Manuel M. v. Arizona Dept. of Economic Sec.
| Decision Date | 25 March 2008 |
| Docket Number | No. 2 CA-JV 2007-0071.,2 CA-JV 2007-0071. |
| Citation | 218 Ariz. 205,181 P.3d 1126 |
| Parties | MANUEL M., Appellant, v. ARIZONA DEPARTMENT OF ECONOMIC SECURITY, Leila M., and Alayana M., Appellees. |
| Court | Arizona Court of Appeals |
Joan Spurney Caplan, Tucson, Attorney for Appellant.
Terry Goddard, Arizona Attorney General, By Dawn R. Williams, Tucson, Attorneys for Appellee Arizona Department of Economic Security.
¶ 1 Appellant Manuel M. appeals from the juvenile court's order of August 13, 2007, terminating his parental rights to his five-year-old daughter, Leila, and his four-year-old daughter, Alayana. Manuel challenges the constitutionality of Rule 66(D)(2), Ariz. R.P. Juv. Ct., which provides the consequences for a parent's failure to appear for scheduled termination proceedings. He also contends the court erred by denying him an opportunity to examine a case manager for Child Protective Services (CPS) and by considering inadmissible evidence to conclude the Arizona Department of Economic Security (ADES) had proven grounds for termination. After considering the record, applicable rules, and arguments of the parties, we conclude that the court erred by denying Manuel the opportunity to cross-examine the case manager concerning the sufficiency of the evidence to support the grounds alleged for termination and abused its discretion in admitting evidence without proper foundation. But we find these errors were harmless in the context of this case. We therefore affirm the court's termination order.1
¶ 2 Viewed in the light most favorable to affirming the juvenile court's findings, see In re Maricopa County, Juv. Action No. JS-8490, 179 Ariz. 102, 106, 876 P.2d 1137, 1141 (1994), the evidence establishes the following. After investigating allegations that the children's mother, Melissa A., had engaged in domestic violence and substance abuse and had left Leila and Alayana with their paternal grandmother "who drank daily to the point of passing out," did not care for the children, and did not feed them or have food in the home, CPS took the girls into temporary custody in June 2004. ADES filed a dependency petition on July 6, 2004.2
¶ 3 Manuel spent most of the next year incarcerated on drug-related charges and convictions in Arizona and Illinois. According to reports filed by CPS case manager Joel Williamson, while Manuel was in prison, CPS had encouraged him "to avail himself of any programs offered to inmates that would address his substance abuse, parenting, and individual counseling" needs. Although Manuel had submitted in September 2004 to a psychological evaluation required by CPS, he had advised Williamson that he "had not had the time to participate in . . . inmate services."
¶ 4 At a dependency review hearing in February 2005, the juvenile court found that neither Manuel nor Melissa was in compliance with the case plan and approved concurrent case plan goals of family reunification and severance.3 At the court's direction, ADES filed a motion to terminate both parents' rights but then agreed in May 2005 to continue the initial termination hearing to afford Melissa additional time to comply with the case plan. When the hearing was held on October 28, 2005, the court found reunification was the appropriate case plan goal, and ADES withdrew its motion for termination.
¶ 5 For Manuel, the reunification case plan called for him to resolve his legal issues, participate in random urinalysis, comply with the recommendations from his psychological evaluation, and maintain a safe home environment. Although he did not participate in the plan until four months after his release from prison and was initially slow to comply with its requirements related to his substance abuse, he was "very attentive to [his] parenting education [program] and supervised visitation."
¶ 6 By the time the juvenile court commenced another permanency hearing in June 2006, Manuel had been complying with random urinalysis more routinely, had been actively participating in parenting classes and visitation, and had been interacting well with his daughters. Although concerned about Manuel's history of substance abuse and his failure to participate in treatment, his CPS case manager opined, The court found Manuel to be in substantial compliance with reunification services and gave ADES the discretion to increase Manuel's visitation, provided the girls' therapists approved. Based on his improved performance, the court granted ADES authority to place the children with him, which it did on October 27, 2006.
