Opinion
2 CA-JV 2023-0025
10-02-2023
In re Termination of Parental Rights as to D.H.,
Greg H., Florence In Propria Persona. The Huff Law Firm, Tucson By Laura J. Huff and Daniel R. Huff Counsel for Appellee.
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Cochise County No. SV202200008 The Honorable Terry Bannon, Judge Pro Tempore.
Greg H., Florence In Propria Persona.
The Huff Law Firm, Tucson By Laura J. Huff and Daniel R. Huff Counsel for Appellee.
Judge Sklar authored the decision of the Court, in which Vice Chief Judge Staring and Judge Brearcliffe concurred.
MEMORANDUM DECISION
SKLAR, JUDGE.
¶1 Greg H. appeals from the juvenile court's order terminating his parental rights to his son, D.H., born May 2018, on the ground that he was deprived of civil liberties due to felony convictions and his sentence "is of such length that the child will be deprived of a normal home for a period of years." A.R.S. § 8-533(B)(4). We affirm.
¶2 We view the facts in the light most favorable to upholding the juvenile court's ruling. Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, ¶ 20 (2000). Greg pled guilty to sexual abuse of a minor under the age of fifteen and no contest to intentional or knowing child abuse under circumstances other than those likely to produce death or serious physical injury. His daughters were the victims. In March 2022, the superior court imposed a five-year prison term for sexual abuse, to be followed by lifetime probation for child abuse. Greg is required to register as a sex offender and, as a condition of probation, he may not have contact with any person under the age of eighteen. In April 2022, G.D., Greg's former spouse and D.H.'s mother, filed a petition to terminate Greg's parental rights to D.H. on the grounds of abandonment, neglect or abuse, chronic mental illness, and Greg's felony convictions. See § 8-533(B)(1), (2), (3), (4), (10).
¶3 After a contested hearing, the juvenile court terminated Greg's parental rights to D.H. It concluded that G.D. had proven termination was warranted under § 8-533(B)(4) but that she had not met her burden of proof for any other alleged ground. The court observed that Greg's five-year prison term would not prevent Greg from maintaining a relationship with D.H. It nonetheless found that "the allegations and the nature of the conviction" warranted termination, noting that Greg was required to register as a sex offender and "cannot be around children under the age of 18 years of age." The court also found termination was in D.H.'s best interests, observing that D.H.'s stepfather wished to adopt him, which would provide D.H. with "security and stability." This appeal followed.
¶4 To terminate a parental relationship, the juvenile court must find by clear and convincing evidence at least one of the grounds for termination in § 8-533(B), and by a preponderance of the evidence that termination is in the child's best interests. Alma S. v. Dep't of Child Safety, 245 Ariz. 146, ¶ 8 (2018). "The juvenile court, as the trier of fact in a termination proceeding, is in the best position to weigh the evidence, observe the parties, judge the credibility of witnesses, and make appropriate findings." Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, ¶ 4 (App. 2002). We do not reweigh the evidence and will look only to determine if there is reasonable evidence to sustain the court's ruling. Mary Lou C. v. Ariz. Dep't of Econ. Sec., 207 Ariz. 43, ¶ 8 (App. 2004). We will affirm the court's ruling unless it is clearly erroneous. Demetrius L. v. Joshlynn F., 239 Ariz. 1, ¶ 9 (2016).
¶5 On appeal, Greg identifies numerous arguments. For the most part, these arguments consist of three claims: (1) the evidence of his previous child abuse, including sexual abuse, was based on "false unsubstantiated third-party hearsay"; (2) basing severance on that evidence violated his due process rights as well as those of D.H.; and (3) his appointed counsel failed to object to evidence about his history of child abuse and sexual abuse and to present evidence that would have rebutted those allegations. Even were these arguments persuasive, they relate only to grounds for termination rejected by the juvenile court. Because they have no bearing on the court's finding that termination was warranted under § 8-533(B)(4), we need not address them.
