Francine C. v. Dep't of Child Safety, K.C.

• Decision Date: 23 June 2020
• Docket Number: No. 1 CA-JV 19-0366,1 CA-JV 19-0366
• Citation: 468 P.3d 1250,249 Ariz. 289
• Parties: FRANCINE C., Appellant, v. DEPARTMENT OF CHILD SAFETY, K.C., Appellee.
• Court: Arizona Court of Appeals

249 Ariz. 289

468 P.3d 1250

FRANCINE C., Appellant,

v.DEPARTMENT OF CHILD SAFETY, K.C., Appellee.

No. 1 CA-JV 19-0366

Court of Appeals of Arizona, Division 1.

FILED June 23, 2020

Maricopa County Legal Defender, Phoenix, By Jamie R. Heller, Counsel for Appellant

Arizona Attorney General's Office, Mesa, By Tom Jose, Counsel for Appellee

Presiding Judge Paul J. McMurdie delivered the opinion of the Court, in which Judge Jennifer B. Campbell and Vice Chief Judge Kent E. Cattani joined.

McMURDIE, Judge:

¶1 Francine C. ("Mother") appeals the juvenile court's order adjudicating her daughter, Kourtney, dependent based on Mother's alleged failure to protect Kourtney from exposure to substance abuse and domestic violence while the child was in her father's care. Because the juvenile court erred by failing to state the basis for the dependency as required by Arizona Revised Statutes ("A.R.S.") section 8-844(C)(1)(a)(ii) and Arizona Rule of Procedure for the Juvenile Court ("Juvenile Rule") 55(E)(3), we vacate and remand the dependency order. In so doing, we hold: (1) a parent does not waive the requirement of specific findings by not raising the issue before the juvenile court; (2) a dependency order and the surrounding circumstances must be sufficiently specific to allow for effective appellate review; and (3) in this case, absent specific findings by the juvenile court, we are unable to determine if the dependency order is supported by reasonable evidence.

FACTS AND PROCEDURAL BACKGROUND

¶2 Mother and Walter C. ("Father") divorced after Mother moved with Kourtney from Arizona to Arkansas in 2011 when the child was one year old. An Arkansas court awarded Mother and Father joint custody, with Father having reasonable and seasonal parenting time. By 2018, Kourtney and Father had communicated only by phone and had not seen each other since Mother took Kourtney to Arkansas. Kourtney wanted to develop a relationship with her father, so in June 2018, Mother agreed to send her to Arizona to stay with Father for the summer. By the end of the summer, Mother and Father decided that Kourtney could remain with Father for the following school year.

¶3 Shortly before Kourtney arrived in Arizona, Father's girlfriend gave birth to their son, who was born substance-exposed. The Department of Child Safety ("DCS") took custody of the newborn in May 2018. In connection with that investigation, Father tested positive for methamphetamine, cocaine, benzoylecgonine, and norcocaine on May 30, 2018. After receiving a report a few weeks later that Father had brought Kourtney to a hearing in the dependency matter for his son, a DCS investigator called Mother on August 7, 2018, and advised her of Father's substance use. Mother said she knew Father had a history of substance abuse but explained that she believed Father was sober because she assumed he was being tested for drugs since he was on parole and employed. Mother told the investigator that Father had recently discussed the DCS case about his son with her, but she understood that it was Father's girlfriend who was using drugs, not Father. Mother stated that she had conditioned Kourtney's stay in Arizona on Father being drug-free. She told the investigator she would "start making arrangements for an immediate flight back to Arkansas for Kourtney." DCS did not take further action, and Kourtney remained with Father.

¶4 Two weeks later, the police notified DCS that they had arrested Father because he and his girlfriend were involved in a domestic-violence altercation that Kourtney had witnessed. Because there was no caregiver available, DCS took Kourtney into custody and placed her with Father's sister ("Aunt"). The investigator again spoke with Mother, who asserted she had been waiting on a tax-refund check to buy a plane ticket for her daughter, but that the check had just arrived. Mother later notified DCS that she and Aunt had agreed it would be better for Kourtney to remain with Aunt for the remainder of the school year before returning to Arkansas.

¶5 In August 2018, DCS petitioned the juvenile court to find Kourtney dependent, alleging:

Mother is unable to parent due to neglect and a failure to protect. Mother failed to take appropriate action to protect the child from the domestic violence and substance abuse that occurred in Father's home. In June 2018, Mother sent the child to Arizona to live with Father for about a year. Mother has a history of failing to protect her children. Mother left her children in the care of a registered sex offender.

