Opinion
1 CA-JV 10-0206
09-13-2011
MATTHEW K., Appellant, v. ARIZONA DEPARTMENT OF ECONOMIC SECURITY, M.K., and G.K., Appellees.
Paul J. Mattern Attorney for Appellant Phoenix Thomas C. Horne, Attorney General By Michael F. Valenzuela, Assistant Attorney General Attorneys for Appellees Phoenix
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz.R.Sup.Ct. 111(c); ARCAP 28(c);
Ariz.R.Crim.P. 31.24
MEMORANDUM DECISION
(Not for Publication Ariz.R.P.Juv.Ct. 103(G); ARCAP 28)
Appeal from the Superior Court in Yuma County
Cause Nos. S1400JD20090121; S1400JD20090122
The Honorable John N. Nelson, Judge
AFFIRMED
Paul J. Mattern
Attorney for Appellant
Phoenix
Thomas C. Horne, Attorney General
By Michael F. Valenzuela, Assistant Attorney General
Attorneys for Appellees
Phoenix
IRVINE, Judge
¶1 Matthew K. ("Father") appeals from the termination of
his parental rights to his biological children, M. and G. (collectively, "the children"). For the reasons that follow, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 G. is a six-year old boy with special needs due to autism and kidney disease. M. is his three-year old sister. The biological mother's parental rights have also been terminated, but she is not a party in this case.
¶3 Father has a history of disputed reports of abuse or neglect. In August 2005, when G. was about three-months old, he showed signs of kidney disease that required monitoring every three to six months. Other than one appointment in February 2006, the doctor did not see G. again until G. was almost four-years old. By then, G. had developed multiple cysts and scarring on his kidneys. G. is now diagnosed with polycystic kidney disease, which could lead to kidney failure and requires close monitoring by a specialist.
¶4 In February 2006, G. was also taken to the emergency room in Yuma several times for dehydration. Due to kidney dysfunction, G. was flown to a Tucson children's hospital for further treatment. Father drove to Tucson and demanded that G. be released to him, against medical advice and despite the danger it posed to G.'s life. He took G. to a hospital in Yuma when the Tucson hospital threatened to call police and the Arizona Department of Economic Security ("ADES").
¶5 There were other disputed reports. In May 2007, when G. was two, Father threatened to hurt G. and put him up for adoption after he separated with the mother unless she returned to him. When M. was born in March 2008, Father had her discharged without newborn screening, hearing and other tests, or proper immunization. In April 2008, two-year-old G. was found wandering the neighborhood at 2:00 a.m.
¶6 The present case directly arises from undisputed events that occurred in February 2009, when G. was three and M. was almost a year old. The Yuma County Sheriff received a domestic violence call that Father hit the mother several times in the front yard of their home, placed her against a parked car and choked her. When the police arrived, Father had barricaded himself inside the home. Because Father was known to be unstable and possess firearms, an officer concerned for the safety of the mother forced his way inside. Father attempted to assault the officer with a cane, but was subdued by taser and arrested.
¶7 Police found Mother completely incoherent, with bruising on her arms and red marks on her neck and face. She was taken to a hospital. Police observed that the home was
completely covered in dirty clothes, trash, old food, and prescription pill bottles on the floor with meds inside. A gun cabinet located in the front room was open with weapons inside. Some, but not all, had gun locks on them. The kitchen counter, sink, and stove were completely covered with filthy dirty dishes.Police also found the children inside the home. M. was in her crib with "no diaper on and there was fecal matter covering her legs. There was also fecal matter on the sheets and mattress of the crib."
¶8 Father later pled guilty to two counts of child abuse based on this incident and was sentenced to thirty-six months of probation. The ADES took custody of the children and filed a dependency petition. Because Father pled no contest to the allegations of domestic violence and "an unfit home which contributes to the neglect of the children," the trial court found the children dependent as to Father.
