Victor K. 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
VICTOR K.,
Appellant,
v.
DEPARTMENT OF CHILD SAFETY, K.K., J.K., V.K.,
Appellees.
No. 1 CA-JV 20-0067
FILED 02-04-2021
Appeal from the Superior Court in Maricopa County
No. JD510435
The Honorable Jeffrey A. Rueter, Judge
AFFIRMED
COUNSEL
The Stavris Law Firm, PLLC, Scottsdale
By Christopher Stavris
Counsel for Appellant
Arizona Attorney General’s Office, Mesa
By Eric Devany
Counsel for Appellee
VICTOR K. v. DCS, et al.
Decision of the Court
MEMORANDUM DECISION
Judge David D. Weinzweig delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge D. Steven Williams joined.
W E I N Z W E I G, Judge:
¶1 Victor K. (“Father”) appeals the juvenile court’s order
terminating his parental rights to J.K., K.K. and V.K. (the “Children”).
Because Father has shown no error, we affirm.1
FACTS AND PROCEDURAL BACKGROUND
¶2 The Department of Child Safety (“DCS”) first removed the
Children from Father in July 2012 based on domestic violence, substance
abuse, physical abuse and sexual abuse. The court found the Children
dependent as to Father, adopted a family reunification case plan, and
ordered DCS to provide Father with reunification services. Father initially
refused to attend individual counseling, which he felt was unnecessary, and
he showed little behavioral change in parent-aid meetings.
¶3 A licensed psychologist, Dr. Al Silberman, performed a
bonding and best-interests assessment in June 2014. Although he later
revisited and revised his opinion, Dr. Silverman concluded the Children
could live with Father without danger and DCS should reunite them.
Father had shown enough progress by July 2014 for the court to return the
Children to his physical custody as dependent children.
¶4 Four months after reunification, DCS was informed the
Children lacked proper supervision and were exhibiting sexual behaviors.
An older sister had also been physically violent with the Children. Other
evidence corroborated the allegations. DCS also learned that Father was
not providing J.K. and K.K. with their prescribed ADHD medication, with
a report that Father was keeping the medication for himself. The court
again removed the Children from Father in October 2014.
¶5 The dependency continued. V.K. was returned to Father’s
physical custody in December 2016, and V.K.’s dependency proceeding
1 The juvenile court terminated Mother’s parental rights in May 2015;
she is not a party to this appeal.
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VICTOR K. v. DCS, et al.
Decision of the Court
was then dismissed. The court returned J.K. and K.K. to Father in August
2018 as dependent children based on input from third-party service
providers.
¶6 DCS received more allegations of abuse and neglect by Father
in February 2019. The investigation corroborated the allegations, including
that Father had physically abused the Children, threatened to slit their
throats, and denied them food and medication. Father reportedly asked
one child: “Should I kill you now? Should I strip you naked and throw you
in the street for everyone to see? Should I just kill you all?”
¶7 The Children were removed from Father in April 2019.
Recognizing the length of the dependency (seven years) and lack of
progress, DCS moved to terminate Father’s parental rights to J.K. and K.K.
on statutory grounds of abuse and neglect, fifteen months time-in-care and
abandonment. DCS also reinstated the dependency for V.K. and moved to
contemporaneously adjudicate V.K. dependent and terminate Father’s
parental rights to V.K. on statutory grounds of abuse and neglect.
¶8 By then, DCS had offered Father substance-abuse treatment,
substance-abuse testing, parent-aide services, two supervised-visitation-
only parent aides, two psychological consultations, multiple psychological
evaluations, two psychosexual evaluations, two bonding and best-interest
assessments, two family therapists, two individual counselors, two family
reunification teams, a child-and-family team, team decision-making
meetings, and a family interventionalist.
¶9 A few months later, Dr. Silberman again examined the
Children individually and diagnosed each with post-traumatic stress
disorder (“PTSD”) stemming from Father’s physical and emotional abuse.
Dr. Silberman concluded that reunification was not in the Children’s best
interests and recommended no visitation for Father.
¶10 The juvenile court held an eight-day severance hearing in
February 2020. Father was present, represented by counsel and testified on
his own behalf. The court ultimately terminated Father’s parental rights to
J.K. for abandonment, § 8-533(B)(1), to J.K. and K.K. for abuse and neglect,
A.R.S. § 8-533(B)(2), and fifteen months time-in-care, § 8-533(B)(8)(c), and to
V.K. for abuse and neglect, § 8-533(B)(2). The court also found that
termination was in the Children’s best interests because they were
adoptable and succeeding in their placements. Father timely appealed. We
have jurisdiction. A.R.S. § 8-235.
