Opinion
No. 1 CA-JV 19-0217
08-27-2020
YALE F., Appellant, v. DEPARTMENT OF CHILD SAFETY, M.L., Appellee.
COUNSEL The Stavris Law Firm, PLLC, Scottsdale By Alison Stavris Counsel for Appellant Arizona Attorney General's Office, Mesa By Thomas Jose 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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 Mohave County
No. S8015JD201800089
The Honorable Rick A. Williams, Judge
AFFIRMED
COUNSEL The Stavris Law Firm, PLLC, Scottsdale
By Alison Stavris
Counsel for Appellant Arizona Attorney General's Office, Mesa
By Thomas Jose
Counsel for Appellee
MEMORANDUM DECISION
Chief Judge Peter B. Swann delivered the decision of the court, in which Presiding Judge Michael J. Brown and Judge D. Steven Williams joined. SWANN, Chief Judge:
¶1 Yale F. ("Father") appeals the juvenile court's order terminating his parental rights to his daughter, M.L., arguing that the Department of Child Safety ("DCS") failed to prove the statutory grounds for severance by clear and convincing evidence and best interests by a preponderance of the evidence. For reasons that follow, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 In November 2018, DCS received a report that less than eighteen months after then-four-year-old M.L. had been reunified with Father in a prior dependency, she had regressed in potty-training and was not receiving basic necessities or adequate medical care. At the time, Father was a registered sex offender following a conviction for attempted molestation of a child in 1999.
We view the evidence in the light most favorable to upholding the court's order terminating parental rights. Titus S. v. Dep't of Child Safety, 244 Ariz. 365, 369, ¶ 15 (App. 2018).
¶3 In December 2018, M.L. disclosed to a DCS investigator that she slept in the same bed with Father; Father slept naked; she "sometimes played with daddy's tongue thing," which was located between his legs and below his waist; Father "would touch her private area at the same time as she was playing with the tongue thing"; and "sometimes [Father] puts the tongue thing in her private area . . . like [she's] his girlfriend." M.L. repeated the allegations in detail a few days later in both a sexual assault examination and a forensic interview. The nurse examiner identified an injury on M.L.'s vagina that was consistent with her reports.
¶4 DCS removed M.L. from Father's care and filed a dependency petition on the grounds of abuse, neglect, and substance abuse. Before the dependency adjudication hearing, DCS moved to terminate Father's parental rights on the grounds of willful abuse, see A.R.S. § 8-533(B)(2), and M.L.'s return to out-of-home care within eighteen months after being reunified with Father in a previous dependency, see A.R.S. § 8-533(B)(11), and requested that it be relieved from providing reunification services. After an evidentiary hearing in March 2019, the juvenile court found DCS had proved by clear and convincing evidence that Father had committed a dangerous crime against M.L. such that reunification services were not required. See A.R.S. § 8-846(D)(1). The court adjudicated M.L. dependent as to Father in April and affirmed a termination hearing scheduled in May.
DCS also alleged M.L. was dependent as to her mother on the grounds of neglect and abandonment. Although her parental rights were terminated in June 2019, M.L.'s mother did not challenge that determination and is not a party to this appeal.
Absent material changes from the relevant date, we cite the current version of rules and statutes.
¶5 At the termination hearing, the DCS case manager testified regarding the specifics of M.L.'s allegations of sexual abuse, indicating that the various statements were consistent and DCS had no reason to believe they were not truthful. He also testified that M.L. was adoptable and in an adoptive placement, and termination would provide M.L. with an opportunity to live in a permanent, loving home, free from abuse and neglect. Father's mother, sister, and girlfriend testified that they did not believe Father had abused M.L. and that Father was an appropriate parent.
¶6 After the termination hearing, the juvenile court entered an order finding that DCS had proven by clear and convincing evidence that termination of Father's parental rights was warranted under A.R.S. § 8-533(B)(2) (willful abuse) and (11) (return to out-of-home care within eighteen months). The court also determined severance would serve M.L.'s best interests and entered an order terminating Father's parental rights. Father appeals.
DISCUSSION
¶7 A parent's rights may be terminated if the juvenile court finds that DCS has proven the statutory grounds for severance by clear and convincing evidence and that termination of the parent's rights is in the child's best interests by a preponderance of the evidence. Sandra R. v. Dep't of Child Safety, 248 Ariz. 224, 227, ¶ 12 (2020). On appeal, "[w]e accept the juvenile court's findings of fact if reasonable evidence and inferences support them," id. at 230, ¶ 28 (citation omitted), and will reverse only if "as a matter of law, no reasonable fact-finder could have found the evidence satisfied the applicable burden of proof," Titus S., 244 Ariz. at 369, ¶ 15. We find no error here. I. DCS PROVED THE STATUTORY GROUND FOR SEVERANCE BY CLEAR AND CONVINCING EVIDENCE.
