Opinion
No. 1 CA-JV 16-0542
07-27-2017
JORDAN L., FAITH K., Appellants, v. DEPARTMENT OF CHILD SAFETY, R.L., Appellees.
COUNSEL Law Office of Florence M. Bruemmer, P.C., Anthem By Florence M. Bruemmer Counsel for Appellant Faith K. Robert D. Rosanelli, Phoenix By Robert D. Rosanelli Counsel for Appellant Jordan L. Arizona Attorney General's Office, Phoenix By Amber E. Pershon Counsel for Appellees
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Yavapai County
No. P1300JD201300080
The Honorable Anna C. Young, Judge
AFFIRMED
COUNSEL Law Office of Florence M. Bruemmer, P.C., Anthem
By Florence M. Bruemmer
Counsel for Appellant Faith K. Robert D. Rosanelli, Phoenix
By Robert D. Rosanelli
Counsel for Appellant Jordan L. Arizona Attorney General's Office, Phoenix
By Amber E. Pershon
Counsel for Appellees
MEMORANDUM DECISION
Judge Randall M. Howe delivered the decision of the Court, in which Presiding Judge Lawrence F. Winthrop and Judge Jennifer B. Campbell joined. HOWE, Judge:
¶1 Jordan L. ("Father") and Faith K. ("Mother") appeal the juvenile court's order terminating their parental rights to their minor daughter R.L. for neglect, failure to protect from neglect under A.R.S. § 8-533(B)(2) and previous time in an out-of-home placement under A.R.S. § 8-533(B)(11). For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 R.L. was born in 2010 to Father and Mother. During Father and Mother's relationship, at least two incidents of domestic violence occurred. Father once went to hit Mother in the face during an argument between the two, but he hit the wall instead. Another time, Father flung a door at Mother while she was holding R.L., requiring Mother to turn around to prevent the door from hitting the child. When the two separated a year or two later, Mother agreed to let Father take physical custody of R.L. because the home she was living in at the time was unsafe. Mother had little contact with R.L. after that, seeing her only once a month until summer 2013. Mother moved out of state at the end of the year.
¶3 In October 2013, the Department of Child Safety ("Department") received a report that R.L.—then just three years old— was covered in several bruises and had a foot injury that caused her to limp. The report also stated that R.L. was underweight and that she was disliked by Father's wife ("Wife"), who was her primary caregiver during the day. In response, the Department helped facilitate in-home services as well as a daycare service. However, two months later the daycare called the Department to report that R.L. had come in with a black eye and several bruises on her back and face, including one that resembled an adult's handprint. At that time, the daycare informed the Department that R.L. had come in to daycare with significant bruising 11 times over the span of the preceding two months. When asked, R.L. stated that Father and Wife hit her. The Department consequently took custody of R.L.
¶4 The Department then petitioned for R.L.'s dependency as to Father, alleging that he had been physically abusing R.L. by hitting her with his hand or her toys. The Department also alleged that Father neglected R.L. or was unwilling to parent her by failing to ensure that her needs were met, to provide her with medical care, and to protect her from Wife. Additionally, the Department petitioned for R.L.'s dependency as to Mother, alleging that she had abandoned R.L. and failed to maintain a normal parental relationship with her, and failed to protect her from the physical abuse she suffered while in Father's care. To reunify with R.L. the Department required Father to engage in several services including parenting classes, a psychological evaluation, anger management classes, individual and family counseling, and supervised visitations. The Department also told Father that he needed to demonstrate an ability to place R.L.'s needs over his own. The juvenile court found R.L. dependent as to Father and Mother.
¶5 The Department was unable to locate or reach Mother and did not hear from her during the course of the dependency. The Department believed that she had left the state upon learning that the Department had taken custody of R.L. Father, on the other hand, was involved in his reunification services. Consequently, the Department recommended that R.L. be returned to Father's physical custody with in-home services. The juvenile court agreed and ordered the return, and in September 2015 dismissed the dependency petition.
