                           NOTICE: NOT FOR PUBLICATION.
    UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
           LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                     IN THE
              ARIZONA COURT OF APPEALS
                                 DIVISION ONE


                              JOSEPH F., Appellant,

                                         v.

            DEPARTMENT OF CHILD SAFETY, 1 J.P., Appellees.

                              No. 1 CA-JV 14-0114
                                 1 CA-JV 14-0133
                                  (Consolidated)
                                 FILED 10-30-2014


            Appeal from the Superior Court in Maricopa County
                              No. JS 17162
                   The Honorable Connie Contes, Judge

                                   AFFIRMED


                                    COUNSEL

Robert D. Rosanelli, Phoenix
Counsel for Appellant

Arizona Attorney General’s Office, Phoenix
By JoAnn Falgout
Counsel for Appellees




1     Pursuant to S.B. 1001, Section 157, 51st Leg., 2nd Spec. Sess. (Ariz.
2014) (enacted), the Department of Child Safety is substituted for the
Arizona Department of Economic Security in this matter. See ARCAP 27.
                          JOSEPH F. v. DCS, J.P.
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Margaret H. Downie delivered the decision of the Court,
in which Judge Andrew W. Gould and Judge Samuel A. Thumma joined.


D O W N I E, Judge:

¶1           In these consolidated appeals, Joseph F. (“Father”)
challenges the superior court’s orders finding his minor son, J.P.,
dependent and terminating his parental rights to J.P. For the following
reasons, we affirm the severance order and deem the dependency finding
moot.

                FACTS AND PROCEDURAL HISTORY2

¶2            In 1999, Father was charged with kidnapping and sexually
assaulting his older son’s intoxicated 16-year-old female friend. He pled
guilty to attempted sexual assault, a class three felony, and kidnapping, a
class two felony. The court sentenced Father to five years’ imprisonment,
ordered him to register as a sex offender, and placed him on lifetime
probation upon his release from prison.

¶3            Father was released from prison in 2007. His original terms
of probation prohibited “contact with any male or female child under the
age of 18, including relatives” without prior written approval of the adult
probation department (“APD”). When J.P. was born in 2012, Father
received APD’s permission to attend his delivery and to see the child in
the presence of J.P.’s mother.

¶4            In May 2013, APD filed a probation revocation petition
alleging numerous violations by Father, including absconding, possessing
or using amphetamine, failing to submit to drug testing, failing to
participate and cooperate in counseling, failing to abide by sex offender
terms of probation, and failing to “actively participate and remain in sex
offender treatment.” Father admitted absconding and was reinstated on


2       On appeal, “[w]e view the facts in the light most favorable to
upholding the juvenile court’s order.” Ariz. Dep’t of Econ. Sec. v. Matthew
L., 223 Ariz. 547, 549, ¶ 7, 225 P.3d 604, 606 (App. 2010).



                                    2
                          JOSEPH F. v. DCS, J.P.
                           Decision of the Court

lifetime probation, again with sex offender terms.3      Relevant terms of
Father’s probation that remain in effect include:

             I will obtain prior written approval of the APD before
              initiating, establishing or maintaining contact with any child
              under the age of 18, including relatives.

             I will obtain prior written approval of the APD before going
              to or near school properties, parks, playgrounds, arcades,
              swimming pools or other places primarily used by children
              under the age of 18, or any other location APD has notified
              me in writing is inappropriate.

             I will obtain prior written approval of the APD before
              socializing, dating or entering into a sexual relationship with
              any person who has children under the age of 18.

             I will obtain prior written approval of the APD before
              possessing children’s clothing, toys, games, videos, etc.

¶5            In June 2013, the Department of Child Safety (“DCS”) took
custody of J.P. because the child’s mother was incarcerated and Father
was a convicted sex offender.4 DCS filed dependency and severance
petitions. After a consolidated hearing, the superior court found J.P.
dependent as to Father and terminated Father’s parental rights. Father
timely appealed. We have jurisdiction pursuant to Arizona Revised
Statutes (“A.R.S.”) section 8-235(A).

