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Lawrence T. v. Department of Child Safety, M.T.

Court of Appeals of Arizona, First Division

February 28, 2019

LAWRENCE T., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, M.T., Appellees.

          Appeal from the Superior Court in Navajo County No. S0900JD201500034 The Honorable Michala M. Ruechel, Judge

          John A. Banker Attorney at Law, Taylor By John A. Banker Counsel for Appellant

          Arizona Attorney General's Office, Mesa By Lauren J. Lowe Counsel for Appellee, Department of Child Safety

          Judge Michael J. Brown delivered the opinion of the Court, in which Presiding Judge James P. Beene and Judge James B. Morse Jr. joined.

          OPINION

          BROWN, JUDGE.

         ¶1 Lawrence T. ("Father") appeals the juvenile court's order terminating his parental rights to M.T., his daughter, on the grounds of abuse of a child and fifteen months' out-of-home placement. The issue before us is whether the court erred in denying Father's motion that urged dismissal of the termination proceeding based on the doctrine of res judicata, which we refer to as claim preclusion. Because Father did not meet his burden of establishing the elements of claim preclusion, the court did not err when it denied his motion.

         BACKGROUND

         ¶2 Father and Hannah B. ("Mother"), who were never married, are the biological parents of M.T., born in 2013. In 2015, the Arizona Department of Child Safety ("DCS") received a report that Mother's home was unsafe for M.T. Mother agreed to allow M.T. to stay in Father's care until further notice. When Father was indicted on charges arising from his alleged sexual misconduct with several victims (each under the age of 15) between 2005 and 2007, DCS placed M.T. with a family member. DCS then filed a dependency petition alleging Father was neglecting M.T. due to his incarceration, which the juvenile court granted.

         ¶3 In January 2017, DCS moved to terminate Mother's and Father's parental rights pursuant to Arizona Revised Statutes ("A.R.S.") section 8-533. Regarding Father, DCS alleged M.T. had been in an out-of-home placement for more than fifteen months, Father had not remedied the circumstance causing the out-of-home placement, and due to the severity of his pending criminal charges, it was unlikely he could properly parent in the near future. A.R.S. § 8-533(B)(8)(c). Following a termination hearing in May 2017, the juvenile court terminated Mother's parental rights but found DCS did not meet its burden of proof as to Father.[1] The court explained that (1) Father appeared to have a strong relationship with M.T at the time he was incarcerated; (2) he had access to limited services and visits while incarcerated; and (3) it did not appear Father's criminal charges would be resolved until trial, which was scheduled to occur in October 2017. Although the court denied DCS's motion, it did not dismiss the underlying dependency; instead, the court set a permanency planning hearing for Father in December 2017, seemingly anticipating a conclusion in Father's criminal trial.

         ¶4 At Father's request, however, the October trial date was later vacated and rescheduled for February 2018. Shortly thereafter, DCS filed a petition to terminate Father's parental rights, alleging fifteen months' out-of-home placement and abuse of a child under § 8-533(B)(2). Father moved to dismiss, arguing both grounds were barred by claim preclusion, which the juvenile court denied. At the subsequent termination hearing, the court heard expert testimony on the abuse allegations as well as testimony from DCS caseworkers regarding Father's ability to resume parenting if found not guilty of his pending criminal charges. During closing arguments, Father again argued claim preclusion applied to both grounds.

         ¶5 After the hearing, but before the juvenile court issued its ruling, Father's criminal charges were dismissed without prejudice based on the unavailability of a witness. Father requested a new trial to re-open the defense portion of the termination hearing, asserting in part (1) the fifteen-month ground "must be dismissed" because he would be able to "resume effective parenting" in the near future and (2) the dismissal cast doubt on whether sufficient evidence proved he "willfully abused or failed to protect a child." The court denied Father's motion but allowed Father to supplement the record with evidence of the dismissal and gave all parties the opportunity to submit supplemental closing arguments. The court's subsequent ruling found that DCS had proven, by clear and convincing evidence, both statutory grounds for termination and, by a preponderance of the evidence, that termination was in M.T.'s best interests.

         ¶6 Addressing the abuse ground, the juvenile court concluded the "[evidence presented establishes that over a period of time . . . Father engaged in acts of sexual conduct and sexual assault with a minor." Supporting this conclusion was one victim's forensic interview, which the court found especially credible "after considering . . . the [expert] testimony regarding the medical evidence of [this victim's] scarring and trauma." As for the fifteen-month ground, the court found that at the time of the second hearing (1) M.T. had been in an out-of-home placement for more than 30 months; (2) Father was incapable of providing for M.T. due to incarceration; and (3) despite Father's charges being dismissed, Father would not be capable of exercising proper and effective parental control in the near future because he would need "to obtain a psychosexual evaluation and possible treatment." Father timely appealed.

         DISCUSSION

         ¶7 Father argues the juvenile court erred by denying his motion to dismiss because DCS's second request for termination was "barred by operation of the doctrine of [claim preclusion]."[2] We review the applicability of this ...


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