Richard G. v. Dcs ( 2015 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
RICHARD G.,
Appellant,
v.
DEPARTMENT OF CHILD SAFETY, J.S., A.G., J.G., J.G.,
Appellees.
No. 1 CA-JV 15-0196
FILED 10-27-2015
Appeal from the Superior Court in Maricopa County
No. JD27709
The Honorable Joan M. Sinclair, Judge
AFFIRMED
COUNSEL
Maricopa County Public Advocate, Mesa
By David C. Lieb
Counsel for Appellant
Arizona Attorney General’s Office, Tucson
By Laura J. Huff
Counsel for Appellee Department of Child Safety
Richard G. v. DCS, et al.
Decision of the Court
MEMORANDUM DECISION
Judge Patricia A. Orozco delivered the decision of the Court, in which
Presiding Judge Margaret H. Downie and Judge Maurice Portley joined.
O R O Z C O, Judge:
¶1 Richard G. (Father) appeals from the order terminating his
parental rights to J.S., A.G., J.G., and J.G. (collectively, the Children). For
the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 In January 2014, Father and Stephanie S. (Mother)1 were
stopped for a traffic violation with their youngest child, J.G., in the vehicle.
Officers found Father exhibiting signs of impairment and after searching
the vehicle, discovered methamphetamine, heroin, and foils, as well as a
hypodermic needle hidden under J.G.’s car seat. Father was charged with
aggravated driving under the influence (DUI), possession of a dangerous
drugs, and possession of drug paraphernalia.
¶3 In March 2014, the juvenile court found A.G., J.G., and J.G.
dependent as to Father.2 The case plan was “family reunification as to all
the [C]hildren with a concurrent plan of severance and adoption as to the
[youngest] child, [J.G.]”
¶4 Throughout 2014, the Department of Child Safety (DCS)
provided numerous services to Father, including group and individual
counseling, domestic violence classes, and drug rehabilitation services.
Father did not participate consistently in services. He was in jail from May
28 until June 22, 2014 for domestic violence, and was arrested again in
1 The Children are dependent as to Mother, who is not a party to this
appeal.
2 Father contested paternity as to J.S. and therefore the juvenile court
did not find J.S. dependent as to Father.
2
Richard G. v. DCS, et al.
Decision of the Court
November 2014 for aggravated DUI with a passenger under fifteen years of
age.3 At one visit, the Children witnessed Mother “bruised and beaten up
because of the [domestic violence] incident.”
¶5 Father has a history of chronic abuse of dangerous drugs. In
fact, from January 2015 through March 2015, Father tested positive five
times for amphetamine and methamphetamine. Father’s inability to
maintain his sobriety prevented parent aide services from being
implemented.
¶6 At the time of the severance hearing, the DCS case manager
testified that Father had been participating in weekly visits with the
Children, and had been drug free for approximately three months. Still,
Father had not completed the services DCS provided. The case manager
further testified the Children were living with their maternal grandmother,
who provided stability and permanency for the Children, and that the older
children had expressed a wish to remain with maternal grandmother even
if Father complied with all DCS services.
¶7 Father did not appear at the May 2015 severance hearing, and
there was no good cause for his absence. After the hearing, the juvenile
court found clear and convincing evidence to support termination of
Father’s parental rights, and that termination was in the Children’s best
interests.
¶8 Father timely appealed the severance,4 and we have
jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and
3 From the record before us, it is unclear whether this arrest was
related to the January 2014 aggravated DUI.
4 Father filed a motion to reconsider challenging the juvenile court’s
decision to proceed with the severance hearing in his absence, arguing that
he was at work and thought the hearing was on a different date and the
termination was not in the children’s best interests. The juvenile court
denied the motion in an unsigned order. Father then filed a notice of appeal
as to the ruling. Because the unsigned order is not appealable, and Father
did not address the motion to reconsider in his appellate brief, we will not
address the issues raised in the motion to reconsider.
3
Richard G. v. DCS, et al.
Decision of the Court
Arizona Revised Statutes (A.R.S.) sections 8-235.A, 12-120.21.A.1,
and -2101.A (West 2015).5
DISCUSSION
¶9 “We view the facts in the light most favorable to sustaining
the juvenile court’s decision.” Christy C. v. Ariz. Dep’t of Econ. Sec., 214 Ariz.
