Opinion
2 CA-JV 2023-0044
10-11-2023
In re Termination of Parental Rights as to K.D.A., K.A.A., K.L.A., and K.L.-A.,
Megan Page, Pima County Public Defender By David J. Euchner, Assistant Public Defender, Tucson Counsel for Appellant Kristin K. Mayes, Arizona Attorney General By Autumn L. Spritzer, Assistant Attorney General, Tucson Counsel for Appellee Department of Child Safety Pima County Office of Children's Counsel, Tucson By David Miller Counsel for Minors
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pima County No. JD20130335 The Honorable Janet C. Bostwick, Judge AFFIRMED
Megan Page, Pima County Public Defender
By David J. Euchner, Assistant Public Defender, Tucson
Counsel for Appellant
Kristin K. Mayes, Arizona Attorney General
By Autumn L. Spritzer, Assistant Attorney General, Tucson
Counsel for Appellee Department of Child Safety
Pima County Office of Children's Counsel, Tucson
By David Miller
Counsel for Minors
Judge Kelly authored the decision of the Court, in which Presiding Judge Brearcliffe and Judge Eckerstrom concurred.
MEMORANDUM DECISION
KELLY, JUDGE:
¶1 Brian A. appeals from the juvenile court's March 2023 order terminating his parental rights to his children, Ken (born in December 2011), Kathleen (born in May 2013), Kelly (born in December 2015), and Kaleb (born in December 2016), based on length of time in court-ordered care. See A.R.S. § 8-533(B)(8)(c). He challenges the termination order based on the court's "lack of compliance" with the Indian Child Welfare Act ("ICWA"), 25 U.S.C. § 1912. He also argues the court erred by admitting hearsay. For the following reasons, we affirm.
We use pseudonyms for the children throughout this decision.
The juvenile court also terminated the parental rights of the children's mother. She is not a party to this appeal.
Factual and Procedural Background
¶2 We view the evidence in the light most favorable to affirming the juvenile court's order. See Christina G. v. Ariz. Dep't of Econ. Sec., 227 Ariz. 231, ¶ 13 (App. 2011). In November 2013, December 2015, and March 2017, the Department of Child Safety (DCS) filed petitions alleging the children-who are enrolled members of the Tohono O'Odham Nation- were dependent as to Brian. In two of those proceedings, Brian admitted the neglect allegations, which included alcohol abuse, an unsafe home, and lack of employment or income, and the children were adjudicated dependent as to him. However, each of those proceedings was ultimately dismissed, after services had been provided and Brian had remedied the circumstances leading to the dependencies.
The second proceeding-which was based on Brian's failure to protect the children from their mother's substance use-was dismissed before the children were adjudicated dependent because Brian had obtained joint legal decision-making authority for the children and primary parenting time in a separate paternity action.
¶3 In January 2020, DCS filed a fourth dependency petition after Brian was arrested for child abuse when he and four other adults-all of whom were heavily intoxicated-were driving in a car with then-three-year-old Kaleb sitting on someone's lap unsecured, with no seatbelt. DCS alleged the children were dependent as to Brian because his "ability to parent is impaired by substance abuse" and he "neglects the children by engaging in domestic violence and failing to protect them from the mother's substance abuse." The children were placed with the paternal grandmother, and Brian was provided three supervised visits per week.
¶4 During the investigation that followed, DCS learned Ken and Kathleen had missed "an excessive amount of school," in part, due to lack of transportation and lice. The home was observed to be infested with bed bugs and cockroaches. DCS also learned about an incident from December 2019, when the children's mother went to the family home and stabbed Brian, but they lied to the police, claiming Brian had been attacked by a stranger. Ken and Kathleen were home at the time, Kathleen saw the mother get a knife from the kitchen, and Ken witnessed the stabbing.
