Levi R. v. Dep't of Child Safety

Decision Date27 September 2022
Docket Number1 CA-JV 22-0016
PartiesLEVI R., Appellant, v. DEPARTMENT OF CHILD SAFETY, E.R., Appellees.
CourtArizona Court of Appeals

Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court

Appeal from the Superior Court in Maricopa County No. JS519937 The Honorable Lori Bustamante, Judge

Vierling Law Offices, Phoenix By Thomas A. Vierling Counsel for Appellant

Arizona Attorney General's Office, Tucson By Jennifer R Blum Counsel for Department of Child Safety

Vice Chief Judge David B. Gass delivered the decision of the court, in which Presiding Judge Samuel A. Thumma and Judge Cynthia J. Bailey joined.

MEMORANDUM DECISION

GASS, VICE CHIEF JUDGE

¶1 Levi R. (father) appeals the superior court's order terminating his parental rights. We affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2 Father is the biological parent of a now-five-year-old child. In 2017, the child's mother tried to place the child for adoption without father's consent. At that point, the Department of Child Safety (DCS) began the 2017 dependency. Father participated in visitation, parent-aide services, substance-abuse treatment, counseling, and family-reunification services. The superior court ultimately dismissed the 2017 dependency and awarded father sole legal decision-making.

¶3 After that, DCS continued receiving reports of violent incidents involving father. During one incident, father punched and tried to strangle his wife-who was not the child's mother-while the child was in the backseat of a moving vehicle. Later, when father and the child were living in Illinois, father's relatives locked themselves in a room and called police because father became violent, and they were scared he would hurt them. The same month, father took the then-two-year-old child with him to purchase drugs. The exchange turned sour, and father fled after being shot, leaving the child at the scene.

¶4 By March 2020, father and the child were living in Nevada. Father left the then-three-year-old child unattended to chase someone father claimed owed him money. The unattended child crossed a busy intersection, nearly getting hit by traffic. Father came back and took the child into a Burger King, only to again leave the child unattended so father could continue his chase. Police arrested father for child abuse and endangerment, and the Nevada Department of Family Services (Nevada DFS) took custody of the child.

¶5 Nevada DFS contacted DCS to transfer the case, believing Arizona had exclusive continuing jurisdiction. Meanwhile, Nevada DFS offered father eight virtual visits with the child. Father attended only two, both of which ended abruptly because father behaved inappropriately, accusing the child of lying and "grilling" the child about placement. At some point, the child returned to Arizona, and at the end of March 2020, father returned as well. DCS contacted father, and he initially agreed to participate in services but later refused.

¶6 Father was incarcerated for all but a few days of the 2020 dependency and termination actions. On April 5, 2020, while on release status, father threatened his sister with a knife and told DCS he would not engage in services. Five days later, police arrested and incarcerated father for domestic violence and a probation violation. At that point, DCS filed the 2020 dependency. The 2020 dependency is not before this court, and the record here regarding the 2020 dependency amounts to a few documents and references in the case worker's testimony. The record also includes documents from some of father's criminal cases.

¶7 Beginning early in the 2020 dependency, the child resisted visiting father. In April 2020, DCS's psychologist recommended father not have visits based on the child's "behaviors, emotional withdrawal and dysregulation, and history of instability and trauma." In July 2020, the court suspended father's visits. Father never asked DCS or the superior court to reinstate his visits. At the termination trial, DCS's psychologist testified the child's history of trauma would have made it "extremely difficult" for father to use visits while he was in custody to nurture a relationship with the child.

¶8 On June 27, 2020, father was released from jail and almost immediately broke into his wife's apartment. Police arrested father two days later. He remained incarcerated throughout the rest of the 2020 dependency and termination actions. DCS did not provide services to father during his incarceration. Father provided documents indicating he took courses on substance abuse, anger management, conflict resolution, behavioral change, and coping skills. Father, however, offered no further supporting evidence on those courses, and DCS did not consider them. The superior court recognized father's efforts, but also said father's participation did not necessarily mean he made the "behavioral changes needed for reunification." And as of the termination adjudication, the superior court found father still had "no insight into his violent temper and the [e]ffects his behaviors have had on" the child.

