Opinion
No. 1 CA-JV14-0061
09-23-2014
ERNESTO H., Appellant, v. DEPARTMENT OF CHILD SAFETY, A.H., E.H., Appellees.
COUNSEL Collins & Collins LLP, Phoenix By Joseph E. Collins Counsel for Appellant Arizona Attorney General's Office, Mesa By Eric Knobloch Counsel for Appellee
NOTICE: NOT FOR PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED. Appeal from the Superior Court in Maricopa County
No. JD509616
The Honorable Brian K. Ishikawa, Judge
AFFIRMED
COUNSEL Collins & Collins LLP, Phoenix
By Joseph E. Collins
Counsel for Appellant
Arizona Attorney General's Office, Mesa
By Eric Knobloch
Counsel for Appellee
MEMORANDUM DECISION
Presiding Judge Patricia K. Norris delivered the decision of the Court, in which Judge Lawrence F. Winthrop and Judge John C. Gemmill joined. NORRIS, Judge:
¶1 Ernesto H. appeals from the juvenile court's order terminating his parental rights to two of his children, A.H. and E.H., arguing the Arizona Department of Economic Safety ("ADES") did not present clear and convincing evidence to terminate his parental rights under Arizona Revised Statutes ("A.R.S.") § 8-533(B)(8)(c) (2014) (15 months out-of-home placement). Based on our review of the record, we disagree and affirm the termination order.
Pursuant to Senate Bill 1001, § 157, 51st Leg., 2d Spec. Sess. (Ariz. 2014) (enacted), we substituted the Department of Child Safety for ADES as the Appellee in this matter. See ARCAP 27. For ease of reference and consistency with the record, however, we refer to ADES in the text of this decision.
Although the Arizona Legislature amended certain statutes cited in this decision after ADES filed the dependency petition, the revisions are immaterial to the resolution of this appeal. Thus, we cite to the current version of these statutes.
We note Ernesto has not argued on appeal the evidence failed to show that termination was in the best interests of the children. See A.R.S. § 8-533(B); Michael J. v. Ariz. Dep't. of Econ. Sec., 196 Ariz. 246, 249, ¶ 12, 995 P.2d 682, 685 (2000) ("To justify termination of the parent-child relationship, the trial court must find . . . at least one of the statutory grounds set out in [A.R.S.] section 8-533, and also that termination is in the best interest of the child.").
¶2 As relevant here, a juvenile court may terminate parental rights under A.R.S. § 8-533(B)(8)(c) if it finds ADES presented clear and convincing evidence that, first, a child has been in an out-of-home placement for a total period of at least 15 months; second, ADES made a "diligent effort" to provide the parent with appropriate reunification services; and third, "the parent has been unable to remedy the circumstances that cause[d] the child to be in an out-of-home 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." A.R.S. § 8-533(B)(8); see also A.R.S. § 8-537(B) (2014). We review a juvenile court's decision to terminate parental rights in the light most favorable to sustaining it and "will affirm it 'unless we must say as a matter of law that no one could reasonably find the evidence [supporting statutory grounds for termination] to be clear and convincing.'" Denise R. v. Ariz. Dep't of Econ. Sec., 221 Ariz. 92, 95, ¶ 10, 210 P.3d 1263, 1266 (App. 2009) (alteration in original) (quoting Murillo v. Hernandez, 79 Ariz. 1, 9, 281 P.2d 786, 791 (1955)).
¶3 Here, ADES removed the children from Ernesto's home in October 2011 after the children's mother admitted using methamphetamines and amphetamines while breastfeeding A.H., and while pregnant with E.H. who also tested positive for amphetamines at birth. On January 4, 2012, the juvenile court found the children dependent as to Ernesto based on evidence he was unable to discharge his parental responsibilities due to neglect and his failure to protect the children from their mother's drug use. On May 20, 2013, the court changed the case plan of family reunification to termination and adoption. ADES subsequently moved to terminate Ernesto's parental rights as to the children.
¶4 By the time of the termination hearing on January 27, 2014, the children had been in an out-of-home placement for more than 15 months. ADES presented testimony, through the children's caseworker, that although Ernesto had participated in the reunification services made available to him, he had been unable to remedy the circumstances that caused the children to be removed from his home. Specifically, the caseworker testified Ernesto had "failed to complete parent aide services successfully" because he could not "[r]etain[] information on basic parenting skills," including "[h]ow to control the three children, keep them in the same room, keep his eye on all three, bonding with all three children, issues with the food that he would bring to the visits . . . [a]nd his judgment." To substantiate the caseworker's testimony, ADES introduced into evidence a June 2013 parent aide report that expressed concern regarding Ernesto's inability "to take care and keep his children safe by himself," "the notorious preference [Ernesto] has for [one child] over [the] other children especially over [E.H.] and how this could be a direct impact into his social and emotional development," and "the lack of ability to redirect and discipline [A.H.] when she has temper tantrums and how this could affect her social and emotional development." An August 9, 2013 parent aide report also noted that Ernesto seemed to "forget things or [] has not been listening to this [parent aide's] recommendation . . . about taking [h]is time while addressing his children['s] behavior." ¶5 ADES also presented evidence that substantiated the caseworker's concerns about Ernesto's judgment as a parent. In August 2013, Ernesto disclosed to the parent aide during a scheduled visit that he had left cleaning fluid in a water bottle on his kitchen counter at home and then accidently drank it. On another occasion, he accidently gave himself an electric shock. In addition, ADES presented evidence that Ernesto knew the children's mother was using drugs and that he had been using drugs with her. The caseworker also testified that ADES had consulted with a psychologist who had reviewed the parent aide notes regarding A.H.'s behavior after visitation, and based on discussions with the psychologist, had recommended Ernesto's visits with the children be discontinued. ¶6 We recognize Ernesto presented evidence the children's foster mother had acknowledged the children "are a lot to handle for her" as well, and had expressed that "she fe[lt] it [was] unfair to Dad, and [the children] to end visits due to this, as she can empathize with how difficult it is to manage [the children]." ADES, however, presented sufficient evidence in support of its motion to terminate Ernesto's parental rights under A.R.S. § 8-533(B)(8)(c), and for that reason, we affirm the juvenile court's termination order. See Denise R., 221 Ariz. at 95, ¶ 10, 210 P.3d at 1266.
A.H. had been in an out-of-home placement continuously from October 2011 to January 2014, approximately 27 consecutive months. E.H., on the other hand, had been returned to Ernesto and his mother in December 2012 and removed again in January 2013; accordingly, he was in an out-of-home placement for a cumulative period of approximately 26 months.
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