Steven B./April B. et al v. ADES et al
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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 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE ) STEVEN B.; APRIL B.; SOLOMON B.; ) EZEKIEL B.; and FELICIA B.; ) ) Appellants, ) ) v. ) ) ARIZONA DEPARTMENT OF ECONOMIC ) SECURITY; BENJAMIN B.; REBEKAH) ANN B.; and SHAUN B.; ) ) ) Appellees. No. DIVISION ONE FILED: 10-14-2010 RUTH WILLINGHAM, ACTING CLERK BY: GH 1 CA-JV 10-0066 DEPARTMENT E MEMORANDUM DECISION (Not for Publication Ariz. R.P. Juv. Ct. 103(G); ARCAP 28) Appeal from the Superior Court in Maricopa County Cause No. JD17019 The Honorable Dawn M. Bergin, Judge AFFIRMED Jennifer Perkowski Attorney for Appellant Steven B. Robert D. Rosanelli Attorney for Appellants/Minor Children Terry Goddard, Arizona Attorney General By Amanda L. Holguin, Assistant Attorney General Attorneys for Appellees H A L L, Judge Mesa Phoenix Mesa ¶1 Steven B. (Father) appeals the juvenile court s order severing his parental rights to Felicia B., Ezekiel B., Solomon B., and April B. (collectively, the children).1 For the reasons that follow, we affirm. BACKGROUND2 ¶2 Father and Juanita B. (Mother)3 are the biological parents of Felicia, born October 3, 1997, Ezekiel, born October 26, 1998, Solomon, born September 30, 1999, and April, born August 20, 2000. In April 2008, Child Protective Services (CPS) received its eleventh report of physical abuse or neglect filed against Father or Mother substantiated for abuse. since 1999, two of which had been Ezekiel had a bruise on his right cheek caused by Father hitting him and Father instructed Ezekiel and Solomon to explain that the bruise was the result of a football injury. from Father s agreement Ezekiel and Solomon were temporarily removed home. stating Father he would signed not a voluntary physically foster care discipline the 1 The juvenile court also terminated Father s rights to three other children in this case, Rebekah B., Shaun B., and Benjamin B. However, they are not subject to this appeal and Father does not challenge the court s order terminating his rights to them. 2 We review the evidence and draw all reasonable inferences in the light most favorable to upholding the juvenile court s factual findings. Jesus M. v. Ariz. Dep t of Econ. Sec., 203 Ariz. 278, 282, ¶ 13, 53 P.3d 203, 207 (App. 2002). 3 Mother s parental rights to the children severed, but she is not a party to this appeal. 2 have also been children and Ezekiel and Solomon were returned to Father s care in May 2008.4 2008 that Solomon approximately struck with colored CPS, however, received a twelfth report in July six a had inches belt bruises a on by purple by on his inches in size well as four Father his bruise chest as from right thigh from being scattered light Father s punches. CPS attempted to take Ezekiel and Solomon into custody, but Father refused to release the two boys for ninety minutes and eight police officers were called to the scene in order to peacefully remove the two boys from Father s home. ¶3 Thereafter, Security (ADES) filed the Arizona Department a dependency petition of in Economic July 2008, alleging that Father was unable to parent due to physical abuse and domestic violence. Regarding the physical abuse, the children were observed an alarming number of times with large, purple, painful bruising and scratches from being hit with a belt and other objects. The court held a temporary custody hearing and Father testified that [b]ased on my religious [and First Amendment] right to use a belt or a rod to discipline my children, yes, I have disciplined them with a belt when needed. 4 Mother and Father separated in 2004 and the other children were living with Mother at the time of the eleventh CPS report. Mother retained physical custody of the children at various points throughout this proceeding, but the children were ultimately removed from her home and currently reside in foster homes. 3 The juvenile court made the children temporary wards of the court and committed them to the legal care, custody and control of ADES. ¶4 Father was offered classes, psychological parent evaluation, aide and services, counseling parenting with anger management and domestic violence components. Father refused all services or and also refused to speak with participate in services involving a female worker. ¶5 as The juvenile court held a contested dependency hearing to Father in December 2008. Father testified that he instructed Ezekiel and Solomon to lie and not tell anybody that Father had inflicted the bruises on Ezekiel. Father further testified that although he was advised and understood that his refusal to termination participate of his in parental services rights to could result the children, in he the was [n]ot willing to do [ADES] State-funded services to get [his] children back. Father also stated that he had not sent his children any letters, cards or gifts since they had been put in out-of-home placements. The court