Bennigno R. v. Arizona Department of Economic Security

FILED BY CLERK
OCT 30 2013

IN THE COURT OF APPEALS COURT OF APPEALS
DIVISION TWO
STATE OF ARIZONA
DIVISION TWO

BENNIGNO R., ) 2 CA-JV 2013-0029
) DEPARTMENT B
Appellant, )
) OPINION
v. )
)
ARIZONA DEPARTMENT OF ECONOMIC )
SECURITY, S.R., and L.R., )
)
Appellees. )
)

APPEAL FROM THE SUPERIOR COURT OF PINAL COUNTY

Cause No. JD200500164R

Honorable Kevin D. White, Judge

AFFIRMED

Heard Law Firm
By James L. Heard Mesa
Attorney for Appellant

Thomas C. Horne, Arizona Attorney General
By Erika Z. Alfred Tucson
Attorneys for Appellee Arizona
Department of Economic Security

K E L L Y, Presiding Judge.
¶1 Bennigno R., biological father of S.R., born in August 1999, and L.R., born

in January 2009, appeals from the juvenile court’s order terminating his parental rights to

both children on the grounds of mental illness and length of time in court-ordered care,

pursuant to A.R.S. § 8-533(B)(3) and (B)(8)(c), respectively. Bennigno maintains the

court abused its discretion in denying his motion for summary judgment. He also

contends the Arizona Department of Economic Security (ADES) had not proven that he

had abandoned the children, that it had made a diligent effort to provide reunification

services, or that termination of his rights was in the children’s best interests. We affirm

for the reasons stated below.

¶2 We review the evidence in the light most favorable to sustaining the

juvenile court’s ruling. Lashonda M. v. Ariz. Dep’t of Econ. Sec., 210 Ariz. 77, ¶ 13, 107

P.3d 923, 928 (App. 2005). Thus, “we will accept the juvenile court’s findings of fact

unless no reasonable evidence supports those findings” and the findings are clearly

erroneous. Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, ¶ 4, 53 P.3d 203, 205

(App. 2002).

¶3 The record and the evidence presented at the severance hearing established

that this family, which had included four children who are not the subject of this appeal—

A.R., P.R., M.R., and B.R.—and their mother Juana M.,1 had a lengthy involvement with

ADES and Child Protective Services (CPS), a division of ADES. Between October 1998

and May 2009, CPS received numerous reports that the children were being neglected

1
Juana’s parental rights to S.R. and L.R. also were terminated and this court
affirmed the juvenile court’s order. Juana M. v. Ariz. Dep’t of Econ. Sec., No. 2 CA-JV
2013-0028 (memorandum decision filed August 13, 2013).
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and abused and that the parents were abusing drugs and alcohol. In 2004, for example,

then two-year-old A.R. was found at a park by himself. Also in 2004, twelve-year-old

P.R. reported she had been molested by her uncle, who subsequently admitted molesting

her. At around this time, Bennigno was on probation for a domestic-violence offense.

¶4 In September 2005, a Pinal County Sheriff’s deputy found A.R., then three

years old, walking on a highway at 3:00 in the morning in his underwear. The deputy

located the child’s home, where he found S.R., then six years old, awake and in the care

of an unconscious and apparently intoxicated uncle. The CPS investigator stated in the

report to the juvenile court for the preliminary protective hearing that the home had been

“in a state of squalor” and the children were filthy. Two other children had been left with

the maternal grandmother, whose home was equally filthy and squalid.

¶5 The children were taken into protective custody on September 16, 2005,

and ADES filed a dependency petition. The children were adjudicated dependent as to

Juana after she submitted the issue to the court, and as to Bennigno after he reached an

agreement with ADES during mediation. ADES provided the family with various

services and in August 2006 the court dismissed the dependency.

