Derek S. v. Dcs, J.B.

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

DEREK S., Appellant,

v.

DEPARTMENT OF CHILD SAFETY, J.B., Appellees.

No. 1 CA-JV 20-0185
FILED 12-10-2020

Appeal from the Superior Court in Yavapai County
No. P1300JD201800019
The Honorable Anna C. Young, Judge

AFFIRMED

COUNSEL

Law Office of Florence M. Bruemmer, P.C., Anthem
By Florence M. Bruemmer
Counsel for Appellant

Arizona Attorney General’s Office, Mesa
By Thomas Jose
Counsel for Appellee Department of Child Safety
 DEREK S. v. DCS, J.B.
Decision of the Court

MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge James B. Morse Jr. and Judge Paul J. McMurdie joined.

C R U Z, Judge:

¶1 Derek S. (“Father”) appeals the superior court’s order
terminating his parental rights to his son, J.B. For the following reasons, we
affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2 In 2017, Father was sentenced to 2.5 years of incarceration for
child abuse after having sex with J.B.’s mother, a minor. In March 2018, the
Department of Child Safety (“DCS”) filed a dependency petition
concerning J.B. after his mother engaged in domestic violence and self-
harming behaviors. The petition alleged Father was neglecting J.B. due to
his incarceration and failing to protect him from his mother’s neglect.

¶3 The superior court later adjudicated J.B. dependent and set a
case plan for family reunification. The court ordered DCS to provide Father
services upon his release from prison, including psychiatric, psychological,
and psychosexual evaluations, an intake at a behavioral-health clinic,
individual counseling, and parenting classes. The court also ordered Father
to partake in any services available in prison and comply with the terms of
his release. However, Father did not participate in services in prison or
make any effort to contact J.B. Further, when released from prison in
September 2018, he did not maintain contact with DCS, attend court
hearings, or participate in services for sixteen months. In October 2019, the
court changed the case plan to guardianship.

¶4 Through January 2020, DCS attempted to locate Father, but
his whereabouts remained unknown. Finally, on January 28, 2020, Father
appeared at the initial guardianship hearing and contested the proposed
guardianship.

¶5 In March 2020, Father established the paternity of J.B. and
completed initial hair and urinalysis tests. At a hearing that same month,
the court ordered DCS to provide Father with continued urinalysis testing
but denied Father’s request for visits with J.B. The court also ordered Father

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Decision of the Court

to enroll in a behavioral-health clinic, individual counseling, and parenting
classes. Father did not participate in any further services. Although he told
DCS that he began counseling, he provided no verification.

¶6 In April 2020, after J.B.’s mother continued to engage in
domestic violence, the superior court granted DCS’s request to withdraw
its guardianship motion. DCS then moved to terminate Father’s rights
under the abandonment and nine-month and fifteen-month grounds. The
next month, Father failed to appear at the initial termination adjudication
hearing. The superior court found Father lacked good cause for his absence
and took evidence on the termination motion. At the end of the hearing,
the court made findings consistent with the termination of Father’s parental
rights and ordered DCS to submit a proposed order. Two days later, Father
moved for a finding that he had established excusable neglect. The court
then issued a final order terminating Father’s parental rights on the
grounds alleged. Father timely appealed the termination order. After the
termination order issued, DCS and the child’s guardian ad litem objected
to Father’s motion, and the court later issued a signed order denying it.

DISCUSSION

¶7 On appeal, Father argues he demonstrated good cause for his
failure to appear at the initial termination adjudication hearing. DCS
argues this court lacks jurisdiction to consider Father’s argument because
he filed a notice of appeal only from the order terminating his parental
rights and not from the subsequent denial of his motion to set aside the
termination order. We agree. See Lindsey v. Dempsey, 153 Ariz. 230, 235
(App. 1987) (“Since the ruling of which Lindsey complains occurred after
the entry of judgment and the filing of the notice of appeal, we do not have
jurisdiction to address it.”). Thus, we lack jurisdiction to consider whether
the facts alleged in Father’s motion to set aside the termination order
presented good cause for his failure to appear at the initial termination
adjudication hearing or whether he advanced a meritorious defense.

¶8 Although we lack jurisdiction to consider the matter of the
denial of the motion to set aside the termination order, we do have
jurisdiction to consider whether the superior court abused its discretion by
determining, based on the evidence presented at the initial termination
adjudication hearing, that there was no good cause for Father’s absence and
that Father had waived his rights by failing to appear. Further, based on
Arizona Revised Statutes (“A.R.S.”) section 8-235(A), we also have
jurisdiction to review the superior court’s decision to terminate Father’s
parental rights.

