NOTICE: NOT FOR PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE

LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

JOSEPH F., Appellant,

v.

DEPARTMENT OF CHILD SAFETY, 1 J.P., Appellees.

No. 1 CA-JV 14-0114

 1 CA-JV 14-0133

 (Consolidated)

Appeal from the Superior Court in Maricopa County

No. JS 17162

The Honorable Connie Contes, Judge

AFFIRMED

COUNSEL

Robert D. Rosanelli, Phoenix

Counsel for Appellant

Arizona Attorney General’s Office, Phoenix

By JoAnn Falgout

Counsel for Appellees

 

1 Pursuant to S.B. 1001, Section 157, 51st Leg., 2nd Spec. Sess. (Ariz. 

2014) (enacted), the Department of Child Safety is substituted for the 

Arizona Department of Economic Security in this matter. See ARCAP 27.
JOSEPH F. v. DCS, J.P.

Decision of the Court

2

MEMORANDUM DECISION

Presiding Judge Margaret H. Downie delivered the decision of the Court, 

in which Judge Andrew W. Gould and Judge Samuel A. Thumma joined.

D O W N I E, Judge:

¶1 In these consolidated appeals, Joseph F. (“Father”) 

challenges the superior court’s orders finding his minor son, J.P., 

dependent and terminating his parental rights to J.P. For the following 

reasons, we affirm the severance order and deem the dependency finding 

moot. 

FACTS AND PROCEDURAL HISTORY2

¶2 In 1999, Father was charged with kidnapping and sexually 

assaulting his older son’s intoxicated 16-year-old female friend. He pled 

guilty to attempted sexual assault, a class three felony, and kidnapping, a 

class two felony. The court sentenced Father to five years’ imprisonment, 

ordered him to register as a sex offender, and placed him on lifetime 

probation upon his release from prison.

¶3 Father was released from prison in 2007. His original terms 

of probation prohibited “contact with any male or female child under the 

age of 18, including relatives” without prior written approval of the adult 

probation department (“APD”). When J.P. was born in 2012, Father 

received APD’s permission to attend his delivery and to see the child in 

the presence of J.P.’s mother. 

¶4 In May 2013, APD filed a probation revocation petition

alleging numerous violations by Father, including absconding, possessing 

or using amphetamine, failing to submit to drug testing, failing to 

participate and cooperate in counseling, failing to abide by sex offender

terms of probation, and failing to “actively participate and remain in sex 

offender treatment.” Father admitted absconding and was reinstated on 

 

2 On appeal, “[w]e view the facts in the light most favorable to 

upholding the juvenile court’s order.” Ariz. Dep’t of Econ. Sec. v. Matthew 

L., 223 Ariz. 547, 549, ¶ 7, 225 P.3d 604, 606 (App. 2010).
JOSEPH F. v. DCS, J.P.

Decision of the Court

3

lifetime probation, again with sex offender terms.

3 Relevant terms of 

Father’s probation that remain in effect include:

 I will obtain prior written approval of the APD before 

initiating, establishing or maintaining contact with any child 

under the age of 18, including relatives. 

 I will obtain prior written approval of the APD before going 

to or near school properties, parks, playgrounds, arcades, 

swimming pools or other places primarily used by children 

under the age of 18, or any other location APD has notified 

me in writing is inappropriate.

 I will obtain prior written approval of the APD before 

socializing, dating or entering into a sexual relationship with 

any person who has children under the age of 18.

 I will obtain prior written approval of the APD before 

possessing children’s clothing, toys, games, videos, etc.

¶5 In June 2013, the Department of Child Safety (“DCS”) took 

custody of J.P. because the child’s mother was incarcerated and Father 

was a convicted sex offender.4 DCS filed dependency and severance 

petitions. After a consolidated hearing, the superior court found J.P. 

dependent as to Father and terminated Father’s parental rights. Father 

timely appealed. We have jurisdiction pursuant to Arizona Revised 

Statutes (“A.R.S.”) section 8-235(A).

