Juan F. v. ADES/Juan C.
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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 JUAN F., ) ) Appellant, ) ) v. ) ) ARIZONA DEPARTMENT OF ECONOMIC ) SECURITY, JUAN C., ) ) Appellees. ) ) __________________________________) 1 CA-JV 10-0160 DIVISION ONE FILED: 02/17/11 RUTH WILLINGHAM, ACTING CLERK BY: DLL DEPARTMENT E MEMORANDUM DECISION (Not for Publication 103(G), Ariz.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. JS11478 The Honorable Christopher A. Coury, Judge AFFIRMED Robert D. Rosanelli, Attorney at Law by Robert D. Rosanelli Attorney for Appellant Phoenix Thomas C. Horne, Attorney General Phoenix by Michael F. Valenzuela, Assistant Attorney General Attorneys for Appellee Arizona Department of Economic Security P O R T L E Y, Judge ¶1 Juan F. parental rights. ( Father ) appeals the termination For the following reasons, we affirm. of his FACTS AND PROCEDURAL BACKGROUND Father s first child was born in January 2007. 1 ¶2 The child had developmental disabilities and numerous other medical conditions. over the After parents receiving ability reports to parent that soon expressed after the concern child s birth, the Arizona Department of Economic Security ( ADES ) took the child into custody. ¶3 ADES offered family reunification services for approximately eighteen months, and then moved to terminate the rights of juvenile both court parents. denied After ADES s the motion termination to sever trial, because the the Department never provided the parents with a parent aide for over two hours weekly, did not provide the parents with a parent aide who had training to address these parents mental deficits, and did parents not provide mental parents deficits. 2 with ADES training then tailored provided to the additional reunification services and filed a second termination motion in September 2009. The juvenile court found that their parenting skills had improved as a result of the reunification services, but concluded that the parents 1 are still unable to Father s wife also had her parental rights terminated, but she is not a party to this appeal. As explained below, Father s parental rights to his first child are not at issue in this case. He also has another child that lives in Mexico. 2 The Honorable Cathy M. Holt (Ret.) presided over the first termination trial and the initial dependency hearing. 2 independently parent [the] child and there is no evidence that they will be able to do so in the near or distant future. The court then terminated their parental rights in December 2009. ¶4 During the severance involving the first child, Mother gave birth to another child in November 2009. They concealed the pregnancy, but ADES became aware of the birth and took the child into custody. The second child does not appear to have any medical conditions or developmental disabilities. ¶5 ADES filed a dependency petition on the second child in November 2009. There was an initial dependency hearing, and a February 2010 mediation. A dependency trial was scheduled for May 2010. ¶6 ADES also moved to terminate Father s parental rights in February 2010, and alleged that he was unable to discharge his parental deficiency, responsibilities Arizona Revised because Statutes of a continuing ( A.R.S. ) mental section 8- 533(B)(3) (2007); and his parental rights to a different child had been terminated for the same cause within the preceding two years, § 8-533(B)(10). The juvenile court consolidated both actions, and they were tried in May 2010. The juvenile court found the child dependent, terminated Father s parental rights as alleged in the petition, and found that termination was in the best interest of the child. 3 Father appealed, and we have jurisdiction pursuant to A.R.S. §§ 8-235(A), 12-120.21(A)(1), and -2101(B) (2003). DISCUSSION ¶7 Father challenges both findings by the juvenile court terminating his parental rights. 3 We view the facts in a light most favorable to upholding the juvenile court s order. See Ariz. Dep t of Econ. Sec. v. Matthew L., 223 Ariz. 547, 549, ¶ 7, 225 P.3d 604, 606 (App. 2010). We will accept the juvenile court s findings of fact unless no reasonable evidence supports those findings, and we will affirm a severance order unless it is clearly erroneous. 203 Ariz. 278, 280, Jesus M. v. Ariz. Dep't of Econ. Sec., ¶ 4, 53 P.3d 203, 205 (App. 2002). Termination of parental rights is appropriate when ADES proves by clear and convincing evidence that there is a statutory basis for the termination. Id. We will affirm the termination if any one of the statutory grounds is proven. ¶8 See id. at ¶ 3. Father first contends that the juvenile court erred by terminating his parental rights due to his mental deficiency. Although he does not challenge that he has a mental deficiency, he contends that there is no reasonable evidence to support the court s finding that he cannot discharge his parental responsibilities for the foreseeable future. 3 Father does not challenge the best interests finding or the sufficiency of the reunification services offered by ADES. 4 ¶9 Section proper when 8-533(B)(3) the parent provides is unable that to termination discharge is parental responsibilities because of . . . mental deficiency . . . and there are reasonable grounds to believe that the condition will continue for a prolonged indeterminate period. [T]he term parental responsibilities is capable of being understood by persons of ordinary intelligence as referring to those duties or obligations which a parent has with regard to his child. Raymond F. v. Ariz. Dep t of Econ. Sec., 224 Ariz. 373, 378, ¶ 20, 231 P.3d 377, 382 (App. 2010) (quoting Maricopa Cnty. Juvenile Action No. JS-5894, 145 Ariz. 405, 408-09, 701 P.2d 1213, 1216-17 (App. 1985). There are no exclusive factors to guide the juvenile court, and the court is given flexibility to determine what is appropriate based on the circumstances of each case. Id. Moreover, the court must find that the child s welfare is at risk, not merely that the child might be better off elsewhere. Maricopa