Opinion
No. 1 CA-JV 13-0265
02-13-2014
JEYME P., Appellant, v. ARIZONA DEPARTMENT OF ECONOMIC SECURITY, K.P., I.P., Appellees.
Maricopa County Public Advocate's Office, Mesa By Suzanne W. Sanchez Counsel for Appellant Arizona Attorney General's Office, Mesa By Nicholas Chapman-Hushek Counsel for Appellee Arizona Department of Economic Security
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
Appeal from the Superior Court in Maricopa County
No. JD22104
The Honorable Joan Sinclair, Judge
AFFIRMED
COUNSEL
Maricopa County Public Advocate's Office, Mesa
By Suzanne W. Sanchez
Counsel for Appellant
Arizona Attorney General's Office, Mesa
By Nicholas Chapman-Hushek
Counsel for Appellee Arizona Department of Economic Security
MEMORANDUM DECISION
Presiding Judge Kent E. Cattani delivered the decision of the Court, in which Judge Margaret H. Downie and Judge Michael J. Brown joined. CATTANI, Judge:
¶1 Jeyme P. ("Mother") appeals the juvenile court's order terminating her parental rights as to her children, K.P. and I.P. Mother argues the court erred by admitting two exhibits into evidence at the termination hearing and that this alleged evidentiary error warrants reversal. For reasons that follow, we affirm.
The children's fathers, although parties to the juvenile court proceedings, are not parties to this appeal.
FACTS AND PROCEDURAL BACKGROUND
¶2 In mid-June 2012, the Arizona Department of Economic Security ("ADES") removed K.P., who was born in January 2009, and I.P., who was born in November 2011, from Mother's care due to concerns of medical neglect. Two weeks later, the court found the children dependent as to Mother due to medical neglect and Mother's unresolved mental health issues.
¶3 After the children were removed, ADES provided Mother with various reunification services, including substance abuse assessment and treatment with random urinalysis testing, psychological and psychiatric evaluations, parent aide services, and visitation with the children. Mother was referred for substance abuse treatment, but the referral was twice closed unsuccessfully, in part because she failed to attend classes. Mother submitted to a psychological examination, but she did not enroll or participate in recommended mental health services.
¶4 Mother also failed to comply with urinalysis testing, providing only one sample of 19 required from mid-April 2013 to the end of August. Although the one sample provided was negative for drugs and alcohol, Mother only sporadically called in to the testing agency and on several occasions failed to test despite having been specifically notified that testing was required.
¶5 Mother missed five of eight visits with the children in January 2013, three of four in February, and all four in March. Mother visited the children once in April 2013, which is the last contact she had with the children. Mother was also inconsistent in attending parent aide skills sessions, missing two of five sessions in January, three of four in February, and all scheduled sessions in March. Mother last attended a parenting skills session in April; the parent aide referral was later closed for non-compliance.
¶6 ADES thereafter moved to terminate Mother's parental rights, alleging grounds of abandonment and nine months' time in care. Although she had been advised of the consequences of failing to appear for termination proceedings, Mother did not attend her scheduled pretrial hearing. The court found that Mother had waived her legal rights and proceeded with the termination hearing in her absence, albeit with counsel representing her interests. See Ariz. Rev. Stat. ("A.R.S.") § 8-863(C); Ariz. R. P. Juv. Ct. ("ARPJC") 66(D)(2); see also A.R.S. § 8-537(C); ARPJC 64(C).
Absent material revisions after the relevant date, we cite a statute's current version.
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¶7 The ADES case worker testified and was subject to cross-examination by Mother's counsel. The court admitted into evidence the case worker's progress reports for April, June, and August 2013, the most recent of which included attached records of Mother's drug testing history from April 29 to August 30, 2013. Over Mother's counsel's objection, the court also admitted as exhibits a drug-testing report covering April 12, 2013 to June 5, 2013 and parent aide notes from January through April 2013. At the close of the hearing, the court terminated Mother's parental rights as to the children on both grounds alleged.
¶8 Mother timely appealed from the court's final written severance order. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and A.R.S. § 8-235(A).
DISCUSSION
¶9 Mother argues the juvenile court erred by admitting as exhibits the April-to-June drug-testing report and the parent aide notes, both of which she now contends were inadmissible hearsay.
