Opinion
No. 2 CA-JV 2017-0200
03-16-2018
JUSTIN P., Appellant, v. DEPARTMENT OF CHILD SAFETY, N.P., AND A.P., Appellees.
COUNSEL Ritter Law Group, LLC, Florence By Matthew Ritter 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NOT FOR PUBLICATION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 Pinal County
No. S1100JD201500138
The Honorable DeLana J. Fuller, Judge Pro Tempore
AFFIRMED
COUNSEL Ritter Law Group, LLC, Florence
By Matthew Ritter
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 Chief Judge Eckerstrom concurred. BREARCLIFFE, Judge:
¶1 Justin P. appeals from the juvenile court's order terminating his parental rights to his children, N.P. (born January 2009) and A.P. (born April 2011), on abandonment and time-in-care grounds. See A.R.S. § 8-533(B)(1), (8)(a). He argues the court's abandonment finding was improper, in part because the Department of Child Safety (DCS) did not provide adequate reunification services. He additionally argues the court erred in terminating his rights on the time-in-care ground and by considering testimony "from a witness who viewed the entire proceeding." We affirm.
¶2 We view the facts in the light most favorable to sustaining the juvenile court's ruling. Demetrius L. v. Joshlynn F., 239 Ariz. 1, ¶ 2 (2016). DCS removed the children from their mother's home in June 2015 and placed them with their half-sibling's paternal grandmother. The children's mother did not know Justin's whereabouts. DCS filed a dependency petition, alleging the children were dependent as to their mother on various grounds including neglect and substance abuse, and as to Justin P. on neglect and abandonment grounds, as well as previous domestic violence. DCS located Justin—who had not seen his children in three years—in July, whereupon he was served with the dependency petition. After he waived his right to a hearing on the allegations, the children were found dependent as to him in September 2015. Although DCS offered visitation, among other services, his participation in visitation was sporadic. And, after he had numerous outbursts during visits, DCS suspended visitation in April 2016.
¶3 After the juvenile court changed the case plan to severance and adoption in April 2017, DCS filed a motion to terminate Justin's parental rights on abandonment, mental-illness, substance-abuse, and time- in-care grounds. After a contested severance hearing, the court terminated Justin's parental rights on abandonment and time-in-care grounds, also finding that termination was in the children's best interests. This appeal followed.
DCS later withdrew the mental-illness ground because the examining psychiatrist was unavailable to testify.
The juvenile court also terminated the parental rights of the children's mother. She is not a party to this appeal.
¶4 A juvenile court may terminate a parent's rights if it finds clear and convincing evidence of a statutory ground for severance and finds by a preponderance of the evidence that termination is in the child's best interests. A.R.S. §§ 8-533(B), 8-537(B); Kent K. v. Bobby M., 210 Ariz. 279, ¶ 41 (2005). "[W]e will affirm a termination order that is supported by reasonable evidence." Jordan C. v. Ariz. Dep't of Econ. Sec., 223 Ariz. 86, ¶ 18 (App. 2009). That is, we will not reverse a termination order for insufficient evidence unless, as a matter of law, no reasonable fact-finder could have found the evidence satisfied the applicable burden of proof. See Denise R. v. Ariz. Dep't of Econ. Sec., 221 Ariz. 92, ¶ 10 (App. 2009).
¶5 Justin first asserts the juvenile court could not properly terminate his parental rights on abandonment grounds because "therapeutic reunification services were never put in place" and "DCS specifically told him he would not be reunified with his children," resulting in his "reluctant compliance with the case-plan." Pursuant to § 8-533(B)(1), termination of parental rights is warranted if "the parent has abandoned the child." A parent abandons a child if he or she fails "to provide reasonable support and to maintain regular contact with the child, including providing normal supervision." A.R.S. § 8-531(1). "Abandonment includes a judicial finding that a parent has made only minimal efforts to support and communicate with the child. Failure to maintain a normal parental relationship with the child without just cause for a period of six months constitutes prima facie evidence of abandonment." Id. "What constitutes reasonable support, regular contact, and normal supervision varies from case to case." Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, ¶ 20 (2000), quoting In re Pima Cty. Juv. Action No. S-114487, 179 Ariz. 86, 96 (1994). "Therefore, questions of abandonment . . . are questions of fact for resolution by the trial court." Id., quoting In re Maricopa Cty. Juv. Action No. JS-500274, 167 Ariz. 1, 4 (1990) (alteration in Michael J.).
¶6 We have found nothing in the record indicating that Justin raised below any issues with the services provided by DCS before it filed the motion to terminate his parental rights. A parent who fails to object to the adequacy of services waives review of the issue. Shawanee S. v. Ariz. Dep't of Econ. Sec., 234 Ariz. 174, ¶ 16 (App. 2014). Justin claimed at trial that a DCS employee had told him he would not be reunited with his children. But, on appeal, he has not developed any argument the alleged statement required the juvenile court to disregard his failure to participate in services when considering whether he had abandoned his children. See State v. Bolton, 182 Ariz. 290, 298 (1995) (insufficient argument on appeal waives claim). Finally, even were we to disregard Justin's failure to participate in services, he does not claim that his lack of contact with the children before the dependency began is not sufficient, standing alone, to support the court's abandonment finding, and clear and convincing evidence supported that determination. See id. In sum, Justin has not demonstrated the court erred by determining he abandoned his children.
Justin mentioned this testimony in closing, but the juvenile court was free to disregard it in reaching its decision. See State v. Pieck, 111 Ariz. 318, 320 (1974) (trier of fact free to disregard testimony of interested persons). --------
¶7 Because Justin has not shown the juvenile court erred in terminating his rights on abandonment grounds, we need not address his arguments related to time-in-care grounds. See Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, ¶ 3 (App. 2002) (appellate court need not consider challenge to alternate grounds for severance if evidence supports any one ground). He also argues the court erred by allowing testimony "from a witness who viewed the entire proceeding" in violation of Rule 615, Ariz. R. Evid. Even if we agreed the court erred in allowing the witness to testify, Justin has made no effort to establish prejudice was likely, nor has he argued prejudice should be presumed. See Spring v. Bradford, 243 Ariz. 167, ¶ 27 (2017). Thus, we do not address this issue further.
¶8 We affirm the juvenile court's order terminating Justin's parental rights.