Opinion
1 CA-JV 12-0006
06-21-2012
CECIL F., CELESTE F., BRADFORD S., Appellants, v. ARIZONA DEPARTMENT OF ECONOMIC SECURITY, CHELISSE F., DEMARCO O., CELESTE E., Appellees.
David W. Bell Attorney for Appellant Mother Celeste F. Robert D. Rosanelli Attorney for Appellant Father Bradford S. Anne M. Williams Attorney for Appellant Father Cecil F. Thomas C. Horne, Attorney General By Jamie R. Heller, Assistant Attorney General Attorneys for Appellees Marcus F. Westervelt Attorney for Child DeMarco O. James T. Myres Guardian Ad Litem for Children
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.R. 31.24
MEMORANDUM DECISION
(Not for Publication -
Ariz. R.P. Juv. Ct.
103(G); ARCAP 28)
Appeal from the Superior Court in Maricopa County
Cause Nos. JD16501 and JS11780
The Honorable Margaret R. Mahoney, Judge
AFFIRMED
David W. Bell
Attorney for Appellant Mother Celeste F.
Mesa Robert D. Rosanelli
Attorney for Appellant Father Bradford S.
Phoenix Anne M. Williams
Attorney for Appellant Father Cecil F.
Tempe Thomas C. Horne, Attorney General
By Jamie R. Heller, Assistant Attorney General
Attorneys for Appellees
Phoenix Marcus F. Westervelt
Attorney for Child DeMarco O.
Phoenix James T. Myres
Guardian Ad Litem for Children
Phoenix THUMMA, Judge ¶1 Celeste F. ("Mother") and fathers Bradford S. and Cecil F. appeal the juvenile court's order terminating their parental rights to their respective children. Because the juvenile court's findings are properly supported by the evidence, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Mother is the biological mother of Chelisse F., Celeste E. ("Celeste") and DeMarco O. (collectively, "the children"). Bradford is the biological father of DeMarco. Cecil is the legal father of Chelisse and presumed father of Celeste. Mother gave birth to DeMarco in 1998 while living in Oregon. Bradford apparently wanted to be listed as DeMarco's father on the birth certificate, but Mother refused. ¶3 Mother gave birth to Celeste in 2001. At that time, Mother was in a relationship with Cecil, whom she married in 2002. Cecil testified that, although his name was not listed on Celeste's birth certificate, there was a good possibility he was her father. Two years later, Mother gave birth to Chelisse while married to Cecil. ¶4 In the summer of 2007, Mother moved to Arizona while Cecil remained in the northwest. In the years before Mother moved to Arizona, more than ten reports were made to social services agencies expressing concern about the welfare and safety of the children. Soon after Mother moved to Arizona, Child Protective Services, a division of the Arizona Department of Economic Security, ("CPS") received a report that Mother was abusing prescription drugs and alcohol, was erratic, lived in an unsanitary home, had been diagnosed with bipolar disorder and did not consistently take her medication. In February 2008, when responding to a domestic-violence call, police discovered Mother had been badly beaten by a registered sex offender who was living in her home with the children. Mother was hospitalized for the injuries and was arrested for attempting to shoot the registered sex offender after she was released. ¶5 CPS filed an in-home dependency petition in February 2008, alleging Mother could not parent given her mental health and substance abuse issues. At that time, Cecil's whereabouts were unknown, and CPS was unaware that Bradford was DeMarco's father. In March 2008, CPS discovered Cecil was living in another state and informed him that the children were in CPS custody. Soon thereafter, Cecil moved to Arizona and lived next door to Mother. ¶6 Because of growing concerns about the safety of the children, CPS filed an amended dependency petition in April 2008 and removed the children from Mother's care. The juvenile court found the children dependent in July 2008, and Mother and Cecil agreed to participate in family reunification services. In September 2008, Mother informed her parent aide that Cecil had "abandoned her" and "left with a new girlfriend," and his whereabouts were unknown. Mother also reported that she did not have sufficient income to pay for food or rent after Cecil left. During Cecil's absence, Mother was partially compliant with reunification services. ¶7 By August 2009, CPS was unable to locate Mother or Cecil, and the next month CPS filed a motion to terminate parental rights. CPS then located Cecil, who reported that Mother was in an Oregon jail. In late 2009, Mother and Cecil returned to Arizona. ¶8 Soon thereafter, the court dismissed the first severance motion without prejudice because the CPS case manager was unavailable. Mother continued to participate in reunification services, although her participation remained inconsistent. Cecil only participated in visitations with the children. In May 2010, CPS filed a second motion to terminate parental rights, which was withdrawn in November 2010 given Mother's compliance with reunification services. In December 2010, CPS returned the children to Mother's care, and a Family Reunification Team started working with the family in Mother's home. ¶9 Although Cecil had moved back into Mother's home, he moved out around the time the children moved back in, claiming he had respiratory problems and could not care for himself and the children. By