Jason O. v. Dcs ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
JASON O., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, T.O., B.O., J.O., Appellees.
No. 1 CA-JV 18-0354
FILED 2-26-2019
Appeal from the Superior Court in Navajo County
No. S0900JD201700012
The Honorable Michala M. Ruechel, Judge
AFFIRMED
COUNSEL
The Rigg Law Firm, P.L.L.C., Pinetop
By Brett R. Rigg
Counsel for Appellant
Arizona Attorney General’s Office, Tucson
By Cathleen E. Fuller
Counsel for Appellee Department of Child Safety
JASON O. v. DCS, et al.
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 Jason O. (“Father”) appeals the juvenile court’s order
terminating his parental rights to his three children. For the following
reasons, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 Father and Sarah D. are the biological parents of T.O., B.O.,
and J.O. (the “Children”). 1 Father has an admitted history of substance
abuse, having used methamphetamine on-and-off since he was 13 years
old. Father also has a history of domestic violence incidents and was
convicted of aggravated domestic violence in 2014.
¶3 In June 2017, Father’s older daughter, who is not a subject of
this appeal, contacted law enforcement about concerns that Father was on
drugs and behaving disorderly. Law enforcement responded and arrested
Father. As a result of the June 2017 incident and an incident in March 2017,
Father admitted to a probation violation for the 2014 domestic violence
offense and pled guilty to use of a dangerous drug (methamphetamine) and
two counts of aggravated domestic violence. In November 2017, he was
sentenced to concurrent prison terms totaling five years.
¶4 The Department of Child Safety (“DCS”) took temporary
physical custody of the Children in June 2017 and two months later the
juvenile court found the Children dependent as to Father. DCS offered
Father multiple services, including behavioral health services, urinalysis
testing, substance abuse treatment, parent aide services and parenting skills
training, and supervised visitation. However, due to his incarceration, the
availability of services was limited.
1 The juvenile court terminated Sarah D.’s parental rights to the
Children. She is not a party to this appeal.
2
JASON O. v. DCS, et al.
Decision of the Court
¶5 In May 2018, DCS moved to terminate Father’s parental rights
to the Children based on: (1) neglect; (2) a history of chronic substance
abuse; (3) deprivation of civil liberties due to a felony conviction; and
(4) out-of-home placement for a cumulative total period of nine months or
longer. See Ariz. Rev. Stat. (“A.R.S.”) sections 8-533(B)(2)–(4), (8)(a). After a
termination hearing, the juvenile court terminated Father’s parental rights
to the Children. The court found DCS proved by clear and convincing
evidence the grounds for termination based on neglect, deprivation of civil
liberties due to a felony conviction, and out-of-home placement. The court
also found DCS proved by a preponderance of the evidence that
termination of Father’s parental rights was in the Children’s best interests.
Father timely appealed, and we have jurisdiction pursuant to A.R.S.
§ 8-235(A) and Arizona Rule of Procedure for the Juvenile Court 103(A).
DISCUSSION
¶6 To terminate a parent-child relationship, the 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). The court must also find termination is in the child’s best interests
by a preponderance of the evidence. Id. We review the court’s termination
decision for an abuse of discretion and will affirm unless no reasonable
evidence supports the court’s findings. Mary Lou C. v. ADES, 207 Ariz. 43,
47, ¶ 8 (App. 2004). The juvenile court “is in the best position to weigh the
evidence, observe the parties, judge the credibility of witnesses, and resolve
disputed facts.” ADES v. Oscar O., 209 Ariz. 332, 334, ¶ 4 (App. 2004).
¶7 On appeal, Father does not challenge the court’s finding that
DCS proved by clear and convincing evidence grounds for termination.
Rather, he argues the juvenile court erred by failing to place the Children
with their adult siblings and by denying his motion to consider permanent
guardianship with his adult daughter, which he filed the day of the
termination hearing. He further argues the court’s failure to give
“meaningful consideration” to his permanent guardianship motion and
request for placement violated his due process rights.
¶8 Father lacks standing to raise these arguments because his
rights have been terminated. Permanent guardianship is only appropriate
where the “likelihood that the child would be adopted is remote or
termination of parental rights would not be in the child’s best interests.”
A.R.S. § 8-871(A)(4). Once a court determines termination is in a child’s best
interests and the parent’s rights are terminated, the parent no longer has
standing to challenge placement. Antonio M. v. ADES, 222 Ariz. 369, 370–71,
3
JASON O. v. DCS, et al.
Decision of the Court
¶ 2 (App. 2009); Sands v. Sands, 157 Ariz. 322, 324 (App. 1988) (“[O]nce the
order of severance was issued, the father’s standing as a parent
terminated.”); see also Audra T. v. ADES, 194 Ariz. 376, 377, ¶ 5 (App. 1998)
(juvenile court does not “weigh alternative placement possibilities” in the
best-interests analysis). Here, the juvenile court terminated Father’s rights
after appropriately concluding termination was in the Children’s best
interests.
¶9 At the best-interests stage, we “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.” Alma S. v. DCS, 245 Ariz. 146, 150, ¶ 12 (2018)
(quoting Kent K., 210 Ariz. at 286, ¶ 35). The court’s primary concern during
the best-interests inquiry is the stability and security of the child. Demetrius
L. v. Joshlynn F., 239 Ariz. 1, 4, ¶ 15 (2016). “[T]ermination is in the child’s
best interests if either: (1) the child will benefit from severance; or (2) the
child will be harmed if severance is denied.” Alma S., 245 Ariz. at 150, ¶ 13.
“Courts must consider the totality of the circumstances existing at the time
of the severance determination.” Id. at 150–51, ¶ 13. Whether the current
placement is meeting the needs of the child is an appropriate consideration.
Demetrius L., 239 Ariz. at 4, ¶ 12.
¶10 In making its determination, the juvenile court explained the
Children “have spent several years of their lives in a home where domestic
violence has occurred, where at least one parent has come in and out of their
lives and where siblings have been responsible for their care.” Thus, they
“are in need of stability and security [and] [f]ailure to have that security
would be detrimental” to their wellbeing. The court then found: “the
current placements are providing the [C]hildren with a loving and
nurturing home environment and [they] have been thriving in their care.
The current placements are potential adoptive placements, which shall
provide the [C]hildren with the added benefit of stability and
permanency.” The court further found if the current plan for adoption
cannot move forward, the Children are adoptable, and that termination
would benefit the Children and “achieve the permanency and stability that
an adoption would provide.” Reasonable evidence supports these findings,
and the juvenile court did not err by finding that termination of Father’s
rights was in the Children’s best interests.
4
JASON O. v. DCS, et al.
Decision of the Court
CONCLUSION
¶11 For the foregoing reasons, we affirm the juvenile court’s
termination of Father’s parental rights.
AMY M. WOOD • Clerk of the Court
FILED: AA
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