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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                             LUCIAN B., Appellant,

                                         v.

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

                              No. 1 CA-JV 16-0516
                                FILED 4-10-2018


            Appeal from the Superior Court in Maricopa County
                              No. JD503878
                The Honorable Arthur T. Anderson, Judge

                                   AFFIRMED


                                    COUNSEL

Czop Law Firm, PLLC, Higley
By Steven Czop
Counsel for Appellant Lucian B.

Arizona Attorney General’s Office, Mesa
By Amanda Adams
Counsel for Appellee Department of Child Safety
                          LUCIAN B. v. DCS, et al.
                           Decision of the Court



                       MEMORANDUM DECISION

Chief Judge Samuel A. Thumma delivered the decision of the Court, in
which Judge Diane M. Johnsen and Judge James P. Beene joined.


T H U M M A, Chief Judge:

¶1            Lucian B. (Father) challenges the superior court’s order
terminating his parental rights to his children L.B. and J.E. The stay
previously entered in this case is lifted and, because Father has shown no
error, the order is affirmed.

                 FACTS1 AND PROCEDURAL HISTORY

¶2            L.B. was born in 2001 and J.E. was born in 2003. In February
2002, the predecessor to the Department of Child Safety (DCS) filed a
dependency petition alleging L.B. was dependent due to drug abuse and
neglect by L.B.’s mother2 and alcohol abuse and failure to protect by Father.
L.B. was found dependent with a family reunification case plan. When J.E.
tested positive for cocaine and methamphetamine at birth, J.E. was added
to that dependency and was found dependent with a family reunification
case plan. During this first dependency, Father worked reunification
services. By December 2003, the children had been returned to Father’s
physical custody and by May 2004, the court dismissed the dependency.

¶3            A decade later, DCS received a report that police had
responded to “a drug complaint” at the home and found drugs, drug
paraphernalia and weapons. Mother admitted to using methamphetamine
daily; Father denied knowledge of Mother’s daily methamphetamine use
and denied using illegal substances himself. Mother and Father were
arrested and charged with drug, weapons and child neglect offenses. DCS
took the children into care and filed a dependency petition; the children


1This court views the evidence in a light most favorable to sustaining the
superior court’s findings. See Manuel M. v. Ariz. Dep’t of Econ. Sec., 218 Ariz.
205, 207 ¶ 2 (App. 2008).

2Mother’s parental rights to the children were terminated in May 2016, she
did not appeal from that ruling and she is not a party here.



                                       2
                         LUCIAN B. v. DCS, et al.
                          Decision of the Court

were found dependent as to Father in October 2014, with a family
reunification case plan.

¶4            During this second dependency, the children reported they
had experienced physical, emotional and sexual abuse and neglect while in
Father’s care and that Father knew about the abuse and neglect and did
nothing. Although participating in some services, Father denied any
substance abuse and was inconsistent at times in drug testing. He also
denied abuse or neglect or any responsibility for the children being taken
into care and failed to appreciate the children’s resulting behavioral health
issues. In intake paperwork, when asked why his children were in care,
Father responded “DCS kidnapped” them. Father’s behavior during visits
with the children was inappropriate. He discussed the dependency, told
J.E. she was not safe in her placement and suggested he was going to kidnap
the children. Starting in mid-2015, the children refused visits with Father.

¶5             In January 2016, over Father’s objection, the court changed the
case plan to severance and adoption. DCS’ motion to terminate alleged
abuse and neglect (including failure to protect) and 15-months time-in-care
and that termination was in the best interests of the children. See Ariz. Rev.
Stat. (A.R.S.) §§ 8-533(B)(2), (8)(c) (2018).3

¶6            During a three-day contested severance adjudication in
September and October 2016, the court heard from four witnesses and
received more than a dozen exhibits. After taking the matter under
advisement, in November 2016, the court issued an eight-page ruling
finding DCS proved by clear and convincing evidence abuse and neglect
and 15-months time-in-care and proved by a preponderance of the evidence
that severance would be in the best interests of the children. This court has
jurisdiction over Father’s timely appeal pursuant to Article 6, Section, 9, of
the Arizona Constitution, A.R.S. §§ 8-235(A), 12-2101(A) and 12-120.21(A)
and Ariz. R.P. Juv. Ct. 103-104.

