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
...