Opinion
No. 1 CA-JV 14-0024
06-17-2014
ROBERT K., Appellant, v. ARIZONA DEPARTMENT OF CHILD SAFETY, M.F., Appellees.
Arizona Attorney General's Office, Phoenix By JoAnn Falgout Counsel for Appellee John L. Popilek PC, Scottsdale By John L. Popilek Counsel for Appellant
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
Appeal from the Superior Court in Maricopa County
No. JD23259
The Honorable Connie Contes, Judge
AFFIRMED
COUNSEL
Arizona Attorney General's Office, Phoenix
By JoAnn Falgout
Counsel for Appellee
John L. Popilek PC, Scottsdale
By John L. Popilek
Counsel for Appellant
MEMORANDUM DECISION
Judge Andrew W. Gould delivered the decision of the Court, in which Presiding Judge Lawrence F. Winthrop and Judge Maurice Portley joined. GOULD, Judge:
¶1 Robert K. ("Father") appeals from the juvenile court's order terminating his parental rights to Child. He argues the Arizona Department of Child Safety ("ADCS") did not prove the statutory grounds for severance by clear and convincing evidence and that ADCS did not provide him reasonable reunification services. He also claims the court improperly denied his request to be physically present for the severance hearing. For the following reasons, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 Father's parental rights to Child were terminated on the following grounds: (1) Father's willful abuse of a child, (2) Father is deprived of his civil liberties due to his conviction of a felony of such nature as to prove his unfitness to have future custody and control of Child, and (3) the sentence Father was serving was of such length that Child would be deprived of a normal home for a period of years. Arizona Revised Statutes ("A.R.S.") sections 8-533(B)(2), (4).
¶3 When Father was 13 years old, he was convicted of sexually assaulting his 6-year-old neighbor in Texas; he was charged as a juvenile and committed to the juvenile justice department. Father was 21 when he was released; as a condition of his release he was required to register as a sex offender. When Father was 22, he met Mother, who was 15 or 16 years old. He was still in Texas at the time. Father was initially engaged to marry Mother's older sister; however, he began a relationship with Mother. Mother and Father moved from Texas to Arizona in November of 2011.
¶4 During the course of moving between Arizona and Texas, however, Father did not register as a sex offender. As a result, in January 2012 Father was arrested and charged with one count of failure to register as a sex offender. He was also charged with two counts of sexual conduct with a minor for having sexual intercourse with a 17-year-old he met in a bar; he was 25 years old at the time.
¶5 Father pled guilty to one count of failure to register as a sex offender and one count of sexual conduct with a minor and was sentenced to 2.5 years in prison on March 12, 2012. Mother gave birth to Child on June 1, 2012; Father was incarcerated at the time.
¶6 While Father was still in prison, ADCS became involved due to Mother's neglect of her children and removed Child and his older half-brother in February 2013. ADCS filed a dependency petition as to both children. Mother did not contest the petition, and on March 27, 2013 the juvenile court found the children dependent as to Mother. Father contested the dependency; therefore, the juvenile court held a hearing on August 27, 2013 and found Child dependent as to Father with a case plan of severance and adoption.
Mother's older child is not biologically related to Father and is not a party to this appeal.
¶7 In November 2013 the juvenile court severed Mother's parental rights to both her children. On January 6, 2014, the court held a contested severance hearing with regard to Father. ADCS alleged Father's parental rights should be terminated because he had willfully abused a child, he was incarcerated for a felony the nature of which proved he was unfit to parent Child, and the length of his sentence would deprive Child of a normal home for a period of years. Because of his inmate status, Father appeared telephonically at the hearing. Following the hearing, the court found ADCS had proved all three alleged grounds for severance by clear and convincing evidence and terminated Father's parental rights to Child. The court also concluded, by a preponderance of the evidence, that severance would be in Child's best interests. Father timely appealed.