¶6 In October 2009, ADES again took the children into protective custody and

filed a dependency petition after receiving reports of domestic violence incidents, neglect

of the children, and sexual abuse of S.R. and P.R. by family members.2 In February

2
P.R. gave birth to a child after she was sexually abused by the paternal uncle.

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2010, Juana and Bennigno submitted the issue of dependency to the juvenile court and

the court adjudicated the children dependent.3

¶7 In May 2011, ADES filed a motion to terminate the parents’ rights to M.R.,

S.R., A.R., and L.R. on the grounds of length of time in court-ordered care and, as to

Bennigno, mental illness, and, as to Juana, mental deficiency.4 After a four-day

severance hearing between October 2011 and February 2012, the juvenile court found

ADES had established the two grounds for terminating each parent’s respective rights

and although ADES had made “reasonable efforts to provide [the parents] with

rehabilitative services,” the parents had not benefitted from those services and additional

services would be futile. But, the court found that ADES had not sustained its burden of

establishing termination of the parents’ rights as to S.R. and L.R. was in the children’s

best interests “[i]n light of the bond they share[d] with their parents.” The court set the

matter for a permanency hearing as to S.R. and L.R.

¶8 Thereafter, ADES continued to provide the parents and children with

services. In August 2012, ADES filed a second motion to terminate the parents’ rights as

to S.R. and L.R. on the same grounds alleged in the first severance motion. Before the

hearing, Bennigno filed a motion for summary judgment in which he argued, “[r]es

[j]udicata precludes [ADES] from re-litigating the Best Interest claim upon which this

3
Because P.R. had reached the age of majority, the adjudication did not include
her.
4
M.R. subsequently was withdrawn from the proceeding because she did not wish
to be adopted.
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court has already ruled.” The juvenile court heard the motion on the first day of the

severance hearing in December 2012 and denied it.

¶9 Evidence presented at the three-day hearing included the foster mother’s

testimony that she intended to relocate to North Carolina and wanted to adopt the

children and take them with her. She testified she could not serve as a placement for the

children if the court were to order a guardianship or other solution short of termination of

the parents’ rights because she needed the permanency of adopting the children and

assuming full responsibility for them. After taking the matter under advisement, the

juvenile court granted ADES’s motion, again finding that ADES had proved the alleged

statutory grounds of mental illness as to Bennigno, mental deficiency as to Juana, and as

to both parents, length of time in court-ordered care. The court concluded termination of

the parents’ rights was in the children’s best interests even though they were bonded with

the parents and would be adopted by the foster mother and moved to another state,

finding there was no “reasonable prospect” that the children could be returned to the

parents’ care. This appeal followed the court’s entry of a final order.

¶10 Bennigno argues the juvenile court “should have granted [his] Motion for

Summary Judgment,” contending that the principle of res judicata precluded ADES from

re-litigating. But, Bennigno’s argument is cursory at best, generally claiming without

citation to the record that the evidence presented by ADES was not new and citing only a

single case broadly describing the principle of res judicata. Notably, he cites no authority

suggesting the application of res judicata is appropriate in a severance action.

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¶11 Based on the lack of proper and meaningful argument alone, we could

summarily reject the arguments Bennigno makes in this portion of his brief. See Ariz. R.

Civ. App. P. 13(a)(6) (opening briefs must present “[a]n argument which shall contain the

contentions of the appellant with respect to the issues presented, and the reasons therefor,

with citations to the authorities, statutes and parts of the record relied on”); Ariz. R. P.

Juv. Ct. 106(A) (Rule 13, Ariz. R. Civ. App. P., applies to juvenile appeals); City of

Tucson v. Clear Channel Outdoor, Inc., 218 Ariz. 172, ¶ 88, 181 P.3d 219, 242 (App.

2008) (appellate court will not address issues or arguments waived by party’s failure to

develop them adequately); Watahomigie v. Ariz. Bd. of Water Quality Appeals, 181 Ariz.

20, 26, 887 P.2d 550, 556 (App. 1994) (“[W]e will not consider issues not properly

briefed.”). But even assuming Bennigno’s argument was presented and argued

sufficiently, he has not persuaded us the juvenile court erred.

¶12 “Generally, the denial of a summary judgment motion is not reviewable on

appeal from a final judgment entered after a trial on the merits.” John C. Lincoln Hosp.

& Health Corp. v. Maricopa Cnty., 208 Ariz. 532, ¶ 19, 96 P.3d 530, 537 (App. 2004).

