Julian D. v. McKenzi W., M.D. ( 2020 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
JULIAN D., Appellant,
v.
MCKENZI W., M.D., Appellees.
No. 1 CA-JV 19-0365
FILED 3-17-2020
Appeal from the Superior Court in Yavapai County
No. V1300SV201880013
The Honorable Debra R. Phelan, Judge Pro Tempore
AFFIRMED
COUNSEL
Robert D. Rosanelli Attorney at Law, Phoenix
By Robert D. Rosanelli
Counsel for Appellant
The Shaw Law Group, PLLC, Prescott
By Bryan C. Shaw
Counsel for Appellee McKenzi W.
JULIAN D. v. MCKENZI W., M.D.
Decision of the Court
MEMORANDUM DECISION
Judge David B. Gass delivered the decision of the Court, in which Presiding
Judge Lawrence F. Winthrop and Judge Maria Elena Cruz joined.
G A S S, Judge:
¶1 Julian D. (father) appeals the superior court’s order
terminating his parental rights to M, his biological child. Because
reasonable evidence supports the superior court’s order, the termination of
parental rights is affirmed.
FACTUAL AND PROCEDURAL HISTORY
¶2 In August 2018, McKenzi W. (mother) moved to terminate
father’s parental rights under A.R.S. § 8-533 on several grounds including:
(1) abandonment, and (2) neglect or willful abuse by exposing M to a
significant amount of domestic violence against mother.
¶3 Father has a long history of domestic violence against Mother.
The history is well documented by law enforcement, witness accounts,
medical reports, and Arizona courts. Father also has a history of violating
protective orders mother secured against him.
¶4 During their relationship, father committed no less than eight
acts of domestic violence against mother in which he was cited, charged, or
arrested. Many of these acts occurred either while mother was pregnant or
within the first 14 months of M’s life.
¶5 In May 2017, while mother was nine-months pregnant with
M, father threatened to kill mother, threw her to the ground, and punched
her in the face, giving her a black eye. M was born a month later. Mother
and father continued their relationship for another five months.
¶6 Father’s acts of domestic violence continued. In December
2017, father struck mother across the face, bruising her, and rupturing her
eardrum. Mother ended the relationship with father at that point. In May
2018, father and his then-girlfriend ambushed and beat up mother. The
attack occurred in full view of M.
2
JULIAN D. v. MCKENZI W., M.D.
Decision of the Court
¶7 Father’s acts of domestic violence continued to escalate. In
August 2018, while holding M, father hit mother several times, pushed her
into a wall, and choked her. A friend intervened and wrestled M from
father. Mother took M and started running away. Before mother could get
into a car to leave, father tackled her, threw her to the ground, and caused
her to land on M. Mother broke free, got to her car, and locked M inside.
Father hit mother five more times, causing her eye to swell shut. Mother
managed to get into the car and lock father out. Unable to reach mother,
father continued his attack on the car and broke the windshield. During this
incident, M was a little over one year old.
¶8 Father was charged with several crimes for the August 2018
confrontation, including assault and criminal damage. He was incarcerated
for six months. Mother secured an order of protection because of the
assault. This confrontation was the last time father had any contact with M.
¶9 After his release, father said he engaged in many services
geared toward parenting, anger management, and sobriety. He said he
completed a parenting 101 class and partially completed a domestic
violence program. Father said his incarceration changed him. He said he
gained insight into himself, child development, and the impact of domestic
violence.
¶10 After hearing father’s testimony, the superior court did not
find him credible. As to father’s domestic violence history, the superior
court found he has not accepted responsibility and instead blamed the
victim for triggering the abuse.
¶11 The superior court also recognized father did not provide for
M. From M’s birth until father was incarcerated, father had only a nominal
relationship with M. Since father’s incarceration, he has provided no
support for and has had no contact with M.
¶12 The superior court held a contested severance trial on August
15, 2019, and issued its ruling on October 7, 2019.
¶13 The superior court found mother did not prove the grounds
of mental illness, mental deficiency, or a history of chronic abuse of
dangerous drugs, controlled substances, or alcohol. However, the superior
court found by clear and convincing evidence mother proved the statutory
grounds of (1) abandonment, and (2) neglect and abuse. The superior court
also found mother proved by a preponderance of the evidence terminating
father’s parental rights was in M’s best interests.
3
JULIAN D. v. MCKENZI W., M.D.
