Opinion
2 CA-JV 2023-0141
05-22-2024
IN RE TERMINATION OF PARENTAL RIGHTS AS TO T.D.,
Brandon H., Marana In Propria Persona Kristin K. Mayes, Arizona Attorney General By Amber E. Pershon, Assistant Attorney General, Phoenix Counsel for Appellee Department of Child Safety Pima County Office of Children's Counsel, Tucson By David Miller Counsel for Minor
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pima County No. JD20160865 The Honorable Michael Butler, Judge
Brandon H., Marana In Propria Persona
Kristin K. Mayes, Arizona Attorney General By Amber E. Pershon, Assistant Attorney General, Phoenix Counsel for Appellee Department of Child Safety
Pima County Office of Children's Counsel, Tucson By David Miller Counsel for Minor
Judge Sklar authored the decision of the Court, in which Vice Chief Judge Staring and Judge O'Neil concurred.
MEMORANDUM DECISION
SKLAR, JUDGE
¶1 Brandon H. appeals from the juvenile court's order terminating his parental rights to his son, T.D., born November 2021, on the grounds of substance abuse and time in care. He argues the court erred by failing to sua sponte "suspend[]" the termination hearing until he was released from incarceration and that a probation officer misled the court about his release, causing him to be unable to obtain evidence in his favor. He also asserts the Department of Child Safety (DCS) failed to present evidence that he "would be unable to parent in the near future," the court "merely acted as a 'rubber stamp' for DCS," and he is "now in possession of" evidence DCS refused to present. We affirm.
¶2 T.D. was born exposed to methamphetamine and fentanyl and was placed in foster care after Brandon failed to take a drug test. Brandon's participation in services, including drug testing, was sporadic. Although he completed a parenting program, he was under the influence of drugs during visits and tested positive for methamphetamine and other substances repeatedly through 2022 and 2023.
¶3 During the dependency, Brandon pled guilty to pending charges of burglary and theft and was placed on a four-year probation term in October 2022. After the state petitioned to revoke his probation in July 2023, based in part on his continued drug use, DCS petitioned to terminate his parental rights under A.R.S. § 8-533(B)(3) and (8)(b). Brandon was arrested before the termination hearing and appeared remotely while in custody. After the hearing, the juvenile court granted DCS's petition. It found DCS had proven that termination was warranted on both grounds of chronic substance abuse and time in care and that termination was in T.D.'s best interests. This appeal followed.
The juvenile court also terminated the parental rights of T.D.'s mother. She is not a party to this appeal.
¶4 A juvenile court may terminate a parent's rights if it finds by clear and convincing evidence that at least one of the statutory grounds for termination exists and by a preponderance of the evidence that termination of the parent's rights is in the child's best interests. A.R.S. §§ 8-533(B), 8-537(B); Sandra R. v. Dep't of Child Safety, 248 Ariz. (2020). We defer to the juvenile court's factual findings because, as the trier of fact, that 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, ¶ 4 (App. 2004). Accordingly, we will affirm a severance order if reasonable evidence supports the factual findings and the juvenile court's legal conclusions are not clearly erroneous. Brionna J. v. Dep't of Child Safety, 255 Ariz. 471, ¶¶ 30-31 (2023).
¶5 Brandon first argues the juvenile court erred in allowing the termination hearing to proceed despite his incarceration. Brandon relies on Cecelia A. v. Arizona Department of Economic Security, 229 Ariz. 286 (App. 2012), for the proposition that his due process rights were violated because "his incarceration drastically reduced his ability to assist his counsel." Cecelia A. does not support his argument. In that case, we determined that it does not violate due process if a juvenile court proceeds with a termination hearing even if the parent has been declared incompetent. Id. ¶ 9. It thus follows that it does not violate due process to proceed with a termination hearing merely because a parent is incarcerated. Brandon was permitted to attend the hearing telephonically and, in any event, has not explained with any specificity how he could have assisted counsel more effectively had he been released before the hearing. Although he generally claims he could have gathered evidence to rebut DCS's allegations, he does not explain what this evidence might have been or why he could not have directed counsel to this evidence. Cf. In re Maricopa Cnty. Juv. Action No. JV-133607 , 186 Ariz. 198, 201 (App. 1996) (appellate court will not reverse if error harmless).
¶6 Relatedly, Brandon asserts his probation officer misled the juvenile court by suggesting she "had no say about whether" he would be released. He asserts, without citation to the record, that the probation officer could have lifted a probation hold that would have resulted in his release and allowed him to gather evidence proving DCS's allegations were false. Brandon's failure to cite any authority or evidence in support of this argument constitutes waiver. See Christina G. v. Ariz. Dep't of Econ. Sec., 227 Ariz. 231, n.6 (App. 2011). Even absent waiver, as we have noted, Brandon has not shown the result of his proceeding would have been different had he been released before the hearing. See In re Maricopa Cnty. Juv. Action No. JV-133607 , 186 Ariz. at 201.
¶7 Brandon next summarily argues that DCS failed to show that he would be unable to parent in the near future. He apparently refers to an element of termination on substance-abuse grounds under § 8-533(B)(3) that a parent "is unable to discharge parental responsibilities" due to substance abuse. Again, Brandon's failure to meaningfully develop this argument constitutes waiver. See Christina G., 227 Ariz. 231, n.6. And, in any event, his argument is contradicted by the record. The record demonstrates Brandon's failure to address his substance abuse issues, as well as his inability to effectively parent as a result. Not only did Brandon continue to abuse substances throughout the dependency, he appeared to be under the influence of substances during visitation and would "have a very hard time staying awake" or would struggle "to follow a cohesive train of thought." As to Brandon's related assertion that the juvenile court was merely a "rubber stamp" for DCS, this undeveloped argument appears to be nothing more than a request that we reweigh the evidence, which we will not do. See Oscar O., 209 Ariz. 332, ¶ 14.
¶8 Finally, Brandon asserts he now has evidence that would support his case. Even had Brandon identified this evidence in his opening brief, we do not consider new evidence on appeal. See Thompson v. Ariz. Dep't of Econ. Sec., 127 Ariz. 293, 295 (App. 1980). Thus, we do not address this argument further.
Brandon attached several documents to his reply brief, none of which appear to have been provided to the juvenile court and, indeed, many of which appear to postdate the termination hearing. Thus, we will not consider them. See Thompson, 127 Ariz. at 295. He also raises several new arguments, including that these documents contradict facts DCS asserted at trial and that termination is not in T.D.'s best interests. We do not address arguments raised for the first time in a reply brief. See Marco C. v. Sean C., 218 Ariz. 216, n.1 (App. 2008).
¶9 We affirm the juvenile court's order terminating Brandon's parental rights to T.D.