Opinion
No. 1 CA-JV 13-0172
01-23-2014
JAMIE M., Appellant, v. ARIZONA DEPARTMENT OF ECONOMIC SECURITY, B.F., B.M., K.M., Appellees.
David W. Bell, Attorney at Law, Mesa By David W. Bell Counsel for Appellant Arizona Attorney General's Office, Phoenix By Michael F. Valenzuela Counsel for Appellees
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
Appeal from the Superior Court in Maricopa County
No. JD21568
The Honorable Aimee L. Anderson, Judge
AFFIRMED
COUNSEL
David W. Bell, Attorney at Law, Mesa
By David W. Bell
Counsel for Appellant
Arizona Attorney General's Office, Phoenix
By Michael F. Valenzuela
Counsel for Appellees
MEMORANDUM DECISION
Presiding Judge Maurice Portley delivered the decision of the Court, in which Judge John C. Gemmill and Judge Kent E. Cattani joined. PORTLEY, Judge:
¶1 Jamie M. ("Father") appeals the order terminating his parental rights to his sons, B.M. and K.M. He argues that the termination should be reversed because (1) the juvenile court erred in determining that the Arizona Department of Economic Security ("ADES") proved three statutory bases for termination and (2) ADES failed to provide him with sufficient reunification services. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Father and his wife ("Mother") are the parents of two sons; B.M, born in July 2008 and K.M., born in February 2010. The family, which also included Mother's eight-year-old son, B.F., was living in Washington in 2011. When Father moved to Montana to complete his parole, Mother and the three boys moved to Arizona.
¶3 Father came to Arizona in December 2011 for a family visit, and then took B.M. to Montana for a two-week trip. Days after the three-year-old returned to Arizona, B.M. began exhibiting behavior indicating sexual abuse. Mother and her mother ("Grandmother") sought help from Child Protective Services in January 2012 by taking the child to ChildHelp. ADES subsequently provided counseling for B.M. and his older stepbrother, B.F.
¶4 The children were placed in Grandmother's care in February 2012. After Father moved to Arizona in March, ADES filed a dependency petition against both parents. The juvenile court subsequently found the three boys to be dependent and approved a concurrent case plan of family reunification and severance and adoption.
¶5 ADES offered Father a psychological evaluation, a psychosexual evaluation, parenting classes, and because of his history of drug abuse and domestic violence, drug testing, drug treatment therapy, and anger management. Father participated in random drug testing, drug treatment therapy, anger management, and the psychological and psychosexual evaluations. Despite his participation, ADES sought and received in September 2012 permission to file a motion to terminate Father's parental rights. The petition alleged: (1) that Father was unable to discharge his parental duties due to chronic substance abuse; (2) he neglected or willfully refused to remedy the circumstances that caused his children, who were under the age of three, to be in an out-of-home placement for six months or longer; and (3) that he abused his children, pursuant to Arizona Revised Statutes ("A.R.S.") sections 8-533(B)(3), -533(B)(8)(b), and -533(B)(2) (West 2014), respectively.
¶6 The juvenile court conducted a contested severance hearing in March 2013. In addition to the ADES witnesses, both parents testified. The court subsequently issued its findings of fact and conclusions of law, and found that ADES had proven three statutory bases for terminating Father's parental rights by clear and convincing evidence and that severance would be in the best interests of the children.
Mother is not a party to this appeal.
DISCUSSION
¶7 On appeal, we view the facts in the light most favorable to sustaining the findings of the juvenile court. Christina G. v. Ariz. Dep't of Econ. Sec., 227 Ariz. 231, 234, ¶ 13, 256 P.3d 628, 631 (App. 2011). We will affirm the juvenile court's ruling unless clearly erroneous. See Raymond F. v. Ariz. Dep't of Econ. Sec., 224 Ariz. 373, 376, ¶ 13, 231 P.3d 377, 380 (App. 2010). A ruling is not clearly erroneous if it is supported by substantial evidence. See Lashonda M. v. Ariz. Dep't of Econ. Sec., 210 Ariz. 77, 81, ¶ 13, 107 P.3d 923, 927 (App. 2005) (citing Mealey v. Arndt, 206 Ariz. 218, 221, ¶ 12, 76 P.3d 892, 895 (App. 2003) (stating that substantial evidence is any relevant evidence that allows a reasonable person to reach the same conclusion as the fact-finder)).
I. Willful Abuse or Failure to Protect
¶8 Father argues that the termination of his parental rights should be reversed because the juvenile court erred by finding that he willfully abused or failed to protect B.M. Section 8-533(B)(2) provides that termination is proper if there is substantial evidence that "the parent has . . . willfully abused a child" and if it is in the best interest of the child. See Raymond F., 224 Ariz. at 377, ¶ 15, 231 P.3d at 381 (stating the burdens of proof required to terminate parental rights).
Father does not challenge the juvenile court's finding that severance was in the best interests of the children.