But if the denial was based on a point of law, we may review the ruling as part of our

review of the final judgment on appeal. Hourani v. Benson Hosp., 211 Ariz. 427, ¶ 4,

122 P.3d 6, 9 (App. 2005). Even assuming it is appropriate to review the juvenile court’s

denial of Bennigno’s motion for summary judgment because it was based on the legal

principle of res judicata, the court did not err.

¶13 In his motion for summary judgment, Bennigno argued ADES had not

alleged any “new facts or circumstances” in its second motion to terminate his parental

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rights that would distinguish that motion from the initial motion, which had been “fully

litigated and resolved on the merits.” He asserted the juvenile court’s denial of the

motion was a final judgment on the merits. Quoting Corbett v. ManorCare of America,

Inc., 213 Ariz. 618, ¶ 13, 146 P.3d 1027, 1033 (App. 2006), he argued the first ruling

“‘bars further claims by parties or their privies based on the same cause of action.’”

Acknowledging the “fluidity” of a child’s best interest, Bennigno maintained res judicata

nevertheless bars ADES from re-litigating the issue to the extent the claim is

“indistinguishable from the last claim that the Court previously ruled on.”

¶14 In its response to the motion, ADES argued it would introduce at the

second severance hearing evidence regarding the children’s best interests that had not

been presented at the first severance hearing and that material fact issues existed

precluding summary judgment. The new evidence consisted of the recent evaluations of

the children by psychologist Al Silberman and new information regarding their

placement. ADES argued, too, that the passage of a year since the first severance hearing

was itself a change in the circumstances, noting the parents continued to be provided with

services but had not improved their ability to parent. ADES also argued generally that

strict application of the principle of res judicata in a child-welfare case is inappropriate.

¶15 At the hearing on the motion for summary judgment, Bennigno argued

ADES was required “to show that there [had been] a substantial change in circumstances

to warrant a new trial” and did not “dispute that if they can prove that[,] that they are

entitled to a new trial.” The juvenile court denied the motion for “each of the reasons

cited by [ADES] in its response.” The court noted that “the findings [it had] made” after

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the first severance hearing “establish[ed] those issues for that period in time, and we’re

here to address from that point forward.”

¶16 At the outset, we agree with courts from other jurisdictions that the doctrine

of res judicata must be given limited application to dependency adjudications and

proceedings to terminate parental rights. As the court observed in People ex rel. L.S., 721

N.W.2d 83 (S.D. 2006), for example, “when it comes to protecting children res judicata

should be cautiously applied” because “‘[c]onsiderations regarding a child’s welfare are

rarely, if ever, static. In fact, it is more likely that the child’s environment is constantly

evolving, thus justifying the court’s continuing jurisdiction.’” Id. ¶¶ 24, 27, quoting State

ex rel. J.J.T., 877 P.2d 161, 163 (Utah Ct. App. 1994). “[T]o effectively determine the

best interests of a child, a court must be free from the imposition of artificial constraints

that serve merely to advance the cause of judicial economy.” State ex rel. J.J.T., 877

P.2d at 164.

¶17 Here, the juvenile court did not err in refusing to apply res judicata and

preclude re-litigation of the best-interest issue. The evidence established circumstances

were different. New evidence was presented and almost a year had passed. The

children’s need for permanency persisted and even intensified, and the record supported

the court’s finding that the parents’ inability to have the children returned to them had not

changed.

¶18 Bennigno characterizes his second argument on appeal as challenging

whether ADES made a diligent effort to reunify him with his children and provide

appropriate services. But that is not the argument he ultimately raises. Rather, in two

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brief paragraphs, he simply asserts, without citation to the record or authority, that ADES

did not provide him with sufficient direction, insisting he made “efforts to comply with

the directives of ADES.” He maintains he was compliant with the case plan, visited his

children, and “[i]n no way . . . abandoned his children.”

¶19 The juvenile court found that ADES

ha[d] made diligent efforts to provide appropriate
reunification services to both parents, including psychological
evaluations, visitation, counseling, parenting classes,
substance abuse treatment, and urinalysis testing. Mother and
Father have failed to benefit from these services in terms of
resolving the underlying concerns regarding their ability to
adequately parent, and they have been unable to remedy the
circumstances that cause the children to be in an out-of-home
placement.

