Sampson K., Victoria Y. v. Dcs, F.K. ( 2017 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
SAMPSON K., VICTORIA Y.,
Appellants,
v.
DEPARTMENT OF CHILD SAFETY, F.K.,
Appellees.
No. 1 CA-JV 16-0334
FILED 2-16-2017
Appeal from the Superior Court in Maricopa County
No. JD28252
The Honorable Alison S. Bachus, Judge
AFFIRMED
COUNSEL
David W. Bell, Attorney at Law, Higley
By David W. Bell
Counsel for Appellant Father
Law Office of Ed Johnson, PLLC, Peoria
By Edward D. Johnson
Counsel for Appellant Mother
Arizona Attorney General’s Office, Tucson
By Cathleen E. Fuller
Counsel for Appellee Department of Child Safety
SAMPSON K., VICTORIA Y. v. DCS, F.K.
Decision of the Court
MEMORANDUM DECISION
Judge James P. Beene delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Margaret H. Downie joined.
B E E N E, Judge:
¶1 Sampson K. (“Father”) and Victoria Y. (“Mother”) appeal the
termination of their parental rights to their eldest child, F.K. For the reasons
that follow, we affirm the superior court’s termination of parental rights.
FACTS
¶2 On April 23, 2014, F.K., and his three younger siblings came
into State care after allegations that Father abused the children by
employing extreme discipline. Specifically, it was alleged that Father
slapped the children, beat F.K. with a cord and rubbed a mixture of hot
peppers in F.K.’s eyes and nose. It was also alleged that Mother failed to
protect F.K. and his siblings from Father’s abuse and had thus neglected
them as well. After an adjudication, the superior court found that the
children were dependent as to Mother and Father. Arizona Department of
Child Safety (“DCS”) offered the parents reunification services.
¶3 In December 2014, Father pled guilty to felony child abuse
relating to his treatment of F.K. As a result of his plea, Father was placed
on probation for 10 years and was prohibited from visiting F.K. without
prior approval from DCS.
¶4 In 2015, Father and Mother reunified with their children,
except F.K., after the superior court determined that the parents had
successfully completed all required services. F.K. was not returned to
Mother and Father because he did not consistently participate in services
with his parents. F.K. did not participate in visitation and family
counseling services because he did not feel safe with his parents. Shortly
before the termination hearing, F.K. indicated that he wanted to be adopted
by another family.
¶5 On a motion by DCS and after a contested termination
hearing in August 2016, the superior court terminated Mother’s parental
rights based on abuse, neglect and the child’s out-of-home placement for 15
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SAMPSON K., VICTORIA Y. v. DCS, F.K.
Decision of the Court
months or longer, pursuant to Arizona Revised Statutes (“A.R.S.”)1 sections
8-533(B)(2) (2017), (B)(8)(c) (2017), respectively. The superior court
terminated Father’s parental rights on the same grounds as Mother, along
with the additional ground of unfitness to parent due to a felony conviction.
A.R.S. § 8-533(B)(4) (2017). Mother and Father timely appealed the superior
court’s final order. We have jurisdiction pursuant to A.R.S. §§ 8-235(A)
(2017) and 12-2101(A) (2017).
DISCUSSION
¶6 Custody of one’s children is a fundamental, but not absolute,
right. Michael J. v. Ariz. Dep’t. of Econ. Sec., 196 Ariz. 246, 248, ¶ 12 (2000).
The superior court may terminate a parent’s rights upon clear and
convincing evidence of one of the statutory grounds in A.R.S. § 8-533(B),
and upon finding by a preponderance of the evidence that termination is in
the best interests of the child. Id. at 248-49, ¶ 12. We review the superior
court’s termination order for an abuse of discretion; we will affirm the order
unless its factual findings are clearly erroneous, “that is, unless there is no
reasonable evidence to support them.” Audra T. v. Ariz. Dep’t of Econ. Sec.,
194 Ariz. 376, 377, ¶ 2 (App. 1998).
¶7 Father does not contest the superior court’s findings
regarding the statutory grounds for termination.2 Similarly, Mother does
not dispute the superior court’s findings against her on the grounds of
abuse and neglect. The existence of any one of the enumerated grounds in
§ 8-533 is sufficient to justify termination. Maricopa Cty. Juv. Action No. JS-
6520, 157 Ariz. 238, 242 (App. 1988); see also Jesus M. v. Ariz. Dep’t of Econ.
Sec., 203 Ariz. 278, 280, ¶ 3 (App. 2002) (“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.”). Nevertheless, we have reviewed the superior court’s findings
and hold that it did not err in finding that Mother and Father neglected F.K.,
within the meaning of the severance statutes.
¶8 Parental rights may be terminated when a parent has
neglected or willfully abused a child. A.R.S. § 8-533(B)(2). Neglect is
defined in part as “[t]he inability or unwillingness of a parent, guardian, or
1 Absent material revisions after the relevant date, we cite a statute’s current
version.
