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James A. v. Department of Child Safety

Court of Appeals of Arizona, First Division

March 29, 2018

JAMES A., Appellant,

          Appeal from the Superior Court in Mohave County No. S8015JD201400084 The Honorable Richard Weiss, Judge

          Mohave County Legal Defender's Office, Kingman By Eric Devany Counsel for Appellant.

          Jonathan D. Conant, Attorney at Law, PLC, Prescott By Jonathan D. Conant Counsel for Appellees Stephanie L., Ronald L.

          Judge Peter B. Swann delivered the opinion of the court, in which Presiding Judge Paul J. McMurdie and Judge Patricia A. Orozco [1] joined.


          SWANN, Judge.

         ¶1 James A. ("Father") appeals the juvenile court's order terminating his parental rights to A.L. We hold that the juvenile court abused its discretion by precluding admission of a favorable bonding assessment that was disclosed two days late, and by denying Father's motion to continue. We therefore vacate the termination order and remand.


         ¶2 A.L. is a female child born in July 2012 to Father and Ashley H. ("Mother").[2] Mother and Father were never married, and Father's paternity was not legally established until early 2016, after the Arizona Department of Child Safety ("DCS") had already filed a dependency petition for A.L. Father lives in northern Nevada, while A.L. lives with her maternal grandparents in northern Arizona.

         ¶3 In October 2016, DCS moved to withdraw its motion to terminate Father's parental rights and change the case plan to family reunification, arguing that Father had maintained regular family time with A.L. and demonstrated appropriate behavioral changes. But just one month earlier, A.L.'s maternal grandparents had intervened and privately moved to terminate Father's rights to A.L. on the grounds of abandonment. See A.R.S. § 8-533(B)(1). Although the court granted DCS's motion to withdraw its motion to terminate Father's rights, it still moved forward with a severance and adoption plan on the grandparents' private motion. In the same order, the court denied DCS's motion to transfer physical custody of A.L. to Father, and noted DCS's request that Father complete a bonding assessment with A.L. in Arizona.

         ¶4 At the December 2016 pre-trial conference, the court continued the termination hearing from January to March 23, 2017, in part to facilitate completion of the bonding assessment, among other scheduling reasons, and the court admonished the parties to appear physically at future hearings. Then, at the final pre-trial conference in February 2017, the court ordered Father to disclose the completed bonding assessment by March 21, two days before the scheduled termination hearing, and stated that it would order, if necessary, that the assessment be conducted by March 6 to ensure its timely completion and disclosure. Father completed the assessment in Prescott on March 21, and the following night Dr. James Bluth sent his three-page report, which was favorable to Father, to Father's attorney. On March 22, anticipating the late bonding-assessment disclosure, Father moved to continue the termination hearing, and then disclosed the report in the early morning of March 23 - the day set for the hearing.

         ¶5 Father did not appear physically at the termination hearing, and the court denied his motion to appear telephonically. The court noted it would treat Father's non-appearance as an admission of the allegations against him, but still permitted Father's attorney to present evidence and cross-examine witnesses. The court also denied Father's motion to continue, concluding that it was in the best interests of A.L. to get the matter resolved as soon as possible, despite the fact that the court thereby rendered itself unable to consider the bonding assessment it had sought from Dr. Bluth. The court heard testimony summarizing Dr. Bluth's report, but then precluded the report. The court also heard testimony regarding the best interests of A.L. from the grandparents' perspective, and regarding Father's inconsistent record with reunification services.

         ¶6 In its final judgment, the court terminated Father's rights to A.L. based on abandonment and the best interests of A.L. Father timely appeals.


         ¶7 Father appeals the termination based on the preclusion of Dr. Bluth's bonding assessment and, relatedly, the denial of his motion to continue, which would have ameliorated any disclosure or evidentiary issues affecting the bonding assessment. We review evidentiary rulings for an abuse of discretion and resulting prejudice. Lashonda M. v. Ariz. Dept ofEcon. Sec, 210 Ariz. 77, 82-83, ¶ 19 (App. 2005). A court abuses its discretion if it exercises its discretion "on untenable grounds, or for untenable reasons, " id. at 83, ΒΆ ...

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