DISCUSSION

I. Statutory Grounds for Severance

¶6 The court may terminate parental rights if it finds the 

existence of one statutory ground for severance by clear and convincing 

 

3 At the severance trial, Father testified his admitted probation 

violation was for using methamphetamine. The record from the criminal 

proceedings reflects he admitted to absconding. Any discrepancy in this 

regard is immaterial to our decision.

4 Mother remained incarcerated during all times relevant here. Her

parental rights to J.P. were also terminated, but she is not a party to this 

appeal.
JOSEPH F. v. DCS, J.P.

Decision of the Court

4

evidence. A.R.S. §§ 8-533(B), -537(B). “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.” Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 

280, ¶ 4, 53 P.3d 203, 205 (App. 2002). We review termination orders for 

an abuse of discretion. See Xavier R. v. Joseph R., 230 Ariz. 96, 100, ¶ 11, 280 

P.3d 640, 644 (App. 2012). 

¶7 DCS alleged two grounds for termination: (1) abuse of a 

child under A.R.S. §§ 8-201(2) and -533(B)(2); and (2) conviction of a felony

under A.R.S. § 8-533(B)(4). Because we affirm the severance order based 

on § 8-533(B)(4), we need not, and expressly do not, address the additional 

ground found by the superior court under A.R.S. §§ 8-201(2) and 

-533(B)(2). See Jesus M., 203 Ariz. at 280, ¶ 3, 53 P.3d at 205 (“If clear and 

convincing evidence supports any one of the statutory grounds on which 

the juvenile court ordered severance, we need not address claims 

pertaining to the other grounds.”). Additionally, the severance order 

renders the dependency finding moot. See Rita J. v. Ariz. Dep’t of Econ. 

Sec., 196 Ariz. 512, 515, ¶ 10, 1 P.3d 155, 158 (App. 2000) (otherwise 

appealable order from permanency hearing essentially moot due to later 

order terminating parental rights); Vinson v. Marton & Assocs., 159 Ariz. 1, 

4, 764 P.2d 736, 739 (App. 1988) (when circumstances in a case change to 

the extent that a reviewing court’s action would have no effect on the 

parties, then the issue becomes moot for purposes of appeal). 

Accordingly, we address whether severance was appropriate under A.R.S. 

§ 8-533(B)(4).

¶8 Termination of the parent-child relationship may occur 

when a parent

is deprived of civil liberties due to the conviction of a felony 

if the felony of which that parent was convicted is of such 

nature as to prove the unfitness of that parent to have future 

custody and control of the child, including murder of 

another child of the parent, manslaughter of another child of 

the parent or aiding or abetting or attempting, conspiring or 

soliciting to commit murder or manslaughter of another 

child of the parent . . . .

A.R.S. § 8-533(B)(4). 

¶9 “A felony proves unfitness if its commission permits a 

rational inference of unfitness,” though a parent may rebut such an 
JOSEPH F. v. DCS, J.P.

Decision of the Court

5

inference. In re Juvenile No. J-2255, 126 Ariz. 144, 146-47, 613 P.2d 304, 

306-07 (App. 1980). Father concedes that although attempted sexual 

assault of a minor and kidnapping are not specifically enumerated

offenses in § 8-533(B)(4), his convictions “have in common with the listed 

crimes that they are directed against children. As such, it is 

understandable that the State may attempt to demonstrate the Appellant’s 

unfitness to parent from these two convictions.” We agree. See, e.g., In re 

Pima Cnty. Juvenile Action No. S-983, 133 Ariz. 182, 650 P.2d 484 (App. 

1982) (sexual assault and attempted sexual assault of young women

sufficient to support determination of unfitness to parent).

¶10 The superior court recited Father’s crimes and sentences and 

concluded DCS had proven by clear and convincing evidence that

severance was appropriate under A.R.S. § 8-533(B)(4), stating:

Due to [Father’s] legal status as a registered sex offender and 

the terms of his probation, including the specific terms of sex 

offender probation proven at trial, Father is deprived of his 

civil liberties. The nature of his felony conviction, attempted 

sexual abuse of a child, proves that Father is unfit to have 

future custody and control of [J.P.]. 