                              DISCUSSION

    I.        Statutory Grounds for Severance

¶6            The court may terminate parental rights if it finds the
existence of one statutory ground for severance by clear and convincing

3      At the severance trial, Father testified his admitted probation
violation was for using methamphetamine. The record from the criminal
proceedings reflects he admitted to absconding. Any discrepancy in this
regard is immaterial to our decision.

4     Mother remained incarcerated during all times relevant here. Her
parental rights to J.P. were also terminated, but she is not a party to this
appeal.



                                     3
                           JOSEPH F. v. DCS, J.P.
                            Decision of the Court

evidence. A.R.S. §§ 8-533(B), -537(B). “The juvenile court, as the trier of
fact in a termination proceeding, is in the best position to weigh the
evidence, observe the parties, judge the credibility of witnesses, and make
appropriate findings.” Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278,
280, ¶ 4, 53 P.3d 203, 205 (App. 2002). We review termination orders for
an abuse of discretion. See Xavier R. v. Joseph R., 230 Ariz. 96, 100, ¶ 11, 280
P.3d 640, 644 (App. 2012).

¶7             DCS alleged two grounds for termination: (1) abuse of a
child under A.R.S. §§ 8-201(2) and -533(B)(2); and (2) conviction of a felony
under A.R.S. § 8-533(B)(4). Because we affirm the severance order based
on § 8-533(B)(4), we need not, and expressly do not, address the additional
ground found by the superior court under A.R.S. §§ 8-201(2) and
-533(B)(2). See Jesus M., 203 Ariz. at 280, ¶ 3, 53 P.3d at 205 (“If clear and
convincing evidence supports any one of the statutory grounds on which
the juvenile court ordered severance, we need not address claims
pertaining to the other grounds.”). Additionally, the severance order
renders the dependency finding moot. See Rita J. v. Ariz. Dep’t of Econ.
Sec., 196 Ariz. 512, 515, ¶ 10, 1 P.3d 155, 158 (App. 2000) (otherwise
appealable order from permanency hearing essentially moot due to later
order terminating parental rights); Vinson v. Marton & Assocs., 159 Ariz. 1,
4, 764 P.2d 736, 739 (App. 1988) (when circumstances in a case change to
the extent that a reviewing court’s action would have no effect on the
parties, then the issue becomes moot for purposes of appeal).
Accordingly, we address whether severance was appropriate under A.R.S.
§ 8-533(B)(4).

¶8          Termination of the parent-child relationship may occur
when a parent

       is deprived of civil liberties due to the conviction of a felony
       if the felony of which that parent was convicted is of such
       nature as to prove the unfitness of that parent to have future
       custody and control of the child, including murder of
       another child of the parent, manslaughter of another child of
       the parent or aiding or abetting or attempting, conspiring or
       soliciting to commit murder or manslaughter of another
       child of the parent . . . .

A.R.S. § 8-533(B)(4).

¶9            “A felony proves unfitness if its commission permits a
rational inference of unfitness,” though a parent may rebut such an



                                       4
                           JOSEPH F. v. DCS, J.P.
                            Decision of the Court

inference. In re Juvenile No. J-2255, 126 Ariz. 144, 146-47, 613 P.2d 304,
306-07 (App. 1980). Father concedes that although attempted sexual
assault of a minor and kidnapping are not specifically enumerated
offenses in § 8-533(B)(4), his convictions “have in common with the listed
crimes that they are directed against children.            As such, it is
understandable that the State may attempt to demonstrate the Appellant’s
unfitness to parent from these two convictions.” We agree. See, e.g., In re
Pima Cnty. Juvenile Action No. S-983, 133 Ariz. 182, 650 P.2d 484 (App.
1982) (sexual assault and attempted sexual assault of young women
sufficient to support determination of unfitness to parent).

