West v. Dep't of Child Safety
| Decision Date | 28 March 2017 |
| Docket Number | No. 1 CA-JV 16-0405,1 CA-JV 16-0405 |
| Parties | JOSHUA W., Appellant, v. DEPARTMENT OF CHILD SAFETY, F.T., Appellees. |
| Court | Arizona Court of Appeals |
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
Appeal from the Superior Court in Maricopa County
The Honorable Sally S. Duncan, Judge
AFFIRMED
John L. Popilek, P.C., Scottsdale
By John L. Popilek
Counsel for Appellant
By JoAnn Falgout
Judge Lawrence F. Winthrop delivered the decision of the Court, in which Presiding Judge Randall M. Howe and Judge Jon W. Thompson joined.
¶1 Joshua W. ("Father"), the alleged biological father of F.T. ("the child"), appeals the juvenile court's order terminating his parental rights to the child on the ground of abandonment.1 Father argues the court erred in terminating his rights because the Department of Child Safety ("DCS") failed to provide him with a paternity test, which he maintains effectively denied him the right to reasonable efforts at reunification. Although we disapprove of DCS's meager efforts to obtain a paternity test, because Father made no reasonable efforts of his own to obtain such a test or to establish a normal parental relationship with the child, we nonetheless affirm.
¶2 The child was born in July 2011. On August 4, 2014, the child was found wandering the streets alone while wearing only a diaper. Mother was unable to parent the child or the child's half-sister, E.T., due to substance abuse—primarily methamphetamine—and serious mental illness—having been diagnosed with a bipolar disorder and schizophrenia—as well as intellectual disabilities.3 Father was incarcerated in the Arizona Department of Corrections and not scheduled to be released until sometime in 2015; accordingly, DCS took the child into care and filed a dependency petition on August 6, 2014. DCS alleged the child was dependent as to Father due to Father's incarceration and because he had abandoned and neglected her by failing to maintain a normal parental relationship and provide her with basic necessities.
¶3 The court appointed counsel to represent Father, and a team decision-making meeting was held on August 17, 2014. Father attended the meeting telephonically from prison and agreed to DCS's request that he submit to a paternity test; however, more than two years would pass before paternity testing was conducted in late August 2016.
¶4 Father appeared telephonically at the September 10, 2014 initial dependency hearing and the November 3, 2014 pretrial conference hearing. Although Father contested the dependency, the record does not reflect he inquired about or requested the paternity test at either hearing.4
¶5 At the time of the May 28, 2015 dependency adjudication hearing, Father remained imprisoned—with a maximum end date of September 26, 2015—based on convictions for credit card fraud, burglary, and possession or use of marijuana. He appeared telephonically at the dependency adjudication hearing, waived his right to contest the allegations in the petition, and submitted the issue of dependency to the court. The court found the child dependent as to Father, set a case plan of family reunification, and advised Father to participate in any services available to him while in custody and to send cards, gifts, or letters to the child through DCS. The court also "urged" Father to contact DCS immediately upon his release so that DCS could offer urinalysis testing, a referral for a TERROS assessment, supervised visitation, and "additional services as deemed appropriate." The record does not indicate that Father voiced any objection regarding the offered services or inquired about paternity testing at that time. Moreover, over approximately the next year, Father made no effort to arrange for paternity testing, maintain a normal relationship with the child, or contact the child, even after his release from incarceration in July 2015 or after subsequent releases from incarceration.
¶6 In November 2015, Father failed to appear at a report and review hearing, and although Father was represented by counsel at thehearing, the record again provides no indication that Father requested or objected to the lack of a paternity test through counsel. The juvenile court ordered the case plan changed to severance and adoption, and on November 25, 2015, DCS filed a motion to terminate the parents' rights. As to Father, DCS alleged the statutory ground of abandonment as a basis for severance. See Ariz. Rev. Stat. ("A.R.S.") § 8-533(B)(1) (Supp. 2016).5
¶7 In February and May 2016, Father was located and served at the Maricopa County Jail, where he was by that time again incarcerated. On May 3, 2016, the juvenile court held an initial hearing on the motion for termination. Father was transported to and present at the hearing, and stated that he wished to contest the severance. The court ordered DCS to obtain a paternity test for him on an expedited basis.6 By this time, the child had been in DCS's legal care for approximately twenty-one months.
¶8 In May and June 2016, Father wrote a few cards and letters to the child, and sent them to the DCS case manager; however, the letters he sent were "inappropriate" and could not be forwarded to the child.7 Before that, he had failed to maintain contact with the child since the dependency or to pay any support for her.
¶9 Although DCS eventually collected DNA samples from Father and the child in late August 2016, the results of the paternity testing were not available as of the hearing on the motion for termination. Accordingly, both the case manager and Father were questioned at that hearing about the lack of a paternity test and about why the test had not been completed.
¶10 At the September 1, 2016 hearing on the motion for termination, the DCS case manager testified that Father had provided no food, clothing, shelter, medical care, or other support for the child, and had not provided for her educational or social needs, or otherwise parented her. The case manager also acknowledged that no paternity test results were available, and therefore Father continued to be the child's "alleged father." When asked about the delay in paternity testing, the case manager attributed the two-year delay to difficulty in locating Father, explaining that "[t]here were several parent locates put out for him." At the same time, however, the case manager, who had recently been assigned the case in June 2016, acknowledged the case had been staffed by "four or five" previous case managers since its inception and conceded that DCS had known of Father's in-custody status for much of that time.
¶11 Although Father remained incarcerated due to pending criminal charges at the time of the hearing, he was transferred to the court and testified.8 Father admitted knowing about the child before the dependency case was filed and affirmed that he considered her to be his biological daughter; nevertheless, he admitted he had done nothing to establish paternity or a relationship with her before she was taken into DCS's care. He further admitted knowing the child was in DCS's care as of August 17, 2014, but that he did nothing to contact her or establish a relationship with her at that time. He also acknowledged that, other than the cards and letters he sent to the child shortly before the severance hearing, he had sent no correspondence, had not provided financial support for the child, and had not attempted to maintain a relationship with her throughout the dependency, even during the time periods when he was not incarcerated.
¶12 When asked about the lack of a paternity test, Father explained he had agreed to DCS's August 2014 request that he submit to a paternity test; however, he claimed to have subsequently "lost [the] contact information" and admittedly made no effort to follow up on the request. Father also testified that after his release from prison in July 2015, he went back to jail within a month-and-a-half, was released for another eighteen days before briefly being re-incarcerated, and then was released for "like six months" before returning to the Maricopa County Jail. He explainedthat, during that time, he "had lost all the paperwork" and thus could not contact DCS. However, he further admitted that "it was a bad time and to be honest, I really wasn't trying to be the father that I could be."
¶13 Father's attorney waived closing argument, and at the close of the hearing, the juvenile court granted DCS's motion to terminate Father's parental rights to the child on the ground of abandonment.9 In explaining its decision, the court stated in part as follows:
¶14 Father filed a timely notice of appeal. We have jurisdiction pursuant to A.R.S. § 8-235(A) (2014) and Rule 103(A) of the Arizona Rules of Procedure for the Juvenile Court.
¶15 A parent possesses a fundamental liberty interest in...
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