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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

NATHAN L.,
Appellant,

v.

DEPARTMENT OF CHILD SAFETY, A.L., R.L.,
Appellees.

No. 1 CA-JV 21-0288
FILED 3-22-2022

Appeal from the Superior Court in Maricopa County
No. JD38903
The Honorable Julie Ann Mata, Judge

AFFIRMED

COUNSEL

Thomas Vierling Attorney at Law, Phoenix
By Thomas A. Vierling
Counsel for Appellant

Arizona Attorney General's Office, Mesa
By Thomas Jose
Counsel for Appellee Department of Child Safety
 NATHAN L. v. DCS, et al.
Decision of the Court

MEMORANDUM DECISION

Judge James B. Morse Jr. delivered the decision of the Court, in which
Presiding Judge Jennifer B. Campbell and Judge Randall M. Howe joined.

M O R S E, Judge:

¶1 Nathan L. appeals the juvenile court's order terminating his
parental rights. For the following reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 Nathan L. ("Father") and Robin B. ("Mother")1 are the parents
of A.L. and R.L. (collectively, "the Children"). The Department of Child
Safety ("DCS") learned of reports of domestic violence in Mother's home,
where the Children were living. The Children reported to DCS that Mother
and her boyfriend had been in multiple physical altercations and, during
one incident, Mother's boyfriend grabbed A.L. by the neck and pushed him
after A.L. intervened. DCS discovered that Father had not had contact with
the Children in over a year. The Children reported that they were afraid of
Father because he had verbally abused them, used unusual punishments,
and had hit A.L. on multiple occasions.

¶3 DCS filed a dependency petition in January 2020, to which
Father pled no contest, and the juvenile court subsequently adjudicated the
Children dependent. In April 2021, DCS moved to terminate Father's
parental rights on the grounds of willful abuse under A.R.S. § 8-533(B)(2)
and fifteen months in an out-of-home placement under A.R.S. § 8-
533(B)(8)(c).

¶4 A DCS case manager, Father, and Father's wife testified at a
termination hearing in September 2021. After the hearing, the court
terminated Father's parental rights. The court found that DCS proved the
abuse ground, but not the fifteen months in an out-of-home placement
ground, by clear and convincing evidence, and that termination of Father's
parental rights was in the Children's best interests by a preponderance of
the evidence.

1 Mother is not a party to this appeal.

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 NATHAN L. v. DCS, et al.
Decision of the Court

¶5 Father timely appealed and we have jurisdiction pursuant to
A.R.S. §§ 8-235(A), 12-120.21(A)(1), -2101(A)(1).

DISCUSSION

¶6 On appeal, Father argues the juvenile court erred in finding
that DCS proved the abuse ground for termination but does not contest the
court's best interests finding. We review a termination order for an abuse
of discretion. Mary Lou C. v. Ariz. Dep't of Econ. Sec., 207 Ariz. 43, 47, ¶ 8
(App. 2004).

¶7 A parent's right to custody and control of their children is
fundamental but not absolute. Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz.
246, 248-49, ¶¶ 11-12 (2000). The juvenile court may terminate a parent's
rights if it finds "by clear and convincing evidence" that "'the parent has
neglected or willfully abused a child'" and "by a preponderance of the
evidence that severance is in the child's best interests." Sandra R. v. Dep't of
Child Safety, 248 Ariz. 224, 227, ¶¶ 12-13 (2020) (quoting A.R.S. § 8-533(B));
see also Ariz. R.P. Juv. Ct. 66(C).

¶8 Abuse "includes serious physical or emotional injury or
situations in which the parent knew or reasonably should have known that
a person was abusing or neglecting a child." A.R.S. § 8-533(B)(2). However,
abuse is not limited to serious physical or emotional injury and termination
based on abuse does not require "a showing of serious physical or
emotional injury" or "the diagnosis of a medical doctor or psychologist."
E.R. v. Dep't of Child Safety, 237 Ariz. 56, 59, ¶ 15 (App. 2015). DCS need not
prove that each child was abused but must show by clear and convincing
evidence that abuse of one child "supports a finding of risk of harm to non-
abused children." Sandra R., 248 Ariz. at 230, ¶ 26.

