Carlos R. v. Dcs
1 CA-JV 16-0372
| Ariz. Ct. App. | Mar 16, 2017Background
- Father kidnapped and assaulted the children’s mother shortly after the children were born; he fled, was later apprehended, pleaded guilty to kidnapping and aggravated assault, and was sentenced to 10.5 years in prison.
- DCS filed a dependency petition and placed the children with maternal grandparents; DCS later moved to terminate Father’s parental rights based on abandonment and length of felony incarceration.
- Father appeared telephonically for the first day of the termination hearing from jail; the court ordered a further ICWA-focused hearing and ordered Father to appear telephonically again.
- At the subsequent hearing Father did not appear by phone but was represented by counsel; DCS presented an ICWA expert who testified that DCS had made active efforts to prevent breakup of the Indian family.
- The superior court found DCS complied with ICWA’s active-efforts requirement and terminated Father’s parental rights; Father appealed challenging the ICWA finding, the weight of DCS testimony, and that proceeding in his absence violated due process.
Issues
| Issue | Father’s Argument | DCS’s Argument | Held |
|---|---|---|---|
| Whether DCS made the ICWA-required "active efforts" to prevent breakup of the Indian family | DCS failed to make active efforts and should have assisted Father with prison-based services | DCS encouraged prison participation, provided updates, facilitated contact and provided services to Mother; incarceration limited reunification options | Court held substantial evidence supports that DCS made active efforts under ICWA |
| Whether the court may credit DCS testimony over Father’s witness on active efforts | Father argued DCS’s testimony was unreliable and the court erred in relying on it | DCS presented an ICWA expert; conflicting evidence permitted the court to weigh credibility | Court held the trial judge properly assessed conflicting evidence and substantial evidence supported DCS testimony |
| Whether termination could proceed while Father was absent from the second-day hearing | Father argued proceeding without his telephonic appearance violated due process | DCS noted Father was represented by counsel who participated; court had ordered telephonic appearance but Father did not appear | Court held no due process violation: telephonic appearance is acceptable when incarceration prevents attendance and counsel’s presence protected Father’s rights |
| Whether incarceration defeats an active-efforts finding | Father argued incarceration prevented meaningful active efforts toward reunification | DCS argued limited rehabilitative options for incarcerated parents; efforts toward non-incarcerated parent and facilitating contact still qualify as active efforts | Court held incarceration limits but does not preclude active efforts; efforts supporting the family and non-incarcerated parent can satisfy ICWA |
Key Cases Cited
- Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246 (2000) (parental custody is a fundamental but not absolute right)
- Yvonne L. v. Ariz. Dep’t of Econ. Sec., 227 Ariz. 415 (App. 2011) (active-efforts ICWA finding requires clear and convincing evidence and involves factual and legal determinations)
- S.S. v. Stephanie H., 241 Ariz. 419 (App. 2017) (active efforts vary with circumstances; ICWA does not enumerate specific services)
- Valerie M. v. Ariz. Dep’t of Econ. Sec., 219 Ariz. 331 (2008) (party seeking termination under ICWA must prove likely serious harm beyond a reasonable doubt)
- People in Interest of S.H.E., 824 N.W.2d 420 (S.D. 2012) (incarcerated parents: court may consider efforts supporting the non-incarcerated parent as preserving the Indian family)
- Leslie C. v. Maricopa Cty. Juv. Ct., 193 Ariz. 134 (App. 1998) (trial court must independently assess evidence)
- Imperial Litho/Graphics v. M.J. Enters., 152 Ariz. 68 (App. 1986) (conflicting evidence may be resolved by trial court if substantial evidence exists)
- John C. v. Sargeant, 208 Ariz. 44 (App. 2004) (telephonic appearance acceptable when physical attendance is prevented by incarceration)
- Christy A. v. Ariz. Dep’t of Econ. Sec., 217 Ariz. 299 (App. 2008) (court may proceed where parent is absent but represented by counsel)
- Monica C. v. Ariz. Dep’t of Econ. Sec., 211 Ariz. 89 (App. 2005) (due process requires notice and opportunity to be heard in termination proceedings)
- Mathews v. Eldridge, 424 U.S. 319 (1976) (due process requires meaningful opportunity to be heard)