Opinion
No. 1 CA-JV 13-0125
03-18-2014
TIMOTHY H., Appellant, v. ARIZONA DEPARTMENT OF ECONOMIC SECURITY, B.B., Appellees.
Maricopa County Public Advocate, Mesa By Suzanne Sanchez Counsel for Appellant Attorney General's Office, Tucson By Cathleen E. Fuller Counsel for Arizona Department of Economic Security
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZ. R. SUP. CT. 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. JD509877
The Honorable Bradley H. Astrowsky, Judge
AFFIRMED
COUNSEL
Maricopa County Public Advocate, Mesa
By Suzanne Sanchez
Counsel for Appellant
Attorney General's Office, Tucson
By Cathleen E. Fuller
Counsel for Arizona Department of Economic Security
MEMORANDUM DECISION
Judge John C. Gemmill delivered the decision of the Court, in which Presiding Judge Maurice Portley and Judge Kent E. Cattani joined. GEMMILL, Judge:
¶1 Timothy H. ("Father") appeals the juvenile court's order terminating his parental rights to his son, B.B. For the reasons that follow, we affirm the severance of Father's parental rights to B.B.
Background
¶2 Father and Michelle B. ("Mother") are the biological parents of B.B., born in November 2010. In January 2012, the Arizona Department of Economic Security ("ADES") filed a petition alleging that B.B. was dependent because Father and Mother had neglected him and engaged in domestic violence, Mother had a mental illness, and both Father and Mother abused illegal substances. Child Protective Services ("CPS") had removed B.B. from his parents' care several days before the petition was filed.
Mother is not a party to this appeal.
¶3 In February 2012, the juvenile court found that B.B. was dependent with respect to Father and ordered that ADES implement a reunification case plan. ADES arranged for parent aide services, a psychological consultation, counseling through the Terros Behavioral Health Clinic, and urinalysis testing through Treatment Assessment Screening Center ("TASC"). Father did not take advantage of these services and declined to submit to any drug tests.
¶4 In July 2012, the Arizona Foster Care Review Board found that Father had not complied with the reunification case plan and that his whereabouts were unknown. The Board thus recommended that a plan for adoption be implemented concurrently with the reunification plan.
¶5 The juvenile court conducted a severance hearing in May 2013. An ADES case manager testified that B.B. had been out of his parents' care for over 15 months — approximately half of B.B's life, had not had consistent contact with Father, and Father failed to communicate with ADES from March 2012 until December 2012 despite ADES's attempts to contact Father via letters. During that nine-month period, Father did not maintain regular contact with B.B., request visitation, or provide monetary support. The case manager opined that Father substantially neglected and willfully refused to remedy the situation that caused B.B. to be in an out-of-home placement by failing to take advantage of reunification services and by not actively addressing his substance abuse issues.
¶6 At the close of the severance hearing, the juvenile court made findings and granted ADES's motion for severance. The court concluded that Father had abandoned B.B. and failed to maintain a normal parental relationship. The court also found that B.B. had been in an out-of-home placement for a cumulative period of longer than nine months, and that Father substantially neglected and willfully refused to remedy the circumstances that caused B.B. to be placed in ADES's care. Finally, the court found that Father was unable to discharge his parental responsibilities because of his history of chronic drug and alcohol abuse, which the court concluded would likely continue for a prolonged indeterminate time. The court then issued an unsigned minute entry, filed May 7, 2013, terminating Father's parental rights.
¶7 Father filed his notice of appeal May 17, 2013, after the court had announced its decision and issued the unsigned minute entry, but prior to the entry of final judgment with formal findings of fact and conclusions of law. In early June, the court ordered ADES to lodge proposed findings of fact and conclusions of law. ADES filed its proposed findings, conclusions, and order on June 13, 2013. No objections were made to the proposed findings, conclusions, and order. On June 25, 2013, the juvenile court signed and filed the formal findings of fact, conclusions of law, and order severing Father's parental rights to B.B. Father did not file a new or amended notice of appeal.
Appellate Jurisdiction
¶8 Before reaching the merits of Father's appeal, we address ADES's challenge to our appellate jurisdiction. ADES asserts that jurisdiction is lacking because Father's notice of appeal was premature and ineffective. We conclude, however, that we have jurisdiction.
¶9 ADES correctly notes that Father's notice of appeal was premature. A proper and timely notice of appeal should be filed after entry of the final order or judgment. Ariz. Rev. Stat. § 8-235; Ariz. R. Juv. Proc. 103, 104. At the severance hearing, the court stated that the minute entry it would be issuing in conjunction with the hearing would not be the appealable order, and the minute entry dated May 2 (filed May 7) was not signed by the court. It was clearly not the final order or judgment, and Father's notice of appeal was thus premature.
