Opinion
No. 2 CA-JV 2019-0106
01-07-2020
PAUL A., Appellant, v. DEPARTMENT OF CHILD SAFETY AND R.A., Appellees.
COUNSEL Paul A., Buckeye In Propria Persona Mark Brnovich, Arizona Attorney General By Michelle R. Nimmo, Assistant Attorney General, Tucson Counsel for Appellee Department of Child Safety Pima County Office of Children's Counsel, Tucson By Sybil Clarke Counsel for Minor
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NOT FOR PUBLICATION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 Pima County
No. JD20180316
The Honorable Lori B. Jones, Judge Pro Tempore
AFFIRMED
COUNSEL Paul A., Buckeye
In Propria Persona Mark Brnovich, Arizona Attorney General
By Michelle R. Nimmo, Assistant Attorney General, Tucson
Counsel for Appellee Department of Child Safety Pima County Office of Children's Counsel, Tucson
By Sybil Clarke
Counsel for Minor
MEMORANDUM DECISION
Presiding Judge Staring authored the decision of the Court, in which Chief Judge Vásquez and Judge Brearcliffe concurred. STARING, Presiding Judge:
¶1 Paul A. appeals from the juvenile court's order terminating his parental rights to his daughter, R.A., born in August 2017, on the grounds of neglect and length of incarceration. See A.R.S. § 8-533(B)(2), (B)(4). In his pro se brief, Paul argues he did not abandon R.A. and his due process rights were violated because he was not present when the incident leading to R.A.'s removal from the mother occurred. We affirm.
The juvenile court also terminated the parental rights of R.A.'s mother, who is not a party to this appeal.
¶2 To sever a parent's rights, the juvenile court must find clear and convincing evidence establishing at least one statutory ground for termination and a preponderance of the evidence that terminating the parent's rights is in the child's best interests. Kent K. v. Bobby M., 210 Ariz. 279, ¶¶ 32, 41 (2005); see also A.R.S. § 8-863(B). We do not reweigh the evidence on appeal; rather, we defer to the juvenile court with respect to its factual findings because it "is in the best position to weigh the evidence, observe the parties, judge the credibility of witnesses, and resolve disputed facts." Ariz. Dep't of Econ. Sec. v. Oscar O., 209 Ariz. 332, ¶ 4 (App. 2004). We will affirm the order if the findings upon which it is based are supported by reasonable evidence. See Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, ¶ 4 (App. 2002). We view that evidence in the light most favorable to upholding the ruling. See Christy C. v. Ariz. Dep't of Econ. Sec., 214 Ariz. 445, ¶ 12 (App. 2007).
¶3 The Department of Child Safety (DCS) removed R.A. from the mother's care in June 2018, after she engaged in domestic violence with the maternal grandmother while holding R.A. Paul, who admitted he had been using methamphetamine regularly, had been living in a home he shared with other "drug users," and suffered from untreated mental health issues, was further unable to take custody of R.A. when the incident occurred because he was incarcerated on two pending felony charges. DCS filed a dependency petition in June 2018. The parents did not contest the allegations in the petition, and R.A. was adjudicated dependent as to them in July 2018. The juvenile court changed the case plan to severance and adoption in March 2019, and DCS filed a motion to terminate the parents' rights, alleging grounds of neglect and length of sentence as to Paul. See. § 8-533(B)(2), (B)(4).
R.A. has lived with the maternal grandmother, who wishes to adopt her, since she was born.
Paul had nine prior felony convictions and was sentenced to three years' imprisonment in September 2018.
¶4 At the two-day contested severance hearing held in May and July 2019, Paul testified that he had almost daily contact with R.A. before he was incarcerated and had attempted to maintain the relationship while in prison. He stated he may be released from custody as early as March 2020 or as late as October 2020, and that his case will be "discharge[d]" in 2021. The DCS case manager testified that once Paul is released, he will not immediately be able to parent R.A. safely, and added that R.A. is an adoptable child and severance would be in her best interests so she could "have a normal life" and not "continue to linger in the system." In its twelve-page ruling, the juvenile court granted DCS's termination motion, detailing the history of the proceeding and the factual bases for its findings and conclusions.
In addition to neglect and length of sentence, the juvenile court also terminated Paul's parental rights on the time-in-care ground under § 8-533(B)(8), a ground DCS had asserted solely as to the mother. Because it appears the court mistakenly included this ground as to Paul, a finding he does not challenge on appeal, we do not address it.
¶5 Paul's appointed counsel filed an affidavit pursuant to Rule 106(G)(1), Ariz. R. P. Juv. Ct., stating he had reviewed the record and had found no non-frivolous issue to raise on appeal. We granted counsel's request for Paul to proceed in propria persona, providing him additional time to file a pro se brief, which he has done. Paul contends the juvenile court improperly found he "willfull[y] abandon[ed]" R.A., asserting his efforts to maintain a relationship with his daughter while in prison demonstrate that he has not abandoned her. He also argues the court violated his due process rights by holding him accountable for failing to protect R.A. from the mother's conduct during the June 2018 domestic violence incident, suggesting there was insufficient evidence to support the court's finding of neglect.
¶6 As DCS and R.A.'s counsel correctly note, unrepresented litigants are held to the same standards as attorneys. See Flynn v. Campbell, 243 Ariz. 76, ¶ 24 (2017). Paul's pro se opening brief does not comply with our procedural rules, most importantly because it contains a citation to only one legal authority, which is neither relevant nor controlling, and no citations to the record. An opening brief must contain a statement of the issues and an argument that includes citation to legal authorities and appropriate references to the record. Ariz. R. Civ. App. P. 13(a) (requirements for opening briefs); see also Ariz. R. P. Juv. Ct. 106(A) (Rule 13, Ariz. R. Civ. App. P., applies to appeals from final orders of juvenile court). Arguments that are unsupported by legal authority and adequate citation to the record are waived. See Melissa W. v. Dep't of Child Safety, 238 Ariz. 115, ¶ 9 (App. 2015) (argument unsupported by authority is waived); Christina G. v. Ariz. Dep't of Econ. Sec., 227 Ariz. 231, n.6 (App. 2011) (failure to develop argument on appeal results in abandonment and waiver of issue).
¶7 However, even if we overlook these deficiencies, Paul has not established a basis for appellate relief. DCS did not assert abandonment as a ground in its motion to terminate, nor did the juvenile court rely on that ground in its ruling. We thus do not address Paul's claim related to abandonment. Moreover, because Paul has not mentioned, much less challenged the length-of-sentence ground, he has abandoned and waived any claim related to that ground, and we thus do not address it. See Crystal E. v. Dep't of Child Safety, 241 Ariz. 576, ¶ 5 (App. 2017) (failure to challenge termination on specific statutory ground constitutes abandonment and waiver on appeal). Accordingly, in the absence of any challenge to the length-of-sentence ground, we need not address any arguments purportedly related to neglect. See Jesus M., 203 Ariz. 278, ¶ 3 (appellate court need not consider challenge to alternate grounds for severance if evidence supports any one ground). Similarly, because Paul does not challenge the court's best-interests finding in his opening brief, we consider any related claim waived and do not address it. See Crystal E., 241 Ariz. 576, ¶ 5.
Insofar as Paul attempts to challenge the length-of-sentence ground and the juvenile court's best-interests finding for the first time in his reply brief, we will not address arguments raised for the first time in a reply brief. See Marco C. v. Sean C., 218 Ariz. 216, n.1 (App. 2008). --------
¶8 We affirm the juvenile court's order terminating Paul's parental rights to R.A.