Opinion
No. 2 CA-JV 2018-0165
12-27-2018
MANUEL C., Appellant, v. DEPARTMENT OF CHILD SAFETY AND L.C., Appellees.
COUNSEL Alewelt Law and Consulting PLLC, Phoenix By Jennifer A. Alewelt Counsel for Appellant Mark Brnovich, Arizona Attorney General By Cathleen E. Fuller, Assistant Attorney General, Tucson Counsel for Appellee Department of Child Safety
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NOT FOR PUBLICATION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. JD165987
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 Cathleen E. Fuller, Assistant Attorney General, Tucson
Counsel for Appellee Department of Child Safety
MEMORANDUM DECISION
Presiding Judge Vásquez authored the decision of the Court, in which Judge Espinosa and Judge Eppich concurred. VÁSQUEZ, Presiding Judge:
¶1 Manuel C. appeals from the juvenile court's order terminating his parental rights to his son, L.C., born in July 2013, on grounds he had been in court-ordered care for longer than fifteen months, neglect, and chronic substance or alcohol abuse. See A.R.S. § 8-533(B)(2), (3), (8)(c). On appeal, Manuel challenges the sufficiency of the evidence to sustain any of the statutory grounds for severance and to establish that terminating his parental rights was in L.C.'s best interests. Finding no error, we affirm.
The juvenile court also severed the parental rights of L.C.'s mother, who is not a party to this appeal.
Factual and Procedural Background
¶2 A juvenile court may terminate a parent's rights if it finds clear and convincing evidence of a statutory ground for severance and finds by a preponderance of the evidence that termination is in the child's best interests. A.R.S. §§ 8-533(B), 8-537(B); Kent K. v. Bobby M., 210 Ariz. 279, ¶ 41 (2005). "[W]e will affirm a termination order that is supported by reasonable evidence." Jordan C. v. Ariz. Dep't of Econ. Sec., 223 Ariz. 86, ¶ 18 (App. 2009). That is, we will not reverse a termination order for insufficient evidence unless, as a matter of law, no reasonable fact-finder could have found the evidence satisfied the applicable burden of proof. See Denise R. v. Ariz. Dep't of Econ. Sec., 221 Ariz. 92, ¶ 10 (App. 2009).
¶3 We view the facts in the light most favorable to sustaining the juvenile court's ruling. Demetrius L. v. Joshlynn F., 239 Ariz. 1, ¶ 2 (2016). In September 2015, L.C. was placed with other family members due to the parents' substance abuse, Manuel's failure to protect L.C. from the mother, and a recent domestic violence incident between the parents. In October 2015, the Department of Child Safety (DCS) filed a dependency petition, alleging as to Manuel neglect due to substance abuse and domestic violence between the parents. L.C. was adjudicated dependent in January 2016.
It was reported that the mother had her rights to seven other children severed due to substance abuse and domestic violence.
In October 2013, the juvenile court dismissed a prior dependency petition filed a few days after L.C. was born.
¶4 DCS offered Manuel a variety of services, including random drug testing, substance-abuse and relapse-prevention education, parenting and healthy-relationship classes, individual counseling, and anger-management education. In 2016 and 2017, Manuel participated in services, albeit inconsistently, and sporadically complied with drug testing, providing diluted urine samples, some of which tested positive for alcohol and opiates. Manuel denied using drugs and maintained his urine results were diluted because he drank "a lot of water" due to his diabetes. In January 2018, he was closed out of drug testing due to his noncompliance.
¶5 In March 2018, DCS moved to terminate Manuel's parental rights based on neglect, chronic substance abuse, and fifteen-month time-in-care grounds. See § 8-533(B)(2), (3), (8)(c). In August 2018, after a contested severance hearing, the juvenile court granted DCS's motion, finding that it had proven all three grounds and that severance was in L.C.'s best interests. This appeal followed.
Neglect
¶6 The juvenile court found DCS had established the neglect ground based on domestic violence between the parents and concluded that Manuel had not benefitted from services, nor had he shown that he was able to parent L.C. or that he could "provide a safe, healthy environment" for him. Manuel's arguments on appeal include that there was insufficient evidence to support termination based on neglect. He maintains DCS was unaware of any domestic violence incidents between the parents since an additional incident in 2016 and there was no evidence he is incapable of providing support for L.C. or carrying out his parental duties.