¶10 A notice of appeal filed prematurely is generally not effective to trigger our appellate jurisdiction. In Barassi v. Matison, 130 Ariz. 418, 636 P.2d 1200 (1981), however, the Arizona Supreme Court created a limited exception to the final judgment rule, holding that "a premature appeal from a minute entry order in which no appellee was prejudiced and in which a subsequent final judgment was entered over which jurisdiction may be exercised need not be dismissed." Id. at 422, 636 P.2d at 1204. In Craig v. Craig, 227 Ariz. 105, 253 P.3d 624 (2011), the supreme court reiterated that "Barassi 'create[d] only a limited exception to the final judgment rule' allowing a notice of appeal to be filed 'after the trial court has made its final decision, but before it has entered a formal judgment. . . if no decision of the court could change and the only remaining task is merely ministerial.'" Craig, 227 Ariz. at 107, ¶ 12, 253 P.3d at 626 (quoting Smith v. Ariz. Citizens Clean Elections Comm'n, 212 Ariz. 407, 415 ¶37, 132 P.3d 1187, 1195 (2006) (emphasis added)).
¶11 We conclude that the "Barassi exception" applies on this record. At the time Father filed his notice of appeal, all issues had been adjudicated and the only task remaining was entry of the formal findings, conclusions, and order. The court ordered ADES to submit proposed findings of fact, conclusions of law, and an order. ADES did so. Father did not object to the proposed order. The proposed order was fully consistent with the court's previous findings and conclusions as stated on the record and in the minute entry dated May 2 (filed May 7), 2013, and the court signed, without any changes, the proposed order. Thus, issuing the final order was essentially a ministerial act. See Baker v. Bradley, 231 Ariz. 475, 482, ¶ 26, 296 P.3d 1011, 1018 (App. 2013) ("the June 10 judgment is consistent with the April 22 minute entry, and entry of the judgment appears to have been a ministerial act"). Finally, ADES is not prejudiced by the prematurity of Father's notice of appeal or our exercise of appellate jurisdiction.
¶12 Having determined that we have appellate jurisdiction, we turn now to the merits of Father's appeal.
Best Interests Determination
¶13 To justify termination of the parent-child relationship, the juvenile court must find, by clear and convincing evidence, at least one of the statutory grounds set out in Arizona Revised Statutes ("A.R.S.") section 8-533(B) and by a preponderance of the evidence, that termination is in the best interests of the child. Michael J. v. Ariz. Dep]t of Econ. Sec., 196 Ariz. 246, 249, ¶ 12, 995 P.2d 682, 685 (2000). In this appeal, Father challenges only the determination that severance is in B.B.'s best interests.
¶14 Whether severance is in the child's best interests is a question of fact for the juvenile court to determine. Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, 282, ¶ 13, 53 P.3d 203, 207 (App. 2002). We review the order terminating Father's rights in the light most favorable to upholding the juvenile court's order. Manuel M. v. Ariz. Dep]t of Econ. Sec., 218 Ariz. 205, 207, ¶ 2, 181 P.3d 1126, 1128 (App. 2008). And we will accept the juvenile court's findings of fact unless no reasonable evidence supports those findings. Jesus M., 203 Ariz. at 280, ¶4, 53 P.3d at 205.
¶15 To determine whether severance is in the best interests of the child, the juvenile court must consider whether "the child would benefit from a severance or be harmed by the continuation of the relationship." Mary Lou C. v. Arizona Dep't of Econ. Sec., 207 Ariz. 43, 50, ¶ 19, 83 P.3d 43, 50 (App. 2004) (quoting Maricopa County Juvenile Action No. JS-500274, 167 Ariz. 1, 5, 804 P.2d 730, 734 (1990)).
¶16 During trial, ADES presented evidence that Father had a history of heroin and methamphetamine use and had engaged in domestic violence in B.B.'s presence. ADES established that Father had a criminal history involving substance abuse, with the latest offense occurring in December 2012, while B.B. was in an out-of-home placement.
¶17 Father refused to take advantage of drug testing services offered by ADES as part of the reunification plan with B.B. Similarly, Father refused to attend behavioral health or parent aide sessions offered through ADES.
¶18 ADES also presented evidence that B.B. was adoptable and would benefit from adoption. B.B.'s case worker testified that B.B. was adoptable because he is very young, has no current special needs or special issues, and has "no behavioral issues." The case worker explained that given the age and abilities of the child, ADES would be able to find a prospective adoptive placement for B.B. The case worker stated that severance and adoption was in B.B.'s best interests as it would allow him to be placed in a stable home free of substance abuse. This evidence was sufficient to support the court's best interests determination.
Conclusion
¶19 We have jurisdiction over this appeal, and the evidence of record supports the juvenile court's finding that severance was in B.B.'s best interests. For these reasons, we affirm the juvenile court's severance of Father's parental rights to B.B.