Opinion
No. 1 CA-JV 16-0210
12-13-2016
JOSE P., Appellant, v. DEPARTMENT OF CHILD SAFETY, A.L., Appellees.
COUNSEL Arizona Attorney General's Office, Phoenix By Amber E. Pershon Counsel for Appellee Department of Child Safety Czop Law Firm PLLC, Higley By Steven Czop Counsel for Appellant
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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 Maricopa County
No. JD27358
The Honorable David B. Gass, Judge
AFFIRMED
COUNSEL Arizona Attorney General's Office, Phoenix
By Amber E. Pershon
Counsel for Appellee Department of Child Safety Czop Law Firm PLLC, Higley
By Steven Czop
Counsel for Appellant
MEMORANDUM DECISION
Judge Patricia A. Orozco delivered the decision of the Court, in which Presiding Judge Andrew W. Gould and Judge Peter B. Swann joined. OROZCO, Judge:
¶1 Jose P. (Father) appeals the trial court's severance of his parental rights to his daughter, A.L. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Father and Mariel L. (Mother) were the natural parents of A.L., born in August 2005. Father and Mother were in a car accident in June 2011, wherein Mother was killed. Father sustained serious physical injuries, resulting in a coma. Father remained in a coma for two years and was ultimately moved to a nursing care facility. After the accident, A.L. lived with her maternal grandmother and J.M., an adult male. A.L.'s maternal uncle obtained custody in May 2013. In November 2013, A.L.'s guardian ad litem filed a dependency petition, alleging A.L. dependent as to Father, because of his inability to provide proper and effective parental care and he was "unfit by reason of abuse, neglect, cruelty or depravity." The petition also asserted Father interfered with A.L.'s custodians and did not secure social security benefits or provide for her needs. A.L. remained with her maternal uncle.
Shortly thereafter, Arizona Department of Child Safety (DCS) was substituted as the petitioner.
¶3 DCS offered Father access to TASC drug screening, psychological evaluations, counseling, parent aide, transportation services, and visitation. Father participated in the offered services.
¶4 In October 2014, DCS requested suspension of Father's visitation rights after A.L. disclosed sexual abuse by Father. The court granted DCS' request, suspending visitation pending completion and production of a forensic interview report to all parties. In the forensic interview, A.L. also alleged that J.M. had molested her.
¶5 DCS moved for termination of the parental relationship in August 2015, alleging abuse and length of time in an out-of-home care as grounds for severance. After a two-day contested severance hearing, the court found DCS proved all three grounds for termination and determined severance was in A.L.'s best interests.
¶6 Father timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona Revised Statutes (A.R.S.) sections 8-235.A, 12-120.21.A.1 and -2101.A (West 2016).
We cite to the current version of applicable statutes absent any change material to this decision. --------
DISCUSSION
¶7 Father argues there was insufficient evidence to support the juvenile court's findings of the grounds for severance. Father further argues that his trial counsel's failure to request review of a forensic interview of A.L. reviewed by the trial court under seal, constituted error so severe it undermined the confidence in the outcome, and that, but for this omission, the outcome would have been different.
I. Grounds for Severance
¶8 A parent-child relationship may be terminated when a court finds at least one of the statutory grounds for severance and determines that severance is in the child's best interests. A.R.S. § 8-533.B; Mary Lou C. v. Ariz. Dep't of Econ. Sec., 207 Ariz. 43, 47, ¶ 8 (App. 2004). We review a court's severance determination for an abuse of discretion, adopting its findings of fact unless clearly erroneous. Id. A court's disposition will be upheld unless there is no reasonable evidence to sustain it. Id.
A. Neglect or Willful Abuse
¶9 Pursuant to A.R.S. § 8-533.B.2, a parent's rights may be terminated when the court finds clear and convincing evidence the parent has "neglected or willfully abused a child." See also Raymond F. v. Ariz. Dep't of Econ. Sec., 224 Ariz. 373, 377, ¶ 15 (App. 2010) ("Proof of the statutory grounds for termination must be by clear and convincing evidence."). 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." A.R.S. § 8-533.B.2. Failure to protect a child from abuse is evidence supporting severance on this ground. See Matter of Maricopa Cty. Juv. Act. Nos. JS-4118/JD-529, 134 Ariz. 407, 408-09 (App. 1982).
