Opinion
No. 1 CA-JV 14-0109
10-21-2014
CALEB R., Appellant, v. DEPARTMENT OF CHILD SAFETY, M.R., Appellees.
COUNSEL Law Office of Florence M. Bruemmer PC, Phoenix By Florence M. Bruemmer Counsel for Appellant Arizona Attorney General's Office, Mesa By Eric Knobloch Counsel for Appellees
NOTICE: NOT FOR PUBLICATION.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. Appeal from the Superior Court in Yavapai County
No. V1300JD820030024
The Honorable Anna C. Young, Judge
AFFIRMED
COUNSEL Law Office of Florence M. Bruemmer PC, Phoenix
By Florence M. Bruemmer
Counsel for Appellant
Arizona Attorney General's Office, Mesa
By Eric Knobloch
Counsel for Appellees
MEMORANDUM DECISION
Presiding Judge Patricia K. Norris delivered the decision of the Court, in which Judge Lawrence F. Winthrop and Judge John C. Gemmill joined. NORRIS, Judge:
¶1 Caleb R. appeals from the superior court's order terminating his parental rights to his child, M.R. On appeal, Caleb argues the evidence failed to show he had substantially neglected or wilfully refused to remedy the circumstances that caused M.R. to be in an out-of-home placement under Arizona Revised Statutes ("A.R.S.") § 8-533(B)(8)(b) (2014) or that termination was in M.R.'s best interests. Because the superior court's findings are supported by substantial evidence, we disagree with both arguments and affirm the termination order.
Although the Arizona Legislature amended the statutes cited in this decision after ADES filed the dependency petition, the revisions are immaterial to the resolution of this appeal. Thus, we cite to the current version of these statutes.
Caleb also argues the superior court should not have terminated his parental rights under A.R.S. § 8-533(B)(3) for chronic substance abuse and A.R.S. § 8-533(B)(2) for neglect. Because, clear and convincing evidence supports the superior court's termination order under A.R.S. § 8-533(B)(8)(b), we do not need to address these arguments on appeal. See, e.g., Raymond F. v. Ariz. Dep't of Econ. Sec., 224 Ariz. 373, 376, ¶ 14, 231 P.3d 377, 380 (2010) (appellate court will affirm a termination order if any one of the statutory grounds for termination is proven).
FACTS AND PROCEDURAL BACKGROUND
¶2 Before M.R.'s birth, Caleb voluntarily participated in dependency proceedings involving M.R.'s mother and another child. Although Caleb is not that child's father, Arizona Department of Economic Safety ("ADES") offered him services designed to address his substance abuse, anger management, and domestic violence issues. Caleb participated in intensive outpatient treatment for substance abuse and did regular urinalysis testing for drugs and alcohol with clean results for several months before M.R. was born. In connection with the dependency proceedings, a psychologist evaluated Caleb and recommended that he continue substance abuse treatment and attend courses on anger management and domestic violence.
Pursuant to Senate Bill 1001, § 157, 51st Leg., 2d Spec. Sess. (Ariz. 2014) (enacted), we substituted the Department of Child Safety for ADES as the Appellee in this matter. See ARCAP 27. For ease of reference and consistency with the record, however, we refer to ADES in the text of this decision.
¶ 3 Shortly before M.R.'s birth in May 2013, Caleb tested positive for alcohol on two occasions, after which he stopped testing completely. M.R.'s mother, who was also taking regular drug tests as part of the other child's dependency, tested positive for drugs while pregnant with M.R. Immediately after M.R.'s birth, ADES filed a dependency petition and removed M.R. from the home as a "substance exposed newborn." In the dependency petition, ADES alleged that M.R. was dependent as to Caleb because he had neglected the child due to his substance abuse and domestic violence. ADES also alleged Caleb was "neglecting the child by failing to follow through with services laid out for him that would have remedied the concerns that caused this dependency to be filed." In June 2013, the superior court found M.R. dependent as to Caleb and placed M.R. with the maternal grandparents.
¶ 4 In October 2013, ADES requested the court change the case plan from reunification to termination and adoption, asserting "none of [the] parents [were] available for reunification," and Caleb had failed to engage in services since the child's birth. The superior court changed the case plan to termination and adoption, and ADES subsequently moved to terminate Caleb's parental rights. At the March 2014 termination hearing, the superior court terminated Caleb's parental rights under A.R.S. § 8-533(B)(8)(b), finding Caleb had "neglected the child due to [a] history of domestic violence, [failed] to follow through on anger management and domestic violence classes to deal with anger issues," and had a "history of chronic abuse of dangerous drugs, controlled substance, and/or alcohol."
