Opinion
1 CA-JV 22-0164
02-23-2023
ARMONDO R. Appellant, v. DEPARTMENT OF CHILD SAFETY, S.G., Appellees.
Denise L. Carroll Esq., Scottsdale By Denise Lynn Carroll Counsel for Appellant The Huff Law Firm PLLC, Tucson By Daniel R. Huff, Laura J. Huff Counsel for Appellee Department of Child Safety Maricopa County Attorney General's Office By Emily M. Stokes Counsel for Appellee Department of Child Safety
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County No. JD15346 JS21093 The Honorable Lori Bustamante, Judge
Denise L. Carroll Esq., Scottsdale By Denise Lynn Carroll Counsel for Appellant
The Huff Law Firm PLLC, Tucson By Daniel R. Huff, Laura J. Huff Counsel for Appellee Department of Child Safety
Maricopa County Attorney General's Office By Emily M. Stokes Counsel for Appellee Department of Child Safety
Presiding Judge Brian Y. Furuya delivered the decision of the Court, in which Judge Jennifer B. Campbell and Judge Paul J. McMurdie joined.
MEMORANDUM DECISION
FURUYA, JUDGE
¶1 Armondo R. ("Father") appeals from an order terminating his parental rights to minor child S.G. ("Child"). For the following reasons, we affirm, but remand solely to grant the juvenile court leave to correct a clerical mistake in the termination order.
The parties and termination order refer to Child as S.G., but her birth certificate indicates she has not yet been named. We address this anomaly in Section V below.
FACTS AND PROCEDURAL HISTORY
¶2 Child was born substance exposed in October 2021, and the Department of Child Safety ("DCS") immediately took her into custody and filed a petition for dependency. On November 10, 2021, DCS moved to terminate Father's parental rights on the grounds of prior termination and abandonment pursuant to Arizona Revised Statutes ("A.R.S.") § 8-533(B)(1), (10).
Child's mother is not a party to this appeal.
¶3 Father has been incarcerated since before Child's birth. DCS was aware of his incarceration status by October 22, 2021, but did not know in which facility he was housed until late December. By that time, DCS had set the case plan for Child for severance and adoption. DCS did not change the plan to family reunification upon locating Father because he had already had his parental rights terminated as to his several older children, most recently to minor child E.G. in November 2019.
¶4 DCS did not maintain regular contact with Father throughout the proceedings. A DCS case manager informed Father of the Child's birth in January 2022. Father asked for a photo of her. He also took a paternity test, proving he is Child's biological father. Father testified that he earned six certificates through prison services but is not certain what they are for because he has trouble reading. Neither his correctional officer nor DCS provided the certificates to the juvenile court. Father testified that the certificates included parenting and substance abuse classwork. He requested visitation with Child, but none was arranged due to a backlog for case aide visits. He further asked for Child to have a kinship placement. A family friend did have visits with Child but was not chosen as her placement because she did not qualify as a kinship placement.
¶5 At the joint dependency and termination trial in May 2022, Child had been in an out-of-home placement for six months, and Father was not scheduled to finish his incarceration until some months later. DCS' case manager provided contradictory testimony about whether Father had abandoned child. DCS' counsel also admitted there was not clear and convincing evidence of abandonment after presenting DCS' case, although Child's guardian ad litem disagreed.
¶6 However, a case manager testified that Father had not had any contact with Child, and he had not sent her any letters or provided her with financial support. A case manager also testified that less than two years before the filing of the petition at issue in this appeal, Father had his parental rights terminated to Child's sibling E.G. after finding abandonment grounds because of substance abuse issues, and that Father's substance abuse issues had been a factor in termination of his parental rights to all of his older children as well. The case manager also testified that Father received a prison infraction in August 2021 for refusing a urinalysis test, and Father admitted he received a prison infraction for drug possession. A caseworker further testified that delaying permanency would harm Child because Father had failed to participate in substance abuse treatment.
¶7 The court found Child dependent as to Father. It then terminated Father's parental rights pursuant to A.R.S. § 8-533(B)(10) because he failed to adequately address his substance abuse issues, which had resulted in the termination of his parental rights to E.G. less than two years before the filing of the petition to terminate in this case, and reunification efforts would have been futile. It further found that DCS proved he abandoned her pursuant to A.R.S. § 8-533(B)(1). The court reasoned that he should have known his relationship with her mother could have led to Child's birth and then, even after learning about her, he did not do enough to establish a parental relationship. Finally, the court found termination was in Child's best interests because she was adoptable and a relationship with Father would cause her detriment.
¶8 Father timely appealed and we have jurisdiction pursuant to Article 6, Section 9 of the Arizona Constitution and A.R.S. §§ 8-235(A), 12-120.21(A), and 12-2101(A).
DISCUSSION
I. Standard of Review
¶9 To terminate parental rights, the juvenile court must find clear and convincing evidence that at least one statutory ground articulated in A.R.S. § 8-533(B) has been proven, and must find by a preponderance of the evidence that termination is in the best interests of the child. Kent K. v. Bobby M., 210 Ariz. 279, 280 ¶ 1, 288 ¶ 41 (2005). Because the court "is in the best position to weigh the evidence, observe the parties, judge the credibility of witnesses, and resolve disputed facts," we will affirm an order terminating parental rights as long as it is supported by reasonable evidence. Jordan C. v. Ariz. Dep 't of Econ. Sec., 223 Ariz. 86, 93 ¶ 18 (App. 2009) (citation omitted); see Alma S. v. Dep't of Child Safety, 245 Ariz. 146, 151 ¶ 18 (2018).
