Joan G. v. Dcs ( 2022 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
JOAN G., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, K.W., K.P., N.P., A.P., C.P., Appellees.
No. 1 CA-JV 22-0033
FILED 9-13-2022
Appeal from the Superior Court in Yavapai County
No. P1300JD201900001
The Honorable Anna C. Young, Judge
AFFIRMED
COUNSEL
Law Office of Florence M. Bruemmer P.C., Anthem
By Florence M. Bruemmer
Counsel for Appellant
Arizona Attorney General’s Office, Tucson
By Dawn R. Williams
Counsel for Appellee Department of Child Safety
JOAN G. v. DCS et al.
Decision of the Court
MEMORANDUM DECISION
Judge Jennifer M. Perkins delivered the decision of the Court, in which
Judge James B. Morse Jr. and Judge Michael J. Brown joined.
P E R K I N S, Judge:
¶1 Joan G. (“Mother”) appeals the juvenile court’s orders
adjudicating five of her children dependent and terminating her parental
rights to her four daughters. Father is not a party to this appeal. For the
following reasons, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 Mother has four daughters: Kate, born June 2011; twins Kira
and Nora, born December 2013; and Alice, born July 2018. Mother also has
two sons: Caleb, born April 2020; and an older son that is not a party to this
appeal. We use pseudonyms to protect the children’s identities.
¶3 In November 2018, police responded to a domestic violence
incident between Mother and Father (collectively “Parents”). Father lit their
porch on fire and threatened to burn the home with his daughters inside.
Dangerous debris like dead rats and rat feces filled their home, which
lacked safe areas for the daughters to sleep or play. Parents’
methamphetamine and paraphernalia were within the daughters’ reach.
Police arrested Parents and the Department of Child Safety (“DCS”)
removed the daughters. Mother pled guilty to child abuse and possession
of drug paraphernalia, and the superior court sentenced her to at least 90
days in jail and three-years’ supervised probation.
¶4 DCS filed a dependency petition that same month, alleging
Mother engaged in neglect, domestic violence, and substance abuse.
Mother did not contest this dependency. Father’s successful engagement in
services led the juvenile court to place the daughters back in his care, and
Mother received some unsupervised and overnight visits with them. In
April 2020, Mother gave birth to Caleb, who was born substance exposed
to marijuana. Instead of removing Caleb, DCS referred Mother for
additional services at her father’s home where she lived.
¶5 In July 2020, the juvenile court dismissed the dependency
petition. Father continued to serve as the daughters’ primary caretaker and
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Mother received weekend parenting time. But Parents promptly regressed.
In December 2020, DCS discovered Mother again used methamphetamine.
By June 2021, Father’s home returned to disarray.
¶6 Upon learning about the dangerousness of Father’s property
in August 2021, DCS temporarily placed the daughters with Mother under
a present danger plan. DCS worried about the stability of Mother’s housing
arrangement because her roommate, who owned the home, wanted them
to leave. In early October 2021, Mother was jailed for a March 2021
probation violation and police cited her for an open container violation.
DCS temporarily placed the children with their paternal aunt.
¶7 On October 17, 2021, during a family visit with Parents and
all five children, Mother punched paternal aunt in front of Kate. Caleb later
tested positive for methamphetamine, though it is unclear when and where
he ingested it. DCS filed another dependency petition as to all five children,
alleging neglect due to violence, failure to provide basic needs, and an
unstable living environment. DCS also petitioned to terminate Mother’s
parental rights as to the daughters on substance abuse and prior removal
grounds.
¶8 The juvenile court held a consolidated dependency and
termination hearing in January 2022. Mother was not present when the
hearing began but the court set aside Mother’s failure to appear when she
arrived during the first witness’s testimony.
¶9 Mother testified but gave erratic, nonresponsive answers and
the juvenile court had to repeatedly tell her to stop or slow down. The
interruptions led the court to ask Mother if she needed a recess to talk with
her attorney. Mother responded, “I need to hire an attorney . . . this is not
fair.” The short recess that followed did not restore Mother’s confidence in
her appointed counsel, but the court denied Mother’s informal request to
substitute counsel, stating, “[w]e are set for trial today.”
¶10 The juvenile court found all five children dependent and
terminated Mother’s rights to her four daughters, on both alleged statutory
grounds. The court found termination of Mother’s parental rights to be in
the daughters’ best interests. Mother timely appealed, and we have
jurisdiction under A.R.S. §§ 8-235(A) and 12-120.21(A)(1).
DISCUSSION
¶11 Mother does not appeal either statutory termination ground.