¶6 In June 2016, Father called his Department case manager to report that Wife had been arrested for disorderly conduct because she woke up screaming in the middle of the night, angry at him. Wife emptied her prescription medications, walked around the house with a knife in her hand, and repeatedly said that she was going to drown herself in the bathtub. The month before, Father and Wife had another fight that led Father to want to leave the house. Father put R.L. into the backseat of the car, but Wife took away his car keys. When Father got them back and attempted to drive off, Wife started to punch him through the window. She was still trying to hit Father as he drove off with R.L. still in the car, causing him to drag Wife, injuring her legs. The Department also learned that Wife often "joked" with Father about putting her prescription medication into his milk to kill him while "leaving no trace." Upon learning of these incidents of domestic violence, the Department took temporary custody of R.L. again and petitioned for her dependency as to both Father and Mother, who had since moved back to Arizona.
¶7 The Department alleged that Father had neglected R.L. due to domestic violence and failing to protect her from the dangerous and traumatic incidents, placing her at risk of harm. Regarding Mother, the Department alleged that she neglected R.L. due to substance abuse after Mother tested positive for marijuana in a separate dependency of another child. The Department also alleged that Mother had neglected R.L. due to mental illness and failure to protect her from the domestic violence at Father's home. The Department had offered Father many of the same reunification services that it had provided during the first dependency. The Department had also offered Mother reunification services, including drug testing, substance abuse treatment classes, counseling, parenting classes, parent aide services, and a psychological evaluation. The juvenile court again found R.L. dependent as to both Father and Mother. Around the time that the juvenile court found R.L. dependent, the Department moved to terminate Father's and Mother's parental rights on the grounds of neglect and failure to protect under A.R.S. § 8-533(B)(2) and previous time in an out-of-home placement under A.R.S. § 8-533(B)(11).
¶8 In the meantime, Mother was fully engaged in her services, but tested positive for marijuana three times in the first month of the dependency. Although not fully compliant, Father participated in some reunification services. Based on their participation over the next three months, the Department moved to withdraw its motion to terminate parental rights. The Department argued that while dismissal was inappropriate, the parents had sufficiently engaged in their services to justify allowing more time to attempt reunification. The following week, R.L.'s guardian ad litem moved to be substituted as the movant for termination. The court denied the Department's motion and granted the guardian ad litem's request.
¶9 At the November 2016 severance hearing, the Department clarified that it believed that severance and adoption was the appropriate goal and that it would continue to work toward that goal whether the court allowed the parents more time or concluded that severance would be in R.L.'s best interests. The court then heard testimony from Father and Mother. Father admitted that he had punched a wall during an argument with Mother when R.L. was a baby, but denied any other incidents. He also admitted that he and Wife had two altercations before the first dependency. Regarding Wife's suicidal threats, Father testified that he was calm and sat on the couch "letting her vent and everything" after putting a towel underneath R.L.'s door so that she would not awaken. In addition, Father stated that although R.L. saw the situation between him and Wife unfold as he tried to drive away, R.L. did not see Wife's injuries because he told R.L. to keep her head down. Father admitted, however, that witnessing that event must have been scary for R.L. and that it was not appropriate for her to see. Finally, Father stated that he did not tell Mother that the Department had taken custody of R.L. during the first dependency.
¶10 Mother testified that she was unaware of any physical abuse toward R.L. or domestic violence between Father and Wife. She said that the only instance of domestic violence that she knew of was the one involving the car and that she had moved back to Arizona three days after learning about it to take R.L. Mother also said that after she last saw R.L. in July 2013, she did not have any other contact with her because Father had moved and refused to tell her where. She admitted, however, that she did not call the Department to do a welfare check or call the police to find her daughter. Additionally, Mother testified that she did not learn about R.L.'s first dependency or that R.L. was in foster care until nine months after the Department took custody of her. She admitted that she did not call the Department until November—two months later—to ask about the dependency. At the time of the hearing, Mother was unemployed and did not have her own housing.
