Opinion
No. 1 CA-JV 16-0175
12-13-2016
KAROL M., Appellant, v. DEPARTMENT OF CHILD SAFETY, J.M., Appellees.
COUNSEL S. Marie Gates, Buckeye Counsel for Appellant Arizona Attorney General's Office, Mesa By Nicholas Chapman-Hushek Counsel for Appellee Department of Child Safety
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. JD510854
The Honorable Timothy J. Ryan, Judge
AFFIRMED
COUNSEL S. Marie Gates, Buckeye
Counsel for Appellant Arizona Attorney General's Office, Mesa
By Nicholas Chapman-Hushek
Counsel for Appellee Department of Child Safety
MEMORANDUM DECISION
Judge Jon W. Thompson delivered the decision of the Court, in which Presiding Judge Diane M. Johnsen and Judge John C. Gemmill joined. THOMPSON, Judge:
The Honorable John C. Gemmill, Retired Judge of the Court of Appeals, Division One, has been authorized to sit in this matter pursuant to Article VI, Section 3 of the Arizona Constitution.
¶1 Appellant Karol M. (Karol) appeals from the juvenile court's order severing his parental rights to his child, J.M. For the following reasons, we affirm the decision of the juvenile court.
FACTUAL AND PROCEDURAL HISTORY
¶2 J.M. was born in August 2009. His mother died in February 2013. Prior to her death, Karol and J.M.'s mother had an abusive relationship. Also in February 2013, the Department of Child Safety (DCS) removed J.M. from Karol's care due to his history of violence and drug use. DCS filed a dependency petition alleging that J.M. was a dependent child. In May 2013 the juvenile court adjudicated J.M. dependent and put into place a case plan of family reunification. DCS put services into place, including supervised visitation, counseling, parent aide services, urinalysis testing, substance abuse treatment, and two psychological evaluations.
¶3 In January 2016, DCS filed a motion to terminate Karol's parental rights to J.M. on the ground of fifteen months' time in care. The juvenile court held a contested severance trial in April 2016. At the outset of the trial, Karol objected to three of the state's exhibits (exhibits 1-3). All three exhibits were DCS court reports authored by the DCS ongoing case manager, Diana Toma. All three reports had attachments. Karol first objected to the reports on the basis that Toma would not be testifying; her supervisor, Irene Morgan testified on behalf of DCS instead. The juvenile court denied the objection and admitted the exhibits, noting that Toma was available by phone for cross-examination. Karol later renewed his objection to exhibits 1-3 because the exhibits had attachments not authored by Toma. He did not ask to cross-examine Toma by phone. The court overruled the objection.
¶4 After trial, the juvenile court severed Karol's parental rights on the fifteen months' time in care ground and found that severance was in J.M.'s best interests. Karol timely appealed. We have jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) §§ 8-235 (2014), 12-120.21(A)(1) (2016), and -2101 (A)(1) (2016).
DISCUSSION
¶5 "We will not disturb the juvenile court's order severing parental rights unless its factual findings are clearly erroneous, that is, unless there is no reasonable evidence to support them." Audra T. v. Ariz. Dep't of Econ. Sec., 194 Ariz. 376, 377, ¶ 2, 982 P.2d 1290, 1291 (App. 1998) (citations omitted). We view the facts in the light most favorable to sustaining the juvenile court's ruling. Lashonda M. v. Ariz. Dep't of Econ. Sec., 210 Ariz. 77, 82, ¶ 13, 107 P.3d 923, 928 (App. 2005). We do not reweigh the evidence, because "[t]he juvenile court, as the trier of fact in a termination proceeding, is in the best position to weigh the evidence, observe the parties, judge the credibility of witnesses, and make appropriate findings." Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, 280, ¶ 4, 53 P.3d 203, 205 (App. 2002) (citation omitted). The juvenile court may terminate a parent-child relationship if the petitioner proves by clear and convincing evidence at least one of the statutory grounds set forth in § 8-533(B). Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, 249, ¶ 12, 995 P.2d 682, 685 (2000). The court must also find by a preponderance of the evidence that severance is in the child's best interests. Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 22, 110 P.3d 1013, 1018 (2005). We review the juvenile court's evidentiary rulings for a "clear abuse" of discretion. Lashonda, 210 Ariz. at 82-83, ¶ 19, 107 P.3d at 928-29.
