Opinion
No. 2 CA-JV 2019-0068 No. 2 CA-JV 2019-0071 (Consolidated)
04-09-2020
ALAN V., Appellant, v. DEPARTMENT OF CHILD SAFETY AND H.V., Appellees. MELISSA W., Appellant, v. DEPARTMENT OF CHILD SAFETY AND H.V., Appellees.
COUNSEL Emily Danies, Tucson Counsel for Appellant Alan V. Joel Feinman, Pima County Public Defender By David J. Euchner, Assistant Public Defender, Tucson Counsel for Appellant Melissa V. Mark Brnovich, Arizona Attorney General By Michelle R. Nimmo, Assistant Attorney General, Tucson Counsel for Appellee Department of Child Safety Pima County Office of Children's Counsel, Tucson By Christopher Lloyd 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NOT FOR PUBLICATION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. JD20160451
The Honorable Wayne E. Yehling, Judge
AFFIRMED
COUNSEL Emily Danies, Tucson
Counsel for Appellant Alan V. Joel Feinman, Pima County Public Defender
By David J. Euchner, Assistant Public Defender, Tucson
Counsel for Appellant Melissa V. Mark Brnovich, Arizona Attorney General
By Michelle R. Nimmo, Assistant Attorney General, Tucson
Counsel for Appellee Department of Child Safety Pima County Office of Children's Counsel, Tucson
By Christopher Lloyd
Counsel for Minor
MEMORANDUM DECISION
Chief Judge Vásquez authored the decision of the Court, in which Presiding Judge Staring and Judge Brearcliffe concurred. VÁSQUEZ, Chief Judge:
¶1 Appellants Alan V. and Melissa W. challenge the juvenile court's order of May 10, 2019, terminating their parental rights to their son, H.V., born in December 2016, on grounds of their inability to remedy the circumstances causing H.V. to remain in a court-ordered, out-of-home placement for longer than fifteen months. See A.R.S. § 8-533(B)(8)(c). On appeal, Alan and Melissa challenge the sufficiency of the evidence to sustain either of those statutory grounds for severance or to establish that terminating their parental rights is in H.V.'s best interests.
¶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 proven 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 H.V. was taken into the custody of the Department of Child Safety (DCS) shortly after his birth. His removal was based on a report received in July 2016 that Alan had sent text messages to his former wife, and mother of two of his children not at issue here, stating that he wanted to have an orgy that would include their children as well as Melissa's two other children and H.V. after his birth. He also mentioned plans to get Melissa's six-year-old daughter a dildo. After H.V. was born, Melissa was still living with Alan and when a DCS investigator went to interview her, law enforcement had to be called.
These two children were adjudicated dependent as to Melissa in September 2016 after she admitted the allegations in a dependency petition. These allegations included that Melissa had failed to protect the two girls from sexual abuse, including Alan's expressed desire "to have sexual intercourse with three year old [Z.W.] and six year old [P.W.]." The allegations also noted that "[t]he children are performing sexualized behaviors upon themselves and toward each other." --------
¶4 In February 2017, Melissa admitted the allegations in a supplemental dependency petition filed as to H.V. In March, Alan entered a no contest plea and the juvenile court adjudicated H.V. dependent as to him as well. Pursuant to a case plan of family reunification, both parents received and participated in various services. In April 2018, however, DCS filed a motion for termination of Alan's and Melissa's parental rights. After multiple days of severance hearings, which were combined with hearings on a motion for return of the child, filed by Alan pursuant to Rule 59, Ariz. R. P. Juv. Ct., and were spread over a period of nine months, the juvenile court concluded DCS had established the length-of-time-in-care ground and granted DCS's motion.
¶5 On appeal the parents argue there was insufficient evidence to support the ground for severance or to establish that severance was in H.V.'s best interest. To establish termination on § 8-533(B)(8)(c) grounds, DCS was required to show "[t]hat the child is being cared for in an out-of-home placement under the supervision of the juvenile court, the division or a licensed child welfare agency, that the agency responsible for the care of the child has made a diligent effort to provide appropriate reunification services" and that the child has been in the placement "for a cumulative total period of fifteen months or longer pursuant to court order . . . , the parent has been unable to remedy the circumstances that cause the child to be in" such a placement, "and there is a substantial likelihood that the parent will not be capable of exercising proper and effective parental care and control in the near future."
