Opinion
1 CA-JV 12-0105 1 CA-JV 12-0164
02-07-2013
LAMONT R., Appellant, v. ARIZONA DEPARTMENT OF ECONOMIC SECURITY, ALISHA R., Appellees.
Thomas C. Horne, Attorney General Michael Valenzuela, Assistant Attorney General And Margaret Williams Attorneys for Appellees John L. Popilek, PC John L. Popilek Attorneys for Appellant
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
(Not for Publication - 103(G) Ariz.R.P. Juv. Ct.; Rule 28 ARCAP)
Appeal from the Superior Court in Maricopa County
Cause No. JD18821
The Honorable Aimee L. Anderson, Judge
AFFIRMED
Thomas C. Horne, Attorney General
By Michael Valenzuela, Assistant Attorney General
And Margaret Williams
Attorneys for Appellees
Phoenix
John L. Popilek, PC
By John L. Popilek
Attorneys for Appellant
Scottsdale
OROZCO, Judge ¶1 Lamont R. (Father) appeals from the juvenile court's order finding the child, Alisha R. (Alisha), dependent. He also appeals the juvenile court's termination of his parent-child relationship with her. For the following reasons, we affirm.
Markisha D.'s (Mother) parental rights were also terminated. Although initially consolidated on appeal, Mother's case was later dismissed. Therefore, Mother is not a party to this appeal.
FACTS AND PROCEDURAL HISTORY
¶2 Father is Alisha's biological parent. In November 2010, the Arizona Department of Economic Security (ADES) received a report that Alisha had tested positive for cocaine at birth. After investigating the allegation, ADES placed Alisha in Father's care on the condition that he did not leave Alisha unsupervised with Mother. ¶3 Despite his agreement with ADES, the agency received multiple reports in May 2011 that Father was neglecting Alisha by leaving her unsupervised with Mother. The reports also alleged that Mother was the primary caretaker of Alisha and was continuing to use drugs. ADES attempted to contact Father numerous times to set up a meeting to talk about the reported allegations. Father, however, was argumentative and refused to discuss the allegations. He denied that he was leaving Alisha unsupervised around Mother, although he did admit that he had taken Alisha to see Mother. He also added that he was a great father. ¶4 On August 5, 2011, the ADES case worker was notified that Father was arrested because "h[e] and [M]other had an altercation at her home" and there was an outstanding order of protection (OOP) against Father. ADES took physical custody of Alisha and placed her into foster care. ¶5 After Alisha was removed, Father admitted that "he [was] unable to be a great father due to financial reasons and that he would like to help [M]other with her sobriety." Alisha was subsequently placed with Mother's Aunt (Aunt). ¶6 ADES filed a dependency petition. The dependency adjudication was held eight months later, and the juvenile court found Alisha dependent as to Father in April 2012. The court found that Father repeatedly placed Alisha at risk for abuse and neglect by allowing Mother to have unsupervised visits with her. In addition, the court found that Father failed to follow through with the directive from ADES to file for custody of Alisha. ¶7 After the court entered its ruling, ADES asked that the case plan be changed from family reunification to severance and adoption. The court agreed, finding Alisha in need of permanency and stability. Father appealed the dependency determination, and ADES filed its motion to terminate his parental rights. ¶8 The contested severance trial was held in June 2012. The ADES case manager testified that Father did not contact ADES once he was required to do so for visits. Aunt also informed the case manager that Father had not been visiting Alisha as often as he claimed and had not provided any financial support for the child. Father admitted that he had not been participating in the offered services because he felt that ADES had unfairly removed Alisha from his care. He also did not believe that he should have to repeat services he had completed a year earlier for a different child who had also been found dependent. He further stated that he did not see Alisha for the first two months after she was removed from his care but then saw her at least two times per month for one to two hours at a time. Based on the testimony, the court found that Father abandoned Alisha and termination was in her best interests. The court subsequently signed and filed its Findings of Fact and Conclusions of Law Order (FFCLO). ¶9 Father timely appealed the termination of his parent-child relationship with Alisha. We have jurisdiction over both appeals pursuant to Arizona Revised Statutes (A.R.S.) sections 8-235.A (2007), 12-120.21.A.1 (2003) and -2101.A.1 (Supp. 2012).
Father filed a notice of appeal after the filing of the minute entry but before the FFCLO was filed. Although Father filed a premature appeal, we have jurisdiction because it was taken from a signed minute entry. Barassi v. Matison, 130 Ariz. 418, 422, 636 P.2d 1200, 1204 (1981) (holding that the court had jurisdiction to entertain an appeal filed after the minute entry order denying the motion for new trial but prior to the formal entry of judgment).
