Opinion
No. 2 CA-JV 2016-0227
06-02-2017
ARTHUR S., Appellant, v. DEPARTMENT OF CHILD SAFETY, N.S., J.S. AND C.S., Appellees.
COUNSEL The Hopkins Law Office, P.C., Tucson By Cedric Martin Hopkins Counsel for Appellant Mark Brnovich, Arizona Attorney General By Cathleen E. Fuller, Assistant Attorney General, Tucson Counsel for Appellee Department of Child Safety Pima County Office of Children's Counsel, Tucson By John Walters Counsel for Minors
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NOT FOR PUBLICATION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
Nos. JD20130298 and S20160064
The Honorable K.C. Stanford, Judge
AFFIRMED
COUNSEL The Hopkins Law Office, P.C., Tucson
By Cedric Martin Hopkins
Counsel for Appellant Mark Brnovich, Arizona Attorney General
By Cathleen E. Fuller, Assistant Attorney General, Tucson
Counsel for Appellee Department of Child Safety Pima County Office of Children's Counsel, Tucson
By John Walters
Counsel for Minors
MEMORANDUM DECISION
Chief Judge Eckerstrom authored the decision of the Court, in which Judge Staring and Judge Howard concurred. ECKERSTROM, Chief Judge:
The Hon. Joseph W. Howard, a retired judge of this court, is called back to active duty to serve on this case pursuant to orders of this court and our supreme court.
¶1 Arthur S. appeals from the juvenile court's order granting the petition to terminate his parental rights filed by his three minor children, N.S. (born August 2006), J.S. (born March 2009), and C.S. (born October 2010), on the grounds of neglect under A.R.S. § 8-533(B)(2) and previous termination of parental rights to another child under § 8-533(B)(10). He argues on appeal that his due process rights were violated because the Department of Child Safety (DCS) "failed to provide him with an adequate opportunity to reunite with his children by providing inadequate therapeutic services" and, thus, the court erred in finding termination was in the children's best interests. He further argues the court "lacked jurisdiction" to terminate his parental rights because the children were not permitted to file a severance petition "as a party to an ongoing dependency proceeding," and the court erred "in finding the ground of prior severance." We affirm.
DCS is substituted for the Arizona Department of Economic Security (ADES) in this decision. See 2014 Ariz. Sess. Laws 2d Spec. Sess., ch. 1, § 20. For simplicity, our references to DCS in this decision encompass ADES, which formerly administered child welfare and placement services under title 8, and Child Protective Services, formerly a division of ADES.
¶2 "[W]e view the evidence and reasonable inferences to be drawn from it in the light most favorable to sustaining the [juvenile] court's decision." Jordan C. v. Ariz. Dep't of Econ. Sec., 223 Ariz. 86, ¶ 18, 219 P.3d 296, 303 (App. 2009). The parties do not dispute the bulk of the juvenile court's factual findings. In October 2013, Arthur killed the children's mother in an altercation involving a knife. The couple had a long history of domestic violence. Arthur was indicted for one count of first-degree murder. However, the case was ultimately remanded to the grand jury for a redetermination of probable cause, the grand jury declined to indict Arthur of an offense, and the case was dismissed without prejudice in March 2014.
¶3 Immediately following their mother's death, the children were removed from the home and placed with their maternal aunt, where they have remained throughout these proceedings. In November 2013, the juvenile court found the children dependent. Shortly thereafter, DCS filed a motion to terminate Arthur's parental rights to N.S., J.S., C.S., and his eldest child E.S. on neglect grounds pursuant to A.R.S. § 8-533(B)(2). After a ten-day contested hearing, the juvenile court terminated Arthur's parental rights to, E.S. As to N.S., J.S., and C.S., the court determined DCS had established that termination of Arthur's parental rights was warranted on neglect grounds, but that DCS had not established termination was in the children's best interests. The court noted there had been no "bonding/attachment assessment"; the children's therapists had decided the children would not be told "all of the evidence regarding their mother's death," including that the proceeding against Arthur had been dismissed and he claimed he had acted in self-defense; and there had been "no contact between the father and the children" since their mother's death. Thus, the court denied DCS's motion to terminate Arthur's parental rights, and changed the case plan to a concurrent plan of reunification and severance and adoption.
E.S. is not a party to this appeal.
