Aaron F. v. Dcs

A
                      NOTICE: NOT FOR OFFICIAL PUBLICATION.
  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                  AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                     IN THE
              ARIZONA COURT OF APPEALS
                                 DIVISION ONE


                             AARON F., Appellant,

                                         v.

       DEPARTMENT OF CHILD SAFETY, J.F., T.F., C.F., B.F., T.F.,
               CHICKASAW NATION, Appellees.

                              No. 1 CA-JV 20-0234
                               FILED 2-23-2021


            Appeal from the Superior Court in Mohave County
                         No. B8015JD201804107
                The Honorable Rick A. Williams, Judge

                                   AFFIRMED


                                    COUNSEL

E.M. Hale Law, Lakeside
By Elizabeth M. Hale
Counsel for Appellant

Arizona Attorney General’s Office, Phoenix
By Doriane Neaverth
Counsel for Appellee Department of Child Safety
                          AARON F. v. DCS, et al.
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Paul J. McMurdie delivered the Court’s decision, in which
Judge Cynthia J. Bailey and Judge Lawrence F. Winthrop joined.


M c M U R D I E, Judge:

¶1           Aaron F. (“Father”) appeals the juvenile court’s order
terminating his parental rights to his five children. For the following
reasons, we affirm.

            FACTS1 AND PROCEDURAL BACKGROUND

¶2            Father, an enrolled member of the Fort Mojave Indian Tribe,
and Amanda L. (“Mother”) are the biological parents of John, Taylor,
Courtney, Barry, and Todd (collectively, the “Children”), who are all
enrolled members of the Chickasaw Nation.2 In 2016, DCS initiated
dependency proceedings against the parents after Courtney was born
substance-exposed to amphetamine, and both parents admitted to
methamphetamine use. Father refused to engage in services. But Mother
completed the reunification requirements, and the court dismissed the
dependency in 2017. However, DCS continued to receive and investigate
reports of suspected abuse and neglect, including unexplained bruising on
the sides of Barry’s face and statements made by one of the children
concerning domestic violence and abuse.

¶3          In November and early December 2018, DCS removed Barry
and Todd from the parents’ home and petitioned for an out-of-home
dependency concerning the Children, alleging parental abuse of Barry and
Todd and neglect of the Children generally. The juvenile court ordered the




1      We view the facts in the light most favorable to sustaining the
juvenile court’s judgment. Lashonda M. v. ADES, 

210 Ariz. 77

, 82, ¶ 13 (App.
2005).

2     To protect the identities of the Children, this decision refers to them
by pseudonyms.



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                         AARON F. v. DCS, et al.
                          Decision of the Court

Children temporarily removed from the parents’ care pending further
hearings.

¶4           During the initial dependency hearing on December 20, 2018,
both parents moved for the Children to be returned to their care under
Arizona Rule of Procedure for the Juvenile Court 51 and requested a trial
on the dependency petition. The court granted the Rule 51 motion, finding
DCS did not prove that continued temporary custody was necessary, and
DCS had not met the requirements set forth by the Indian Child Welfare
Act (“ICWA”). The court scheduled the dependency trial for February 2019.
Over the next several months, the parents minimally engaged in DCS
services. Mother tested positive for methamphetamine and amphetamine,
and DCS received a report alleging neglect of the Children.

¶5             After a three-day contested hearing, the court dismissed the
abuse allegations but found the Children dependent based upon neglect.
The court subsequently granted DCS’s motion to place the Children in a
kinship foster placement. Around two months later, DCS petitioned the
court to suspend the parents’ visitation with the Children following an
incident at a fast-food restaurant’s attached playground.

¶6           While Mother and Father were supervising the Children
playing, Barry began to cry and refused to put weight on his right leg.
Mother and Father bought him ice cream, and after he fell asleep, Mother
speculated that he was just tired and wanted attention. However, when
Barry returned to the kinship foster placement a medical examination,
revealed that he had fractured his leg. The court granted the petition to
suspend visitation following a hearing.

¶7             DCS moved to terminate Mother’s and Father’s parental
rights to the Children under the statutory grounds of neglect and substance
abuse. A.R.S. § 8-533(B)(2), (3). DCS later amended the motion to include
the six months’ time-in-care ground concerning Barry and Todd and the
nine-months’ time-in-care ground for John, Taylor, and Courtney. A.R.S.
§ 8-533(B)(8)(a), (b).