¶11 The case manager also testified. She said that children may suffer negative behavioral effects when in foster care for multiple, extended periods, including behavioral issues, depression, and trauma. She also stated that permanency would be in R.L.'s bests interests and that she is "not sure how much longer [R.L.] needs to be in care for." R.L. was doing well in her placement, and the case manager said that she believed it to be appropriate for her. Finally, she testified that R.L. was adoptable and her foster family was willing to adopt her.
¶12 After taking the issue under advisement, the juvenile court terminated Father's and Mother's parental rights to R.L. on the grounds of neglect and abuse under A.R.S. § 8-533(B)(2) and previous time in an out-of-home placement under A.R.S. § 8-533(B)(11). The court found that Father had placed R.L. at an unreasonable risk of physical and emotional harm by exposing her to the domestic violence in his home, including threats of suicide and incidents involving dangerous weapons. The court further found that Mother had neglected R.L. by failing to protect her when she left the child in Father's custody and had failed to communicate with her. Additionally, the court concluded that Mother's failure to participate in the first dependency, despite knowing that R.L. was in foster care, placed R.L. at risk of harm because she knew or should have known of the exposure to domestic violence occurring at Father's home. Finally, the court found that terminating parental rights was in R.L.'s best interests. Father and Mother both appealed.
DISCUSSION
¶13 Father and Mother argue that insufficient evidence supports the juvenile court's order terminating their parental rights to R.L. We review a juvenile court's order for an abuse of discretion. E.R. v. Dep't of Child Safety, 237 Ariz. 56, 58 ¶ 9 (App. 2015). As the trier of fact, the juvenile court is in the best position to weigh the evidence, observe the parties, judge the witnesses' credibility, and resolve factual disputes. Ariz. Dep't of Econ. Sec. v. Oscar O., 209 Ariz. 332, 334 ¶ 4 (App. 2004). Unless no reasonable evidence supports the juvenile court's factual findings, we accept those findings and will affirm the severance order unless it is clearly erroneous. Bobby G. v. Ariz. Dep't of Econ. Sec., 219 Ariz. 506, 508 ¶ 1 (App. 2008). In determining whether sufficient evidence exists, we view the evidence in the light most favorable to sustaining the termination order. Jordan C. v. Ariz. Dep't of Econ. Sec., 223 Ariz. 86, 93 ¶ 18 (App. 2009). Additionally, we will affirm the juvenile court's order if any one of the statutory grounds is proved and if the termination is in the child's best interests. Raymond F. v. Ariz. Dep't of Econ. Sec., 224 Ariz. 373, 376 ¶ 14 (App. 2000).
1. Statutory Ground for Termination
¶14 Father and Mother first argue that insufficient evidence supports the juvenile court's order terminating their parental rights to R.L. on the ground of neglect or willful abuse. Although fundamental, a parent's right to care, custody, and control of his child is not absolute. Linda V. v. Ariz. Dep't of Econ. Sec., 211 Ariz. 76, 78 ¶ 6 (App. 2005). To terminate parental rights, the juvenile court must find by clear and convincing evidence the existence of at least one statutory ground under A.R.S. § 8-533 and by a preponderance of the evidence that termination would serve the child's best interests. A.R.S. § 8-533(B); Ariz. R.P. Juv. Ct. 66(C). The juvenile court here did not abuse its discretion by terminating Father's and Mother's parental rights or in finding that termination was in R.L.'s best interests.
