Kimu v. Arizona Dept. of Economic Sec.

• Citation: 178 P.3d 511,218 Ariz. 39
• Decision Date: 20 March 2008
• Docket Number: No. 1 CA-JV 06-0238.,1 CA-JV 06-0238.
• Parties: KIMU P. and Blair P., Appellant, v. ARIZONA DEPARTMENT OF ECONOMIC SECURITY, Zion P., Caleb P., Appellees.
• Court: Court of Appeals of Arizona

178 P.3d 511

218 Ariz. 39

KIMU P. and Blair P., Appellant, v. ARIZONA DEPARTMENT OF ECONOMIC SECURITY, Zion P., Caleb P., Appellees.

No. 1 CA-JV 06-0238.

Court of Appeals of Arizona, Division 1, Department E.

March 20, 2008.

Terry Goddard, Attorney General, by Kathleen E. Skinner, Assistant Attorney General, Mesa, Attorneys for Appellee Arizona Department of Economic Security.

Sandra L. Massetto, Phoenix, Attorneys for Appellant Blair P.

David W. Bell, Mesa, Attorney for Appellant Kimu P.

OPINION

OROZCO, Judge.

¶ 1 Kimu P. (Mother) and Blair P. (Father) (collectively Parents) appeal the juvenile court's order terminating their parental rights to C.P. and Z.P. Parents' rights to the children were terminated after a jury found that the parents had neglected or willfully abused the children pursuant to Arizona Revised Statutes (A.R.S.) section 8-533(B)(2) (2007). The jury also found that severance was in the children's best interests. On appeal, Parents argue that the juvenile court abused its discretion by barring all evidence at the severance trial relating to I.P., a child who was born to Parents during the termination proceedings. Additionally, Parents argue that the juvenile court erred in denying their motion to dismiss the termination petition because a termination action cannot be brought pursuant to A.R.S. § 8-533 when there is an ongoing dependency action. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2 Parents are strict vegans and maintained a diet for their family consisting entirely of fruits, vegetables, grains, and liquid nutritional supplements. Although the family ate three meals a day, the amount of food the family consumed became increasingly smaller with each subsequent meal. Parents also maintained a strict exercise regimen for the children after each meal, which included sit-ups, push-ups, and "crab walking". The family's contact with people outside the home was very limited. Parents isolated the children from family and neighbors and the children were home-schooled. Parents also distrusted allopathic medicine and refrained from all conventional medical treatment. Instead, Parents routinely consulted a naturopathic doctor in Wisconsin over the telephone for diagnoses and treatment.

¶ 3 On April 23, 2005, Parents called 911 and reported that their three-year old daughter, Z.P., was having seizures. Paramedics transported Z.P. to Scottsdale Healthcare Osborn. The emergency room physician was concerned for Z.P., who he described as being severely malnourished, extremely emaciated and almost "skeletal in appearance." At the time, Z.P. weighed only twelve pounds. Blood tests administered in the emergency room revealed that Z.P. had critically low blood sugar and sodium levels. Given her grave condition, Z.P. was immediately airlifted to the Pediatric Intensive Care Unit (ICU) at Phoenix Children's Hospital.

¶ 4 At Phoenix Children's Hospital, the treating physician spoke at length with Father about Z.P.'s condition. Father admitted to the physician that Z.P. had never received any previous medical attention or childhood immunizations. Father attributed Z.P.'s extreme appearance to malabsorption, which is the inability to absorb the nutrients from ingested foods. However, the treating physician found this implausible as Z.P. did not exhibit symptoms normally associated with malabsorption, such as frequent bowel movements and vomiting. Rather, the physician concluded that Z.P.'s low weight and short stature were largely "environmental" and the result of "chronic nutritional deprivation." Z.P. was admitted to the hospital for severe malnutrition.

¶ 5 In light of Z.P.'s condition, Phoenix Children's Hospital staff were concerned about the welfare of Parents' two other children, daughter M.P. and son C.P., and requested that they be brought to the hospital for an examination. After Parents refused, the Arizona Department of Economic Security (ADES) served a temporary custody notice on Parents and the two children were brought to the hospital to be examined. Like Z.P., M.P. and C.P. appeared "extremely thin." M.P., who was eleven years old, weighed thirty-seven pounds, which is the average weight of a five-year old. Similarly, C.P., who was nine years old, weighed only thirty-one pounds, the average weight of a three-and-a-half year old. Both children's heights were also "severely abnormal" for their ages. Mother attributed their size to malabsorption much as Father had with Z.P. However, the treating physician ruled this out as neither child exhibited the typical symptoms. As with Z.P., the treating physician diagnosed M.P. and C.P. with severe malnutrition and both children were admitted to the hospital.

