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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                             ALBERT D., Appellant,

                                         v.

              DEPARTMENT OF CHILD SAFETY, X.D., Z.D.,
                           Appellees.

                              No. 1 CA-JV 17-0505
                                FILED 5-22-2018


            Appeal from the Superior Court in Maricopa County
                              No. JD 527402
                 The Honorable Teresa A. Sanders, Judge

                                   AFFIRMED


                                    COUNSEL

The Stavris Law Firm PLLC, Scottsdale
By Christopher Stavris
Counsel for Appellant

Arizona Attorney General’s Office, Phoenix
By Nicholas Chapman-Hushek
Counsel for Appellee, Department of Child Safety
                         ALBERT D. v. DCS et al.
                          Decision of the Court



                      MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Kenton D. Jones and Judge Jon W. Thompson joined.


B R O W N, Judge:

¶1          Albert D. (“Father”) appeals the superior court’s order
terminating his parental rights to X.D. and Z.D. Because reasonable
evidence supports the court’s order, we affirm.

           FACTUAL AND PROCEDURAL BACKGROUND

¶2           Father and Sarah S. (“Mother”) are the biological parents of
X.D. and Z.D. (“children”), born in 2010 and 2011, respectively.1 In
February 2014, the Department of Child Safety (“DCS”) took the children
into temporary physical custody after receiving a report of physical abuse
and neglect.2 Z.D. had unexplained injuries, including bruises on his
forehead, chin, and face, and “long diagonal red marks on the top of his
wrists.” DCS placed the children in foster care, where they remained
during the proceedings.

¶3            DCS filed a dependency petition alleging Father was unable
to parent the children, and after a hearing, the superior court found the
children dependent as to Father because he was “unable to parent the
child(ren) due to physical abuse and/or failure to protect from physical
abuse, domestic violence, neglect, substance abuse and a prior
dependency.” Although the court at that time approved the case plan of
reunification concurrent with severance and adoption, the case plan was
later changed to reunification, and finally to severance and adoption.

¶4            In August 2015, DCS filed a motion to terminate Father’s
parental rights, but by April 2016, Father had successfully completed all of
the services DCS offered. Father also obtained stable housing and


1      Mother, whose parental rights to the children were terminated in
April 2016, is not a party to this appeal.

2     For simplicity, references to “DCS” encompass the Arizona
Department of Economic Security and former Child Protective Services.


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                          ALBERT D. v. DCS et al.
                           Decision of the Court

employment. Although the case plan was not changed, DCS worked to
reunify Father with the children, allowing him to progress from supervised
visits to overnight visits. DCS also filed a motion to change physical
custody of the children to father, which the court granted.

¶5            But an overnight visit in June 2016 resulted in a “[h]otline
call,” which reported an injury to Z.D. After this call, Father had only
supervised visits with the children until October 2016, when the children
refused to participate in further visits. DCS then offered a second
psychological evaluation to see if Father needed additional services to assist
with reunification but Father did not keep the scheduled appointments.

¶6           In January 2017, DCS filed an amended motion for
termination based on the grounds of fifteen months’ time-in-care, abuse,
and neglect. The superior court held a contested severance hearing over a
three-day period. The court subsequently granted DCS’s motion to
terminate Father’s parental rights based on all three grounds and found
termination was in the children’s best interests. This timely appeal
followed.

                               DISCUSSION

¶7             To terminate parental rights, the superior court must find by
clear and convincing evidence at least one statutory ground in Arizona
Revised Statutes (“A.R.S.”) section 8-533(B), and must find by a
preponderance of the evidence that termination is in the children’s best
interests. See Kent K. v. Bobby M., 210 Ariz. 279, 288, ¶ 41 (2005); Michael J.
v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 249, ¶ 12 (2000). We will affirm an
order terminating parental rights if reasonable evidence supports it. Jordan
C. v. Ariz. Dep’t of Econ. Sec., 223 Ariz. 86, 93, ¶ 18 (App. 2009). “[W]e view
the evidence and reasonable inferences . . . in the light most favorable to
sustaining the court’s decision.” Id. If we affirm one of the statutory
grounds on which the juvenile court ordered termination, we need not
address the other grounds. See Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz.
278, 280, ¶ 3 (App. 2002).

       A.     Statutory Ground

¶8            Under the fifteen months’ time-in-care ground, DCS was
required to prove that (1) DCS made diligent efforts to provide appropriate
reunification services; (2) the children were in an out-of-home placement
for at least fifteen months; (3) Father was unable to remedy the
circumstances that caused the children to be in an out-of-home placement;
and (4) a substantial likelihood existed that Father would not be capable of


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                          ALBERT D. v. DCS et al.
                           Decision of the Court

exercising proper and effective parental care and control in the near future.
A.R.S. § 8-533(B)(8)(c). In considering whether DCS proved this ground,
the superior court was obligated to “consider the availability of
reunification services to the parent and the participation of the parent in
these services.” Id. § 8-533(D). Below, we address only the first and fourth
elements because those are the only elements Father challenges.