¶5 In February 2020, Brian entered a no contest plea to the allegations in the dependency petition, and the juvenile court adjudicated the children dependent as to him. The court set a case plan goal of family reunification and ordered DCS to make active efforts to provide services to accomplish that goal. It also ordered Brian to comply with the services. Brian began participating in parenting classes, substance abuse classes, healthy relationship classes, drug testing, and supervised visitation, but he was reluctant to participate in individual therapy.
¶6 In March 2020, the children were moved from their placement with the paternal grandmother to licensed foster care, after Brian repeatedly violated the safety plan by picking up and dropping off the children at school unsupervised and without a valid driver license. After the children's placement in foster care, Brian relapsed and stopped drug testing because "he knew he would be positive." DCS asked Brian to demonstrate thirty days of sobriety in order to refer him for a psychological evaluation, but he repeatedly missed one test a month. When DCS ultimately referred Brian for a psychological evaluation, he missed the appointment. Brian later objected to the evaluation and requested a "culturally appropriate psychologist." DCS tried to accommodate his request but learned there was "no credentialing" for such a psychologist. Brian then agreed to the original examination.
Although the children were initially placed in separate foster homes, they were all later placed together, where they remained throughout these proceedings. This placement is not ICWA compliant, but no other family members or other ICWA-compliant placements were located. The juvenile court found good cause existed to deviate from the ICWA placement preferences.
¶7 In July 2020, Brian was convicted of child endangerment related to the January 2020 incident with Kaleb and was placed on three years' probation. A condition of his probation was that Brian was not allowed to drive.
¶8 By the fall of 2020, Brian was largely compliant with the case plan, but DCS caseworkers questioned his benefit from the services. Little changed over the next year. After being evicted and living in hotels for a few months, Brian located a new home with the children's paternal grandmother, but he still lacked employment. He was also closed out of therapy in July 2021 for non-engagement.
¶9 In August 2021, the ICWA caseworker referred Brian to Crossing Arrows, a substance abuse treatment program that focuses on Native American men. Around that same time, Dr. Jill Plevell completed a psychological evaluation. She diagnosed Brian with severe alcohol use disorder, unspecified depressive disorder, and unspecified trauma-related disorder. She described his conditions as "treatable," but, based on his "history of repeated relapse," she explained that he had a lower likelihood of establishing a positive parenting relationship.
¶10 Also that month, the juvenile court changed the case plan to a concurrent goal of family reunification and severance and adoption. Thereafter, DCS filed a motion for termination of the parent-child relationship, alleging that the children had been in a court-ordered, out-of-home placement for more than fifteen months. See § 8-533(B)(8)(c). In both September and October 2021, Brian was cited for driving with a suspended license, without registration or insurance for the vehicle he was driving, and excessive loud music.
¶11 The juvenile court scheduled a multi-part severance trial that began in December 2021. However, in February 2022, based on testimony from Kathleen and Kelly's therapist that they were ready to start family therapy with Brian, the parties agreed to put the trial on hold to see what progress could be made.
¶12 In March, April, and May 2022, Brian again received citations for driving on a suspended license, without registration or insurance for the vehicle he was driving. He was also cited for excessive loud music and, for the first incident, for speeding in a school zone. During a home visit in April, DCS observed multiple people in the home that Brian had not previously disclosed lived there. That same month, the DCS caseworker observed that Brian seemed to recognize his problems, but he was "ambivalent about change." DCS thus requested to continue with the severance trial. In July 2022, the family therapist noted a "stronger gap" between Brian and the children "as it relates to communication and attachment," and she was "worried" that the children would "continue to process without the support or help of their Dad."
¶13 The severance trial resumed from August 2022 through January 2023. In August, Brian was found to be not compliant with his probation orders. In November, days after testifying that he had not driven since his last ticket in May, Brian was again cited for speeding. The Tohono O'Odham Nation supported DCS's severance motion.
