Donald W. v. Dcs, M.D.
247 Ariz. 9
| Ariz. Ct. App. | 2019Background
- Melody was removed from Mother at birth (Dec 2014) and placed in foster care; Father established paternity in April 2015 and sought custody from California.
- DCS amended the dependency petition to name Father, alleging neglect and abandonment without supporting factual allegations; the juvenile court found Melody dependent as to Father in May 2015.
- California completed an ICPC home study in Dec 2015 approving placement with Father, but DCS delayed transition and later closed the ICPC file; contacts between Father and Melody were restricted early on, later supplemented by daily Glide video messages.
- DCS pursued a transition plan that required frequent in-person visitation; Father had limited funds and DCS’s reimbursement practices were slow and inconsistent, impeding his ability to travel.
- DCS moved to terminate Father’s rights under A.R.S. § 8-533(B)(8)(c) (15 months’ time-in-care); the juvenile court initially denied termination (July 2017) and ordered travel assistance, but later granted termination (July 2018). The appellate court vacated and remanded.
Issues
| Issue | DCS's Argument | Father’s Argument | Held |
|---|---|---|---|
| Whether clear-and-convincing evidence supported termination under A.R.S. § 8-533(B)(8)(c) (15 months’ time-in-care). | DCS: Father failed to remedy the circumstance (lack of bond/substantial failure to visit) despite diligent reunification efforts. | Father: No evidence showed dependency as to him; DCS’s delays and failures caused the lack of bond and impaired reunification. | Vacated: record lacks clear-and-convincing evidence; court erred by not examining totality of circumstances and by allowing DCS to extend custody absent proof Father was unfit. |
| Whether DCS made the required diligent effort throughout the time-in-care. | DCS: Recent efforts (ordered travel, increased visits) demonstrate diligence. | Father: DCS’s intermittent, delayed, and impractical measures (late ICPC work, ineffective transition plan, delayed reimbursements) undermined reunification. | Held for Father: diligence must be assessed over entire dependency; DCS’s conduct was not diligent and contributed to the failure to reunify. |
| Whether an ICPC was required before placing Melody with an out-of-state parent. | DCS: ICPC/approval is required before out-of-state placement. | Father: ICPC is not required where dependency as to out-of-state parent is unsupported; a courtesy check or direct placement may be proper. | Held for Father: ICPC applies to placements of dependent children; if evidence does not support dependency as to the out-of-state parent, DCS cannot use an ICPC delay to justify continued state custody. |
| Whether lack of a parent–child bond (strong foster attachment) alone supports severance. | DCS: Bonding assessment shows strong attachment to foster mother; Father unlikely to remedy in near future. | Father: Lack of bond was largely produced by DCS’s delays and restrictions; inability to replicate foster bond does not prove incapacity to parent. | Held for Father: Lack of bond alone is insufficient; severance requires proof parent is unfit and unlikely to be capable of effective parenting in near future. |
Key Cases Cited
- Roberto F. v. ADES, 232 Ariz. 45 (appellate decision on time-in-care termination framework)
- Jordan C. v. ADES, 223 Ariz. 86 (requirements for cumulative time-in-care and diligence)
- Alma S. v. DCS, 245 Ariz. 146 (termination grounds tied to parental unfitness)
- Mary Ellen C. v. ADES, 193 Ariz. 185 (difference between reasonable and diligent efforts)
- Santosky v. Kramer, 455 U.S. 745 (due process/parental liberty interest in custody)
- Kent K. v. Bobby M., 210 Ariz. 279 (parental fundamental liberty interests)
- ADES v. Leonardo, 200 Ariz. 74 (ICPC applied historically to out-of-state parent placements)
- Pima County Juv. Action No. S-114487, 179 Ariz. 86 (dependency pleading and proof standards)
- In re Alexander, 232 Ariz. 1 (ethical and pleading obligations of counsel)