Opinion
No. 2 CA-JV 2017-0193
03-28-2018
DENNIS F., Appellant, v. DEPARTMENT OF CHILD SAFETY, A.C.-F., AND T.F., Appellees.
COUNSEL Rosemary Gordon Pánuco, Tucson Counsel for Appellant Mark Brnovich, Arizona Attorney General By Cathleen E. Fuller, Assistant Attorney General, Tucson Counsel for Appellee Department of Child Safety
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f); Ariz. R. P. Juv. Ct. 103(G). Appeal from the Superior Court in Pinal County
No. S1100JD201300158
The Honorable Brenda E. Oldham, Judge
AFFIRMED
COUNSEL Rosemary Gordon Pánuco, Tucson
Counsel for Appellant Mark Brnovich, Arizona Attorney General
By Cathleen E. Fuller, Assistant Attorney General, Tucson
Counsel for Appellee Department of Child Safety
MEMORANDUM DECISION
Judge Espinosa authored the decision of the Court, in which Presiding Judge Vásquez and Judge Eppich concurred. ESPINOSA, Judge:
¶1 Appellant Dennis F. challenges the juvenile court's order terminating his parental rights to his children, A.C.-F. and T.F., born May 2011 and April 2012 respectively, on grounds of Dennis's inability to remedy the circumstances causing the children to remain in a court-ordered, out-of-home placement for longer than fifteen months. See A.R.S. § 8-533(B)(8)(c). On appeal, Dennis argues the Department of Child Safety (DCS) "did not diligently provide [him] services" and challenges the sufficiency of the evidence to sustain the statutory ground for severance.
¶2 Before it may terminate a parent's rights, a juvenile court must find by clear and convincing evidence that at least one statutory ground for severance exists and must find by a preponderance of the evidence that terminating the parent's rights is in the best interests of the child. See A.R.S. §§ 8-533(B), 8-537(B); Kent K. v. Bobby M., 210 Ariz. 279, ¶ 41 (2005). We will affirm an order terminating parental rights unless we must say as a matter of law that no reasonable person could find those essential elements proven by the applicable evidentiary standard. See Denise R. v. Ariz. Dep't of Econ. Sec., 221 Ariz. 92, ¶ 10 (App. 2009). We view the evidence in the light most favorable to upholding the court's order. Manuel M. v. Ariz. Dep't of Econ. Sec., 218 Ariz. 205, ¶ 2 (App. 2008).
¶3 DCS first became involved with Dennis's family following A.C.-F.'s birth, after she tested positive for methamphetamine and her mother tested positive for amphetamines. The children were removed from their parents' custody in 2013, following an incident of domestic violence during which both parents were intoxicated and the mother had been smoking methamphetamine.
The mother's parental rights have been terminated, and she is not a party to this proceeding. Trisha C. v. Dep't of Child Safety, No. 2 CA-JV 2017-0060 (Ariz. App. Sept. 25, 2017) (mem. decision). --------
¶4 DCS filed a dependency petition in October 2013, and the children were adjudicated dependent as to both parents. That month, DCS indicated in its report to the juvenile court that referrals for substance abuse assessment and treatment would be made and that "[a]fter a period of sobriety" it would make a referral for Dennis to undergo a psychological evaluation. Despite some failed and missed tests, Dennis generally complied with substance-abuse treatment and for the most part tested negative.
¶5 It was not until May 2014, however, that Dennis participated in a psychological evaluation. He was diagnosed with major depressive disorder and various other disorders. The psychologist opined that Dennis's chances of parenting properly in the near future were "guarded" and that he exhibited "significant factors that could pose risks" for parenting. Through the fall of 2014, the children's court appointed special advocate reported problems with visits, and Dennis's drug testing compliance declined. But Dennis completed his substance-abuse treatment program in January 2015.
¶6 By March 2015, however, Dennis had been attending only about half of his counseling sessions and he ultimately stopped attending altogether. He tested positive for opiates and alcohol in April and May and missed some tests. Although the children were having home visits during this period, they were resistant and their behavior regressed afterwards. Through the remainder of 2015, Dennis continued to refuse or miss alcohol tests and declined further substance-abuse treatment. In March 2016, parent-aide services were moved to the provider's offices due to safety concerns for its staff and because other providers were unwilling to go into the home.
¶7 The juvenile court changed the case plan to severance and adoption in April 2016. DCS filed a motion to terminate the parents' parental rights in May. The children's therapist recommended discontinuing counseling, and the visit provider recommended suspension of supervised visits. After contested severance hearings in November 2016 and January 2017, the court granted the motion to terminate on time-in-care grounds.
¶8 On appeal, Dennis argues DCS did not diligently provide him with services, citing delay in providing services in 2013 and 2014. In challenging the juvenile court's ruling, however, Dennis relies on favorable testimony but does not address the contrary evidence cited by the court. We do not reweigh the evidence, Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, ¶ 12 (App. 2002), and will defer to the court's resolution of conflicting inferences if supported by the record, In re Pima Cty. Adoption of B-6355 & H-533, 118 Ariz. 111, 115 (1978). The court acknowledged that "initially there were delays in getting services established," but nevertheless found that DCS had ultimately made "diligent efforts" to provide services and that Dennis's failure to benefit from them or maintain sobriety, along with continued regression in the case plan, was sufficient to establish the ground for severance. As outlined above, those findings are supported by the record.
¶9 Dennis also contends that by the time of the severance hearing he had remedied his substance abuse, domestic violence, and parenting issues. But he again relies on positive evidence, ignoring contrary evidence presented to the juvenile court. The family's therapist testified that by August 2016 the parents had made "no clinical progress." One of the family's visitation providers also testified that by one of the last visits in August 2016, Dennis had still exhibited inappropriate reactions to the children's behavior. A supervisor for the parent aides who had worked with the family also testified that after the extended time in care, "it just didn't seem like things had changed much, and it actually seemed like things were getting worse." A DCS case specialist involved in the case stated that Dennis had continued to deny domestic violence problems and had not "demonstrated a single one of the behavioral changes necessary for return of the children." As late as February 2017, the family's case manager noted that while the parents had "attended and completed some services, they have yet to display any behavioral change." Although, as Dennis argues, other providers gave positive testimony about his progress, we do not reweigh the evidence presented to the juvenile court. Jesus M., 203 Ariz. 278, ¶ 12.
¶10 The juvenile court's order terminating Dennis's parental rights is affirmed.