¶14 The juvenile court issued its order in March 2023, granting the motion for termination of the parent-child relationship. The court found DCS had established the statutory ground of length of time in court-ordered care and that severance was in the children's best interests. Presumably noting significant efforts put forward by DCS and the Tohono O'odham Nation, the court stated that they had "put their hands and heart into this case, trying to make reunification possible and prevent breakup of this Indian family." But, the court explained, Brian "has not shown understanding or recognition of safe decisions for the children, their needs, or controlling impulses that may put them at risk, in order to put the children's interests first." It pointed to Brian's "pattern of alcohol abuse and relapse," lack of "stable housing and employment," and "insistence on driving on his suspended license." This appeal followed.
ICWA Requirements
¶15 Brian first argues that the juvenile court's order terminating his parental rights "must be vacated based on lack of compliance with ICWA." We will affirm a termination order if reasonable evidence supports the juvenile court's factual findings and its legal conclusions are not clearly erroneous. Brionna J. v. Dep't of Child Safety, ___Ariz.___, ¶¶ 30-31, 533 P.3d 202, 209-10 (2023). We defer to the juvenile court, as the factfinder, to weigh the evidence, judge the credibility of witnesses, and resolve disputed facts. Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, ¶ 12 (App. 2002).
¶16 The juvenile court may terminate a parent's rights if it finds by clear and convincing evidence that at least one of the statutory grounds for termination exists and by a preponderance of the evidence that termination of the parent's rights is in the child's best interests. A.R.S. §§ 8-533(B), 8-537(B); Sandra R. v. Dep't of Child Safety, 248 Ariz. 224, ¶ 12 (2020). There are two additional requirements in ICWA cases: DCS must "satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful," 25 U.S.C. § 1912(d), and the court must find, based upon "evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child," 25 U.S.C. § 1912(f). See Valerie M. v. Ariz. Dep't of Econ. Sec., 219 Ariz. 331, ¶ 14 (2009); Ariz. R. P. Juv. Ct. 353(d); see also Yvonne L. v. Ariz. Dep't of Econ. Sec., 227 Ariz. 415, ¶ 26 (App. 2011) ("active efforts" finding must be made with clear and convincing evidence). Brian challenges the juvenile court's finding with respect to both of the ICWA requirements.
Brian does not challenge the statutory ground for termination or the juvenile court's best interest finding. We therefore do not address them. See Crystal E. v. Dep't of Child Safety, 241 Ariz. 576, ¶ 5 (App. 2017) (parent waives argument by failing to raise it on appeal).
I. Active Efforts
¶17 As to the requirement of active efforts, Brian maintains that DCS "fell short" in four ways: (1) no one referred him to Crossing Arrows until August 2021, (2) he reads at a third-grade level and could not process the "programming required" of him, (3) he was not taken to a job fair and instead was "lectured" by the ICWA caseworker, and (4) he was not "helped to apply for governmental aid" and instead was given information about doing so online. He maintains that "[t]hese services were critical to [his] rehabilitation."
In support of his argument that the ICWA caseworker "lectured" him, Brian relies on his counsel's statements during a dependency review hearing. But statements made by attorneys are not evidence, State v. Riley, 248 Ariz. 154, ¶ 144 (2020), and there appears to be no evidence in the record indicating this occurred.
¶18 Under ICWA, active efforts mean "affirmative, active, thorough, and timely efforts intended primarily to maintain or reunite an Indian child with his or her family." 25 C.F.R. § 23.2. They may include, for example, "[i]dentifying appropriate services and helping the parents to overcome barriers, including actively assisting the parents in obtaining such services." Id. However, active efforts "will vary, depending on the circumstances, the asserted grounds for severance and available resources." S.S. v. Stephanie H., 241 Ariz. 419, ¶ 21 (App. 2017); see also 25 C.F.R. § 23.2.
¶19 The juvenile court found that DCS had made "[a]ctive but unsuccessful efforts" to provide services "consistently" in this case. It explained that DCS had "offered appropriate services" and had made "timely efforts to assist with challenges" related to those services. The court noted that DCS had "partnered" with the Tohono O'Odham Nation "for cultural inclusion and support for the family," "seeing Crossing Arrows assist [Brian] as a new approach and opportunity for [him] to benefit from services in this fourth dependency." The court further observed that DCS had "maintained consistent contact with [Brian] even when he did not want communication with DCS."
