Jonathan v. Arizona Dep't of Econ. Sec.
| Decision Date | 14 June 2012 |
| Docket Number | No. 1 CA-JV 11-0018,No. 1 CA-JV 11-0034,1 CA-JV 11-0018,1 CA-JV 11-0034 |
| Parties | JONATHAN V., Appellant, v. ARIZONA DEPARTMENT OF ECONOMIC SECURITY, TIFFANY V., Appellees. |
| Court | Arizona Court of Appeals |
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
(Not for Publication –
Ct.; Rule 28 ARCAP)
Appeal from the Superior Court in Mohave County
The Honorable Richard Weiss, Judge
AFFIRMED
Jill L. Evans, Mohave County Appellate Defender
By Diana S. McCoy, Deputy Appellate Defender
Attorneys for Appellant
Kingman
Thomas C. Horne, Arizona Attorney General
By Amanda Holguin, Assistant Attorney General
Attorneys for Appellee Arizona Department of Economic Security
Mesa
Kelley Moss & Holden, PLLC
By Michele Holden
Attorneys for Appellee Tiffany V.
OROZCO, Judge ¶1 Appellant Jonathan V. (Father) appeals a juvenile court order terminating his parent-child relationship with his child (T.V.). He claims the juvenile court erred because: (1) his consent to the adoption of T.V. was invalid due to fraud or duress; (2) the Arizona Department of Economic Security (ADES) did not present clear and convincing evidence to establish grounds for termination based on neglect pursuant to Arizona Revised Statutes (A.R.S.) section 8-533.B.2 (Supp. 2011);1 and (3) ADES failed to present sufficient evidence to support the court's finding that adoption was in T.V.'s best interest. Father also argues: (4) the juvenile court erred in denying his motion to set aside the order terminating his parental rights; (5) the superior court erred by denying his motion for change of judge for cause because the juvenile court judge was prejudicially biased; and (6) the juvenile court erred in denying father relief based on his claim of ineffective assistance of counsel. For the reasons set forth herein, we affirm all orders.
¶2 Father is the biological parent of T.V. He is also the biological parent of M.V. and M.B. In March 2007, Father pled guilty to felony child abuse of M.V., and was ordered to have no further contact with the child. Father's parental rights to M.V.were later terminated after the juvenile court found he had neglected or willfully abused M.V. and that the termination of his parental rights was in M.V.'s best interest.
¶3 In June 2010, one-month-old M.B. was taken to the hospital with serious injuries, including several fractured bones, trauma to his head, bruising to his torso and head, severe rashes and a torn and exposed rectum. Evaluating physicians opined that M.B. was "clearly the victim of severe non-accidental trauma." M.B. died from his injuries, and the coroner determined that his death was a homicide caused by "blunt force trauma [to the] head." Father and M.B.'s biological mother (Mother) were arrested and charged with first-degree murder, child abuse, sexual assault of a minor and sexual conduct with a minor.
¶4 Following Father's arrest, ADES took custody of T.V. and filed a petition alleging T.V. to be dependent. At the preliminary protective hearing, Father admitted the need for a dependency due to his incarceration but denied the allegations in the dependency petition. The juvenile court found T.V. to be dependent, approved the case plan of severance and adoption and ordered ADES to file a motion to terminate Father's parental rights to T.V.2 ¶5 In July 2010, ADES filed a motion to terminate Father's parental rights to T.V., alleging that Father: (1) neglected or failed to protect a child from neglect pursuant to A.R.S. § 8-533.B.2; and (2) willfully abused or failed to protect a child from willful abuse so as to cause a substantial risk of harm to the child's health or welfare pursuant to A.R.S. §§ 8-201.2 (Supp. 2011) and 8-533.B.2. ADES also alleged that termination of Father's parental rights would be in T.V.'s best interest.
¶6 In August 2010, Father contested the termination and denied the allegations in the motion to terminate. Following mediation, however, the court noted that Father was "willing to sign consents and waivers for the adoption of [T.V.]." Nevertheless, the court also noted that Father did not agree to terminate his parental rights. As a result, the juvenile court conducted a trial on ADES's termination motion in December 2010.
¶7 At trial, Father testified that he pled guilty to felony child abuse of M.V. and that his parental rights were terminated because he neglected or abused M.V. or failed to protect her from neglect or abuse. Father also testified that termination of his parental rights was in T.V.'s best interest and that he was willing to sign away his parental rights on the condition that T.V. was not adopted by her maternal grandmother.
