JOSE R. 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 JOSE R., ) ) Appellant, ) ) v. ) ) ARIZONA DEPARTMENT OF ECONOMIC ) SECURITY, R.G., J.G., M.C., G.E., ) ) ) Appellees. ) ) __________________________________) DIVISION ONE FILED: 08/27/2013 RUTH A. WILLINGHAM, CLERK BY: GH No. 1 CA-JV 13-0060 DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 103 (G), Ariz. R. P. Juv. Ct.; ARCAP 28) Appeal from the Superior Court in Maricopa County Cause No. JD18328 The Honorable Mina Mendez, Judge Pro Tempore AFFIRMED Thomas C. Horne, Arizona Attorney General Tucson By Cathleen E. Fuller, Assistant Attorney General Attorneys for Appellee Arizona Department of Economic Security David W. Bell, Attorney at Law By David W. Bell Attorney for Appellant Mesa B R O W N, Judge ¶1 June Jose R. (Father), the biological father of R.G. (born 2005), J.G. (born June 2006), and M.C. (born September 2008) (collectively, the children), 1 appeals from the juvenile court s termination of his parental rights. For the following reasons, we affirm. BACKGROUND 2 ¶2 In April 2009, Father was stopped and arrested for driving while under the influence (DUI). At the time of the stop, R.G., J.G., and M.C. were in the vehicle. Subsequent to his arrest, Father was incarcerated for the DUI and the children were placed in Magdalene G. s (Mother) custody. 3 guilty to one count of aggravated DUI and Father pled was placed on probation and released from jail on July 10, 2009. ¶3 On August 19, 2009, the Arizona Department of Economic Security (ADES) filed a dependency petition alleging R.G., J.G. and M.C. were dependent as to Father and Mother. 4 court granted the petition. The juvenile Father participated in services and otherwise complied with the ADES case plan. On December 2, 1 The motion to terminate Father s parental rights also named a fourth child, G.E. (born June 2010). As explained infra, ¶ 12, Father is not G.E. s biological parent. 2 We review the evidence in the light most favorable factual findings. Jesus M. Ariz. 278, 282, ¶ 13, 53 P.3d and draw all reasonable inferences to upholding the juvenile court s v. Ariz. Dep t of Econ. Sec., 203 203, 207 (App. 2002). 3 Although Father and Mother were legally married, at the time of Father s arrest, they no longer resided together. 4 Mother s parental rights to the children were also severed, but she is not a party to this appeal. 2 2010, on ADES motion, the dependency action was dismissed and the children were returned to Father s custody. ¶4 In assault. May 2011, Father was arrested for aggravated As a result, he was incarcerated and the children lived with Mother. On June 14, 2011, Father participated in a custody hearing in family court and agreed that Mother should have sole legal custody of the children. ¶5 In August 2011, the children were taken into Child Protective injured, Services allegedly (CPS) by custody Mother s after M.C. boyfriend. was ADES seriously subsequently filed another petition alleging the children were dependent as to Father and Mother. Specifically, as to Father, ADES alleged that he neglect[ed] his children by failing to protect them from Mother s physical abuse and neglect and neglect[ed] his children due to incarceration. that he The juvenile court found the children dependent. ¶6 In November 2011, Father was sentenced to a thirty- month term of imprisonment for the aggravated assault crime. The maximum end date for Father s sentence is November 12, 2013. ¶7 In June 2012, ADES moved to terminate Father s parental rights to the children. Mother and ADES alleged: (1) R.G., J.G, and M.C. were cared for in an out-of-home placement pursuant to court order from August 18, 2009 until December 2, 2010 and, within eighteen months 3 after the children were returned to Father, the children were again removed and placed in out-of-home care, and Father is currently unable to discharge parental responsibilities (A.R.S. § 8-533(B)(11)(d)); (2) Father is incarcerated and his sentence is of such length that the children would be deprived of a normal home for a period of years (A.R.S. § 8-533(B)(4)); and (3) Father failed to protect the children from willful abuse (A.R.S. § 8-533(B)(2)). ¶8 court Following a contested severance hearing, the juvenile terminated Father s parental rights to the children, finding the State had proven the three statutory bases alleged and that termination is in the children s best interests. Father appealed, and we have jurisdiction pursuant to Arizona Revised Statutes ( A.R.S. ) section 8-235 and Rule 103(A) of the Arizona Rules of Procedure for the Juvenile Court. DISCUSSION ¶9 find, To terminate parental rights, the juvenile court must by clear and convincing evidence, the existence of at least one of the statutory grounds for termination enumerated in A.R.S. § 8-533(B). Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, 249, ¶ 12, 995 P.2d 682, 685 (2000). The juvenile court must also find, by a preponderance of the evidence, that termination is in the child s best interest. Kent K. v. Bobby M., 210 Ariz. 279, 288, ¶ 41, 110 P.3d 1013, 1022 (2005). will affirm an order terminating 4 parental rights unless We the juvenile court abused its discretion by making factual findings [that] are clearly erroneous[;] that reasonable evidence to support them. is, unless there is no Audra T. v. Ariz. Dep't of Econ. Sec., 194 Ariz. 376, 377, ¶ 2, 982 P.2d 1290, 1291 (App. 1998) (citations omitted). ¶10 Father does not challenge the juvenile court s finding that termination of his parental rights to R.G., J.G., and M.C. was warranted pursuant to A.R.S. § 8-533(B)(11) (providing statutory basis for termination when, within eighteen months of being returned to a parent s custody from court-ordered out-ofhome care, a child is again placed in out-of-home care pursuant to court order). Therefore, we do not address the court s other statutory findings as to R.G., J.G., and M.C. Jesus M. v. Ariz. Dep t of Econ. Sec., 203 Ariz. 278, 280, ¶ 3, 53 P.3d 203, 205 (App. 2002) (explaining that if evidence supports any one of the statutory grounds on which the juvenile court ordered severance, appellate court does not need to address arguments relating to other grounds). ¶11 The juvenile court s termination Father s parental rights as to G.E. however, the court admitted, without order also severed At the severance hearing, objection, the State s exhibit containing the results of Father s paternity test, which established that Father is not G.E. s biological father. Pursuant to A.R.S. § 8-531(10), a parent is defined as the 5 natural or adoptive mother or father of a child. termination purposes, Father is not G.E. s Thus, for parent and, in relation to G.E., Father has no parental rights to sever. 5 ¶12 whether As the a result, juvenile the court only issue erred by properly finding before us is termination of Father s parental rights was in the children s best interests. [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, 804 P.2d 730, 734 (1990). Factors that support a finding that a child would benefit from termination of parental rights include evidence of an adoption plan, that the child is adoptable, or that the existing placement is meeting the child s needs. Audra T. v. Ariz. Dep t of Econ. Sec., 194 Ariz. 376, 377, ¶ 5, 982 P.2d 1290, 1291 (App. 1998). ¶13 The case manager, Andrew Tarango, acknowledged that Father had a good relationship with the children, has often sent them letters and gifts, and the children have positive feelings toward him. Nonetheless, Tarango opined that termination of Father s parental rights is in the children s best interest because Father s criminal conduct has resulted in 5 We note, as reflected in the record, that Father considered himself to be G.E. s father. We also recognize that the juvenile court was inclined to dismiss G.E. from the termination proceedings, but did not do so at Father s request. 6 the children Tarango also repeatedly testified being that exposed the to children abuse are and all neglect. placed in potential adoptive placements that are meeting their needs and termination of Father s parental rights would allow the children to achieve permanency and stability. Thus, we conclude that reasonable evidence supports the juvenile court s finding that termination of Father s parental rights is in the children s best interests. CONCLUSION ¶14 court s For order the foregoing terminating reasons, Father s we affirm parental the rights juvenile to the children. _______________/s/_______________ MICHAEL J. BROWN, Presiding Judge CONCURRING: ______________/s/________________ JON W. THOMPSON, Judge _____________/s/_________________ MARGARET H. DOWNIE, Judge 7

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