found that Father has physically abused his children on multiple occasions. He hit his son Solomon with a belt on his right thigh, leaving a large bruise. The police were called and found additional bruises on Solomon s chest. [Father] punched his son Ezekiel, causing a dark bruise on his face. [Father] continually referred to the blow to Ezekiel s face as an accident because he intended to hit the child in the chest, not the face. This logic is fundamentally 4 flawed and quite troubling. [Father] intentionally hit Ezekiel with the amount of force required to cause the large and painful facial bruise. That he meant to land the blow on the child s chest instead of his face is completely immaterial, and [Father s] continued assertion that the blow was an accident demonstrates his inability to recognize what constitutes physical abuse and his intentional endangerment of the children. Further, a bruise from a blow on the chest would not be visible, whereas one on the face would be. The Court is therefore concerned that [Father] may intentionally hit his children in places where marks or bruises would not be visible. He also admitted that he told his sons to say that the bruise were football injuries. [Father] made clear that he believes he has a fundamental right to physically discipline his children, including with belts. The court concluded that ADES had proven by a preponderance of the evidence that the children s home was unfit by reason of abuse, neglect, cruelty or depravity by Father and that the children were dependent as to Father. ¶6 When Ezekiel and Solomon were first removed from their Father s home in behaviors in their July 2008, foster they home. exhibited Solomon very was troubling touching and showing his privates to [his sister] and Ezekiel was caught humping [his sister] in the pool with their bathing suits on. Ezekiel and Solomon grabbed the bottom of the foster mother s 12-year-old daughter. . . . Ezekiel was caught stealing money from the foster mother. [Ezekiel and Solomon] were defiant and refused to follow Administration determined that for the rules in Children, Ezekiel has the Youth been 5 home. and behaving However, Families better the (ACYF) now, is attending school regularly, doing well counseling, and medication monitoring.5 better daily at his foster in school, receiving Solomon is also getting home, receiving medication monitoring6, counseling, attending school regularly, and doing well in school. ¶7 Letty Tan Fermo, M.D., examined April in December 2008 and determined that when April had first been removed from her home, she was frustrated. noted to be defiant, argumentative, and She is requiring a lot of supervision . . . [s]he lies and take[s] things that do not belong to her. However, Dr. Fermo determined that her time away from Father and Mother has led April to slowing improv[e] and respond[] to limits and structure. receive April is not determined that distracted, oppositional, unable she any Dr. counseling. taking Fermo also although to has Felicia focus, responded medications, examined was structure does Felicia initially disruptive, to but easily defiant and and and limits. Socially she has done well and is improving and her mood is 5 Ezekiel was diagnosed with Attention Deficit Hyperactivity Disorder (ADHD), not otherwise specified (NOS), Mood Disorder, NOS, and Oppositional Defiant Disorder. 6 Solomon was diagnosed with ADHD, combined type, and Disruptive Behavior Disorder, NOS. 6 relatively stable. Felicia also receives medication monitoring7 and counseling. ¶8 in ACYF issued its progress report to the juvenile court January 2009, which included some of the aforementioned information on the children, and concluded that [t]he children have been placed in a safe, age appropriate, least restrictive foster homes. The children are being cared for, and their medical and education needs are being met. ¶9 Father eventually agreed to supervised visitations with his children and the first visit took place in February 2009, approximately seven months after the children s removal from their home. ACYF reported that Father s visitation with the children required an intervention in April 2009 due to him advising the children they did not need medication and they did not have to take it and attempted to show them a video as to why children do not need medication. Due to [Father s] lack of cooperation and advising the children of information that could be harmful to them it is recommended that the case plan be changed on [Father] to severance. ACYF also disclosed to the juvenile court that Father has been inappropriate during his visit [with the children] and has gone against court orders. Specifically, Father instructed April and Felicia to write letters to the court that they want a future with their dad and told April she does not need to take 7 Felicia has been diagnosed with ADHD, predominantly inattentive type. 7 her medications. He also snuck copies of a court document into April s and Felicia s bags and