The court held a joint-dependency adjudication for Mother and Father in October 2019.¹ Before the start of the trial, DCS withdrew several allegations related to Father, including "Father has a history of domestic violence" and "Father does not have a medical marijuana card." After removing these allegations, Father agreed not to contest the claims remaining in the petition. The court adjudicated Kourtney dependent regarding Father and then proceeded to Mother's case.

¶6 Mother informed the court that she and DCS had reached an agreement for a pre-adjudication guardianship with Aunt. Father had been the holdout to the agreement, but now that Kourtney had been adjudicated dependent regarding Father, Mother requested to proceed with that arrangement. But DCS stated it was concerned that Aunt "doesn't fully understand what ... guardianship means," and "without having the time to do a—a permanency [meeting] and really sit down with [Aunt], ... we're just not comfortable agreeing to that, and we—we do have everybody here."

¶7 The court noted that it had been over a year since Kourtney had been removed from Father's home and proceeded with the hearing. The only evidence presented was a court report dated August 28, 2018, testimony from the case manager who took over the case in March 2019, and a DCS investigator.

¶8 The investigator testified that DCS had "concerns for [Mother's] judgment" because she had sent Kourtney to Arizona to stay with her Father "knowing his history of substance abuse and his criminal history." Based on the investigator's limited investigation into Mother's background, however, she was unable to say whether Mother was minimally adequate to parent.

¶9 The case manager testified that DCS had safety concerns regarding Mother's home and could not return Kourtney to Mother until it satisfied its "statutory obligation to assess" the home. The case manager explained that when DCS has a concern about a parent's home in another state, it usually initiates the Interstate Compact for the Placement of Children ("ICPC") process, which here would mean "running background checks on the individual[s] that [Mother] identif[ies]." The case manager testified, however, that, although it would be Arkansas that assessed Mother's home, she had not contacted Arkansas's Division of Child and Family Services to do so even though she knew Arkansas would not commence an investigation until Arizona initiated an ICPC.²

¶10 After the close of evidence, the court stated: "Based on the evidence that was presented, the Department met their legal standard for a dependency finding against Mother." The corresponding minute entry read:

THE COURT FINDS, pursuant to the Rules of Procedure for the Juvenile Court, that the allegations of the petition are true by a preponderance of the evidence and the child is dependent as to [Mother] as defined by the Arizona Revised Statutes.

Mother appealed, and we have jurisdiction under A.R.S. § 8-235(A) and Juvenile Rule 103(A).

DISCUSSION

¶11 On appeal, Mother argues the juvenile court erred by failing to make sufficiently specific findings as required by A.R.S. § 8-844(C)(1)(a)(ii) and Juvenile Rule 55(E)(3) and by adjudicating Kourtney dependent without reasonable evidence to support a dependency. DCS responds: (1) Mother waived the opportunity for more specific findings by failing to raise the issue in the juvenile court; (2) the order is sufficiently specific to allow for effective appellate review; and (3) reasonable evidence allows this court to infer findings to support the order.

A. An Appellate Court Cannot Affirm a Dependency Order that Lacks Findings that Are Sufficiently Specific to Permit Effective Appellate Review.

¶12 Before the State may interfere with a parent's right to parent his or her child, it must prove the child is dependent under A.R.S. § 8-201(15)(a). Our legislature and supreme court have established significant procedural safeguards to protect the fundamental right at stake in juvenile proceedings. See A.R.S. § 8-844(C)(1)(a)(ii) ; Juvenile Rule 55(E)(3) ; Crosby-Garbotz v. Fell , 246 Ariz. 54, 58, ¶ 17, 434 P.3d 143, 147 (2019) ("[D]ependency proceedings affect liberty interests as well—the fundamental right of parents regarding their children's upbringing ...."); Kent K. v. Bobby M. , 210 Ariz. 279, 284, ¶ 24, 110 P.3d 1013, 1018 (2005) (citing Santosky v. Kramer , 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) ). As relevant here, when the juvenile court finds that a petitioner has proven the allegations in a dependency petition by a preponderance of the evidence, it must "[s]et forth specific findings of fact in support of a finding of dependency," which "shall be in the form of a signed order or contained in a minute entry." Juvenile Rule 55(E)(3); A.R.S. § 8-844(C)(1)(a)(ii) (juvenile court must provide "[t]he factual basis for the dependency"); cf. Ruben M. v. ADES , 230 Ariz. 236, 240, ¶ 22, 282 P.3d 437, 441 (App. 2012) (in termination proceedings governed by Juvenile Rule 66, "the court must specify at least one factual finding sufficient to support each of th[e] conclusions of law"). These requirements are not discretionary; they are mandatory in every dependency proceeding.

¶13 As noted in the context of termination proceedings, "[t]he primary purpose for requiring a court to make express findings of fact and conclusions of law is to allow the appellate court to determine exactly which issues...