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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
JOHNNY L., Appellant,
v.
DEPARTMENT OF CHILD SAFETY,1 M.L., M.L., M.L., Appellees.
No. 1 CA-JV 14-0087
FILED 1-15-2015
Appeal from the Superior Court in Maricopa County
No. JD509989
The Honorable Aimee L. Anderson, Judge
AFFIRMED
COUNSEL
Maricopa County Public Advocate, Mesa
By Suzanne Sanchez
Counsel for Appellant
Arizona Attorney General’s Office, Mesa
By Eric K. Knobloch
Counsel for Appellee Department of Child Safety
1 Pursuant to S.B. 1001, Section 157, 51st Leg., 2nd Spec. Sess. (Ariz.
2014) (enacted), the Department of Child Safety (“DCS”) is substituted for
the Arizona Department of Economic Security in this matter. See ARCAP
27. For ease of reference, we refer to DCS throughout this decision.
JOHNNY L. v. DCS et al.
Decision of the Court
MEMORANDUM DECISION
Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge Patricia A. Orozco joined.
B R O W N, Judge:
¶1 Johnny L. (“Father”) appeals the juvenile court’s order
terminating his parental rights to his three daughters, M.L., M.L., and M.L.
(collectively, “the children”). He challenges the sufficiency of the court’s
findings supporting the grounds for termination and the court’s best
interests’ determination. For the following reasons, we affirm.
BACKGROUND
¶2 The children, born in 2007, 2008, and 2009, are the biological
children of Father and Kedi L. (“Mother”).2 From the time the children
were very young, they were placed in the care of their maternal
grandparents through a guardianship. In December 2011, DCS received a
report that the children had been abused by their grandfather and the
children were temporarily placed with another relative. The abuse
allegations were unsubstantiated and the children were returned to the care
of their grandfather and his mother, with whom he now lived.
¶3 In February 2012, the juvenile court granted Mother’s request
to terminate the guardianship. However, in March 2012, DCS received a
report that the children remained in the care of their grandfather, and that
Mother and Father were using methamphetamines and engaging in
domestic violence in the presence of the children. DCS took the children
into care and filed a petition alleging they were dependent as to Mother
based on neglect and substance abuse, and as to Father based on neglect,
domestic violence, and substance abuse. The juvenile court subsequently
found the children dependent as to Father and Mother, and approved a case
plan of family reunification. In furtherance of the case plan, DCS offered
Father individual counseling, substance abuse treatment through TERROS,
a psychological evaluation, substance abuse urinalysis testing through
2 The juvenile court previously terminated Mother’s parental rights to
the children; however, Mother is not a party to this appeal.
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JOHNNY L. v. DCS et al.
Decision of the Court
TASC, and parent aide services. The children were again placed with their
grandfather and great-grandmother.3
¶4 Between June and August 2012, Father tested negative on all
required urinalysis testing except for one occasion when he missed his
required test. He completed his substance abuse treatment through
TERROS, but did not engage in relapse prevention services. In June 2013,
Father twice tested positive for methamphetamine from random urinalysis
testing. In October 2013, Father was arrested for a domestic violence
offense and resisting arrest. DCS then moved to terminate Father’s parental
rights to the children, alleging that (1) Father was unable to discharge his
parental duties due to a history of chronic drug abuse pursuant to Arizona
Revised Statutes (“A.R.S.”) section 8-533(B)(3), and (2) he was unable to
remedy the circumstances that caused his children to be in out-of-home
placement for more than fifteen months pursuant to A.R.S. § 8-533(B)(8)(c).
¶5 The juvenile court held a one-day contested severance
hearing in March 2014. Carin Patchin, a DCS case manager, testified that
Father was not compliant with the parent aide services DCS had provided
and he had been unable to maintain stable housing or income. Patchin also
expressed concern that Father had not remedied his substance abuse
problem. Patchin further testified that the children’s current placement was
meeting all of their physical, social, educational and emotional needs and
desired to adopt them, and therefore termination of Father’s parental rights
was in the children’s best interests.
