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
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
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.
¶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 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 transition plan. The October 2017 DCS Report
stated:
[The case manager] has also consulted with the unit
consultant to come up with a transition plan to transition
[Melody] into father's care, however the unit
psychologist indicated that this needed to be done with the
assigned evaluator that completed the [Bonding Assessment] as
she had more knowledge as to the relationship between the
father and child.
Before
Father's October 2017 visit, the court held a review
hearing and ordered Father to increase his visits to weekly,
six hours on Saturday and six hours on Sunday. DCS again
objected to purchasing Father's airfare, and the court
modified the order to allow DCS to reimburse Father upon
arrival. Accordingly, Father purchased the airfare for the
last weekend of October 2017 and the first weekend in
November 2017.
¶20
When Father arrived for his October visit, DCS did not
immediately reimburse him as the court ordered it to do.
Instead, on November 1, 2017, DCS moved to modify the
court's order, this time requesting permission to
reimburse Father within three weeks of receiving his claim to
allow for approval and processing. Father arrived for his
November 6, 2017 visit before the court ruled on DCS's
motion. Again, DCS did not reimburse Father on arrival. On
November 21, 2017, the court granted DCS's motion,
vacated the October order, and ordered DCS to reimburse
Father "for his travel expenses up to three weeks after
[DCS] receives a receipt for the purchase of travel."
¶21
DCS failed to reimburse Father within the three weeks per the
court order. Because of the out-of-pocket expense and
reimbursement delay, Father was no longer able to afford to
travel to Arizona for the weekly visits, and he canceled the
visits scheduled for the remainder of November. In the DCS
Report dated January 26, 2018, the case manager acknowledged
that "[Father] also reported that he was waiting to get
the flight refunds from DCS so that he could book another
flight." She testified that she did not know how long it
took for Father to receive reimbursement checks, and there
had been a "lack of communication" that caused
"an issue." In February 2018, DCS again moved to
terminate the parent-child relationship based on fifteen
months' out-of-home placement. By then, Melody was a
little over three years old.
July
2018 ...