She instead argues: (1) the juvenile court violated her due process rights; (2)
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termination is not in her daughters’ best interests; and (3) no reasonable
evidence supports the court’s dependency finding. Mother also seems to
argue DCS did not provide appropriate reunification services. She
acknowledges her failure to object to the manner of services but argues the
omission is due to the court’s failure to appoint new counsel. Absent an
objection challenging the manner of services, Mother has waived her right
to do so for the first time on appeal. See Shawanee S. v. Ariz. Dep’t of Econ.
Sec., 234 Ariz. 174, 179, ¶ 18 (App. 2014).
I. Due Process
¶12 Mother claims the juvenile court denied her a fair trial when
it rejected her request for new counsel and limited her participation in the
proceeding that occurred.
A. Mother’s Right to Counsel
¶13 An indigent parent’s right to counsel in a termination
proceeding “is not co-extensive with a criminal defendant’s right to counsel
under the Sixth Amendment,” but such a right is protected by statute
(A.R.S. § 8-221) and due process. Daniel Y. v. Ariz. Dep’t of Econ. Sec., 206
Ariz. 257, 260, ¶ 14 (App. 2003) (right to counsel in a termination
proceeding is not of “constitutional dimension”).
¶14 In Daniel Y., we noted that a criminal defendant’s rights to
counsel did not include “a right to counsel of his own choosing, nor to a
meaningful relationship with counsel.” Id. at 261, ¶ 20 (citing State v. Henry,
189 Ariz. 542, 546 (1997)). In that context, substitution is required when a
“complete breakdown in communication or an irreconcilable conflict”
occurs between a defendant and her appointed counsel. See State v. Torres,
208 Ariz. 340, 342, ¶ 6 (2004). A court must “make an inquiry on the record”
if an indigent defendant presents specific factual allegations of an
irreconcilable conflict with appointed counsel. See id. at 343, ¶¶ 7–9. We
review the denial of a request for new counsel for an abuse of discretion.
See State v. Paris-Sheldon, 214 Ariz. 500, 504, ¶ 8 (App. 2007). If the juvenile
court met the Sixth Amendment's requirements in the criminal context,
then it cannot be said to have violated a parent’s statutory right to counsel.
¶15 Mother did not assert any allegation of irreconcilable conflict
that necessitated further inquiry. Mother’s appointed counsel made her
first appearance on October 25, 2021. During the December 2021 scheduling
conference, Mother confirmed her desire for a trial without identifying any
dissatisfaction with counsel. On the day of trial, Mother initially failed to
appear, despite counsel’s efforts to email and call her. Mother’s tardy
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entrance led to a short recess and then counsel advised the juvenile court
that Mother wanted to continue with trial. Mother made her first informal
request to substitute counsel while testifying. She renewed that request
after the court gave her another recess. At no point did Mother offer a
justification for her requests or explain her alleged conflict with counsel.
Generalized complaints about counsel are insufficient to support a request
for new counsel. Torres, 208 Ariz. at 343, ¶ 8. A defendant must make
specific, factually based allegations to trigger further inquiry. Id. The court
thus did not abuse its discretion when it denied her request without making
an inquiry on the record.
B. Mother’s Participation in the Hearing
¶16 Mother contends the juvenile court interfered with her
participation in the termination hearing when it “effectively paused” her
testimony and later required her to sit in the back of the courtroom with a
security guard. Because Mother did not raise any alleged due process
violations in the juvenile court, we review her allegations for fundamental
error. See Brenda D. v. Dep’t of Child Safety, 243 Ariz. 437, 447, ¶ 37 (2018).
Under fundamental error review, a parent must establish that (1) an error
occurred, (2) the error goes to the very foundation of a case, and (3) the error
was prejudicial. Id. at 447–48, ¶ 38. To satisfy the prejudice prong, the parent
must affirmatively prove that a reasonable factfinder would have reached
a different result. Id. at 448, ¶ 38–39.
¶17 The juvenile court struck many of Mother’s answers as
nonresponsive and then asked DCS whether it wanted to continue with
Mother’s testimony. DCS replied, “[Mother] can go ahead and be relieved
Your Honor. I will get the testimony elsewhere.” Even assuming, without
deciding, the court committed an error that deprived Mother of her right to
testify, nothing in the record suggests Mother suffered any prejudice. She
asserts she “appeared to have defenses to the allegations,” and without the
court’s interference “she may have been able to adequately present her
case.” But she does not identify specific testimony she would have given or
other evidence she would have presented to discredit the State’s evidence.
