Opinion
1 CA-JV 23-0159
02-13-2024
IN RE TERMINATION OF PARENTAL RIGHTS AS TO E.J.
The Law Offices of Robert Casey, Phoenix By Robert Ian Casey Counsel for Appellant Mother Harris &Winger, P.C., Flagstaff By Chad Joshua Winger Counsel for Appellant Father Arizona Attorney General's Office, Tucson By Autumn Spritzer Counsel for Appellee Arizona Department of Child Safety
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Mohave County No. S8015JD202300022 The Honorable Aaron Michael Demke, Judge Pro-Tempore
The Law Offices of Robert Casey, Phoenix
By Robert Ian Casey
Counsel for Appellant Mother
Harris &Winger, P.C., Flagstaff
By Chad Joshua Winger
Counsel for Appellant Father
Arizona Attorney General's Office, Tucson
By Autumn Spritzer
Counsel for Appellee Arizona Department of Child Safety
Judge D. Steven Williams delivered the Court's decision, in which Presiding Judge Daniel J. Kiley and Judge Kent E. Cattani joined.
MEMORANDUM DECISION
WILLIAMS, Judge:
¶1 Amberleah V. ("Mother") and Jon I. ("Father") appeal the juvenile court's order terminating their parental rights. For reasons that follow, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Mother and Father are the parents of fifteen-year-old E.J., who is the subject of this appeal. They also had another child, K.J., who was beaten to death in the family home in 2023. The parents and children lived together with two roommates, Richard Pounds and Shioban Gujda. Pounds apparently assaulted Father on multiple occasions and, in late 2021, Father moved out of the family home and into a hotel room, leaving Mother and the children with the roommates.
¶3 Both children subsequently became malnourished and suffered physical injuries from intentional abuse in the home. For example, Pounds shot E.J. multiple times with a BB gun, blinding her in the left eye. And though Mother did not directly participate in physically abusing the children, she did restrain them with zip-ties. For his part, Father saw the children regularly when picking up and dropping off Mother for work and noticed that K.J. looked skinnier than usual and that the children had "fear in [their] eyes." But neither parent took any action to protect the children or report the abuse.
¶4 In early 2023, 93-pound K.J. was killed by "multiple blunt force trauma" with "[m]alnutrition [] contribut[ing]." Though differing accounts were given, Mother stated that Pounds killed K.J. with the "hammer end of an axe."
¶5 After K.J. died from his injuries, Mother and Father falsely reported to police that K.J. had run away. They then left E.J. alone with Pounds while they drove to Clacks Canyon and dumped their son's blanket-covered body behind a wall.
¶6 Police found K.J.'s body days later. When confronted, both parents admitted they knew that K.J. was dead when they reported him as a runaway. Both parents were arrested.
¶7 E.J. was examined at a hospital and found to have multiple bone fractures in various stages of healing; BB pellets lodged in her left eye socket, right forearm, and right humerus; and scars "too numerous to count" over multiple parts of her body in various stages of healing.
¶8 E.J. was placed in a therapeutic foster home, and the Department of Child Safety ("DCS") filed simultaneous petitions for dependency and termination of parental rights on grounds of abuse and neglect.
¶9 At a combined dependency and termination adjudication hearing in mid-2023, DCS withdrew its allegation of abuse. The juvenile court terminated both parents' rights based upon neglect under A.R.S. § 8-533(B)(2). The parents timely appealed. We have jurisdiction under Article 6, Section 9, of the Arizona Constitution, A.R.S. §§ 8-235(A), 12-2101(B), and Rule 601(a) of the Arizona Rules of Procedure for the Juvenile Court.
DISCUSSION
¶10 A court may terminate parental rights if it finds, (1) by clear and convincing evidence, the existence of at least one of the statutory grounds enumerated in A.R.S. § 8-533(B), Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, 249, ¶ 12 (2000), and (2) by a preponderance of the evidence, that termination is in the child's best interests, Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 22 (2005). Neither parent challenges the statutory ground justifying termination. Crystal E. v. Dep't of Child Safety, 241 Ariz. 576, 578, ¶ 6 (App. 2017) ("[W]e adhere to the policy that it is generally not our role to sua sponte address issues not raised by the appellant."); Christina G. v. Ariz. Dep't of Econ. Sec., 227 Ariz. 231, 234, ¶ 14 n.6 (App. 2011) (recognizing that the failure to develop an argument on appeal usually results in abandonment and waiver of the issue). Instead, they only challenge whether termination of their parental rights was in E.J.'s best interests. We review parental termination orders for an abuse of discretion, Jessie D. v. Dep't of Child Safety, 251 Ariz. 574, 579, ¶ 10 (2021), and will affirm a juvenile court's findings "if reasonable evidence and inferences support them," Alma S. v. Dep't of Child Safety, 245 Ariz. 146, 151, ¶ 18 (2018).