The juvenile court found Greg had a long history of abusive behavior that had caused several children to engage in self-harm requiring extensive therapy. Those findings, however, were not necessary for its conclusion that termination was warranted under subsection (B)(4), which depends solely on Greg's felony convictions and the resulting effect on his ability to have a parental relationship with D.H.
¶6 Section 8-533(B)(4) provides for termination when "the parent is deprived of civil liberties due to the conviction of a felony if (1) the felony of which that parent was convicted is of such nature as to prove the unfitness of that parent to have future custody and control of the child" or (2) "the sentence of that parent is of such length that the child will be deprived of a normal home for a period of years." The juvenile court did not address the first severance basis identified in subsection (B)(4) and it expressly found that Greg's five-year prison term would not deprive D.H. of a normal home for a sufficient period to warrant termination. It did, however, find that termination was warranted under (B)(4) because the conditions of Greg's lifetime probation would prevent him from having contact with D.H.
Greg does not assert that a probation period is not a "sentence" as contemplated by § 8-533(B)(4). See Wilson v. Higgins, 251 Ariz. 282, ¶ 16 (2021) (recognizing that a "sentence" may encompass probation depending on context); Ariz. R. Crim. P. 26.1(c) ("'Sentence' means the court's pronouncement of the penalty imposed on the defendant after a judgment of guilty.") Nor do we find any authority suggesting that it is not. See E.R. v. Dep't of Child Safety, 237 Ariz. 56, ¶ 14 (App. 2015) ("primary purpose" of severance statute is "protecting the health and safety of children").
¶7 Greg argues the juvenile court improperly "speculated" that he would not be able to have contact with D.H., asserting that, during his sentencing, the superior court told him "exactly how [he] would go about maintaining contact" with D.H. Greg testified during the severance hearing that he believed his probation officer would have the authority to allow supervised visits. He also suggested, without explanation, that he might not "have to do probation at all." There is no evidence in the record that such visits, even if the probation officer could allow them, were likely to occur. It was for the juvenile court to weigh Greg's testimony against the undisputed evidence that he faced lifetime probation preventing him from having personal contact with any child, including D.H. See Mary Lou C., 207 Ariz. 43, ¶ 8. We find no error in the court's determination that Greg's lifetime probation would prevent him from maintaining a meaningful parental relationship with D.H.
Greg asserts he "has been working" to have the sentencing transcript "added to the record." We do not consider evidence not in the record on appeal. See State v. Schackart, 190 Ariz. 238, 247 (1997).
¶8 Greg also contends the juvenile court erred in concluding termination was in D.H.'s best interests. But, although he broadly asserts D.H. would benefit from having contact with him, he fails to acknowledge the court's finding that D.H.'s stepfather intended to adopt him and would provide needed security and stability. See Demetrius L., 239 Ariz. 1, ¶ 20 ("making [child] adoptable" by stepfather "would affirmatively improve [child's] life" by "add[ing] permanency and stability"); Mary Lou C., 207 Ariz. 43, ¶ 19 (that a child is adoptable may be sufficient to support a finding of best interests). Greg's argument, taken as a whole, is a request that we reweigh the evidence, which we will not do. See Mary Lou C., 207 Ariz. 43, ¶ 8.
¶9 Greg requests that we award him "pro-se attorney's fees and costs," citing A.R.S. § 12-341.01. As this is not a contract action, that statute does not apply, even had Greg prevailed on appeal. And, in any event, "[i]n Arizona, it is the rule that parties who represent themselves in a legal action are not entitled to recover attorney fees." Munger Chadwick, P.L.C. v. Farwest Dev. &Constr. of the Sw., LLC, 235 Ariz. 125, ¶ 5 (App. 2014). G.D. also requests an award of attorney fees and costs, citing A.R.S. §§ 12-349 and 12-2106. We deny her request for attorney fees. And Rule 21, Ariz. R. Civ. App. P., which permits the award of costs on appeal in a civil matter, does not apply to juvenile appeals. See Ariz. R. P. Juv. Ct. 602(i). Thus, we deny G.D.'s requests for costs.
¶10 We affirm the juvenile court's order terminating Greg's parental rights to D.H.