¶9 In May 2021, the child's guardian ad litem (GAL) petitioned to terminate father's parental rights based on the length-of-felony-sentence ground. See A.R.S. § 8-533.B.4. DCS did not seek to intervene -or ask to substitute in for the GAL-in the termination action. In July 2021, the GAL amended the termination petition to add the 15-month out-of-home placement ground. See A.R.S. § 8-533.B.8(c). The superior court held a consolidated dependency and termination trial. DCS handled the dependency portion, and the GAL handled the termination portion. After the contested trial, the superior court terminated father's parental rights on the grounds alleged in a detailed January 2022 ruling. The record in this appeal does not include the superior court's ruling in the dependency action.

¶10 Father timely appealed. This court has jurisdiction under article VI, section 9, of the Arizona Constitution, and A.R.S. §§ 8-235.A, 12-120.21.A.1, and 12-2101.A.1.

ANALYSIS

I. Father Waived Any Objection to DCS Participating in this Appeal.

¶11 The 2020 dependency is not before this court. In this termination action, DCS neither moved to substitute in for the GAL nor moved to intervene. Even so, DCS filed the only answering brief in this appeal. We asked father, the GAL, and DCS to brief DCS's ability to participate in this appeal under those circumstances.

¶12 DCS argues it has standing to appear in this appeal from a termination trial and argues father waived any challenge to its participation in the appeal. See Shawanee S. v. Ariz Dep't of Econ. Sec, 234 Ariz. 174, 179, ¶ 16 (App. 2014) (a parent who does not raise the issue in the superior court is precluded from challenging that finding on appeal). But having standing is not the same as being a party. See Bechtel v. Rose In & For Maricopa Cnty., 150 Ariz. 68, 72 (1986) (standing is only one factor courts look at to determine if a party can intervene in an action). Father, in his supplemental brief, argues for the first time DCS did not have standing to file the answering brief on appeal because DCS was not a party to the severance petition. The superior court's under-advisement ruling does say DCS was a party "to these proceedings." Father did not seek any changes to that ruling in the superior court, and father did not raise the issue in his opening brief. In our discretion, we apply waiver here. See Logan B. v. Dep't of Child Safety, 244 Ariz. 532, 536, ¶ 9 (App. 2018) ("[T]he decision to find waiver is discretionary."). Father, thus, waived the issue of DCS's standing to file an answering brief on appeal.[1] II. The Superior Court Need Not Consider a Permanent Guardianship When Terminating a Parent's Rights Based on a 15-Months' Time in Care Ground.

¶13 Father argues the superior court "should [have] considered] the availability of permanent guardianship" for the 15-months' time in care ground because he was incarcerated. See Timothy B. v. Dep't of Child Safety, 252 Ariz. 470, 477, ¶ 27 (2022). This court reviews de novo "legal issues requiring the interpretation and application of § 8-533." Jessie D. v. Dep't of Child Safety, 251 Ariz. 574, 580, ¶ 10 (2021) (quoting Ariz. Dep't of Econ. Sec. v. Rocky J., 234 Ariz. 437, 440, ¶ 12 (App. 2014)).

¶14 In Timothy B., where a specified family member was willing to serve as a permanent guardian, the Arizona Supreme Court said the normal-home consideration in length-of-felony-sentence cases means the court "should consider the availability of a permanent guardian to provide a normal home life [during the incarceration period] if another parent is unavailable." Timothy B., 252 Ariz. at 477, ¶ 27. The Arizona Supreme Court issued its Timothy B. opinion after the termination order here, which did not address a permanent guardianship option for either the length-of-incarceration ground or the 15-months' time in care ground.

¶15 The plain language of the 15-month out-of-home placement ground does not require a Timothy B. inquiry. This court first looks "to the statute's plain language as the best indicator of [legislative] intent[,]" and if the language is clear and unambiguous, this court "must give effect to that language without employing other rules of statutory construction." Parsons v. Ariz. Dep't of Health Servs., 242 Ariz. 320, 323, ¶ 11 (App 2017). The out-of-home placement ground only requires: (1) the child was in court-ordered placement for at least fifteen months; (2) DCS made a diligent effort to provide appropriate reunification services; (3) father was unable to remedy the circumstance causing the child to be in court-ordered out-of-home care; and (4) a substantial likelihood father would not be capable of...

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