Jason B. v. Nicole P., Lauren P.

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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 JASON B., ) ) ) ) ) ) ) ) ) ) ) Appellant, v. NICOLE P., LAUREN P., Appellees. 1 CA-JV 10-0246 DIVISION ONE FILED: 05/26/2011 RUTH A. WILLINGHAM, CLERK BY: DLL DEPARTMENT B MEMORANDUM DECISION (Not for Publication 103(G) Ariz.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. JS506619 The Honorable Terri L. Clarke, Commissioner AFFIRMED Vierling Law Offices By Thomas A. Vierling Attorneys for Appellant Phoenix Chism Brown Law By Christy C. Brown Attorneys for Appellee Nicole P. Phoenix N O R R I S, Judge ¶1 Jason B. ( Father ) appeals parental rights to his daughter, Lauren P. termination of his He argues we should reverse the termination order because the juvenile court (1) failed to determine whether he was served with the petition and notice of hearing, (2) failed to allow Father to appear telephonically at the termination hearing, and (3) entered the termination statutory abuse). was order without grounds for sufficient termination evidence supporting (abandonment and the wilful He also argues the evidence failed to show termination in daughter s best interests. We disagree with all of Father s arguments and affirm the court s termination order. FACTS AND PROCEDURAL BACKGROUND ¶2 On petitioned April the 27, 2010, juvenile Nicole court to P. ( Mother ) terminate Father s privately parental rights to daughter, born in December 2001, alleging abandonment and wilful abuse. After unsuccessfully attempting to serve Father with the petition and the notice of hearing at his last known address impracticable, service. serve in Arizona Mother moved and for finding service alternative or to be substituted The court granted Mother s motion and allowed her to Father by publication. Although the record does not reflect whether Father was served, he contacted the juvenile court s staff seeking information on the case at least three weeks before telephonically the at initial that severance hearing counsel personally present. 2 hearing ( first and hearing ) appeared with his ¶3 During the first hearing, Father told the court he was living in Wisconsin. The court read the Form III notice to Father and explained to Father his hearing rights. The court also specifically informed Father that if he failed to attend the initial termination hearing, pretrial conference, status conference or termination adjudication hearing without good cause, the Court may determine that [he has] waived [his] legal rights and admitted the allegations in the motion or petition for termination. The hearings may go forward in [his] absence and the Court may terminate [his] parental rights to [his] child based on the record and the evidence presented. Although Father stated he was fully competent and . . . completely . . . knowledgeable of the words in the Form III, he refused to say that he underst[oo]d those rights because that word has ramifications to it that [he does] not want to admit to. Based on its colloquy with Father, the court was unable to determine whether he understood the concepts involved in the termination of parental rights. Accordingly, the court directed Father to submit to a psychological evaluation to determine his mental competency and appointed a guardian ad litem ( GAL ) for Father. Ariz. Rev. Stat. ( A.R.S. ) § 8-535(F) (2007). The court also continued the hearing until October, allowing Father to appear telephonically at the next hearing. 3 ¶4 At the continued severance hearing before a different commissioner order for ( second the hearing ), psychological the court evaluation vacated based on the prior the GAL s avowals Father understood the Form III and without objection by Father s counsel. refused to sign Nevertheless, because Father previously had the Form III and had stated he did not understand the Form III, and given the significant interests at stake in a termination case, the court continued the severance hearing for approximately 30 days and refused Father s request to appear telephonically. The court again advised Father it would proceed in [his] absence [at the next hearing] absent any good cause being shown. ¶5 in Despite the court s warning, Father failed to appear person at the next hearing counsel s confirmation that appearing telephonically and, Father at the in was light only termination of Father s planning on adjudication hearing, the court advised it would proceed with that hearing immediately ( termination hearing ). The court found Father was initially properly served and was advised of the terms and the Form IIIs were read to him, indicating the penalties for failing to appear. appearance and found It found no good cause for Father s nonFather had from the hearing. 