gave them his business card with a direct phone number, despite the fact that Father was not allowed to have unsupervised phone contact with the children. Father also asked Felicia about the current case and when he was informed by a CPS case aide that he was not allowed to discuss the case during visitation, Father got upset, saying he does not agree and he should be able to speak with his children about reality. Father continued to bring up topics against visitation guidelines, and was redirected by the case aide. Therefore, CPS temporarily discontinued visitations between Father and the children due to his inappropriate behavior and unwillingness to follow the [visitation] guidelines. ¶10 The Foster Care Review Board issued findings and recommendations for the court and respectfully request[ed] that the Court consider terminating [Father s] parental rights, if Father does not participate in the required services or make the behavioral changes necessary to appropriately parent the children. ¶11 of On July 22, 2009, ADES filed a motion for termination the parent-child children. Father had relationship between Father and the The motion was subsequently amended and alleged that abandoned the children, Arizona Revised Statutes (A.R.S.) section 8-533(B)(1) (Supp. 2009), willfully abused or 8 failed to protect substantially the neglected children, or A.R.S. willfully § refused 8-533(B)(2), to remedy the circumstances that caused the children to remain in an out-ofhome placement for nine months or longer, A.R.S. § 8- 533(B)(8)(a), and had been unable to remedy the circumstances that caused Ezekiel and Solomon to remain in an out-of-home placement for fifteen months or longer, A.R.S. § 8-533(B)(c). ¶12 The juvenile court conducted a contested severance hearing over several days in October 2009, December 2009, and January 2010. that a Father testified that he believe[s] as a parent parent has the right to physically discipline their children if necessary and that he has expanded his viewpoint to say that physical discipline is a last case scenario, that it s not necessary something can be that is planned, applied. Father but something testified that that he if only physically disciplines his male children, not female children. Father acknowledged signing a foster care agreement in April 2008, in which he agreed not to physically discipline the children, but argued at the hearing that he signed the agreement under duress and therefore had the right to violate it. Father admitted that he refused to participate in any type of service offered by CPS, including, but anger management and not limited counseling, including counseling. Finally, Father testified that he would not provide 9 domestic to violence his children with medications, even if it were a directive of CPS or the juvenile court. ¶13 CPS Specialist Rebecca Kluge testified that despite being offered parent aide services, counseling, family preservation, family builders, anger management, visitation, and housing subsidy, Father refused to participate in any services except visitation, and referred to counseling and parent aide services as pseudoscience and opinionative. Kluge further stated that a bonding assessment between the children and Father would not have been helpful because a lot of kids who are in very violent homes, they re Additionally, Kluge stated visitations worse. with Father, Specifically, really that their Ezekiel loyal once the behavior became to their children became very parents. started increasingly disrespectful, in particular to women. . . . [H]e was very aggressive, didn t want to listen to anyone and because Father instructed the children not to take their medications, Solomon began exhibiting negative behavior. Further, Father had improperly told Felicia and April they were going to return home by June 12, 2009 and when that failed to happen, the girls were very upset. They were aggressive, more aggressive than usual and April even expressed that she wanted to kill herself. Finally, Kluge said that she has personally observed Father s failure to follow court orders on a number of occasions, his 10 resistance to the children taking medications, and his refusal to work with a female parent aide or case manager. ¶14 Carol Chase, clinician, testified visitations with a Jewish that Father, Family after he stopped & Children s Solomon taking Services started his having medications. Chase stated that Solomon feels responsible for being in CPS care and Solomon explained to Chase that he was never going to say anything bad about [Father] ever again. She also testified that she would be concerned if the children failed to take their medications because it could result in mood swings, manic states of mind, elevated thoughts, and thoughts that the rules do not apply to them. ¶15 Annette Morrison, Jewish Family & Children s Services therapist to Felicia and April, concurred about the benefits of taking medications, as evidenced by the fact that Felicia s medication for ADHD helped her both in school and to feel less agitated and restless. ¶16 Mother testified at the hearing that Father physically, verbally, emotionally abusive towards her. was She also stated that Father physically disciplined the children the same, regardless of whether they were male or female and he used belts to hit all the children. Mother gave an example of Father hitting Felicia in the face with a belt buckle in 2004. 