DONALD S. v. ADES, LAILAH S.

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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 DONALD S., ) ) Appellant, ) ) v. ) ) ARIZONA DEPARTMENT OF ECONOMIC ) SECURITY, LAILAH S., ) ) Appellees. ) ) __________________________________) DIVISION ONE FILED: 10/16/2012 RUTH A. WILLINGHAM, CLERK BY: sls No. 1 CA-JV 12-0071 DEPARTMENT A MEMORANDUM DECISION (Not for Publication 103(G) Ariz. R.P. Juv. Ct.; Rule 28 ARCAP) Appeal from the Superior Court in Maricopa County Cause No. JD508342 The Honorable Shellie F. Smith, Judge Pro Tem AFFIRMED Christina Phillis, Maricopa County Juvenile Public Advocate By Suzanne W. Sanchez, Deputy Juvenile Public Advocate Attorneys for Appellant Mesa Thomas C. Horne, Arizona Attorney General By Amanda Holguin, Assistant Attorney General Attorneys for Appellee Arizona Department of Economic Security Mesa D O W N I E, Judge ¶1 Donald S. ( Father ) challenges the juvenile court s order terminating his parental rights. For the following reasons, we affirm. FACTS AND PROCEDURAL HISTORY 1 ¶2 In January 2011, the Arizona Department of Economic Security ( ADES ) filed a petition to terminate Father s rights to his daughter, L.S., born in 2007. grounds: due to The petition alleged three (1) inability to discharge parental responsibilities chronic substance abuse; (2) L.S. had been in an out-of-home placement for nine months or longer and Father had substantially neglected or willfully refused to remedy the circumstances leading to her removal; and (3) L.S. had been in an out-of-home placement for 15 months or longer and Father was unable to remedy the circumstances causing that placement and would not be capable of exercising proper and effective parental care and control in the near future. See Ariz. Rev. Stat. ( A.R.S. ) § 8-533(B)(3), (B)(8)(a), (B)(8)(c). ¶3 At a contested severance trial held in February 2012, a Child Protective Services ( CPS ) case manager testified that Father had minimally participated in case plan services after 1 We view the facts in the light most favorable to affirming the juvenile court s ruling. Maricopa County Juv. Action No. JS-8490, 179 Ariz. 102, 106, 876 P.2d 1137, 1141 (1994) (citation omitted). 2 L.S. was removed from his care. 2 Among other things, Father failed in-patient to complete outpatient or substance abuse treatment and submitted to only 10 of 78 required random drug tests. He also failed to participate in parent-aide services. The case manager further testified Father had not parented L.S. in over two and a half years, had no face to face contact with her since being released from jail in October 2011, and had pled guilty in December 2011 to felony child abuse of another child. ¶4 ADES orally moved to amend the severance petition to conform to the evidence by adding child abuse and abandonment as grounds for termination of Father s parental rights. § 8-533(B)(1) and (B)(2). See A.R.S. Father objected, asserting prejudice due to the lack of notice and arguing ADES had ample time before trial to file an amended petition alerting him to the additional grounds. between Father s ADES replied by noting the short timeframe October release from jail and guilty plea and the severance trial in February. his December The State further argued that Father could not be prejudiced by lack of notice on the amendment to include child abuse, because Father 2 Father was offered twice weekly parent-aide services, but attended once a week. He participated in twice-monthly supervised visitation with L.S. before being incarcerated in February 2011; he did not see his daughter thereafter. Father refused to talk with the ADES case worker while in jail and had no contact with ADES after his release. The case manager also testified that L.S. would be unsafe in Father s care unless he participated in services. 3 was aware of his conviction in a child abuse case. L.S. s guardian ad litem supported ADES motion, further arguing Father would not be prejudiced because he was aware of his own failure to contact CPS and L.S. since being released from jail. The court granted ADES motion. ¶5 being Father testified he did not contact CPS or L.S. after released consistently from against jail because [him] and his case lie[d]. worker He was refused to clear and should be participate in services until he got a new caseworker. ¶6 convincing The court evidence found that ADES that Father s had proven parental by rights severed based on chronic substance abuse, abandonment, and time in care (9 and 15 months). (B)(8)(a), (B)(8)(c). See A.R.S. § 8-533(B)(1), (B)(3), However, it ruled ADES had not presented sufficient evidence to terminate Father s rights on the basis of child abuse. ¶7 See A.R.S. § 8-533(B)(2). Father timely appealed. We have jurisdiction pursuant to A.R.S. § 8-235. DISCUSSION ¶8 Father contends the juvenile court lacked the authority to allow an oral amendment of the petition to allege abandonment or, in the alternative, that the court abused its discretion in permitting such an amendment. 4 ¶9 To sever parental rights, the court must find, by clear and convincing evidence, at least one of the statutory grounds for termination. 3 Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, 249, ¶ 12, 995 P.2d 682, 685 (2000). The court here found clear and convincing evidence of four statutory grounds justifying termination of Father s parental rights. ¶10 Father appeal: has abandonment. challenged only one statutory basis on He has implicitly conceded that the other grounds for severance were appropriate. See MT Builders, L.L.C. v. Fisher Roofing Inc., 219 Ariz. 297, 305 n.7, ¶ 19, 197 P.3d 758, 766 n.7 (App. 2008) (arguments not developed on appeal are waived); Schabel v. Deer Valley Unified Sch. Dist. No. 97, 186 Ariz. 161, 167, 920 P.2d 41, 47 (App. 1996) (issues not argued in an appellate brief are waived). ¶11 Thus, even assuming arguendo that the juvenile court erred by allowing ADES to orally amend its petition at trial, we would affirm the termination order statutory grounds alleged and found. based on the other three See Michael J., 196 Ariz. at 251, ¶ 27, 995 P.2d at 687 (because appellate court affirmed one basis severance for was termination, justified on it other 3 need not grounds determine found by whether juvenile The court must also find that termination is in the child s best interests. See A.R.S. § 8-533(B). Father does not challenge the best-interests finding, and we therefore do not address it. 5 court); see also Jesus M. v. Ariz. Dep t of Econ. Sec., 203 Ariz. 278, 280, ¶ 3, 53 P.3d 203, 205 (App. 2002) (appellate court need not consider challenge on alternate grounds for severance if evidence supports any one ground). CONCLUSION ¶12 We affirm the termination of Father s parental rights. /s/ MARGARET H. DOWNIE, Judge CONCURRING: /s/ ANN A. SCOTT TIMMER, Presiding Judge /s/ JOHN C. GEMMILL, Judge 6

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