Charles P., Starlene M. v. Dcs
1 CA-JV 20-0357
| Ariz. Ct. App. | Jul 22, 2021Background
- Four Hopi-enrolled children were removed in April 2018 after reports of parental substance abuse, repeated domestic violence in the children’s presence, unsanitary housing, food scarcity, and truancy.
- The children were found dependent in November 2018; DCS adopted reunification plans requiring sobriety, domestic-violence treatment, mental-health care, housing, and employment; DCS provided referrals to testing, counseling, parent-aide and case-aide services.
- Mother was diagnosed (April 2019) with bipolar II disorder, PTSD, alcohol-use disorder, and a mild intellectual disability; DCS offered psychiatric referral but Mother declined or reported independent treatment; Mother did not timely object to the sufficiency of services during proceedings.
- Father denied substance-abuse and domestic-violence problems, participated sporadically, missed most drug tests, tested positive for alcohol twice, failed to complete domestic-violence treatment, and lacked stable housing.
- DCS changed the plan to severance and adoption; in November 2020 the superior court terminated both parents’ rights under A.R.S. § 8-533(B)(8)(c) (children in out-of-home placement >15 months); parents appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether DCS made "active efforts"/reunification services adequate (Mother) | Mother: DCS failed to provide required active efforts and specific recommended psychiatric evaluation/services. | DCS: offered a broad array of services, assisted with self-referral, and Mother declined or reported independent treatment; Mother waived appellate challenge by not objecting below. | Court: Mother waived timely objection; record shows DCS provided diligent active efforts — finding affirmed. |
| Whether continued custody would likely cause serious emotional or physical damage (ICWA burden) (Father) | Father: evidence insufficient to prove, beyond a reasonable doubt and with expert support, that his custody would likely cause serious harm. | DCS: children exposed to domestic violence, homelessness, unsanitary conditions; Father failed/declined services and denied problems; ICWA expert warned of likely harm. | Court: Evidence (including expert opinion and Father’s failure to remediate) satisfied the ICWA high standard beyond a reasonable doubt — finding affirmed. |
| Whether court had good cause to deviate from ICWA placement preferences (Father) | Father: record lacks factual support for a good-cause deviation from statutory placement order. | DCS: made active efforts to locate ICWA-preferred placements; relatives were unavailable/inappropriate; children bonded to current placement; Hopi Tribe did not object. | Court: Applied BIA Guidelines factors, found active efforts and unavailability of preferred placements and other factors supporting good cause — deviation upheld. |
Key Cases Cited
- Valerie M. v. Ariz. Dep’t of Econ. Sec., 219 Ariz. 331 (2009) (explains ICWA requirements for active efforts and expert testimony to show likely serious harm)
- Shawanee S. v. Ariz. Dep’t of Econ. Sec., 234 Ariz. 174 (App. 2014) (failure to timely object to services waives appellate challenge)
- Steven H. v. Ariz. Dep’t of Econ. Sec., 218 Ariz. 566 (2008) (parent must be shown unlikely to change conduct to satisfy ICWA harm standard)
- Raymond F. v. Ariz. Dep’t of Econ. Sec., 224 Ariz. 373 (App. 2010) (failure to complete reunification services supports finding issues will persist)
- Navajo Nation v. Ariz. Dep’t of Econ. Sec., 230 Ariz. 339 (App. 2012) (review standard for court’s good-cause deviation from ICWA placement preferences)
- E.R. v. DCS, 237 Ariz. 56 (App. 2015) (standard of review for termination orders)
- Mary Lou C. v. Ariz. Dep’t of Econ. Sec., 207 Ariz. 43 (App. 2004) (clarifies clearly erroneous standard for factual findings)