¶20 Reasonable evidence supports the juvenile court's finding. The services offered by DCS included drug testing, supervised visitation, parent aides, parenting classes, substance abuse classes, relapse prevention, coping skills, healthy relationship classes, individual therapy, family therapy, trauma processing, psychological evaluation, child and family team meetings, adult recovery team meetings, domestic violence for offenders and survivors, transportation services, and employment assistance.
¶21 Although Brian was not referred to Crossing Arrows until August 2021, the referral was made as soon as the ICWA caseworker learned of the program. Contrary to Brian's assertion, this is an example of an "active" effort because the caseworker identified an appropriate service and promptly assisted Brian in obtaining that service. See 25 C.F.R. § 23.2. Moreover, the severance hearing was continued more than six months after the referral to Crossing Arrows, giving Brian additional time to benefit from the service.
¶22 Brian's other three arguments appear to be related-because of his reading disability, Brian could not apply for jobs or government assistance online and DCS failed to provide him with additional help in that regard. Although the ICWA caseworker sent Brian job announcements, which presumably would have required Brian to read, nothing in the record shows that those announcements were above his reading level. In addition, the caseworkers apparently emailed Brian-at least in part-because his communication with them was inconsistent and, when possible, discussed job openings with him verbally. The staff at Crossing Arrows also helped Brian with job applications. Notably, in October 2022, during the severance trial, Brian started working at a carwash, but he was fired two months later for "no call, no show." And, despite the possibility of government assistance, which Brian admittedly testified that he "d[id]n't know how to do," Brian also testified that he was looking for "better employment" and that he would have "a lot more opportunities" after completing probation. At bottom, Brian seems to be asking that we reweigh the evidence, which we will not do. See Ariz. Dep't of Econ. Sec. v. Oscar O., 209 Ariz. 332, ¶ 14 (App. 2004).
¶23 "[N]either ICWA nor Arizona law mandates that [DCS] provide every imaginable service or program designed to prevent the breakup of the Indian family before the court may find that 'active efforts' took place." Yvonne L., 227 Ariz. 415, ¶ 34. Instead, DCS must "provide parents with the necessary 'time and opportunity to participate in programs designed to help [them] become' effective parents." Id. (quoting In re Maricopa Cnty. Juv. Action No. JS-501904 , 180 Ariz. 348, 353 (App. 1994)). In this case, Brian was afforded numerous opportunities over several years. This was the family's fourth dependency, and DCS even requested additional time in the middle of the severance trial to give Brian and the children another opportunity to reunify. We cannot say the juvenile court erred in finding active efforts had been made. See Brionna J., ___Ariz.___, ¶¶ 30-31, 533 P.3d at 209-10.
II. Emotional or Physical Damage
¶24 As to the requirement of emotional or physical damage, Brian contends the juvenile court "recited the proper ICWA standards" but "completely misapplied them." He maintains that the ICWA caseworker's testimony did not support the court's finding, which was also based on "long-outdated information" from Dr. Plevell and hearsay about the children's views.
¶25 Under ICWA, "testimony of qualified expert witnesses" must be given on the question whether "continued custody of the child . . . is likely to result in serious emotional or physical damage to the child." 25 U.S.C. § 1912(e). The testimony must be "forward looking-relating to the likelihood of future harm to the child." Steven H. v. Ariz. Dep't of Econ. Sec., 218 Ariz. 566, ¶ 19 (2008). But "ICWA does not require that the experts' testimony provide the sole basis for the court's conclusion; ICWA simply requires that the testimony support that conclusion." Id. ¶ 20 (quoting E.A. v. State, 46 P.3d 986, 992 (Alaska 2002)).