DISCUSSION
I. Father's telephonic appearance
¶8 Father argues the court abused its discretion by denying his request to appear in person for the severance hearing. We review the court's ruling for an abuse of discretion. See Strube v. Strube, 158 Ariz. 602, 605, 764 P.2d 731, 734 (1988) (stating "question of whether to permit a prisoner/litigant in a civil case to be physically present in court is within the trial court's sound discretion").
¶9 At the beginning of the hearing, Father's attorney informed the court that Father wished to be physically present; Father's attorney admitted, though, that she had not relayed this request to the court prior to the hearing. "A prisoner's access to the courts is not absolute," and "appearance by telephone is an appropriate alternative to personal appearance." Ariz. Dep't of Econ. Sec. v. Valentine, 190 Ariz. 107, 110, 945 P.2d 828, 831 (App. 1997) (citing Strube, 158 Ariz. at 604, 764 P.2d at 733). "The court has discretion to balance the interests of the prisoner against those of other parties and the state, taking into account such factors as whether the prisoner is a security risk, the possibility of delay, and the cost of transportation." Id.
¶10 The juvenile court did not abuse its discretion in denying Father's request to appear in person. The court considered the totality of the circumstances, including the nature of the allegations — that ADCS was seeking severance based on the nature of Father's felony and Mother had been victimized by Father— and the expense of transporting Father from the Arizona Department of Corrections to the hearing. Father had appeared telephonically at all prior hearings without issue; and, although Father contends he could not effectively assist counsel via telephone, Father does not explain what he would have done had he been present or how he was prejudiced. See Creach v. Angulo, 189 Ariz. 212, 214, 941 P.2d 224, 226 (1997) (holding prejudicial error required for reversal). II. The grounds for severance
¶11 Father argues ADCS did not present clear and convincing evidence of the statutory grounds for severance. As the trier of fact in a termination proceeding, the juvenile court "is in the best position to weigh the evidence, observe the parties, [and] judge the credibility of witnesses." See Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, 280, ¶ 4, 53 P.3d 203, 205 (App. 2002). "On review . . . we will accept the juvenile court's findings of fact unless no reasonable evidence supports those findings, and we will affirm a severance order unless it is clearly erroneous." Id. The juvenile court is only required to find one of the statutory grounds alleged by ADES. See Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, 251, ¶ 27, 995 P.2d 682, 687 (2000).
¶12 Father challenges termination of his parental rights under A.R.S. § 8-533(B)(4). Father argues the felony for which he was incarcerated at the time of the severance trial did not demonstrate his unfitness to parent his young child because the victim was a 17-year-old. Further, he argues his juvenile conviction for molesting a 6-year-old was too stale to bear on his present ability to parent, and ADCS did not produce any psychological testimony to establish whether he was presently unfit to parent.
¶13 Section 8-533(B)(4) provides for termination of the parent-child relationship if the parent "is deprived of civil liberties due to the conviction of a felony if 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." "A felony proves unfitness if its commission permits a rational inference of unfitness." In re Juv. Action Nos. S-826 and J-59015, 132 Ariz. 33, 34, 643 P.2d 736, 737 (App. 1982); In re Juv. No. J-2255, 126 Ariz. 144, 146, 613 P.2d 304, 306 (App. 1980) (same). Prior convictions for molesting young girls provide a rational inference of unfitness to parent. In re Juv. No. J-2255, 126 Ariz. at 146-47, 613 P.2d at 306-07. "The proof of the conviction creates a rebuttable presumption that the father is unfit to parent children." In re Juv. Action Nos. S-826 and J-59015, 132 Ariz. at 35, 643 P.2d at 738 ; In re Juv. No. J-2255, 126 Ariz. at 147, 613 P.2d at 307 (stating that "the parent may rebut the assessment of unfitness based on a past act by showing actual fitness at the time of the hearing").