Decision of the Court
¶14 Father timely appealed. Father does not challenge the
superior court’s findings regarding any grounds for termination. Father
only appeals the superior court’s best-interests findings. This court has
jurisdiction under A.R.S. §§ 8-235 and 12-120.21(A)(1).
ANALYSIS
¶15 The superior court may sever a parent’s rights if clear and
convincing evidence establishes at least one statutory ground. See A.R.S.
§ 8-533(B); see also Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 249, ¶
12 (2000). Here, the superior court found mother proved two grounds for
termination by clear and convincing evidence.
¶16 The superior court then must determine if the parties seeking
termination proved by a preponderance of the evidence the termination is
in the child’s best interest. See Kent K. v. Bobby M., 210 Ariz. 279, 288, ¶ 41
(2005). Here, mother had to show either “the child will benefit from
termination of the relationship or that the child would be harmed by
continuation of the parental relationship.” See Mario G. v. Ariz. Dep’t of Econ.
Sec., 227 Ariz. 282, 288, ¶ 26 (App. 2011) (quoting James S. v. Ariz. Dep’t of
Econ. Sec., 193 Ariz. 351, 356, ¶ 18 (App. 1998)); Ariz. Dep’t of Econ. Sec. v.
Oscar O., 209 Ariz. 332, 334, ¶ 6 (App. 2004) (referencing the child deriving
an affirmative benefit from termination or incurring a detriment by
continuing the relationship).
¶17 When reasonable evidence supports severance, a child’s
“interest in stability and security” is the superior court’s main concern. See
Demetrius L. v. Joshlynn F., 239 Ariz. 1, 4, ¶ 15 (2016). Once the superior court
finds the existence of a statutory ground for termination, the superior court
may “presume that the interests of the parent and child diverge.” Alma S.
v. Ariz. Dep’t of Child Safety, 245 Ariz. 146, 150, ¶ 12 (2018). In “most cases,
the presence of a statutory ground will have a negative effect on the
children.” Maricopa County Juv. Action No. JS-6831, 155 Ariz. 556, 559 (App.
1988).
¶18 In analyzing best interests, the superior court “focuses
primarily upon the interests of the child, as distinct from those of the
parent.” Kent K., 210 Ariz. at 287, ¶ 37 (2005). This assessment must balance
the child’s rights against those of the unfit parent. “At this stage, the child’s
interest in obtaining a loving, stable home, or at the very least avoiding a
potentially harmful relationship with a parent, deserves at least as much
weight as that accorded [to] the interest of the unfit parent in maintaining
parental rights.” Id.4
JULIAN D. v. MCKENZI W., M.D.
Decision of the Court
¶19 Because the superior court “is in the best position to weigh
the evidence, observe the parties, judge the credibility of witnesses, and
resolve disputed facts,” this court will affirm an order terminating parental
rights if reasonable evidence supports the order. Jordan C. v. Ariz. Dep’t of
Econ. Sec., 223 Ariz. 86, 93, ¶ 18 (App. 2009) (citations omitted).
¶20 Here, reasonable evidence supports the superior court’s best-
interests findings. Father had a limited relationship with M from the time
M was born to the time father was incarcerated. Father has not had a
relationship with M since his incarceration. He has not provided financially
for M and took no affirmative steps to protect his parental rights.
¶21 In addition, father engaged in numerous significant acts of
domestic violence against mother, many in M’s presence. Father’s history
demonstrates a conscious disregard for M’s mental health, safety, and
security.
¶22 The superior court found father was not credible when he
said he changed. The superior court further expressed concern because
father did not accept responsibility for his actions and engaged in victim
blaming. The superior court emphasized its concern “given the extensive
domestic violence education/counseling services in which [father] has been
engaged.”
¶23 Terminating father’s parental relationship with M would
benefit M because father will not have the opportunity to continue exposing
M to the ill effects, both direct and indirect, of domestic violence. It also
allows M to move forward without concern father will seek to intervene in
M’s life after having no relationship with M for so long.
¶24 In short, reasonable evidence establishes (1) severing father’s
parental relationship would be beneficial to M and (2) preserving the
parental relationship would be detrimental to M.
5
JULIAN D. v. MCKENZI W., M.D.
Decision of the Court
CONCLUSION
¶25 Because reasonable evidence supports the superior court’s
order, this court affirms the termination of father’s parental rights to M.
AMY M. WOOD • Clerk of the Court
FILED: AA
6