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Donald C. v. Arizona Department of Economic Security6/6/2003
MEMORANDUM DECISION
Not for Publication Rule 111, Rules of the Supreme Court
AFFIRMED
Donald C., father of Zedekiah (Zach) C. and Nicholas C., appeals from the juvenile court's order terminating his parental rights to the children on grounds of neglect, A.R.S. § 8- 533(B)(2); length of time in an out-of-home placement, § 8-533(B)(8)(b); and previous removal and return of the children within eighteen months, § 8-533(B)(11). Donald claims the Arizona Department of Economic Security (ADES) did not present sufficient evidence to establish any of the three statutory grounds alleged for severance or show that the termination of his rights was in the best interests of the children. See § 8-533(B).
The standard of proof required to terminate parental rights is clear and convincing evidence. Ariz. R. P. Juv. Ct. 66(C), 17B A.R.S.; Michael J. v. Arizona Dep't of Econ. Sec., 196 Ariz. 246, 995 P.2d 682 (2000). The juvenile court, as the trier of fact in a termination proceeding, is in the best position to weigh the evidence, observe the parties, judge the credibility of witnesses, and make appropriate findings. In re Pima County Dependency Action No. 93511, 154 Ariz. 543, 744 P.2d 455 (App. 1987). On review, therefore, we accept the juvenile court's findings of fact "unless no reasonable evidence supports those findings," and we will affirm its severance order unless the order is clearly erroneous. Jennifer B. v. Arizona Dep't of Econ. Sec., 189 Ariz. 553, 555, 944 P.2d 68, 70 (App. 1997).
In its lengthy minute entry ruling, the juvenile court set out in exemplary detail the factual and procedural history of this case and the bases for its findings of fact and conclusions of law. We need not repeat those details here, but rather, will discuss some of the salient facts in summary form. Zach and Nicholas had been in Donald's sole custody since their parents separated in August 1998. Their mother now lives in Delaware and has effectively abandoned the children. Three times since 1998, ADES removed Zach and Nicholas from Donald's custody: in April 1999, in June 2000, and, finally, in November 2001.
On the first of those three occasions, four-year-old Zach had left home without Donald's knowledge and was found alone on a busy Tucson street after 8:00 p.m.; ADES alleged that three similar incidents had also occurred in December 1998. After both boys were adjudicated dependent in June 1999, the father complied sufficiently with his case plan to have the children returned to him, and the dependency action was dismissed in May 2000. The following month, Donald was hospitalized after a car accident that occurred when he crossed the center line into oncoming traffic while driving under the influence of alcohol with both children in his vehicle.
As a result, the boys were again removed from his custody and later adjudicated dependent, this time in August 2000. Once again, Donald substantially complied with his case plan and, thus, achieved his children's return in July 2001. After Zach entered first grade in August, however, concerns soon developed over Donald's recurrent failure to administer the medication prescribed for Zach's severe attention deficit hyperactivity disorder. The school principal met with Donald approximately five times between August and November 2001 to discuss how markedly Zach's behavior at school suffered when he did not receive the first morning dose of Adderall Donald was supposed to be administering.
Without his medication, Zach's aggressiveness and out-of-control behavior began endangering other children at school, and Nicholas, too, had been diagnosed with hyperactivity and aggressiveness, f
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