¶11 Father argues that he committed his crimes in 1999 and that 

he has since participated in sex offender treatment, has not “re-offended 

sexually,” and has not violated probation terms “of a sexual nature.” 

Father, though, admitted at trial that he used methamphetamine less than 

a year before the severance trial. He also conceded that drug use is a 

potential trigger for him to reoffend with a sexual offense. 

¶12 Father’s surveillance officer testified that as recently as 2013, 

Father failed to participate in sex offender and drug treatment, failed to 

drug test, associated with individuals engaged in criminal activities, and 

viewed “sexually stimulating material” in violation of his probation terms. 

Father admitted failing to attend sex offender treatment or meet with his 

probation officer during the time he was using methamphetamine. The 

surveillance officer also testified there had “definitely been some violation 

behaviors” after Father was reinstated to probation in 2013, though his 

conduct was addressed through APD’s “own consequences and 

therapeutically, rather than taking him back into custody for yet another 

revocation.” The court also heard testimony that in October 2013, after 

being reinstated to probation, Father attempted to contact Mother, a 

convicted felon in Department of Corrections custody, while she was on a 

prison work detail, leaving a cell phone “in a specific location that then 
JOSEPH F. v. DCS, J.P.

Decision of the Court

6

the female inmates were able to obtain” it. Father’s surveillance officer 

testified Father is currently “supervised at a medium risk” to reoffend or 

violate probation. She also testified that any visitation between Father 

and J.P. would have to be supervised for as long as Father remains on 

probation and in a location where no other children are present.

5

¶13 Finally, by prohibiting Father from having contact with 

children, including his own relatives, the superior court in the criminal 

case clearly viewed Father’s felonious conduct as presenting a danger to 

children. Although a lengthy period of time has elapsed since the

underlying offenses, the nature of the underlying convictions, coupled 

with Father’s behaviors while on supervision for those crimes and the 

superior court’s continuing prohibition against contact with children, 

supports the determination he is unfit to parent J.P. 

II. Best Interests

¶14 Before terminating parental rights, the court must also find 

by a preponderance of the evidence that termination is in the child’s best 

interest. See A.R.S. § 8-533(B); Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 22, 

110 P.3d 1013, 1018 (2005). Credible evidence that the child would benefit 

from the severance or be harmed by continuation of the parent-child 

relationship is sufficient. See Lawrence R. v. Ariz. Dep’t of Econ. Sec., 217 

Ariz. 585, 587, ¶ 8, 177 P.3d 327, 329 (App. 2008). A court may properly 

consider the stability and permanency adoption can afford a child. Jose M. 

v. Eleanor J., 234 Ariz. 13, 18, ¶ 23, 316 P.3d 602, 607 (App. 2014). Evidence 

of an adoption plan, a child’s adoptability, or an existing placement 

meeting the child’s needs supports a finding he would benefit from 

severance. Audra T. v. Ariz. Dep’t of Econ. Sec., 194 Ariz. 376, 377, ¶ 5, 982 

P.2d 1290, 1291 (App. 1998); Maricopa Cnty. Juvenile Action No. JS-501904, 

180 Ariz. 348, 352, 884 P.2d 234, 238 (App. 1994).

 

5 The DCS case manager testified that supervising visits between 

Father and J.P. would be unworkable because the visitation center “has 

children everywhere.” 
JOSEPH F. v. DCS, J.P.

Decision of the Court

7

¶15 Evidence at the severance trial established that J.P. is 

adoptable, is thriving in a stable relative placement that meets all of his 

needs, and is bonded with his foster mother, who is willing to adopt him. 

Under these circumstances, the superior court did not err by concluding

that severance of Father’s parental rights “would further the plan of 

adoption” and was in J.P.’s best interests.

CONCLUSION

¶16 For the reasons stated, we affirm the order terminating 

Father’s parental rights.