¶11 When conducting its best interests inquiry, the juvenile court must find that the "child would [either] benefit from a severance or be harmed by the continuation of the relationship." Maricopa Cnty. Juv. Action No. JS-500274 , 167 Ariz. 1, 5 (1990) (emphasis in original). In doing so, the court considers the totality of the circumstances. Dominique M. v. Dep't of Child Safety, 240 Ariz. 96, 99, ¶ 12 (App. 2016). The "foremost concern" in the best interests determination, however, is "the child's interest in stability and security." Jessie D. v. Dep't of Child Safety, 251 Ariz. 574, 583, ¶ 27 (2021) (cleaned up).
¶12 As to E.J.'s best interests, the juvenile court found:
"While [E.J.] may have expressed a wish to maintain parental rights, the Court will not place the burden of what is best for her on the child. The Court has considered the child's position and finds that termination for the parent-child relation is in the child's best interest. There has been a considerable history of abuse to [E.J.]. Neither parent is willing or capable of protecting [her]. [E.J.] is thriving now and she had [sic] gained weight. If rights were not terminated, one of the parents could be released from incarceration at some point and the child would be subjected to abuse again. A return to the parents would retraumatize the child and the trauma will last a long time."
¶13 Mother argues that the juvenile court's conclusion pointed to no "evidence or testimony," nor did it "indicat[e] what ultimate facts [the court] relie[d] on to make these conclusions." Though Mother correctly points out that A.R.S. § 8-538(A) requires "[e]very order of the court terminating the parent-child relationship . . . be in writing and [] recite the findings on which the order is based," Mother's argument fails. Contrary to Mother's contention, the court did make several record-supported findings that justified the court's best interests determination, including that (1) E.J. "suffered from persistent abuse"; (2) "Mother knew of the abuse" of her children; (3) both parents "neglected" the children and "failed to protect the children from neglect"; (4) the children were "malnourished"; (5) both parents "were unwilling or unable to protect [E.J.]"; and (6) both parents' homes were "in a poor condition not suitable for children." Each finding bolsters the court's best interests determination because each shows that E.J. would either benefit from the termination of the parent-child relationship, or be harmed by its continuation. Maricopa Cnty. Juv. Action No. JS-500274 , 167 Ariz. at 5; see also Kent K., 210 Ariz. at 287, ¶ 37 ("[T]he child's interest in obtaining a loving, stable home, or at the very least avoiding a potentially harmful relationship with a parent, deserves at least as much weight" in the best interests analysis "as that according the interest of the unfit parent in maintaining parental rights.").
¶14 To the extent Father's argument mirrors Mother's argument, it fails for the same reasons. But Father also contends that, "as a matter of law," the best interests finding fails because the "court could not make a requisite 'benefit' finding that the Child will obtain a permanent, stable, and secure home through a future adoption" since the child is not "adoptable and is destined for long term foster care." Though the court heard testimony that a potential adoptive placement was underway, and the paperwork would be sent "over to adoptions," potential for adoption may support a best interests finding, but it is not required. See, e.g. Mary Lou C. v. Ariz. Dep't of Econ. Sec., 207 Ariz. 43, 50, ¶ 19 (App. 2004).
¶15 Further, though Father maintains he was not E.J.'s abuser, and that his future release from custody would not result in E.J. being subjected to future abuse, Father fails to acknowledge his role in a horrific series of events. Father concedes, or at least does not challenge, the court's finding that he neglected E.J. And, as outlined, supra ¶ 13, Father's actions -and inaction-support a finding that E.J. would either benefit from a termination of parental rights or be harmed by its continuation. On this record, the court did not err.
CONCLUSION
¶16 We affirm.