¶9 Father first contends that the evidence against him was not credible. Father is asking this court to reweigh the evidence. We will not do so because the juvenile court "is in the best position to weigh the evidence, observe the parties, judge the credibility of witnesses, and resolve disputed facts." Jordan v. Ariz. Dep't of Econ. Sec., 223 Ariz. 86, 93, ¶ 18, 219 P.3d 296, 303 (App. 2009) (quoting Ariz. Dep't of Econ. Sec. v. Oscar O., 209 Ariz. 332, 334, ¶ 4, 100 P.3d 943, 945 (App. 2004)).
¶10 Father next asserts that ADES lacked evidence to show that he abused B.M. because no criminal charges were ever filed against him. Although there was no evidence that criminal charges were filed, the absence of such charges does not mean that there was insufficient evidence to prove the allegation. Instead, the lack of criminal charges may only mean that the county or district attorney exercised discretion in the criminal law context, but not in any child welfare context. See State v. Frey, 141 Ariz. 321, 324, 686 P.2d 1291, 1294 (App. 1984) ("The prosecutor has broad discretion in determining what charges, if any, are to be filed."); see also Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978) ("[S]o long as the prosecutor has probable cause to believe that the accused committed an offense . . . the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion.").
¶11 Here, the juvenile court heard Mother testify that B.M. began acting out after he returned from his trip with Father. She testified that Grandmother and B.M.'s daycare provider also expressed concern over his sudden change in behavior. Mother recounted an episode shortly after the child returned to Arizona where he tried to insert his fingers into his younger brother's posterior while the two children were sharing a bath. Mother also testified that B.M.'s daycare provider reported to her that B.M. was "grabbing little boys' butts. He grabbed the teacher's breast." The child's counselor submitted a report where Grandmother reported that B.M. placed her foot on his penis and rubbed against it. When asked by Mother and Grandmother about this behavior, B.M. responded that "daddy does it" and that "[Father] touched my weiner [sic], he but [sic] his finger in my butt, it hurt, he hurt me." The report also provided that B.M. disclosed to his counselors on several occasions that Father had "touched my butt and my weiner [sic]."
¶12 The juvenile court considered the testimony, various evaluations and reports regarding the children and Father that were admitted into evidence, and the written closing arguments by counsel. The court concluded that Father had abused B.M. during their two-week trip and that "[a]s a result the child started to have inappropriate sexualized behaviors that included being sexually inappropriate with his brother, maternal grandmother, and other children in his daycare. Additionally the child became withdrawn, angry and started wetting and soiling himself." Consequently, there was substantial evidence for the court's conclusion that Father abused B.M.
Because we find that the evidence supported the juvenile court's ruling terminating Father's parental rights pursuant to § 8-533(B)(2), we do not need to address the additional grounds for severance. See Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, 280, ¶ 3, 53 P.3d 203, 205 (App. 2002).
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II. Reasonable Reunification Services
¶13 Father also argues that his termination should be reversed because ADES did not make diligent efforts to reunite him with his children. Specifically, Father argues that ADES had a duty to provide visitation with his children.
¶14 Section 8-533(B)(2) does not require that ADES make reasonable efforts to reunify the family before the termination of parental rights. Furthermore, we are unaware of any case that holds that there is an implied obligation to provide reasonable services in cases of neglect or abuse. Cf. Jennifer G. v. Ariz. Dep't of Econ. Sec., 211 Ariz. 450, 453 & n.3, ¶ 12, 123 P.3d 186, 189 (App. 2005) (noting ADES's obligation to provide reasonable reunification services when severance is based on the statutory ground of substance abuse); Mary Ellen C. v. Ariz. Dep't. of Econ. Sec., 193 Ariz. 185, 192, ¶ 34, 971 P.2d 1046, 1053 (App. 1999) (stating that there is an implied obligation for ADES to provide reasonable reunification services when severance is based on the statutory ground of mental illness).
¶15 If, however, we assume that ADES had an obligation to attempt reunification efforts, the record supports the juvenile court's finding that ADES provided reasonable services even in the absence of visitation. Father was offered a psychological evaluation, a psychosexual evaluation, parenting classes, and other services.
¶16 Father claims, however, that ADES had a duty to provide visitation to his children. We disagree.
¶17 The juvenile court restricted Father's contact with the children at the initial dependency hearing until B.M. completed a forensic interview. Father argues that once the forensic interview took place, ADES had the responsibility to offer visitation. The record, however, shows that ADES twice attempted to conduct a forensic interview, but because the boy "experienced such severe separation anxiety" he was unable to speak to any of the interviewers without the presence of Mother or Grandmother. As a result, the court subsequently vacated the order that required a completed forensic interview before the start of counseling. The court, however, did not modify the restrictions on Father's visitation. ADES provided approximately nine months of therapy, and midway through, again unsuccessfully attempted a third forensic interview. Father never raised the issue of visitation with any of his children, even supervised visitation, while ADES attempted to secure a forensic interview with B.M., and did not raise the issue during the nine months the child was in counseling or before the severance adjudication. Because ADES was concerned about the abuse and the need to protect B.M. from further harm or trauma, the record demonstrates that the juvenile court did not err by finding that ADES provided reasonable reunification services. See Mary Ellen C., 193 Ariz. at 192, ¶ 37, 971 P.2d at 1053 (stating that ADES need not provide every conceivable service).
CONCLUSION
¶18 For the foregoing reasons, we affirm.