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Bennigno R. v. Arizona Department of Economic Security

Court of Appeals of Arizona, Second Division, Department B

October 30, 2013

BENNIGNO R., Appellant,

APPEAL FROM THE SUPERIOR COURT OF PINAL COUNTY Cause No. JD200500164R Honorable Kevin D. White, Judge.

Heard Law Firm By James L. Heard Mesa Attorney for Appellant

Thomas C. Horne, Arizona Attorney General By Erika Z. Alfred Tucson Attorneys for Appellee Arizona Department of Economic Security


VIRGINIA C. KELLY, Presiding Judge

¶1 Bennigno R., biological father of S.R., born in August 1999, and L.R., born in January 2009, appeals from the juvenile court's order terminating his parental rights to both children on the grounds of mental illness and length of time in court-ordered care, pursuant to A.R.S. § 8-533(B)(3) and (B)(8)(c), respectively. Bennigno maintains the court abused its discretion in denying his motion for summary judgment. He also contends the Arizona Department of Economic Security (ADES) had not proven that he had abandoned the children, that it had made a diligent effort to provide reunification services, or that termination of his rights was in the children's best interests. We affirm for the reasons stated below.

¶2 We review the evidence in the light most favorable to sustaining the juvenile court's ruling. Lashonda M. v. Ariz. Dep't of Econ. Sec, 210 Ariz. 77, ¶ 13, 107 P.3d 923, 928 (App. 2005). Thus, "we will accept the juvenile court's findings of fact unless no reasonable evidence supports those findings" and the findings are clearly erroneous. Jesus M. v. Ariz. Dep 't of Econ. Sec, 203 Ariz. 278, ¶ 4, 53 P.3d 203, 205 (App. 2002).

¶3 The record and the evidence presented at the severance hearing established that this family, which had included four children who are not the subject of this appeal— A.R., P.R., M.R., and B.R.—and their mother Juana M., [1] had a lengthy involvement with ADES and Child Protective Services (CPS), a division of ADES. Between October 1998 and May 2009, CPS received numerous reports that the children were being neglected and abused and that the parents were abusing drugs and alcohol. In 2004, for example, then two-year-old A.R. was found at a park by himself. Also in 2004, twelve-year-old P.R. reported she had been molested by her uncle, who subsequently admitted molesting her. At around this time, Bennigno was on probation for a domestic-violence offense.

¶4 In September 2005, a Pinal County Sheriffs deputy found A.R., then three years old, walking on a highway at 3:00 in the morning in his underwear. The deputy located the child's home, where he found S.R., then six years old, awake and in the care of an unconscious and apparently intoxicated uncle. The CPS investigator stated in the report to the juvenile court for the preliminary protective hearing that the home had been "in a state of squalor" and the children were filthy. Two other children had been left with the maternal grandmother, whose home was equally filthy and squalid.

¶5 The children were taken into protective custody on September 16, 2005, and ADES filed a dependency petition. The children were adjudicated dependent as to Juana after she submitted the issue to the court, and as to Bennigno after he reached an agreement with ADES during mediation. ADES provided the family with various services and in August 2006 the court dismissed the dependency.

¶6 In October 2009, ADES again took the children into protective custody and filed a dependency petition after receiving reports of domestic violence incidents, neglect of the children, and sexual abuse of S.R. and P.R. by family members.[2] In February 2010, Juana and Bennigno submitted the issue of dependency to the juvenile court and the court adjudicated the children dependent.[3]

¶7 In May 2011, ADES filed a motion to terminate the parents' rights to M.R., S.R., A.R., and L.R. on the grounds of length of time in court-ordered care and, as to Bennigno, mental illness, and, as to Juana, mental deficiency.[4] After a four-day severance hearing between October 2011 and February 2012, the juvenile court found ADES had established the two grounds for terminating each parent's respective rights and although ADES had made "reasonable efforts to provide [the parents] with rehabilitative services, " the parents had not benefitted from those services and additional services would be futile. But, the court found that ADES had not sustained its burden of establishing termination of the parents' rights as to S.R. and L.R. was in the children's best interests "[i]n light of the bond they share[d] with their parents." The court set the matter for a permanency hearing as to S.R. and L.R.

¶8 Thereafter, ADES continued to provide the parents and children with services. In August 2012, ADES filed a second motion to terminate the parents' rights as to S.R. and L.R. on the same grounds alleged in the first severance motion. Before the hearing, Bennigno filed a motion for summary judgment in which he argued, "[r]es [j]udicata precludes [ADES] from re-litigating the Best Interest claim upon which this court has already ruled." The juvenile court heard the motion on the first day of the severance hearing in December 2012 and denied it.

¶9 Evidence presented at the three-day hearing included the foster mother's testimony that she intended to relocate to North Carolina and wanted to adopt the children and take them with her. She testified she could not serve as a placement for the children if the court were to order a guardianship or other solution short of termination of the parents' rights because she needed the permanency of adopting the children and assuming full responsibility for them. After taking the matter under advisement, the juvenile court granted ADES's motion, again finding that ADES had proved the alleged statutory grounds of mental illness as to Bennigno, mental deficiency as to Juana, and as to both parents, length of time in court-ordered care. The court concluded termination of the parents' rights was in the children's best interests even though they were bonded with the parents and would be adopted by the foster mother and moved to another state, finding there was no "reasonable prospect" that the children could be returned to the parents' care. This appeal followed the court's entry of a final order.

ΒΆ10 Bennigno argues the juvenile court "should have granted [his] Motion for Summary Judgment, " contending that the principle of res judicata precluded ADES from re-litigating. But, Bennigno's argument is cursory at best, generally claiming without citation to the record that the evidence presented by ADES was not new and citing only a single case broadly describing the principle of res judicata. Notably, he ...

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