¶26 The parties stipulated that the ICWA caseworker, Ramalda Miguel, was a qualified expert witness. Based in part on her testimony, the juvenile court found "beyond a reasonable doubt that custody of the children, or any of them, [by Brian] is likely to result in serious emotional or physical damage to the child." It explained that Brian's "alcohol use disorder is severe and not resolved" and that "[t]he cycle of removal [is] very likely to return if the children were in his care at this time." The court additionally noted that the children "have significant fear" of Brian and they "cannot handle more neglect or bear another removal." The court thus concluded, "Custody with father would cause serious harm to the children as Dr. Plevell cautioned."
¶27 Reasonable evidence supports the juvenile court's finding. The ICWA caseworker agreed that "continued custody of the children with [Brian] would likely result in serious physical or mental harm to the children." She explained this was Brian's fourth dependency and, "[d]espite all of the services that he has been given, . . . [he] has failed to maintain that stability for the children." She pointed out that when the children had been returned home previously, they missed school and presumably their after-school activities, like music and sports, which they enjoy.
¶28 Dr. Plevell similarly cautioned against returning the children to Brian only to result in a fifth dependency. Although Dr. Plevell testified in December 2021, as Brian points out, we disagree with his characterization of her testimony as "long-outdated." Brian had started counseling at Crossing Arrows before Dr. Plevell's testimony, and she was questioned about its effect on her assessment and prognosis. She explained that his participation in that service "wouldn't affect the prognosis in general" but it "would possibly certainly affect his diagnoses." She stated that, because this was the fourth dependency, "[t]he prognosis is statistically poor, because of the repeated relapses." In addition, she testified that while culturally appropriate services are "helpful," they are not "absolutely critical." It was within the juvenile court's discretion to assess Dr. Plevell's credibility and to determine the weight to give her testimony in light of subsequent events. See Jesus M., 203 Ariz. 278, ¶ 12.
¶29 Moreover, as discussed below, even disregarding the alleged hearsay, evidence of the children's feelings about Brian and where they wanted to live was otherwise admitted. As the foster placement explained, Kathleen, Kelly, and Kaleb were hesitant to go to visits with Brian, and all four children had expressed fear that Brian would "come after" them. She noticed that the children appeared "stable" during the periods of time in which there was no visitation and that there was "regression" when the visits resumed.
¶30 Contrary to Brian's suggestion, there was evidence of Brian's progress throughout this proceeding, which the juvenile court recognized. But as the court also found, there were areas in which Brian had failed to improve, for instance, repeatedly driving without a valid license and needing to address the underlying trauma that is at the root of his alcohol abuse. We cannot say the court erred in finding Brian's continued custody of the children was likely to result in serious emotional or physical damage to them. See Brionna J., ___ Ariz.___, ¶¶ 30-31, 533 P.3d at 209-10.
Hearsay
¶31 Brian next argues that the juvenile court erred in admitting testimony by the ICWA caseworker relaying statements made by the children. "A trial court has broad discretion in admitting or excluding evidence, and we will not disturb its decision absent a clear abuse of its discretion and resulting prejudice." Lashonda M. v. Ariz. Dep't of Econ. Sec., 210 Ariz. 77, ¶ 19 (App. 2005). Error is harmless-and not prejudicial-if we can say beyond a reasonable doubt that the error did not contribute to the outcome. Alice M. v. Dep't of Child Safety, 237 Ariz. 70, ¶ 12 (App. 2015).
¶32 Hearsay is a statement "the declarant does not make while testifying at the current trial" and "a party offers in evidence to prove the truth of the matter asserted in the statement." Ariz. R. Evid. 801(c). Hearsay is generally inadmissible, but there are several exceptions. See Ariz. R. Evid. 802, 803, 804; see also Ariz. R. Evid. 801(d)(2). For example, "[t]he out-of-court statements . . . of a minor regarding acts of abuse or neglect perpetrated on the minor are admissible for all purposes" in a termination proceeding, "if the time, content and circumstances of such a statement . . . provide sufficient indication of its reliability." § 8-237; see Ariz. R. P. Juv. Ct. 104(c); see also A.R.S. § 8-201(25)(a) (defining neglect).
