Opinion
No. 2 CA-JV 2019-0006
05-29-2019
ESTEBAN V., Appellant, v. DEPARTMENT OF CHILD SAFETY AND E.S., Appellees.
COUNSEL Janelle A. Mc Eachern, Chandler Counsel for Appellant Mark Brnovich, Arizona Attorney General By Cathleen E. Fuller, Assistant Attorney General, Tucson Counsel for Appellee Department of Child Safety
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NOT FOR PUBLICATION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 Cochise County
No. JD201700016
The Honorable Terry Bannon, Judge
AFFIRMED
COUNSEL Janelle A. Mc Eachern, Chandler
Counsel for Appellant Mark Brnovich, Arizona Attorney General
By Cathleen E. Fuller, Assistant Attorney General, Tucson
Counsel for Appellee Department of Child Safety
MEMORANDUM DECISION
Judge Brearcliffe authored the decision of the Court, in which Presiding Judge Staring and Judge Vásquez concurred. BREARCLIFFE, Judge:
¶1 Appellant Esteban V. challenges the juvenile court's order of December 13, 2018, terminating his parental rights to his son, E.S., born in March 2013, on grounds of neglect and Esteban's inability to remedy the circumstances causing the child to remain in a court-ordered, out-of-home placement for longer than fifteen months. See A.R.S. § 8-533(B)(2), (B)(8)(c). On appeal, Esteban challenges the sufficiency of the evidence to sustain either of those statutory grounds for severance.
¶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 The Department of Child Safety (DCS) received reports of neglect by Esteban and E.S.'s mother throughout E.S.'s lifetime. The reports related both to E.S. and to his half-sibling, H.U. DCS provided services including substance-abuse treatment, mental-health services, parenting education, and individual therapy. Esteban completed some services, but in January 2017, DCS received a report that H.U., who has autism and is non-verbal, had gotten out of the couple's home during a scheduled visit and was found "naked, climbing a wall." Esteban tested positive for methamphetamines, and he and E.S.'s mother engaged in a domestic violence incident in February 2017, after which Esteban was arrested and the children were removed from the home. E.S. was adjudicated dependent in April 2017 after Esteban admitted allegations in a dependency petition.
The Department of Child Safety is substituted for the Arizona Department of Economic Security (ADES) in this decision. See 2014 Ariz. Sess. Laws 2nd Spec. Sess., ch. 1, § 20. For simplicity, our references to DCS in this decision encompass ADES, which formerly administered child welfare and placement services under title 8, and Child Protective Services, formerly a division of ADES. --------
¶4 At a review hearing in May 2018, the juvenile court received a report that Esteban was "compliant with services." But shortly thereafter, in June, DCS received a report that H.U. had "overdose[d] with amphetamines" during an unsupervised visit with Esteban and E.S.'s mother. H.U. had begun "acting very agitated," and the mother reported to H.U.'s grandmother that H.U. may have consumed water from a bottle that had been contaminated with "resin from bongs." The grandmother determined it was necessary to take H.U. to the hospital. The parents told DCS they had "no idea what occurred or how [H.U.] consumed that."
¶5 In October 2018, the juvenile court changed the case plan from a concurrent plan of reunification and severance to severance and adoption. DCS filed a motion to terminate Esteban's parental rights based on his failure to protect and the child's length of time in out-of-home, court-ordered care. After a hearing, the court granted the motion, concluding the state had established both grounds for severance and that severance was in the child's best interests.
¶6 On appeal, Esteban argues the juvenile court "clearly erred when it found that [he] had neglected his son and failed to remedy the circumstances which brought his son into care." But in challenging the court's findings Esteban relies on favorable evidence and largely fails to address the adverse evidence cited by the court. 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 if supported by the record. In re Pima Cty. Adoption of B-6355 & H-533, 118 Ariz. 111, 115 (1978). In this case, the record supports the court's conclusion that E.S. "could have suffered the same near-death overdose" as H.U. Contrary to Esteban's apparent contention, neglect is not merely limited to a failure to provide "food, clothing or other necessities." Rather, the definition of neglect includes the failure to provide supervision as a basis for severance. A.R.S. § 8-201(25)(a). Likewise, the time-in-care ground allows for severance when a "parent will not be capable of exercising proper and effective parental care and control in the near future." § 8-533(B)(8)(c). Nothing in that statute suggests a court should consider that a child will someday "be able to appreciate the dangers of his environment and take heed accordingly" in assessing whether a parent will be able to properly care for a child in the near future, as Esteban seems to suggest.
¶7 For these reasons, we affirm the juvenile court's order terminating Esteban's parental rights.