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Robert I. v. Dep't of Child Safety

ARIZONA COURT OF APPEALS DIVISION ONE
Jun 16, 2020
No. 1 CA-JV 19-0297 (Ariz. Ct. App. Jun. 16, 2020)

Opinion

No. 1 CA-JV 19-0297

06-16-2020

ROBERT I., Appellant, v. DEPARTMENT OF CHILD SAFETY, S.I., Appellees.

COUNSEL Robert D. Rosanelli Attorney at Law, Phoenix By Robert D. Rosanelli Counsel for Appellant Arizona Attorney General's Office, Phoenix By Sandra L. Nahigian Counsel for Appellee


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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. JD34275
The Honorable Randall H. Warner, Judge

AFFIRMED

COUNSEL

Robert D. Rosanelli Attorney at Law, Phoenix
By Robert D. Rosanelli
Counsel for Appellant

Arizona Attorney General's Office, Phoenix
By Sandra L. Nahigian
Counsel for Appellee

MEMORANDUM DECISION

Presiding Judge David D. Weinzweig delivered the decision of the Court, in which Judge Jennifer M. Perkins and Judge James B. Morse Jr. joined.

WEINZWEIG, Judge:

¶1 Robert I. ("Father") appeals from the juvenile court's order terminating his parental rights to S.I. We affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 S.I. was born in August 2016. Her natural parents are Father and Christine M. ("Mother"). Mother disappeared in May 2017 and has never been seen since. A jury convicted Father of her murder in 2019.

¶3 Father had physically and emotionally abused Mother for years. He often threatened to kill her. He assaulted her but she never pressed charges. He always checked her text messages and accused her of cheating. He forbade her from having friends and wearing make-up or perfume. Just months before the murder, Father explained to Mother's sister that he was watching a television show about murder investigations to plan Mother's death and not get caught. And weeks before the murder, Mother awoke during the night to find Father hovering above her and holding a gun.

¶4 Mother was increasingly distraught, stressed and living in constant fear. She warned her sister and co-workers that Father would kill her. On the afternoon of May 10, Mother contacted the police department and asked whether Father would be arrested if she obtained an order of protection. The police responded that she needed to first submit a police report, which would be investigated. Mother warned she would be dead before police could investigate but agreed to file a police report the next day.

¶5 Mother disappeared that night and Father listed her vehicle for sale. He also worked on an alibi, texting his sister that he was prepared to "finally end this psychopath tonight," but "didn't have the courage," expressing relief because he "almost spent life in prison."

¶6 Mother missed work on May 11. Her family reported her missing. Police responded to the family home and found Mother's car parked in front. Father told police he saw Mother leave for work that morning, but she never returned, adding that she must have abandoned the family because she wanted to start a new life. Asked why Mother left her car at the house, Father said it had a flat tire. Before leaving, police noted that Mother's car had no flat tires.

¶7 S.I. remained with Father. After learning about Mother's disappearance, however, the Department of Child Safety ("DCS") and police returned to the home on May 12 to conduct a welfare check on S.I. Father answered the door, holding S.I. in his arms. He was nervous and erratic. He warned officers about the loaded firearm in his pocket. He also conceded his name was not on S.I.'s birth certificate.

¶8 DCS removed S.I. because of the criminal investigation into Mother's disappearance and S.I. had no legal guardian. Police executed a search warrant for the house and found Mother's phone, purse, birth certificate, passport and credit cards inside. Police also found cleaning supplies in Mother's bedroom, but her mattress was missing. A cadaver dog alerted to Mother's car and police discovered blood inside the car. When officers left, Father asked his neighbor, a former police officer, how police investigations are conducted and how luminol worked. Father also had incriminating conversations with his sister and officers later learned that Father visited the dump on May 11. A video captured Father's arrival at the transfer station, pulling a trailer containing large boxes. Police searched the local landfill without success.

¶9 Shortly after her removal, the juvenile court found S.I. dependent. Father was indicted for first degree murder in June 2017. And DCS moved to terminate Father's parental rights in March 2018 on grounds of neglect and failure to file a notice of claim of paternity.

¶10 A contested three-day severance trial was held. The juvenile court held two days of trial in November 2018 but waited for Father's criminal trial to conclude before the final trial day. In April 2019, Father was convicted of second-degree murder and sentenced to 25 years in prison. DCS then amended the severance motion to add nature-of-felony and length-of-sentence grounds. After a final trial day in August 2019, the juvenile court terminated Father's parental rights in September 2019. The court found clear and convincing evidence of two statutory grounds under A.R.S. § 8-533(B)(4), including that Father's murder conviction rendered him unfit to parent, and the length of Father's sentence would deprive S.I.

of a home for her entire childhood. The court also found that termination was in S.I.'s best interests. Father timely appealed and we have jurisdiction.

DISCUSSION

¶11 To terminate parental rights, the superior court must find clear and convincing evidence of at least one statutory ground in A.R.S. § 8-533(B), and that termination is in the child's best interests by a preponderance of the evidence. Jeffrey P. v. Dep't of Child Safety, 239 Ariz. 212, 213, ¶ 5 (App. 2016). We will affirm a severance order unless it is clearly erroneous and accept the court's factual findings unless no reasonable evidence supports them. Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, 280, ¶ 4 (App. 2002).

¶12 The juvenile court found clear and convincing evidence of two distinct grounds for termination under A.R.S. § 8-533(B)(4), including the nature of his felony conviction and length of his felony sentence. The first ground authorizes termination when a parent is "deprived of civil liberties due to the conviction of a felony . . . of such nature as to prove the unfitness of that parent to have future custody and control of the child." Id. The second ground authorizes termination "if the sentence of that parent is of such length that the child will be deprived of a normal home for a period of years." Id.

¶13 Father only contests one of two grounds for termination found by the juvenile court, leaving the length-of-sentence finding untouched. We affirm on that basis. See Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, 280, ¶ 3 (App. 2002) (court may affirm if reasonable evidence supports at least one termination ground). And though not required, we also reject Father's argument that his murder conviction is not a "conviction" for nature-of-felony grounds until he exhausts his appeals. Father offers no relevant or meaningful authority for the argument and we have rejected it. See Pima Cty. Juv. Severance Action No. S-2462, 162 Ariz. 536, 538 (App. 1989) ("There is nothing in A.R.S. § 8-533(B)(4) which suggests that the . . . court must wait for the parent convicted of a crime to exhaust all avenues of appeal before the court may proceed with a severance hearing.").

CONCLUSION

¶14 We affirm.


Summaries of

Robert I. v. Dep't of Child Safety

ARIZONA COURT OF APPEALS DIVISION ONE
Jun 16, 2020
No. 1 CA-JV 19-0297 (Ariz. Ct. App. Jun. 16, 2020)
Case details for

Robert I. v. Dep't of Child Safety

Case Details

Full title:ROBERT I., Appellant, v. DEPARTMENT OF CHILD SAFETY, S.I., Appellees.

Court:ARIZONA COURT OF APPEALS DIVISION ONE

Date published: Jun 16, 2020

Citations

No. 1 CA-JV 19-0297 (Ariz. Ct. App. Jun. 16, 2020)