¶4 In March 2016, the children filed a petition to terminate Arthur's parental rights on the grounds of neglect pursuant to A.R.S. § 8-533(B)(2) and previous termination of parental rights to another child (E.S.) pursuant to § 8-533(B)(10). The juvenile court determined that whether Arthur had neglected the children under § 8-533(B)(2) would not be "re-litigate[d]" because "that issue was resolved in the prior trial," and thus the only issue before the court would be whether termination was in the children's best interests.
¶5 After a contested hearing, the juvenile court, in a thorough, 99-page under advisement ruling, granted the petition and terminated Arthur's parental rights. The court, noting that the neglect ground "was established by clear and convincing evidence," concluded termination was in the children's best interests. The court observed:
The [children's current placement] has been since October 2013 and is today a stable, loving and safe place for the children. Over the last three years, the children have come to view th[at] household as their family. They do so because the home has a solid foundation and is not dangerous or broken. By contrast, the[ir] home in 2013 and earlier was dangerous and dysfunctional. Any sense of safety and love with their parents was shattered when the father killed the mother in their presence. To ask the children to leave a safe home for the uncertain prospect of a life in their father's home is extremely fear provoking. To continue to pursue such a goal does more harm than good. Reunification therapy harms the children now and will lead to irreversible emotional harm in the future. The children need a forever home without future disruptions of the lives they have rebuilt.This appeal followed.
¶6 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, 110 P.3d 1013, 1022 (2005). "[W]e will affirm a termination order that is supported by reasonable evidence." Jordan C., 223 Ariz. 86, ¶ 18, 219 P.3d at 303. 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, 210 P.3d 1263, 1266 (App. 2009).
¶7 Arthur first argues his due process rights were violated because DCS provided "inadequate therapeutic services" and thus deprived him of the "opportunity to reunite with his children." He reasons the juvenile court therefore erred in finding termination was in the children's best interests because DCS "was the sole cause of the circumstances that caused the children to be fearful of their father."
¶8 We first address Arthur's claim that DCS was required to provide him a "sufficient and reasonable opportunity of success to reunify with his children prior to the trial court terminating his parental rights." Section 8-533 requires the state to provide reunification services only when it seeks severance for time-in-care grounds under subsections (8) and (11). See § 8-533(D). However, as Arthur points out, we have identified a constitutional requirement that the state provide reunification services, rooted in "the 'fundamental liberty interest of the natural parents in the care, custody and management of their child.'" Mary Ellen C. v. Ariz. Dep't of Econ. Sec., 193 Ariz. 185, ¶ 32, 971 P.2d 1046, 1053 (App. 1999), quoting Santosky v. Kramer, 455 U.S. 745, 753 (1982). Based on that interest, we have required the state to provide a path to reunification in cases involving mental illness and substance abuse. See Jennifer G. v. Ariz. Dep't of Econ. Sec., 211 Ariz. 450, ¶ 12, n.3, 123 P.3d 186, 189 n.3 (App. 2005). We have refused to do so, however, when termination is based on abandonment. Toni W. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 61, ¶¶ 13-15, 993 P.2d 462, 466-67 (App. 1999). And no authority applies this requirement to termination based on abuse and neglect, nor to a private severance like this one.
And, in dependency proceedings, the state is generally required "to make reasonable efforts to provide services to the child and the child's parent." A.R.S. § 8-846(A).
¶9 But, even if we found some compelling reason to do so, we need not decide whether to extend this requirement to private severance cases involving abuse and neglect. As we explain, Arthur has not demonstrated the juvenile court erred in finding the state acted reasonably in providing services.
¶10 To adequately protect Arthur's constitutional rights, the state is required to "undertake measures with a reasonable prospect of success." Mary Ellen C., 193 Ariz. 185, ¶ 34, 971 P.2d at 1053. However, the state need not provide "every conceivable service." Id. ¶ 37, quoting Maricopa County Juv. Action No. JS-501904, 180 Ariz. 348, 353, 884 P.2d 234, 239 (App. 1994). Arthur contends the counseling services provided early in the dependency proceeding damaged his relationship with the minor children. Thus, he reasons, the state "not only created the sole circumstance that formed the barrier to reunification, [it] then used that circumstance as the basis to terminate [his] parental rights."