Upon ADES' motion, the dependency appeal and the severance appeal were consolidated.
DISCUSSION
Dependency Action ¶10 Father argues that the juvenile court erred in finding Alisha dependent because there was no "reasonable evidence" that she was dependent pursuant to A.R.S. § 8-201.13 (Supp. 2012). We view the evidence and all reasonable inferences therefrom in the light most favorable to upholding the juvenile court's order. Manuel M. v. Ariz. Dep't of Econ. Sec., 218 Ariz. 205, 207, ¶ 2, 181 P.3d 1126, 1128 (App. 2008). "We will not disturb the juvenile court's ruling in a dependency action unless the findings upon which it is based are clearly erroneous and there is no reasonable evidence supporting them." Pima County Juv. Dependency Action No. 118537, 185 Ariz. 77, 79, 912 P.2d 1306, 1308 (App. 1994). ¶11 The court found that Alisha was dependent because Father left the child unsupervised with Mother. The evidence supports the finding because Father admitted bringing Alisha to visit Mother on numerous occasions, and the ADES case manager testified that Father left Alisha in Mother's unsupervised care. Father denied leaving Alisha unsupervised with Mother except for on one occasion when he had taken Alisha to the hospital due to a fever. However, he did not explain the numerous reports from Aunt and Mother that he had left Alisha unsupervised with Mother. ¶12 Moreover, the case manager also testified that Father failed to complete the services offered, which included completing "[s]ubstance abuse assessment through TERROS, weekly random UAs, psychological consultation, supervised visitation through parent aide services, parenting classes and any other recommendations made by the psychologist." The case manager also stated that Father did not visit consistently with Alisha and had not "established [a] bond with the child." Consequently, the juvenile court did not abuse its discretion in finding Alisha dependent. Severance Action ¶13 Father also challenges the termination of his parental rights. He raises multiple issues claiming that the severance of his parental rights should be set aside. We will discuss each issue below.
Dependency Finding ¶14 Father first argues that the juvenile court erred by finding Alisha dependent, and therefore, the finding of severance should be set aside. Because we affirm the dependency adjudication, we need not address this argument.
Abandonment ¶15 Father also contends that ADES failed to prove that he had abandoned Alisha pursuant to A.R.S. § 8-533.B.1 (Supp. 2012). "We will not disturb the juvenile court's order severing parental rights unless its factual findings are clearly erroneous, that is, unless there is no reasonable evidence to support them." Audra T. v. Ariz. Dep't of Econ. Sec., 194 Ariz. 376, 377, ¶ 2, 982 P.2d 1290, 1291 (App. 1998). ¶16 Parental rights may be severed if the parent has abandoned the child. A.R.S. § 8-533.B.1. Abandonment is defined as
the failure of the parent to provide reasonable support and to maintain regular contact with the child, including providing normal supervision. Abandon[ment] includes a judicial finding that a parent has made only minimal efforts to support and communicate with the child. Failure to maintain a normal parental relationship with the child without just cause for a period of six months constitutes prima facie evidence of abandonment.A.R.S. § 8-201.1. "[A]bandonment is measured not by a parent's subjective intent, but by the parent's conduct: the statute asks whether a parent has provided reasonable support, maintained regular contact, made more than minimal efforts to support and communicate with the child, and maintained a normal parental relationship." Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, 249-50, ¶ 18, 995 P.2d 682, 685-86 (2000). ¶17 The evidence supports the court's finding that Father abandoned Alisha. Not only had Father not participated in any services that had been offered to him after Alisha was removed from him in August 2011, he did not maintain contact with her and did not regularly visit her when she was with Aunt or when he was supposed to schedule visits through ADES. Although Father made an excuse for not participating in the services offered to assist in reuniting him with Alisha, he had stated at a previous ADES meeting that he wanted Alisha to be placed with Aunt until he got his life together. Despite the case manager's testimony to the contrary, Father testified that he had visited Alisha approximately twice a month since her removal. ¶18 After listening to all the evidence, the court, as the finder of fact, found by clear and convincing evidence that Father's visits with Alisha approximately twice per month over a nearly one year period did not constitute regular contact with her or provide normal supervision. The court found that Father made only minimal efforts to support and communicate with Alisha. As a result, the court found that Father had abandoned Alisha and based on the evidence, we do not find that the court abused its discretion in reaching that conclusion.
