Thomas K. v. Dcs, A.K. ( 2021 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
THOMAS K.,
Appellant,
v.
DEPARTMENT OF CHILD SAFETY, A.K.,
Appellees.
No. 1 CA-JV 21-0075
FILED 8-12-2021
Appeal from the Superior Court in Yavapai County
No. P1300JD201900045
The Honorable Anna C. Young, Judge
AFFIRMED
COUNSEL
Robert D. Rosanelli Attorney at Law, Phoenix
By Robert D. Rosanelli
Counsel for Appellant
Arizona Attorney General's Office, Tucson
By Jennifer R. Blum
Counsel for Appellee
THOMAS K. v. DCS, A.K.
Decision of the Court
MEMORANDUM DECISION
Judge James B. Morse Jr. delivered the decision of the Court, in which
Presiding Judge D. Steven Williams and Judge David B. Gass joined.
M O R S E, Judge:
¶1 Thomas K. appeals the termination of his parental rights. For
the following reasons, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 Thomas K. ("Father") and Jasmine M. ("Mother") are the
parents of A.K. ("the Child"), who was born in 2018.1 In March 2018, the
Department of Child Services ("DCS") reported concern about Father's
parenting ability due to "developmental disabilities," "diminished lack of
support in the home," and his tendency to "become[] violent and threaten[]
harm to others." Father sometimes threw things at Mother and, in February
2019, pushed her into traffic while she held the Child.
¶3 In May 2019, DCS implemented a safety plan requiring the
Child's paternal grandparents to ensure the Child was never alone with
Father and Mother. In June 2019, DCS removed the Child from the home
after discovering the grandparents violated the safety plan and Father and
Mother had domestic-violence altercations in the Child's presence. On the
day of the Child's removal, "Father tried yanking [the Child] out of
[Mother's] arms when DCS was in the home . . . because he was mad at
[Mother]." The court found the Child dependent in July 2019 and
implemented a case plan of family reunification.
¶4 DCS provided Father transportation services and referred
him for a psychological evaluation, individual and family counseling,
domestic-violence and anger-management education, parenting classes,
and psychiatric and medication-management services. Father received
behavioral-health services through West Yavapai Guidance Clinic
("WYGC"), including counseling, psychiatric services, medication
1 Mother's parental rights were terminated in January 2021 and is not
a party to this appeal.
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THOMAS K. v. DCS, A.K.
Decision of the Court
management, and "specialized therapy for those with cognitive
limitations." Father also attended Alcoholics Anonymous meetings and, in
June 2020, checked into an inpatient care facility for alcohol-abuse
treatment. But Father had not sufficiently addressed his diminished
protective capacities before his referrals for parenting classes closed out in
May and July 2020.
¶5 In December 2020, DCS moved to terminate Father's parental
rights on the grounds of neglect, mental deficiency, and fifteen-months'
care in an out-of-home placement. The juvenile court held a hearing and
found termination justified on all three grounds. It further found that
termination was in the Child's best interests and terminated Father's
parental rights.
¶6 Father timely appealed. We have jurisdiction under A.R.S. §§
8-235, 12-120.21(A), and -2101(A)(1).
DISCUSSION
¶7 Parental rights are fundamental, but not absolute. Dominique
M. v. Dep't of Child Safety, 240 Ariz. 96, 97, ¶ 7 (App. 2016). A court may
terminate a parent's right in the care, custody, and management of their
children "if it finds clear and convincing evidence of one of the statutory
grounds for severance, and also finds by a preponderance of the evidence
that severance is in the best interests of the children." Id. at 98, ¶ 7.
¶8 The juvenile court "is in the best position to weigh the
evidence, observe the parties, judge the credibility of witnesses, and resolve
disputed facts." Ariz. Dep't of Econ. Sec. v. Oscar O., 209 Ariz. 332, 334, ¶ 4
(App. 2004). We do not reweigh evidence or reevaluate witness credibility.
See Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, 280, ¶ 4 (App. 2002).
We view the evidence and the reasonable inferences to be drawn from the
evidence in the light most favorable to affirming the juvenile court's order
and will affirm unless "reasonable evidence does not support its factual
findings." Ariz. Dep't of Econ. Sec. v. Matthew L., 223 Ariz. 547, 549, ¶ 7 (App.
2010).
I. Neglect.
¶9 Father argues the superior court erred in finding he neglected
the Child. Parental rights may be terminated if the court finds that a parent
"has neglected . . . a child." A.R.S. § 8-533(B)(2). "Neglect" is defined as
"[t]he inability or unwillingness of a parent, guardian or custodian of a child
to provide that child with supervision, food, clothing, shelter or medical
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Decision of the Court
care if that inability or unwillingness causes unreasonable risk of harm to
the child's health or welfare . . . ." A.R.S. § 8-201(25)(a).
¶10 The juvenile court based its neglect finding on: (i) evidence
that Father "was unable or unwilling to provide [the Child] with
supervision, food, clothing, shelter, or medical care which caused . . . an
unreasonable risk of harm to [the Child's] health and/or welfare;" (ii)
Father's history of domestic violence; and (iii) Father's inability "to
recognize and meet" the Child's needs due to his mental deficiency.
¶11 Father contends that his domestic violence and mental-health
issues do not render him unfit to parent. However, Father does not dispute
the court's finding that he "was unable or unwilling to provide [the Child]
with supervision, food, clothing, shelter, or medical care which caused . . .
an unreasonable risk of harm to [the Child's] health and/or welfare . . . ."
This finding is supported by the testimony of the Case Manager, who said
that Father had been unable to maintain safe and appropriate housing, had
struggled during supervised visits to "recognize when his daughter needed
support regarding her basic needs for food [and] changing," and remains
unable to drive, read, or take himself to the doctor to refill prescription
medications. Thus, reasonable evidence supports the juvenile court's
finding that Father neglected the Child.
II. Reasonable Efforts.
¶12 Father argues termination was not justified on mental-
deficiency and out-of-home placement grounds because DCS failed to make
reasonable efforts to provide him appropriate reunification services. See
Mary Ellen C. v. Ariz. Dep't of Econ. Sec., 193 Ariz. 185, 191-93, ¶¶ 27, 34, 42
(App. 1999) (noting that termination based on time in an out-of-home
placement or mental deficiency must include proof that DCS "made a
reasonable effort to provide [the parent] with rehabilitative services or that
such an effort would be futile"). Because we affirm the juvenile court's
neglect finding, however, we decline to address Father's reasonable-efforts
claims. See Jesus M., 203 Ariz. at 280, ¶ 3 ("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.").
III. Best Interests.
¶13 The juvenile court found by a preponderance of evidence that
it was in the Child's best interests to terminate Father's parental rights.
Father does not challenge that finding. See Crystal E. v. Dep't of Child Safety,
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THOMAS K. v. DCS, A.K.
Decision of the Court
241 Ariz. 576, 577-78, ¶¶ 5-6 (App. 2017) ("[W]e adhere to the policy that it
is generally not our role to sua sponte address issues not raised by the
appellant."). Accordingly, Father has failed to show the juvenile court erred
in terminating his parental rights.
CONCLUSION
¶14 We affirm the juvenile court's order.
AMY M. WOOD • Clerk of the Court
FILED: AA
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