William M. v. Arizona Dep't of Econ. Sec.
| Decision Date | 19 April 2012 |
| Docket Number | 1 CA-JV 11-0216 |
| Parties | WILLIAM M., JESSICA M., Appellants, v. ARIZONA DEPARTMENT OF ECONOMIC SECURITY, WILLIAM M., 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(Not for Publication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
Thomas C. Horne, Attorney General
By Kent E. Cattani, Chief Counsel
Criminal Appeals/Capital Litigation Section
And Amanda Holguin, Assistant Attorney General
Attorneys for Appellee
Mesa
The Brewer Law office
By Benjamin M. Brewer
Attorneys for Appellant/Father William M.
Showlow
Diane S. Mccoy, Mohave County Appellate Defender
Attorney for Appellant/Mother Jessica M.
Kingman
¶1 Jessica M. ("Mother") and William M. ("Father") (collectively "Parents") appeal from the juvenile court's order terminating their parental rights to William M. ("Child"). For the reasons that follow, we affirm.
¶2 Child was removed from Parents' care at birth, in December 2010, because their three older children were currently involved in a dependency proceeding. The older children had been removed due to neglect and failure to protect. In January 2011, the Arizona Department of Economic Security ("ADES") filed a supplemental dependency petition to initiate a dependency proceeding for Child. In February, ADES moved to terminate the parent-child relationships between Mother and Father and their three older children. In the midst of the severance trial to the three older children, ADES filed a motion to terminate Mother's and Father's parental rights as to Child.
¶3 In August 2011, the juvenile court terminated Mother's and Father's parent-child relationships with their three older children. We provide a summary of the facts relevant to the terminations of Mother's and Father's parent-child relationship with Child below.
¶4 Law enforcement conducted a search of Parents' home to investigate allegations of child pornography. Because of theunsafe, unhygienic living conditions found in the home, the children were removed from Parents' care. Mother and Father were arrested and pled guilty to felony child abuse. After being removed from the home, the children participated in a forensic interview and sexual assault forensic exam; the exam revealed that all three of the older children had been sexually abused. The court terminated Mother's and Father's parental rights to their three older children.
¶5 Shortly after the severance of the three older children, ADES filed an amended motion for termination of Mother's and Father's parental rights to Child. The juvenile court held a severance trial on October 3, 2011. The court took judicial notice of the record in the prior severance of Mother's and Father's three older children. The current CPS case manager testified that Child had been removed because the situation requiring removal of Parents' three older children had not been remedied at the time of Child's birth. She testified that neither parent had made any behavior changes. Mother continued to live with Father despite having been told the case plan would become severance and adoption if she did not find a place to live away from Father. Father did not participate in services offered beyond parenting classes, and neither he nor Mother took responsibility for the circumstances that brought Child into care. A Child Protective Services ("CPS") case manager testifiedseverance was in Child's best interests and that because of Child's young age, he would be more vulnerable to harm than his three older siblings if returned to the home.
¶6 The CPS case manager stated, and Mother acknowledged, that Mother living separately from Father was a requirement of the case plan. On the date of the trial, Mother was still living in the same home with Father from which her children were removed. Mother testified that she planned to move into a different house within two weeks of the severance trial. Mother stated the house needed some repairs - drywall, insulation, and carpet installation - and it would not be ready for her to move into for two weeks. She intended to move into the house without Father if her parental rights to Child were not severed but Father's were. She stated, though, that if both hers and Father's parental rights were not severed, Father would move into the house with her.
¶7 At the conclusion of the trial, the juvenile court found by clear and convincing evidence that termination of Mother's and Father's parental rights was appropriate under Arizona Revised Statutes ("A.R.S.") sections 8-533(B)(2) (neglect), (B)(2) (abuse), (B)(8)(b), (B)(10). The court also found that ADES had made diligent efforts to provide appropriate reunification services, and Mother and Father failed to remedy the circumstances that caused Child to be placed in care.Finally, the court found by a preponderance of the evidence that termination was in Child's best interests. Mother and Father timely appealed.
