Opinion
No. 2 CA-JV 2018-0046
06-12-2018
JASON R., Appellant, v. DEPARTMENT OF CHILD SAFETY AND A.R., Appellees.
COUNSEL Alewelt Law and Consulting PLLC, Phoenix By Jennifer A. Alewelt Counsel for Appellant Mark Brnovich, Arizona Attorney General By Laura J. Huff, Assistant Attorney General, Tucson Counsel for Appellee Department of Child Safety Pima County Office of Children's Counsel, Tucson By Sybil Clarke Counsel for Minor
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f); Ariz. R. P. Juv. Ct. 103(G). Appeal from the Superior Court in Pima County
No. JD204921
The Honorable Deborah Pratte, Judge Pro Tempore
AFFIRMED
COUNSEL Alewelt Law and Consulting PLLC, Phoenix
By Jennifer A. Alewelt
Counsel for Appellant Mark Brnovich, Arizona Attorney General
By Laura J. Huff, Assistant Attorney General, Tucson
Counsel for Appellee Department of Child Safety Pima County Office of Children's Counsel, Tucson
By Sybil Clarke
Counsel for Minor
MEMORANDUM DECISION
Chief Judge Eckerstrom authored the decision of the Court, in which Judge Brearcliffe and Judge Eppich concurred. ECKERSTROM, Chief Judge:
¶1 Appellant Jason R. challenges the juvenile court's order of March 1, 2018, terminating his parental rights to A.R., born November 2015, on grounds of neglect and Jason's inability to remedy the circumstances causing A.R. to remain in a court-ordered, out-of-home placement for more than six months. See A.R.S. § 8-533(B)(2), (B)(8)(b). On appeal, Jason challenges the sufficiency of the evidence to sustain either of those statutory grounds for severance or to establish that terminating his parental rights was in A.R.'s best interests. Finding no error, we affirm.
¶2 Before it may terminate a parent's rights, a juvenile court must find by clear and convincing evidence that at least one statutory ground for severance exists and must find by a preponderance of the evidence that terminating the parent's rights is in the best interests of the child. See A.R.S. §§ 8-533(B), 8-537(B); Kent K. v. Bobby M., 210 Ariz. 279, ¶ 41 (2005). We will affirm an order terminating parental rights unless we must say as a matter of law that no reasonable person could find those essential elements proved by the applicable evidentiary standard. Denise R. v. Ariz. Dep't of Econ. Sec., 221 Ariz. 92, ¶ 10 (App. 2009). We view the evidence in the light most favorable to upholding the court's order. Manuel M. v. Ariz. Dep't of Econ. Sec., 218 Ariz. 205, ¶ 2 (App. 2008).
¶3 A.R. was taken into the custody of the Arizona Department of Child Safety (DCS) in February 2017, after police received a report that A.R.'s mother was passed out on a public bench while A.R., then almost sixteen-months-old, was under her supervision and attempting to get out of his stroller. Jason was incarcerated at that time, and both he and A.R.'s mother had been involved in a previous case with DCS in which their parental rights to another child had been severed.
¶4 A.R. was found dependent in April 2017 after Jason entered a "no-contest" plea to the allegations made in a dependency petition. Jason was released from custody shortly thereafter, and he completed an intake for services in May. He attended a few classes in May and June, before becoming "more engaged in July." However, he failed to attend individual therapy or complete a psychological evaluation as scheduled. He "was consistent and went to his drug testing," but tested positive for alcohol "off and on" through the summer and failed a few tests in the fall. He attended substance abuse and parenting classes. He was incarcerated again in October 2017.
Jason's paternity was established in June 2017. --------
¶5 DCS filed a motion for termination of Jason's parental rights in November 2017, alleging neglect and that A.R. had been in court-ordered care for six months or more. Jason was released in January 2018, and returned to his case plan. He began drug testing and reengaged in services, completing parenting and relapse-prevention classes. At the contested severance hearing held in January and February 2018, his case manager testified, however, that Jason was no closer to being able to reunify with and parent A.R. than when she had entered the case in March 2017. After the hearing, the juvenile court found that DCS had established both grounds for severance and that severance was in A.R.'s best interest.
¶6 On appeal Jason first contends the juvenile court erred in "finding neglect as a grounds for severance." He contends that the court erred in citing his having "fail[ed] to protect [A.R.] against his mother" as a basis for its neglect finding. Rather, he contends that by the time of the severance hearing, the mother's parental rights had been severed, he had provided "appropriate care and supervision to A.R. during . . . visits," and A.R. was not at "unreasonable risk of harm," because he was safely in a foster placement.
¶7 To establish the ground for severance under § 8-533(B)(2), DCS must show "the parent has neglected . . . a child," including "situations in which the parent knew or reasonably should have known that a person was abusing or neglecting a child." "Neglect" is defined as "[t]he inability or unwillingness of a parent . . . of a child to provide that 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). Although Jason couches his argument in terms of the situation as it existed at the time of the severance hearing, the statute does not require that the state show neglect at the time of the hearing. See § 8-533(B)(2).
