Opinion
No. 1 CA-JV 12-0003
06-21-2012
EDWARD C., Appellant, v. ROBERT R., MARGARET R., E.C., Appellees.
Law Offices of Kelly A. Smith Kelly A. Smith Attorneys for Appellant Mary Katherine Boyte PC Mary K. Boyte Attorneys for Appellees Robert R. and Margaret R.
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
(Not for Publication - Ariz. R.P. Juv. Ct. 103(G); ARCAP 28)
Appeal from the Superior Court in Yuma County
Cause No. S1400JS20090023
The Honorable Kathryn Stocking-Tate, Judge Pro Tempore
AFFIRMED
Law Offices of Kelly A. Smith
By Kelly A. Smith
Attorneys for Appellant
Yuma
Mary Katherine Boyte PC
By Mary K. Boyte
Attorneys for Appellees Robert R. and Margaret R.
Yuma
JOHNSEN, Judge ¶1 Edward C. ("Father") appeals the superior court's judgment terminating his parental rights to his son, E.C. For the reasons that follow, we affirm the judgment.
FACTS AND PROCEDURAL BACKGROUND
¶2 E.C. was born in 2004 while both of his unmarried parents, R.M. ("Mother") and Father were in prison. Father consented to give guardianship to Robert R. and Margaret R., E.C.'s maternal aunt and uncle. ¶3 Father was released from prison in 2006. In August 2008, Father's brother contacted Robert and Margaret and told them Father's family wanted to begin to introduce E.C. to Father and Father's family. Father also contacted Robert and Margaret, but because Father was argumentative, they cut off contact with him. After Father became increasingly threatening and aggressive toward Margaret and Robert, they filed a petition to terminate Father's parental rights based on abandonment. After a two-day trial in January 2010, the superior court denied the severance petition. This court affirmed the court's ruling. See Robert R. v. Edward C., 1 CA-JV 10-0065, 2010 WL 3167356, at *4, ¶ 18 (Ariz. App. Aug. 10, 2010) (mem. decision). ¶4 In October 2010, Robert and Margaret filed a second severance petition, this time alleging Father was unable to discharge his parental responsibilities because of mental illness, mental deficiency or a history of chronic abuse of drugs or alcohol. The petition asserted abandonment as an alternative ground for termination. Father moved to dismiss the petition, arguing it was barred by res judicata and collateral estoppel. The court denied the motion. ¶5 The matter proceeded to a one-day trial, after which the court found by clear and convincing evidence that termination of Father's parental rights was appropriate under Arizona Revised Statutes ("A.R.S.") sections 8-533(B)(1) (abandonment) and 8-533(B)(3) (mental illness or substance abuse) (West 2012). The court also found by a preponderance of the evidence that termination was in E.C.'s best interests. ¶6 Father timely appealed. We have jurisdiction pursuant to A.R.S. § 8-235 (West 2012).
We view the evidence in the light most favorable to sustaining the superior court's findings. Manuel M. v. Ariz. Dep't of Econ. Sec., 218 Ariz. 205, 206, ¶ 2, 181 P.3d 1126, 1127 (App. 2008).
Absent material revision after the date of the events at issue, we cite a statute's current version.
DISCUSSION
A. Res Judicata and Collateral Estoppel. ¶7 Father first argues the superior court erred by denying his motion to dismiss based on res judicata and collateral estoppel. ¶8 Under the doctrine of res judicata, parties may not relitigate "a cause of action that has been finally determined by a court of competent jurisdiction." Armstrong v. Aramco Services Co., 155 Ariz. 345, 347, 746 P.2d 917, 919 (App. 1987). Three factors must be present for a prior ruling to have res judicata effect:
(1) the issue decided in the prior adjudication must be identical to the one presented in the action in question; (2) the prior ruling must be a final judgment on the merits; and (3) the party against whom the plea is asserted must be a party or in privity with a party to the prior adjudication.Id. at 347, 746 P.2d at 919. "We review de novo the claim preclusive effect of a prior judgment." Howell v. Hodap, 221 Ariz. 543, 546, ¶ 17, 212 P.3d 881, 884 (App. 2009). ¶9 Neither side in this case disputes that the judgment denying the first severance petition was a final judgment on the merits or that both actions had the same parties. Robert and Margaret argue, however, that the issues decided in the first severance trial were not identical to those presented in the second severance trial. We agree. ¶10 In a severance matter, the court considers the "circumstances existing at the time of the severance." Jordan C. v. Ariz. Dep't of Econ. Sec., 223 Ariz. 86, 96, ¶ 31, n.14, 219 P.3d 296, 306 (App. 2009) (quoting Marina P. v. Ariz. Dep't of Econ. Sec. , 214 Ariz. 326, 330, ¶ 22, 152 P.3d 1209, 1213 (App. 2007) (in the context of A.R.S. § 8-533(B)(8)(c)). The first severance trial took place in January 2010. The second severance trial took place nearly two years later, in December 2011. ¶11 The resolution of a petition for termination of parental rights is necessarily fact-intensive, and Father does not contend that the facts at issue in the 2011 trial were identical to the facts at issue two years earlier. He argues only that Robert and Margaret were on sufficient notice of the drug-use issue that they should have raised allegations about his drug use at the first trial. But Father objected when Robert and Margaret sought to add drug-use allegations late in the first trial. Even assuming for purposes of argument that res judicata might apply to a petition for termination of parental rights, given that the best interests of the child are paramount in such a proceeding, we cannot conclude the superior court abused its discretion when it impliedly found that Robert and Margaret lacked sufficient notice of the drug-use issue to have raised that issue in the first petition. ¶12 Moreover, the grounds for termination in the first trial were not identical to the grounds for termination in the second trial. In the first trial, the court only considered the issue of abandonment. In the second, the court considered three grounds for termination and ordered termination on the grounds of abandonment and mental illness, mental deficiency and substance abuse. Even on the common issue of abandonment, the court considered a different set of facts in the second trial than in the first trial. At the beginning of the second trial, the court specifically instructed the parties that they were to present evidence of abandonment "since the last trial . . . from that date forward." In its ruling on abandonment, the court only discussed Father's actions in the two years since the first severance trial and not before. Because the issues in the first severance trial were not identical, res judicata did not bar the second severance action, and the superior court did not err in denying the motion to dismiss on that ground. ¶13 Father also argues the superior court erred in failing to dismiss the allegation of abandonment in the second petition under the doctrine of collateral estoppel. Because we affirm the superior court's termination order on other grounds, we need not address this argument.