Karol does not appeal the juvenile court's determination that severance was in J.M.'s best interests.
¶6 On appeal, Karol argues that the evidence was insufficient to support severance on the ground of fifteen months' time in care and that the juvenile court's findings were clearly erroneous because the court relied on inadmissible hearsay.
¶7 At the outset, we note that the opening brief fails to comply with Arizona Rule of Civil Appellate Procedure (ARCAP) 13(a) (Rule 13(a)). Specifically, Rule 13(a)(5) requires "[a] 'statement of facts' that are relevant to the issues presented for review, with appropriate references to the record." The statement of facts in the opening brief provides no citations the record. Rule 13(a)(6) requires a statement of the issues presented for review; the opening brief does not present a statement of the issues. Rule 13(a)(7)(A) requires an argument section containing an appellant's contentions concerning each issue presented for review, with supporting reasons for each contention and legal citations as well as citations to the portions of the record on which the appellant relies. Rule 13(a)(7)(B) further requires an appellant to provide:
ARCAP 13 applies to appeals from final orders of the juvenile court. See Arizona Rule of Procedure for the Juvenile Court 106(A) ("Briefing, Consideration and Disposition in the Court of Appeals.").
For each contention, references to the record on appeal where the particular issue was raised and ruled on, and the applicable citation to supporting legal authority. If a ruling challenged on appeal is one that required a party's objection at trial to preserve a right of review, such as a failure to admit or to exclude evidence . . . appellant must include a reference to the record where the objection and ruling are located.(Emphasis added). The argument section of the opening brief (which is two paragraphs long), does identify the appropriate standard of review with legal citations pertaining to the sufficiency of the evidence issue. No further legal citations are provided in the argument section or elsewhere in the opening brief even though Karol argues that he was denied due process and the juvenile court failed to follow the Arizona Rules of Evidence. Further, although the opening brief asserts that "[Karol] made numerous objections as to foundation and hearsay and the court allowed the testimony/evidence in," he does not provide even one citation to the record where he made an objection or the court ruled on an evidentiary issue.
Similarly, the statement of facts in the opening brief asserts "Father's counsel made multiple objections as to hearsay," without providing any citation to the record.
¶8 This court may dismiss an appeal when the appellant fails to comply with ARCAP 13. See Adams v. Valley Nat'l Bank of Ariz., 139 Ariz. 340, 342, 678 P.2d 525, 527 (App. 1984). However, we have the discretion to decide an appeal on its merits rather than dismiss it on procedural grounds, and we do so here because of the importance of this appeal to both Karol and J.M. See Clemens v. Clark, 101 Ariz. 413, 420 P.2d 284 (1966). We have reviewed the entire record in this case, including, inter alia, the 122-page trial transcript.
¶9 Reasonable evidence supports the juvenile court's decision to terminate Karol's parental rights on the fifteen-month time in care ground. Section 8-533 (B)(8)(c) permits severance if DCS has made diligent effort to provide appropriate reunification services to a parent and:
[t]he child has been in an out-of-home placement for a cumulative total period of fifteen months or longer pursuant to court order . . . the parent has been unable to remedy the circumstances which cause the child to be in an out-of-home placement and there is a substantial likelihood that the parent will not be capable of exercising proper and effective parental care and control in the near future.Here, J.M. was in an out-of-home placement for more than three years. Karol had a lengthy history of drug abuse. Prior to the dependency, in 2012, he was convicted of DUI and endangerment after he drove with J.M. in his car while under the influence of methamphetamine and marijuana. Karol tested positive for marijuana eight times in the spring of 2013. He admittedly used spice, a synthetic form of marijuana, on a daily basis from March 2014 until March 2015 (after he completed outpatient treatment in September 2013). He failed to submit to drug testing as directed by the probation department on five occasions between November 2014 and January 2015. He was arrested for driving under the influence of illegal drugs in March 2015. Karol tested positive for alcohol twice in March 2016. Additionally, Karol did not consistently participate in individual counseling, and he argued with his mother during supervised visitation with J.M.
