Alan C. v. Dcs

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ALAN C., Appellant,

v.

DEPARTMENT OF CHILD SAFETY, K.C., A.C., Appellees.

No. 1 CA-JV 17-0476
FILED 5-31-2018

Appeal from the Superior Court in Maricopa County
No. JD32428
The Honorable Jo Lynn Gentry, Judge

AFFIRMED

COUNSEL

Maricopa County Public Advocate, Mesa
By Suzanne W. Sanchez
Counsel for Appellant

Arizona Attorney General’s Office, Phoenix
By Dawn R. Williams
Counsel for Appellee Department of Child Safety
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MEMORANDUM DECISION

Judge Paul J. McMurdie delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge David D. Weinzweig joined.

M c M U R D I E, Judge:

¶1 Alan C. (“Father”) appeals the superior court’s order
terminating his parental rights to his two children. For the following
reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 Father and Lori C. (“Mother”) are the biological parents of
K.C., born in November 2012, and A.C., born in November 2013 (the
“Children”). 1 The Department of Child Safety (“DCS”) placed the Children
in its temporary physical custody on January 4, 2016, after Mother and
Father were arrested for Father having shot a firearm from his vehicle at
another vehicle traveling on I-40. Father stated he believed the passengers
in the other vehicle were involved in sexual trafficking of children, and
were attempting to take his children. Father was a prohibited possessor of
a firearm at the time, and was impaired by alcohol. K.C. and A.C. were
traveling in the car with Mother and Father, along with two of Mother’s
minor brothers. Contrary to Father’s belief, the other vehicle carried a
vacationing family of four, including two children. Mother and Father were
charged with four counts of aggravated assault, drive-by shooting, four
counts of felony endangerment, and criminal damage. Soon after his arrest,
Father was extradited to Virginia for a probation violation and sentenced
to serve a two-year sentence for kidnapping and abduction, with the
Arizona charges still pending.

1 Mother’s parental rights to the Children were severed, and she is not
a party to this appeal.

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¶3 The Children were found dependent by May 2016. They were
placed in maternal great-grandmother’s care by November 2016.2

¶4 In February 2017, DCS moved to sever Father’s parental rights
to both Children based on willful abuse, mental illness, a history of chronic
abuse of dangerous drugs, length of incarceration for felony conviction, and
out-of-home placement for nine months and fifteen months or longer. See
Ariz. Rev. Stat. (“A.R.S.”) § 8-533(B)(2), (3), (4), (8)(a), (8)(c). At a severance
hearing in August 2017, Dr. James Thal, a psychologist, testified he
diagnosed Father with a rule-out antisocial personality disorder and a
rule-out delusional disorder, both placing the Children at risk of harm if
they were returned to Father’s care. A DCS case worker testified Father
never participated in individual counseling, as recommended, and never
mitigated DCS’s concerns leading to the Children’s removal from his care.

¶5 After the severance hearing, the superior court terminated
Father’s parental rights to both Children. Other than the willful abuse
allegation, the court found DCS proved by clear and convincing evidence
the alleged statutory grounds for termination, and that severance was in the
Children’s best interests by a preponderance of the evidence. Father timely
appealed, and we have jurisdiction pursuant to A.R.S. § 8-235(A) and
Arizona Rule of Procedure for the Juvenile Court 103(A).

2 In its initial severance order, the superior court stated the Children
were placed with their paternal grandparents. The court later issued a nunc
pro tunc order correcting a clerical error and finding the Children were
placed with their maternal great-grandmother. No substantive changes
were made to the initial order. See Judgment, Black’s Law Dictionary (10th
ed. 2014) (a nunc pro tunc order or judgment is “a procedural device by
which the record of a judgment is amended to accord with what the judge
actually said and did, so that the record will be accurate”); see also Valley
Nat. Bank of Ariz. v. Meneghin, 130 Ariz. 119, 124 (1981) (“A judgment nunc
pro tunc is by its very nature retroactive.”).