¶11 Arthur is correct that there is evidence in the record that the therapists' decision to withhold information from the children during their early counseling may have exacerbated their fear of him. And there is evidence that the counselors initially involved were not experienced with treating children who had experienced trauma of the type or magnitude involved here. But Arthur's argument incorrectly assumes that evidence compels the conclusion it was the state's purportedly inadequate services that irrevocably damaged his relationship with his children. He ignores that the impetus for counseling, and the children's fear of him, was the death of the children's mother by his hand—an event the juvenile court found "shattered" their "sense of safety and love with their parents." Arthur has not established this factual finding was unsupported by the evidence. We must "view the evidence and reasonable inferences to be drawn from it in the light most favorable to sustaining the court's decision." Jordan C., 223 Ariz. 86, ¶ 18, 219 P.3d at 303. And we must defer to the court's resolution of conflicts in the evidence. Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, ¶ 12, 53 P.3d 203, 207 (App. 2002). Arthur's claim that the state's provision of services was deficient therefore fails.
Arthur also seems to suggest the juvenile court was bound by a previous finding by a different judge, in rejecting the state's termination motion, that he had provided a "stable, loving and supportive relationship." Arthur misinterprets the previous finding, which was that the children and Arthur formerly had a stable and loving relationship, not that one existed after their mother's death. And, in any event, he does not cite any legal authority for the proposition that the juvenile court was bound by that determination. We therefore need not address this argument further. See Polanco v. Indus. Comm'n of Ariz., 214 Ariz. 489, n.2, 154 P.3d 391, 393 n.2 (App. 2007) (appellant's failure to develop and support argument waives issue on appeal).
Arthur does not assert that his relationship with his children could have been repaired had the state provided adequate counseling services, only that it was the services, and not his conduct, that damaged that relationship. We therefore need not decide whether the state failed to make adequate reunification efforts because the counselors assigned to the children were arguably underqualified.
¶12 Even if we agreed the state's initial efforts in providing services early in the dependency were inadequate, he is nonetheless not entitled to relief. After the juvenile court denied the state's termination motion, the children were assigned to new mental health professionals for evaluation and counseling. Three psychologists who have evaluated the children's cases since 2015 uniformly opined that reunification was not appropriate. Arthur identifies no deficiency in the services provided since the juvenile court denied the state's termination motion. Nor has he identified evidence that additional counseling would have led to reunification. The state is not required to provide reunification services when it would be futile to do so. Mary Ellen C., 193 Ariz. 185, ¶ 34, 971 P.2d at 1053. And, Arthur did not appeal the juvenile court's numerous findings reaffirming the dependency, many of which included a finding the state was providing adequate services. See Rita J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 512, ¶ 4, 1 P.3d 155, 156 (App. 2000). For these reasons, we find no error in the court's determination that the state made reasonable efforts to reunify Arthur with the children.
We do not decide whether it would be improper for the juvenile court to terminate a parent's rights if the state were substantially responsible for the circumstances causing the provision of services to be futile. We conclude only that Arthur has not demonstrated the court erred in determining the services provided here were constitutionally adequate.
¶13 In a related argument, Arthur contends the reunification services DCS provided "destroyed the stable, loving and supportive relationship" he had with his children. Thus, he argues, the juvenile court erred in finding termination of his parental rights was in the children's best interests. "A finding that the best interests of the child will be served by removal from a custodial relationship may be established by either showing an affirmative benefit to the child by removal or a detriment to the child by continuing in the relationship." Jennifer B. v. Ariz. Dep't of Econ. Sec., 189 Ariz. 553, 557, 944 P.2d 68, 72 (App. 1997).
¶14 Like his claim that the services provided by the state were inadequate, this claim fails because it rests on Arthur's belief that it was those services—and not the violent death of the children's mother—that made reunification impossible. As we observed above, the evidence does not compel that conclusion. And, Arthur cites no authority suggesting a juvenile court cannot find termination is in a child's best interests when factors other than the parent's conduct have damaged the parent-child relationship. The best-interests determination is necessarily focused on the current status of the child and the benefit or detriment of continuing the parental relationship. See id. Factors external to a parent's conduct are commonly relevant. See, e.g., Tina T. v. Dep't of Child Safety, 236 Ariz. 295, ¶ 19, 339 P.3d 1040, 1045 (App. 2014) (fact child "thriving in her current placement" supports juvenile court's best interests finding); Desiree S. v. Dep't of Child Safety, 235 Ariz. 532, ¶ 12, 334 P.3d 222, 225 (App. 2014) (suggesting child's refusal to attend counseling with parent would be relevant to best interests); Mario G. v. Ariz. Dep't of Econ. Sec., 227 Ariz. 282, ¶ 26, 257 P.3d 1162, 1168 (App. 2011) ("evidence that the child is adoptable" supports best interests). And, irrespective of the underlying reasons for the damaged relationship with his children, Arthur has cited no evidence that future reunification is reasonably possible. Thus, he has not demonstrated the juvenile court erred in concluding termination of his parental rights was in the children's best interests.