11 ¶17 The parties agreed to allow the children s counsel and the guardian ad litem to question Solomon, Ezekiel, and Felicia outside the presence of counsel Father s advisory counsel.8 that they would like to for CPS, ADES, Father and The three children each testified live with Father and did not want Father s parental rights terminated. ¶18 The juvenile court issued an extensive ruling and found that clear and convincing evidence demonstrated that the following four grounds existed for terminating Father s parental rights to the children: (1) the children were in an out-of-home placement for substantially a total neglected of or nine months willfully or longer; refused to Father remedy the circumstances that caused the children to be in an out-of-home placement; appropriate and ADES made reunification diligent services efforts to to Father, provide A.R.S. § the 8- 533(B)(8)(a); (2) Father willfully abused his children, A.R.S. § 8-533(B)(2); (3) Father abandoned the children and [f]ail[ed] to maintain a normal parental relationship with the child[ren] without just cause for a period of six months, A.R.S. §§ 8533(B)(1), -531(1); and (4) Ezekiel and Solomon were in an out- 8 Father represented himself throughout the termination hearing. However, an attorney was appointed by the court to serve as advisory counsel. 12 of-home placement for fifteen months or longer;9 Father was unable to remedy the circumstances that caused the out-of-home placement; there was a substantial likelihood that Father would not be capable of exercising proper and effective parental care and control; appropriate and ADES made reunification diligent services efforts to to Father, provide A.R.S. § the 8- 533(B)(8)(c). ¶19 The court also found by a preponderance of the evidence that terminating Father s parental rights was in the best interest of the children. The court noted it does not take lightly the desire of the older children to have [Father s] parental rights maintained. However, it is clear that [F]ather has emotionally manipulated these children and they would be at risk for serious physical and emotional injury from [F]ather if his rights are not terminated. The juvenile court therefore severed Father s parental rights to the children. ¶20 Father violated his timely right and appeals the and argues children s right the to State: freedom (1) of religion by having the children participate in psychological and psychiatric interventions, (2) did not make diligent efforts to reunite Father with the children, and (3) failed to prove that severance is in the best interest of the children. 9 The children The juvenile court did not consider any time the children spent in Mother s physical custody to be an out-of-home placement. 13 also timely appeal and present the sole issue of whether the court erred in finding that terminating Father s rights was in their best interest. Father solely We will first address the two issues that presented in his brief and then address the remaining issue that both Father and the children presented in their respective briefs.10 DISCUSSION ¶21 The relationship evidence severance juvenile only court upon demonstrates and that may finding at a least terminate that one preponderance the clear parent-child and statutory of severance is in the child s best interest. the convincing ground evidence for shows A.R.S. § 8-533(B); Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 22, 110 P.3d 1013, 1018 (2005). We will affirm the judgment unless the juvenile court abused its discretion by making factual findings [that] 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) (citations omitted). have made every [T]he juvenile court will be deemed to finding necessary to support the judgment. Maricopa County Juv. Action No. JS-8287, 171 Ariz. 104, 111, 828 P.2d 1245, 1252 (App. 1991) (citations omitted). 10 Because neither Father nor the children argue that the grounds the court found for terminating Father s parental rights were in incorrect, we will not discuss those grounds. 14 ¶22 Father first argues that the State violated his First Amendment right to religious freedom by having the children participate in psychological and psychiatric interventions. The State responds that because Father did not include this issue in his notice of appeal, this court lacks jurisdiction to consider the issue. We disagree with the State, because when reviewing an appeal from a final judgment, we have jurisdiction to hear intermediate or interlocutory orders involving the merits of the action and necessarily affecting the judgment. 