Enrique N. v. Dcs

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ENRIQUE N., Appellant,

v.

DEPARTMENT OF CHILD SAFETY, V.F., E.F., Appellees.

No. 1 CA-JV 20-0043
FILED 3-18-2021

Appeal from the Superior Court in Maricopa County
No. JD23126
The Honorable Lori Ash, Judge Pro Tempore

AFFIRMED

COUNSEL

David W. Bell Attorney at Law, Higley
By David W. Bell
Counsel for Appellant

Arizona Attorney General’s Office, Phoenix
By Sandra L. Nahigian
Counsel for Appellee Department of Child Safety
 ENRIQUE N. v. DCS, et al.
Decision of the Court

MEMORANDUM DECISION

Presiding Judge D. Steven Williams delivered the decision of the Court, in
which Judge Jennifer B. Campbell and Judge James B. Morse Jr. joined.

W I L L I A M S, Judge:

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

FACTUAL AND PROCEDURAL HISTORY

¶2 In July 2018, Father’s former girlfriend witnessed one of
Father’s children sexually abusing the other child. The children, apparently,
spent much time in the former girlfriend’s care even though she was no
longer in a relationship Father and was a heroin addict. Mother’s parental
rights were previously terminated. The Department of Child Services
(“DCS”) took temporary custody of the children and filed a dependency
petition alleging Father was neglecting the children because he failed to
protect one child from sexual abuse and failed to provide appropriate care
and supervision to both children.

¶3 When Father failed to appear for a dependency pre-trial
conference, the juvenile court found the children dependent as to Father.
DCS offered Father a variety of reunification services, including case
management services, case plan meetings, individual counseling,
parent-aide services, parenting classes, a psychological evaluation,
substance-abuse assessment, substance-abuse treatment, transportation,
urinalysis testing, and visitation. Although the record indicates that Father
showed some progress in his substance-abuse recovery and engaged in
some of the services, Father was inconsistent with substance-abuse testing
and counseling, tested positive for cocaine and benzoylecgonine, and
closed out parent-aid services unsuccessfully. Father was approved for in-
home visits, but he refused to participate because he wanted the visits to be
unsupervised. Father was also arrested in July 2019 for a two-year-old DUI,
and allegedly faced prison time and deportation.

¶4 In November 2019, the juvenile court changed the case plan
from family reunification to severance and adoption. At the initial

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 ENRIQUE N. v. DCS, et al.
Decision of the Court

severance hearing Father, a Spanish speaker, was provided a notice written
in Spanish containing the dates and times of future court hearings. Father
was also informed in Spanish of the consequences of failing to appear for
any court hearing, including the possibility of the court proceeding in his
absence. See Ariz. R.P. Juv. Ct. 64(C).

¶5 Father appeared for the initial severance hearing but then
failed to appear at the pre-trial conference in January 2020. When Father’s
counsel was unable to explain why Father failed to appear for the hearing,
the juvenile court opted to hold an accelerated severance adjudication
hearing, ultimately severing Father’s parental rights based upon the
statutory ground of fifteen-months in out-of-home placement, and found
termination to be in the children’s best interests. The court also found no
good cause for Father’s failure to appear.

¶6 Father timely appealed the order terminating his parental
rights. Later, Father moved the juvenile court to reconsider and set aside its
finding that Father had no good cause for failing to appear, and offered an
explanation, for the first time, as to why he failed to appear. Father
provided information showing that he was at the DCS office, the morning
of the pre-trial conference, for a meeting he mistakenly believed to have
been scheduled. The juvenile court denied Father’s motion.

¶7 In his opening brief, Father argues he established good cause
for his failure to appear based upon information provided to the court in
his motion to reconsider. DCS moved this court to dismiss the appeal for
lack of jurisdiction, arguing Father appealed the termination order, not the
motion for reconsideration. This court stayed the appeal, remanded the
matter to the juvenile court, and authorized the court to reissue a ruling on
Father’s motion after holding an evidentiary hearing. This court also
indicated that Father could file a second notice of appeal, challenging the
court’s reissued ruling, if he chose to.

