Edan A. v. Dcs, A.A. ( 2019 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
EDAN A., Appellant,
v.
DEPARTMENT OF CHILD SAFETY; A.A., Appellees.
No. 1 CA-JV 18-0454
FILED 4-25-2019
Appeal from the Superior Court in Maricopa County
No. JD32977
The Honorable Jose S. Padilla, Judge
AFFIRMED
COUNSEL
Arizona Legal Defender’s Office, Phoenix
By Jamie R. Heller
Counsel for Appellant
Arizona Attorney General’s Office, Phoenix
By JoAnn Falgout
Counsel for Appellee Department of Child Safety
Edan A. v. DCS, A.A.
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Paul J. McMurdie delivered the decision of the Court, in
which Judge Randall M. Howe and Judge Jennifer B. Campbell joined.
M c M U R D I E, Judge:
¶1 Edan A. (“Father”) appeals the juvenile court’s order
terminating his parental rights to his child, Amal. For the following reasons,
we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 Father and Salma H. (“Mother”)1 had their first child together,
Ameen, in July 2016. Ameen was born exposed to both amphetamines and
opiates, and he was taken into DCS custody. Father admitted that he was
using opiates and marijuana daily. DCS offered Father drug testing, but he
failed to follow through. Father did not attend any of the court hearings
because he “didn’t even know what [he] was doing half of the time because
[he] was on drugs.” Subsequently, the court terminated his rights to Ameen
in April 2018.
¶3 Amal was born in October 2017 and was immediately
transferred to the NICU because, like her brother, she tested positive for
amphetamines and opiates. Father was present for her birth and
participated in a meeting with DCS where he admitted to using heroin. DCS
referred Father for drug treatment, but he again declined to participate.
Once Amal was released from the NICU in November 2017, DCS placed her
with the family that adopted her brother, where she remained at the time
of the termination hearing.
¶4 DCS, unable to reach Father because the number he provided
was disconnected, submitted a family locate to obtain a new address and sent
Father letters to that address. Father did not have stable housing and was
living in different places. DCS was unable to contact Father from
approximately December 2017 until he was arrested in April 2018. Father
did not attend any court hearings until he was in custody. He testified that
1 Mother’s rights have been terminated and she is not a party to this
appeal.
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Edan A. v. DCS, A.A.
Decision of the Court
he failed to maintain contact with DCS or attend scheduled court hearings
because he was too intoxicated. After speaking with Father at the first
hearing, the case manager sent him a letter with the case manager’s contact
information, but Father never contacted DCS, nor did he write Amal any
letters or send financial support.
¶5 In May 2018, DCS moved to terminate the parent-child
relationship, alleging: (1) substance abuse; (2) abandonment; (3) prior
termination; and in October 2018, DCS amended its motion to add
(4) nine-months’ time-in-care. At the time of the hearing, Father remained
in custody, awaiting trial on seven charges related to various instances of
possession of narcotic drugs and theft. He had not seen Amal since her birth
and had no relationship with her. Following the hearing, the court granted
the termination motion, finding DCS proved by clear and convincing
evidence all four statutory grounds and established by a preponderance of
the evidence that termination was in Amal’s best interests. Father timely
appealed, and we have jurisdiction under Arizona Revised Statutes
(“A.R.S.”) section 8-235(A) and Arizona Rule of Procedure for the Juvenile
Court 103(A).
DISCUSSION
¶6 We view the evidence in the light most favorable to sustaining
the juvenile court’s findings. ADES v. Matthew L., 223 Ariz. 547, 549, ¶ 7
(App. 2010). The juvenile court is in the best position to weigh the evidence,
observe the parties, judge the credibility of witnesses, and make
appropriate findings. Jesus M. v. ADES, 203 Ariz. 278, 280, ¶ 4 (App. 2002).
We accept the juvenile court’s findings of fact unless no reasonable
evidence supports them. Id. If this court determines that reasonable
evidence supports one termination ground, it need not consider the
remaining grounds. Mary Lou C. v. ADES, 207 Ariz. 43, 49, ¶ 14 (App. 2004).
A. The Juvenile Court Did Not Err by Finding DCS Proved by Clear
and Convincing Evidence Grounds for Termination.
¶7 To terminate a parent-child relationship, the juvenile court
must find at least one statutory ground for termination under A.R.S.
§ 8-533(B) by clear and convincing evidence. Kent K. v. Bobby M., 210 Ariz.
279, 284, ¶ 22 (2005). Here, the juvenile court found sufficient evidence
supported termination based on nine-months’ time-in-care, substance
abuse, abandonment, and prior termination.
¶8 Father’s sole argument challenging the sufficiency of
evidence supporting the statutory grounds for termination is that the
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Edan A. v. DCS, A.A.