Father and Mother also argue that the juvenile court erred by terminating their parental rights on the ground of previous time in out-of-home placement. However, because we affirm the court's order regarding both parents on the ground of neglect or abuse, we need not address their respective arguments. See Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, 280 ¶ 3 (App. 2002). --------
¶15 As relevant here, the juvenile court may sever a parent's rights to his or her child if the parent has "neglected or willfully abused a child." A.R.S. § 8-533(B)(2). "Abuse" includes "serious physical or emotional injury or situations in which the parent knew or reasonably should have known that a person was abusing or neglecting a child." Id. However, "abuse" is not limited to serious physical or emotional injury, and can include, for example, the infliction or allowing of physical injury. E.R., 237 Ariz. at 59 ¶ 13; A.R.S. § 8-201(2). As pertinent here, "neglect" is a parent's inability or unwillingness "to provide [a] child with supervision, food, clothing, shelter or medical care if that inability or unwillingness causes unreasonable risk of harm to the child's health or welfare." A.R.S. § 8-201(25). The purpose of the severance statutes is to protect the health and safety of children. E.R., 237 Ariz. at 59 ¶ 14.
1a. Father
¶16 The record supports the juvenile court's order terminating Father's parental rights to R.L. for neglect or willful abuse. The Department removed R.L. from Father's home when R.L.'s daycare reported that she had multiple bruises on her body, including one that resembled an adult's handprint. R.L. stated that she received those injuries from Father and Wife. Father and Wife themselves experienced at least two incidents of domestic violence during that time as well involving altercations between them.
¶17 In the second dependency, Father had again exposed R.L. to domestic violence between himself and Wife, thereby placing R.L. at an unreasonable risk of harm. On one occasion, Father and Wife got into an argument when Father decided to leave with R.L. in his car. When R.L. was in the car, Wife jumped in and took the keys, and when Father got them back and attempted to drive away, Wife started punching Father through the window. R.L. was in the backseat of the car during the incident. Although Father stated at the severance hearing that R.L. did not see any of Wife's injuries, R.L. saw and heard what was occurring. Her inability to see Wife's injuries does not mean that R.L. was in any less danger because of it. Father knew that the event was scary for R.L. and an inappropriate thing for her to observe.
¶18 Despite feeling that the situation was one that he and R.L. needed to escape and knowing that Wife could get violent, Father returned to the home with the child. Father's return exposed R.L. to domestic violence yet again only one month later, when Wife began screaming at Father in the middle of the night. Wife emptied her bottle of prescription medication, ran the bath, and walked around with a knife, threatening suicide. In the meantime, Father said that he sat on the couch "letting her vent and everything" after putting a towel underneath R.L.'s door so that she would not awaken. In addition, Father was subject to Wife's frequent "joke" that she would kill him without a trace by poisoning his drink with her medication. Contrary to Father's argument that the court improperly severed his parental rights because of Wife's actions, Father's action of returning R.L. to the same environment with Wife put R.L. at an unreasonable risk of harm and emotional injury. See A.R.S. § 8-201(24). Notably, the Department told Father during the first dependency that he needed to learn to put R.L.'s needs before his own—something that returning R.L. to the home with Wife did not reflect.
¶19 Father argues that the juvenile court could not consider the facts from the previous dependency at all because it had dismissed that dependency and therefore implicitly found that Father was willing and capable or properly parenting R.L. Father submits that the doctrines of the "law of the case" and res judicata barred the court's use of those facts. But Father failed to cite to any legal authority for the proposition that the juvenile court's dismissal of a previous dependency was an adjudication on the issue or a finding, implicit or not, of fit parenting. Cf. Matter of Appeal in Pima Cty. Juv. Action No. S-983, 133 Ariz. 182, 184 (App. 1982) (disagreeing that "the juvenile court was limited by principles of res judicata as to the dissolution court's determination regarding appellant's fitness for purposes of visitation" while incarcerated). Although the court dismissed the first dependency petition, it did not do so upon finding that the Department's allegations were false or did not sufficiently support dependency; it did so because Father had, to that date, successfully completed his required services. Thus, contrary to Father's argument, the facts of the previous dependency were not already litigated. Additionally, the previous dependency was part of this entire case, and the court acted within its authority and discretion in considering the facts and circumstances in their entirety. Regardless, Father did not object to the admission of exhibits that included the facts from the previous dependency, and this argument is therefore waived. Accordingly, sufficient reasonable evidence supports the juvenile court's order terminating Father's parental rights.