¶9            As we understand his argument, Father asserts DCS did not
make diligent efforts because a family reunification team was never
implemented. However, Father has not directed us to any place in the
record where he objected to the adequacy of reunification services based on
DCS having allegedly failed to implement a family reunification team; he
has therefore waived that argument.3 See Shawanee S. v. Ariz. Dep’t of Econ.
Sec., 234 Ariz. 174, 178-79, ¶ 16 (App. 2014) (holding that a parent is
precluded from challenging the diligent efforts finding on appeal when the
parent does not object to the adequacy of the services in the superior court);
ARCAP 13(a)(7)(B) (requiring appellant’s opening brief to cite portion of
record “where the particular issue was raised,” and for rulings requiring an
objection, where the objection is located in the record).

¶10            Father next argues DCS failed to prove “that there is a
substantial likelihood that he will not be capable of exercising proper and
effective parental care and control in the near future.” Father points to the
adequacy of the services (such as stating DCS offered no services that
would improve his ability to care for the children) and to his own testimony
for support.

¶11            Most of the evidence Father directs us to is simply conflicting
evidence. See Jesus M., 203 Ariz. at 282, ¶ 12 (“The resolution of such
conflicts in the evidence is uniquely the province of the juvenile court as the
trier of fact; we do not re-weigh the evidence on review.”). Reasonable
evidence supports the superior court’s finding that a substantial likelihood
existed that Father would not be capable of exercising proper and effective
parental care and control in the near future.

¶12        Father acknowledged the children were removed from the
home in 2014 because of domestic violence, which, at times, occurred


3      As to the family reunification team, Father testified DCS did not just
offer a family reunification team but it actually provided one. Only after
the overnight visit in June 2016, which resulted in injuries to Z.D., was the
referral for the team withdrawn.



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                          ALBERT D. v. DCS et al.
                           Decision of the Court

between Father and Mother and which the children witnessed. During one
of the domestic incidents, Father “forcibly t[ook] [X.D.] out of [Mother’s]
arms because she had him in a headlock.” Father testified he has moments
where he struggles with controlling his anger, and sometimes has difficulty
with aggression and violence.

¶13          Kimberly Tuttle, the DCS case manager who oversaw the case
from February 2015 to August 2017, testified the children came into DCS’s
care because “[t]here was a domestic violence incident between [Father]
and [Mother], in which [Z.D.] ended up with some unexplained injuries.”
Father had access to Z.D at the time Z.D. suffered the injuries, and both
children witnessed the domestic violence between Father and Mother,
which is a “frightening situation for a child.” As to services, DCS had
Father complete substance abuse testing and treatment; a psychological
evaluation; counseling that included anger management, domestic
violence, and past trauma components; and parent-aide, which involved
individualized behavioral goals aimed, in part, at helping Father with
domestic violence and positive discipline.

¶14           A licensed psychologist, Kathryn Menendez, reported in July
2014 that Father suffers from a personality disorder that includes aggressive
behavior. Father had “demonstrated a pattern of neglect and poor
supervision over his children,” and “demonstrated a pattern of
aggressiveness in the presence of his children which ha[d] resulted in their
injury.” Menendez diagnosed Father with “neglect of a child,” which
means he is a “perpetrator of child neglect.”

¶15           Moving forward to 2016, Tuttle testified that the children had
an overnight visit with Father in June 2016, but as a result of that visit, DCS
received a hotline call “stating that the youngest child, [Z.D.], had a fist-
shaped bruise in the middle of his back.” Shortly thereafter, the children
were interviewed; Tuttle observed an oval-shaped injury on Z.D.’s back
and heard Z.D. state that Father hit him. Z.D. repeatedly stated, to Tuttle
and others, that Father hit him, and has never indicated it was someone
else. Z.D. refused to visit Father several months later, continuing to assert
Father had hit him.

¶16          Based on various pieces of evidence, Tuttle opined that Father
abused Z.D. and neglected both children. The children have “special
needs” (Z.D. has autism and X.D. has ADHD). Because of his aggressive
behavior and inability to cope with his aggression, Father would not be able
to deal with the children’s special needs, which require patience,
understanding, and a calm demeanor. In other words, the children’s special


                                      5
                          ALBERT D. v. DCS et al.
                           Decision of the Court

needs combined with Father’s aggression issues would put both children at
risk of being abused by Father if placed in his care. Since the June 2016
incident, Father has reverted to how he used to be at the time the children
were placed in out-of-home care. Father has apparently neither benefitted
from any of the services nor demonstrated that he made the behavioral
changes necessary to parent the children.