¶9 As the trier of fact, the juvenile court "is in the best position to
weigh the evidence, observe the parties, judge the credibility of witnesses,
and resolve disputed facts." Jordan C. v. Ariz. Dep't of Econ. Sec., 223 Ariz.
86, 93, ¶ 18 (App. 2009) (citation omitted). Accordingly, we view the facts
in the light most favorable to sustaining the court's decision, Christy C. v.
Ariz. Dep't of Econ. Sec., 214 Ariz. 445, 449, ¶ 12 (App. 2007), and will affirm
the termination order unless "no one could reasonably find the evidence
supporting statutory grounds for termination to be clear and convincing,"
Donald W. v. Dep't of Child Safety, 247 Ariz. 9, 17, ¶ 25 (App. 2019) (quoting
Jordan C., 223 Ariz. at 93, ¶ 18).

¶10 Here, DCS presented sufficient evidence that Father willfully
abused the Children. The juvenile court heard evidence that Father hit A.L.

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 NATHAN L. v. DCS, et al.
Decision of the Court

on multiple occasions, twisted his nipples, and, on one occasion, choked
him. The DCS case manager also testified that Father used unusual
punishments, such as making the Children do squats for long periods of
time, was verbally abusive to both Children, and called them names.

¶11 Regarding R.L., the superior court did not clarify in its order
whether it found the evidence supported a finding that R.L. was abused or
whether the evidence of physical abuse to A.L. supported a finding of risk
as to R.L. See Sandra R., 248 Ariz. at 230, ¶ 26. However, the superior court
cited the proper standards from Sandra R., A.R.S. § 8-533(B)(2), and A.R.S.
§ 8-201(2), and both findings are adequately supported by the record. See
State v. Williams, 220 Ariz. 331, 334, ¶ 9 (App. 2008) ("Trial judges are
presumed to know the law and to apply it in making their decisions."
(citation omitted)). DCS presented evidence of the Children's reports to
DCS that Father was verbally and emotionally abusive. Further, DCS
presented evidence that Father physically abused A.L. in R.L.'s presence, as
R.L. was able to confirm Father's abuse of A.L., and R.L. was afraid of
Father.

¶12 DCS also introduced reports of a January 2020 DCS team
decision-making meeting. The reports document a verbal altercation
between Father and A.L., where Father used "shaming and blaming
language" towards Mother and stated that he did not know why he was at
the meeting because he did not want the Children. According to the
reports, the Children appeared "visibly upset," were "asked to the leave the
room" and, once they left, R.L. threw up and A.L "stated 'don't beat me' as
if he was scared."

¶13 Although Father denies the allegations of abuse, the juvenile
court was not required to accept his testimony. See In re James P., 214 Ariz.
420, 425, ¶ 24 (App. 2007) (noting "[t]he juvenile court is in the best position
to assess witness credibility"); Lashonda M. v. Ariz. Dep't of Econ. Sec., 210
Ariz. 77, 82, ¶ 16 (App. 2005) (noting that "conflicts in the evidence are for
the fact-finder to resolve"). Further, Father admitted that he would make
the Children do squats as punishment, though he claimed it was not for
long periods of time. He also acknowledged that he called the Children
names and may have caused them emotional issues. Additionally, Father's
wife testified that Father previously had anger issues that impacted his
relationship with A.L. and R.L. and was "verbally abusive" to the Children.
Viewing the facts and evidence in the light most favorable to upholding the
juvenile court's decision, Christy C., 214 Ariz. at 449, ¶ 12, the juvenile court
did not abuse its discretion in terminating Father's parental rights.

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 NATHAN L. v. DCS, et al.
Decision of the Court

CONCLUSION

¶14 For the foregoing reasons, we affirm.

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

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