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Appeal
from the Superior Court in Maricopa County, No. JD20444, The
Honorable Karen A. Mullins, Judge, The Honorable Jacki
Ireland, Judge Pro Tempore, The Honorable William
Brotherton, Judge (retired), The Honorable Joan A. Sinclair,
Judge. VACATED AND REMANDED
Denise
L. Carroll Esq., Scottsdale, By Denise Lynn Carroll, Counsel
for Appellant
Arizona
Attorney Generals Office, Phoenix, By Sandra L. Nahigian,
Counsel for Appellee
Presiding
Judge Paul J. McMurdie delivered the opinion of the Court, in
which Judge Randall M. Howe and Judge Jennifer B. Campbell
joined.
OPINION
McMURDIE,
Judge:
[¶1]
The issue before the court is whether sufficient evidence
supports the termination of parental rights based on fifteen
months time-in-care. We hold that a termination based on
fifteen-months out-of-home placement requires the court to
consider the totality of the circumstances throughout the
dependency when determining whether the Department of Child
Safety ("DCS") made a diligent effort to provide
appropriate reunification services, including whether DCSs
failure to act reasonably and diligently contributed to the
circumstances causing the child to remain in out-of-home
placement. We further hold that a request through the
Interstate Compact on the Placement of Children
("ICPC") is not required when the evidence does not
support a dependency concerning the out-of-state parent.
Given the absence of evidence in this case, we vacate the
termination judgment.
FACTS AND PROCEDURAL BACKGROUND
[¶2]
Donald W. ("Father") met QNique T.
("Mother") in Sacramento, California, where they
lived together for a short time. After discovering she was
pregnant, Mother moved to Arizona. Given the brevity of the
relationship, Father was unsure if he was the biological
father of Mothers unborn child. He told Mother that if he
was the childs father, he wanted to parent the child. Father
maintained contact with Mother until October 2014. Father
later discovered that Mother had married someone else around
the time she stopped communicating with him.
[¶3]
Mother gave birth to Melody in Arizona on December 5, 2014.
DCS took custody of Melody from the hospital the next day and
placed her in foster care.[1] DCS filed a dependency petition
regarding Melody naming Mother, her husband, and a John Doe.
[¶4]
On January 2, 2015, Mother reached out to Father for the
first time since October 2014 and told him that her husband
was Melodys father. Skeptical, Father called Mothers
husband, who informed him Melody was in DCSs custody. On
January 3, 2015, Father called the assigned DCS case manager,
Lucero Garcia, explaining that he believed he was Melodys
father and requested a paternity test. The case manager told
him that the judge would have to award him a paternity test.
The Dependency Action
[¶5]
DCS amended the dependency petition to include Father. After
alleging that Father was not married to Mother and had not
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established paternity, the amended petition read:
5. Father is unable to parent due to neglect. Father is
unable to provide his child with the basic necessities of
life, including, food, clothing, shelter and support.
6. Father has abandoned his child. Father has failed to
maintain a normal parental relationship without just cause.
Father has failed to send cards, gifts, letters or child
support since the childs birth.
The
case manager signed the verification, swearing to the
veracity of the petitions contents. In the amended petition,
DCS requested the court issue a judgment of paternity, but it
only included Mothers assertion that her husband was
Melodys father and did not mention that Father had contacted
DCS believing he was Melodys father.
[¶6]
On March 9, 2015, the court held Fathers initial dependency
hearing, where he denied the unfitness allegations in the
petition. At the hearing, the court ordered DCS to conduct a
paternity test and scheduled a dependency hearing for May.
The results of the paternity test, dated April 15, 2015,
confirmed Father was Melodys father. Immediately following
receipt of the test results, Father, to show the court that
he cared about his child and wanted custody of Melody,
enrolled in a thirteen-week parenting class, which he
completed in August 2015.
[¶7]
Although the child had been in DCS custody from birth, after
the dependency hearing the court found "[Melody] is
dependent as to [Father] based on inability to parent due to
neglect and abandonment." The court set the case plan as
"family reunification concurrent with severance and
adoption." DCS stated that once Father was on the birth
certificate, it would submit an ICPC.[2] On May 27, 2015, DCS
filed its notice of lodging the order of paternity, which the
court issued two weeks later. By this time, Melody was seven
months old.
[¶8]
Sometime in the summer of 2015, DCS initiated an ICPC with
California. In November 2015, the court held a review
hearing, where it addressed the pending ICPC, directed DCS to
provide a written transition plan to move Melody to
California with Father, and found Melody continued to be
dependent. The ICPC report, dated December 2015, was
favorable to placement with Father. The ICPC social worker in
California interviewed Father in his home, then separately
interviewed his ex-wife, children, and a friend. The report
noted that Fathers ex-wife stated: "[he] was a good
father, who cares and provides for his children." After
interviewing Fathers children at their school, the social
worker further noted that "[i]t is obvious that [the
children] feel loved and cared for by their father and that
he is very involved in their lives." The ICPC concluded:
[Father] had good references and all stated that [he] is an
excellent parent to his children. From observation it appears
that he has a positive relationship with his children and
they look to him for attention and affection. [Father] was
the non offending parent and has been diligent in seeking
custody from the court in Arizona.
* * *
Placement of the child, [Melody], with [Father], is approved.
Please send a [Form] 100(B), confirming the ICPC placement of
the child with the father. Please include any additional
requests for services from Sacramento County, including
courtesy supervision.