¶15 Citing Rule 64, Ariz. R. P. Juv. Ct., Arthur next asserts the juvenile court lacked jurisdiction to terminate his parental rights because the children were not permitted to file a termination petition while the dependency proceeding was ongoing. Rule 64 provides two methods by which a parent's rights can be terminated. The first, pursuant to Rule 64(A), allows the juvenile court in a dependency proceeding to order DCS to file a motion for termination. The second, under Rule 64(B), allows the filing of a petition for termination of parental rights "[i]f the child at issue is not a dependent child or is a dependent child who was the subject of a dependency petition filed prior to July 1, 1998." Rule 64(B) further provides that "[n]othing in this rule shall preclude the filing of a petition in those cases where the child was the subject of a dependency petition filed after July 1, 1998."
¶16 Arthur reasons that, because the children were dependent and currently the subject of a dependency petition, they were not permitted to file an independent petition seeking termination of his parental rights. As DCS and the children point out, however, this court rejected that argument in Bobby G. v. Ariz. Dep't of Econ. Sec., 219 Ariz. 506, 200 P.3d 1003 (App. 2008). In that case, we determined a child subject to an ongoing dependency proceeding was permitted to independently seek termination of her parent's rights under A.R.S. § 8-533. Id. ¶¶ 3, 5, 9-11.
¶17 Pursuant to § 8-533(A), "[a]ny person or agency that has a legitimate interest in the welfare of a child, including, but not limited to, a relative, a foster parent, a physician, the department or a private licensed child welfare agency, may file a petition for the termination of the parent-child relationship." We concluded that, "[t]aken together, the statutory provision and [Rule 64(B)] make clear that Arizona's statutes provide two procedurally distinct paths toward termination of parental rights, but they do not prohibit the filing of a petition for termination at any time before a motion for termination is ordered." Id. ¶ 10. Curiously, Arthur does not address Bobby G. in his opening or reply brief, much less provide any compelling reason for us to depart from this established precedent. See State v. Patterson, 222 Ariz. 574, ¶ 19, 218 P.3d 1031, 1037 (App. 2009) (we will follow a prior decision unless firmly convinced it was based on clearly erroneous principles or conditions have changed to render it inapplicable). We therefore do not address this claim further.
Arthur suggests that allowing a petition under § 8-533 violates the doctrine of separation of powers, an issue not addressed in Bobby G. But a violation of that doctrine necessarily requires there be some conflict between the statute and rule. See generally Seisinger v. Siebel, 220 Ariz. 85, ¶ 10, 203 P.3d 483, 487 (2009). He has identified no conflict in light of our holding in Bobby G. that the last sentence of Rule 64(B), Ariz. R. P. Juv. Ct., is consistent with a child independently seeking termination of his or her parent's rights, even when that child is currently the subject of a dependency proceeding. 219 Ariz. 506, ¶ 10, 200 P.3d at 1006-07.
¶18 Finally, Arthur argues that his parental rights could not be terminated on prior severance grounds under § 8-533(B)(10) because the minor children were parties to the previous termination proceeding and he "prevailed at trial as to [them]." As Arthur acknowledges, however, the juvenile court found termination was appropriate pursuant to § 8-533(B)(2), a determination Arthur does not contest. We therefore agree with DCS and the minor children that we need not address this argument. Crystal E. v. Dep't of Child Safety, 241 Ariz. 576, ¶ 5, 390 P.3d 1222, 1223 (App. 2017) ("only one statutory ground for severance is required"; failure to challenge severance ground on appeal waives "any contention that the court erred in granting severance on that basis"); cf. Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, ¶ 27, 995 P.2d 682, 687 (2000) (appellate court need not address other statutory grounds for terminating parent's rights if there is sufficient evidence of one ground).
Section 8-533(B)(10) provides for termination if "the parent has had parental rights to another child terminated within the preceding two years for the same cause and is currently unable to discharge parental responsibilities due to the same cause." --------
¶19 We affirm the juvenile court's order terminating Arthur's parental rights.