Roberto A. v. Dcs ( 2016 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
ROBERTO A., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, L.A., N.A., Appellees.
No. 1 CA-JV 15-0302
FILED 1-26-2016
Appeal from the Superior Court in Maricopa County
No. JD24065
The Honorable Sally S. Duncan, Judge
AFFIRMED
COUNSEL
David W. Bell, Higley
By David W. Bell
Counsel for Appellant
Arizona Attorney General’s Office, Phoenix
By JoAnn Falgout
Counsel for Appellee Department of Child Safety
ROBERTO A. v. DCS, et al.
Decision of the Court
MEMORANDUM DECISION
Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Peter B. Swann and Judge Donn Kessler joined.
W I N T H R O P, Judge:
¶1 Roberto A. (“Father”) appeals the juvenile court’s order
terminating his parental rights to L.A. and N.A. (collectively, “the
children”). Father does not contest the court’s finding of four statutory
grounds for severance, but contends the juvenile court erred in concluding
severance was in the children’s best interest. For the following reasons, we
affirm.
FACTS AND PROCEDURAL HISTORY1
¶2 Father and S.A. (“Mother”) are the biological parents of the
children, who were born in 2006 and 2009, respectively.2 In May 2013, the
Department of Child Safety (“DCS”) received a report stating that Father
was selling drugs from the home and neglecting the children. A DCS case
manager investigated and requested that the parents clean their apartment
and submit to urinalysis (“UA”) testing through TASC; both parents tested
1 As the trier of fact in a termination proceeding, the juvenile court “is
in the best position to weigh the evidence, observe the parties, judge the
credibility of witnesses, and resolve disputed facts.” Jordan C. v. Ariz. Dep’t
of Econ. Sec., 223 Ariz. 86, 93, ¶ 18, 219 P.3d 296, 303 (App. 2009) (quoting
Ariz. Dep’t of Econ. Sec. v. Oscar O., 209 Ariz. 332, 334, ¶ 4, 100 P.3d 943, 945
(App. 2004)). We therefore view the evidence and reasonable inferences to
be drawn from it in the light most favorable to affirming the juvenile court’s
order. Ariz. Dep’t of Econ. Sec. v. Matthew L., 223 Ariz. 547, 549, ¶ 7, 225 P.3d
604, 606 (App. 2010).
2 The juvenile court also terminated Mother’s parental rights, but she
is not a party to this appeal. Mother has three other children with different
fathers, and although those children and their fathers were also subject to
the dependency petition in this case, none of them were subject to the
severance order at issue in this appeal.
2
ROBERTO A. v. DCS, et al.
Decision of the Court
positive for morphine and other illegal substances. The family moved
before DCS could again contact them.
¶3 On July 23, 2013, DCS received another report regarding the
family at a new address. The DCS case manager visited the family’s
apartment and found it “was filthy and infested with cockroaches” and
“smelled like urine.” Moreover, the children appeared “dirty” with
unclean clothing and had lice. Mother and Father admitted using heroin in
the home while the children were present. DCS took L.A., N.A., and their
three older half-siblings into protective custody that day.
¶4 On July 26, 2013, DCS filed a dependency petition, alleging
Father and Mother were abusing illegal substances and neglecting the
children.3 The petition noted in part that the parents had been evicted from
two apartments in the previous six months, and “[t]he last apartment in
which the children were living was infected with bedbugs and all of their
clothes had to be abandoned.”
¶5 In October 2013, the juvenile court found the children
dependent as to both parents and approved a case plan of family
reunification. DCS offered the parents an array of services designed to
reunify the family, including UA testing through TASC, substance abuse
assessment and treatment through TERROS, psychological consultations
and evaluations, individual counseling, parent aide assistance, visitation,
and bus passes. DCS also asked Father to complete classes addressing
domestic violence and substance abuse. However, Father did not comply
with the UA testing, substance abuse assessment and treatment,
psychological evaluation, parent aide services, and counseling services
offered by DCS. In fact, both parents continued to use illegal substances,
failed or refused to engage in the recommended and offered services and
classes, frequently failed to attend visits with the children, and failed to
obtain stable housing. At one point, Mother advised the DCS case manager
3 At the outset of these proceedings, the children were taken into care
by Child Protective Services (“CPS”), formerly a division of the Arizona
Department of Economic Security (“ADES”), and ADES filed the
dependency petition in this case. In May 2014, however, CPS was removed
as an entity within ADES and replaced by DCS, an entity outside of ADES.
See 2014 Ariz. Sess. Laws, ch. 1, §§ 6, 20, 54 (2d Spec. Sess.). Accordingly,
DCS was substituted for ADES in this matter, see ARCAP 27, and references
to DCS in this decision encompass both ADES and the former CPS.
