Opinion
No. 1 CA-JV 15-0077 No. 1 CA-JV 15-0086
10-01-2015
LEO M., CRYSTEL D., Appellants, v. DEPARTMENT OF CHILD SAFETY, A.M., L.M., Appellees.
COUNSEL Maricopa County Public Advocate's Office, Mesa By Suzanne Sanchez Counsel for Appellant Mother John L. Popilek P.C., Scottsdale By John L. Popilek Counsel for Appellant Father Arizona Attorney General's Office, Phoenix By JoAnn Falgout Counsel for Appellee Department of Child Safety
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. JD22893
The Honorable Joan M. Sinclair, Judge
AFFIRMED
COUNSEL Maricopa County Public Advocate's Office, Mesa
By Suzanne Sanchez
Counsel for Appellant Mother
John L. Popilek P.C., Scottsdale
By John L. Popilek
Counsel for Appellant Father
Arizona Attorney General's Office, Phoenix
By JoAnn Falgout
Counsel for Appellee Department of Child Safety
MEMORANDUM DECISION
Judge Samuel A. Thumma delivered the decision of the Court, in which Presiding Judge Jon W. Thompson and Judge Donn Kessler joined. THUMMA, Judge:
¶1 Leo M. (Father) and Crystel D. (Mother) appeal from the superior court's order terminating their parental rights to A.M. (born in 2012) and L.M. (born in 2011). Because the record supports the superior court's decisions, 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 On September 26, 2012, before dawn, Father was caring for L.M. while Mother was sleeping. Father claims he tripped and fell with L.M. (then 20 days old) and bumped the baby's head on a wall. Mother was unaware of the incident until later that day when she returned home from work and noticed "swelling" on L.M.'s head. Mother immediately took L.M. to the emergency room, where doctors determined L.M. had skull fractures and internal bleeding. Because the injuries were inconsistent with the explanation provided, and were "highly concerning for a non-accidental trauma," the hospital contacted the Department of Child Safety (DCS).
¶3 After a familial placement with a safety plan and additional investigation, DCS took the children in custody and filed a dependency petition in November 2012. DCS alleged Father had abused L.M. and that Mother had failed to protect the children or acknowledge Father could have harmed L.M. Father and Mother denied the allegations but submitted the issue to the court and the children were found dependent in December 2012. At that time, the court adopted a case plan of family reunification with a concurrent case plan of severance and adoption.
¶4 DCS provided various reunification services, including parent-aide services, transportation, psychological evaluations and counselling. DCS also provided a psychiatric evaluation for Mother, one-time urinalysis for Father, anger-management and domestic-violence counselling for Father and domestic violence and parenting-skills group therapy for Mother. Given the allegations of abuse and an ongoing police investigation, DCS provided supervised visitation.
¶5 Participation in these services by Father and Mother was sporadic and with mixed outcomes. The record supports a finding that Father only minimally complied with services, demonstrating his unwillingness to take responsibility for his actions. The record also supports a finding that Mother completed some services but did not acknowledge Father's abuse of L.M.
¶6 In March 2014, over the objection of Father and Mother, the superior court changed the case plan to severance and adoption. DCS' motion for termination sought to terminate their parental rights based on 15-months time-in-care.
¶7 The superior court held a severance trial over four days beginning in October 2014 and concluding on February 9, 2015. Father failed to appear in person or by phone at the January 2, 2015 hearing. Although his attorney indicated Father was unable to attend because he was sick, the court found Father had waived his rights by failing to appear and thereby admitted the factual allegations in the motion to terminate. Before the February 9, 2015 hearing, Father filed a motion to set aside the termination findings. In late February 2015, the superior court denied Father's motion to set aside and granted the motion to terminate as to both Father and Mother. This court has jurisdiction over the timely appeals by Father and Mother pursuant to Arizona Revised Statutes (A.R.S.) sections 8-235, 12-120.21(A)(1) and -2101(A)(1)(2015) and Arizona Rules of Procedure for the Juvenile Court 103-04.