¶6 Father testified to having four prior felony convictions, two of
which he attributed to his use of methamphetamine. Father also
acknowledged that he tested positive for methamphetamine several times
since DCS initiated dependency proceedings in March 2012. Father
disclosed that he was anticipating a two-and-a-half year prison sentence
after pleading guilty to one count of disorderly conduct and one count of
resisting arrest, both class 6 felonies, arising from his October 2013 arrest.
Because of his impending incarceration, Father conceded he would be
unable to provide the children with a stable home.
¶7 Following closing arguments, the juvenile court found that
DCS made reasonable efforts to provide Father with services to address his
drug abuse, but he tested positive for illegal substances despite completing
3 In January 2013, DCS received a second report alleging that
grandfather had abused the children. DCS investigated and found no
evidence of abuse.
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JOHNNY L. v. DCS et al.
Decision of the Court
several substance abuse programs. The court determined there were
“reasonable grounds to believe that [Father’s] substance abuse . . . will
continue for a prolonged indeterminate period of time” based upon
Father’s June 2013 positive urinalysis test, his failure to re-engage in
treatment, and his admission that the longest he had been “clean” was
during his incarceration.
¶8 Regarding fifteen months’ time in care, the juvenile court
found that the children had been in out-of-home placement for two years
at the time of the severance hearing. The court also found that Father had
not complied with parent aide services since his relapse in June 2013, and
that reunification would be unlikely in the near future because Father was
currently in custody anticipating a two-and-a-half year prison sentence.
The court determined that termination of Father’s parental rights would be
in the children’s best interests because the children are adoptable and
deserving of “permanency and stability in a safe, crime free, drug free
home.”
¶9 The juvenile court restated its findings in a signed minute
entry and directed DCS to submit “Findings of Facts, Conclusions of Law,
and Order” (“Findings of Fact”) within 10 days. Father filed a timely notice
of appeal from that signed minute entry, before DCS had submitted its
Findings of Fact as directed. DCS later submitted its Findings of Fact, which
stated that DCS proved by clear and convincing evidence grounds for
termination on both grounds alleged in the motion, but the factual findings
related only to substance abuse. Father filed his opening brief in this court
challenging the sufficiency of the factual findings as contained in the DCS
Findings of Fact. DCS successfully moved to stay the appeal to permit the
filing of its amended Findings of Fact addressing fifteen months’ time in
care. After DCS submitted its amended Findings of Fact, and after the
amended Findings of Fact were entered by the juvenile court, Father filed a
supplemental notice of appeal and an amended opening brief.
DISCUSSION
¶10 To terminate parental rights, the juvenile court must find by
clear and convincing evidence the existence of at least one of the statutory
grounds for termination enumerated in A.R.S. § 8–533(B) and must find by
a preponderance of the evidence that termination would serve the child’s
best interests. Ariz. R.P. Juv. Ct. 66(C); Michael J. v. Ariz. Dep’t of Econ. Sec.,
196 Ariz. 246, 249, ¶ 12, 995 P.2d 682, 685 (2000). To establish the statutory
grounds, DCS was required to prove by clear and convincing evidence that
Father (1) is unable to discharge his parental responsibilities because of
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JOHNNY L. v. DCS et al.
Decision of the Court
chronic abuse of controlled substances, and there are reasonable grounds
to believe that the condition will continue for a prolonged indeterminate
period; or (2) the children were in an out-of-home placement for at least
fifteen months under a court order, Father had been unable to remedy the
circumstances causing the out-of-home placement, and there is a
substantial likelihood that Father will not be capable of exercising proper
and effective parental care and control in the near future. A.R.S. § 8-
533(B)(3), (B)(8)(c).
A. Sufficiency of Findings
¶11 Father argues that the juvenile court failed to make specific
findings of fact to support the grounds for termination, as required by
Arizona Rules of Procedure for Juvenile Court 66(F)(2)(a). See Ruben M. v.
Ariz. Dep’t of Econ. Sec., 230 Ariz. 236, 240, ¶ 22, 282 P.3d 437, 441 (App.
