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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                           DONOVAN L., Appellant,

                                         v.

         DEPARTMENT OF CHILD SAFETY, M.L, D.L., Appellee.

                              No. 1 CA-JV 16-0435
                                FILED 4-13-2017


            Appeal from the Superior Court in Yavapai County
                         No. P1300JD201400069
                 The Honorable Anna C. Young, Judge

                                   AFFIRMED


                                    COUNSEL

Robert D. Rosanelli Attorney at Law, Phoenix
By Robert D. Rosanelli
Counsel for Appellant

Arizona Attorney General’s Office, Mesa
By Ashlee N. Hoffmann
Counsel for Appellee Department of Child Safety
                        DONOVAN L. v. DCS, et al.
                          Decision of the Court



                      MEMORANDUM DECISION

Judge Kent E. Cattani delivered the decision of the Court, in which
Presiding Judge Peter B. Swann and Judge Donn Kessler joined.


C A T T A N I, Judge:

¶1            Donovan L. (“Father”) appeals the superior court’s
termination of his parental rights to his children M.L. and D.L. For reasons
that follow, we affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2            M.L. and D.L. are the biological children of Father and Julia
C. (“Mother”). M.L. was born in January 2013, and D.L. was born in April
2014. Mother has a child from a previous relationship, B.L. (born September
2010), who lived with Father and Mother.1

¶3           In September 2014, the Department of Child Safety (“DCS”)
received a report that B.L. and M.L. had been found wandering outside
with no clothes on. This was the third time in seven months that something
similar had happened.

¶4            A DCS case worker went to the home of the children’s
maternal grandfather, where Mother and Father intermittently resided.
Father told the case worker that Mother was sleeping and the children were
not at home. The case worker told Father that she needed to talk to Mother,
and Father went to let her know. Mother came to the door and insisted that
the children were not home. She became extremely agitated, and the case
worker called for law enforcement backup.

¶5           While the case worker was on the phone with law
enforcement, Father retrieved M.L. from the residence and attempted to
leave with him. The case worker attempted to stop him, but Father insisted
that he could take M.L. wherever he wanted. Yavapai County Sheriff’s
Office (“YCSO”) deputies arrived before Father could leave and



1      The court also terminated Mother’s parental rights to B.L., M.L, and
D.L., but Mother is not a party to this appeal.


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

interviewed Father, Mother, and the maternal grandfather. Father then left,
saying he would not speak with DCS.

¶6             The case worker entered the home and noted a significant
odor of urine and fecal matter. All three children were in the home. M.L
and B.L. were covered in bug bites, and the case worker observed the
children playing on the floor, which was covered in urine stains, flies, and
dog feces. At one point, the case worker saw B.L. playing with a real sword,
which she took away and placed on a counter out of his reach. While the
case worker interviewed Mother, B.L. also found an unidentified bottle of
pills, and thereafter found a bottle of liquid antacid.

¶7            DCS removed the children from the home and placed them in
foster care. When the children were removed, B.L. and M.L.’s feet bottoms
were black; D.L. had cradle cap, and he had not been seen by a doctor since
his birth. None of the children had been immunized.

¶8             Shortly after the children were removed, DCS filed a
dependency petition alleging that Father was neglecting M.L. and D.L. by
allowing them to remain in the unsanitary conditions present at their
maternal grandfather’s home. Although Father denied the allegations in
the petition, the superior court found M.L and D.L. dependent as to Father
in October 2014.

¶9            DCS referred Father for several services, including anger
management, counseling, domestic-violence education, parent-aide
services, parenting classes, and a psychological evaluation. By the end of
2015, DCS had requested that all three children be returned to Mother and
Father. The court granted these requests and on DCS’s motion, the court
terminated the dependencies as to M.L. and D.L. in March 2016.

¶10           The next month, YCSO received a call that D.L. had been
found alone on the road outside his maternal grandfather’s home. When
the person who found D.L. initially tried to return him to the home, no one
answered. Eventually, the maternal grandfather came out of the home and
took D.L. inside. A responding deputy interviewed Mother and Father.
Mother said that she had been at the grocery store at the time of the incident.
Father said that D.L. had left the house while he was in the shower. Father
stated that he had locked and chained all the doors, but forgot to slide the
pet door shut. The deputy informed DCS of the incident.

