Antonio M. v. Ades and Daniel M. ( 2009 )

FILED BY CLERK
IN THE COURT OF APPEALS MAY 14 2009
STATE OF ARIZONA COURT OF APPEALS
DIVISION TWO DIVISION TWO
ANTONIO M., )
)
Appellant, ) 2 CA-JV 2008-0133
) DEPARTMENT B
v. )
) OPINION
ARIZONA DEPARTMENT OF )
ECONOMIC SECURITY and )
DANIEL M., )
)
Appellees. )
)
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY
Cause No. 14310300
Honorable Charles S. Sabalos, Judge
AFFIRMED
Child Advocacy Clinic
By Paul D. Bennett, a clinical professor appearing
under Rule 38(d), Ariz. R. Sup. Ct., and
Lindsey Richardson and Edward Mendez,
students certified pursuant to Rule 38(d) Tucson
Attorneys for Appellant
Terry Goddard, Arizona Attorney General
By Pennie J. Wamboldt Tucson
Attorneys for Appellee Arizona
Department of Economic Security
V Á S Q U E Z, Judge.
¶1 Appellant Antonio M., father of Daniel M., born in October 2007, challenges
the juvenile court’s order terminating his parental rights pursuant to A.R.S. § 8-533(B)(8)(a)
(nine-month, out-of-home placement) and § 8-533(B)(4) (deprivation of civil liberties due
to a felony conviction and imprisonment). Antonio contends the juvenile court erred by
finding it was in Daniel’s best interests to be placed for adoption with his foster parents
instead of his paternal grandmother. He also contends the court erred by failing to enter
specific factual findings relating to the factors juvenile courts should consider before
terminating a parent’s rights pursuant to § 8-533(B)(4). See Michael J. v. Ariz. Dep’t of
Econ. Sec., 196 Ariz. 246, ¶ 29, 995 P.2d 682, 688 (2000).
¶2 As Antonio points out in his opening brief, at the severance hearing, he
admitted the two statutory grounds the Arizona Department of Economic Security (ADES)
had alleged in its motion for termination of his parental rights. He only contested whether
severance was in Daniel’s best interests. On appeal, he first contends the juvenile court erred
in finding it was in Daniel’s best interests to continue his placement with and adoption by his
foster parents, in light of the “statutory preferences” set forth in A.R.S. § 8-514(B) that a
child be placed with a family member. ADES is correct that, once Antonio’s parental rights
were terminated, he no longer had standing to challenge Daniel’s placement and anticipated
adoption. See Sands v. Sands, 157 Ariz. 322, 324, 757 P.2d 126, 128 (App. 1988). The court
was, indeed, required to consider whether placement with the grandmother was appropriate,
see A.R.S. § 8-538(C), but only after finding first that ADES had established sufficient
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grounds for terminating Antonio’s rights. See § 8-538(B) (“If the court finds grounds for the
termination of the parent-child relationship it shall terminate the relationship and . . .
[a]ppoint an individual as guardian of the child.”). Thus, the court’s duty to “also consider
the best interests of the child” when it considers grounds for termination, see § 8-533(B), is
separate from and preliminary to its determination of placement after severance. As we have
previously noted, the court does not “weigh alternative placement possibilities to determine”
if severance is in the child’s best interests, although it may consider “the immediate
availability of an adoptive placement” or “whether an existing placement is meeting the
needs of the child.” Audra T. v. Ariz. Dep’t of Econ. Sec., 194 Ariz. 376, ¶ 5, 982 P.2d 1290,
1291 (App. 1998). Once the court had determined severance was in Daniel’s best interests
and terminated Antonio’s parental rights, he could no longer challenge Daniel’s placement.
See Sands, 157 Ariz. at 324, 757 P.2d at 128.
¶3 Moreover, even assuming the issue of placement could be viewed as
inextricably intertwined with the issue of Daniel’s best interests to terminate Antonio’s
rights, there is reasonable evidence in the record to support the court’s finding that placement
with the paternal grandmother was not in Daniel’s best interests. See Jesus M. v. Ariz. Dep’t
of Econ. Sec., 203 Ariz. 278, ¶ 4, 53 P.3d 203, 205 (App. 2002) (accepting factual findings
when supported by reasonable evidence). That evidence included the grandmother’s criminal
history and the fact that the foster parents wished to adopt him.
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¶4 Next, Antonio contends that, with respect to the termination of his parental
rights pursuant to § 8-533(B)(4), the juvenile court did not satisfy its “independent obligation
to evaluate the Michael J. factors to ensure that the sentence [of imprisonment was] long
enough to deprive a child of a normal home for a period of years and to make a fair
assessment of the child’s best interests.” As ADES correctly points out, however, Antonio
does not challenge the termination of his rights pursuant to § 8-533(B)(8)(a). Because we
can affirm the court’s order as long as there is one valid ground for terminating a parent’s
rights, Michael J., 196 Ariz. 246, ¶ 27, 995 P.2d at 687, we need not address this issue
because it relates solely to the termination of Antonio’s rights under § 8-533(B)(4).
¶5 We note, in any event, the juvenile court stated it had considered “all of the
circumstances of this case and the reasoning and relevant factors articulated by the Arizona
Supreme Court in Michael J.” and found Antonio “has been deprived of [his] civil liberties
due to a conviction of a felony and his sentence is of such length that the child will be
deprived of a normal home for a period of years.” The court entered factual findings
pertaining to the limited amount of time Antonio had spent with thirteen-month-old Daniel;
the fact that Antonio twice had been incarcerated while the dependency action was pending;
that Antonio’s current, five-year prison term was imposed in October 2008; and the fact that
Antonio would not even be eligible for release until 2012. Clearly, the court had before it,
and considered, the evidence relevant to Daniel’s best interests in general and to the factors
specified in Michael J. Therefore, on this record, we cannot say the court abused its
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discretion. See Jesus M., 203 Ariz. 278, ¶ 12, 53 P.3d at 207 (appellate court will not disturb
order terminating parental rights absent clear abuse of discretion).
¶6 Additionally, to the extent Antonio is suggesting the juvenile court’s order was
nevertheless deficient because the court should have more specifically set forth each of the
Michael J. factors it had considered, he did not make that objection below. “[W]hen a party
fails to object below to ‘the alleged lack of detail in the juvenile court’s findings,’ the issue
is deemed waived when raised for the first time on appeal . . . .” Marco C. v. Sean C., 218
Ariz. 216, n.3, 181 P.3d 1137, 1141 n.3 (App. 2008), quoting Christy C. v. Ariz. Dep’t of
Econ. Sec., 214 Ariz. 445, ¶ 21, 153 P.3d 1074, 1081 (App. 2007).
¶7 We affirm the juvenile court’s order terminating the parental rights of Antonio
to Daniel.
______________________________________
GARYE L. VÁSQUEZ, Judge
CONCURRING:
_______________________________________
PETER J. ECKERSTROM, Presiding Judge
_______________________________________
J. WILLIAM BRAMMER, JR., Judge
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