Denise R. v. Arizona Dept. of Economic Sec., 2 CA-JV 2009-0003.

• Court: Court of Appeals of Arizona
• Citation: 210 P.3d 1263,221 Ariz. 92
• Docket Number: No. 2 CA-JV 2009-0003.,2 CA-JV 2009-0003.
• Parties: DENISE R., Appellant, v. ARIZONA DEPARTMENT OF ECONOMIC SECURITY, Draven R., and Larsen R., Appellees.
• Decision Date: 26 May 2009

210 P.3d 1263 221 Ariz. 92 DENISE R., Appellant,
v.
ARIZONA DEPARTMENT OF ECONOMIC SECURITY, Draven R., and Larsen R., Appellees. No. 2 CA-JV 2009-0003. Court of Appeals of Arizona, Division 2, Department B. May 26, 2009.

Joan Spurney Caplan, Tucson, Attorney for Appellant.

Terry Goddard, Arizona Attorney General By Dawn R. Williams, Tucson, Attorneys for

[210 P.3d 1264]

Appellee Arizona Department of Economic Security.

OPINION

ECKERSTROM, Presiding Judge.

¶ 1 After Denise R. failed to appear for a December 2008 initial termination hearing, the juvenile court terminated her parental rights to her eleven-year-old son, Draven, and her six-year-old daughter, Larsen, based on findings that Denise suffered from disabling mental illness or chronic alcohol abuse, see A.R.S. § 8-533(B)(3), and had substantially neglected or willfully refused to remedy the circumstances causing the children to remain in a court-ordered, out-of-home placement for more than nine months. See § 8-533(B)(8)(a). On appeal, Denise maintains the Arizona Department of Economic Security (ADES) failed to present clear and convincing evidence that mental illness or substance abuse rendered her unable to discharge her parental responsibilities. See § 8-533(B)(3). She also argues § 8-533(B)(8)(a) is unconstitutionally vague, in violation of the Due Process Clause of the United States Constitution. Because we find there was sufficient evidence for the juvenile court to terminate Denise's parental rights pursuant to § 8-533(B)(3), we need not consider her claim that § 8-533(B)(8)(a) is constitutionally infirm. See Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, ¶ 3, 53 P.3d 203, 205 (App.2002) ("If clear and convincing evidence supports any one of the statutory grounds on which the juvenile court ordered severance, we need not address claims pertaining to the other grounds.").¹

Standard of Review

¶ 2 The parties devote considerable argument to the standard of review we must apply to Denise's claim of insufficient evidence. A juvenile court's termination order must be supported by clear and convincing evidence or, in other words, evidence that makes the proposition to be proved "`highly probable or reasonably certain.'" Kent K. v. Bobby M., 210 Ariz. 279, ¶ 25, 110 P.3d 1013, 1018-19 (2005), quoting Black's Law Dictionary 577 (7th ed.1999). Denise acknowledges we must affirm if substantial evidence in the record supports the juvenile court's ruling but maintains the evidence must have been such that "a reasonable mind" could find it clear and convincing. Relying on In re Maricopa County Juvenile Action No. JS-4130, 132 Ariz. 486, 647 P.2d 184 (App. 1982), ADES disputes Denise's contention and argues we should review the juvenile court's findings only to determine whether they were based on reasonable — not substantial — evidence and without regard for whether the quantum of evidence was clear and convincing.

¶ 3 In Maricopa County No. JS-4130, Division One of this court suggested, in dicta, that we do not "apply different standards of review depending on the burden of proof required for the particular proceeding." The court stated:

If an appellate court were to apply different standards of review depending on the burden of proof required for the particular proceeding, it would be substituting its resolution of factual issues for that of the trier of fact. Therefore, no matter what the burden of proof required in the proceedings below, we can only review the evidence to determine if there is substantial evidence to support the conclusion of the trier of fact.

Id. at 488, 647 P.2d at 186.