These findings were preceded by findings the court had made during the course of the

dependency and when it denied ADES’s first motion to terminate the parents’ rights.

Bennigno did not challenge those earlier findings and, except for requesting additional

visitation in April 2010, he never asked that he be provided additional services or more

direction before the second severance hearing. Consequently, we agree with ADES he

has waived the right to challenge the propriety of the services at this juncture. See

Christina G. v. Ariz. Dep’t of Econ. Sec., 227 Ariz. 231, n.8, 256 P.3d 628, 632 n.8 (App.

2011). Moreover, as ADES points out, Bennigno further waived this claim during the

severance hearing when he maintained during closing arguments that the sole issue for

the court to decide was whether termination of his rights was in the children’s best

interests.

9
¶20 In any event, there was more than sufficient evidence in the record

supporting the juvenile court’s finding that ADES had diligently provided appropriate

and reasonable reunification services and had thereby satisfied its statutory obligation.

Jordan C. v. Ariz. Dep’t of Econ. Sec., 223 Ariz. 86, 93, ¶ 19, 219 P.3d 296, 303 (App.

2009) (ADES has statutory obligation to make reasonable efforts to reunify family).

There was also evidence in the record that Bennigno had not benefitted from the services

and additional services would have been futile.

¶21 We also reject Bennigno’s assertion as part of this argument that ADES

failed to show he had abandoned the children. ADES’s motion to terminate his rights

was based on mental illness and length of time in court-ordered care. It never included

abandonment as a ground for terminating his rights or, for that matter, for finding the

children dependent as to him. ADES was not, therefore, required to establish he had

abandoned them.

¶22 Finally, we reject Bennigno’s claim that there was insufficient evidence to

support the juvenile court’s finding that termination of his rights was in the children’s

best interests. Bennigno speculates that the children’s behavior was deleteriously

affected by the prospect of moving to another state with the foster mother and away from

their parents and siblings with whom they were connected. He contends the only reasons

ADES “wanted to terminate [his] rights [was] because the placement wanted to move and

didn’t want to be limited as a guardianship.” He also notes there was evidence a bond

existed between him and the children.

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¶23 Unlike statutory grounds for terminating a parent’s rights—which must be

established by clear and convincing evidence—whether severance is in the child’s best

interests must be proven by a preponderance of the evidence. A.R.S. §§ 8-533(B);

8-537(B); Kent K. v. Bobby M., 210 Ariz. 279, ¶ 41, 110 P.3d 1013, 1022 (2005). To

establish best interests, ADES was required to show S.R. and L.R. “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, ¶ 6, 100 P.3d 943,

945 (App. 2004). Among the factors relevant to this determination is whether a current

plan for the child’s adoption exists. Mary Lou C. v. Ariz. Dep’t of Econ. Sec., 207 Ariz.

43, ¶ 19, 83 P.3d 43, 50 (App. 2004). The juvenile court also may consider whether the

current placement is meeting the child’s needs, see In re Maricopa Cnty. Juv. Action No.

JS-8490, 179 Ariz. 102, 107, 876 P.2d 1137, 1142 (1994), and may take into account that

“[i]n most cases, the presence of a statutory ground will have a negative effect on the

children,” In re Maricopa Cnty. Juv. Action No. JS-6831, 155 Ariz. 556, 559, 748 P.2d

785, 788 (App. 1988).

¶24 The juvenile court’s conclusion that termination was in the children’s best

interests was preceded by thorough, specific factual findings for which there is ample

support in the record. That evidence includes the testimony of CPS case managers,

therapists, the foster mother, and numerous exhibits admitted at the hearing. The court

found the foster mother’s testimony credible and compelling. She testified thirteen-year-

old S.R. had been placed with her in July 2008, and three-year-old L.R. in March 2011.

She stated she loves them, has cared and provided for them, and wants to adopt them,

11
adding, “they have been with me for so long and they feel safe around me, and I love

them dearly as my own. And I just want them to have a safe environment, loving

environment, and to be able to be successful for the future.” She described the children’s

special physical and cognitive disabilities and needs and how she addresses them,

including the services they require, which she ensures they receive.