¶8 In August 2020, the juvenile court held an evidentiary hearing
on Father’s motion to reconsider, and again, denied Father’s request to set
aside the termination order. DCS moved this court a second time to dismiss
Father’s appeal for lack of jurisdiction, which was denied, and the appeal
was reinstated. We have jurisdiction over Father’s appeal from the
termination order under Article 6, Section 9, of the Arizona Constitution,
A.R.S. §§ 8-235(A), 12-120.21(A)(1), -2101(A)(1) and Arizona Rule of
Procedure for the Juvenile Court 103(A).

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 ENRIQUE N. v. DCS, et al.
Decision of the Court

DISCUSSION

¶9 We review a severance ruling for an abuse of discretion,
accepting the court’s factual findings unless clearly erroneous, Mary Lou C.
v. Ariz. Dep’t of Econ. Sec., 207 Ariz. 43, 47, ¶ 8 (App. 2004), and view the
evidence in the light most favorable to sustaining the court’s ruling, Manuel
M. v. Ariz. Dep’t of Econ. Sec., 218 Ariz. 205, 207, ¶ 2 (App. 2008). Because the
juvenile court “is in the best position to weigh the evidence, observe the
parties, judge the credibility of witnesses, and resolve disputed facts,” we
will affirm an order terminating parental rights if reasonable evidence
supports the order. Jordan C. v. Ariz. Dep’t of Econ. Sec., 223 Ariz. 86, 93, ¶ 18
(App. 2009) (quoting Ariz. Dep’t of Econ. Sec. v. Oscar O., 209 Ariz. 332, 334,
¶ 4 (App. 2004)).

¶10 “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 [A.R.S. §] 8-533,” Michael J. v. Ariz. Dep’t of
Econ. Sec., 196 Ariz. 246, 249, ¶ 12 (2000), and find, by a preponderance of
the evidence, that termination is in the best interests of the child, Kent K. v.
Bobby M., 210 Ariz. 279, 284, ¶ 22 (2005). Fifteen months in an out-of-home
placement is one statutory ground authorizing termination. A.R.S.
§ 8-533(B)(8)(c).

¶11 Father’s opening brief does not challenge the juvenile court’s
fifteen months in an out-of-home placement finding, nor does it challenge
the court’s finding that termination is in the children’s best interests. Father,
likewise, does not challenge the court’s authority to proceed with an
accelerated termination hearing where he failed to appear at the pre-trial
conference. See A.R.S. § 8-537(C); Ariz. R.P. Juv. Ct. 65(C)(6)(c).
Consequently, we do not address these issues. See ARCAP 13(a)(7)(A);
Crystal E. v. Dep’t of Child Safety, 241 Ariz. 576, 578, ¶ 6 (App. 2017) (“[W]e
adhere to the policy that it is generally not our role to sua sponte address
issues not raised by the appellant.”); Christina G. v. Ariz. Dep’t of Econ. Sec.,
227 Ariz. 231, 234, ¶ 14 n.6 (App. 2011) (recognizing that the failure to
develop an argument on appeal usually results in abandonment and waiver
of the issue).

¶12 The substance of Father’s opening brief only challenges the
juvenile court’s order denying his motion for reconsideration, arguing
specifically that the court abused its discretion in concluding no good cause
existed for his failure to appear at the pre-trial conference. But Father has
not appealed that order. Thus, we lack jurisdiction to address the substance
of Father’s argument raised in his opening brief. See Lindsey v. Dempsey, 153

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 ENRIQUE N. v. DCS, et al.
Decision of the Court

Ariz. 230, 235 (App. 1987) (“Since the ruling of which [appellant] complains
occurred after the entry of judgment and the filing of the notice of appeal,
we do not have jurisdiction to address it.”).

CONCLUSION

¶13 For the forgoing reasons, we affirm the juvenile court’s
termination order, but do not address the court’s order denying Father’s
motion for reconsideration because Father has not appealed that order.

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

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