¶33 During her testimony, the ICWA caseworker testified on four occasions about statements made by the children. First, she testified, "The children have stated and each child I met with individually, each child has stated that they feel safe at their current placement, and that they did not wish to return to father, but that they would like to have visits with him." Second, she stated, "[W]e asked how the Christmas visit went and if, you know, everything went okay. [Kathleen] reported that her dad was late, he was late to the visit, and that he had drove up in a black car and was driving grandma and her cousin...." Third, she testified, "[Kathleen] reported that she didn't feel safe, and that she wanted to end the visit. She just was afraid of making her dad mad, and she didn't know what he would do if she made him mad." Fourth, she stated, "The two older ones have been refusing therapy. At our last home visit, the two older pretty much just indicated . . . they just didn't want to attend any more therapy." As to each instance, Brian objected on hearsay grounds, among others, and the juvenile court ultimately overruled his objections for various reasons.
¶34 On appeal, Brian again challenges each of these four statements. He maintains that, despite the exception for hearsay in § 8-237, "the statements have nothing to do with an allegation of abuse or neglect." And he maintains that the juvenile court used the statements for the truth of the matter asserted "when determining that Brian ha[d] not remedied the situation that caused the children to be placed in care."
¶35 Even assuming without deciding that these statements were improperly admitted, however, we are satisfied beyond a reasonable doubt that, without the statements, the juvenile court would have reached the same result. See Alice M., 237 Ariz. 70, ¶ 12. As to the first and third statements, there was other properly admitted evidence about the children's fear of Brian and where they wished to live. See State v. Williams, 133 Ariz. 220, 226 (1982) (admission of cumulative evidence constitutes harmless error). For example, the foster placement testified that when the children went to visit Brian, they were scared of being around him and of going back to live with him. She testified that all four children expressed fear that Brian would "come after" them, that Kathleen was afraid of making Brian mad, and that Kaleb did not want to live with Brian. The ICWA caseworker also related the children's safety concerns, "They feel that that trust has not been established to where they could honestly say, without fear, that yes, I want to go back to my dad." The DCS caseworker further testified Kaleb and Kelly wanted to stay with the placement and felt safe there.
Citing Alice M., Brian contends this court has been inconsistent in its application of the harmless error standard in juvenile cases. We disagree. In Alice M., we explained that the purported error was harmless because, even without it, the juvenile court would have reached the same result. 237 Ariz. 70, ¶ 12. Although we may have imprecisely characterized the evidence as "sufficient," we identified the correct standard. Id.; see State v. Copeland, 253 Ariz. 104, ¶ 27 (App. 2022) (error can be harmless if overwhelming evidence of guilt exists).
¶36 Testimony about Brian driving to the Christmas visit was also "superfluous and could not have affected the verdict." State v. Bass, 198 Ariz. 571, ¶ 40 (2000). There was significant evidence, including testimony from Brian, that he had been driving throughout this proceeding, despite not having a valid license. There was another incident when Kathleen saw Brian driving to a different visit, and the ICWA caseworker also saw Brian driving on several occasions. Notably, Brian testified that he had received multiple tickets since being placed on probation.
¶37 Finally, the juvenile court made no factual findings as to why the children were not attending therapy. State v. Romero, 240 Ariz. 503, ¶ 8 (App. 2016) (whether erroneously admitted evidence "would have been primary evidence or material fact" is a factor in determining harmlessness). And such evidence is not relevant to the ultimate legal analysis. See §§ 8-533(B)(8)(c), 8-537(B); 25 U.S.C. § 1912(d), (f). Because we are satisfied beyond a reasonable doubt that the juvenile court would have reached the same result, notwithstanding the alleged hearsay, we have no basis to disturb the termination order. See Alice M., 237 Ariz. 70, ¶ 12.
Disposition
¶38 For the foregoing reasons, we affirm the juvenile court's order terminating Brian's parental rights.