from the Superior Court in Mohave County No. S8015JD201400084
The Honorable Richard Weiss, Judge
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
Peter B. Swann delivered the opinion of the court, in which
Presiding Judge Paul J. McMurdie and Judge Patricia A. Orozco
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 PROCEDURAL HISTORY
A.L. is a female child born in July 2012 to Father and Ashley
H. ("Mother"). 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.
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.
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
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.
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.
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, ¶ ...