Alexander T. v. Dep't of Child Safety & K.T.
| Decision Date | 08 May 2018 |
| Docket Number | No. 2 CA-JV 2017-0198,2 CA-JV 2017-0198 |
| Parties | ALEXANDER T., Appellant, v. DEPARTMENT OF CHILD SAFETY AND K.T., Appellees. |
| Court | Arizona Court of Appeals |
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f); Ariz. R. P. Juv. Ct. 103(G).
Appeal from the Superior Court in Pima County
The Honorable Deborah Pratte, Judge Pro Tempore
AFFIRMED
Peter G. Schmerl P.C., Tucson
By Peter G. Schmerl
Counsel for Appellant
Mark Brnovich, Arizona Attorney General
By Cathleen E. Fuller, Assistant Attorney General, Tucson
Counsel for Appellee Department of Child Safety
Pima County Office of Children's Counsel, Tucson
By Sybil Clarke
Counsel for Minor
Chief Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Staring and Judge Brearcliffe concurred.
¶1 Alexander T., father of K.T., born in June 2016, appeals from an order entered following a November 2017 dependency review hearing, challenging the juvenile court's finding that the Department of Child Safety (DCS) had made reasonable efforts to provide him with reunification services during his incarceration. We affirm.
¶2 DCS filed a dependency petition as to Alexander and as to K.T.'s mother, Shakira E., in October 2016, based on the allegation that the parents had neglected the child by exposing her to domestic violence and possible substance abuse. Although K.T. had been removed from the home, she was placed with Shakira. K.T. was adjudicated dependent as to Alexander in November 2016, after he entered a plea of no contest to the allegations in the petition. The court ordered DCS to provide the reunification services outlined in the case plan.
¶3 Over the next year, DCS provided Alexander with a variety of services, including healthy-relationships classes, individual therapy, domestic-violence classes, and a parent-child relationship assessment. His compliance with the case plan and participation in services was inconsistent. After dependency review hearings in February, May, and August 2017, the juvenile court found DCS had made reasonable efforts to provide the family with reunification services.
¶4 On October 23, 2017, Alexander was arrested for armed robbery and was held in the Pima County jail. At the dependency review hearing on November 16, he conceded his compliance with services had not been consistent before he was incarcerated and asked DCS to "assist with providing services to him while incarcerated." The parties and the juvenile court discussed what was available to Alexander while he was incarcerated, including the possibility of arranging an online program for him. DCSurged Alexander to explore what services could be arranged internally through the jail, explaining that, although previously it had provided parents with a packet of materials for a self-help parenting program called "Love and Logic," it no longer did so because of copyright issues and because it felt parents needed in-person classes. Alexander's counsel then offered to look into the matter further but objected to the court's finding that Alexander was not compliant with the case plan because there were no services being provided. He added that DCS was not making reasonable efforts "if [it is] providing no services to him, and . . . asking him to do it on his own."
¶5 At the end of the hearing, the juvenile court found the child's dependency continued to exist, and found Alexander was minimally compliant with the case plan. The court emphasized that the dependency was at a critical point because K.T. had been out of the home for over a year and Alexander had a small window of time within which to reunify. The court added that his incarceration had "restricted" what he could participate in to comply. The court urged Alexander to sign up for classes while in jail that he thought might "be relevant" and added that his counsel and DCS would communicate with one another if there were any other programs that could be implemented during his incarceration. The court then found DCS had made "reasonable efforts in this matter," specifying the services it had provided up until Alexander's recent incarceration. This appeal followed.
¶6 Citing In re Yavapai County Juvenile Action No. J-8545, 140 Ariz. 10, 15 (1984), DCS first contends this court lacks jurisdiction of this appeal because a finding of reasonable efforts is not an appealable order for purposes of A.R.S. § 8-235(A) since it does not conclusively define the rights or duties of a party to the dependency action. In that case, our supreme court determined that "orders declaring children dependent and orders reaffirming findings that children are dependent are final orders subject to appeal by aggrieved parties." Id. at 14.
¶7 Whether a juvenile court's reasonable-efforts finding is appealable depends on the context in which the finding was made and the practical effect of the order on the parent's rights. See Jewel C. v. Dep't of Child Safety, 784 Ariz. Adv. Rep. 32, ¶ 3 (Ct. App. Feb. 5, 2018). Here, that finding was made in the context of a dependency review hearing and the resulting order was a final, appealable order as to an aggrieved party such as a parent. See In re Maricopa Cty. Juv. Action No. JD-6236, 178 Ariz. 449, 451 (App. 1994) (). The finding that K.T.'s dependent status continued to exist was intertwined with questions regarding Alexander's compliance with the case plan, and whether DCS was fulfilling its obligation to provide reasonable and appropriate reunification services.
¶8 The Alabama Court of Appeals decision in O.Y.P. v. Lauderdale County Department of Human Resources, 148 So. 3d 1081 (Ala. Civ. App. 2014), which DCS cites in its answering brief, is distinguishable. The appeal in that case was taken from an order entered after a permanency hearing, id. at 1082, which, as this court found in Rita J. v. Arizona Department of Economic Security, 196 Ariz. 512, ¶ 9 (App. 2000), is not an appealable order. Similarly, in In re Interest of Kenneth B., ___ N.W.2d ___, 25 Neb. App. 578, 586 (2018), the court dismissed an appeal from an order entered after a permanency hearing that changed the permanency objective from family reunification to guardianship without eliminating the father's ability to reunify. We conclude the reasonable-efforts finding here was part of a dependency review hearing and we have jurisdiction of this appeal.
¶9 Alexander argues the juvenile court's reasonable-efforts finding is not supported by the record because DCS was not providing him services while he was incarcerated, from October 12 to the date of the review hearing on November 16. He asserts that DCS was requiring him to "fend for himself" by placing the burden on him to "find[] services that may or may not be available to him in the Pima County Jail." Alexander concedes...
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