On the same day he filed his reply brief in this case, Father filed a Motion to Supplement the Record on Appeal, asking that we supplement the record in this matter with the full trial and appellate record from the first severance action, 1 CA-JV 10-0065. We deny the motion as untimely.
B. Merits of the Termination.
¶14 In order to sever parental rights, the superior court must find at least one of the statutory grounds enumerated in A.R.S. § 8-533(B) by clear and convincing evidence. Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 22, 110 P.3d 1013, 1018 (2005). When the superior court terminates parental rights on more than one statutory ground, we may affirm if clear and convincing evidence supports any of the grounds. Jesus M. v. Ariz. Dep't of Econ. Sec. , 203 Ariz. 278, 280, ¶ 3, 53 P.3d 203, 205 (App. 2002). The superior court also must find that termination is in the best interests of the child by a preponderance of the evidence. A.R.S. § 8-533(B); Kent K. , 210 Ariz. at 284, ¶ 22, 110 P.3d at 1018. ¶15 The superior court is in the best position to weigh the evidence; thus, we will accept its findings of fact "unless no reasonable evidence supports those findings" and will affirm its order terminating parental rights "unless it is clearly erroneous." Jesus M. , 203 Ariz. at 280, ¶ 4, 53 P.3d at 205. ¶16 Father does not dispute that the severance was in E.C.'s best interests, but argues that insufficient evidence supported the court's finding on mental illness, mental deficiency or substance abuse. Under § 8-533(B)(3), the court may terminate the parent-child relationship when it finds by clear and convincing evidence: "That the parent is unable to discharge parental responsibilities because of mental illness, mental deficiency or a history of chronic abuse of dangerous drugs, controlled substances or alcohol and there are reasonable grounds to believe that the condition will continue for a prolonged indeterminate period." ¶17 Robert and Margaret presented sufficient evidence at trial to support the court's finding under § 8-533(B)(3). Dr. Martin Lara, who prepared Father's substance abuse evaluation, testified that Father had a "long history" of methamphetamine abuse and addiction. Father described methamphetamine as his "drug of choice," and told Dr. Lara that he had used methamphetamine "fairly regularly" since the mid-1980s. Dr. Lara testified that at no time since the mid-1980s had Father maintained full sobriety. Nancy Friends, a licensed professional counselor who prepared the social study, testified that despite his continuing issues with methamphetamine, Father denied that he needed any counseling, support groups or other professional help. Friends testified Father also had "an active alcohol problem" and was dependent on methamphetamine. In Friends's opinion, this precluded Father's ability to parent E.C. ¶18 Further, there were reasonable grounds to believe Father's drug abuse would continue for a prolonged indeterminate period. When asked whether he believed Father's drug problem would "continue for a prolonged and indeterminate period of time," Dr. Lara replied, "I don't have a doubt that it will continue." Friends similarly testified there was no reason to believe that Father's alcohol and drug problem would not persist and continue to interfere with his ability to parent. ¶19 On the evidence presented at the severance trial, the superior court did not abuse its discretion in finding that Father had a history of chronic substance abuse that would likely continue for a prolonged indefinite period and in terminating his parent-child relationship with E.C. on that basis.
CONCLUSION
¶20 For the foregoing reasons, we affirm the superior court's judgment terminating Father's parental rights to E.C.
We amend the caption in this appeal to refer to the child solely by his initials.
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_______________________
DIANE M. JOHNSEN, Judge
CONCURRING: ______________________________
MAURICE PORTLEY, Presiding Judge
___________________
PHILIP HALL, Judge