¶ 7 Then, on February 9, 2007, as the juvenile court was taking the logistical steps, with the approval of ADES, to dismiss the dependency proceeding, Manuel was arrested on felony charges of possessing marijuana for sale. Before his arrest, Manuel had left his daughters in the care of his mother, even though CPS had warned him that his mother could not act as the children's caretaker because she had previously been convicted of child endangerment. After Manuel's arrest, CPS returned the girls to the foster parents who had cared for them from July 2004 until they were placed with Manuel in October 2006. The foster parents have expressed their willingness to provide a permanent home for Leila and Alayana.
¶ 8 Following Manuel's arrest, the juvenile court held another permanency hearing in May 2007 and changed the case plan goal to severance and adoption. ADES then filed a motion to terminate Manuel's parental rights based on the length of the girls' court-ordered, out-of-home placement and allegations that, as evidenced by his recent arrest, Manuel had substantially neglected or wilfully refused to remedy the circumstances causing their removal, A.R.S. § 8-533(B)(8)(a), or, alternatively, had been unable to remedy those circumstances and would likely be unable to parent the children in the near future, § 8-533(B)(8)(b).4
¶ 9 Manuel appeared at the initial termination hearing and entered a denial to the allegations in the motion; the juvenile court admonished him "that failure to attend future hearings without good cause shown may result [in] the hearing going forward in his absence and the termination of his parental rights." The court also provided Manuel with written notice that, absent good cause, his failure to appear for a termination hearing — including "an initial hearing, a pretrial conference, a status conference or termination adjudication" — could be deemed a waiver of his legal rights and an admission to the allegations in the motion and could result in termination of his parental rights based on the record and evidence. See Ariz. R.P. Juv. Ct. 64(C). The notice included the dates of the scheduled hearings, including the pretrial conference set for July 24, 2007.
¶ 10 Manuel did not appear for the pretrial conference, and his attorney could not explain his absence. The juvenile court found that Manuel had no good cause for failing to appear at the hearing, that his absence was voluntary, that he therefore "waived all of his rights," and that "the allegations in the motion to terminate parental rights are deemed admitted as to [him]." The court then proceeded with the termination hearing in Manuel's absence. During the hearing, the court admitted ADES's exhibits over objections raised by Manuel's attorney and over objections that previously had been asserted in the pretrial statement. Manuel's attorney then sought to question Manuel's current CPS case manager, Glenn Dobbin, but when counsel began asking Dobbin about Manuel's compliance with the case plan, ADES objected, arguing Manuel had waived his right to examine the witness by failing to appear.
¶ 11 In response, Manuel's counsel argued that Rule 66(D)(2) When the juvenile court suggested "[t]he evidence . . . could be and is in all likelihood contained in the exhibits that were admitted," Manuel's counsel responded, "I think the rule's silent, but I believe that it's clear that I could cross-examine if I wish."
¶ 12 When asked to provide an offer of proof, Manuel's counsel replied that she hoped to establish:
That the children were found by the Court and by Mr. Dobbin, . . . that they could be safely returned to the father without a — without a risk of harm or substantial risk of harm and that accordingly they were. So that up until that time [of the January 2007 dependency review hearing] . . . there was no basis for a severance or even a dependency. . . . And the only thing that's changed since then is that he's been arrested and hasn't been found guilty yet.
The juvenile court reviewed its findings from the May permanency hearing and informed Manuel's counsel:
I am exercising my discretion to decline your request to examine the caseworker because I've already found that your client has waived all of his legal rights by virtue of his failure to appear today, including the right to examine the witnesses. I'm going to consider all the exhibits and all the previous evidence that was admitted during the course of all these proceedings over your objection.
Manuel's counsel responded, "Over my vehement objection." The court then found that ADES had proven the allegations in its motion, "specifically [the] length of time in care pursuant to A.R.S. [§] 8-533(B)(8)(a) and (B)(8)(b)," by clear and convincing evidence and that terminating Manuel's parental rights was in the best interests of the children.
¶ 13 On appeal, Manuel argues that Rule 66(D)(2), the rule setting forth how a juvenile court may...
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