Opinion
No. 1 CA-JV 14-0165
01-22-2015
STEINBERG A., ALYSSA S., Appellants, v. DEPARTMENT OF CHILD SAFETY, B.S. C.S., Appellees.
COUNSEL Law Office of Anne M. Williams, Tempe By Anne M. Williams Counsel for Appellant Father John L. Popilek, P.C., Scottsdale By John L. Popilek Counsel for Appellant Mother Arizona Attorney General's Office By Laura J. Huff Counsel for Appellees
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. JD22459
The Honorable Connie Contes, Judge
AFFIRMED
COUNSEL Law Office of Anne M. Williams, Tempe
By Anne M. Williams
Counsel for Appellant Father
John L. Popilek, P.C., Scottsdale
By John L. Popilek
Counsel for Appellant Mother
Arizona Attorney General's Office
By Laura J. Huff
Counsel for Appellees
MEMORANDUM DECISION
Judge Samuel A. Thumma delivered the decision of the Court, in which Presiding Judge Margaret H. Downie and Judge Andrew W. Gould joined. THUMMA, Judge:
¶1 Alyssa S. (Mother) challenges the superior court's order terminating her parental rights to her children, B.S. and C.S., and Steinberg A. (Father) challenges the order terminating his parental rights to his child B.S. Because the superior court properly terminated their parental rights, the order is affirmed.
FACTS AND PROCEDURAL HISTORY
This court views the evidence in a light most favorable to sustaining the superior court's findings. See Manuel M. v. Ariz. Dep't of Econ. Sec., 218 Ariz. 205, 207 ¶ 2, 181 P.3d 1126, 1128 (App. 2008).
¶2 Mother is the biological mother of B.S., born in September 2009, and C.S., born in March 2012 and Father is the biological father of B.S. In August 2012, the Department of Child Safety (DCS) took B.S. and C.S. into custody after receiving reports that Mother and her boyfriend had physically abused the children. At that time, Father lived in Florida and had never met or had any contact with B.S.
The parental rights of C.S.'s alleged fathers were terminated and are not a part of this appeal.
¶3 DCS filed a dependency petition against both Mother and Father. After Mother denied the allegations but submitted the matter to the court, B.S. and C.S. were found dependent as to Mother and the court adopted a case plan of severance and adoption. DCS then moved to terminate Mother's parental rights on the grounds of failure to protect the children from abuse and 15-months time-in-care.
¶4 After Father failed to appear for a hearing, the superior court found B.S. dependent as to Father and adopted a case plan of family reunification with a concurrent case plan of severance and adoption. After the passage of time, DCS later argued Father was not making progress with his case plan and the court changed the case plan for Father to severance and adoption. DCS then moved to terminate Father's parental rights to B.S. on the grounds of abandonment and 15-months time-in-care
¶5 The services provided to Mother included a December 2013 psychological evaluation with Dr. Marta DeSoto. Mother completed the clinical interview but refused to complete psychological testing. Dr. DeSoto created a psychological report based on the clinical interview.
¶6 In February and April 2014, the superior court held contested termination adjudication hearings for Mother and Father. On the first day of trial, the parties admitted into evidence Dr. DeSoto's psychological report. On the third day of trial, DCS stated that Dr. DeSoto was only available to testify by phone. Although Mother objected to telephone testimony by Dr. DeSoto, she did not argue that the psychological report was inadmissible unless Dr. DeSoto testified or attempt to revisit the stipulation that the report was admitted into evidence. Nor did Mother argue that Dr. DeSoto's testimony should be rescheduled for a time during which she could appear in person.
¶7 After the final day of trial was rescheduled by the court to April 3, 2014, Mother failed to appear. Her attorney, however, appeared and participated, including cross-examining witnesses and presenting argument. Mother later filed a request to reopen the trial, arguing she "had the dates confused and believed that the email stating the dates stated the final day of trial was on April 13, 2014," rather than April 3, 2014. The superior court denied the request.
¶8 After taking the matter under advisement, the superior court terminated Mother's parental rights to B.S. and C.S. based on abuse and 15-months time-in-care. The court also terminated Father's parental rights to B.S. based on abandonment and 15-months time-in-care. Mother and Father timely appealed and this court has jurisdiction under Arizona Revised Statutes (A.R.S.) sections 8-235, 12-120.21(A)(1) and -2101(A)(1) and Arizona Rules of Procedure for the Juvenile Court 103-04 (2015).
Absent material revisions after the relevant dates, statutes and rules cited refer to the current version unless otherwise indicated.
DISCUSSION
I. The Superior Court Properly Found That Father Abandoned B.S. And That Severance Was In B.S.'s Best Interests.
¶9 Father argues the record does not support the superior court's finding that he abandoned B.S. and that severance is not in B.S.'s best interests. Abandonment under A.R.S. § 8-533(B)(1) is defined as "the failure of a parent to provide reasonable support and to maintain regular contact with the child, including providing normal supervision." A.R.S. § 8-531(1). DCS was required to prove abandonment by clear and convincing evidence. Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, 249 ¶ 12, 995 P.2d 682, 685 (2000). Abandonment "is measured not by a parent's subjective intent, but by the parent's conduct." Id. at 249 ¶ 18, 995 P.2d at 685. Although incarceration does not by itself provide a defense to or ground for severance, to avoid an abandonment finding, an incarcerated parent must "'do something, because conduct speaks louder than words or subjective intent.'" Id. at 250 ¶ 22, 995 P.2d at 686 (citation omitted).