¶ 4 We agree that a single, deferential standard of review applies to any claim of insufficient evidence, although that standard has been expressed in various ways. Thus, we will affirm a lower court's findings of fact "so long as they are supported by reasonable evidence," Twin City Fire Ins. Co. v. Burke, 204 Ariz. 251, ¶ 10, 63 P.3d 282, 285 (2003); if "substantial evidence exists to support the trial court's action," In re Estate of Pouser, 193 Ariz. 574, ¶ 13, 975 P.2d 704, 709 (1999); "where there is evidence from which a reasonable

210 P.3d 1265

person] could draw the same conclusions," Bass Inv. Co. v. Banner Realty, Inc., 103 Ariz. 75, 79, 436 P.2d 894, 898 (1968), or "if any reasonable construction of the evidence justifies the decision." Stevenson v. Stevenson, 132 Ariz. 44, 46, 643 P.2d 1014, 1016 (1982)

¶ 5 We also agree with the state that our review does not entail consideration of whether the evidence was, in our opinion, clear and convincing. See Jesus M., 203 Ariz. 278, ¶ 12, 53 P.3d at 207 (reviewing court does not reweigh evidence); In re Pima County Juv. Action No. S-2698, 167 Ariz. 303, 307, 806 P.2d 892, 896 (App.1990) (reviewing court does not substitute its assessment of evidence for trial court's). But, to the extent ADES or Maricopa County No. JS-4130 suggests the standard of proof is irrelevant to our review, we must disagree.

¶ 6 In considering a claim of insufficient evidence, "[o]ur duty, on appeal, begins and ends with the inquiry whether the trial court had before it evidence upon which an unprejudiced mind might reasonably have reached the same conclusion." Murillo v. Hernandez, 79 Ariz. 1, 9, 281 P.2d 786, 791 (1955); see also Estate of Pouser, 193 Ariz. 574, ¶ 13, 975 P.2d at 709 ("substantial evidence" required to affirm "is evidence which would permit a reasonable person to reach the trial court's result"). But, because the requisite standard of proof is inherent in a court's finding, this inquiry requires us to consider whether a reasonable person would have reached the same conclusion when bound by the same evidentiary standard that constrained the court's deliberations.

¶ 7 Accordingly, as our supreme court has repeatedly concluded, a decision that must be based on clear and convincing evidence will be affirmed "`unless we must say as a matter of law that no one could reasonably find the evidence to be clear and convincing.'" Murillo, 79 Ariz. at 9, 281 P.2d at 791, quoting Paulsen v. Coombs, 123 Utah 49, 253 P.2d 621, 624 (1953); see also Stevenson v. Stevenson, 132 Ariz. 44, 46, 643 P.2d 1014, 1016 (1982) (same); King v. Uhlmann, 103 Ariz. 136, 142, 437 P.2d 928, 934 (1968) (same); cf. State v. Cox, 217 Ariz. 353, ¶ 22, 174 P.3d 265, 269 (2007) (court reviewing claim of insufficient evidence in criminal case must ask if reasonable factfinder could have found evidence sufficient to prove defendant guilty beyond reasonable doubt), citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Tison, 129 Ariz. 546, 553, 633 P.2d 355, 362 (1981) (Arizona's "substantial evidence test" in criminal cases consistent with review required by Jackson).

¶ 8 In Jackson, the Supreme Court held that, because due process requires proof beyond a reasonable doubt to convict a criminal defendant, due process also requires a reviewing court to assess "whether the evidence is constitutionally sufficient" in light of that evidentiary standard. Jackson, 443 U.S. at 319-20 & 319 n. 13, 99 S.Ct. 2781. Because due process similarly dictates the standard of proof for termination decisions, the same reasoning applies here. See Santosky v. Kramer, 455 U.S. 745, 748, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) ("[D]ue process requires that the State support its allegations [in parental termination proceedings] by at least clear and convincing evidence."); In re Pima County Juv. Action No. S-919, 132 Ariz. 377, 377, 646 P.2d 262, 262 (1982) (acknowledging Santosky as binding in Arizona); see also M.L.B. v. S.L.J., 519 U.S. 102, 110, 120, 117 S.Ct. 555, 136 L.Ed.2d 473 (1996) (while United States Constitution does not guarantee right to appeal termination of parental rights, if state provides appeal...