Jonathan L. v. Dcs

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
JONATHAN L., Appellant,
v.
DEPARTMENT OF CHILD SAFETY,1 N.L., Y.L., Appellees.
No. 1 CA-JV 15-0090
FILED 9-3-2015
Appeal from the Superior Court in Maricopa County
No. JD23618
The Honorable Susanna C. Pineda, Judge
AFFIRMED
COUNSEL
Robert D. Rosanelli, Attorney at Law, Phoenix
By Robert D. Rosanelli
Counsel for Appellant
Arizona Attorney General’s Office, Phoenix
By Laura J. Huff
Counsel for Appellee Department of Child Safety
1 Pursuant to S.B. 1001, Section 157, 51st Leg., 2nd Spec. Sess. (Ariz.
2014) (enacted), the Department of Child Safety (DCS) is substituted for the
Arizona Department of Economic Security (ADES) in this matter. See
ARCAP 27. For consistency, we refer to DCS in this decision even where,
at the time, actions were taken by ADES.
JONATHAN L. v. DCS, et al.
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Jon W. Thompson delivered the decision of the Court, in
which Judge Donn Kessler and Judge Samuel A. Thumma joined.
T H O M P S O N, Judge:
¶1 Jonathan L. (Father) appeals from the juvenile court’s order
terminating his parental rights as to N.L. and Y.L. (collectively the
Children). For the following reasons, we affirm.
FACTS2 AND PROCEDURAL HISTORY
¶2 Leah S. (Mother) and Father are married and have two
biological children together.3 In 2008 and 2009, Mother and Father adopted
two children from Ethiopia - N.L., born in March 2008, and Y.L., born in
June 2008 (the Children). Father re-entered military service in 2010 and was
stationed in Afghanistan from March 2011 to January 2012. After Father
completed his service, he and Mother moved from Arizona to Oregon.
¶3 In March 2012, Mother intentionally overdosed by taking
prescription pills in front of one of her biological children. Mother had a
long history of prescription drug abuse and mental health issues.4 After her
hospitalization following the overdose, Mother completed one week of in-
patient substance abuse treatment. An allegation that Mother was
negligent in the care of her biological child was filed with the Oregon
Department of Human Services (DHS). The DHS report specified that
2 We review the evidence and draw all reasonable inferences in
the light most favorable to upholding the juvenile court’s factual findings.
Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 282, ¶ 13, 53 P.3d 203, 207
(App. 2002).
3 Neither Mother nor her two biological children are parties to this
appeal.
4 Before moving to Oregon, three reports of Mother’s physical abuse,
neglect of the Children, and mental illness had been filed with DCS in 2010
and 2011 and 2012, but were deemed unsubstantiated by DCS.
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JONATHAN L. v. DCS, et al.
Decision of the Court
Father was aware of Mother’s mental health issues and prescription drug
abuse, and that he agreed to implement a safety plan to supervise all contact
between Mother and the Children until her mental health issues and
prescription drug abuse were “under control.” DHS provided in-home
services to Mother until May 2012 when Mother and Father were released
from supervision.
¶4 Three months later, Mother and Father separated, and Mother
moved to Arizona with the Children. Shortly thereafter, Father moved to
San Diego. Father returned to Arizona approximately once a month to visit
the Children.
¶5 On April 30, 2013, DCS took the Children into custody after
receiving a report that they had been physically abused. A DCS case
manager observed that N.L. had fresh and healing injuries to his back, was
extremely thin and malnourished, and had a very flat affect. Y.L. had
circular bruises on both forearms and broken blood vessels around her eye.
A medical examination revealed that Y.L. also had three concerning scars
on her right upper arm; N.L. had several concerning scars in various
locations; and N.L. was thin and malnourished with developmental delays
“likely related to chronic malnutrition as an infant.”
¶6 DCS learned that Y.L. told police investigators that Mother
hits N.L. with a spoon, and Father hit N.L. in the head and made him bleed.
N.L. was essentially non-verbal and was unable to be interviewed by the
police. DCS also discovered that the Children had various special needs.
Despite their awareness of the Children’s special needs, neither Mother nor
Father sought services.
¶7 DCS filed a dependency petition based on Father’s neglect of
the Children and his failure to protect them from abuse, and Mother’s
neglect, physical and emotional abuse, mental health issues, and substance
abuse. The juvenile court found that the Children were dependent, noting
Father and Mother stipulated to the dependency based on Mother’s mental
health issues and Father’s inability to care for the children due to their
special needs.
¶8 DCS established a case plan for Father of reunification and
offered him the following services: supervised visitation; a psychological
evaluation; and counseling. Father attended a visitation in November 2013,
however, the following month DCS suspended Father’s visitation with Y.L.
because of her extremely negative reaction and violent behavior following
the visit. Although DCS accommodated Father’s request for a visitation
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JONATHAN L. v. DCS, et al.
Decision of the Court
with N.L. in February 2014, Father failed to attend the visitation.