3
ROBERTO A. v. DCS, et al.
Decision of the Court
that she and Father “were living in abandoned houses and eating out of
dumpsters.”
¶6 In June 2014, DCS moved to terminate the parents’ parental
rights to L.A. and N.A. As to Father, DCS initially alleged three grounds
for termination: (1) abandonment under Arizona Revised Statutes
(“A.R.S.”) section 8-533(B)(1); (2) chronic substance abuse under A.R.S. § 8-
533(B)(3); and (3) at least nine months’ out-of-home placement under A.R.S.
§ 8-533(B)(8)(a).4 At the time, DCS planned to place the children with their
paternal grandmother (“Grandmother”) in California and had started the
approval process under the Interstate Compact on the Placement of
Children (“ICPC”). See generally A.R.S. §§ 8-548 to -548.06.
¶7 Also in June 2014, Father was arrested for possession or use
of a narcotic drug (heroin). At the time of his arrest, he was on probation
in two prior criminal cases. In July 2014, Father pled guilty to possession
or use of a narcotic drug, and the trial court sentenced him to 2.5 years’
imprisonment. On November 26, 2014, DCS amended the termination
motion to add two additional grounds for severing Father’s parental rights:
(1) the length-of-sentence ground under A.R.S. § 8-533(B)(4) and (2) the
fifteen months’ out-of-home placement ground under A.R.S. § 8-
533(B)(8)(c).
¶8 At the July 30, 2015 severance hearing, Father testified that
although at one time he had expected to be released early—in May or
August 2016—he had incurred several disciplinary infractions and his
expected release date had been moved back to November 12, 2016. He also
testified he had sent the children letters while in prison, had completed a
“positive parenting class,” had recently been accepted into a nine-month
substance abuse class entitled “Men in Recovery,” and had attended
NA/AA meetings and “school.” He admitted, however, that while he was
in prison, he was unable to meet any of the children’s basic needs such as
food, housing, or medical care.
¶9 The DCS case manager, Heather Mills, testified at length and
addressed whether it would serve the children’s best interest to terminate
Father’s parental rights. Mills testified that if Father’s parental rights were
not terminated, Father would need to engage in services to demonstrate his
sobriety and stability after his release from prison, which would require
4 We cite the current version of all statutes cited because no changes
material to our decision have occurred since the severance.
4
ROBERTO A. v. DCS, et al.
Decision of the Court
that the case remain open for at least a year after his release and perhaps
longer—well into 2017 and possibly into 2018.5 She opined that waiting for
these events to happen would not serve the children’s best interest,
particularly because the children had already been in out-of-home care for
two years, and it was “in their best interests to have some sort of stability
[and] permanency” and not “have to worry about somebody coming in and
moving them.”
¶10 During the time the case had been open, the children had
resided in four separate placements, and although they were in a licensed
foster placement, they were not in an adoptive placement. Mills stated,
however, that the children were thriving in their current placement and the
behavioral issues they had previously displayed had subsided. Further,
although there were no identified prospective adoptive placements at the
time of the hearing, Mills believed the children were “very much”
adoptable, in part because they were “great girls to be around.” Mills
explained the children had not yet been placed in an adoptive home
because Grandmother had initially sought to have the children placed with
her in California and the ICPC process had taken time, but Grandmother
had recently advised that she was unable to take the children and did not
know of any other family members willing or able to care for the children.
¶11 Mills agreed it might be more difficult to place older children
in an adoptive home because adoptive families “are usually looking for
infants and toddlers.” She also explained, though, that it would likely be
even more difficult to find adoptive homes for the children in a year or two
(i.e., if the court were to wait longer to see if the parents could be
rehabilitated) because they “would have more behaviors” after being in
foster care for the additional time. She explained that, in her experience, as
children in foster care get older, the probability increases that they will
engage in risky behaviors such as drug use, promiscuity, and running
away. For these reasons, it would not get easier to find adoptive placements
as the children grew older.
¶12 Mills also testified the children would benefit if their parents’
rights were terminated immediately because “it would give [the children]
some sort of hope to move forward [and] to leave it all behind.” Moreover,
it would provide them with permanency and stability. Mills agreed that
some prospective adoptive placements are interested only in children who
5 Similarly, Mills explained that Mother would have to demonstrate at
least six months to a year of sobriety and stability before the children could
be returned to her care.
5
ROBERTO A. v. DCS, et al.
Decision of the Court
are legally free for adoption, and she believed L.A. and N.A. could be
adopted within the next two years if the parents’ rights were severed
immediately.