¶8 On appeal, "[w]e view the evidence in a severance case in the light most favorable to sustaining the juvenile court's findings." Christina G. v. Ariz. Dep't of Econ. Sec., 227 Ariz. 231, 234, ¶ 13, 256 P.3d 628, 631 (App. 2011). The juvenile court is in the best position to weigh the evidence, observe the parties, judge the credibility of witnesses, and make appropriate findings; we will only reject the court's findings if no reasonable evidence supports them. Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, 280, ¶ 4, 53 P.3d 203, 205 (App. 2002). If we find one of the statutory grounds on which the court ordered severance is supported by clear and convincing evidence, we will affirm. See Id. at ¶ 3.
¶9 Father appeals the juvenile court's termination of his parental rights to Child claiming that (1) he was denied effective assistance of counsel throughout the proceedings, (2) the court abused its discretion by admitting exhibits from a prior severance trial, (3) substantial evidence did not support the severance of his parental rights pursuant to A.R.S. § 8-533 (B)(2), (4) the court abused its discretion in finding ADESwas diligent in providing services to Father, and (5) the court abused its discretion in finding Father substantially failed to comply with services.
¶10 We reject Father's claim that ineffective assistance of counsel denied him an opportunity to be heard meaningfully at the severance trial because Father has not shown any resulting prejudice.1 We will not review an ineffective assistance of counsel claim on direct appeal unless "we may clearly determine from the record that the ineffective assistance claim is meritless." State v. Whalen, 192 Ariz. 103, 110, 961 P.2d 1051, 1058 (App. 1997) (quoting State v. Carver, 160 Ariz. 167, 175, 771 P.2d 1382, 1390 (1989)). To prevail on an ineffective assistance claim, a party must show that the representation fell below prevailing professional norms and that the party was prejudiced by the deficient representation. John M. v. ADES, 217 Ariz. 320, 323, ¶ 8, 173 P.3d 1021, 1024 (App. 2007). Father claims he was denied the opportunity to be heard meaningfully because his counsel failed to call any witnesses and did not timely object to ADES' disclosure. We need not inquire intocounsel's performance because Father has not demonstrated any resulting prejudice. Id. Father has not identified witnesses that counsel should have called. Father also claims that counsel's deficiencies permitted "potentially inadmissible evidence to be placed before the trier of fact," but he does not indicate what specific inadmissible evidence was considered.
¶11 Father next argues the juvenile court abused its discretion by taking judicial notice of the record in the severance trial of Father's three older children. Generally, a court may take judicial notice of procedural facts reflected in the record of another superior court action, but it may not take judicial notice of "the truth of testimony received in that other action." State v. Lynch, 115 Ariz. 19, 22, 562 P.2d 1386, 1389 (App. 1977). However, "[a] court may take judicial notice of the record in another action tried in the same court." Reidy v. O'Malley Lumber Co., 92 Ariz. 130, 132, 374 P.2d 882, 884 (1962); see also Pierpont v. Hydro Mfg. Co., 22 Ariz. App. 252, 254, 526 P.2d 776, 778 (1974). The juvenile court properly took judicial notice of the record in the prior severance of Father's three older children because both matters took place in the same court, under the same cause number. See Visco v. Universal Refuse Removal Co., 11 Ariz. App. 73, 74, 462 P.2d 90, 91 (1969) ().
¶12 Father challenges the juvenile court's findings supporting severance of his parental rights for the following reasons: (1) substantial evidence did not support the severance of his parental rights pursuant to A.R.S. § 8-533 (B)(2), (2) the court abused its discretion in finding ADES was diligent in providing services to Father, and (3) the court abused its discretion in finding Father substantially failed to comply with services. Because we find one of the statutory grounds on which the court ordered severance is supported by clear and convincing evidence, "we need not address claims pertaining to the other grounds."2 Jesus M., 203 Ariz. at 280, ¶ 3, 53 P.3d at 205 (citing Michael J. v. Ariz. Dep't of...
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