Opinion
No. 1 CA-JV 18-0430
06-18-2019
BENNIE D., Appellant, v. DEPARTMENT OF CHILD SAFETY, A.D., B.D., Appellees.
COUNSEL Czop Law Firm, PLLC, Higley By Steven Czop Counsel for Appellant Arizona Attorney General's Office, Mesa By Lauren J. Lowe Counsel for Appellee
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
Appeal from the Superior Court in Maricopa County
No. JD530572; JD531151
The Honorable Jennifer E. Green, Judge
AFFIRMED
COUNSEL
Czop Law Firm, PLLC, Higley
By Steven Czop
Counsel for Appellant
Arizona Attorney General's Office, Mesa
By Lauren J. Lowe
Counsel for Appellee
MEMORANDUM DECISION
Judge James B. Morse Jr. delivered the decision of the Court, in which Presiding Judge Jennifer B. Campbell and Judge Maria Elena Cruz joined.
MORSE, Judge:
¶1 Bennie D. ("Father") appeals the juvenile court's order terminating his parental relationship with A.D. and B.D. ("Children"). For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 A few months after a domestic-violence incident between Father and A.D.'s mother, Father and A.D. moved in with another woman, Sherrie, and her seven children. Together, Father and Sherrie had another child—B.D. While Father and Sherrie lived together, the Department of Child Safety ("DCS") received multiple reports of substance abuse, neglect, and domestic violence in the house.
¶3 One morning in June 2016, Father and Sherrie got into an argument that escalated until Father put his hands around Sherrie's neck and strangled her until she lost consciousness. At least two of Sherrie's children witnessed the strangling, and four reported seeing foam coming out of Sherrie's mouth. After Father left, Sherrie changed the locks on the door and called Father's brother to tell him that Father was not allowed back in the house. Father returned that evening and tried to enter the home. Sherrie told him to leave because she was scared. She also directed some of her children to move the refrigerator in front of the door. Father used a tool of some sort to open the screen door and also broke the handle off of the front door. Sherrie retrieved Father's handgun from the bedroom and fired two warning shots into the ceiling. At that point, Father called the police, who arrived and recorded statements about the events of that day.
¶4 After the June 2016 domestic-violence incident, Father was charged with, and pled guilty to, one count of domestic-violence aggravated assault and was placed on three years' probation with domestic-violence terms. DCS also took A.D. into temporary custody and placed her with a relative. A few months later, when DCS learned that Father was
again staying with Sherrie, DCS also removed B.D. and placed him with a relative.
¶5 Between June 2016 and the August 2018 termination hearing, Father completed the services DCS offered, including domestic-violence counseling. His visits with the Children went well, although he only had minimal contact with A.D. outside of visits and he did not provide DCS with the name of an appropriate supervisor so he could have more visits. He also moved several times, starting out on his brother's sofa and eventually getting an apartment of his own. He had multiple jobs during the dependency, first at a fast food restaurant, later at a temp agency, and then as a forklift driver at the time of the termination hearing.
¶6 Near the time of the initial removal, Father submitted hair follicles that tested positive for cocaine. He admitted that he used cocaine "recreationally," and said the last time he used it was six months prior. In March 2018, Father again screened positive for cocaine at one of his drug tests through the probation office. But when Father was examined by a clinical psychologist, he denied any history of cocaine use. Father also used marijuana consistent with a valid medical marijuana card.
¶7 Sometime in 2017, Father engaged in a relationship with Brittany, a woman who was also on probation, had substance-abuse issues, and had been previously involved in a relationship that suffered from domestic violence. Brittany and Father had a child together. Brittany tested positive for THC and amphetamines at a prenatal checkup, and she and the new baby tested positive for THC at birth. At Father's termination hearing, Brittany's DCS caseworker testified that Brittany was not participating in services for her drug abuse problems. Father frequently referred to Brittany as his girlfriend to probation officers, but denied any relationship with her, or their new child, to DCS workers. For example, on June 27, 2018, the probation officer made a note, "I met with def, g/f Brittney [sic] . . . and did a walk thru of the residence." On the same day, the DCS caseworker inspected Father's apartment and asked Father if anyone else lived there when he saw a hair straightener in his bathroom. Father denied that anyone else lived there and suggested that the straightener was his sister's. He also denied that he could be the father of the newly-born child, but a paternity test confirmed that he was the baby's father. Father later testified that he and Brittany had "a brief history together." Unfortunately, even though Father completed a domestic-violence class, Brittany's mother reported to a DCS caseworker that she witnessed Father beat Brittany "nearly to death."