Although the juvenile court determined that DCS had satisfied its obligation to make reasonable efforts to provide Manuel with rehabilitative services to terminate his parental rights based on neglect, we note there is no express requirement under § 8-533(B)(2) that DCS do so. We thus do not address this aspect of the court's ruling, which, in any event, Manuel does not specifically challenge on appeal.
¶7 To establish severance under § 8-533(B)(2), DCS must show "the parent has neglected . . . 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 Manuel primarily couches his argument in terms of the situation as it existed at the time of the severance and on his conduct since L.C.'s removal from his care, the statute does not require that the state show neglect at the time of the hearing. See § 8-533(B)(2). 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, see § 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 DCS also demonstrate a risk of future abuse or neglect, it would have said so.
Notably, Arizona courts have only required a showing of some future risk of abuse when termination of a parent's rights to one child are predicated on abuse of another child. See Tina T. v. Dep't of Child Safety, 236 Ariz. 295, ¶ 17 (App. 2014).
¶8 At the severance hearing, case manager Michelle Evans testified that DCS needed to know if the parents were involved in a romantic relationship to ensure that L.C. would be returned to a home with "a safe environment" based on the parents' history of domestic violence. Former DCS supervisor Amy Brandhuber also testified that in July 2017 she had seen the parents, who "smelled [of] intoxicants" and had a "boy" with them, carrying a case of beer out of a convenience store after which they drove away. This incident, which Manuel denied, "raised red flags" to DCS regarding Manuel's honesty, not only regarding his alcohol consumption, but because the parents appeared to be "together in a relationship when they had portrayed repeatedly they weren't together."
Manuel testified he had been visiting the mother in prison once or twice a week and acknowledged that she is pregnant and the child "could be" his. --------
¶9 The probation officer who previously had supervised Manuel for an aggravated DUI conviction testified that Manuel had been charged with child abuse because he was in the car with one of the mother's children in May 2017 when she was arrested for a DUI. However, Manuel's case manager testified that he had not disclosed he was in a relationship with the mother, and he had denied he was in the car during the DUI incident. Yet, at the severance hearing, Manuel testified he was, in fact, present during the DUI incident. Manuel further denied incidents of domestic violence with the mother and maintained he does not have a substance abuse problem.
¶10 The family's current case manager, Ana Lopez, testified that the parents had withheld information from DCS, including the May 2017 DUI incident, and that the department had concerns about Manuel having made unsafe decisions, like permitting a minor to be in a vehicle while the driver (the mother) was under the influence of alcohol. Lopez also testified that because Manuel had not been forthcoming with DCS regarding his place of residence and his ongoing contact with the mother, DCS was "concerned . . . as to how he is keeping [L.C.] safe."
¶11 Manuel cites Jade K. v. Loraine K., 240 Ariz. 414, ¶ 8 (App. 2016), for the proposition that "a single episode of neglect is insufficient to justify termination of a parent's rights." However, to the extent Manuel argues a single incident formed the basis for the juvenile court's neglect finding here, the record does not support such a conclusion. And, as we determined in Jade K., past neglect may serve as a basis for termination, although, to establish the propriety of termination 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 (quoting M.L.B. v. S.L.J., 519 U.S. 102, 121 (1996)). Here, there was ample evidence to support a finding that Manuel had neglected L.C.
¶12 Nor was Manuel forthright with DCS about facts relevant to L.C.'s safety. In its best-interests findings, the juvenile court expressly pointed to Manuel's lack of honesty, stating:
[Manuel] has been untruthful throughout this case. He has misled the Department numerous times as to where he was living. He has been untruthful about his contact with [the mother]. He has been untruthful about allowing [the
mother] unsupervised parenting time. [Manuel] has been untruthful about being present during the DUI incident and the [convenience store] incident.Accordingly, although Manuel asserts there was no evidence suggesting he was not capable of or willing to provide parental support for L.C., we find ample evidence to support the court's finding that he is not able to care for L.C. in a manner that does not put the child at risk of harm.