¶13 At the conclusion of the hearing, the juvenile court found DCS
had met its burden of proving by clear and convincing evidence the alleged
statutory grounds for severance and that severing both Father’s and
Mother’s parental rights was in the children’s best interest. In a signed
minute entry order filed September 2, 2015, the court granted termination
of the parents’ parental rights. As to Father, the court found DCS had
proven grounds for severing his parental rights under A.R.S. § 8-533(B)(1)
(abandonment), (B)(3) (chronic substance abuse), (B)(4) (length of sentence),
and (B)(8)(a) (at least nine months’ out-of-home placement).
¶14 Father filed a timely notice of appeal. We have appellate
jurisdiction pursuant to the Arizona Constitution, Article 6, Section 9;
A.R.S. § 8-235(A); and Rule 103(A) of the Arizona Rules of Procedure for
the Juvenile Court.
ANALYSIS
¶15 Father appeals only the juvenile court’s finding that
termination of his parental rights was in the children’s best interest. Father
contends severance “effectively orphans these children,” and freeing the
children for adoption is “an illusory benefit” because they are not placed in
adoptive homes, there is no adoptive plan, and “the likelihood of them
being adopted is very much in doubt.” He further contends, “[t]here would
have been no harm in preserving [his] rights” until an adoptive home could
be identified. Because reasonable evidence supports the juvenile court’s
findings that terminating Father’s parental rights would benefit the
children, while continuing the dependency would harm them, we affirm.
¶16 On appeal, we do not reweigh evidence and will affirm the
juvenile court’s fact findings if supported by reasonable evidence. Denise
R. v. Ariz. Dep’t of Econ. Sec., 221 Ariz. 92, 93–94, ¶ 4, 210 P.3d 1263, 1264–65
(App. 2009); Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 282, ¶ 12, 53
P.3d 203, 207 (App. 2002). Moreover, “[t]he juvenile court will be deemed
to have made every finding necessary to support the judgment.” Matthew
L., 223 Ariz. 547, 549, ¶ 7, 225 P.3d 604, 606 (App. 2010) (citations omitted).
¶17 Parental rights in the care, custody, and management of their
children are fundamental, but not absolute. Kent K. v. Bobby M., 210 Ariz.
279, 284, ¶ 24, 110 P.3d 1013, 1018 (2005) (citing Santosky v. Kramer, 455 U.S.
745, 753 (1982); Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 248,
6
ROBERTO A. v. DCS, et al.
Decision of the Court
¶¶ 11-12, 995 P.2d 682, 684 (2000)). A court may sever those rights if it finds
clear and convincing evidence of one of the statutory grounds for
severance, and finds by a preponderance of the evidence that severance is
in the best interest of the children. See A.R.S. §§ 8-533(B), -537(B); Kent K.,
210 Ariz. at 281–82, 288, ¶¶ 7, 41, 110 P.3d at 1015–16, 1022. Father does not
contest the juvenile court’s findings on the statutory grounds and, thus, has
waived any argument on those grounds in this appeal. See Childress Buick
Co. v. O’Connell, 198 Ariz. 454, 459, ¶ 29, 11 P.3d 413, 418 (App. 2000) (stating
that issues not raised in appellate briefs are deemed waived).
¶18 In proving severance is in the children’s best interest, DCS
must show “how the child would benefit from a severance or be harmed by
the continuation of the relationship.” Maricopa Cty. Juv. Action No. JS-
500274, 167 Ariz. 1, 5, 804 P.2d 730, 734 (1990) (citations omitted). The
juvenile court may find that severance affirmatively benefits a child because
an adoption plan exists, the child is adoptable, or the child is more stable in
an existing placement. See Maricopa Cty. Juv. Action No. JS-8490, 179 Ariz.
102, 107, 876 P.2d 1137, 1142 (1994) (recognizing the court may “consider
evidence of whether the needs of the child are being met”); Juv. Action No.
JS-500274, 167 Ariz. at 6–7, 804 P.2d at 735–36; Oscar O., 209 Ariz. at 334,
¶ 6, 100 P.3d at 945. Severance may benefit a child if it would free the child
for adoption or if the child “would benefit psychologically from the stability
an adoption would provide.” Maricopa Cty. Juv. Action No. JS-501904, 180
Ariz. 348, 352, 884 P.2d 234, 238 (App. 1994).
¶19 The court may also find severance is in a child’s best interest
if it eliminates a threat or detriment to the child if the relationship between
the parent and the children were allowed to continue. See Juv. Action No.