Decision of the Court
juvenile court erred by terminating his rights under the nine-months’
time-in-care, prior termination, and substance abuse grounds because
reasonable evidence does not support the juvenile court’s finding that DCS
made a diligent effort to provide reunification services. Although the
legislature has prescribed that DCS make “a diligent effort to provide
appropriate reunification services” under A.R.S. § 8-533(B)(8)
(time-in-care), it did not elect to do so under A.R.S. § 8-533(B)(3) (substance
abuse) or A.R.S. § 8-533(B)(10) (prior termination). Father concedes that
A.R.S. § 8-533(B)(3) and (10) do not explicitly require diligent efforts but
argues that our caselaw has held that DCS is nevertheless bound by its
constitutional duty to make “reasonable efforts to preserve the family.” See,
e.g., Mary Ellen C. v. ADES, 193 Ariz. 185, 192, ¶ 32 (App. 1999). Thus, we
understand Father’s argument to be that DCS failed to make reasonable
efforts to preserve the family.
¶9 However, the court also terminated Father’s parental rights
based on abandonment, A.R.S. § 8-533(B)(1), and this court has held that
there is no constitutional requirement to provide reunification services
when a parent has abandoned the child. See Toni W. v. ADES, 196 Ariz. 61,
64, 66, ¶¶ 9, 15 (App. 1999) (recognizing the futility in requiring the State to
offer reunification services to a parent who has abandoned a child). Father
failed to challenge the court’s finding that he had abandoned Amal and
thus he waived any contention that the court erred by granting a
termination on that basis. See Crystal E. v. DCS, 241 Ariz. 576, 577, ¶ 5 (App.
2017). Accordingly, we affirm the court’s order based on abandonment and
need not address the other grounds.2 See Jesus M., 203 Ariz. at 280, ¶ 3 (“If
clear and convincing evidence supports any one of the statutory grounds
on which the juvenile court ordered severance, we need not address claims
pertaining to the other grounds.”).
2 See also Crystal E., 241 Ariz. at 579, ¶ 13 (Thumma, J., concurring)
(“The waiver issue evidenced in this appeal is one that this court,
unfortunately, sees with some frequency. In general, an appeal challenging
fewer than all of the statutory grounds for termination the superior court
found were proven at trial will not result in a reversal, absent a showing the
best interests finding was erroneous. Such an appeal is fatally flawed, from
the outset, and merely delays finality.”).
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B. The Juvenile Court Did Not Improperly Rely on Information
Outside the Record.
¶10 Father challenges all grounds arguing that the court
committed fundamental error by considering information outside the
record “regarding the impact of substance abuse on a parent and services
that may be available in jail and personal knowledge, opinions and beliefs
regarding services available through the jail and access to drugs while
incarcerated.”
¶11 The court made the following statement concerning the
impact of substance abuse on a person’s ability to effectively parent:
Now think of what would happen if you were with the child
and you had to do something during that time frame that
would call for saving the child’s life? So drugs—even if you
are physically there when you are on drugs you are not there.
Not to the level that you need—your child needs you to be.
The court was responding to Father’s testimony that “[he] was too
intoxicated [to show up to court to receive assistance to obtain sobriety],”
he was not able to keep track of court hearings and drug treatment services
because “[he] didn’t even know what [he] was doing half the time because
[he] was on drugs,” and “sometimes . . . [he] didn’t know what [he] was
doing and [had] no memory.” See State v. Peralta, 175 Ariz. 316, 319 (App.
1993) (common-sense considerations based on life experience are a
permissible part of the decision-making process). The remaining statements
that Father identifies as error relate to the availability of services to an
inmate in jail. However, as discussed above, the services DCS offered or
Father participated in are not relevant to termination based on
abandonment.
C. Reasonable Evidence Supports the Juvenile Court’s Best Interests
Finding.
¶12 Finally, Father argues that the court lacked sufficient evidence
to find that termination was in Amal’s best interests. The juvenile court
must find termination is in the child’s best interests 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
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Decision of the Court
must include a finding as to how the child would benefit from a severance
or be harmed by the continuation of the relationship.” Maricopa County 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. DCS, 245 Ariz. 146, 148, ¶ 1 (2018). Relevant factors in making this
determination include whether the current placement is meeting the child’s
needs, an adoption plan is in place, and the child is adoptable. Demetrius L.
v. Joshlynn F., 239 Ariz. 1, 3–4, ¶ 12 (2016).
¶13 At the time of trial, Amal was one year old and placed in the
same foster home that adopted her brother. The case manager reported that
the siblings are close in age and “incredibly bonded.” She also testified that
the foster parents are the only parents Amal knows; they can meet her
emotional, mental health, social, and medical needs; and they are willing to
adopt her. The case manager opined that it was in Amal’s best interests to
remain with her brother in the foster parents’ home. The court found that
Amal was currently in an adoptive placement that was also a sibling
placement and that termination was in her best interests because it allowed
for permanency. Father had no relationship with Amal and had not seen
her since she was born. We find no error in the court’s assessment of the
evidence.
CONCLUSION
¶14 Accordingly, we affirm the juvenile court’s order terminating
Father’s parental rights to Amal.
AMY M. WOOD • Clerk of the Court
FILED: AA
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