Donald W. v. Department of Child Safety

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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 General’s 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 DCS’s 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 Q’Nique 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 Mother’s unborn child. He told Mother that if he was the child’s 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 Melody’s father. Skeptical, Father called Mother’s husband, who informed him Melody was in DCS’s custody. On January 3, 2015, Father called the assigned DCS case manager, Lucero Garcia, explaining that he believed he was Melody’s 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 child’s birth.

          The case manager signed the verification, swearing to the veracity of the petition’s contents. In the amended petition, DCS requested the court issue a judgment of paternity, but it only included Mother’s assertion that her husband was Melody’s father and did not mention that Father had contacted DCS believing he was Melody’s father.

         [¶6] On March 9, 2015, the court held Father’s 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 Melody’s 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 Father’s ex-wife stated: "[he] was a good father, who cares and provides for his children." After interviewing Father’s 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 placement’s 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 mother’s 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 mother’s 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 child’s 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 Father’s 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 manager’s 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 DCS’s 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 wasn’t 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 can’t send the child out there. We know— that’s 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 don’t believe so."

         [¶17] After hearing the evidence, the court stated:

I’m sad to hear that this case has been going on for all this period of time .... But I don’t think ... if you’re [in] a long-distance situation, [and] you could only afford to come once a month or once every two months, [too] bad, we’re going to sever your child from you. I don’t 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 DCS’s motion for termination. The court then ordered DCS to (1) "staff with the unit psychologist regarding all factors in this matter including father’s financial status to develop a transition plan"; (2) provide transportation for Father’s 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 Father’s 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, it’s 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 ... you’re too poor, so we’re going to sever you."

         [¶19] DCS booked and paid for Father’s visit in September 2017, which he attended. But DCS failed to produce the court-ordered ...