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DISCUSSION

¶6 The right to custody of one’s child is fundamental, but not
absolute. Michael J. v. ADES, 196 Ariz. 246, 248, ¶¶ 11–12 (2000). Arizona
statutes require the superior court to make two findings before ordering
severance of parental rights. Kent K. v. Bobby M., 210 Ariz. 279, 280, ¶ 1
(2005); see also A.R.S. § 8-533(B). First, the court must find at least one
statutory ground warranting severance by clear and convincing evidence.
A.R.S. § 8-537(B); Crystal E. v. DCS, 241 Ariz. 576, 577, ¶ 5 (App. 2017). Then,
the court must determine by a preponderance of the evidence that
termination of the parent-child relationship is in the child’s best interests.
Shawanee S. v. ADES, 234 Ariz. 174, 176–77, ¶ 9 (App. 2014). We review a
court’s severance determination for an abuse of discretion. Mary Lou C. v.
ADES, 207 Ariz. 43, 47, ¶ 8 (App. 2004). 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,” ADES v. Oscar O., 209
Ariz. 332, 334, ¶ 4 (App. 2004), we view the facts in the light most favorable
to affirming the superior court’s order “unless no reasonable evidence
supports those findings,” Jennifer B. v. ADES, 189 Ariz. 553, 555 (App. 1997).

¶7 On appeal, Father has not challenged four of the five statutory
grounds supporting the court’s termination of his parental rights or the
court’s findings of fact supporting those grounds. He thus has conceded the
validity of the findings and waived any argument on appeal. See Britz v.
Kinsvater, 87 Ariz. 385, 388 (1960) (by failing to challenge the accuracy of
findings, a party concedes the accuracy on appeal); Crystal E., 241 Ariz. at
578, ¶ 6 (issues not raised in an opening brief are waived).

I. The Termination of Father’s Parental Rights Is in the Children’s
Best Interests.

¶8 Father argues the court’s best-interests finding was not
supported by, or was contrary to, the evidence in the record because (1)
DCS failed to place the Children together at all times; (2) the court order
directed the adoption plan toward paternal grandparents, not maternal
great-grandmother; (3) the court failed to make findings regarding the
actual adoption plan with maternal great-grandmother; (4) Father had a
strong bond with the Children prior to dependency and participated in

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visitations with great success; and (5) evidence did not establish Father
would remain incarcerated for a substantial period of time.3

¶9 Once the court finds a parent unfit under at least one statutory
ground for termination, “the interests of the parent and child diverge,” and
the court proceeds to balance the unfit parent’s “interest in the care and
custody of his or her child . . . against the independent and often adverse
interests of the child in a safe and stable home life.” Kent K., 210 Ariz. at 286,
¶ 35. “[A] determination of the child’s best interest must include a finding
as to how the child would benefit from a severance or be harmed by the
continuation of the relationship.” Maricopa County Juv. Action No. JS-500274,
167 Ariz. 1, 5 (1990). The superior court must consider the totality of the
circumstances when making a best-interests finding. Dominique M. v. DCS,
240 Ariz. 96, 99, ¶ 12 (App. 2016).

¶10 In August 2017, the Children had been living together with
their maternal great-grandmother for almost a year. She had been meeting
their needs and wished to adopt them. DCS’s case manager testified both
Children had no developmental, behavioral, or special needs and were
adoptable. The case manager also testified adoption would provide them
with stability and long-term permanency because maternal
great-grandmother intended to move to Virginia to raise the Children near
extended family. The court found a specific adoption plan existed and
severance was in the Children’s best interests. We find no error. See
Demetrius L. v. Joshlynn F., 239 Ariz. 1, 4, ¶¶ 12, 14 (2016) (“When a current
placement meets the child’s needs and the child’s prospective adoption is
otherwise legally possible and likely,” the superior court may find that
severance is in the child’s best interests.).

3 Father’s argument that DCS failed to place the Children together at
all times is irrelevant to the court’s best-interests finding, and we decline to
consider it on appeal. See State v. Hardwick, 183 Ariz. 649, 657 (App. 1995)
(once the court found grounds for resolution, it declined to reach the
remaining issues). Further, because the court issued a nunc pro tunc order,
in which it addressed an adoption plan with maternal great-grandmother,
Father’s second argument is moot. See Arpaio v. Maricopa County Bd. of
Supervisors, 225 Ariz. 358, 361, ¶ 7 (App. 2010) (“A case becomes moot when
an event occurs which would cause the outcome of the appeal to have no
practical effect on the parties.”). In its nunc pro tunc order, the court also
specifically found an adoption plan with maternal great-grandmother
existed and made related findings, contrary to Father’s third argument.