that time, Cecil had participated in a psychological evaluation, which concluded he was unable to parent the children. ¶10 In March 2011, CPS again removed the children from Mother's home because she often left the children unsupervised and neglected them. CPS then filed a third severance motion, alleging the children had been in an out-of-home placement pursuant to court order for more than fifteen months, and there was a substantial likelihood that Mother and Cecil would not be capable of exercising proper and effective parental control of the children in the near future pursuant to Arizona Revised Statues ("A.R.S.") section 8-533(B)(8)(c) (West 2012). The motion further alleged Mother's mental illness prevented her from providing effective parental care and guidance under A.R.S. § 8-533(B)(3). ¶11 A month later, Bradford took a paternity test, which established he was DeMarco's father. Soon thereafter, CPS filed a severance petition alleging Bradford abandoned DeMarco pursuant to A.R.S. § 8-533(B)(1). ¶12 After a five-day severance trial, the juvenile court found CPS had proved the grounds alleged for termination as to all parents. The court also found termination would be in the best interest of the children. ¶13 Mother, Cecil and Bradford timely appeal the juvenile court's decision. We have jurisdiction pursuant to A.R.S. §§ 8-235(A), 12-120.21(A)(1), and -2101(B).
Absent material revisions to this decision, we cite the current Westlaw version of applicable statutes.
DISCUSSION
¶14 Mother, Cecil and Bradford argue there was insufficient evidence to support the termination of their parental rights. We disagree. ¶15 Although parents have a fundamental right to custody of their children, that right is not absolute. Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, 248, ¶¶ 11-12, 995 P.2d 682, 684 (2000). Before parental rights can be terminated, a juvenile court must find by clear and convincing evidence the existence of at least one statutory basis for termination. Id. The court also must find by a preponderance of the evidence that termination is in the best interest of the child. Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 22, 110 P.3d 1013, 1018 (2005). ¶16 We review an order terminating parental rights in the light most favorable to sustaining the order. See Maricopa County Juv. Action No. JS-8490, 179 Ariz. 102, 106, 876 P.2d 1137, 1141 (1994). "[T]he juvenile court was in the best position to weigh the evidence, judge the credibility of the parties, observe the parties, and make appropriate factual findings." Pima County Dependency Action No. 93511, 154 Ariz. 543, 546, 744 P.2d 455, 458 (App. 1987). Accordingly, "we will accept the juvenile court's findings of fact unless no reasonable evidence supports those findings." Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, 280, ¶ 4, 53 P.3d 203, 205 (App. 2002).
I. Mother
¶17 There is no dispute the children had been in an out-of-home placement for more than fifteen months. Substantial evidence supports the juvenile court's finding that Mother cannot parent and would be unlikely to provide the children with proper and effective care in the near future. A.R.S. § 8-533(B)(8)(c). ¶18 Mother was diagnosed with bipolar disorder. Although her diagnosis can be treated with proper medication, Mother did not consistently take her medication. Several mental-health professionals opined Mother's inability to consistently take her medication causes her to neglect the children and behave erratically. ¶19 Compounding her bipolar disorder, Mother has substance-abuse issues observed to impair her ability to parent. For example, Mother was unable to fill out paperwork at the children's school, failed to follow through with the school's recommendation that DeMarco receive counseling and did not comply with available reunification services, missing several appointments and arriving late to others. Mother also behaved inappropriately, acted irrationally, nodded off, forgot about scheduled appointments, neglected the children and blamed others for her problems. ¶20 Although CPS returned the children to Mother in December 2010, they were removed just three months later because Mother neglected and failed to supervise them, including while at a swimming pool. On another occasion, Mother was found asleep on the couch and unaware that the children were wandering the streets blocks from home. Mother also was evicted from her apartment because she did not supervise, and was not able to control, the children. ¶21 The record adequately supports, by clear and convincing evidence, the finding that Mother was unable to remedy the circumstances that cause the children to be in an out-of-home placement for more than fifteen months and that there is a substantial likelihood Mother would not be capable of exercising proper and effective parental control in the near future. Accordingly, we find no error.
Mother also argues that the juvenile court abused its discretion in finding that her mental illness prevents her from discharging her parental responsibilities under A.R.S. § 8-533(B)(3). Because we affirm the findings under A.R.S. § 8-533(B)(8)(C), we need not address this argument. See Michael J. , 196 Ariz. at 249, ¶ 12, 995 P.2d at 685 (holding CPS need only prove one ground for severance).