4 voluntarily absented himself ¶6 Based introduced statutory at on Mother s the termination grounds wilful abuse. interests. testimony for and hearing, termination the the based exhibits court on she found the abandonment and It also found termination was in daughter s best Father timely appealed. We have jurisdiction pursuant to A.R.S. § 8-235(A) (2007). DISCUSSION I. Service of Petition and Notice ¶7 Father first argues we should reverse the termination order because the juvenile court failed to determine whether Mother served him with the petition and the notice of hearing. Although the record does not contain any evidence showing Mother had actually served Father with the petition and the notice of hearing, Father nevertheless appeared and participated in the case. Accordingly, Father waived any objection to insufficient service of process. ¶8 Arizona Rule of Procedure for the Juvenile Court 64(D)(3) requires the petitioner in a termination proceeding to serve the petition for termination of parental rights and the notice of hearing on the interested parties listed in A.R.S. § 8-535 and in the manner described by Arizona Rules of Civil Procedure 4.1 and 4.2. At the initial termination hearing, the juvenile court is required to determine, inter alia, whether such service has been completed. 5 Ariz. R.P. Juv. Ct. 65(A). When a parent appears and participates in a termination case, the parent waives his or her objections to insufficient service of process. Pima Cnty., Juv. Action No. S-828, 135 Ariz. 181, 184, 659 P.2d 1326, 1329 (App. 1982); cf. Montano v. Scottsdale Baptist (1978) Hosp., Inc., civil (under 119 Ariz. procedure 448, 452, rules, 581 P.2d answering a 682, 686 complaint without contesting sufficiency of service of process or general appearance by a party who has not been properly served has exactly the same effect as a proper, timely and valid service of process ). ¶9 At the termination hearing, was initially properly served. the court found Father Although nothing in the record substantiates that finding1 and the court did not explain the basis for its finding, Father found out about the first hearing, contacted the telephonically without court, at contesting the and first appeared hearing service. and and the Furthermore, participated second hearing Father s counsel personally appeared and participated at every hearing, as did Father s GAL once the court appointed him. 1 Accordingly, by The record does not contain an affidavit of service by publication as required by the juvenile court s order granting Mother s Motion for Alternative or Substituted Service. See Ariz. R. Civ. P. 4.1(n) (party serving shall file an affidavit showing the manner and dates of the publication and mailing, and the circumstances warranting the utilization of the [alternative] procedure ). 6 appearing and participating in the hearings, Father waived his objections to the service of process.2 II. Telephonic Appearance ¶10 Father next argues we should reverse the termination order because the juvenile court refused to allow him to appear telephonically at the termination hearing. ¶11 We disagree. For hearings on the termination of parental rights, the court may permit telephonic testimony or argument. R.P. Juv. Ct. 42 (emphasis added). Ariz. The juvenile court thus has the authority, but not an obligation, to allow the parents to appear by telephone rather than in person. Willie G. v. Ariz. Dep t of Econ. Sec., 211 Ariz. 231, 234, ¶ 14, 119 P.3d 1034, 1037 (App. Father s 2005). request At to the second participate hearing, the court telephonically at denied the termination hearing (which it also postponed) because he had refused to sign the Form III and confirm he understood the Form III. also After ascertaining he was not on food stamps, the court rejected Father s argument appear because he was indigent. he was unable to personally At the termination hearing, the court again rejected counsel s request that Father be permitted to appear telephonically, expanding on what it had said at the 2 In his reply brief, Father notes the court did not find Father was served in its written findings of fact. The court, however, did so in its unsigned minute entry and on the record at the termination hearing. 