¶9 In March and April 2010, ADES filed a motion and amended motion to terminate Father's parental rights. After an evidentiary hearing, the juvenile court terminated his rights based on the statutory grounds of inability to parent due to mental illness, abuse or willful neglect of the children, and continuous out-of-home placement for periods of nine-, six- and fifteen-months. Arizona Revised Statutes ("A.R.S.") section 8-533(B)(8)(a)-(c) (Supp. 2010). Father timely appeals.
DISCUSSION
¶10 On appeal, Father expressly argues that the trial court erred in severing his parental rights based on the continuous periods of out-of-home placement. See A.R.S. § 8-533(B)(8). In the statement of facts section, Father appears to also challenge the mental health ground for termination. See A.R.S. § 8-533(B)(3). He does not argue, however, that the trial court erred in severing his parental rights under the statutory ground of abuse or willful neglect. See A.R.S. § 8-533(B)(2). Consequently, he has waived any such claim. Although Father argues he has not conceded the accuracy of that finding, we may affirm on this ground alone if there is sufficient evidence to support it. Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, 251, ¶ 27, 995 P.2d 682, 687 (2000) (holding appellate court need not address other statutory grounds if there is sufficient evidence of one ground).
¶11 The trial court may terminate parental rights based on clear and convincing evidence of abuse or willful neglect, including "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) and -537(B) (2007). Because the trial court is in the best position to resolve conflicting evidence and assess credibility, we will not reweigh the evidence on appeal, but defer to the trial court's factual findings unless clearly erroneous. Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, 282, ¶ 12, 53 P.3d 203, 207 (App. 2002) . We will affirm if there is any reasonable evidence to support the trial court's findings. Audra T. v. Ariz. Dep't of Econ. Sec., 194 Ariz. 376, 377, ¶ 2, 982 P.2d 1290, 1291 (App. 1998).
¶12 Reasonable evidence supports the finding that Father abused or willfully neglected the children in this case. Father pled guilty to two counts of child abuse for the February 2009 domestic violence incidence and did not contest the dependency petition's allegations of neglect and domestic violence arising from that incident. The police reports and photographs of the home show that it was indeed unsanitary and dangerous because of the unlocked guns.
¶13 Further, the record shows Father repeatedly failed to obtain proper medical and dental treatment for the children. G. showed early symptoms of kidney disease for which Father either neglected or refused treatment. Father continues to do so by refusing to allow needed surgery or arrange simple CT scans and ultrasounds. G.'s doctor testified that Father did not understand "the significance or ramifications of [G.'s] kidney disease," and that there is a very high possibility that G. would continue to be at risk of medical neglect. Moreover, G.'s dentist testified that an average child of G.'s age had around two or three cavities, but twelve of G's twenty teeth had cavities. Two of these cavities were abscessed, a severe and painful symptom of "gross dental care."
¶14 Father contends he cannot be faulted because ADES failed to provide proper services throughout the years, but the social worker testified that Father repeatedly refused services or failed to follow through because he moved without notifying ADES. She further stated that when he did accept services, he did not cooperate. At Child and Family Team meetings, for instance, Father focused on his needs, not those of the children. Father also refused to follow the children's doctors' recommendations for treatment. The social worker's testimony is supported by progress reports showing the reunification services that ADES has provided. Although Father argues there is contradictory evidence, the weight and credibility of the evidence are issues for the trial court, as trier-of-fact. Jesus M. , 203 Ariz. at 282, ¶ 12, 53 P.3d at 207.
¶15 Sufficient evidence supports termination of Father's parental rights on the ground of abuse and or willful neglect pursuant to A.R.S. § 8-533(B)(2). Therefore, we need not reach the other statutory grounds. Michael J., 196 Ariz. at 251, ¶ 27, 995 P.2d at 687.
¶16 Finally, although Father points out in his reply brief that ADES must prove the best interests of the children, Father fails to challenge the juvenile court's best interests finding. We therefore accept the finding that severance was in these children's best interests. Id. at 249, ¶ 12, 995 P.2d at 685.
CONCLUSION
¶17 For these reasons, we affirm.
PATRICK IRVINE, Judge CONCURRING: MARGARET H. DOWNIE, Presiding Judge LAWRENCE F. WINTHROP, Chief Judge