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Winston E. v. Arizona Department of Economic Security, D.E.

Court of Appeals of Arizona, First Division, Department C

June 25, 2013

WINSTON E., Appellant,
v.
ARIZONA DEPARTMENT OF ECONOMIC SECURITY, D.E., Appellees.

Not for Publication -Rule 28, Arizona Rules of Civil Appellate Procedure

Appeal from the Superior Court in Maricopa County Cause No. JD19133 The Honorable Cari A. Harrison, Judge.

Robert D. Rosanelli Attorney for Appellant.

Thomas C. Horne, Attorney General Michael F. Valenzuela, Assistant Attorney General Attorneys for Appellee Arizona Department of Economic Security.

MEMORANDUM DECISION

DIANE M. JOHNSEN, Judge.

¶1 Winston E. ("Father") appeals the superior court's order terminating his parental rights as to his daughter.[1] For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 In May 2010, Child Protective Services ("CPS") learned that Winston's daughter, who was born in August 2001, had numerous bruises that she said were caused by her mother ("Mother"). CPS took the child into temporary physical custody, and the Arizona Department of Economic Security ("ADES") filed a petition alleging she was dependent as to Mother and Father.[2]

¶3 The dependency petition alleged that Father did not have an order of custody for the child, was unable to parent due to being incarcerated and neglected the child during his incarceration from 2001 to 2009. In July 2010, the superior court found the child dependent as to Mother and Father and approved a case plan of family reunification. The court ordered CPS to provide Father with parent-aide services and a psychological consultation.

¶4 Consistent with the court's order, CPS provided Father with transportation to a psychological evaluation and with a referral for parent-aide services in September 2010. But Father refused transportation to the evaluation and never completed an intake assessment with the referral agency. CPS scheduled a second appointment for a psychological evaluation in October 2010, but Father failed to appear for the evaluation. Father was arrested in April 2011 on drug charges.

¶5 Throughout the dependency proceedings and the termination proceedings that followed, CPS lacked consistent contact with Father. Father did not initiate contact with CPS and did not provide CPS with a reliable telephone number. After his arrest in April 2011, CPS attempted to contact Father through parent-locate searches and through county jail databases. CPS discovered in August 2011 that Father was incarcerated, with a latest-possible release date of October 15, 2013. In October 2011, ADES filed a motion to terminate Father's parent-child relationship.

¶6 Because Father was incarcerated at the time of the termination hearing, the court ordered the Department of Corrections to allow him to appear at trial by telephone. Nevertheless, Father did not call in for the hearing, which proceeded in his absence, with the participation of his lawyer and guardian ad litem. See generally Christi A. v. Ariz. Dep't of Econ. Sec, 217 Ariz. 299, 307, ¶¶ 26-28, 173 P.3d 463, 471 (App. 2007) (parent who does not appear at termination hearing despite notice is entitled to representation at hearing).

¶7 At the hearing, the CPS case manager testified that the child had been in an out-of-home placement for a cumulative total of 15 months. The case manager also testified that Father's incarceration prevented the child from being provided with a normal home and that Father could not provide her with normal supervision or appropriate financial or emotional stability. Additionally, the case manager testified that she did not believe Father had demonstrated his ability to parent, given that Father was convicted of a crime and sentenced to two years in prison while his daughter was placed outside the home.

¶8 The superior court granted ADES's motion to sever based on the grounds of length of sentence and nine months and 15 months time-in-care pursuant to Arizona Revised Statutes ("A.R.S.") sections 8-533(B)(4) and (8)(a) and (c) (West 2013), respectively.[3] The court also found severance was in the child's best interests. We have jurisdiction of ...


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