                               DISCUSSION

¶7             As applicable here, the superior court was required to find a
statutory ground for severance by clear and convincing evidence and also
find, by a preponderance of the evidence, that termination was in the best
interests of the children. See Kent K. v. Bobby M., 210 Ariz. 279, 288 ¶ 41


3Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.



                                      3
                          LUCIAN B. v. DCS, et al.
                           Decision of the Court

(2005); Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 249 ¶ 12 (2000).
Because the superior court “is in the best position to weigh the evidence,
observe the parties, judge the credibility of witnesses, and resolve disputed
facts,” this court will affirm an order terminating parental rights as long as
it is supported by reasonable evidence. Jordan C. v. Ariz. Dep’t of Econ. Sec.,
223 Ariz. 86, 93 ¶ 18 (App. 2009) (citation omitted).

¶8            This case has a fairly unique procedural history on appeal. As
a result, Father briefed the appeal as a self-represented party and, after
appointment of new counsel, Father’s counsel filed a supplemental brief on
appeal.4 This decision addresses the issues briefed in Father’s pro se briefs
and, to the extent they differ, his supplemental brief.

¶9           Father’s original pro se briefing raises three interrelated issues
on appeal involving whether he “receive[d] his constitutional right to due
process of law;” whether hearsay evidence was “properly admitted;” and
whether “Father’s right to cross examine witnesses [was] denied.” Father’s
supplemental brief, filed by appointed counsel, argues the trial evidence
does not support the superior court’s findings.5

¶10            Father correctly states that due process includes notice of the
claims against a person and a meaningful opportunity to be heard. See, e.g.,
Dep’t of Child Safety v. Beene, 235 Ariz. 300, 305 ¶ 11 (quoting Mathews v.
Eldridge, 424 U.S. 319, 333 (1976)). His reference to the Confrontation Clause,
however, is misplaced. The Confrontation Clause applies “[i]n all criminal
prosecutions,” U.S. Const. amend VI, but is not applicable in severance
proceedings. Father also correctly states that, “[i]n dependency and
severance proceedings, ‘the child’s best interests are paramount.’” Beene,




4Father’s counsel filed a request asking that Father be allowed to file a pro
se supplemental reply brief. Because Father is represented by counsel, that
request is denied. While that request was pending Father filed a pro se
supplemental reply brief, which is improper. To avoid any further delay of
the resolution of this appeal, however, the court construes the pro se
supplemental reply brief as supplementing Father’s original pro se reply
brief and addresses those arguments.

5To the extent Father seeks to raise issues for the first time in reply on
appeal, those issues have been waived. See, e.g., Romero v. Sw. Ambulance,
211 Ariz. 200, 204 n.3 (App. 2005).



                                       4
                           LUCIAN B. v. DCS, et al.
                            Decision of the Court

235 Ariz. at 304 ¶ 9 (citation omitted). As applied, however, the question is
whether the evidence properly admitted supports the severance order.

¶11            Father argues some individuals who wrote reports the court
received in evidence were not “’available for cross-examination,’” Ariz. R.P.
Juv. Ct. 45(C), meaning those reports should not have been admitted.
Several exhibits were written by the DCS caseworker who testified, and was
cross-examined, at trial. For reports in evidence that did not originate with
DCS, Father did not seek to cross-examine the authors and fails to show on
appeal error in admitting them under Ariz. R.P. Juv. Ct. 45(D) or (E) or that
they lacked proper foundation. Finally, although Exhibit 6 was written by
a non-testifying DCS caseworker, after DCS provided foundational
testimony, Father had “[n]o objection” to its admission. On this record,
Father has not shown the court erred in admitting the exhibits. See Ariz.
R.P. Juv. Ct. 44(B)(2)(e) and 45; Alice M. v. Dep’t of Child Safety, 237 Ariz. 70,
72-73 ¶¶ 7-11 (App. 2015).