1b. Mother
¶20 The record likewise supports the juvenile court's ruling terminating Mother's parental rights to R.L. for neglect or willful abuse. First, the record shows that Mother knew or should have known that R.L. was neglected or abused. Father and Mother had engaged in at least two incidents of domestic violence when R.L. was a baby. As Father admitted at the severance hearing, he once grew angry with Mother and, during an argument, intended to punch her in her face but punched the wall instead. On another occasion, Father flung a door toward Mother while she was holding R.L. and Mother had to turn to prevent the door from hitting the child. Despite this demonstration of Father's inability to control his anger and the potential danger he posed to her and R.L., Mother left R.L. in Father's care approximately a year or two later. Although she said this was because the home she was living in at the time was unsafe for R.L., Mother did not seek to take R.L. back when she left the unsafe home. Mother also admitted that not only did she fail to investigate where Father and R.L. had moved to, she did not call the Department at any time to perform a welfare check on R.L.
¶21 The second incident of Mother's neglect was her failure to provide R.L. with shelter, leading to an unreasonable risk of harm to R.L. by being placed back with Father and Wife. Mother moved out of state on the same day that the Department took R.L. into care. Although Mother stated that she did not know about the removal, the record shows that the Department learned that Mother left the state because she found out about the Department's taking custody of R.L. Additionally, even if Mother did not learn of R.L.'s removal and dependency until nine months later, Mother admitted that she did not come to Arizona to try to find her daughter or learn the reason for R.L.'s removal and that she did not even call the Department until a few months after learning that her daughter was in its care. Mother's failure to provide for R.L. during this time allowed R.L. to be returned to Father and exposed to the domestic violence in that home. Thus, the record sufficiently supports the juvenile court's order terminating Mother's parental rights.
2. Best Interests
¶22 Mother next argues that the juvenile court erred by finding that termination of their parental rights was in R.L.'s best interests. Termination of a parent's rights is in the children's best interests if the children will benefit from the termination or will be harmed if the relationship continues. Shawnee S. v. Ariz. Dep't of Econ. Sec., 234 Ariz. 174, 179 ¶ 20 (App. 2014). In determining the children's best interests, the juvenile court may consider whether the children are adoptable. Tina T. v. Dep't of Child Safety, 236 Ariz. 295, 300 ¶ 19 (App. 2014); Mario G. v. Ariz. Dep't of Econ. Sec., 227 Ariz. 282, 288 ¶ 26 (App. 2011). The juvenile court need only find that termination is in the children's best interests by only a preponderance of the evidence. Kent K. v. Bobby M., 210 Ariz. 279, 288 ¶ 41 (2005).
¶23 Here, the record shows that R.L. was placed with the same foster family during both dependencies and that she thrived in that environment. R.L. also had a positive relationship with her foster family. By contrast, R.L. had not lived with Mother since Mother left her with Father in 2011 or 2012. Additionally, at the time of the severance hearing, Mother was unable to parent R.L. because she was unemployed and had not yet been able to secure her own housing. Thus, allowing Mother's parental rights to continue would perpetuate the continuing uncertainty whether and when R.L. could have the stability and permanency she needs. The case manager testified that children may suffer negative behavioral effects when in foster care for multiple, extended periods, including behavioral issues, depression, and trauma. By terminating Mother's parental rights though, R.L. would benefit from the opportunity to be adopted by her placement family, which had expressed an interest in adopting her. This would also give her the stable home she needs. Thus, the juvenile court did not err by finding that terminating Mother's rights would be in R.L.'s best interests.
CONCLUSION
¶24 For the foregoing reasons, we affirm.