¶8            In May and June 2020, the juvenile court conducted a two-day
trial on the termination motion. During the trial, the assigned DCS case
manager testified that Father refused all DCS services, instead utilizing
services—including domestic violence and substance-abuse classes and
testing—offered by the Fort Mojave Tribe. However, Father attended these
services inconsistently, tested positive for methamphetamine at least once,
and in October 2019, DCS stopped receiving compliance reports detailing



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                         AARON F. v. DCS, et al.
                          Decision of the Court

Father’s participation. The case manager also opined that the
substance-abuse testing Father engaged in was unreliable because it was
not randomized. Concerning Mother, the case manager acknowledged that
Mother had made significant progress towards reunification but opined
that DCS remained concerned about her ability to maintain sobriety, stay
apart from Father, and effectively raise the Children. At the close of DCS’s
case, Father chose not to testify or present evidence. Mother testified and
detailed her extensive efforts to maintain sobriety, remove herself from
Father, and engage in counseling and other services.

¶9            In July 2020, the court issued an order finding DCS had
proven the neglect, substance abuse, and the six- and nine-months’
time-in-care grounds concerning Father. Based on these findings, the court
terminated Father’s parental rights to the Children. The court also found
that DCS had not proven grounds for termination concerning Mother and
denied its motion to terminate her parental rights.3 Father appealed, and
we have jurisdiction under A.R.S. § 8-235(A) and Rule 103(A).

                              DISCUSSION

¶10           The right to custody of one’s child is fundamental but not
absolute. Michael J. v. ADES, 

196 Ariz. 246

, 248, ¶¶ 11–12 (2000). DCS must
prove one or more statutory grounds for termination by clear and
convincing evidence to support parental rights termination. A.R.S.
§ 8-537(B); Kent K. v. Bobby M., 

210 Ariz. 279

, 283–84, ¶ 19 (2005). The
juvenile court “is in the best position to weigh the evidence, observe the
parties, judge the credibility of witnesses, and resolve disputed facts.”
ADES v. Oscar O., 

209 Ariz. 332

, 334, ¶ 4 (App. 2004). We review the court’s
termination decision for an abuse of discretion and will not disturb any
findings supported by reasonable evidence. Mary Lou C. v. ADES, 

207 Ariz. 43

, 47, ¶ 8 (App. 2004).

¶11           On appeal, Father argues only that the juvenile court erred by
finding sufficient evidence to support termination of his parental rights
under the neglect ground. Specifically, Father disputes the court’s finding
that he failed to adequately address DCS’s concerns for neglect by
minimally engaging in services. Father contends that he “had been
addressing the issues of neglect as alleged by DCS and while his attempts


3     According to the most recent records available to this court, Mother
has commendably continued to make progress and the Children have been
returned to her care.



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                           AARON F. v. DCS, et al.
                            Decision of the Court

[were] not perfect, they should be enough to retain his constitutional right
to parent his children.” However, Father does not challenge the court’s
additional findings that the termination of his parental rights was
warranted under the substance abuse, six months’ time-in-care, and nine
months’ time-in-care grounds.

¶12             This court has held that failure to challenge a ground for
termination abandons and waives “any contention that the court erred in
granting [termination] on that basis.” Crystal E. v. DCS, 

241 Ariz. 576

,
577-78, ¶ 5 (App. 2017). And once we affirm one ground for termination,
we need not address any other basis found by the juvenile court. Jesus M. v.
ADES, 

203 Ariz. 278

, 280, ¶ 3 (App. 2002) (citing Michael 

J., 196 Ariz. at 251

,
¶ 27); see also Crystal 

E., 241 Ariz. at 579

, ¶ 13 (Thumma, J., specially
concurring) (“In general, an appeal challenging fewer than all of the
statutory grounds for termination the superior court found were proven at
trial will not result in a reversal[.] Such an appeal is fatally flawed, from the
outset, and merely delays finality.”). By failing to challenge the court’s
findings and conclusions concerning the substance abuse, six months’
time-in-care, and nine months’ time-in-care grounds, Father has abandoned
and waived any contention that the court erred by granting termination on
those grounds. Accordingly, we affirm the court’s order based on the
substance abuse, six months’ time-in-care, and nine months’ time-in-care
grounds and need not address his arguments on the neglect ground.

                                CONCLUSION

¶13           We affirm the juvenile court’s order terminating Father’s
parental rights.




                           AMY M. WOOD • Clerk of the Court
                           FILED: AA




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