petition for termination." In Ruben M. v. Ariz. Dep’t of Econ. Sec. , this court held that to comply with Rule 66(F)(2)(a), the order must specify the juvenile court’s conclusions of law and "at least one factual finding sufficient to support each of those conclusions of law." 230 Ariz. 236, 240–41, ¶¶ 22, 25–26, 282 P.3d 437, 441–42 (App. 2012). The number of factual findings required will depend on the complexity of the issues but must be "sufficiently specific to enable the appellate court to provide effective review." Id . at 241, ¶ 25, 282 P.3d at 442. Although Ruben M. addressed a different issue (whether the juvenile court’s summary written factual findings were sufficient), it is clear the court implicitly held it is an error of law to enter a final termination order that omits any factual findings. Id . at 241, ¶¶ 25–27, 282 P.3d at 442 (concluding court’s summary findings were sufficiently specific as grounds for court’s...