¶8 The juvenile court terminated Father's relationship with the Children based on the fifteen months' time-in-care ground. Father timely appealed. This Court has jurisdiction under Arizona Revised Statutes ("A.R.S.") sections 8-235, 12-120.21(A)(1), and -2101(A)(1).
DISCUSSION
I. Admission of Evidence
¶9 Father contends that the juvenile court erred by admitting exhibits 22, 42, 44, and 46 at the termination hearing. Exhibit 22 contains criminal records relating to Brittany, exhibits 42 and 44 are DCS case files relating to Brittany, and exhibit 46 is the police report dealing with the June 2016 domestic-violence incident. Father's arguments rest on timeliness, foundation, and hearsay. Because of the juvenile court's "broad discretion in admitting or excluding evidence," we review evidentiary rulings for an abuse of discretion and resulting prejudice. Lashonda M. v. Ariz. Dep't of Econ. Sec., 210 Ariz. 77, 82-83, ¶ 19 (App. 2005).
¶10 Father contends that three exhibits were untimely disclosed. The juvenile court recognized the late disclosure, and as a result provided Father with any more time he needed to call and examine witnesses relating to those exhibits. The juvenile court may impose a sanction, including preclusion, for untimely disclosed evidence, but in so doing, the court must act in accordance with the best interests of the children. James A. v. Dep't of Child Safety, 244 Ariz. 319, 321, ¶ 8 (App. 2018). In this case, the juvenile court viewed the evidence as "critical" to determining what is in the best interests of the Children. The court properly admitted the evidence, while also ensuring that the late disclosure did not adversely affect Father's ability to raise any defense.
¶11 Father generally states that exhibits 22, 42, and 44 lacked foundation. However, the record shows that exhibit 22 was properly authenticated by affidavit. Exhibits 42 and 44 were also properly authenticated at the termination hearing by the DCS worker who authored those reports.
¶12 Father also asserts that exhibits 22, 42, and 44 were inadmissible hearsay. He alleges that exhibit 22 included a hearsay statement by Brittany. However, DCS introduced it as a prior inconsistent statement and, thus, it was subject to an exception to the hearsay rule. See Ariz. R. Evid. 801(d)(1)(A) (witness's prior inconsistent statement is not hearsay). Father did not object on hearsay grounds to exhibits 42 and 44 prior to appeal, and therefore we review for fundamental error. Ruben M.
v. Ariz. Dept. of Econ. Sec., 230 Ariz. 236, 239, ¶ 14 (App. 2012). Under fundamental error review, Father had the burden to show that "the error goes to the foundation of [his] case, takes away a right essential to the defense, or is of such magnitude that it denied [him] a fair trial." State v. Escalante, 245 Ariz. 135, 138, ¶ 1 (2018). Father does not argue how any alleged error was fundamental, and we do not perceive fundamental error. As mentioned above, adequate foundation was laid prior to the admission of the case files, and the caseworker who authored and compiled the reports was available for cross examination. Because any error was not fundamental, we will not reverse the judgment of the juvenile court. See State v. McGann, 132 Ariz. 296, 299 (1982) (explaining that unobjected-to hearsay is competent evidence if its admission is not fundamental error).
¶13 Finally, exhibit 46, the police report containing children's statements about the June 2016 domestic-violence incident, was also properly admitted. Out-of-court statements by a child about abuse are admissible in a termination hearing "if the time, content and circumstances of such a statement . . . provide sufficient indication of its reliability." A.R.S. § 8-237. The statements have many indicia of reliability: The statements were made on the day of the incident of question, the police talked with each child independently, the marks on Sherrie were consistent with the children's testimony, and the children's statements were consistent with each other and Sherrie's statement. Thus, the juvenile court did not abuse its discretion in admitting the report.
II. Termination of the Parent-Child Relationship
¶14 To terminate a parent-child relationship, a court must find at least one ground for termination by clear and convincing evidence, and also find that termination is in the best interests of the child by a preponderance of the evidence. Aleise H. v. Dep't of Child Safety, 245 Ariz. 569, 572, ¶ 7 (App. 2018). We defer to the juvenile court's factual findings because it "is in the best position to weigh the evidence, observe the parties, judge the credibility of witnesses, and resolve disputed facts." Jordan C. v. Ariz. Dep't of Econ. Sec., 223 Ariz. 86, 93, ¶ 18 (App. 2009) (quoting Ariz. Dep't of Econ. Sec. v. Oscar O., 209 Ariz. 332, 334, ¶ 4 (App. 2004)). We will not reverse unless its findings are not supported by reasonable evidence. Ariz. Dep't of Econ. Sec. v. Matthew L., 223 Ariz. 547, 549, ¶ 7 (App. 2010).
