Lawrence T. v. Dep't of Child Safety

• Decision Date: 28 February 2019
• Docket Number: No. 1 CA-JV 18-0214,1 CA-JV 18-0214
• Citation: 246 Ariz. 260,438 P.3d 259
• Parties: LAWRENCE T., Appellant, v. DEPARTMENT OF CHILD SAFETY, M.T., Appellees.
• Court: Arizona Court of Appeals

246 Ariz. 260

438 P.3d 259

LAWRENCE T., Appellant,

v.DEPARTMENT OF CHILD SAFETY, M.T., Appellees.

No. 1 CA-JV 18-0214

Court of Appeals of Arizona, Division 1.

FILED February 28, 2019

John A. Banker, Attorney at Law, Taylor, By John A. Banker, Counsel for Appellant

Arizona Attorney General’s Office, Mesa, By Lauren J. Lowe, Counsel for Appellee, Department of Child Safety

Judge Michael J. Brown delivered the opinion of the Court, in which Presiding Judge James P. Beene and Judge James B. Morse Jr. joined.

BROWN, Judge:

¶1 Lawrence T. ("Father") appeals the juvenile court’s order terminating his parental rights to M.T., his daughter, on the grounds of abuse of a child and fifteen months’ out-of-home placement. The issue before us is whether the court erred in denying Father’s motion that urged dismissal of the termination proceeding based on the doctrine of res judicata, which we refer to as claim preclusion. Because Father did not meet his burden of establishing the elements of claim preclusion, the court did not err when it denied his motion.

BACKGROUND

¶2 Father and Hannah B. ("Mother"), who were never married, are the biological parents of M.T., born in 2013. In 2015, the Arizona Department of Child Safety ("DCS") received a report that Mother’s home was unsafe for M.T. Mother agreed to allow M.T. to stay in Father’s care until further notice. When Father was indicted on charges arising from his alleged sexual misconduct with several victims (each under the age of 15) between 2005 and 2007, DCS placed M.T. with a family member. DCS then filed a dependency petition alleging Father was neglecting M.T. due to his incarceration, which the juvenile court granted.

¶3 In January 2017, DCS moved to terminate Mother’s and Father’s parental rights pursuant to Arizona Revised Statutes ("A.R.S.") section 8-533. Regarding Father, DCS alleged M.T. had been in an out-of-home placement for more than fifteen months, Father had not remedied the circumstance causing the out-of-home placement, and due to the severity of his pending criminal charges, it was unlikely he could properly parent in the near future. A.R.S. § 8-533(B)(8)(c). Following a termination hearing in May 2017, the juvenile court terminated Mother’s parental rights but found DCS did not meet its burden of proof as to Father.¹ The court explained that (1) Father appeared to have a strong relationship with M.T. at the time he was incarcerated; (2) he had access to limited services and visits while incarcerated; and (3) it did not appear Father’s criminal charges would be resolved until trial, which was scheduled to occur in October 2017. Although the court denied DCS’s motion, it did not dismiss the underlying dependency; instead, the court set a permanency planning hearing for Father in December 2017, seemingly anticipating a conclusion in Father’s criminal trial.

¶4 At Father’s request, however, the October trial date was later vacated and rescheduled for February 2018. Shortly thereafter, DCS filed a petition to terminate Father’s parental rights, alleging fifteen months’ out-of-home placement and abuse of a child under § 8-533(B)(2). Father moved to dismiss, arguing both grounds were barred by claim preclusion, which the juvenile court denied. At the subsequent termination hearing, the court heard expert testimony on the abuse allegations as well as testimony from DCS caseworkers regarding Father’s ability to resume parenting if found not guilty of his pending criminal charges. During closing arguments, Father again argued claim preclusion applied to both grounds.

¶5 After the hearing, but before the juvenile court issued its ruling, Father’s criminal charges were dismissed without prejudice based on the unavailability of a witness. Father requested a new trial to re-open the defense portion of the termination hearing, asserting in part (1) the fifteen-month ground "must be dismissed" because he would be able to "resume effective parenting" in the near future and (2) the dismissal cast doubt on whether sufficient evidence proved he "willfully abused or failed to protect a child." The court denied Father’s motion but allowed Father to supplement the record with evidence of the dismissal and gave all parties the opportunity to submit supplemental closing arguments. The court’s subsequent ruling found that DCS had proven, by clear and convincing evidence, both statutory grounds for termination and, by a preponderance of the evidence, that termination was in M.T.’s best interests.

¶6 Addressing the abuse ground, the juvenile court concluded the "[e]vidence presented establishes that over a period of time ... Father engaged in acts of sexual conduct and sexual assault with a minor." Supporting this conclusion was one victim’s forensic interview, which the court found especially credible "after considering ... the [expert] testimony regarding the medical evidence of [this victim’s] scarring and trauma." As for the fifteen-month ground, the court found that at the time of the second hearing (1) M.T. had been in an out-of-home placement for more than 30 months; (2) Father was incapable of providing for M.T. due to incarceration; and (3) despite Father’s charges being dismissed, Father would not be capable of exercising proper and effective parental control in the near future because he would need "to obtain a psychosexual evaluation and possible treatment." Father timely appealed.