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II. Cecil
¶22 Cecil did not live with the children from 2002 to 2006. After learning the children were taken into CPS custody in 2008, Cecil disappeared for approximately one year. During that time, he had no contact with CPS or the children. Cecil testified he cared for the daily needs of the children for only one week during their lives. Although Cecil returned to live with Mother at some point, he moved out of the home to take care of his respiratory problems around the time the children were returned to Mother's home because he could not care for himself and the children. The record adequately supports, by clear and convincing evidence, that Cecil was unable to parent the children and there is a substantial likelihood he will not be capable of exercising proper and effective parental control in the near future. Accordingly, we find no error.
III. Bradford
¶23 Abandonment is
the failure of a parent to provide reasonable support and to maintain regular contact with the child, including providing normal supervision. Abandonment includes a judicial finding that a parent has made only minimal efforts to support and communicate with the child.A.R.S. § 8-531(1). Abandonment is measured by a parent's conduct, not intent. Michael J. , 196 Ariz. at 249, ¶ 18, 995 P.2d at 685. A potential father "should assert his legal rights at the first and every opportunity," even if he doubts that he is the child's father. Id. at 251, ¶ 25, 995 P.2d at 687. A man who has reasonable grounds to know that he might have fathered a child "must protect his parental rights by investigating the possibility and acting appropriately on the information he uncovers." No. JS-8490, 179 Ariz. at 106, 876 P.2d at 1141. ¶24 Clear and convincing evidence supports the finding that Bradford abandoned DeMarco. Bradford admitted he did not provide any support for DeMarco prior to taking a paternity test in 2011. Although Bradford stated he did not know he was DeMarco's father until then, Mother testified she told Bradford he was DeMarco's father more than a decade before that paternity test. Mother testified Bradford visited her at the hospital when she gave birth to DeMarco, and Bradford wanted to put his name on DeMarco's birth certificate. ¶25 The juvenile court found Mother more credible than Bradford. Because the juvenile court was in the best position to weigh the evidence and judge credibility, we defer to such determinations. No. 93511, 154 Ariz. at 546, 744 P.2d at 458. ¶26 Because Bradford had reasonable grounds to know he might be DeMarco's father, he had a duty to protect his parental rights. Michael J. , 196 Ariz. at 251, ¶ 25, 995 P.2d at 687. Bradford's admission that he failed to do so, failed to request a paternity test and failed to provide support for DeMarco for the first twelve years of his life supports the finding that Bradford abandoned DeMarco. Accordingly, we find no error.
IV. Best interests
¶27 A juvenile court must find by a preponderance of the evidence that severance is in a child's best interests. Maricopa County Juv. Action No. JS-500274, 167 Ariz. 1, 5, 804 P.2d 730, 734 (1990). The best interest inquiry focuses primarily on the interest of the child, as distinct from those of the parent. Kent K. v. Bobby M., 210 Ariz. 279, 287, ¶ 37, 110 P.3d 1013, 1021 (2005). A best interest determination may include a finding as to how the child would benefit from severance or be harmed by the denial of severance. Id. Factors that support finding a child would benefit from the severance of parental rights include evidence of an adoption plan, that the child is adoptable or that the existing placement meets the child's needs. Audra T. v. Ariz. Dep't of Econ. Sec., 194 Ariz. 376, 377, ¶ 5, 982 P.2d 1290, 1291 (App. 1998). ¶28 Substantial evidence supports the finding that severance was in the best interests of the children. By the conclusion of the severance trial, the children had been living in a foster home for nearly three years. The foster parent provided the children with love and affection, took care of their needs and was hoping to adopt all of them. The evidence showed that the children were adoptable and, particularly when removed from Mother's care in March 2011, were happy to be back in the foster home. ¶29 It is true that, given his age, DeMarco would have to consent to any adoption. A.R.S. § 8-106(A)(3). Similarly, Chelisse indicated a desire to live with Mother. After three years, however, neither Mother nor Bradford is able to parent the children. Moreover, the evidence indicates DeMarco and Chelisse had many unexcused absences from school, and DeMarco was not properly taking prescribed medication, while in Mother's care. Finally, the CPS case manager testified it would not be in the best interests of the children to be placed with Mother or Bradford. On these facts, we find no error.
CONCLUSION
¶30 For the foregoing reasons, we affirm.
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SAMUEL A. THUMMA, Judge
CONCURRING: ______________
PATRICIA A. OROZCO, Presiding Judge
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JON W. THOMPSON, Judge