¶10 A judicial finding that a parent has made only minimal efforts to support and communicate with the child constitutes abandonment. See A.R.S. § 8-531(1). The superior court "'is in the best position to weigh the evidence, observe the parties, judge the credibility of witnesses, and resolve disputed facts.'" Jordan C. v. Ariz. Dep't of Econ. Sec., 223 Ariz. 86, 93 ¶ 18, 219 P.3d 296, 303 (App. 2009) (citation omitted). A superior court's factual findings will be affirmed unless they are clearly erroneous or not supported by the record. See Audra T. v. Ariz. Dep't of Econ. Sec., 194 Ariz. 376, 377, 982 P.2d 1290, 1291 (App. 1998). This court views the evidence in a light most favorable to sustaining the superior court's findings. See Manuel M. v. Ariz. Dep't of Econ. Sec., 218 Ariz. 205, 207 ¶ 2, 181 P.3d 1126, 1128 (App. 2008).
¶11 The evidence supports the superior court's finding that Father abandoned B.S. Father was incarcerated when B.S. was born and remained incarcerated for nearly the first two years of B.S.'s life. Father had no contact with B.S. until DCS became involved in August 2012, well after Father's April 2011 release from prison and almost three years after B.S.'s birth. Father never sent B.S. any cards, gifts or letters while he was in prison or at any time after his release. The superior court found that Father only "supplied minimal support" to B.S. After DCS took B.S. into care, Father sporadically visited B.S. but failed to maintain regular contact. Father never provided normal supervision for B.S. Although Father was given the opportunity to have B.S. placed with him in Florida, the court found Father failed to participate in the required process. The record supports these findings, which justify the court's conclusion that Father abandoned B.S.
Because the superior court properly found this ground for severance, this court need not address the other ground for severance found by that court. See Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, 251 ¶ 27, 995 P.2d 682, 687 (2000).
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¶12 DCS also was required to show by a preponderance of the evidence that severance was in B.S.'s best interests. Kent K. v. Bobby M., 210 Ariz. 279, 288 ¶ 41, 110 P.3d 1013, 1022 (2005). The evidence must show either that the child "would derive an affirmative benefit from termination or incur a detriment by continuing in the relationship." Ariz. Dep't of Econ. Sec. v. Oscar O., 209 Ariz. 332, 334 ¶6, 100 P.3d 943, 945 (App. 2004) (citation omitted). Here, B.S.'s current placement has completed a 20 week course on how to care for B.S.'s special needs and will be able to meet those needs for the foreseeable future. Termination of parental rights would allow B.S. to have a permanent and safe placement and further the plan of adoption. Although Father argues the evidence received should have been weighed differently, this court does not reweigh the evidence. See Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, 282 ¶ 12, 53 P.3d 203, 207 (App. 2002) (citing cases). Because there is reasonable evidence in the record to support the superior court's findings, Father has not shown the court erred in assessing B.S.'s best interests. II. The Superior Court Did Not Violate Mother's Due Process Rights By Proceeding With The Final Day Of Trial In Her Absence And Admitting Dr. DeSoto's Psychological Evaluation Into Evidence.
¶13 Mother, for the first time on appeal, claims the superior court violated her due process rights when it conducted the last day of trial in her absence. This court generally does not consider issues raised for the first time on appeal. See Englert v. Carondelet Health Network, 199 Ariz. 21, 26 ¶ 13, 13 P.3d 763, 768-69 (App. 2000). At no point did Mother argue to the superior court that proceeding with the last day of trial in her absence violated her due process rights. Nor did Mother's counsel object to proceeding in her absence. Mother's subsequent request to reopen did not allege a lack of notice or a due process violation. Instead, Mother stated she did not appear for the last day of trial because she had misread an e-mail received before that date informing her of the rescheduled last day of trial. This filing indicates Mother clearly had advance notice of the rescheduled last day of trial. On this record, even if she had not waived this issue, it cannot be said that Mother failed to receive an "opportunity to be heard 'at a meaningful time and in a meaningful manner.'" Dep't of Child Safety v. Beene, 235 Ariz. 300, 305 ¶ 11, 332 P.3d 47, 52 (App. 2014) (citation omitted).
¶14 Although stipulating to the admissibility of Dr. DeSoto's psychological report, Mother argues for the first time on appeal that the State "had an obligation to make Dr. DeSoto available for cross-examination once it chose to rely upon her report." Even absent waiver, a psychological report "shall be admitted into evidence if the report has been disclosed to the parties pursuant to Rule 44(B)(1) and the author of the report is available for cross-examination." Ariz. R.P. Juv. Ct. 45(D) (emphasis added). No argument is made that Dr. DeSoto's report was not properly disclosed. Moreover, the record does not show that Dr. DeSoto was unavailable for cross-examination. Instead, the record lacks any indication that Mother attempted to call Dr. DeSoto to testify. The superior court sustained Mother's objection to DCS' request to allow Dr. DeSoto to testify via telephone during the February 2014 trial. When DCS then indicated it was not planning to call Dr. DeSoto to testify, Mother did not object, request that Dr. DeSoto's psychological report be excluded from evidence or raise any other issue. Even if she had, the fact that DCS did not call Dr. DeSoto does not amount to a showing that she was unavailable for cross-examination. See Ariz. R.P. Juv. Ct. 45(D). On this record, Mother has shown no error regarding admission of Dr. DeSoto's psychological report.
CONCLUSION
¶15 Because the superior court did not err, the order terminating Mother's parental rights to B.S. and C.S., and Father's parental rights to B.S., is affirmed.