II. Prior Termination
¶10 Courts may terminate parental rights if "the parent has had parental rights to another child terminated within the preceding two years for the same cause and is currently unable to discharge parental responsibilities due to the same cause." A.R.S. § 8-533(B)(10). The prior termination need not have been for the same statutory ground as the current termination but for the same "factual cause" which prevented the parent from meeting both children's needs. Mary Lou C. v. Ariz. Dep't of Econ. Sec., 207 Ariz. 43, 48 ¶ 11 (App. 2004). DCS must also prove it made reasonable efforts to provide rehabilitative services to alleviate the cause or that such efforts would be futile. Id. at 49 ¶ 15. For that reason, we held in Mary Lou C. that the court did not err by terminating the mother's parental rights when she had not resolved her substance abuse issues that had resulted in a prior termination, even when the court failed to make an explicit finding that reunification efforts would have been futile. Id. at 49-50 ¶¶ 13, 18. We have also held that the prior termination need only have occurred within two years of the current petition to terminate parental rights. Tanya K. v. Dep't of Child Safety, 240 Ariz. 154, 155 ¶ 1 (App. 2016).
¶11 Here, Father's parental rights to E.G. were terminated on November 13, 2019, less than two years before DCS moved to terminate his parental rights to Child on November 10, 2021. Father never saw either child before their termination hearings, and both children were born substance exposed. Father had ongoing substance abuse issues that contributed to both terminations. He was convicted in June 2018 and January 2020 of dangerous drug violations. And more recently, he received a drug infraction while in prison in August 2021.
¶12 Further, a case manager testified at the termination hearing that Father's substance abuse issues contributed to all of his prior terminations. Father has had substance abuse issues throughout his life that have prevented him from parenting, and his recent convictions and infractions show these issues have not subsided. He was incarcerated for all of Child's life up to the termination hearing due to a probation violation arising out of a drug conviction, and he was unable to care for Child during that incarceration. Therefore, there is reasonable evidence that Father is unable to discharge his parental responsibilities to care for Child and would have been unable to do so even if he had not been incarcerated during the termination proceedings. See Mary Lou C, 207 Ariz. at 49-50 ¶¶ 13, 18. There is also reasonable evidence that reunification efforts by DCS would have been futile.
¶13 Therefore, the court did not err by terminating Father's parental rights to Child on the prior termination ground.
III. Abandonment
¶14 Father also appeals the termination based on the abandonment ground, arguing his efforts were sufficient considering his incarceration and that DCS did not grant him opportunities to visit with Child. We need not address these arguments because we conclude that sufficient evidence supports the court's termination on the prior termination ground. Jesus M. v. Ariz. Dep't of Econ. Sec, 203 Ariz. 278, 280 ¶ 3 (App. 2002). To terminate a parent-child relationship, the juvenile court must find that clear and convincing evidence supports one of the statutory grounds for severance. Kent K, 210 Ariz. at 284 ¶ 22.
IV. Best Interests
¶15 After finding statutory grounds to support the termination of parental rights, the court must consider whether termination is in the child's best interests under the totality of the circumstances. Alma S., 245 Ariz. at 149-50 ¶¶ 8-9, 13; A.R.S. § 8-533. "The child's interest in stability and security must be the court's primary concern." Alma S., 245 Ariz. at 150 ¶ 12 (citation omitted). The court must find either that the child would benefit from the termination of the parent's rights or that the child would be harmed by continuing a relationship with the parent. Id. at 150 ¶ 13; Maricopa Cnty. Juv. Action No. JS-500274, 167 Ariz. 1, 5 (1990).
¶16 Here, Father does not dispute that termination of his parental rights would benefit Child, as she is adoptable, bonded to her placement, and having her needs met. Because such a finding independently supports a ruling that termination is in Child's best interests, we may affirm the best interests finding for that reason alone. Alma S., 245 Ariz. at 150 ¶ 13. However, reasonable evidence also supports that continuing a relationship with Father would harm Child. As discussed, he has struggled with substance abuse issues for years and does not have a relationship with any of his several biological children. Requiring Child to wait to be adopted to allow him to resolve these issues-when he has not done so for any of his older children-would deny the child permanency and cause a detriment to Child.
¶17 Therefore, the court did not err by finding that the termination of Father's parental rights was in Child's best interests.
V. DCS' Motion to Correct
¶18 DCS has moved for this court to grant the juvenile court leave to amend a clerical mistake in the termination order. The termination order refers to Child as "S.G." and lists her birth date as October 18, 2021, but her birth certificate states "Not Named [G.]" as Child's name and a birth date of October 1, 2021. We grant DCS' motion to allow the juvenile court to correct the termination order on remand. See Ariz. R. Civ. P. 60(a) (requiring appellate court's leave before superior court may correct clerical mistake in case pending in appellate court); see also S.S. v. Super. Ct. In & For Cnty. of Maricopa, 178 Ariz. 423, 424 (App. 1994) (holding court may apply civil rules where juvenile rules are silent).
CONCLUSION
¶19 We affirm and remand solely for the juvenile court to correct the termination order, as discussed.