JS-500274, 167 Ariz. at 6–7, 804 P.2d at 735–36; Oscar O., 209 Ariz. at 334,
¶ 6, 100 P.3d at 945. “In most cases, the presence of a statutory ground will
have a negative effect on the children.” Maricopa Cty. Juv. Action No. JS-
6831, 155 Ariz. 556, 559, 748 P.2d 785, 788 (App. 1988); see also Kent K., 210
Ariz. at 286, ¶ 35, 110 P.3d at 1020 (stating that, in a best interest inquiry,
“we can presume that the interests of the parent and child diverge because
the court has already found the existence of one of the statutory grounds
for termination by clear and convincing evidence” (citation omitted)).
Thus, “where there is clear and convincing evidence of parental unfitness
which has not been remedied notwithstanding the provision of services by
[DCS] and which detrimentally affects the child’s well-being, severance
may be warranted and appropriate even in the absence of a plan for
adoption.” Pima Cty. Juv. Action No. S-2460, 162 Ariz. 156, 158, 781 P.2d 634,
636 (App. 1989).
7
ROBERTO A. v. DCS, et al.
Decision of the Court
¶20 In this case, reasonable evidence in the record supports the
juvenile court’s best interest findings, which demonstrate both affirmative
benefits from severance and the elimination of potential threats and
detriments in continuation of the relationship. Although Father contends
that severance “orphans” the children because DCS currently does not have
an adoptive plan for them, the juvenile court found it was in the children’s
best interest to terminate the parents’ rights “notwithstanding the fact that
they are not in an adoptive placement.” The court found severance would
benefit the children because it would “provide the children permanency
and stability and a higher likelihood of adoption” with the parental rights
terminated. These findings are supported by the testimony of Mills, the
case manager, who testified that although an adoptive placement had not
yet emerged, the children were “very much” adoptable and would benefit
psychologically from the permanence and stability an adoption would
provide. “Adoptable” status is enough of an objective benefit to legally
support the “best interest” prong of the severance statute. See Juv. Action
No. JS-501904, 180 Ariz. at 352, 884 P.2d at 238 (stating the government did
not need to show an adoption plan existed, but did need to show the child
is adoptable). Moreover, Mills explained the children were thriving in their
current placement, see Juv. Action No. JS-8490, 179 Ariz. at 107, 876 P.2d at
1142, while Father was incarcerated and unable to meet even their most
basic needs. Thus, even without an adoptive placement waiting, the
evidence in the record demonstrates the children’s needs are being met in
their current placement, which also supports the juvenile court’s best
interest finding. See Audra T. v. Ariz. Dep’t of Econ. Sec., 194 Ariz. 376, 377,
¶ 5, 982 P.2d 1290, 1291 (App. 1998).
¶21 The court additionally found that continuing the parent-child
relationship would harm the children because Father would not be released
from prison until November 2016, at which point a “lengthy reunification
process” would begin. The court noted that the children had already “been
in four placements, which is not a way for children to live.” These findings
were supported by Father’s and Mills’ testimony, as well as by exhibits
presented at the hearing. At the time of the severance hearing, the children
had already been in foster care for two years—while Father at first failed to
engage in reunification services and then became incarcerated. Moreover,
waiting an additional two or more years in foster care for Father to be
released and then attempt reunification could both lead the children to
engage in risky behaviors and decrease their chances of being adopted.
Thus, severance is warranted in this case because evidence of parental
unfitness exists that “detrimentally affects the child[ren]’s well-being,” Juv.
Action No. S-2460, 162 Ariz. at 158, 781 P.2d at 636, and would cause them
8
ROBERTO A. v. DCS, et al.
Decision of the Court
to “be harmed by the continuation of the relationship.” Juv. Action No. JS-
500274, 167 Ariz. at 5, 804 P.2d at 734 (citations omitted).
¶22 The best interest finding is further supported by the fact that
Father does not contest any of the statutory grounds for severance. As we
have recognized, the presence of the conceded statutory grounds for
severance may also negatively affect the children. Bennigno R. v. Ariz. Dep’t
of Econ. Sec., 233 Ariz. 345, 350, ¶ 23, 312 P.3d 861, 866 (App. 2013). The
termination grounds in this case—abandonment, chronic substance abuse,
length-of-sentence, and nine months’ out-of-home placement—are “serious
in nature, involving grave misconduct . . . or complete abdication of
parental responsibilities,” Kent K., 210 Ariz. at 286 n.8, ¶ 35, 110 P.3d at 1020
n.8, and support a finding that preserving the parent-child relationship
would harm the children.
CONCLUSION
¶23 Because reasonable evidence supports the conclusion that the
children would both benefit from having Father’s parental rights
terminated and be harmed by continuing the parent-child relationship, we
affirm the juvenile court’s best interest finding and order terminating
Father’s parental rights to the children.
:ama
9