¶8 After testifying, Father signed a consent to adopt for T.V. The consent was notarized and admitted into evidence at theseverance trial. The juvenile court terminated Father's parental rights to T.V., finding that Father "knowingly, intelligently, and voluntarily executed a consent" to the adoption of T.V. and ADES proved by clear and convincing evidence that the termination was justified under A.R.S. § 8-533.B.2 and B.7. The court also found that termination was in T.V.'s best interest.
¶9 In January 2011, Father filed a timely notice of appeal of the termination order. On the same day, Father also filed a motion to set aside the order terminating his rights. The court denied the motion. Father then appealed the order denying his motion to set aside.
¶10 In motions to this court, Father's appellate counsel claimed Father was denied due process of law in the termination proceedings because of the ineffective assistance of his trial counsel. As a result, we suspended the appeal and remanded the matter to the juvenile court to conduct an evidentiary hearing on Father's ineffective assistance claim. The juvenile court scheduled an evidentiary hearing on June 30, 2011 before Judge Richard Weiss, who presided over the termination proceedings.
¶11 On June 29, 2011, Father filed a motion for change of judge for cause, claiming Judge Weiss's recent rulings in Father's criminal case "indicate[d] a bias and prejudice as to Judge Weiss presiding over this case and the hearing pending." Following an evidentiary hearing, Judge Lee Jantzen deniedFather's motion, determining that Judge Weiss's rulings did not show any personal bias against Father. Father did not appeal Judge Jantzen's order and the matter was returned to Judge Weiss.
¶12 In July 2011, the juvenile court conducted an evidentiary hearing on Father's ineffective assistance of counsel claim. Father argued trial counsel was ineffective by: (1) failing to object to ADES's exhibits and hearsay testimony; (2) failing to conduct an adequate investigation into the autopsy report and the manner of M.B.'s death; (3) failing to consult an independent medical examiner to review the evidence regarding M.B.'s death; (4) failing to obtain an independent medical expert to advance his theory of the case; (5) failing to object to ADES's proposed findings of fact; and (6) giving incorrect or inadequate legal advice regarding Father's consent to adoption and the burden of proof in a termination proceeding. Father argued that trial counsel's ineffective representation "resulted in the trial court making insufficient findings that grounds for termination existed under A.R.S. § 8-533(B)(2), abuse to a child." In response, ADES argued Father's consent to adoption was valid and, therefore, he could not demonstrate prejudice because grounds for termination existed under A.R.S. § 8-533.B.7. Father claimed, however, that his consent was invalid because he relied on his counsel's erroneous legal advice and inaccuratepromise that T.V. would be placed with the maternal grandmother when he signed the consent.3
¶13 Following the hearing, the juvenile court denied Father's motion, finding Father "has not sustained his burden that there were errors of counsel that were sufficient to undermine the confidence in the outcome of this matter." The court further found that "the proceedings were fundamentally fair and there is no indication of a reasonable probability of a different result." Father filed an amended notice of appeal to include the order denying relief based on his ineffective assistance claim.
¶14 We have jurisdiction pursuant to A.R.S. §§ 8-235.A (2007), 12-120.21.A.1 (2003) and 12-2101.A.1, 2 (Supp. 2011).
¶15 On appeal, we presume the juvenile court made every finding necessary to support the order of termination, and if the court "fail[ed] to expressly make a necessary finding, we may examine the record to determine whether the facts support that implicit finding." Mary Lou C. v. Ariz. Dep't of Econ. Sec., 207 Ariz. 43, 50, ¶ 17, 83 P.3d 43, 50 (App. 2004). Our review islimited to whether any reasonable theory of the evidence could support the court's findings. Denise R. v. Ariz. Dep't of Econ. Sec. , 221 Ariz. 92, 93-94, ¶ 4, 210 P.3d 1263, 1264-65 (App. 2009); see also Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, 280, ¶ 4, 53 P.3d 203, 205 (App. 2002) (). Accordingly, we do not reweigh the evidence and "will accept the juvenile court's findings of fact unless no reasonable evidence supports those findings." Jesus M. , 203 Ariz. at 280, ¶ 4, 53 P.3d at 205 (citations omitted).
¶16 The juvenile court terminated Father's parental rights on the grounds of neglect and willful abuse under A.R.S. § 8-533.B.2 and consent to adoption under § 8-533.B.7. "If clear and convincing evidence supports any one of the statutory grounds on...
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