¶ 6 All of the children were taken into temporary custody and ADES filed a dependency petition as to all three children. Shortly thereafter, before the juvenile court ruled on the dependency petition, ADES filed a petition for termination of parental rights, alleging, under A.R.S. § 8-533(B)(2), that Parents had neglected and/or willfully abused the children. ADES further alleged that severance was in the children's best interests.

¶ 7 While hospitalized, the children maintained their vegan diets, but were fed a "normal" amount of calories. This proved successful as all three children, within weeks of hospitalization, gained weight and grew taller. In the time they were hospitalized, the children also became more energetic and active. Upon release from the hospital, the children were placed in a licensed foster home. The children were happy in their foster placement. C.P. developed such an attachment to his foster family that he began referring to his foster parents as his parents.

¶ 8 After a five day jury trial, the jury found that Parents had neglected or willfully abused all three children. Furthermore, the jury found that severance was in the best interests of C.P. and Z.P., but not M.P. The juvenile court accordingly terminated Parents' rights to C.P. and Z.P. Parents timely appealed.¹ We have jurisdiction pursuant to A.R.S. §§ 8-235 (2007) and 12-120.21 (2003), and Arizona Rule of Procedure for the Juvenile Court 88.

DISCUSSION

A. Exclusion of Evidence of I.P.

¶ 9 During the severance proceedings, Mother gave birth to another child, I.P., who was subsequently found to be dependent as to Parents. However, the parties agreed I.P. would remain in Parents' physical custody. Prior to trial, ADES filed a motion in limine requesting that the juvenile court exclude all evidence relating to the dependency and placement of I.P. during the severance trial. The juvenile court granted the motion.

¶ 10 Although Parents concede that evidence of I.P.'s dependency and placement bears no relevance to the neglect and willful abuse ground of termination under which their parental rights were severed, they argue that such evidence was relevant to whether termination was in the children's best interests and, therefore, should have been presented to the jury. Arizona Rule of Evidence 401² provides that evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." The central issue when determining the best interests of a child in a termination action is whether the child "would derive an affirmative benefit from termination or incur a detriment by continuing in the relationship." Ariz. Dep't of Econ. Sec. v. Oscar O., 209 Ariz. 332, 334, ¶ 6, 100 P.3d 943, 945 (App.2004) (citations omitted). Therefore, "the best interests inquiry focuses primarily upon the interests of the child, as distinct from those of the parent." Kent K. v. Bobby M., 210 Ariz. 279, 287, ¶ 37, 110 P.3d 1013, 1021 (2005).

¶ 11 We will not disturb a trial court's ruling on the admission or exclusion of evidence unless a clear abuse of discretion is present and prejudice resulted therefrom. Lashonda M. v. Ariz. Dep't of Econ. Sec., 210 Ariz. 77, 82-83, ¶ 19, 107 P.3d 923, 928-29 (App.2005) (citations omitted). A trial court abuses its discretion when it exercises discretion in a manner that is either "manifestly unreasonable" or based on untenable grounds or reasons. Id. at 83, ¶ 19, 107 P.3d at 929 (quoting Quigley v. Tucson City Court, 132 Ariz. 35, 37, 643 P.2d 738, 740 (App.1982)).

¶ 12 In this case, evidence regarding a child born during the proceedings was not relevant to the determination of whether termination was in C.P. and Z.P.'s best interests. I.P. was born well into the proceedings and had not suffered the neglect and abuse that C.P. and Z.P. had experienced. In fact, although I.P. remained in Parents' physical custody, Parents never cared for the child independent of the services provided by ADES. The fact that Parents were caring for I.P. did not demonstrate that it was in C.P. or Z.P.'s best interests to have the parental relationship maintained. Accordingly, the juvenile court did not abuse its discretion in excluding evidence regarding the dependency and placement of I.P.

B. Filing of a Petition for Termination Pursuant to A.R.S. § 8-533 vs. A.R.S. § 8-862

¶ 13 Shortly after ADES filed its termination petition, Parents moved to dismiss the petition, arguing ADES was precluded from filing a petition for termination under A.R.S. § 8-533 when a dependency petition was previously filed under A.R.S. § 8-841 (2007) and no finding of dependency had yet been made. Because ADES had already filed a dependency petition, Parents argued that ADES could only pursue termination by way of a motion for termination under A.R.S. § 8-862(D)(1) (2007). By filing a petition for termination while there was an ongoing dependency action, Parents argued that ADES effectively bypassed the procedural requirements set forth in the dependency statutes and, therefore, violated their due process rights. The juvenile court denied Parents' motion, ruling that an...