Opinion
2 CA-JV 2024-0059
10-16-2024
IN RE GUARDIANSHIP OF D.S AND D.A.S.
Buckley Law PLLC, Cortaro By Kyle T. Buckley Counsel for Appellant Devin S. Kristin K. Mayes, Arizona Attorney General By Dawn R. Williams, Assistant Attorney General, Tucson Counsel for Appellee Department of Child Safety
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pima County No. JD20200764 The Honorable Joan Wagener, Judge
Buckley Law PLLC, Cortaro By Kyle T. Buckley Counsel for Appellant Devin S.
Kristin K. Mayes, Arizona Attorney General By Dawn R. Williams, Assistant Attorney General, Tucson Counsel for Appellee Department of Child Safety
Presiding Judge Gard authored the decision of the Court, in which Chief Judge Staring and Judge Eckerstrom concurred.
MEMORANDUM DECISION
GARD, PRESIDING JUDGE
¶1 Devin S. appeals from the juvenile court's order appointing permanent guardians for his daughter, D.S., born June 2010, and his son, D.A.S., born July 2015. He argues the Department of Child Safety (DCS) failed to prove that it had made reasonable efforts to reunify him with the children and that further efforts toward reunification would be unproductive. We affirm.
¶2 We view the evidence in the light most favorable to upholding the juvenile court's ruling. See In re Guardianship of C.M., ___ Ariz. ___, ¶ 2, 549 P.3d 214, 216 (App. 2024). DCS removed the children from Devin's and their mother's, Jessica B.'s, care in December 2020 due to Jessica's substance abuse and both parent's neglect. The children were adjudicated dependent as to both parents in February 2021. Devin participated in services but remained in a relationship with Jessica. By December 2023, despite his participation in other services, Devin was only sporadically participating in visitation and had not found acceptable housing. In February 2024, DCS moved to appoint the children's current placements as their permanent guardians.
¶3 At the April 2024 contested guardianship hearing, a child safety specialist testified that, although Devin's parenting skills were adequate, he remained concerned about Devin's ability to be the children's primary caregiver. Specifically, he testified that Devin had misled DCS about his ongoing relationship with Jessica. And he noted that Devin had failed for years to find appropriate housing despite being told he needed to do so. In fact, he had failed to schedule an evaluation of his current residence, an apartment he obtained only after the guardianship motions were filed, to determine if it was suitable for the children. At the time of the hearing, Devin had not progressed to unsupervised visits. And he denied that his relationship with Jessica had affected his relationship with his children, stating, "The only way that my children were affected due to the relationship was having this case." The juvenile court granted the guardianship motion as to each child in June 2024. This appeal followed.
Jessica "chose not to contest the evidence presented." She is not a party to this appeal.
¶4 A juvenile court may establish a permanent guardianship if it is in the child's best interests and, relevant here, the child is dependent, has been in the custody of the prospective guardian for at least nine months, and DCS "has made reasonable efforts to reunite the parent and child and further efforts would be unproductive." A.R.S. § 8-871(A). The petitioner, DCS in this case, must prove by clear and convincing evidence that these elements are met. A.R.S. § 8-872(H). The overriding consideration in a guardianship proceeding is "the physical, mental and emotional needs and safety of the child." § 8-871(D). "We will affirm a juvenile court's [guardianship] order based on findings of clear and convincing evidence unless no reasonable evidence supports those findings." Jennifer B. v. Ariz. Dep't of Econ. Sec., 189 Ariz. 553, 555 (App. 1997). Thus, we "will not reweigh the evidence but will look only to determine if there is evidence to sustain the court's ruling." Mary Lou C. v. Ariz. Dep't of Econ. Sec., 207 Ariz. 43, ¶ 8 (App. 2004).
¶5 Devin first argues DCS did not make reasonable efforts to reunify him with his children because, despite having concerns about his ability to parent, it did not offer him additional services. Specifically, he asserts, a parent aide would have "support[ed] his transition to full-time caretaker and assist[ed] in coordinating schedules and appointment[s] for the children." He also asserts DCS was obligated to provide him additional services to address its concerns over his ongoing relationship with the children's mother.
¶6 DCS need not provide parents "every conceivable service" but should offer them time and opportunity to participate in services to improve their ability to care for their children. Mary Ellen C. v. Ariz. Dep't of Econ. Sec., 193 Ariz. 185, ¶ 37 (App. 1999) (quoting In re Maricopa Cnty. Juv. Action No. JS-501904 , 180 Ariz. 348, 353 (App. 1994)). But there was little reason for DCS to provide a parent aide to aid Devin with caretaking given that he was not permitted unsupervised visitation and had not established appropriate housing. And he has not explained what additional services would have facilitated him finally ending his relationship with Jessica beyond those DCS had already provided-which included substance abuse treatment and individual therapy.
Because the juvenile court did not err in finding DCS had provided adequate reunification services, we need not address DCS's argument that Devin waived this issue on appeal.
¶7 Devin next asserts DCS failed to show that further reunification services would be unproductive. He argues that he resolved the barriers to reunification identified by the juvenile court-namely stable employment and appropriate housing-and it was therefore "premature" for the court to appoint permanent guardians for D.S. and D.A.S. The underlying question to be resolved by the court in addressing this element is whether family reunification is "readily attainable." Guardianship of C.M., ___ Ariz. ___, ¶ 7, 549 P.3d at 217. But the "window of opportunity" for a parent to obtain reunification does not remain "open indefinitely." In re Maricopa Cnty. Juv. Action No. JS-501568 , 177 Ariz. 571, 577 (App. 1994).
¶8 Devin's argument fails to account for all the facts before the juvenile court. Despite the dependency beginning in early 2021, Devin was unable to advance to unsupervised visitation with his children. And despite his claim that he had secured appropriate housing, he failed to arrange with DCS for that housing to be evaluated to determine if it was suitable. Additionally, he maintained a relationship with Jessica and misled DCS about that relationship. The juvenile court did not abuse its discretion by determining that, if Devin had been unable to resolve the barriers to reunification in more than three years, continued efforts would not likely be productive.
¶9 Guardianship of C.M., Ariz., 549 P.3d 214, the sole case Devin cites in support of his argument, does not demand a different result. There, this court affirmed a juvenile court's decision to deny a guardianship motion because the moving party had not shown further reunification efforts would be unproductive. Id. ¶¶ 5, 12, 549 P.3d at 217, 219. The juvenile court concluded the parent had successfully completed all tasks required by DCS except family therapy because the child refused to participate. Id. ¶ 5, 549 P.3d at 217. We concluded that the child's "refusal alone and without a reasoned basis was insufficient to establish that further reunification efforts would be unproductive," particularly considering evidence that family therapy could be successful in the future. Id. ¶¶ 9, 11, 549 P.3d at 218-19. Unlike the parent in Guardianship of C.M., there was no finding that Devin had completed all requirements for reunification. As we noted above, at the time of the guardianship hearing, he had not yet demonstrated his housing was acceptable nor that unsupervised visitation was appropriate.
Devin maintains he has "completed" his case plan. He cites a November 2023 minute entry stating he "has completed his case plan that [DCS] offered him in terms of services" but noting he "needs to consistently attend parenting time." The October 2023 progress report admitted at that hearing notes that Devin "has not been able to secure his own housing," had missed several visits, and "continues to have contact with [Jessica]," including an incident in which the police were called.
¶10 We affirm the juvenile court's order appointing permanent guardians for D.S. and D.A.S.