In the FFCLO the court stated that Father "has paid no support, sent no cards, gifts, letters, nor made any contact whatsoever with the child." Although this statement is inconsistent with the actual findings the court made concerning Father's involvement with the child on the record at the severance hearing, this court will uphold the juvenile court's termination order when "any reasonable view of the facts and law might support the judgment of the trial court." City of Phoenix v. Geyler, 144 Ariz. 323, 330, 697 P.2d 1073, 1080 (1985).
Best Interests ¶19 Father also challenges the finding that his termination was in Alisha's best interests. We again review whether the evidence supported the juvenile court's finding. In addition to a statutory basis supporting termination of parental rights, the court also had to find by a preponderance of the evidence that termination of the parent-child relationship was in the best interests of the child. Kent K. v. Bobby M., 210 Ariz. 279, 280, 288, ¶¶ 1, 42, 110 P.3d 1013, 1014, 1022 (2005). Best interests supporting termination can be demonstrated by a showing that the child would derive an affirmative benefit from termination or incur a detriment by continuing the relationship. Ariz. Dep't of Econ. Sec. v. Oscar O., 209 Ariz. 332, 334, ¶ 6, 100 P.3d 943, 945 (App. 2004). "The existence of a current adoptive plan is one well-recognized example of such a benefit." Id. ¶20 The case manager in this case testified that Alisha was adoptable and in an adoptive placement with her two siblings. Based on the evidence, the juvenile court correctly found that termination was in Alisha's best interests by a preponderance of the evidence. Consequently, the juvenile court did not err by terminating Father's parental rights to Alisha. Constitutionality of the Statute ¶21 Father also contends that A.R.S. § 8-533.B is unconstitutional because, as applied, it is ambiguous and vague. Father did not raise the constitutional challenge at the juvenile court level. However, when an appellant claims that a statute is unconstitutionally vague, we may consider it for the first time on appeal. State v. Ochoa, 189 Ariz. 454, 459, 943 P.2d 814, 819 (App. 1997). ¶22 "A legislative enactment carries a strong presumption of constitutionality . . . ." State v. Phillips, 178 Ariz. 368, 370, 873 P.2d 706, 708 (App. 1994). We "will not declare an act of the legislature unconstitutional unless convinced beyond a reasonable doubt that it conflicts with the federal or state constitutions." Graville v. Dodge, 195 Ariz. 119, 123, ¶ 17, 985 P.2d 604, 608 (App. 1999). "A statute is unconstitutionally vague if it fails to give a person of normal intelligence reasonable opportunity to know what is prohibited . . . ." Berenter v. Gallinger, 173 Ariz. 75, 81, 839 P.2d, 1120, 1126 (App. 1992). ¶23 Father argues that he did not abandon Alisha because he thought he did what he was obligated to do to have her returned to his care. He also claims that the statute "is far from clear, and could not be clear to a person of ordinary intelligence." We disagree. ¶24 "A statute that gives fair notice of conduct to be avoided is not void for vagueness simply because it may be difficult to determine how far one can go before the statute is violated." Id. Father's claim that the statute provides no further guidance is unfounded. Section 8-533.B states that parental rights may be severed if the parent abandons the child. The statute defines what type of behavior would constitute abandonment: the failure of the parent to provide reasonable support and to maintain regular contact with the child, including providing normal supervision. A.R.S. § 8-201.1. In addition, the ADES case manager testified that the Department had offered multiple services to Father, including setting up visitation with Alisha; however, he failed to fully participate in them. Consequently, based on the statutory definition of abandonment and the evidence in this case, A.R.S. § 8-533.B is not vague or ambiguous as applied.
A party contesting the constitutionality of a statute must serve the Attorney General, the Speaker of the House of Representatives and the President of the Senate. See DeVries v. State, 219 Ariz. 314, 316, ¶ 1, 198 P.3d 580, 582 (App. 2008). However, because we find the statute constitutional, we conclude no harm resulted from the lack of notice. Cf. A.R.S. § 12-1841.C. (Supp. 2012) (stating that if notice is not served and the statute is held unconstitutional, the court shall vacate and give the Attorney General, the Speaker of House of Representatives and the President of the Senate the opportunity to be heard).
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CONCLUSION
¶25 For the foregoing reasons, we affirm the finding that Alisha was dependent and the order terminating Father's parental relationship with her.
______________________________
PATRICIA A. OROZCO, Judge
CONCURRING: _________________________________
MAURICE PORTLEY, Presiding Judge
_______________________
RANDALL M. HOWE, Judge