11 A.R.S. § 12-2102(A) (2003); Dowling v. Stapley, 221 Ariz. 251, 263 n.12, ¶ 36, 211 P.3d 1235, 1247 n.12 (App. 2009). We do, however, agree with the State that because Father s parental rights were ultimately terminated and because we are affirming that ruling, Father no longer has any parental rights or right to contribute to the decisions made regarding the children s upbringing. See A.R.S. § 8-539 (2007); Diana H. v. Rubin, 217 Ariz. 131, 138 n.6, ¶ 32, 171 P.3d 200, 207 n.6 (App. 2007). ¶23 Next, Father contends that the State failed to make diligent efforts to reunite Father with the children. replies that because the court terminated Father s The State parental rights due to abuse and abandonment, and these two grounds do not require the court to make a finding that ADES made diligent efforts to reunite Father and the children, this argument is 11 Father presented this issue to the trial court. 15 moot. Although abuse and abandonment may not explicitly require the court to find that ADES made diligent efforts, the court also terminated Father s parental rights due to an out-of-home placement of nine months and fifteen months as to Solomon and Ezekiel, which do require a finding of diligent efforts. See A.R.S. §§ 8-533(B)(2), (1), therefore address this issue. -533(B)(8)(a), (c). We will Despite Father s contentions, the record demonstrates that ADES made ample attempts to provide Father with appropriate services. Father was offered parent- aide services, parenting classes, visitation, housing subsidy, family preservation, family builders, a psychological evaluation, and counseling with anger management and domestic violence services. components. He Father, eventually however, agreed to initially participate in refused all visitations with the children seven months after they were put in an out-ofhome placement. We therefore hold that ADES made diligent efforts to provide the appropriate services, but Father failed to comply by participating in these services. ¶24 Finally, Father and the children both maintain that it was not in the children s best interest to terminate Father s parental rights. In support of this ruling, the court found that the benefits to children include freeing them abusive parent as well as permitting them to be adopted. 16 from an ¶25 In considering the children s best interest, the juvenile court was required to determine how the children would benefit from the severance or be harmed by the continuation of their relationship with the parents. Maricopa County Juv. Action No. JS-500274, 167 Ariz. 1, 5, 804 P.2d 730, 734 (1990). Freeing a benefit. child from an abusive parent Id. at 6, 804 P.2d at 735. is an affirmative Further, a specific adoption plan is not a prerequisite to a finding regarding the children s best interest. Pima County Juv. Severance Action No. S-2462, 162 Ariz. 536, 539, 785 P.2d 56, 59 (App. 1989). ¶26 Rebekah Kluge and Carol Chase both testified that the children s behavior aggressive after Specifically, became they Solomon increasingly began began worse visitations refusing to take and with his more Father. medications based on Father s directive and April threatened suicide after Father lied to her about returning home. would be concerned if the children Chase also stated she failed to take their medications because it could result in negative behavior and thoughts. However, Father explicitly testified that he would not give the children medication if they were returned to his care, even if the court or CPS mandated it. Further, ACYF issued a report stating that Solomon s and Ezekiel s behavior significantly improved since being counseling, and taking medications. 17 in foster care, receiving ACYF concluded that [t]he children have been placed in a safe, age appropriate, least restrictive foster homes. The children are being cared for, and their medical and education needs are being met. Dr. Fermo also responded concluded that April and Felicia have both positively to the structure and limits provided in their foster home and through counseling and are improving socially. The record supports these opinions. ¶27 Father has repeatedly demonstrated violent and abusive tendencies towards intentionally failed the to children. participate recommended ADES services. Father in and has comply further with the Finally, the children are residing and prospering in their respective foster homes. Thus, although the children expressed both the desire to live with Father and not have his parental rights terminated, we cannot say the juvenile court erred by finding that termination of his rights was in the children s best interest. 18 CONCLUSION ¶28 For the foregoing reasons, we affirm the judgment terminating Father s parental rights to the children. __/s/______________________________ PHILIP HALL, Presiding Judge CONCURRING: _/s/_________________________________ SHELDON H. WEISBERG, Judge _/s/_________________________________ PETER B. SWANN, Judge 19
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