¶10 Dr. Al Silberman evaluated Karol in June 2015. Dr. Silberman diagnosed Karol with a personality disorder with antisocial features. Dr. Silberman opined that the prognosis that Karol would be able to adequately parent in the future was "poor to cautious," and that a child could be at risk for neglect in his care. Dr. Silberman testified that when he evaluated Karol, Karol told him his drug use was in remission and did not disclose that he was using spice or that he had had a DUI in 2015. Dr. Silberman expressed concern about Karol's drug use and the fact that he had not consistently participated in individual counseling.
¶11 Although he received services directed at helping him to achieve and maintain sobriety, Karol was unable to consistently do so. The evidence was sufficient to show that J.M. was in an out of home placement for more than fifteen months, Karol was unable to remedy the circumstances causing the out of home placement, and there was a substantial likelihood he would be unable to effectively parent in the future. To the extent Karol argues that the DCS supervisor's testimony was inaccurate and unhelpful and the court erred by relying on it, we disagree. The court ruled:
Karol argues that the supervisor was unable to answer basic questions about the case and wrongly testified that he had five DUIs. The supervisor did testify that she thought Karol had five DUIs but that she was unsure and would defer to Karol's criminal records. There is no indication that the juvenile court relied on the supervisor's testimony about how many DUIs Karol had. --------
[Karol] has argued that [DCS] has not met its burden of proof, in that it called the case manager's supervisor, and not the case manager. From the TASC records and related testimony, the Court finds by clear and convincing evidence that Father has an unresolved substance abuse issue, which predates the filing of this dependency. Father's significant, unresolved chronic abuse of substances resulted in Father being convicted of felony endangerment, an offense that he committed in 2012. Father was driving his son in the vehicle, and was under the influence of methamphetamine, amphetamine and marijuana at the time he committed the crime. . . . Father was more recently arrested for another DUI offense for driving while under the influence of spice in Mesa, Arizona. Father recently tested positive for alcohol, which is a violation of term No. 16 of his terms and
conditions of probation. From these facts alone, the Court finds clear and convincing evidence that Father has not remedied the ongoing concerns of substance abuse that, among other factors, led to the child being in an out-of-home placement.The juvenile court made its decision on the entire record, and much of the supervisor's testimony was duplicative of other evidence. Accordingly, we find no error.
¶12 With regard to Karol's concerns about the evidence the juvenile court admitted, as we note supra paragraph five, at the beginning of trial Karol's counsel objected to three of the state's exhibits, court reports authored by DCS case manager Diana Toma. Karol first objected to the reports on the basis that Toma would not be testifying, and later objected to the reports because they had attachments not authored by Toma. The juvenile court overruled both objections, and noted that Toma was available by phone for cross-examination. Karol did not then request to cross-examine Toma. We have found three instances where Karol objected to testimony on the basis of hearsay. Karol first objected to Morgan's testimony regarding what Karol's probation officer told her. The juvenile court sustained the objection. The court overruled Karol's second objection because the testimony was not offered for the truth of the matter asserted. As to the third objection, which Karol's attorney made during his cross-examination of Morgan, the judge's response to the objection was ambiguous because the court simply told Karol's attorney to move on with the questioning. However, Karol's attorney is the one who asked the question which invoked the response he objected to. See State v. Maggard, 104 Ariz. 462, 465, 455 P.2d 259, 262 (1969) (testimony based on hearsay invited by defendant's attorney was invited error).
¶13 We will not disturb the juvenile court's ruling regarding whether to admit or exclude evidence unless the court clearly abused its discretion and the appellant was prejudiced. Lashonda, 210 Ariz. at 82-83, ¶ 19, 107 P.3d at 928-29. Arizona Rule of Juvenile Procedure 45 (C) provides that the juvenile court shall admit timely disclosed reports prepared by a child safety worker into evidence if the worker who prepared the report is available for cross-examination. Rule 45(B) provides that the report "may include any appendices or reports prepared by persons other than the child safety worker." Karol has not shown that he was prejudiced by the juvenile court's evidentiary rulings, and we find no violation of his due process rights.
CONCLUSION
¶14 For the foregoing reasons, the juvenile court's order severing Karol's parental rights is affirmed.