Ernest v. Carylee W. v. Dcs ( 2022 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
ERNEST V., CARYLEE W., Appellants,
v.
DEPARTMENT OF CHILD SAFETY, A.V., A.V., Appellees.
No. 1 CA-JV 21-0277
FILED 5-5-2022
Appeal from the Superior Court in Mohave County
No. S8015JD202000078
The Honorable Megan A. McCoy, Judge Pro Tempore
AFFIRMED
COUNSEL
Your AZ Lawyer, Phoenix
By Robert Ian Casey
Counsel for Appellant Ernest V.
Harris & Winger, P.C., Flagstaff
By Alex R. Rubel
Counsel for Appellant Carylee W.
Arizona Attorney General’s Office, Phoenix
By Emily M. Stokes
Counsel for Appellees
ERNEST V., CARYLEE W. v. DCS, et al.
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Maria Elena Cruz delivered the decision of the Court, in
which Judge Samuel A. Thumma and Judge Michael J. Brown joined.
C R U Z, Judge:
¶1 Ernest V. (“Father”) and Carylee W. (“Mother”) appeal the
superior court’s order terminating their parental rights to their two
children. For the following reasons, we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 In August 2020, the Department of Child Safety (“DCS”) took
custody of the parents’ children, then nine and eleven years old, because
police found drugs and paraphernalia throughout their home. Although
both parents are prohibited from legally possessing firearms, police also
found two loaded, unsecured handguns in the home. Mother identified one
of the guns as hers; police found the second gun in Father’s brother’s closet.
The drugs, paraphernalia, and guns were accessible to the children. Police
charged the parents with various offenses related to the unlawful
possession of drugs and weapons.
¶3 DCS found the home was full of garbage, debris, broken glass,
and knives. Mother admitted she had recently used methamphetamine but
denied the children had access to any drugs. However, the older child’s
hair tested positive for methamphetamine. DCS took custody of the
children and petitioned for a dependency. The court found the children
dependent as to both parents in October 2020 when they did not contest the
dependency allegations.
¶4 The parents received substance-abuse testing and treatment,
individual counseling, and a parent aide with visitation. For the first five
months, Mother engaged in services and completed an intensive outpatient
substance-abuse treatment program. The following month, however, she
relapsed on methamphetamine and stopped drug testing. Soon afterwards,
Mother was convicted of child endangerment based on the events
surrounding the August 2020 investigation, and the court sentenced her to
eighteen months in prison. Father refused to participate in all services,
except visitation.
2
ERNEST V., CARYLEE W. v. DCS, et al.
Decision of the Court
¶5 Ten months after petitioning for a dependency, DCS moved
to terminate the parents’ rights based on neglect and substance-abuse
grounds, with an additional ground of nature-of-felony for Mother and
nine months out-of-home placement for Father. Ariz. Rev. Stat. (“A.R.S.”)
§ 8-533(B)(2), (B)(3), (B)(4), (B)(8)(a). Father then completed two classes, one
for substance abuse and one for parenting. Two months later, the superior
court held a termination adjudication hearing and terminated the parents’
parental rights under the alleged grounds. The parents appealed. This
court has jurisdiction pursuant to A.R.S. § 8-235(A).
DISCUSSION
¶6 This court reviews constitutional issues de novo, Lisa K. v.
Ariz. Dep’t of Econ. Sec., 230 Ariz. 173, 177, ¶ 9 (App. 2012), but “will accept
the juvenile court’s findings of fact unless no reasonable evidence supports
those findings, and we will affirm a severance order unless it is clearly
erroneous.” Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 280, ¶ 4 (App.
2002). “[T]his court will not reweigh the evidence, but will look only to
determine if there is evidence to sustain the court’s ruling.” Mary Lou C. v.
Ariz. Dep’t of Econ. Sec., 207 Ariz. 43, 47, ¶ 8 (App. 2004).
¶7 The rights of parents to custody and control of their own
children, while fundamental, is not absolute. Michael J. v. Ariz. Dep’t of Econ.
Sec., 196 Ariz. 246, 248-49, ¶¶ 11-12 (2000). Severance of a parental
relationship may be warranted where the state proves one statutory ground
under A.R.S. § 8-533 by “clear and convincing evidence.” Id. “Clear and
convincing” means the grounds for termination are “highly probable or
reasonably certain.” Kent K. v. Bobby M., 210 Ariz. 279, 284-85, ¶ 25 (2005)
(citation omitted). The court must also find that severance is in the child’s
best interests by a preponderance of the evidence. Id. at 285, ¶ 25.
¶8 Father first argues that because Arizona public policy favors
the constitutional right to bear arms, the superior court erred when it
considered the presence of loaded firearms in the parents’ home while
terminating Father’s parental rights. To assert a constitutional challenge,
an individual must have suffered “some threatened or actual injury
resulting from the putatively illegal action.” State v. B Bar Enterprises, Inc.,
133 Ariz. 99, 101 n.2 (1982) (quoting State v. Herrera, 121 Ariz. 12, 15 (1978)).
Although Arizona citizens generally have a right to keep and bear arms,
U.S. Const. Amend II, Ariz. Const. Amend. 14, citizens with felony
convictions are prohibited from possessing a firearm. A.R.S. § 13-
3101(A)(7)(b). Father concedes this and therefore has not shown he suffered
either a threatened or an actual injury in this case.
3
ERNEST V., CARYLEE W. v. DCS, et al.
Decision of the Court
¶9 Father nonetheless suggests the court’s action infringed on his
brother’s right to bear arms because one of the firearms belonged to him. A
party may raise a constitutional right for a third person only if the party has
“a substantial relationship to the third person, the third person [is] unable
to assert the constitutional right on his or her own behalf, and the failure to
grant the party standing must result in a dilution of the third person’s
constitutional rights.” B Bar Enterprises, Inc., 133 Ariz. at 101 n.2. There is
no evidence Father’s brother is unable to assert his own constitutional rights
or that the court’s action infringed on his personal right to bear arms.