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[¶9]
Early in the dependency, Father asked DCS for the foster
placements contact information because he wanted to check on
Melody. DCS refused and did not allow Father to have contact
with the foster mother until Melody was almost one year old.
DCS then gave Father the foster mothers email address, and
the two began communicating weekly with updates and
exchanging pictures of Melody. In January 2016, DCS finally
allowed Father to have contact with Melody, and he began
sending "Glide videos."[3] Father recorded and sent
the video messages to the foster mothers phone. She showed
the videos to Melody and recorded messages from Melody to
send back to Father. Father and the foster mother established
a routine of exchanging Glide videos several times a day,
which they continued throughout the dependency proceedings.
[¶10]
Although California sent DCS the ICPC approval letter in
December 2015, during the February 2016 review hearing, the
case manager stated incorrectly that the ICPC had only been
"verbally approved." Again, the juvenile court
found Melody continued to be dependent. Father attended the
February 2016 hearing and anticipated visiting Melody for the
first time in person while in Arizona. Because DCS failed to
communicate with Father regarding a visit before the hearing,
no visit was scheduled. However, Father was able to see
Melody for one hour at a fast-food restaurant with the foster
mother.
[¶11]
In April 2016, the case manager finally emailed Father a
transition plan:
Just to reiterate our conversation from today. You will try
to come out twice a month if possible to Arizona to visit
Melody as much as you can. You will also begin calling Melody
every Monday, Wednesday, Fridays [sic] and Sunday at 630pm.
The phone call should be about 5-10 minutes. This way Melody
gets to know your voice and also recognize it. Lastly, you
will notify me at least two weeks in advance when you plan to
visit Melody so that I can submit a case aide request.
Father
began calling Melody as directed. In addition, he continued
to exchange the Glide videos, and he rented a car and drove
his mother, father, and son to Arizona for a weekend visit to
meet Melody. In the June 2016 DCS Report, while still
reporting that "[Father] will need to be further
assessed to determine appropriate services," the case
manager stated:
[I have] attempted to coordinate with [Father] to set up a
transition plan for [Melody] to be moved into his care,
however he has failed to follow through with the transition
plan. [DCS] no longer believes that it is in the childs best
interest to place her in the care of his [sic] father as he
does not appear to be committed in the reunification process.
[¶12]
On July 12, 2016, DCS moved to terminate Fathers rights
based on abandonment and fifteen months time-in-care. At the
time of the motion, Melody was 19 months old, and DCS was
still making efforts to locate an adoptive placement. Despite
DCS moving for termination, Father continued to visit Melody
when he was financially able and consistently communicated
with her through Glide videos.
[¶13]
When reviewing the case plan in September 2016, the Foster
Care Review Board expressed its concern with the case
managers lack of communication. It reported that she was not
present for the review; attempts to contact the case manager
and her supervisor were unsuccessful; and she failed to
provide a current case plan document for review. The Board
determined "there are significant service gaps or system
problems" and it was "unable to conduct a thorough
review" because it had "inadequate
information."
[¶14]
By October 2016, DCS closed the ICPC because there had
"not been any progress made toward transitioning Melody
to [Father]." The October 2016 DCS Report stated that
because Father had only visited Melody twice, he "[did]
not appear to be
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interested in reunifying with his daughter." In April
2017, when Melody was two and a half years old, the juvenile
court ordered Father to complete a Bonding/Best Interest
Evaluation ("Bonding Assessment"), which was
conducted by Dr. Mary Oakley on June 6, 2017.
July 2017 Termination Hearing
[¶15]
The court heard evidence on DCSs termination motion in July
2017 ("2017 Hearing"). At the hearing, the case
manager testified that DCS wanted once-a-month visits at
first, then intended to increase the number of required
visits before reunification even though Father "had
indicated that he had money issues, financially, and he
wasnt able to complete" once-a-month visitation.
[¶16]
At the hearing, the case manager was asked why DCS had not
sent Melody to California to visit Father. She stated:
"Because we just cant send the child out there. We
know— thats not the process. We normally increase
contact with the parents." The court questioned whether
DCS had a program to offer financial assistance to
out-of-state parents. The case manager responded: "Not
that I know of, no." When asked if DCS could have moved
Melody into a California placement to be closer to Father,
she responded: "I dont believe so."
[¶17]
After hearing the evidence, the court stated:
Im sad to hear that this case has been going on for all this
period of time .... But I dont think ... if youre [in] a
long-distance situation, [and] you could only afford to come
once a month or once every two months, [too] bad, were going
to sever your child from you. I dont think that was what was
intended [under the time-in-care statute].
The
court concluded it could not "sever rights, because
people are poor" and denied DCSs motion for
termination. The court then ordered DCS to (1) "staff
with the unit psychologist regarding all factors in this
matter including fathers financial status to develop a
transition plan"; (2) provide transportation for
Fathers visits, including airfare and transportation to and
from the airport and the visitation center to see Melody; and
(3) have the visits occur once a month, pending the opinion
of the unit psychologist and the transition plan.
[¶18]
DCS objected to paying for Fathers airfare, stating it
"is the most expensive way" and that DCS does not
have "unlimited resources." However, the court
determined, "as [the case manager] stated, its a long
drive from Sacramento," and flying was the most
reasonable option. The court held that the "option needs
to at least be tried" because "I cannot, in good
conscience, say ... youre too poor, so were going to sever
you."
[¶19]
DCS booked and paid for Fathers visit in September 2017,
which he attended. But DCS failed to produce the
court-ordered ...