DISCUSSION

¶7 Father argues the juvenile court erred by denying his motion to dismiss because DCS’s second request for termination was "barred by operation of the doctrine of [claim preclusion]."² We review the applicability of this doctrine de novo. Hall v. Lalli , 194 Ariz. 54, 57, ¶ 5, 977 P.2d 776, 779 (1999).

¶8 Claim preclusion, as traditionally applied in civil litigation, means that "a final judgment on the merits in a prior suit involving the same parties or their privies bars a second suit based on the same claim." Dressler v. Morrison , 212 Ariz. 279, 282, ¶ 15, 130 P.3d 978, 981 (2006). Specifically, a party seeking to invoke the doctrine must establish "(1) an identity of claims in the suit in which a judgment was entered and the current litigation, (2) a final judgment on the merits in the previous litigation, and (3) identity or privity between parties in the two suits." In re Gen. Adjudication of All Rights to Use Water in Gila River Sys. & Source , 212 Ariz. 64, 69–70, ¶ 14, 127 P.3d 882, 887–88 (2006). As a judicially-created doctrine, however, it is not strictly applied in all instances. In re Marriage of Gibbs , 227 Ariz. 403, 407, ¶ 8, 258 P.3d 221, 225 (App. 2011) ; see also Bennigno R. v. Ariz. Dep’t of Econ. Sec. , 233 Ariz. 345, 312 P.3d 861 (App. 2013) ; In re Juvenile Appeal (83-DE) , 190 Conn. 310, 460 A.2d 1277, 1282 (1983) ("The doctrines of preclusion ... should be flexible and must give way when their mechanical application would frustrate other social policies based on values equally or more important than the convenience afforded by finality in legal controversies.").

¶9 In Bennigno R ., we rejected the father’s argument that DCS was barred from re-litigating his parental rights because an earlier termination proceeding resulted in a finding that termination was not in his children’s best interests. 233 Ariz. at 348, ¶ 10, 312 P.3d at 864. We explained that claim preclusion has "limited application" within dependency and termination proceedings, agreeing with other courts that have "cautiously" applied the doctrine because the "imposition of artificial constraints that serve merely to advance the cause of judicial economy" must not prevent an outcome that is in the child’s best interests. Id. at 349, ¶ 16, 312 P.3d at 865 (first quoting People ex rel. L.S. , 721 N.W.2d 83, 90, ¶ 24 (S.D. 2006) ; and then quoting State ex rel. J.J.T. , 877 P.2d 161, 163–64 (Utah Ct. App. 1994) ). Recognizing these principles, we address Father’s assertion that claim preclusion barred the court’s consideration of the two statutory grounds for termination alleged by DCS.

A. Final Judgment on the Merits

¶10 Father correctly notes that the juvenile court issued a decision concerning his parental rights based on evidence offered at the first termination hearing, but he does not cite any authority supporting the proposition that denial of a motion to terminate during an ongoing dependency constitutes a final judgment on the merits warranting preclusion. Because our research has not revealed any Arizona authority explaining the meaning of "final judgment on the merits" in this kind of proceeding, we "look to the Restatement and other jurisdictions for guidance." Data Sales Co. v. Diamond Z Mfg. , 205 Ariz. 594, 598, ¶ 16, 74 P.3d 268, 272 (App. 2003) ; see also Webster v. Culbertson , 158 Ariz. 159, 162, 761 P.2d 1063, 1066 (1988) (explaining that Arizona courts may follow the Restatement when the result produces a "sound and fair policy").

¶11 A final judgment on the merits for the purpose of claim preclusion is one that is not "tentative, provisional, or contingent and represents the completion of all steps in the adjudication of the claim by the court." Restatement (Second) of Judgments § 13 cmt. b (1982); see In re J’America B. , 346 Ill.App.3d 1034, 282 Ill.Dec. 317, 806 N.E.2d 292, 301 (2004) (concluding that an order is not final for claim preclusive purposes if "[t]he possibility still exists that the rights of a parent could be terminated in the future"); cf. In re L.B. , 889 N.E.2d 326, 333–34 (Ind. Ct. App. 2008) (explaining that a dismissal due to procedural error was not preclusive because none of the statutory grounds for termination "were finally determined"), abrogated on other grounds by In re G.P. , 4 N.E.3d 1158 (Ind. 2014).

¶12 Here, the juvenile court’s order was not a final judgment on the merits as to Father because it did not reach a definitive resolution of his parental rights. Although the court found DCS had not proven the fifteen-month ground against Father at...