Absent material revisions after the relevant dates, statutes cited refer to the current version unless otherwise indicated. --------
DISCUSSION
I. The Superior Court Did Not Err In Denying Father's Motion To Set Aside.
¶8 Father argues the superior court abused its discretion by denying his motion to set aside the waiver finding based on his failure to appear at the January 2, 2015 hearing. This court reviews a ruling on a motion to set aside for an abuse of discretion. See Christy A. v. Ariz. Dep't of Econ. Sec., 217 Ariz. 299, 305 ¶ 19, 173 P.3d 463, 469 (App. 2007) (citing cases). A motion to set aside must show good cause in two respects: (1) mistake, inadvertence, surprise or excusable neglect and (2) a meritorious defense to the motion to terminate. Id. at 304 ¶ 16, 173 P.3d at 468 (citing cases). "'A meritorious defense must be established by facts and cannot be established through conclusions, assumptions or affidavits based on other than personal knowledge.'" Id. at 304-05 ¶ 16, 173 P.3d at 468-69 (quoting Richas v. Superior Court, 133 Ariz. 512, 517, 652 P.2d 1035, 1040 (1982)).
¶9 In March 2014, Father was given a written admonition explaining his rights and warning him that if he "fail[ed] to attend further proceedings without good cause, the Court may terminate [his] parental rights." See Ariz. R.P. Juv. Ct. Form 3. If a parent does not attend a properly-noticed termination hearing without good cause, the superior court "may find that the parent has waived the parent's legal rights and is deemed to have admitted the allegations" and "may terminate the parent-child relationship as to a parent who does not appear based on the record and evidence presented." A.R.S. § 8-863(C); accord Ariz. R.P. Juv. Ct. 64(C). Although attending the first two days of trial, Father missed the third day, claiming to be "suffering from severe nausea." Father argues he "could not have effectively assisted his counsel in defending against the allegations against him," and contends the court should not have found he waived his rights by failing to attend.
¶10 Although Father's attorney informed the court at the third day of trial that Father "would call into the court" that day, as the court noted in denying the motion to set aside, Father did not call that day. Moreover, the only support for the motion to set aside was a note indicating Father sought emergency medical treatment at 2:32 p.m. on January 5, 2015, more than three days after the January 2, 2015 hearing, which started at 8:37 a.m. Although that note indicated Father "states he has been ill since" January 1, 2015, and the superior court would have had the discretion to grant the motion to set aside, this record does not compel a finding that the court abused its discretion in denying that motion. See Adrian E. v. Ariz. Dep't of Econ. Sec., 215 Ariz. 96, 101, ¶ 15, 158 P.3d 225, 230 (App. 2007) (noting finding of good cause for failure to appear is largely discretionary); Bob H. v. Ariz. Dep't of Econ. Sec., 225 Ariz. 279, 281 ¶¶ 8-9, 237 P.3d 632, 634 (App. 2010) (finding no abuse of discretion in granting motion to sever based on record provided when Father arrived 14 minutes late after driving 1100 miles to attend hearing). Similarly, Father has not shown that the superior court erred in not sua sponte setting an evidentiary hearing on Father's motion to set aside.
II. The Superior Court Did Not Err In Granting DCS' Motion To Terminate.
¶11 As applicable here, to terminate parental rights, a court must find by clear and convincing evidence that at least one statutory ground in A.R.S. § 8-533(B) has been proven and must find by a preponderance of the evidence that termination is in the best interests of the child. See Kent K. v. Bobby M., 210 Ariz. 279, 280 ¶ 1, 110 P.3d 1014, 1022 (2005); Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, 249 ¶ 12, 995 P.2d 682, 685 (2000). Because the superior court "is in the best position to weigh the evidence, observe the parties, judge the credibility of witnesses, and resolve disputed facts," this court will affirm an order terminating parental rights so long as it is supported by reasonable evidence. Jordan C. v. Ariz. Dep't of Econ. Sec., 223 Ariz. 86, 93 ¶ 18, 219 P.3d 296, 303 (App. 2009) (citation omitted).
A. 15-Months Time-In-Care.
¶12 The superior court terminated the parental rights of Father and Mother based on 15-months time-in-care pursuant to A.R.S. § 8-533(B)(8)(c). Father and Mother do not dispute the children have been in an out-of-home placement pursuant to court order for a cumulative total period exceeding 15 months. See A.R.S. § 8-533(B)(8)(c). The remaining statutory requirements focus on reunification services and whether the record shows Father and Mother have been unable to remedy the circumstances that resulted in the out-of-home placement and that there is a substantial likelihood that they will not be capable of exercising proper and effective parental care and control in the near future. See id.