Cnty. Juvenile Action No. JS-5209 & No. JS-4963, 143 Ariz. 178, 185, 692 P.2d 1027, 1034 (App. 1984). ¶10 Father received a psychological Kathryn Menendez in May 2008. paucity of information evaluation from Dr. She noted that Father displayed a and ideation regarding parenting issues[,] . . . although he was successful in indicating his love and commitment toward his child. Father was unable to complete one test because he failed to understand the directions 5 and, based on his completed tests, Dr. Menendez diagnosed Father with borderline intellectual functioning and possible mild mental retardation. ¶11 In conjunction with the child born in 2007, Father received various between January parental 2007 and reunification December services 2008. After from the ADES initial severance motion was denied in January 2009, Father was given additional supervised visits and parent aide training. For example, he received parent aide training on nutrition and meal planning, family health, and normal child development in August 2009. ¶12 Dr. Menendez performed evaluation in March 2010. a second psychological Father s results on two intelligence tests indicated intellectual functioning in the deficient range, and he responses was on improvement identify diagnosed the from symptoms with mild mental retardation. parenting questionnaire, his examination, of 2008 a sick child and as however, he was healthy His indicated able foods. to Dr. Menendez concluded that Father could function as a secondary parent but may place his children at inadvertent risk if he assumed primary care. ¶13 At trial, Dr. Menendez testified that Father s responses on the parenting questionnaire were global and overgeneralized. She also expressed concerns with his responses to 6 the social, emotional, and educational questions on the parent questionnaire, which might impact parenting over time. She testified, for example, that Father understood that he needed to toilet train his child, but he believed toilet training should be accomplished by the time the child was six or seven years old. Or, he realized that parental supervision was important, but he would not allow the child to go someplace unsupervised until the age of eighteen or twenty. Dr. Menendez also gave the following example of an over-generalized global response: [I]f a child was failing in school, he believed that he should be talked to, meaning the child should be talked to, and the father should pick him up at school to determine his attendance. So if a child is failing at school, mere attendance, being sure that they re attending regularly, might be a rather global approach to address school failure. ¶14 Father continued to display superficial understanding of basic parenting responsibilities in his responses to other questions. When asked about using a thermometer, Father testified that he would take the child to the doctor if the child s temperature was over 100 degrees. would respond if the child s But when asked how he temperature was fifty-three degrees, Father responded, Just check to see if it s normal, if he s I would I would check to see if he has a has a fever and take him to the doctor if I needed to. 7 ¶15 Father also had the following exchange with the ADES attorney: [ADES Attorney]: Can that you could do as temperature was 101 temperature back to home? you think of anything a parent if the child s in order to bring the normal when you re at [Father]: Yes. [ADES Attorney]: What? [Father]: I would check him. I would what do you call it I would check all his medicine to see if there s something I could give him. [ADES Attorney]: talking about? What medicine are you are you [Father]: I wouldn t take him out. [ADES Attorney]: talking about? What medicine [Father]: All I m saying is is I I wouldn t take him out outside if the temperature were at 100 or 99. ¶16 Father contends that he has demonstrated, through supervised visitations with a parent aide, that he can clothe, clean and feed the child and understands when the child is ill. The case assistance aide, however, changing the testified child s that the Father diaper, and that needed he had difficulty feeding and burping the child. ¶17 The juvenile court agreed and stated that even after the extensive training, . . . these parents are not able to 8 independently parent. The court found testimony from ADES case investigator, Joanna Lynch, particularly telling. She visited the parents in the hospital shortly after the child was born in November 2009. The baby was crying in a bassinet when she arrived, and the parents did not try to comfort the child for five minutes and then not until prompted by Investigator Lynch. ¶18 Additionally, testified that the Father s case manager, condition was Jenny Bilskie, untreatable with medication or other services and stated that [w]e have worked with [him] for over three years now, and we ve seen over and over that [he is] unable to parent a child. be [an] independent parent[]. [He is] unable to The juvenile court reached a similar conclusion and found that Father was simply not able to make independent judgments necessary to parent . . . on a dayto-day basis. ¶19 Based on the testimony from Dr. Menendez, the length of time Father received services from ADES, and the observations of ADES juvenile staff, there court s is finding substantial that evidence Father s to mental support the deficiency prevents him from discharging his parental duties, and there are 9 reasonable grounds to believe the condition will continue for a prolonged period of time. 4 CONCLUSION ¶20 Based on the foregoing, we affirm the juvenile court s order terminating Father s parental rights. /s/ __________________________ MAURICE PORTLEY, Judge CONCURRING: /s/ _______________________________ PETER B. SWANN, Presiding Judge /s/ _______________________________ PATRICK IRVINE, Judge 4 Because we find that there is a statutory basis to terminate Father s parental rights, we need not examine the other basis utilized by the juvenile court. 10
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