Appeals from the Superior Court in Pima County. Nos.
S20140305, JD196618, and D20120267 (Consolidated). The
Honorable Jane Butler, Judge Pro Tempore.
Rohr, Tucson Counsel for Appellant Adrian E.
County Office of Children's Counsel, Tucson By Sarah
Richelson Counsel for Appellants L.E. and I.E.
Brnovich, Arizona Attorney General By Cathleen E. Fuller,
Assistant Attorney General, Tucson Counsel for Appellee
Department of Child Safety.
Judge Vásquez authored the opinion of the Court, in
which Judge Miller and Judge Espinosa concurred.
VÁSQUEZ, Presiding Judge:
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.
and Procedural Background
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. 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.
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.
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
the family-court action so that Adrian and Crystal could
participate in mediation.
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.
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 ...