¶13 Father argues "the sole allegation" in the dependency petition was his "alleged abuse of L.M.," that the motion to terminate does not mention abuse and that the abuse allegations were not substantiated. Having failed to raise this argument with the superior court, DCS argues with some force that it is waived on appeal. On the merits, however, the record supports the superior court's findings.
¶14 The superior court found that Father's attempts to remedy the circumstances causing the children to be in care were sporadic at best. Father was advised that he must "understand and acknowledge the negative effects of physical discipline . . . [and] the harmful effects of uncontrollable anger on [his] children . . . by demonstrating effective coping skills to manage [his] temper." However, the DCS caseworker testified "Father failed to remedy the circumstances that brought the children into care and did not do the services that were required". Although complying with some services, Father failed to complete parenting courses and counseling services. Even more significantly, his parent aide services were terminated when Father was verbally abusive with staff and noncompliant with scheduled visits. As of March 2014, for example, Father had attended just seven of his sixteen scheduled visits with the children. In addition, although Father was to "demonstrate [his] ability to safely protect" the children and to provide a consistent, stable and safe home environment for the children, he failed to do so.
¶15 The record further reflects that Father displayed behaviors that were not healthy for the children. For example, DCS discovered a video Father posted on social media scolding L.M., to the point that the child began crying, and then saying "I'm just kidding." Father captioned the video with "this is how I piss my son off on a Friday night." A DCS caseworker testified "the video was very inappropriate. It was not appropriate parenting. It was verbally abusive." Yet when confronted with the video, Father became combative and cursed. On this record, and addressing the merits of Father's arguments on appeal, the superior court did not abuse its discretion in granting DCS' motion to terminate Father's parental rights. See Jordan C., 223 Ariz. at 93 ¶ 18, 219 P.3d at 303.
¶16 Mother argues the superior court erred because she remedied the circumstances that caused the children to be in an out-of-home placement and is able to parent them. Among other things, Mother was required to demonstrate consistency and stability in parenting and provide a safe home. Although Mother testified at trial that she was able to offer consistency and stability in her parenting, the superior court found Mother lacked the ability to keep the children safe because she was not willing to acknowledge the possible threat Father posed to the children. See A.R.S. § 8-533(B)(8)(a), (c).
¶17 Among other things, Mother testified she believed Father's explanation of how L.M. was injured despite the medical opinions that the injuries were non-accidental. On the last day of trial, Mother testified she was no longer living with Father and had permanently severed the relationship. The evidence, however, was that Mother had been in a relationship with Father as late as two months before trial began. Moreover, Mother testified she was not concerned by Father's actions when he posted the video scolding L.M. Instead, Mother testified she thought the video was "cute."
¶18 The DCS psychologist who worked with Mother, recommended she have a minimum of one year separation from Father to develop healthy boundaries. The separation was recommended because Mother had reunited with Father several times after L.M.'s injuries. Mother and Father, however, had only been separated for two months when trial began. Even then, at trial, Mother would not agree that Father was a potential threat to the children. On this record, the superior court did not abuse its discretion in granting DCS' motion to terminate Mother's parental rights. See Jordan C., 223 Ariz. at 93 ¶ 18, 219 P.3d at 303.
B. Best Interests.
¶19 Father and Mother challenge the superior court's best interests finding. A best interests determination "must include a finding as to how the child would benefit from a severance or be harmed by the continuation of the relationship." Mary Lou C. v. Ariz. Dep't of Econ. Sec., 207 Ariz. 43, 50 ¶ 19, 83 P.3d 43, 50 (App. 2004) (citation omitted). The superior court found that termination was in the children's best interests because they had been in care for more than two years and are in a potential adoptive placement committed to providing them with a safe and stable home that can provide them with permanency.
¶20 Father and Mother claim the children are bonded to them and that DCS failed to show how terminating parental rights is in the best interests of the children. The DCS caseworker acknowledged a bond between Father and Mother and the children, yet still testified that termination was in the best interests of the children to provide them stability and permanency. The DCS caseworker also testified that L.M. had been in care for all but two months of his life and agreed that having "permanency now instead of lingering in the care of" DCS was in the best interests of the children. Moreover, both children were placed together in a potential adoptive relative placement that was meeting their needs. Consequently, the superior court did not err in finding termination to be in the best interests of the children. See Jordan C., 223 Ariz. at 93 ¶ 18, 219 P.3d at 303.
CONCLUSION
¶21 The superior court's order terminating Father and Mother's parental rights to A.M. and L.M. is affirmed.