2012) (explaining that the juvenile court “must specify at least one factual
finding sufficient to support each of those conclusions of law” to comply
with Rule 66(F)(2)(a)). However, Father has waived this argument because
he failed to raise any objection to the sufficiency of findings in the juvenile
court. See Christy C. v. Ariz. Dep’t of Econ. Sec., 214 Ariz. 445, 452, ¶ 21, 153
P.3d 1074, 1081 (App. 2007) (holding that parent waived argument that
juvenile court failed to make individualized findings as to the grounds for
termination by failing to object in juvenile court).
¶12 Even without waiver, Father’s argument is misplaced because
he focuses only on the Findings of Fact submitted by DCS and fails to
recognize the entirety of the juvenile court record. The court made specific
findings on the record at the conclusion of the contested severance hearing
and granted DCS’s motion for termination of Father’s parental rights based
on A.R.S. § 8-533(B)(3) (substance abuse) and A.R.S. § 8-533(B)(8)(c) (fifteen
months’ time in care). In its subsequent minute entry, the court made
additional findings, including: (1) DCS made reasonable efforts to provide
Father with services to address his drug abuse, but Father repeatedly tested
positive for illegal substances despite completing several substance abuse
programs; (2) Father abused methamphetamine and that “[t]here are
reasonable grounds to believe that [Father’s] substance abuse . . . will
continue for a prolonged indeterminate period of time”; (3) the children had
been in out-of-home placement for two years at the time of the termination
hearing; and (4) that reunification would be unlikely in the near future
because Father was anticipating a sentence of two-and-a-half years in
prison. Thus, even if Father did not waive his argument regarding the
sufficiency of the court’s findings, the record plainly indicates that the court
made ample factual findings supporting termination.
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JOHNNY L. v. DCS et al.
Decision of the Court
B. Best Interests
¶13 Father also argues the evidence presented does not support
the juvenile court’s finding that termination is in the best interests of the
children. Specifically, he argues that the court, in finding that the children
were in need of a safe and stable home, was required to consider the
proposed adoption plan. Because the caseworker had testified that the case
plan was to have the children’s grandfather adopt them, and because
evidence showed that grandfather had been previously accused of abusing
the children, Father contends there was no “valid” evidence to support the
finding that adoption would provide the children with safety and stability.
¶14 Whether termination of parental rights is in the child’s best
interests is a question of fact. Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz.
278, 282, ¶ 13, 53 P.3d 203, 207 (App. 2002). We review the evidence and
draw all reasonable inferences in the light most favorable to upholding the
juvenile court’s factual findings. Id. Termination of the parent-child
relationship is in the child’s best interest if the child will benefit from the
termination or would be harmed if the relationship continued. Bobby G. v.
Ariz. Dep’t of Econ. Sec., 219 Ariz. 506, 511, ¶ 15, 200 P.3d 1003, 1008 (App.
2008). “One factor the court may properly consider in favor of severance is
the immediate availability of an adoptive placement. Another is whether
an existing placement is meeting the needs of the child.” Audra T. v. Ariz.
Dep’t of Econ. Sec., 194 Ariz. 376, 377, ¶ 5, 982 P.2d 1290, 1291 (App. 1998)
(internal citation omitted).
¶15 DCS case manager Patchin opined that termination and
adoption by grandfather was in the children’s best interest because (1) they
had been placed with grandfather for most of their lives; (2) he was meeting
all of their physical, social, educational, and emotional needs; and (3) the
children would benefit from the stability of a permanent placement.
Although grandfather had been accused of abusing the children on two
separate occasions, DCS submitted multiple reports showing that it had
investigated both allegations and found no evidence of abuse. See Jesus M.,
203 Ariz. at 280, ¶ 4, 53 P.3d at 205 (“The juvenile court, as the trier of fact
in a termination proceeding, is in the best position to weigh the evidence,
observe the parties, judge the credibility of witnesses, and make
appropriate findings.”). The juvenile court found that the children are
adoptable children in need of “permanency and stability which [Father] has
been unable to provide” and are in a relative placement willing to adopt
them. Based on the evidence presented at the termination hearing, the
juvenile court’s best interests finding is supported by the record.
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JOHNNY L. v. DCS et al.
Decision of the Court
CONCLUSION
¶16 We affirm the juvenile court’s order terminating Father’s
parental rights to the children.
:ama
7