Without Mother providing more than mere speculation, we cannot say a
reasonable judge would have reached a different conclusion. Id. at ¶ 38 (a
parent must prove prejudice beyond mere speculation).
¶18 The juvenile court has discretion to control the courtroom and
trial proceedings, and we will not interfere with that discretion unless it
results in a miscarriage of justice or deprives a parent of a fair trial. See
Christy A. v. Ariz. Dep’t of Econ. Sec., 217 Ariz. 299, 308, ¶ 31 (App. 2007).
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Mother interrupted the DCS investigator’s testimony five times, and the
court repeatedly instructed Mother to stop talking out of turn. The court
asked a security guard to sit next to her in the back of the courtroom after
she interrupted the sixth time. The court never asked or ordered Mother to
leave the courtroom. We disagree that the court’s order precluded Mother
from participating in the hearing and conclude the court’s solution fell
within its discretion to facilitate the proceeding.
II. Best Interests
¶19 Even after a statutory ground is established, termination is
only appropriate if the preponderance of the evidence shows termination is
in the children’s best interests. See Alma S. v. Dep’t of Child Safety, 245 Ariz.
146, 149–50, ¶ 8 (2018). Termination is in the children’s best interests if the
children will benefit from termination or will be harmed if the relationship
continues. Shawanee S., 234 Ariz. at 179, ¶ 20. We also look to whether the
current placement is meeting the children’s needs, an adoption plan is in
place, and the children are adoptable. Demetrius L. v. Joshlynn F., 239 Ariz.
1, 4–5, ¶ 12 (2016).
¶20 DCS’s case manager testified that the daughters are adoptable
and in an adoptive placement with paternal aunt, and they share a strong
relationship. The case manager also testified that a continuation of the
parent-child relationship will be detrimental to the daughters because it
will delay permanency. Mother concedes in her opening brief that the
daughters’ placement with paternal aunt is stable, secure, and meets their
needs. The record thus supports the juvenile court’s best interests finding.
III. Dependency
¶21 Because we affirm the juvenile court’s termination order, we
review only whether reasonable evidence supports the dependency
adjudication as to Caleb. See Rita J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 512,
515, ¶ 10 (App. 2000) (termination order renders a dependency finding
moot); see also A.R.S. § 8-539 (“An order terminating the parent-child
relationship shall divest the parent . . . of all legal rights, privileges, duties
and obligations . . . .”).
¶22 We review a dependency order for an abuse of discretion,
Louis C. v. Dep’t of Child Safety, 237 Ariz. 484, 488, ¶ 12 (App. 2015), and view
the evidence in the light most favorable to sustaining the juvenile court’s
findings, Oscar F. v. Dep’t of Child Safety, 235 Ariz. 266, 267, ¶ 6 (App. 2014).
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¶23 A dependent child includes one in need of “proper and
effective parental control and who has no parent or guardian willing to
exercise or capable of exercising such care and control,” or if the child’s
home is unfit because of neglect. A.R.S. § 8-201(15)(a)(i), (iii). Neglect
includes a parent’s inability or unwillingness to provide her child “with
supervision . . . [or] shelter if that inability or unwillingness causes
unreasonable risk of harm to the child’s health or welfare.” A.R.S. § 8-
201(25)(a). DCS must prove a dependency by a preponderance of the
evidence, and the juvenile court has great discretion because the primary
focus is the child’s best interests. See Willie G. v. Ariz. Dep’t of Econ. Sec., 211
Ariz. 231, 235, ¶ 21 (App. 2005).
¶24 Mother argues no reasonable evidence supported the juvenile
court’s dependency findings and the evidence shows she provided Caleb
with adequate care. DCS removed Caleb the day after Mother punched
paternal aunt. One week after DCS filed the dependency petition, Caleb
tested positive for methamphetamine. The case manager testified Caleb
may have ingested methamphetamine while Father supervised him. But the
court found, and Mother agreed, that Caleb was primarily in her care.
Mother testified Father only watched Caleb once, for a three-day period.
Reasonable evidence thus supports a finding that Mother failed to “provide
proper and effective parental care and control”, and that failure created an
unreasonable risk of harm to younger son.
¶25 Reasonable evidence also supports the juvenile court’s
finding that Mother lacks safe and stable housing. DCS did not know of
Mother’s housing situation at the time of the hearing, in part because
Mother refused to communicate with DCS. DCS believed Mother was either
homeless or living in a shed in her father’s backyard. The court thus did not
abuse its discretion by finding Caleb dependent.
CONCLUSION
¶26 We affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
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