¶8 Father argues that insufficient evidence supports the juvenile court's finding that he willfully abused M.L. Father argues the evidence was insufficient because: (1) M.L.'s out-of-court statements were not reliable, (2) her statements were not entirely consistent, and (3) the nurse examiner acknowledged that an injury to M.L.'s vagina could have been caused by urinary accidents or poor hygiene.
"Abuse includes . . . molestation of a child." A.R.S. § 8-201(2)(a); see also A.R.S. §§ 13-1410(A) (defining child molestation to include "intentionally or knowingly engaging in or causing a person to engage in sexual contact . . . with a child who is under fifteen years of age"), -1401(A)(3) (defining "sexual contact" to include "any direct or indirect touching, fondling or manipulating any part of the genitals . . . by any part of the body . . . or causing a person to engage in such contact").
A child's out-of-court statement is admissible in a termination proceeding "if the time, content and circumstances of such statement . . . provide sufficient indication of its reliability." A.R.S. § 8-237; accord Ariz. R.P. Juv. Ct. 45(E).
¶9 Although Father challenged the evidence through contrary testimony and cross-examination, see Dep't of Child Safety v. Beene, 235 Ariz. 300, 307, ¶ 17 (App. 2014) (explaining how a parent may test the reliability of a statement attributed to a child without calling the child as a witness), the record reflects the juvenile court nonetheless found M.L.'s statements were reliable; that, despite minor inconsistencies, there was "sufficient continuity to [M.L.'s] statements" to render them credible; and the injury to M.L.'s vagina, while inconclusive standing alone, was probative to the extent it corroborated her report. These conclusions reflect a reasonable assessment of the evidence, and we defer to them; "the juvenile court 'is in the best position to weigh the evidence, observe the parties, judge the credibility of witnesses, and make appropriate findings.'" Dep't of Child Safety v. Juan P., 245 Ariz. 264, 266, ¶ 7 (App. 2018) (citation omitted); see also In re Pima Cty. Severance Action No . S-1607 , 147 Ariz. 237, 239 (1985) (deferring to the juvenile court's judgment even when the evidence is "sharply disputed"). Accordingly, we find no error in either the court's factual findings or its conclusion that severance was warranted on the ground of willful abuse. II. DCS PROVED TERMINATION WAS IN M.L.'S BEST INTERESTS BY A PREPONDERANCE OF THE EVIDENCE.
Because we find clear and convincing evidence supports the termination order based upon willful abuse, we need not and do not consider whether the remaining ground is supported by the record. See Crystal E. v. Dep't of Child Safety, 241 Ariz. 576, 577-78, ¶ 5 (App. 2017).
¶10 Father argues insufficient evidence supports the juvenile court's best-interests finding, arguing that he had a close relationship with M.L. and "had made strides to establish a safe and suitable residence" for her. Thus, Father contends termination was not "the best option" for M.L.
¶11 The existence of a bond between the parent and child, "although a factor to consider, is not dispositive in addressing best interests." Dominique M. v. Dep't of Child Safety, 240 Ariz. 96, 98-99, ¶ 12 (App. 2016) (citation omitted). Instead, the juvenile court must consider all relevant facts and determine, upon a case-by-case basis, whether a preponderance of the evidence supports a finding that the child "would derive an affirmative benefit from termination or incur a detriment by continuing in the relationship." Ariz. Dep't of Econ. Sec. v. Oscar O., 209 Ariz. 332, 334, ¶ 6 (App. 2004) (citation omitted); accord Demetrius L. v. Joshlynn F., 239 Ariz. 1, 4, ¶ 16 (2016). The court may also consider whether the existence of a statutory ground for severance will have a negative effect upon the child. Bennigno R. v. Ariz. Dep't of Econ. Sec., 233 Ariz. 345, 350, ¶ 23 (App. 2013). "At this stage, the child's interest in obtaining a loving, stable home, or at the very least avoiding a potentially harmful relationship with a parent, deserves at least as much weight as that accorded the interest of the unfit parent in maintaining parental rights." Kent K. v. Bobby M., 210 Ariz. 279, 287, ¶ 37 (2005).
¶12 The juvenile court here acknowledged Father's love for M.L. but nonetheless found that she would be harmed if returned to Father's care, where she would be at risk for further sexual abuse. The court also found M.L. would benefit from the opportunity to be adopted into a safe, stable home free from abuse. The record provides an adequate basis for the court's resolution of the evidence in favor of M.L.'s interest in safety and permanence. Accordingly, we find no abuse of discretion.
CONCLUSION
¶13 The juvenile court's order terminating Father's parental rights as to M.L. is affirmed.