2 “Generally, we will consider an issue not raised in an appellant’s opening
brief as abandoned or conceded.” Robert Schalkenbach Found. v. Lincoln
Found., Inc., 208 Ariz. 176, 180, ¶ 17 (App. 2004).
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SAMPSON K., VICTORIA Y. v. DCS, F.K.
Decision of the Court
custodian of a child to provide that child with supervision … if that inability
or unwillingness causes unreasonable risk of harm to the child’s health or
welfare.” A.R.S. § 8-201(25)(a) (2017).
¶9 The superior court found that Father neglected F.K. by his
unwillingness to provide F.K. with proper parental supervision. Instead of
offering appropriate parenting, Father often employed harsh and unduly
painful discipline to F.K. The superior court held that Father’s
unwillingness to properly supervise F.K. caused an unreasonable risk to the
child’s welfare. We conclude that reasonable evidence in the record
supports the superior court’s finding.
¶10 Regarding Mother, the superior court found that she
neglected F.K. by her failure to protect him from Father’s abusive conduct.
By failing to remove F.K. from this environment, Mother demonstrated her
unwillingness to properly supervise F.K. Mother’s inability to protect her
son caused F.K. to suffer physical harm at the hands of Father. Reasonable
evidence in the record supports the superior court’s finding that Mother
neglected F.K.
¶11 Now, we turn to the superior court’s findings that termination
was in F.K.’s best interests.
¶12 Whether severance is in a child’s best interest is a question of
fact, and we view the evidence and draw all reasonable inferences from the
evidence in favor of supporting the superior court’s findings. Jesus M., 203
Ariz. at 282, ¶ 13. A best-interests finding may be supported by evidence
of an affirmative benefit to the child from severance or a detriment to the
child if the relationship were to continue. Jennifer B. v. Ariz. Dep’t of Econ.
Sec., 189 Ariz. 533, 557 (App. 1997). Being available for adoption is an
affirmative benefit that can support a finding that termination is in the
child’s best interests. See Maricopa Cty. Juv. Action No. JS-501904, 180 Ariz.
348, 352 (App. 1994).
¶13 Father challenges the superior court’s finding that
termination of his parental rights was in F.K.’s best interests. Father claims
that the superior court erred in its best interests finding because DCS was
dilatory in providing visitation and family counseling services, arguing that
if DCS provided more visitation and counseling, F.K. would be more
willing to return to Father and Mother. The superior court found that
reunification services were provided to the parents and child in a timely
manner and we conclude that reasonable evidence in the record supports
that finding.
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SAMPSON K., VICTORIA Y. v. DCS, F.K.
Decision of the Court
¶14 Next, Father contends that he made “significant behavioral
changes” and no longer posed a danger to F.K. The record reflects
otherwise. The superior court found that Father failed to adequately
understand or acknowledge why F.K. was removed from the home and
what parenting skills would be required to effectively care for F.K. if he
were returned to Father’s care. Once again, we conclude that reasonable
evidence in the record supports the superior court’s finding.
¶15 Lastly, Father argues that the superior court erred in its best
interest finding because he successfully completed reunification services
and the only impediment to returning F.K. home was the child’s
unwillingness to reunify with his parents. Father cites Desiree S. v. Dep’t of
Child Safety, 235 Ariz. 532 (App. 2014), in support of his argument. Desiree
S. is readily distinguishable from this case. In Desiree S., the juvenile refused
to participate in family counseling and did not want to return to his
mother’s care because he feared that she would not be able to protect him
from future abuse. 235 Ariz. at 534, ¶ 10. This court held that the juvenile’s
refusal and subjective belief that his mother would be unable to protect him
from future abuse, without more, was insufficient evidence to support the
superior court’s finding that mother could not parent the child in the near
future. Id. at 534-35, ¶ 11. In the instant case, the superior court determined
that F.K.’s unwillingness to engage in family counseling was not the sole
basis for its termination finding. Rather, the superior court properly found
that in addition to F.K.’s unwillingness to engage in family counseling, the
parents failed to demonstrate a full understanding as to why F.K. was
brought into care and what would be necessary to safely parent him in the
future. Accordingly, reasonable evidence supported the superior court’s
determination that termination of Father’s parental rights would be in
F.K.’s best interests.
¶16 Mother also challenges the best interests finding by arguing
that the superior court erred in finding that F.K. would derive a benefit
from the termination of her parental rights. This claim fails as well. The
record reflects that F.K. is adoptable, willing to be adopted, and currently
in a potential adoptive placement. Also, the superior court found that
termination of the parent-child relationship would provide F.K. with a safe
home that is free from abuse or neglect. Additionally, as noted, F.K. has
expressed his desire to be adopted. Consequently, reasonable evidence
supports the superior court’s finding that termination of Mother’s parental
rights is in F.K.’s best interests.
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SAMPSON K., VICTORIA Y. v. DCS, F.K.
Decision of the Court
CONCLUSION
¶17 For the foregoing reasons, we affirm the superior court’s
order terminating the parental rights of Mother and Father.
AMY M. WOOD • Clerk of the Court
FILED: AA
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