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Adrian E. v. Department of Child Safety

Court of Appeals of Arizona, Second Division

April 5, 2016

ADRIAN E., Appellant,
DEPARTMENT OF CHILD SAFETY, Appellee. L.E. AND I.E., Appellants,

          Appeals from the Superior Court in Pima County. Nos. S20140305, JD196618, and D20120267 (Consolidated). The Honorable Jane Butler, Judge Pro Tempore.

         Jacqueline Rohr, Tucson Counsel for Appellant Adrian E.

         Pima County Office of Children's Counsel, Tucson By Sarah Richelson Counsel for Appellants L.E. and I.E.

         Mark Brnovich, Arizona Attorney General By Cathleen E. Fuller, Assistant Attorney General, Tucson Counsel for Appellee Department of Child Safety.

         Presiding Judge Vásquez authored the opinion of the Court, in which Judge Miller and Judge Espinosa concurred.


Page 265

          VÁSQUEZ, Presiding Judge:

         [¶1] In their consolidated appeals, Adrian E. and his minor children, L.E. and I.E., challenge the juvenile court's termination of Adrian's parental rights pursuant to A.R.S. § 8-533(B)(11). They argue that subsection of the statute does not apply to a parent like Adrian, who was only granted the right to supervised visitation in the prior dependency and related family-court proceedings, whereas the children's mother, from whose home the children were removed, had been granted primary physical custody and " [s]ole legal decision-making" authority. A.R.S. § 25-401(6). Appellants also contend the court abused its discretion in finding termination of Adrian's rights was in the children's best interests. The Department of Child Safety (DCS) has conceded Adrian's rights could not be terminated pursuant to § 8-533(B)(11). We agree and therefore reverse the court's order.

         Factual and Procedural Background

         [¶2] We view the evidence in the light most favorable to sustaining the juvenile court's ruling. See Manuel M. v. Ariz. Dep't of Econ. Sec., 218 Ariz. 205, ¶ 2, 181 P.3d 1126, 1128 (App. 2008). Adrian and Crystal W., the mother of L.E. and I.E., born in 2007 and 2009 respectively, were divorced in August 2010.[1] Crystal was awarded sole custody of the children, subject to Adrian's reasonable parenting time. But in October 2010, Crystal brought the children to Adrian at his place of employment and demanded that he take them. They were wearing nothing but diapers, had no car seats, and I.E. had scratches on his face and back. The children remained with Adrian for about two months, but DCS removed them from his care in December 2010 and placed them in foster care after L.E. reported he had hit her with a belt on her stomach and back.

         [¶3] The children were adjudicated dependent as to Adrian in January 2011, after he admitted allegations in an amended dependency petition, and as to Crystal a few weeks later, after she failed to appear for the dependency hearing. The parents were provided a variety of services designed to reunify the family, and, in April 2012, the children were returned to Adrian's care. But the children were removed again in May 2012 and placed in foster care after L.E. reported Adrian had pulled her ear and I.E. stated Adrian had hit L.E. on the leg. In October 2012, DCS filed a motion to terminate the parents' rights on numerous grounds. On the last day of a five-day severance trial, the juvenile court denied the motion as to Crystal, and, then in a June 2013 under-advisement ruling, it denied the motion as to Adrian.

         [¶4] During the year that preceded the juvenile court's denial of the motion to sever, Crystal complied with the case plan, and, in May 2013, the children were placed in her care. Indeed, in its June 2013 under-advisement ruling, the court noted that the children had been " returned to the physical custody of their mother" and found that, " [b]ecause the children are permanently placed with their mother, . . . [there is] no benefit to terminating Father's parental rights." The court consolidated the dependency proceeding with

Page 266

the family-court action so that Adrian and Crystal could participate in mediation.

         [¶5] The parents entered into an updated parenting agreement in October 2013, which the family court adopted in its order in the family-law proceeding. The agreement and, consequently, the court's order utilized principles and language consistent with 2012 amendments to title 25 that eliminated the terms " legal custody" and " visitation" and replaced them with " legal decision-making," § 25-401(3), and " parenting time," § 25-401(5). See 2012 Ariz. Sess. Laws, ch. 309, § § 4-5. Crystal was given " sole legal decision-making" authority over the children. The court granted Adrian parenting time as provided in the agreement, which gave him supervised parenting time at his expense and specified that the children were to live " primarily" with Crystal. Based on the parties' agreement, the related order in the family-court matter, and Crystal's compliance with the case plan, the court dismissed the dependency proceeding on October 28.

         [¶6] In June 2014, L.E. and I.E. were removed from Crystal's care based on reports that she was neglecting and abusing them and that she was abusing alcohol and using drugs in front of them. DCS filed a dependency petition, alleging as to Adrian that he had failed to protect the children from abuse or neglect by Crystal. It further alleged Adrian had not exercised " his court-awarded supervised parenting time and was out of touch with the children," having failed to see them in five or six months. Additionally, DCS alleged Adrian had a " life-long" history of mental-health issues. A few months later, in August 2014, DCS filed a petition to terminate Crystal's and ...

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