¶14 The court's finding that "[s]ince age 13 [Father] has multiple convictions and one prison infraction for sexual offenses spanning many years and multiple victims for which he has received no particularized treatment," is supported by the record. At the time of the severance trial, Father was incarcerated for one count of failure to register as a sex offender, a class 4 felony; and one count of sexual conduct with a minor, a class 6 felony. His conviction for a sexual relationship with a minor, coupled with a previous conviction for molesting a 6-year-old, creates a rebuttable presumption he is unfit to parent children. See In re Juv. Action Nos. S-826 and J-59015, 132 Ariz. at 34, 643 P.2d at 738 (combining conviction of rape and sodomy with prior conviction for child abuse to support rational inference of unfitness).
¶15 Father did not rebut the presumption of unfitness. The evidence presented at the severance hearing showed Father's propensity for victimizing minor children. In Texas, Father was convicted of sexual assault of his neighbor, a 6-year-old; he was 13 at the time, and he remained in the custody of the juvenile justice department until he was 21. Upon being released from custody in Texas, when Father was 21 or 22 and Mother was 15, Father became engaged to marry Mother's sister. However, Father soon became sexually involved with Mother. Father and Mother moved between Texas and Arizona living with relatives or on the streets. When Mother became pregnant, the two lived with Father's parents in Prescott; shortly thereafter, Father was arrested and charged with sexual misconduct with a minor and failure to register as a sex offender. III. ADCS's provision of reunification services
¶16 Father argues ADCS did not satisfy its burden to provide him reunification services. Father's parental rights were terminated pursuant to A.R.S. § 8-533(B)(4) because of a felony conviction which proved him unfit to have future custody and control of Child. We note that ADCS is not statutorily required to provide reunification services under A.R.S. § 8-533(B)(4). James H. v. Ariz. Dep't of Econ. Sec., 210 Ariz. 1, 2, ¶ 6, 106 P.3d 327, 328 (App. 2005) (stating that the 1998 amendment to the statute deleting that requirement "can be read as an affirmative legislative decision that reunification services are not required in the context of a subsection (B)(4) severance"). In addition, because the juvenile court found that Father was convicted of sexual conduct with a minor, ADCS was not required to provide reunification services pursuant to A.R.S. § 8-846(B)(2).
¶17 Although there is no statutory duty to provide reunification services, we still recognize an obligation to engage in reunification efforts, "on constitutional grounds as a necessary element of any state attempt to overcome . . . the 'fundamental liberty interest of the natural parents in the care, custody and management of their child.' "Mary Ellen C. v. Ariz. Dep't of Econ. Sec., 193 Ariz. 185, 192, ¶ 32, 971 P.2d 1046, 1053 (App. 1998) (quoting Santosky v. Kramer, 455 U.S. 745, 753 (1982)). To satisfy this general obligation, ADCS is required to "undertake reunification only in cases where there is a reasonable prospect of success." James H., 210 Ariz. at 2, ¶ 8, 106 P.3d at 328. Moreover, "[T]here is no constitutional mandate to undertake reunification efforts that are futile." Id.
¶18 The record supports the juvenile court's conclusion that given Father's history, it would be futile to allow Child to languish in foster care in order to provide Father services upon his release from prison. Because Father was incarcerated during the dependency, ADCS did not provide Father reunification services; rather, the department encouraged Father to pursue whatever services his place of incarceration provided. In addition, despite receiving rehabilitative sex-offender treatment as a juvenile, Father continued in his pattern of victimizing minors.
¶19 We therefore affirm the juvenile court's severance of Father's parental rights. Having found clear and convincing evidence supports the court's severance of Father's parental rights under A.R.S. § 8-533(B)(4), "we need not address claims pertaining to the other grounds." Jesus M., 203 Ariz. at 280, ¶ 3, 53 P.3d at 205.
Father does not challenge the court's best interests findings on appeal.
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CONCLUSION
¶20 For the reasons stated above, the juvenile court's termination of Father's parental rights to Child is affirmed.