¶10 Father argues no clear and convincing evidence supports a finding he sexually abused his daughter. According to Father, because there is no corroborating evidence to support A.L.'s allegations, the court could not find he abused her.
¶11 A.L. first disclosed sexual abuse to an aunt after the dependency was initiated. At trial, a psychologist who evaluated A.L. testified A.L. disclosed sexual abuse by her Father and J.M. The psychologist opined A.L.'s reports appeared credible.
¶12 DCS also presented evidence from a detective from the Phoenix Police Department. The detective testified he observed A.L.'s forensic interview, during which she disclosed sexual abuse by her Father and J.M. Without objection, the detective testified at length about what A.L. disclosed during the forensic interview related to the alleged sexual incidents. Because A.L. did not make conflicting statements and did not appear coached or rehearsed, he assessed her as credible. The detective reported he could not complete his criminal investigation because Father would not participate. The court reviewed the forensic interview under seal.
¶13 The DCS case manager also testified at the severance trial. According to the case manager, DCS conducted its own investigation of A.L.'s abuse allegations, concluding the allegations as to both Father and J.M. were true. She reported Father also declined to participate in the DCS investigation.
¶14 Father testified he did not abuse A.L., but admitted they shared a bed both before and after the accident, when she was returned to his care. He did not believe A.L.'s report J.M. abused her, and admitted he would allow J.M. near A.L. in the future, despite her allegations J.M. sexually abused her.
¶15 The court found A.L.'s reports of abuse credible, finding "[o]ne aspect of Father's beliefs [as] critical" - Father's disbelief of A.L.'s allegations of abuse by her second abuser. We do not reweigh evidence on appeal. Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, 282, ¶ 12 (App. 2002).
¶16 We cannot say the court erred in concluding that A.L. was abused by Father. Moreover, Father does not challenge the court's finding that A.L. was abused by J.M., and would allow J.M. near A.L. in the future. That finding alone is sufficient to sustain the abuse allegation. Because we affirm severance pursuant to A.R.S. § 8-533.B.2, we need not consider the other grounds for severance. See Jesus M., 203 Ariz. at 280, ¶ 3. Because Father does not argue severance was not in the best interest of the child, we do not address it.
II. Adequacy of Trial Counsel
¶17 Because we affirm severance on abuse grounds, we also consider Father's allegation his trial counsel's performance resulted in severance. Father alleges his trial counsel's failure to request review of a sealed forensic interview of A.L. amounted to a denial of due process because the trial court relied heavily on its contents in determining the credibility of A.L.'s sexual abuse allegations.
¶18 We presume Father's counsel provided competent assistance. See State v. Bennett, 213 Ariz. 562, 567, ¶ 22 (2006). In reviewing a claim of ineffective assistance of counsel, the "ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result is being challenged." John M. v. Ariz. Dep't of Econ. Sec., 217 Ariz. 320, 324, ¶ 14 (App. 2007) (quoting Strickland v. Washington, 466 U.S. 668, 696 (1984)). First, Father must prove his trial counsel's conduct fell below professional norm and a reasonable probability exists that "but for counsel's errors, the result would have been different." See id. at 325, ¶ 18 (citation omitted); Bob H. v. Ariz. Dep't of Econ. Sec., 225 Ariz. 279, 282, ¶ 10 (App. 2010). Second, Father must show prejudice resulting from the representation, such that the conduct undermines confidence in the outcome of the proceeding. Id.
¶19 Father argues "the case clearly could have gone in Father's favor had the court not reviewed the forensic interview or had there been further efforts by Father's counsel related to the court's consideration of the forensic interview," but he does not contend the interview was not admissible, nor does he point to anything to prove the outcome would have been different.
¶20 Moreover, other evidence in the record supports the court's conclusion A.L.'s reports of abuse were credible. In addition to reviewing A.L.'s forensic interview, the court considered the testimony of Father along with A.L.'s evaluating psychologist, the police officer who observed A.L.'s forensic interview and the DCS case manager. This other evidence also supported the court's finding of abuse as grounds for severance. State v. Salazar, 146 Ariz. 540, 542 (1985) (finding no prejudice when "the totality of the evidence" supported the court's finding). On this record, Father has not demonstrated prejudice.
CONCLUSION
¶21 For the aforementioned reasons, we affirm the trial court's severance of Father's rights to A.L.