Thereafter, Father did not request visitation with N.L., did not inquire into
the welfare of the Children, and did not send the Children any gifts or
letters.
¶9 In April 2014, DCS filed a motion to terminate Father’s
parental rights.5 The motion, as amended, alleged five grounds for
termination: (1) abuse of failure to protect; (2) abandonment; (3) neglect; (4)
nine months time-in-care; and (5) fifteen months time-in-care. After a
contested severance hearing, the juvenile court found that DCS had
established the grounds for severance, and that termination was the
Children’s best interests. Accordingly, the juvenile court terminated
Father’s parental rights to the Children.
¶10 Father timely appealed. We have jurisdiction pursuant to
Arizona Revised Statutes (A.R.S.) sections 8-235 (Supp. 2014), and 12-
2101(A)(2) (Supp. 2013).
DISCUSSION
¶11 The juvenile court may terminate the parent-child
relationship only upon finding that clear and convincing evidence
demonstrates at least one statutory ground for severance and that severance
is in the child's best interests. A.R.S. § 8–533(B) (Supp. 2014); Kent K. v. Bobby
M., 210 Ariz. 279, 284, ¶ 22, 110 P.3d 1013, 1018 (2005). We review the
juvenile court’s termination order for an abuse of discretion. Mary Lou C. v.
Ariz. Dep't of Econ. Sec., 207 Ariz. 43, 47, ¶ 8, 83 P.3d 43, 47 (App. 2004)
(citation omitted). Under A.R.S. § 8–533(B)(2), the juvenile court may
terminate parental rights if a parent “has neglected or wil[l]fully abused a
child.” “[A]buse includes serious physical or emotional injury or situations
in which the parent knew or reasonably should have known that a person
was abusing or neglecting a child.” A.R.S. § 8–533(B)(2).
¶12 Father argues that the juvenile court’s finding that he had
willfully abused or failed to protect the Children was “clearly erroneous
and contrary to the substantial evidence in the record” because he “had no
reason to believe that the children’s mother would abuse or neglect the
5 Mother signed a consent for adoption and termination of her
parental rights to N.L. and Y.L., and the juvenile court subsequently
terminated Mother’s parental rights.
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JONATHAN L. v. DCS, et al.
Decision of the Court
children and [he] did not place them in a situation where he reasonably
should have known abuse or neglect would occur.”6 We disagree.
¶13 First, substantial evidence supports the trial court’s finding
that the Children were abused. As noted above, the DCS case manager
testified that N.L. had physical injuries, was very malnourished and small
for his age. Similarly, a case manager also observed that Y.L. had physical
injuries. Additionally, both Mother and Father failed to provide the
necessary therapy and services for the Children’s special needs.
¶14 Second, although Father argues he “could not predict that the
children’s mother would abuse or neglect the children,” Father testified that
he was aware of Mother’s history of prescription drug abuse and mental
illness. Father also admitted that he agreed to a safety plan with the Oregon
DHS whereby he would supervise all of Mother’s contact with N.L. and
Y.L. because of her substance abuse problem. Despite his knowledge of
Mother’s substance abuse problem and her history of mental illness, Father
left the Children in the sole custody of Mother in order to continue his
education out-of-state. Thereafter, Father maintained only minimal contact
with the Children, and has made no effort to contact or inquire about the
Children’s welfare since February 2014.
¶15 Father's actions during the pendency of this case support a
finding that he is unable to protect the Children from abuse. At the
severance hearing, Father continued to defend Mother, denied that she
abused the Children, denied Mother had a substance abuse problem, and
claimed that Mother “loves those children and she gave them . . . everything
she could.” Father’s refusal to take any responsibility for his children’s
injuries supports an inference that he would be unable or unwilling to
protect the children from future abuse or neglect. Thus, reasonable
evidence supports the juvenile court’s finding that Father “knew or
reasonably should have known that a person was abusing or neglecting”
the Children.7 See A.R.S. § 8–533(B)(2).
6 Father has not appealed the finding that termination was in the
children’s best interest. We therefore accept that finding and do not address
it further. See Schabel v. Deer Valley Unified Sch. Dist. No. 97, 186 Ariz. 161,
167, 920 P.2d 41, 47 (App. 1996) (“Issues not clearly raised and argued in a
party's appellate brief are waived.”).
7 Only one statutory ground need be proven to justify the termination
of a parent-child relationship. Kent K., 210 Ariz. at 280, ¶ 1, 110 P.3d at 1014
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JONATHAN L. v. DCS, et al.
Decision of the Court
CONCLUSION
¶16 Based upon the foregoing, we affirm the juvenile court’s
termination order.
:ama
(citing A.R.S. § 8–533(B)). Because we determine severance was appropriate
based on A.R.S. § 8–533(B)(2), we need not discuss the other grounds for
severance. Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, ¶ 3, 53 P.3d 203,
205 (App. 2002).
6