¶17            Regarding the June 2016 incident, a DCS report states that not
only did Z.D. have a bruise on his back but he also had “a diaper rash” and
“a bump on the top of his head” that was “swollen with pain.” Z.D.
“smelled like urine” and “didn’t have a diaper on when [the foster family]
picked him up.” In response, DCS fully investigated the abuse and “found
it to be substantiated.”

¶18            Jacqueline Hess, a family nurse practitioner, performed a
forensic medical examination of Z.D. shortly after he returned home from
the overnight visit with Father in June 2016 and after the foster parents, who
noticed “bruises on [Z.D’s] back, arms and legs,” had taken Z.D. to urgent
care. Hess testified that “the pattern of bruises . . . on the back are
concerning because of the way they were patterned” and because the back
is “not a common area where a child would receive bruises just from
playing.” Z.D. told Hess, who had no reason to doubt Z.D.’s honesty, that
“[Father] hit him on the back.”

¶19           Christina Lebovitz, a clinical psychologist that interviewed
the children and foster parents in December 2016, testified that Z.D. told
her he was “mad and nervous about visits.” X.D. “was scared to go to
[Father’s] house” and “said he saw [Father] hit [Z.D.] and hit [Mother]”;
X.D. “thought that he might be hit also.” A child suffers emotional or
psychological abuse when that “child is a witness to a sibling or someone
else being hurt.” In her written report, Lebovitz explained that Z.D. told
foster mother “that [Father] hit him during” two unsupervised overnight
visits.

¶20            On this record, reasonable evidence supports the superior
court’s determination that a substantial likelihood existed that Father
would not be capable of exercising proper and effective parental care and
control in the near future. Although he completed most of the services,
Father did not complete a second psychological evaluation or successfully
care for the children during overnight visitations. The evidence also shows
that Father was still violent and aggressive after participating in services
designed to help him overcome these issues and become an effective parent,
and that both children would suffer neglect and further physical or


                                      6
                          ALBERT D. v. DCS et al.
                           Decision of the Court

emotional abuse if returned to his care. Simply because Father testified that
he benefitted from the services and accepted responsibility for his actions,
does not necessarily mean he is capable of properly and effectively
parenting the children in the near future.

       B.     Best Interests

¶21            Termination of parental rights is in a child’s best interests if
he or she will “derive an affirmative benefit from termination or incur a
detriment by continuing in the relationship.” Ariz. Dep’t of Econ. Sec. v.
Oscar O., 209 Ariz. 332, 334, ¶ 6 (App. 2004). “In making the determination,
the juvenile court may consider evidence that the child is adoptable or that
an existing placement is meeting the needs of the child.” Mario G. v. Ariz.
Dep’t of Econ. Sec., 227 Ariz. 282, 288, ¶ 26 (App. 2011).

¶22            The superior court found that termination of Father’s parental
rights was in the children’s best interests because the children were in a
foster home that potentially could adopt them, were in the least restrictive
placement, were adoptable, would “have permanency in a safe and stable
home with parents that are able to meet all of their needs,” and would be at
risk for further abuse and neglect if placed with Father.

¶23           Father argues the superior court failed to “mention in its
findings any of the testimony regarding the allegations of physical abuse
by the foster placement,” and that evidence, including Father’s testimony,
shows it would be in the children’s best interest to be reunified with him.

¶24            Father’s arguments are unpersuasive because he is merely
asking us to reweigh the evidence or resolve conflicting evidence, which is
not our role. See Jesus M., 203 Ariz. at 282, ¶ 12. To the extent Father
challenges the adequacy of the superior court’s findings, this argument is
waived because Father fails to cite supporting authority or explain why the
court was required to issue specific written findings regarding the alleged
abuse by the foster parents, especially when the court found the children
would be in a safe home. See Melissa W. v. Dep’t of Child Safety, 238 Ariz.
115, 117-18, ¶ 9 (App. 2015) (finding arguments waived because mother did
not support the arguments “with citation to relevant authority”).

¶25           Tuttle testified that severance and adoption was in the
children’s best interests, the current foster placement was the least
restrictive and meeting the children’s needs, the foster parents were willing
to adopt both children, and the children were adoptable. The children
would benefit from termination of Father’s parental rights because they



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                          ALBERT D. v. DCS et al.
                           Decision of the Court

would have a stable home, which “would really alleviate a lot of worries
for these children.” The children feel safe in their current placement.

¶26           Lebovitz testified that if the children returned to Father, they
would experience “overwhelming anxiety and some further emotional
damage.” Joanne Mathlin, a DCS unit supervisor, also testified that
severance was in the children’s best interests. Therefore, reasonable
evidence supports the superior court’s finding that termination of Father’s
rights was in the children’s best interests.

                              CONCLUSION

¶27          For the foregoing reasons, we affirm the superior court’s
order terminating Father’s parental rights to the children.




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




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