¶10 We review the juvenile court's evidentiary rulings for an abuse of discretion and will reverse only for a clear abuse of discretion with resulting prejudice. Lashonda M. v. Ariz. Dep't of Econ. Sec., 210 Ariz. 77, 82-83, ¶ 19, 107 P.3d 923, 928-29 (App. 2005); see also Ruben M. v. Ariz. Dep't of Econ. Sec., 230 Ariz. 236, 239, ¶ 13, 282 P.3d 437, 440 (App. 2012). An evidentiary objection on one ground preserves the issue only as to the ground actually raised; where a party asserts a different ground on appeal, the issue is subject—at most—to review for fundamental, prejudicial error. See Ruben M., 230 Ariz. at 239, ¶ 13, 282 P.3d at 440; see also State v. Henderson, 210 Ariz. 561, 567-68, ¶¶ 19-20, 115 P.3d 601, 607-08 (2005).
¶11 Before the juvenile court, Mother's counsel objected to the drug testing report and parent aide notes only on the basis that "neither [the drug-testing report nor the parent aide notes] are the authenticated copies from the service" and questioned whether these records had been timely disclosed. Neither Mother's authentication objection nor her tentative disclosure objection preserved her hearsay argument for appellate review. See Ruben M., 230 Ariz. at 239, ¶ 13, 282 P.3d at 440.
¶12 Mother claims that, "in a termination proceeding, a lack-of-authentication objection to a purported business record is by its very nature always a hearsay objection." Although a hearsay objection may incorporate an authentication objection, it does not follow that an authentication objection is necessarily a hearsay objection. See Ariz. R. Evid. 901 (general authentication requirement). One element of the business-records hearsay exception may be satisfied by a self-authenticating certification by the custodian of records. See Ariz. R. Evid. 803(6)(D); Ariz. R. Evid. 902(11). But the element could also be established by "testimony of the custodian or another qualified witness." Ariz. R. Evid. 803(6)(D). Moreover, there is another element to the business-records hearsay exception, i.e., the document in question must in fact be a business record, which requires an inquiry separate and apart from authentication.
¶13 Here, the record shows only an objection that the documents were not "authenticated copies." There is no mention of hearsay or the business-records hearsay exception, no indication that Mother intended this to serve as a hearsay objection, and no suggestion that the juvenile court understood it or ruled on it as such. Accordingly, Mother has failed to preserve a hearsay argument for appellate review.
¶14 Even assuming Mother had adequately preserved her hearsay objection, she does not explain how the allegedly erroneous admission of the April-to-June drug-testing report or the parent aide notes resulted in prejudice. See Lashonda M., 210 Ariz. at 82-83, ¶ 19, 107 P.3d at 928-29. Moreover, the core substance of both documents simply mirrored other evidence presented to the juvenile court without objection. For example, the information in the April-to-June drug-testing report was established through the case worker's testimony, the case worker's reports, the end-of-April to end-of-August drug-testing report included as an attachment to the case worker's August report, and Mother's deemed admission to the allegation in ADES's severance motion that she "drug tested one time between April 2013 and June 2013." See A.R.S. § 8-863(C) ("If a parent does not appear at the hearing, the court . . . may find that the parent has waived the parent's legal rights and is deemed to have admitted the allegations of the [severance] petition by the failure to appear."); Manuel M. v. Ariz. Dep't of Econ. Sec., 218 Ariz. 205, 213-14, ¶ 28, 181 P.3d 1126, 1134-35 (App. 2008) (holding failure to appear may result in deemed admission of factual allegations, but not legal conclusions, in severance motion).
¶15 The juvenile court's visitation and parent aide findings were similarly supported by other evidence. Although the parent aide notes offered increased detail, the case worker's testimony and reports provided ample support for the court's findings that "Mother was closed out of parent aide services due to non-compliance" and that "[she] has failed to regularly visit her children since they have been in care." So too, Mother's deemed admission to the severance motion's relevant allegations support those findings. See A.R.S. § 8-863(C); Manuel M., 218 Ariz. at 213-14, ¶ 28, 181 P.3d at 1134-35. Given these independent bases for the court's findings, Mother has not shown prejudice stemming from the alleged evidentiary error, and we therefore affirm. See Lashonda M., 210 Ariz. at 82-83, ¶ 19, 107 P.3d at 928-29. Mother's failure to establish prejudice is fatal to her argument on appeal even assuming, without deciding, that fundamental error review applies in a public severance case. See Ruben M., 230 Ariz. at 239, ¶ 16, 282 P.3d at 440 ("To prevail on a claim of fundamental error, the appellant must also demonstrate prejudice."); see also Monica C. v. Ariz. Dep't of Econ. Sec., 211 Ariz. 89, 94, ¶ 23, 118 P.3d 37, 42 (App. 2005) (reviewing for fundamental error given "the constitutional ramifications inherent in termination proceedings").
CONCLUSION
¶16 For the foregoing reasons, we affirm the juvenile court's order terminating Mother's parental rights as to K.P. and I.P.