¶25 The foster mother also stated she was committed to allowing the children

continued contact with their parents. But she acknowledged her plan was to move to

North Carolina to be with her mother. She planned to take S.R. and L.R. with her if she

could adopt them, insisting she would still allow them continued telephonic or other

contact with their parents any time. She stated she would not want custody of the

children under a guardianship, explaining she wanted to be entirely responsible for them;

she did not want to be required to return to Arizona or to be concerned about the input of

anyone else. She explained she wanted to establish a life for herself and the children in

North Carolina, with her own mother.

¶26 The current case manager’s testimony also supported the juvenile court’s

findings. He testified termination was in the children’s best interests because they needed

permanency, which a guardianship could not provide. Similarly, psychologist Al

Silberman testified he had conducted a bonding assessment or “best interest” evaluation

of S.R. and L.R. He concluded L.R. was more bonded to her foster mother than her

biological parents. He testified it would be in L.R.’s best interest to remain with the

foster mother. He explained L.R. was developmentally delayed as a result of neglect,

which included having been left in a swing for extended periods of time, and would need

12
“a lot of physical therapy . . . [and] a lot of consistency in her life.” He believed

severance of the parents’ rights and adoption of L.R. by her foster mother was in her best

interest if she “is to have a chance to survive in this world with low functioning and some

physical limitations.”

¶27 Silberman testified further that he did not believe continued contact

between L.R. and her biological parents was “necessary for her mental and emotional

[well] being,” explaining that L.R.’s family consisted of the family created by her foster

mother and the foster mother’s sister, who also was involved with the children.

Silberman stated the prospect of the foster mother’s relocation to another state with the

children did not change his opinion about their best interests because the home with the

foster mother “is so much more of a stable place than what she’s going to get from this

family who doesn’t really deal effectively with their children, has many problems, many

problem children.”

¶28 Silberman’s opinion was essentially the same with respect to S.R. as it was

for L.R. He believed she, too, should remain in the care of her foster mother, noting her

developmental delays and other difficulties, including emotional challenges because of

having been molested. He added that her behavior had improved significantly because of

the structured environment provided by the foster mother. And, he opined, if S.R. were

to have no contact with her biological parents, it would not cause her “significant harm”

or be a “major detriment.”

¶29 Although Silberman believed it would be best if S.R. could have regular

contact with her biological parents, he nevertheless concluded the best option was

13
adoption of the children by the foster mother, even if she did leave the state. He felt it

would be detrimental to both children if they were to be removed from the foster

mother’s care. When asked whether he thought family reunification was a “viable

option” for S.R. and L.R., he said, “No.”

¶30 The juvenile court’s order reflects it carefully considered the complex

issues involved in determining the children’s best interests. It made specific factual

findings in this regard, noting the competing interests. The court acknowledged the bond

that existed between the children and their parents, but weighed that against the bond

between them and the foster mother. The court also noted the difficulty posed by the

foster mother’s plan to relocate. Ultimately, however, the court weighed the evidence

and, exercising its discretion soundly, determined the children’s best interests would be

served by terminating the rights of their parents so they could be adopted by the foster

mother.

¶31 The juvenile court, not this court, is “in the best position to weigh the

evidence, judge the credibility of the parties, observe the parties, and make appropriate

factual findings.” In re Pima Cnty. Juv. Action No. 93511, 154 Ariz. 543, 546, 744 P.2d

455, 458 (App. 1987). Consequently, we will not reweigh the evidence or substitute our

judgment for that of the juvenile court. Jesus M., 203 Ariz. 278, ¶ 4, 53 P.3d at 205.

Bennigno is essentially asking us to reweigh the evidence that was before the juvenile

court and urges us to reach a different conclusion about the children’s best interests. We

have no basis for doing so. Rather, we find there was more than reasonable evidence to

support the court’s findings and therefore adopt its ruling. See id. ¶ 16.

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¶32 For the reasons stated herein, we affirm the juvenile court’s order

terminating Bennigno’s parental rights to S.R. and L.R.

/s/ Virginia C. Kelly
VIRGINIA C. KELLY, Presiding Judge

CONCURRING:

/s/ Peter J. Eckerstrom
PETER J. ECKERSTROM, Judge

/s/ Philip G. Espinosa
PHILIP G. ESPINOSA, Judge

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