Opinion
No. 1 CA-JV 15-0139
10-01-2015
EMILIANO L., Appellant, v. DEPARTMENT OF CHILD SAFETY, D.L., D.L., D.L., Appellees.
COUNSEL John L. Popilek, PC, Scottsdale By John L. Popilek Counsel for Appellant Arizona Attorney General's Office, Phoenix By JoAnn Falgout 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. JD27462
The Honorable Connie Contes, Judge
AFFIRMED
COUNSEL John L. Popilek, PC, Scottsdale
By John L. Popilek
Counsel for Appellant
Arizona Attorney General's Office, Phoenix
By JoAnn Falgout
Counsel for Appellee
MEMORANDUM DECISION
Judge Andrew W. Gould delivered the decision of the Court, in which Presiding Judge Donn Kessler and Judge Patricia K. Norris joined. GOULD, Judge:
¶1 This is an appeal of the juvenile court's decision to terminate Emiliano L.'s ("Father") parental rights to three of his children on the grounds of mental illness pursuant to Arizona Revised Statutes ("A.R.S.") section 8-533(B)(3). For the reasons that follow, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 The Department of Child Safety ("DCS") first became involved in this case in July 2013. At that time, DCS received a report that Mother was hospitalized after she overdosed on Tylenol in an "attempt to leave [F]ather." The report also stated that Father and Mother engaged in domestic violence in front of the children and that Father had blackened Mother's eye in September 2012.
¶3 Between July and mid-November 2013, Mother did not live with Father. However, when Mother returned to the home, Father became increasingly controlling of her, accusing Mother of cheating on him, going through her phone and taking the car keys to stop her from leaving.
¶4 Father and Mother had a verbal argument on November 25, and Mother attempted to leave and go to her father's house; however, Father found her there and eventually convinced her to return home. On November 26, a DCS case manager attempted to call Mother, but Father repeatedly refused to allow Mother to speak with the case manager, and only finally permitted Mother to come to the phone after several requests. When Mother finally came to the phone she was crying. She told the case manager she would only be able to stay away from Father if he did not know where she was. As a result, the case manager went to the home on November 26 and took the two minor children into care. Mother was pregnant at the time.
¶5 Upon taking the two older children into care DCS initiated dependency proceedings as to both Mother and Father. On February 4, 2014, Mother gave birth to a third child; because the dependency was still ongoing, DCS filed a petition of dependency and took the infant into custody on February 7.
At the time Father filed this appeal, Mother's parental rights had not been terminated. --------
¶6 As part of the services provided by DCS, Father underwent a psychological evaluation by Dr. Thal. Based on Dr. Thal's evaluation and recommendations, DCS moved to change Father's case plan to severance and adoption. The juvenile court granted the motion.
¶7 In its motion for termination of Father's parental rights DCS alleged Father was unable to discharge his parental responsibilities because of mental illness and there were reasonable grounds to believe Father's condition would continue for a prolonged indeterminate period.
¶8 The severance trial was set for January 28, 2015. At the outset of the trial, Father orally requested a continuance. Father's request was initially denied, but the juvenile court was forced to recess the proceedings until the next scheduled trial date because of Father's uncooperative behavior.
¶9 Following the conclusion of the severance trial, the juvenile court found DCS had proved the statutory grounds for severance by clear and convincing evidence, and that a preponderance of the evidence showed severance was in the children's best interests. Father timely appealed.
DISCUSSION
¶10 Father raises three issues on appeal: (1) whether the court erred in refusing to grant him a continuance; (2) whether the court relied on inadmissible hearsay in the DCS Case Manager reports; and (3) whether clear and convincing evidence exists to support the determination that Father was unable to discharge his parental responsibilities.
¶11 "Motions to continue are addressed to the sound discretion of the trial court and its decision will not be reversed absent a clear abuse of discretion." In re Yavapai Cnty. Juv. Action No. J-9365, 157 Ariz. 497, 499 (App. 1988). At the beginning of the severance trial Father requested a continuance to the next scheduled trial day. The court initially denied Father's request; however, because of Father's uncooperativeness during the proceedings, the court recessed until the next scheduled trial date and appointed a guardian ad litem to assist Father in the future. We find no abuse of discretion.
¶12 Next, Father argues the court incorrectly applied Rule 45 of Procedure for the Juvenile Court in admitting and relying on hearsay in the DCS Case Manager reports. We review the juvenile court's evidentiary rulings for an abuse of discretion; we will only reverse if the juvenile court clearly abused its discretion, and the error resulted in prejudice to Father. Lashonda M. v. Ariz. Dep't. of Econ. Sec., 210 Ariz. 77, 82-83, ¶ 19 (App. 2005). We review the juvenile court's interpretation and application of procedural rules de novo. Xavier R. v. Joseph R., 230 Ariz. 96, 98, ¶ 3 (App. 2012).