¶15 To prove the allegations for the statutory fifteen months' time-in-care ground, DCS had to show that it "made a diligent effort to provide appropriate reunification services" and that
The child has been in an out-of-home placement for a cumulative total period of fifteen months or longer pursuant to court order or voluntary placement pursuant to § 8-806, the parent has been unable to remedy the circumstances that cause the child to be in an out-of-home placement and there is a substantial likelihood that the parent will not be capable of exercising proper and effective parental care and control in the near future.
A.R.S. § 8-533(B)(8)(c). Father does not dispute the services offered by DCS or the length of the Children's out-of-home placement, and the record amply supports these two elements. Instead, Father contends that the juvenile court (i) erred in finding that the evidence was sufficient to support termination; (ii) used an improper standard in determining that Father had not remedied the circumstances that caused the children to be in an out-of-home placement; and (iii) improperly considered Father's use of medical marijuana in terminating his parental rights. None of these claims have merit.
¶16 The Children were initially taken into custody because of a serious domestic-violence incident. During the dependency, Father made improvements in housing and employment. He also completed the services offered, including domestic-violence counseling. But the record contains evidence that Father's issues were not resolved, and Father continued to engage in domestic violence as evidenced by another severe domestic-violence incident months before the termination hearing. The DCS caseworker noted that Father was in a relationship with a person who would not be an appropriate caregiver due to her own substance abuse and mental health issues. Father also repeatedly lied to DCS about this relationship. We must defer to the juvenile court's factual findings, Jordan C., 223 Ariz. at 93, ¶ 18, and affirm if there is reasonable evidence to support the decision, Matthew L., 223 Ariz. at 549, ¶ 7. In light of this deferential standard, reasonable evidence supports the juvenile court's conclusion that, at the time of the termination hearing, Father had not remedied the circumstances that caused the Children to be in the out-of-home placement. Because Father successfully completed domestic-violence counseling and still did not make the required behavioral changes, the juvenile court could also reasonably conclude that there was a substantial likelihood that Father would not exercise proper parental care in the near future.
¶17 Father points to evidence that his visits with the Children went well; however, as the caseworker testified, being a fit and proper parent is more than having positive interactions with children for a few
hours at a time. It also includes providing a stable environment and choosing appropriate people to be caretakers for his children who would not expose them to substance abuse or domestic violence.
¶18 Father contends that the juvenile court incorrectly used "behavioral changes" as the standard for the statutory termination ground. But in the court's ruling, it clearly referred to and relied on the proper statutory elements for termination as stated in A.R.S. § 8-533(B)(8)(c). Father contends that, "[t]he behaviors to be considered by the court are those as they relate to proper and effective parental care, not whether someone can make better moral decisions." While we generally agree with this statement, all of the facts considered by the juvenile court impacted Father's ability to parent. Specifically, the court looked at Father's drug use history, employment and housing stability, relationship with a potential caregiver for the Children, and interactions with the Children. While some of these facts may not be dispositive as to Father's parental abilities, together they inform his parental abilities.
¶19 A person's medical marijuana use may not be used to interfere with their parent-child relationship "unless the person's behavior creates an unreasonable danger to the safety of the minor." A.R.S. § 36-2813(D). The juvenile court stated, "Father's choice to use cocaine during the pendency of this case (a stimulant) either once or twice is of great concern to the court when he is an admitted regular user of marijuana. The combination of cocaine (a highly addictive stimulant) and marijuana (a depressant) is alarming." The court clearly referenced father's "choice to use cocaine" and the "combination" of the two drugs as the concerns—not the medical marijuana use alone. In addition, there is sufficient evidence in the record to support a ground for termination without any reliance on Father's medical marijuana use as a factor.
¶20 There was also sufficient evidence in the record to support a determination that termination was in the best interests of the Children. To find that termination is in the best interests of the Children, the juvenile court was required to find that termination would either result in a benefit to the Children or that the Children would be harmed if the relationship was not terminated. Alma S. v. Dep't of Child Safety, 245 Ariz. 146, 150, ¶ 13 (2018). The juvenile court found that both Children were in adoptive placements with relatives, and those placements were providing them with "a loving and nurturing home environment." It also found that termination would give the Children more certainty and stability. The court noted Father's bond with the Children, but remarked that Father puts the Children's safety and well-being at risk by his relationship with Brittany.
Thus, the court properly considered the totality of the circumstances, and its decision is supported by reasonable evidence.
CONCLUSION
¶21 For the foregoing reasons, we affirm the judgment of the juvenile court terminating Father's parental relationship with the Children.