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VICTOR K. v. DCS, et al.
Decision of the Court
DISCUSSION
¶11 Father has a fundamental but not absolute right to custody of
his children. Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 248, ¶¶ 11-
12 (2000). To sever the parent-child relationship, the juvenile court must
find clear and convincing evidence of at least one statutory ground under
A.R.S. § 8–533(B), and must find by a preponderance of the evidence that
termination is in the child’s best interests. Id. at 249, ¶ 12. We will affirm a
severance order unless it is clearly erroneous. Jesus M. v. Ariz. Dep’t of Econ.
Sec., 203 Ariz. 278, 280, ¶ 4 (App. 2002). We accept the court’s findings of
fact unless no reasonable evidence supports them, id., and view the
evidence in the light most favorable to upholding the order, Denise R. v.
Ariz. Dep’t of Econ. Sec., 221 Ariz. 92, 97, ¶ 20 (App. 2009).
¶12 Father challenges the juvenile court’s finding of statutory
grounds to terminate his parental rights to K.K. and V.K. but does not
challenge the court’s finding of abandonment as to J.K. He contends the
court had insufficient evidence to terminate his parental rights to K.K. and
V.K. based on abuse or neglect. He also challenges the court’s best interests
finding for all three children.
¶13 Parental rights are terminable upon clear and convincing
evidence, Dominique M. v. Dep’t of Child Safety, 240 Ariz. 96, 98, ¶ 7 (App.
2016), that a “parent has neglected or willfully abused a child,” A.R.S.
§ 8-533(B)(2). Neglect means “the inability or unwillingness of a parent . . .
to provide [the] child with supervision, food, clothing, shelter or medical
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). “Abuse” means
inflicting or allowing another to inflict “physical injury, impairment of
bodily function or disfigurement or . . . cause serious emotional damage as
evidenced by severe anxiety, depression, withdrawal or untoward
aggressive behavior and which emotional damage is diagnosed by a
medical doctor or psychologist and is caused by the acts or omissions of an
individual who has the care, custody and control of a child.” A.R.S. § 8-
201(2).
¶14 Father has shown no error with the court’s finding of abuse
or neglect, A.R.S. § 8-533(B)(2), and we therefore do not examine the
remaining grounds for termination. The juvenile court was presented with
substantial evidence of physical and emotional abuse. The court heard
testimony that Father whipped the Children, ignored sexual misconduct
inflicted upon them and left the Children hungry. The record also shows
that Father threatened to kill the Children and leave them naked in the
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VICTOR K. v. DCS, et al.
Decision of the Court
streets for “everyone to see.” Father’s abuse caused the Children to develop
PTSD.
¶15 Father counters with record evidence he views as more
favorable to his position, but this court will not reweigh the evidence or
redetermine the credibility of the witnesses. Alma S. v. Dep’t of Child Safety,
245 Ariz. 146, 151, ¶ 18 (2018).
¶16 Father also contends the juvenile court erroneously
concluded it “only needed to consider the events from the most recent
return of the children and the most recent removal[,] as this ruling negated
Father’s progress during the course of the case which [led] to the children’s
return to Father.” We agree the court misstated the law, which does not
limit the definition of “abuse” to events in a particular period, A.R.S. § 8-
201(2), but the error was not prejudicial. Father’s history with DCS would
not have helped his case. And at most, the juvenile court must consider the
risk of harm to non-abused children when terminating parental rights to
non-abused children, unlike here. See Sandra R. v. Dep’t of Child Safety, 248
Ariz. 224, 228-29, ¶¶ 16-22 (2020). Because the record includes substantial
evidence to support the juvenile court’s finding of abuse and neglect as to
the Children, we need not assess the court’s remaining statutory grounds.
¶17 Next, the record supports the juvenile court’s best-interest
finding that the Children “would derive an affirmative benefit from
termination or incur a detriment by continuing in the relationship.” Ariz.
Dep’t of Econ. Sec. v. Oscar O., 209 Ariz. 332, 334, ¶ 6 (App. 2004). If denied
severance, the Children would have remained with a neglectful parent.
Furthermore, the Children are adoptable and succeeding in their current
placements. See Audra T. v. Ariz. Dep’t of Econ. Sec., 194 Ariz. 376, 377, ¶ 5
(App. 1998). In sum, Father has shown no error in the juvenile court’s best-
interest determination.
CONCLUSION
¶18 We affirm.
AMY M. WOOD • Clerk of the Court
FILED: JT
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