¶6 In challenging the juvenile court's findings they had been unable to remedy the circumstances causing H.V. to remain in out-of-home care for more than fifteen months, Alan and Melissa argue that none of the "professionals opined that Alan had any psychological or personality issue that would prevent him from parenting his son" and that "no one ever articulated a good reason why Melissa should end her relationship with Alan." But in making their argument, the parents rely on favorable testimony and minimize the contrary evidence cited by the court. The psychologist who administered the parent's psychological exams expressed concern about Alan not addressing "the root cause of why the statements were made."
¶7 Likewise, the psychologist who administered Alan's psychosexual evaluation, despite rating him at a "minimal to low risk" to offend, testified "there's cause for concern," albeit on the low end of risk. She also noted to the case manager in an email admitted at the hearing that Alan "was trying to present himself in a positive light" in the testing. The parent-child relationship therapist also testified that although the parents had completed therapy with her and the content of the texts had not been evident in her observations of their interactions with H.V., they were "not something that is resolved for me."
¶8 Furthermore, although the parents dismiss the case manager's testimony and concerns, he testified he held a bachelor's degree in psychology, had worked for DCS for eight and a half years, and through that time had completed continuing education. The parents have cited no authority to support their contention that because the case manager was "neither a psychologist nor a therapist," his testimony was not entitled to weight. And, to whatever extent the United States Supreme Court's statements in Moore v. Texas, ___ U.S. ___, 137 S. Ct. 1039 (2017), might be relevant in this context, the juvenile court did not make its determination "on personal lay opinions," but rather by rejecting some psychological and treatment testimony and accepting other such testimony. 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 when, as here, they are supported by the record, see In re Pima County Adoption of B-6355 & H-533, 118 Ariz. 111, 115 (1978).
¶9 The parents further argue there was insufficient evidence to establish that termination of their parental rights was in H.V.'s best interests. But their argument again asks us to reweigh the evidence. Although favorable evidence about their relationship with the child was presented, there was also evidence that H.V.'s current placement was meeting his needs and intended to adopt him if possible. See Alma S. v. Dep't of Child Safety, 245 Ariz. 146, ¶ 13 (2018) (stating it is well established that adoption is a benefit that can support best-interests finding). We cannot say the court abused its discretion. See id. ¶¶ 18, 21.
¶10 The parents also contend "Arizona's scheme for termination of parental rights violates due process and constitutional liberty interests" by "unconstitutionally lessen[ing] the burden of proof for finding termination in the best interests of the child" and by requiring juvenile courts to "consider the totality of the circumstances when determining best interests." As the parents acknowledge, they did not raise these claims below. Failure to raise a claim in the juvenile court generally waives that claim on appeal, see Christy C. v. Ariz. Dep't of Econ. Sec., 214 Ariz. 445, ¶ 21 (App. 2007), including challenges to the statute's constitutionality, see K.B. v. State Farm Fire & Cas. Co., 189 Ariz. 263, 268 (App. 1997).
¶11 In our discretion we could overlook the failure to raise such a claim below. See Marco C. v. Sean C., 218 Ariz. 216, ¶ 6 (App. 2008). But the parents' challenge to the statutory scheme consists of facial and as-applied challenges "to the manner in which" our supreme court's decisions in Kent K. and Alma S., "shift the burden of proof and lessen the burden of proof in a best-interests inquiry." We, however, are required to follow the decisions of our supreme court. See City of Phoenix v. Leroy's Liquors, Inc., 177 Ariz. 375, 378 (App. 1993) (court of appeals has no authority to overrule, modify or disregard supreme court). And in doing so, we are constrained by the court's conclusions in Alma S., both express and implied. We are therefore bound to reject the constitutional claim, even were it not waived.
¶12 For these reasons, we affirm the juvenile court's order terminating Alan's and Melissa's parental rights to H.V.