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¶11 Father argues he had a strong bond with the Children prior to
dependency and regularly participated in visitations with great success.
Evidence of a parent-child bond does not necessarily preclude a finding that
severance would serve the child’s best interests. See Bennigno R. v. ADES,
233 Ariz. 345, 351, ¶ 30 (App. 2013) (the termination of parental rights
affirmed despite evidence of children’s bond with parents). Here, the court
received and considered the evidence of Father’s bond with the Children.
See Dominique M., 240 Ariz. at 98–99, ¶ 12. We do not reweigh evidence on
appeal. See Oscar O., 209 Ariz. at 334, ¶ 4.

¶12 Father further argues the evidence did not establish that he
would remain incarcerated for a substantial period of time. To the extent
Father opposes the court’s finding pursuant to A.R.S. § 8-533(B)(4), we do
not address his argument because at least four other statutory grounds
remain unchallenged and one statutory ground is sufficient to support
termination. See Crystal E., 241 Ariz. at 577, ¶ 5. To the extent Father asserts
the court erred by considering the length of his sentence in determining the
children’s best interests, the “total length of time the parent is absent from
the family” is determinative, and the court “must consider the many facts
and circumstances specific to each case.” Jesus M., 203 Ariz. at 281, ¶¶ 8–9.

¶13 In August 2017, when the Children had already been in an
out-of-home placement for almost 20 months, Father testified his earliest
release from imprisonment in Virginia was October 2018. Upon returning
to Arizona, Father may face serious criminal charges related to his January
2016 arrest. Dr. Thal also testified that “even if [Father] got out [of prison]
tomorrow there’s a number of things he’d have to . . . demonstrate” to show
he can safely parent the Children. These behavioral changes can take
substantial time to establish. Furthermore, Father made no efforts to
continue his relationship with the Children after his incarceration.

¶14 Father argues the court’s findings that the Children are
“adoptable,” that their needs are being met in placement, and “that they
would gain permanency and stability through” termination and adoption
are insufficient to support a best-interests determination. For support,
Father relies on Alma S. v. DCS, 778 Ariz. Adv. Rep. 24 (App. 2017) (review
granted May 8, 2018), a case decided after Father’s rights to the Children

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were severed. 4 In Alma S., this court emphasized that adoptability and a
placement’s meeting of a child’s needs, without more, are insufficient to
establish a best-interests finding. 778 Ariz. Adv. Rep. at 32, ¶¶ 36–38.
However, in that case, the parent “required little or no counseling on how
to improve her parenting skills,” a bond existed between the parent and her
children, and if the parent’s rights were severed, the children would have
been split up. Id. at ¶ 37. Those facts are not present here. First, Dr. Thal
testified Father’s prospects of “parenting children in the foreseeable future
were worrisome.” Second, Father failed to continue his relationship with
the Children while incarcerated. Finally, the Children are placed together
and will, most likely, remain together once adopted by the maternal
great-grandmother.

¶15 The superior court is in the best position to weigh the
evidence and sufficient evidence supported the court’s findings. See Oscar
O., 209 Ariz. at 334, ¶ 4. The superior court did not abuse its discretion by
finding severance was in the Children’s best interests.

4 DCS argues Alma S. is not yet in effect because this court has
not issued a mandate in that case. This contention fails to appreciate the
difference between the law of the case and a legal precedent binding on all
lower courts. Generally, the lower court must follow the mandate of the
higher court in the same case, a principle subordinate to the “law of the
case.” Jordan v. Jordan, 132 Ariz. 38, 40 (1982); see also In re Marriage of Flores
& Martinez, 231 Ariz. 18, 21, ¶ 11 (App. 2012) (“The requirement for
issuance of the mandate avoids the risk that the trial and appellate courts
could assume jurisdiction of the same case simultaneously.” (emphasis
added)). On the other hand, a published opinion is “a written disposition
of an appeal that is intended as precedent.” ARCAP 28(a)(1). An opinion
becomes binding precedent when it is published, not when a mandate
issues. See Francis v. Ariz. Dep’t of Transp., 192 Ariz. 269, 271, ¶ 11 (App.
1998). Under that principle, and contrary to DCS’s argument, our appellate
opinion is binding precedent even if review is pending before the Arizona
Supreme Court. Id. at ¶¶ 10–11.

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CONCLUSION

¶16 For the foregoing reasons, we affirm the superior court’s
order terminating Father’s parental rights to K.C. and A.C.

AMY M. WOOD • Clerk of the Court
FILED: AA

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