7 second hearing -- it needed to personally observe him given what the record reflects was obstructionist behavior. Under these circumstances, the juvenile court did not abuse its discretion. ¶12 Likewise, the juvenile court did not violate Father s due-process rights telephonically. in refusing to allow him to appear First, at both the first hearing and the second hearing, the court explained to Father the consequences if he failed to appear in person at any subsequent hearing. Second, it had rejected his requests at both the second hearing and the termination hearing to appear telephonically for justifiable reasons and consistent with its discretion. III. Statutory Grounds for Termination ¶13 The relationship juvenile upon demonstrating a court may finding statutory terminate clear ground and the parent-child convincing for termination evidence and a preponderance of the evidence demonstrating termination is in the child s best interests. Raymond F. v. Ariz. Dep t of Econ. Sec., 224 Ariz. 373, 377, ¶ 15, 231 P.3d 377, 381 (App. 2010); see A.R.S. court s § 8-533(B) termination (Supp. order 2010). in the We view light most the juvenile favorable to sustaining the court s decision[3] and will affirm it unless we 3 As the trier of fact in a termination proceeding, the juvenile court is in the best position to weigh the evidence, observe the parties, judge the credibility of witnesses, and 8 must say as a matter of law that no one could reasonably find the evidence [supporting statutory grounds for termination] to be clear and convincing. Denise R. v. Ariz. Dep t of Econ. Sec., 221 Ariz. 92, 95, ¶ 10, 210 P.3d 1263, 1266 (App. 2009) (quoting Murillo v. Hernandez, 79 Ariz. 1, 9, 281 P.2d 786, 791 (1955)). A. Abandonment ¶14 statute Father and the contends evidence the juvenile was court insufficient misapplied to show the Father abandoned daughter based on the unusual circumstances of this case. ¶15 We disagree. Under A.R.S. § 8-533(B)(1), the court may terminate the parent-child relationship if the parent abandoned the child, as measured by the parent s conduct. Michael J. v. Ariz. Dep t of Econ. Sec., 196 Ariz. 246, 249, ¶ 18, 995 P.2d 682, 685 (2000). Abandonment is defined as: [T]he failure of a parent to provide reasonable support and to maintain regular contact with the child, including providing normal supervision. Abandonment includes a judicial finding that a parent has made only minimal efforts to support and communicate with the child. Failure to maintain a normal parental relationship with the child without just cause for a period of six months constitutes prima facie evidence of abandonment. resolve disputed facts. Ariz. Dep t of Econ. Sec. v. Oscar O., 209 Ariz. 332, 334, ¶ 4, 100 P.3d 943, 945 (App. 2004). 9 A.R.S. § 8-531(1) (2007). ¶16 The juvenile court found Father had made no effort to support or communicate with daughter since 2007, and the record supports this finding. Based on daughter s disclosures to Mother that Father had abused her, Mother sought and obtained sole custody of daughter in 2006. court allowed Father Pursuant to court order, the visitation through a therapeutic intervention process that ultimately began around April 2007. In August 2007, Mother stopped paying her court-ordered share of the cost for the intervention because Father had inappropriately touched daughter during the sessions. Mother introduced into evidence minute entries from the custody case that reflected, in 2008, the court had ordered Father to submit to a psychological examination and had stated that after the examination it would consider whether to reinstate Father s parenting time. Mother testified the court had also ordered that if [Father] wanted to continue the intervention process . . . he could pay for it, and so he stopped and it was done after that. Mother also testified that thereafter Father had no contact with daughter -did not send letters or birthday presents to daughter (now eight years old) support. and did not call daughter -- and paid no child Thus, the record reflects that although Father could have sought visitation with daughter, he appropriate steps to do so, and 10 had had failed to take neither contacted nor provided financial support for daughter Accordingly, sufficient evidence supports Mother clear and argues the had proved by since 2007. the court s finding convincing evidence Father abandoned daughter. B. Abuse ¶17 Father next court s finding Father had wilfully abused daughter was not supported by the record because the record lacks any evidence that any action by the father