Best Interests
¶13 Manuel also argues the juvenile court abused its discretion in concluding severance was in L.C.'s best interests. He points out that, "while L.C. might be bonded with the placement, uncontroverted evidence was presented that he is also bonded with [Manuel], who has constitutional rights at stake." In its ruling, the court noted L.C. had been in the care of DCS for over two years and in his current placement since December 2016. He "is happy . . . and bonded with his placement," who meets his needs and provides him with emotional stability, and he is an adoptable child and his placement is "likely" to adopt him. The court found that L.C. "needs permanency both physically and emotionally," which "would allow [him] to further bond with his placement . . . where he has lived for the majority of his life."
¶14 To establish that termination is in a child's best interests, a petitioner must show how the child would benefit from severance or be harmed by continuing the parent-child relationship. In re Maricopa Cty. Juv. Action No. JS-500274, 167 Ariz. 1, 5 (1990). "In a best interests inquiry, however, we can presume that the interests of the parent and child diverge because the court has already found the existence of one of the statutory grounds for termination by clear and convincing evidence." Kent K., 210 Ariz. 279, ¶ 35. "Once a juvenile court finds that a parent is unfit, the focus shifts to the child's interests." Demetrius L., 239 Ariz. 1, ¶ 15. "Thus, in considering best interests, the court must balance the unfit parent's 'diluted' interest 'against the independent and often adverse interests of the child in a safe and stable home life.'" Id. (quoting Kent K., 210 Ariz. 279, ¶ 35).
¶15 At the severance hearing, Lopez testified that L.C., who is an adoptable child, is in a kinship adoptive placement that is meeting his needs. She explained that severance is in L.C.'s best interests because he "has been in care for some time now and he deserves emotional stability and stability overall." She opined that the length of the severance, which Manuel acknowledged has gone on for "about 33 months," has impacted L.C. and stated that he regularly sees a therapist. She also testified that "he needs to know that he has a permanent home," and explained that "[a]ny time there's a change for him, his behaviors change." See Alma S. v. Dep't of Child Safety, 245 Ariz. 146, ¶ 12 (2018) ("The 'child's interest in stability and security' must be the court's primary concern." (quoting Demetrius L., 239 Ariz. 1, ¶ 15)).
¶16 Insofar as Manuel asserts that his bond with L.C. somehow rendered the juvenile court's best-interests finding improper, we note that "[t]he existence and effect of a bonded relationship between a biological parent and a child, although a factor to consider, is not dispositive in addressing best interests." Dominique M. v. Dep't of Child Safety, 240 Ariz. 96, ¶ 12 (App. 2016). And, a juvenile court may find that a child would benefit from termination if the child is considered adoptable. See Alma S., 245 Ariz. 146, ¶¶ 13-14. Additionally, it was for the juvenile court, not this court, to determine how much weight to give the evidence and to assess it under the proper standard, including whether L.C.'s need for stability, the duration of the dependency, and Manuel's failure to be forthright with DCS should be factors in its best-interests determination. See Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, ¶ 4 (App. 2002). To the extent Manuel asks this court to reweigh the evidence, we will not do so. See Ariz. Dep't of Econ. Sec. v. Oscar O., 209 Ariz. 332, ¶ 14 (App. 2004). Based on this record, and "applying our deferential standard of review," Alma S., 245 Ariz. 146, ¶ 21, there was ample evidence to support the juvenile court's finding that severance would enhance L.C.'s stability and permanency, and give him the opportunity to "further bond with his placement" and remain "where he has lived for the majority of his life."
¶17 Because we find sufficient evidence to support termination based on neglect and that severance was in L.C.'s best interests, we need not address Manuel's other arguments. See Michael J. v. Ariz. Dep ' t of Econ. Sec., 196 Ariz. 246, ¶ 27 (2000) (appellate court need not address other statutory grounds for terminating parent's rights if sufficient evidence exists on one ground).
Disposition
¶18 Accordingly, we affirm the juvenile court's severance of Manuel's parental rights to L.C.