¶12             Father next argues that “there was no one with personal first
hand knowledge that would support” a finding that he “is incapable of
parenting a child.” In support of this contention, Father points to one of his
witnesses who testified that Father “was on trac[k] to reunite with his
children and all was going well.” As to this argument, Father has not shown
he timely raised hearsay or foundational objections at trial, meaning any
such objections are waived. See Ariz. R. Evid. 103(a); Christy C. v. Ariz. Dep’t
of Econ. Sec., 214 Ariz. 445, 450 ¶ 21 (App. 2007). To the extent his argument
asks this court to reweigh evidence, that is the proper role of the superior
court at trial, not this court on appeal. See Jesus M. v. Ariz. Dep’t of Econ. Sec.,
203 Ariz. 278, 282 ¶ 12 (App. 2002) (citing cases). Moreover, exceptions to
the rule against hearsay not contained in the Arizona Rules of Evidence
allow admission of hearsay in various reports (including hearsay in reports
of child safety workers, reports of evaluation and statements of a child) in
severance trials. See A.R.S. § 8-237 (“Statement or conduct of child; hearsay
exception”); Ariz. R.P. Juv. Ct. 45 (“Admissibility of evidence”).
Accordingly, Father has shown no error on this basis.6




6 Father also argues the superior court was required to address the best
interests factors specified in A.R.S. § 25-403, which applies to dissolution of
marriage proceedings. Father cites no authority for the proposition that the
finding requirements in that statute apply to severance proceedings, which
are governed instead by A.R.S. § 8-537.


                                         5
                          LUCIAN B. v. DCS, et al.
                           Decision of the Court

¶13           More generally, Father argues that the evidence does not
support the superior court’s findings on either of the statutory grounds for
termination or best interests. The trial record is to the contrary and supports
the statutory ground of 15-months time-in-care and that severance was in
the children’s best interests.

¶14           Although Father asserts the caseworker who testified at trial
“knew almost nothing of personal knowledge,” she testified to being the
case manager from June 2014 to August 2016. Without objection, the
caseworker testified the children had been in care for at least 15 months
pursuant to court order, Father had been unable to remedy the
circumstances that caused the children to be in an out-of-home placement
and there was substantial likelihood that he would not be capable of
exercising parental care and control in the near future. She testified, in some
detail and without objection, about the services provided to Father, noted
he participated in some but not others and added he had not made
necessary behavioral changes and did not take responsibility for the
children being in care. This evidence is contrary to Father’s argument that
the record shows he “participated in all DCS services offered to him.”

¶15           The caseworker also testified that, among other things, Father
denied any responsibility for the children being taken into care, denied the
children had been abused or neglected in his home and failed to understand
the mental-health needs of the children. A clinical psychologist testified to
her evaluation of the children in November 2015, including their reports
about being abused and neglected while in Father’s care, and that Father
knew about at least some of the abuse and neglect during that time. Trial
evidence also showed that, when Father participated in supervised visits,
his conduct was not appropriate – he discussed the dependency with the
children, told J.E. she was not safe in her placement and suggested he was
going to kidnap the children. A June 2016 report stated Father “has been
offered multiple services over an extended period of time, has made little
reported progress and continues to significantly lack insight with regard to
his role in his children’s removal from his care.” This evidence properly
supported the superior court’s corresponding findings and conclusions.

¶16           Father argues that after the children declined visits with him,
he “sent his children two letters as a result of the lack of physical contact,”
“in an effort to maintain a relationship with them.” In those letters,
however, Father “talk[ed] about running away with the kids.” The letters
did nothing to further his relationship with the children; to the contrary,
after reading the letters, the children “experienced a surge in emotional



                                      6
                          LUCIAN B. v. DCS, et al.
                           Decision of the Court

dysregulation.” On this record, Father has not shown that the superior
court improperly weighed this evidence.