resulted in serious disagree. Although termination because physical we we need have or emotional not consider affirmed the injury. this ground court s We for termination order on abandonment, here, ample evidence supports this ground as well. See Michael J., 196 Ariz. at 251, ¶ 27, 995 P.2d at 687. ¶18 Under A.R.S. § 8-533(B)(2), the court may terminate the parent-child relationship if the parent has neglected or wilfully abused a child, which includes serious physical or emotional injury or situations in which the parent knew or reasonably should have known that a person was abusing the child. Here, findings made based in the on the evidence Pediatric presented, Progress Notes & including Worksheet prepared by the pediatrician who examined daughter regarding the abuse claim ( Progress Notes ) 11 and in the Child Protective Services ( CPS ) Report, the juvenile court found it was highly probable Father had wilfully abused daughter. ¶19 At the termination hearing, Mother testified when daughter was four years old she told Mother her tush hurt because Father had touched it one night. Mother called 9-1-1 and then took daughter to the pediatrician for an examination and to the CPS Child Help office. spoke with daughter suggestive. and found Consistent The pediatrician examined and [p]ossible with Mother s molestation testimony, highly in the Progress Notes, the pediatrician reported daughter had explained her tush hurt (daughter s word for her private area) and demonstrated how Father had touched her vaginal area while she was sleeping. Likewise, the CPS Report substantiated daughter s claim had Father sexually abused penetrated her vaginal area. CPS and daughter, the pediatrician combined when he digitally The uncontroverted findings of that with her Father Mother s had sexually testimony, abused constitute sufficient evidence supporting the juvenile court s finding of wilful abuse under A.R.S. § 8-533(B)(2). C. Best Interests ¶20 Father contends the evidence failed to support the juvenile court s finding it was in daughter s best interests to terminate Father s parental rights. 12 We disagree. ¶21 To support a best-interests determination, the court must include a finding as to how the child would benefit from a severance or be harmed by the continuation of the relationship. Maricopa Cnty. Juv. Action No. JS-500274, 167 Ariz. 1, 5, 804 P.2d 730, 734 (1990). In making this finding, the court may consider whether the needs of the child are being met by the existing placement. Maricopa Cnty., Juv. Action No. JS-8490, 179 Ariz. 102, 107, 876 P.2d 1137, 1142 (1994). Father contends the court should also consider the degree to which the child s relationship with [F]ather can be nurtured and developed, but cites cases that use this proposition in contexts other than in a best-interests determination. 251-52, 995 P.2d at 687-88 See Michael J., 196 Ariz. at (termination under A.R.S. § 8- 533(B)(4) due to length of parent s felony prison sentence); Michael M. v. Ariz. Dep t of Econ. Sec., 202 Ariz. 198, 42 P.3d 1163 (App. 2002) (visitation rights while incarcerated). the juvenile preponderance court of the found Mother evidence it had was established in daughter s Here, by a best interests to terminate Father s rights because Father had not contacted daughter for over three years and Mother ha[d] made sufficient arrangements to provide for [daughter] should she be unable to care for [her]. Because this determination is a question of fact for the juvenile court, we will accept these factual findings unless no reasonable evidence supports them. 13 Jesus M. v. Ariz. Dep t of Econ. Sec., 203 Ariz. 278, 280, ¶ 4, 53 P.3d 203, 205 (App. 2002). The record reflects daughter s needs are being met in Mother s stable custody and the court s best-interests finding is supported by reasonable evidence. CONCLUSION ¶22 For the foregoing court s termination order. reasons, we affirm termination her costs on appeal That statute proceedings, and we thus Mother s request for attorneys fees. Mother juvenile Mother requests attorneys fees and costs pursuant to A.R.S. § 25-324 (Supp. 2010). does not apply to the subject deny We do, however, award to her Arizona Rule of Civil Appellate Procedure 21. compliance with A.R.S. § 12-342 (2003). /s/ __________________________________ PATRICIA K. NORRIS, Judge CONCURRING: /s/ ____________________________________ PETER B. SWANN, Presiding Judge /s/ ____________________________________ DANIEL A. BARKER, Judge 14

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