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 DEREK S. v. DCS, J.B.
Decision of the Court

¶9 Under A.R.S. § 8-537(C), “[i]f a parent does not appear at the
pretrial conference, status conference or termination adjudication hearing,
the court, after determining that the parent has been instructed as provided
in [A.R.S.] § 8-535, may find that the parent has waived the parent’s legal
rights and is deemed to have admitted the allegations of the petition by the
failure to appear.” Additionally, Arizona Rule of Procedure for the Juvenile
Court 65(C)(6)(c) provides that a “failure to appear may constitute a waiver
of rights” if a parent fails to appear at the termination adjudication hearing
without good cause shown. When this occurs, the court may terminate
parental rights “based upon the record and evidence presented if the
moving party or petitioner has proven grounds upon which to terminate
parental rights.” Id.

¶10 The record reveals that Father called in to multiple previous
hearings before the same court, that the other parties were able to call in to
the initial termination adjudication hearing, and that Father failed to
contact the court’s judicial assistant at any time during the thirty-minute
hearing. The record also demonstrates Father had, at least twice, received
notice of the consequences of his failure to appear. On this record, we hold
the superior court did not abuse its discretion in finding Father had no good
cause for his failure to appear at the initial termination adjudication hearing
and that Father had waived his parental rights pursuant to A.R.S. § 8-
537(C).

¶11 Father next argues that the superior court erred in finding that
DCS made diligent efforts to provide him with appropriate reunification
services. However, Father does not challenge the court’s order terminating
his parental rights under the abandonment ground. See Britz v. Kinsvater, 87 Ariz. 385, 388 (1960) (a party’s failure to challenge factual findings
concedes their accuracy). When a parent in an abandonment case “forms
no custodial, personal, or financial relationship with the child,” DCS is not
required to provide the parent reunification services. Toni W. v. Ariz. Dep’t
of Econ. Sec., 196 Ariz. 61, 65-66, ¶¶ 13-15 (App. 1999) (without an existing
parent-child relationship, a parent is not entitled to reunification services
under constitutional due process principles). When this court affirms a
termination order under one ground, it need not consider the others. Mary
Lou C. v. Ariz. Dep’t of Econ. Sec., 207 Ariz. 43, 49, ¶ 14 (App. 2004).

¶12 Finally, Father argues the superior court erred in finding that
termination was in J.B.’s best interests. In addition to finding a statutory
ground for termination, the superior court must also determine what is in
the child’s best interests by a preponderance of the evidence. Kent K. v.
Bobby M., 210 Ariz. 279, 284, ¶ 22 (2005). Once the court finds a parent unfit

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 DEREK S. v. DCS, J.B.
Decision of the Court

under at least one statutory ground for termination, “the interests of the
parent and child diverge,” and the court proceeds to balance the unfit
parent’s “interest in the care and custody of his or her child . . . against the
independent and often adverse interests of the child in a safe and stable
home life.” Id. at 286, ¶ 35. “[A] determination of the child’s best interest[s]
must include a finding as to how the child would benefit from a severance
or be harmed by the continuation of the relationship.” Maricopa Cnty. Juv.
Action No. JS-500274, 167 Ariz. 1, 5 (1990). Courts “must consider the
totality of the circumstances existing at the time of the severance
determination, including the child’s adoptability and the parent’s
rehabilitation.” Alma S. v. Dep’t of Child Safety, 245 Ariz. 146, 148, ¶ 1 (2018).
Other relevant factors in this determination include whether the current
placement is meeting the child’s needs, an adoption plan is in place, and the
child is adoptable. Demetrius L. v. Joshlynn F., 239 Ariz. 1, 3-4, ¶ 12 (2016).

¶13 At the time of the hearing, J.B. had lived with his kinship
placement for 4.5 years. J.B.’s placement was providing him with “stability
in a home that does not have . . . exposure to domestic violence, that is able
to make sure all of his needs are met and ensure his safety,” and the
placement planned to adopt him. Moreover, the case manager testified that
should his placement disrupt, J.B. was “a bright, lovable young man that
would be easily adoptable.” Thus, reasonable evidence supports the
superior court’s best-interests finding.

CONCLUSION

¶14 For the foregoing reasons, we affirm.

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

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