Regardless, Father overlooks the court’s purpose in considering the
firearms. The court’s focus was not on the adult’s mere possession of the
guns, but rather the danger they posed to the children from being loaded,
unsecured, and within their reach. Accordingly, Father’s argument fails.
¶10 Next, Father asserts the superior court’s best-interests
findings were too formulaic and conclusory to meet constitutional
requirements.
¶11 To comport with due process, the superior court’s
termination order must be written, signed, and set forth supportive
findings of fact for both the termination grounds and the best-interests
determination. A.R.S. § 8-538(A); Ariz. R.P. Juv. Ct. 66(F)(2)(a); Logan B. v.
Dep’t of Child Safety, 244 Ariz. 532, 535, ¶ 1 (App. 2018).
¶12 At a minimum, the superior court must “specify at least one
factual finding sufficient to support each of [its] conclusions of law.” Ruben
M. v. Ariz. Dep’t of Econ. Sec., 230 Ariz. 236, 240, ¶ 22 (App. 2012). The
purpose behind the requirement “is to allow the appellate court to
determine exactly which issues were decided and whether the lower court
correctly applied the law.” Id. at 240, ¶ 24.
¶13 Here, the superior court found severance “would benefit the
children because it would further the plan of adoption, which would
provide the children with permanency and stability.” The court also found
that although the “children are not currently in an adoptive placement,”
they “are considered adoptable[,] and DCS is making efforts to locate an
adoptive placement.” Although the findings are general, they establish
how the children would benefit from severance. Moreover, the parents’
failure to engage in the case plan or make any behavioral changes rendered
the best-interests inquiry simple and straightforward by amplifying the
children’s need for a home free of drug abuse and neglect. The court’s
summarized findings are therefore sufficient to allow appellate review and
do not require more detail to comport with due process. Ruben M., 230 Ariz.
4ERNEST V., CARYLEE W. v. DCS, et al.
Decision of the Court
at 241, ¶¶ 25-27 (“When a question of law is complicated, the level of detail
required for proper review is necessarily greater[,]” but where the
“grounds for the court’s judgment are simple and straightforward . . . more
summary findings are sufficient.”).
¶14 Both parents argue insufficient evidence supports the court’s
best-interests determination. The parents argue the children are only
“theoretical[ly] adoptab[le]” because there was no evidence that their
adoption was likely to occur.
¶15 In addition to finding a statutory ground for termination, the
superior court must also determine what is in the best interests of the child
by a preponderance of the evidence. Kent K., 210 Ariz. at 284, ¶ 22. Once
the court finds a parent unfit under at least one statutory ground for
termination, “the interests of the parent and child diverge,” and the court
proceeds to balance the unfit parent’s “interest in the care and custody of
his or her child . . . against the independent and often adverse interests of
the child in a safe and stable home life.” Id. at 286, ¶ 35. “[A] determination
of the child’s best interest[s] must include a finding as to how the child
would benefit from a severance or be harmed by the continuation of the
relationship.” Maricopa Cnty. Juv. Action No. JS-500274, 167 Ariz. 1, 5 (1990).
Courts “must consider the totality of the circumstances existing at the time
of the severance determination, including the child’s adoptability and the
parent’s rehabilitation.” Alma S. v. Dep’t of Child Safety, 245 Ariz. 146, 148,
¶ 1 (2018).
¶16 First, Mother cites Titus S. v. Department of Child Safety in
which the court stated that “[w]hen a current placement meets the child’s
needs and the child’s prospective adoption is otherwise legally possible and
likely, a juvenile court may find that termination of parental rights, so as to
permit adoption, is in the child’s best interests.” 244 Ariz. 365, 370-71, ¶ 22
(App. 2018) (citation omitted). In that case, the court found the children’s
adoption was unlikely because their consent was statutorily required, and
they “persistent[ly] oppos[ed] adoption.” Id. at 371, ¶¶ 22-24. Here,
however, only the older child’s consent was statutorily necessary to
complete an adoption. A.R.S. § 8-106(A)(3). Although DCS did not provide
evidence of that child’s position, there is no evidence that either of the
children opposed a future adoption.
¶17 Moreover, the parents essentially argue that because DCS had
not yet identified an adoptable home for the children, any future adoption
created only a theoretical benefit. This court, however, has already held
that DCS “need not show that it has a specific adoption plan before
5
ERNEST V., CARYLEE W. v. DCS, et al.
Decision of the Court
terminating a parent’s rights.” In re Maricopa Cnty. Juv. Action No. JS-
501904, 180 Ariz. 348, 352 (App. 1994). Indeed, a court may find that a child
would benefit from termination if there is an adoption plan or if the child is
adoptable, Alma S., 245 Ariz. at 150-51, ¶¶ 13-14, or if the child “would
benefit psychologically from the stability an adoption would provide.” JS-
501904, 180 Ariz. at 352.
¶18 Here, the children are not in an adoptive placement, but the
case manager testified they are adoptable because they are “super cute
kids,” “[e]xtremely smart,” [w]ell-behaved,” [o]utgoing, personable,” and
they had no special needs. Additionally, the case manager testified the
children needed permanency, and an individual had expressed interest in
adopting them. Thus, while the children did not have a specific adoption
plan, reasonable evidence supports the court’s finding that the children’s
adoption is legally possible and likely, making them adoptable.
CONCLUSION
¶19 Because the parents have shown no error, we affirm the
superior court’s order terminating their parental rights.
AMY M. WOOD • Clerk of the Court
FILED: AA
6