¶8 The legislature has phrased some termination grounds in the present tense, such as mental illness or deficiency and the failure to remedy previous circumstances, see § 8-533(B)(3), (8), and others in the past tense, like abandonment and abuse or neglect, § 8-533(B)(1), (2). This distinction demonstrates that the legislature intended for a parent's rights to be subject to termination based solely on past abuse or neglect; see Timothy W. v. Dep't of Child Safety, 240 Ariz. 231, ¶ 6 (App. 2016) (plain language best indicator of intent). Had it intended that the state also demonstrate a risk of future abuse or neglect it would have said so. Jason cites no authority suggesting that DCS must demonstrate the likelihood of prospective abuse or neglect to prove that termination of a parent's rights under § 8-533(B)(2) is appropriate.
¶9 As we determined in Jade K. v. Loraine K., past neglect may serve as a basis for termination, although, to establish termination is appropriate based on neglect, "a parent's inability or unwillingness to provide supervision must be such that it can fairly be shown, by clear and convincing evidence, to render him 'unfit to be a parent,'" 240 Ariz. 414, ¶ 12-20 (App. 2016), quoting M.L.B. v. S.L.J., 519 U.S. 102, 121 (1996). In this case, although Jason has complied with aspects of his case plan since his release, he had not protected A.R. from neglect by his mother, and even at the time of the severance hearing, Jason had not obtained employment, housing, or demonstrated a sustained period of sobriety. As noted above, his caseworker testified he was no closer to being able to care for A.R. than he had been nearly a year before when the child was removed. Although he brought food and diapers for supervised visits, that is insufficient to establish that he is able to care for A.R. in a manner that does not put the child at risk of harm. And the fact that A.R. is currently being cared for as a ward of the state does not alter our assessment of Jason's neglect. Cf. Maricopa Cty. Juv. Action No. JS-5609, 149 Ariz. 573, 575 (App. 1986) ("normal home" under § 8-533(B)(4) does not include home created by other family members); In re Pima Cty. Juv. Dependency Action No. 98874, 161 Ariz. 231, 233 (App. 1989) ("[V]oluntary placement of a child with persons under no legal obligation to provide for the child fails to negate the basis for the finding of dependency.").
¶10 Jason further contends the juvenile court "err[ed] in finding length of time in care as a grounds for severance." Having concluded the juvenile court properly found the neglect ground proven, we need not address this ground. See Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, ¶ 27 (2000). In any event, however, Jason relies in large part on Steven K. v. Ariz. Dep't of Econ. Sec., which was ordered depublished by our supreme court, 210 Ariz. 483 (App. 2005), depublished 211 Ariz. 553 (2006), and therefore may not be cited as precedent, see Ariz. R. Civ. App. P. 28(e), Ariz. R. Sup. Ct. 111(c)(1).
¶11 Furthermore, Jason's arguments on this point amount to a request for this court to reweigh the evidence relating to his failure to remedy the circumstances that had caused A.R. to be in care. He relies on favorable testimony about his completion of various case plan tasks after his release, but does not address the contrary evidence cited by the court and discussed above. We do not reweigh the evidence, Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, ¶ 12 (App. 2002), and will defer to the court's resolution of conflicting inferences if supported by the record, see In re Pima County Adoption of B-6355 & H-533, 118 Ariz. 111, 115 (1978).
¶12 Finally, Jason contends the juvenile court "err[ed] in concluding severance was in A.R.'s best interest." "[A] determination of the child's best interest must include a finding as to how the child would benefit from a severance or be harmed by the continuation of the relationship." Titus S. v. Dep't of Child Safety, 788 Ariz. Adv. Rep. 43, ¶ 17 (Ct. App. Apr. 9, 2018), quoting In re Maricopa Cty. Juv. Action No. JS-500274, 167 Ariz. 1, 5 (1990). "When a current placement meets the child's needs and the child's prospective adoption is otherwise legally possible and likely, a juvenile court may find that termination of parental rights, so as to permit adoption, is in the child's best interests." Id. ¶ 22, quoting Demetrius L. v. Joshlynn F., 239 Ariz. 1, ¶ 12 (2016).
¶13 Again, Jason's argument amounts to a request to reweigh the evidence presented. At the severance hearing, the caseworker testified that A.R. was adoptable and was in an adoptive placement with his biological sibling that was "able to care for [his] needs." The caseworker's reports also reflect the placement's willingness to adopt A.R. The caseworker further testified that severance would provide A.R. with "stability and permanency." Jason asserts that in the absence of "direct evidence from A.R.'s foster placement confirming plans to adopt him," there is insufficient evidence to establish a benefit from severance. But Jason cites no authority for this proposition, and to the extent he relies on Titus S., his reading is too broad. As explained above, we determined that adoption must be possible and likely, but did not dictate any particular evidence to establish that likelihood. On the record before us, the caseworker's testimony that A.R.'s placement was an adoptive home, although not detailed, is uncontroverted. We therefore defer to the juvenile court's factual finding and affirm its ruling, as it is supported by the evidence. See Denise R., 221 Ariz. 92, ¶ 10.
¶14 For these reasons, we affirm the juvenile court's order severing Jason's parental rights.