445, 449, ¶ 12 (App. 2007) (citation omitted). “To terminate parental rights,
a juvenile court must first find by clear and convincing evidence . . . the
existence of at least one statutory ground for termination pursuant to
[A.R.S. § 8-533.B], and must also find by a preponderance of the evidence
that termination is in the child’s best interests.” Jennifer G. v. Ariz. Dep’t of
Econ. Sec., 211 Ariz. 450, 453, ¶ 12 (App. 2005). “When considering the
[juvenile] court’s express findings, we affirm the [juvenile] court’s order if
the facts at trial support the [juvenile] court’s findings whether or not each
supportive fact is specifically called out by the [juvenile] court in its
findings.” Christy C., 214 Ariz. at 451–52, ¶19.
¶10 Father’s sole argument on appeal is that the juvenile court
“failed to make any specific findings of fact in support of its conclusions of
law” that termination was appropriate and in the best interests of the
Children. Specifically, Father asserts that the juvenile court’s order violates
Arizona Rule of Procedure for the Juvenile Court 66.F.2.a, which requires
that the juvenile court make “specific findings of fact in support of the
termination of parental rights.”
¶11 “The primary purpose for requiring a court to make express
findings of fact and conclusions of law is to allow the appellate court to
determine exactly which issues were decided and whether the lower court
correctly applied the law.” Ruben M. v. Ariz. Dep’t of Econ. Sec., 230 Ariz.
236, 240, ¶24 (App. 2012). At the severance hearing, the juvenile court made
the following factual findings on the record:
Termination of parental rights as to the Father, . . . is
appropriate based on a history of chronic substance abuse.
The Court is aware that services have been offered to [Father].
The case has been open for quite some time, [Father’s] still
testing positive January, February and March of this year.
5 We cite the current version of applicable statutes when no revisions
material to this decision have since occurred.
4
Richard G. v. DCS, et al.
Decision of the Court
While there has been a little more compliance with services
recently, [Father] has not completed any substance abuse
treatment, he has been in and out of jail and he is still testing
positive.
I believe [DCS] has met its burden of proof as far as that
ground for severance is concerned.
For the six, nine and [fifteen] months time in care grounds,
the State also has met its burden of proof.
A lot of services have been provided to Father; he’s not been
able to complete anything. He’s had two referrals for
TERROS not completed, wasn’t able to establish a period of
sobriety to even get the parent aide involved, hasn’t
completed domestic violence counseling, hasn’t completed . . .
anger management and, again, still testing positive.
So, the Court finds that the State has met its burden of proof
as far as the six months time in care for [J.G.] and nine and
[fifteen] months time in care for the other children.
...
The Court finds that termination is in the children’s best
interests and welfare so they can be legally freed up for
adoption.
They are with maternal grandmother, they . . . are comfortable
there; they want to stay there, at least the older children are
verbalizing that.
They are certainly adoptable children and this is an adoptive
placement and these children deserve permanency and
stability.
¶12 Although the juvenile court’s factual findings are not
included in the minute entry, the factual findings on the record are clearly
sufficient. See Christy C., 214 Ariz. at 451–52, ¶ 19 (concluding that detailed
factual findings on the record were “clearly sufficient” despite an alleged
lack of detail in the trial court order).
¶13 Furthermore, even if the juvenile court’s factual findings on
the record were not sufficient, “any error would have been harmless, and
5
Richard G. v. DCS, et al.
Decision of the Court
remand [is] not required.” Id. at 452 n.5, ¶21. Also, Father has waived the
objection because he did not first raise it in the juvenile court before
appealing. Absent extraordinary circumstances, we do not consider
objections raised for the first time on appeal. Trantor v. Fredrickson, 179 Ariz.
299, 300 (1994). “This is particularly so as it relates to the alleged lack of
detail in the juvenile court’s findings.” Christy C., 214 Ariz. at 452, ¶ 21.
¶14 “[A] party may not sit back and not call the trial court’s
attention to the lack of a specific finding on a critical issue, and then urge
on appeal the mere lack of a finding on that critical issue as a grounds for
reversal.” Id. (internal quotation marks and citation omitted); see also
Banales v. Smith, 200 Ariz. 419, 420, ¶ 6 (App. 2001) (“[A] party must have
afforded the trial court and opposing counsel the opportunity to correct any
asserted defects in order to contest on appeal the absence of a trial court’s
necessary findings of fact and conclusions of law.”); cf. Ruben M., 230 Ariz.
at 238, ¶8 (reviewing the adequacy of the juvenile court’s express findings
on appeal where Father did object to the adequacy of the express findings in
the juvenile court).
CONCLUSION
¶15 For the foregoing reasons, we affirm the juvenile court order
terminating Father’s parental rights to the Children.
:ama
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