¶11          A month and a half later, a YCSO deputy responded to a
report that M.L. and D.L were in the street around the corner from their
maternal grandfather’s home wearing nothing but diapers. When the


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

deputy arrived, Mother had found the children and was walking back
toward the home with them. Mother told the deputy that the children had
gotten out while she was asleep, after Father and grandfather had left for
work. Father arrived and blamed the boys’ grandfather for their escape,
because he had apparently placed a couch close enough to the front door
that the boys could use it to reach the locks. Because she had repeatedly let
the children leave her care, YCSO officers arrested Mother for child abuse.
She was indicted on two counts of child abuse soon thereafter.

¶12           DCS filed a second dependency petition, alleging that Father
had neglected M.L. and D.L. by failing to protect them. DCS then moved
to terminate Father’s parental rights, alleging neglect and, in an amended
motion, prior removal as grounds for termination. Ariz. Rev. Stat.
(“A.R.S.”) § 8-533(B)(2), (11).2 Father consented to a “paper trial.” He
included a written statement to the court with his trial exhibits.

¶13          The superior court found both grounds supported severance
and that severance was in the children’s best interests. Father timely
appealed, and we have jurisdiction under A.R.S. § 8-235(A).

                                DISCUSSION

¶14           The superior court may terminate the parent–child
relationship if it finds at least one ground for termination by clear and
convincing evidence and finds by a preponderance of the evidence that
termination will be in the child’s best interests. A.R.S. § 8-533(B); Kent K. v.
Bobby M., 210 Ariz. 279, 284, ¶ 22 (2005). When reviewing a termination
order, we view the evidence “in the light most favorable to sustaining the
court’s decision.” Jordan C. v. Ariz. Dep’t of Econ. Sec., 223 Ariz. 86, 93, ¶ 18
(App. 2009). Because the superior court is in the best position to weigh the
evidence, we defer to its factual findings and will affirm unless the order is
clearly erroneous. Ariz. Dep’t of Econ. Sec. v. Oscar O., 209 Ariz. 332, 334, ¶
4 (App. 2004).

¶15           Under A.R.S. § 8-533(B)(2), the parent–child relationship can
be terminated if the parent has neglected a child, including “situations in
which the parent knew or reasonably should have known that a person was
abusing or neglecting a child.” As relevant here, neglect means “[t]he
inability or unwillingness of a parent . . . of a child to provide that child
with supervision, food, clothing, shelter or medical care if that inability or


2     Absent material revisions after the relevant date, we cite a statute’s
current version.


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

unwillingness causes unreasonable risk of harm to the child’s health or
welfare.” A.R.S. § 8-201(25)(a).

¶16           Relying on Jade K. v. Loraine K., 240 Ariz. 414 (App. 2016),
Father argues that the evidence presented was insufficient to establish that
he was unable or unwilling to provide sufficient care to his children, given
that he was only responsible for supervising the children during one of the
five incidents in which YCSO was called to the family’s home. In Jade K., a
father’s parental rights were severed based on a single incident during
which his daughter ingested wild mushrooms while playing unsupervised
outside his apartment. Id. at 417–19, ¶¶ 13–20. This court reversed, holding
that the superior court had erroneously focused on the injury that the child
suffered, rather than on the father’s conduct that may have contributed to
the injury. Id. at 417–18, ¶ 13; see also Kent K., 210 Ariz. at 287, ¶ 36 (noting
that when assessing grounds for termination, “the focus is solely upon the
parent”).

¶17           Despite Father’s assertion to the contrary, his rights were not
severed based solely on the April 2016 incident, when he was responsible
for supervising the children. The court’s ruling also referred to the incident
in September 2014 when both B.L. and M.L left the home and the May 2016
incident when M.L. and D.L. left the home while under Mother’s care.
Although the April 2016 incident was the only time that the children left the
home while solely in Father’s care, it was not the sole basis for the
termination of Father’s rights.

¶18           Reasonable evidence supports the court’s finding that Father
failed to protect his children from neglect, including by leaving them in
Mother’s care. Father’s statement to the court suggested that the incidents
of neglect during which Mother failed to adequately supervise the children
were “bad luck.” And he blamed his father-in-law for at least one of these
instances. But the court could reasonably conclude that Father knew or
should have known that M.L. and D.L. were being neglected, and that he
was unable or unwilling to prevent future harm to his children. See A.R.S.
§§ 8-201(25)(a), -533(B)(2).3




3      Because we affirm on the neglect ground, we need not address the
alternative ground of prior removal. Jesus M. v. Ariz. Dep’t of Econ. Sec., 203
Ariz. 278, 280, ¶ 3 (App. 2002). Father does not challenge the court’s
determination that severance was in the best interests of the children.


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

                            CONCLUSION

¶19          For the foregoing reasons, we affirm the superior court’s
order terminating Father’s rights as to M.L. and D.L.




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




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