Leila S. v. Dcs ( 2016 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
LEILA S., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, X.G., X.F., X.F., Appellees.
No. 1 CA-JV 16-0217
FILED 11-22-2016
Appeal from the Superior Court in Maricopa County
No. JS517583
The Honorable Janice K. Crawford, Judge
AFFIRMED
COUNSEL
John L. Popilek, PC, Scottsdale
By John L. Popilek
Counsel for Appellant
Arizona Attorney General's Office, Mesa
By Nicholas Chapman-Hushek
Counsel for Appellee DCS
LEILA S. v. DCS, et al.
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Diane M. Johnsen delivered the decision of the Court, in
which Judge Jon W. Thompson and Judge John C. Gemmill joined.1
J O H N S E N, Judge:
¶1 Leila S. ("Mother") appeals the superior court's order
terminating her parental rights to three of her children. For the following
reasons, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 On a petition by the Department of Child Safety ("DCS") and
after a trial, the superior court terminated Mother's parental rights with
respect to the three children based on nine months' time-in-care and a prior
out-of-home dependency under Arizona Revised Statutes ("A.R.S.")
sections 8-533(B)(8)(a) and (11) (2016), respectively.2 This court has
jurisdiction of Mother's timely appeal pursuant to Article 6, Section 9, of the
Arizona Constitution, and A.R.S. § 8-235(A) (2016) and Arizona Rule of
Procedure for the Juvenile Court 103(A).
DISCUSSION
¶3 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). Michael J. v. Dep't of Econ. Sec., 196 Ariz. 246, 248-49, ¶ 12 (2000).
Additionally, the superior court must find by a preponderance of the
evidence that termination is in the child's best interest. Jeffrey P. v. Dep't of
Child Safety, 239 Ariz. 212, 213, ¶ 5 (App. 2016). We review a termination
order for an abuse of discretion. Id. We may affirm an order of termination
1 The Honorable John C. Gemmill, Retired Judge of the Court of
Appeals, Division One, has been authorized to sit in this matter pursuant
to Article VI, Section 3 of the Arizona Constitution.
2 Absent material revisions after the relevant date, we cite a statute's
current version.
2
LEILA S. v. DCS, et al.
Decision of the Court
on any one of the statutory grounds on which the superior court ordered
severance. Jesus M. v. Dep't of Econ. Sec., 203 Ariz. 278, 280, ¶ 3 (App. 2002).
¶4 Under A.R.S. § 8-533(B)(8)(a), parental rights may be
terminated when:
[t]he child has been in an out-of-home placement for a
cumulative total period of nine months or longer pursuant to
court order . . . and the parent has substantially neglected or
wilfully refused to remedy the circumstances that cause the
child to be in an out-of-home placement.
¶5 On appeal, Mother does not contest the court's findings that
the children have been in out-of-home placement for more than nine
months, DCS offered her appropriate reunification services and she had
substantially neglected or wilfully refused to remedy the circumstances that
caused the children to be in out-of-home placement. Nor does she contest
the court's finding that termination was in the children's best interests.
¶6 Instead, Mother argues the court abused its discretion when
it admitted evidence that the three children's father, who is not a party to
this appeal, had abused another child of hers, Y.H. Mother argues the
evidence was highly prejudicial and, because she had consented to the
termination of her rights with respect to Y.H., not relevant. The evidence
Mother cites, while arguably relevant to other severance grounds alleged
by DCS, bore little relevance to the nine-months-in-care ground for
severance. Mother offers no argument beyond speculation, however, that
the evidence improperly influenced the court in its consideration of the
petition to sever based on nine months' in care. See State v. Arellano, 213
Ariz. 474, 480, ¶ 23, n. 5 ("A trial judge usually will not exclude evidence as
unduly prejudicial when the trial is to the court.").
¶7 Mother also argues the court abused its discretion in granting
DCS's request on the last day of trial to take judicial notice of several minute
entries from the current case and prior dependencies. Without agreeing
with Mother's contention that the court erred by taking judicial notice of
any of the minute entries at issue, we note Mother does not make any
attempt to explain how she might have been prejudiced by the court's
consideration of them. She does not argue the court based its order of
termination on the orders, or that without the prior orders, the evidence
was insufficient to support the superior court's findings.
3
LEILA S. v. DCS, et al.
Decision of the Court
CONCLUSION
¶8 We affirm the superior court's order granting severance based
on nine months' time-in-care under A.R.S. § 8-533(B)(8)(a). Having
affirmed the termination based on that ground, we need not address the
other ground for termination. Jesus M., 203 Ariz. at 280, ¶ 3.
AMY M. WOOD • Clerk of the Court
FILED: AA
4