¶13 In juvenile court proceedings a party must identify the specific objections or grounds on which it objects to the admission of an exhibit, or the objection will be deemed waived. Ariz. R.P. Juv. Ct. 44(B)(2)(e); See also Ariz. R.P. Juv. Ct. 45(A) ("Except as provided in these rules, the admissibility of evidence shall be governed by the Arizona Rules of Evidence."); Ariz. R. Evid. 103(a) (stating that a party must timely object and state the specific ground); State v. Washington, 132 Ariz. 429, 431 (App. 1982) (finding waiver of hearsay objection when the objection was made during foundation testimony rather than at time of admission of the objected-to hearsay). This rule applies to termination proceedings as well as dependency proceedings. Ariz. R.P. Juv. Ct. 44(D)(2).
¶14 Father's opening brief does not clearly identify the exhibits which he claims contain inadmissible hearsay. Instead, he refers to objections made at the outset of the severance trial and to his written objections to the disclosure statement. The only hearsay objections Father raised with the required specificity were to the narrative portions in the body of admitted Exhibits 3, 4 and 20; Father did not object to any of the attachments to these reports. Moreover, even if we assume the juvenile court erred in admitting the subject exhibits, Father was not prejudiced. These reports are cumulative of the testimony presented at the trial. Specifically, the court's findings were supported by Dr. Thal's testimony, the DCS Case Manager's testimony, Father's own admissions, and information contained in Exhibits 1, 2 and 5.
¶15 Finally, Father argues DCS did not show by clear and convincing evidence that he was unable to discharge his parental responsibilities due to mental illness. A.R.S. § 8-533(b)(3). We disagree.
¶16 "In a termination proceeding, the trial court sits as trier of fact and, on appeal, we must accept that court's ruling unless its findings were clearly erroneous." Matter of Yavapai Cnty. Juv. Action No. J-9956, 169 Ariz. 178, 179 (App. 1991). To terminate a parent-child relationship on the ground that a parent is unable to discharge his parental responsibilities because of mental illness, DCS must show "'there are reasonable grounds to believe that the condition will continue for a prolonged indeterminate period'" and that DCS "has 'made a reasonable effort to preserve the family.'" Vanessa H. v. Ariz. Dep't of Econ. Sec., 215 Ariz. 252, 255-56, ¶ 17 (App. 2007) (quoting A.R.S. § 8-533(B)(3) and Mary Ellen C. v. Ariz. Dep't of Econ. Sec., 193 Ariz. 185, 192, ¶ 33 (App. 1999)). A "reasonable effort" does not require DCS to "undertake rehabilitative measures that are futile." Mary Ellen C., 193 Ariz. at 192, ¶ 34.
¶17 Clear and convincing evidence supports the juvenile court's finding that Father's mental illness renders him unable to discharge his parental responsibilities. Dr. Thal diagnosed Father with a personality disorder and a mood disorder that manifested in anger, paranoia, narcissism, difficulty abiding by rules, and lack of empathy. The doctor testified Father's disorder presented a risk to the children both in the possibility he would transmit his hostility and intense anger to the children, and in the probability the children would be exposed to the domestically violent relationship between Father and Mother.
¶18 The evidence shows Dr. Thal's concerns regarding the impact of Father's disorder on the children were already manifesting. When they were taken into care, the 3-year old and the 2-year old displayed guarded and disengaged behavior; both showed poor frustration tolerance and became sensitive and petulant when told "no." The 3-year old also showed aggressive behavior toward his 2-year old sister and was physically violent toward her and toward adults. Although Father displayed appropriate behavior toward his children during supervised visitation, he frequently would become emotionally distressed and cry in front of the children or become enraged and verbally abusive toward staff members in the children's presence.
¶19 The juvenile court's conclusion that Father's inability to discharge his parental responsibilities would continue for an indeterminate time despite DCS's reasonable efforts is also supported by the record. Dr. Thal testified that further treatment would not benefit Father because Father is not receptive to treatment. As a result, Father's condition would persist for a prolonged indeterminate time. During the dependency Father displayed an uncooperative and defiant attitude toward all services DCS provided. He did not participate consistently in random urinalysis testing and was eventually closed out of TASC. He did not participate in the ordered psychiatric evaluation. He repeatedly refused to abide by the rules of supervised visitation and was eventually closed out due to his volatile and hostile behavior.
CONCLUSION
¶20 For the reasons above, we affirm the juvenile court order terminating Father's parental rights to the children.