¶10         The superior court recited Father’s crimes and sentences and
concluded DCS had proven by clear and convincing evidence that
severance was appropriate under A.R.S. § 8-533(B)(4), stating:

       Due to [Father’s] legal status as a registered sex offender and
       the terms of his probation, including the specific terms of sex
       offender probation proven at trial, Father is deprived of his
       civil liberties. The nature of his felony conviction, attempted
       sexual abuse of a child, proves that Father is unfit to have
       future custody and control of [J.P.].

¶11           Father argues that he committed his crimes in 1999 and that
he has since participated in sex offender treatment, has not “re-offended
sexually,” and has not violated probation terms “of a sexual nature.”
Father, though, admitted at trial that he used methamphetamine less than
a year before the severance trial. He also conceded that drug use is a
potential trigger for him to reoffend with a sexual offense.

¶12           Father’s surveillance officer testified that as recently as 2013,
Father failed to participate in sex offender and drug treatment, failed to
drug test, associated with individuals engaged in criminal activities, and
viewed “sexually stimulating material” in violation of his probation terms.
Father admitted failing to attend sex offender treatment or meet with his
probation officer during the time he was using methamphetamine. The
surveillance officer also testified there had “definitely been some violation
behaviors” after Father was reinstated to probation in 2013, though his
conduct was addressed through APD’s “own consequences and
therapeutically, rather than taking him back into custody for yet another
revocation.” The court also heard testimony that in October 2013, after
being reinstated to probation, Father attempted to contact Mother, a
convicted felon in Department of Corrections custody, while she was on a
prison work detail, leaving a cell phone “in a specific location that then


                                      5
                           JOSEPH F. v. DCS, J.P.
                            Decision of the Court

the female inmates were able to obtain” it. Father’s surveillance officer
testified Father is currently “supervised at a medium risk” to reoffend or
violate probation. She also testified that any visitation between Father
and J.P. would have to be supervised for as long as Father remains on
probation and in a location where no other children are present.5

¶13           Finally, by prohibiting Father from having contact with
children, including his own relatives, the superior court in the criminal
case clearly viewed Father’s felonious conduct as presenting a danger to
children. Although a lengthy period of time has elapsed since the
underlying offenses, the nature of the underlying convictions, coupled
with Father’s behaviors while on supervision for those crimes and the
superior court’s continuing prohibition against contact with children,
supports the determination he is unfit to parent J.P.

       II.    Best Interests

¶14             Before terminating parental rights, the court must also find
by a preponderance of the evidence that termination is in the child’s best
interest. See A.R.S. § 8-533(B); Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 22,
110 P.3d 1013, 1018 (2005). Credible evidence that the child would benefit
from the severance or be harmed by continuation of the parent-child
relationship is sufficient. See Lawrence R. v. Ariz. Dep’t of Econ. Sec., 217
Ariz. 585, 587, ¶ 8, 177 P.3d 327, 329 (App. 2008). A court may properly
consider the stability and permanency adoption can afford a child. Jose M.
v. Eleanor J., 234 Ariz. 13, 18, ¶ 23, 316 P.3d 602, 607 (App. 2014). Evidence
of an adoption plan, a child’s adoptability, or an existing placement
meeting the child’s needs supports a finding he would benefit from
severance. Audra T. v. Ariz. Dep’t of Econ. Sec., 194 Ariz. 376, 377, ¶ 5, 982
P.2d 1290, 1291 (App. 1998); Maricopa Cnty. Juvenile Action No. JS-501904,
180 Ariz. 348, 352, 884 P.2d 234, 238 (App. 1994).




5      The DCS case manager testified that supervising visits between
Father and J.P. would be unworkable because the visitation center “has
children everywhere.”



                                      6
                          JOSEPH F. v. DCS, J.P.
                           Decision of the Court

¶15           Evidence at the severance trial established that J.P. is
adoptable, is thriving in a stable relative placement that meets all of his
needs, and is bonded with his foster mother, who is willing to adopt him.
Under these circumstances, the superior court did not err by concluding
that severance of Father’s parental rights “would further the plan of
adoption” and was in J.P.’s best interests.

                             CONCLUSION

¶16          For the reasons stated, we affirm the order terminating
Father’s parental rights.




                                   :10/30/2014




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