¶17            Father argues that “whatever he did was secondary to the
desires of the children,” and that “[t]he focus of the case [impermissibly]
became on what the children wanted.” To the extent this argument is based
on the children’s decision to have no contact with Father, the record
supports the children’s concerns. Father also quotes Roberto F. v. Dep’t of
Child Safety, 232 Ariz. 45, 59 (App. 2013), as supporting his argument. That
case, however, involved a superior court concluding that the father had
“’made significant progress, which does appear to have behavioral
change,’” with a psychologist testifying father “’was able to parent’ and that
his prognosis was ‘favorable that he can continue to adequately care for his
children.’” Id. at 57-58 ¶¶ 60-61 A guardian ad litem also indicated father
should be allowed to have ongoing contact even after severance and a Court
Appointed Special Advocate stating he “did not have any concerns with
[f]ather’s parenting skills.” Id. at 59 ¶¶ 69-70. The trial record here is quite
different, meaning Father has not shown that Roberto F. mandates reversal.

¶18          Father did not testify at trial, electing instead to provide a
written statement. Father called one witness, who testified that visits she
supervised between the children and Father during a four-month period
ending in April or May 2015 went well. The witness had no more recent
involvement, but agreed that Father “was on a successful track at one
point.” The overall record before the court, however, including the
testimony of the caseworker and the exhibits, amply supports the finding
that DCS proved by clear and convincing evidence the statutory grounds of
15-months time-in-care. Accordingly, Father has not shown that the
superior court erred in finding DCS met its burden to show a statutory
ground for severance.7

¶19           Father also argues the superior court abused its discretion in
finding that termination of his parental rights was in the best interests of
the children. Father argues that the court erred by basing that finding solely
“on the children’s desire to remain with their placement.” Best interests
requires DCS to prove, by a preponderance of the evidence, how the

7Given this finding, this Court need not and expressly does not address the
arguments addressing other statutory grounds for severance. See Jesus M.
v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 280 ¶ 3 (App. 2002) (“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.”).


                                       7
                          LUCIAN B. v. DCS, et al.
                           Decision of the Court

children would benefit from severance or be harmed by the continuation of
the parent-child relationship. In re Maricopa Cty. Juv. Action No. JS-500274,
167 Ariz. 1, 5 (1990). This court reviews such a decision for an abuse of
discretion. Mary Lou C. v. Ariz. Dep’t of Econ. Sec., 207 Ariz. 43, 47 ¶ 8 (App.
2004).

¶20            Father’s argument that the best interests decision “was based
on the children’s desire to remain with their placement” misses the mark.
Legally, the superior court “may consider evidence that an existing
placement is meeting the needs of the child in determining that severance
is in the child’s best interest[s].” Mary Lou C., 207 Ariz. at 50 ¶ 19 (citing
Audra T. v. Ariz. Dep’t of Econ. Sec., 194 Ariz. 376, 377 ¶ 5 (App. 1998)).
Factually, the court found the children “are doing well, feel safe, and
receive the psychological and medical support they need,” adding they
“consider placement their home” and both “children are adoptable and
adoption by the foster family is anticipated.” The record fully supports
these findings. The DCS caseworker testified the children were placed
together in a kinship placement that was meeting their needs and that
termination would provide the children needed permanency, safety and
stability. A psychologist testified termination would further the children’s
best interests, based on various sources including her separate interviews
of the children. On this record, the court properly concluded DCS had
shown, by a preponderance of the evidence, that termination was in the best
interests of the children.

                               CONCLUSION

¶21           The stay previously entered in this case is lifted and, because
Father has shown no error, the superior court’s order terminating his
parental rights is affirmed.




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




                                         8