DISCUSSION
I. A.R.S. § 8-533(B)(8)(b)
¶5 A superior court may terminate parental rights under A.R.S. § 8-533(B)(8)(b) if it finds ADES presented clear and convincing evidence a child under the age of three has been in an out-of-home placement for six months or longer, ADES made a diligent effort to provide appropriate reunification services, and the parent has "substantially neglected or wilfully refused to remedy the circumstances that cause[d] the child to be in an out-of-home placement, including refusal to participate in [the] reunification services." We review a superior court's decision to terminate parental rights for an abuse of discretion and will not disturb the decision unless there is no reasonable evidence to support it. Mary Lou C. v. Ariz. Dep't of Econ. Sec., 207 Ariz. 43, 47, ¶ 8, 83 P.3d 43, 47 (App. 2004).
It is undisputed that the child is under the age of three and has been in an out-of-home placement for longer than six months.
¶ 6 Caleb argues ADES failed to prove it made a diligent effort to provide appropriate reunification services. We disagree. In June 2013, the services ADES provided for Caleb included a psychological re-evaluation for anger management, random drug testing, visitation, and individual counseling. By his own admission, Caleb did not participate in any services offered by ADES from M.R.'s birth until mid-November 2013. From M.R.'s birth in May until November 2013, Caleb had little or nothing to do with M.R. or ADES's services.
Caleb testified at the termination hearing that he had made a "deal" with M.R.'s mother and, without ADES knowledge, had been visiting M.R. The court essentially refused to rely on Caleb's testimony on what it considered to be a "side deal."
¶ 7 Soon after Caleb appeared at the November 2013 initial hearing on ADES's motion for termination, ADES reinstated Caleb's random drug testing and scheduled a visitation with M.R. in the presence of M.R.'s foster parents. The case manager provided Caleb with information to enroll in anger management courses, but after he had some difficulty with the providers, she asked him to apply for Arizona Health Care Cost Containment System ("AHCCCS")—which would have provided counseling in addition to anger management. Caleb, however, refused to apply for AHCCCS until the court ordered him to in January 2014. This record supports the superior court's finding that ADES made a diligent effort to provide Caleb with appropriate reunification services.
¶8 Caleb next argues ADES failed to prove he "substantially neglected or wilfully refused to remedy the circumstances that cause[d] [M.R.] to be in an out-of-home placement, including refusal to participate in reunification services." A.R.S. § 8-533(B)(8)(b). We disagree. The record reflects that Caleb had failed to remedy the substance abuse and domestic violence issues that had caused M.R. to be in an out-of-home placement and, further, had failed to participate in reunification services.
¶9 The record reflects Caleb missed approximately 58 urinalysis tests from June until November and chose not to participate in a sobriety support system. At the termination hearing Caleb admitted that by choosing not to provide urinalysis tests during those months, he had failed to comply with that service. Although the record reflects Caleb had been dutifully taking his reinstated drug tests and had been clean from December 2013 until March 2014, his participation in these services came too late, especially since the superior court had warned him in June 2013 that failing to participate in these services could result in the termination of his parental rights. At a July 2013 report and review hearing, and again at the termination hearing, the psychologist who evaluated Caleb recommended that parents with substance abuse issues, such as Caleb, should demonstrate a six to nine month period of total sobriety, plus active involvement in services before they are able to safely parent. Caleb did neither.
¶10 The record also reflects Caleb failed to complete any anger management or domestic violence courses. Although by the time of the termination hearing Caleb had finally scheduled an "introduction" with an anger management course, he had not completed any courses despite having ten months from when services were first offered to do so.
¶11 Even though Caleb showed progress in addressing his substance abuse and domestic violence issues, "[t]ermination is not limited to those who have completely neglected or willfully refused to remedy such circumstances." Cf. Maricopa Cnty. Juv. Action No. JS-501568 , 177 Ariz. 571, 576-77, 869 P.2d 1224, 1229-30 (App. 1994) (citing A.R.S. § 8-533(B)(8)(a)) (construing language identical to the relevant portion of A.R.S. § 8-533(B)(8)(b) and affirming the termination of a mother's parental rights whose recovery came "too little, too late"). Accordingly, termination may be warranted for a parent who "disappears for months at a time and makes only sporadic, aborted attempts to remedy" the circumstances. Id. at 576, 869 P.2d at 1229. "A trial court is well within its discretion in finding substantial neglect and terminating parental rights on that basis." Id.
¶12 Clear and convincing evidence supports the superior court's findings that ADES made diligent efforts to provide appropriate reunification services, and that Caleb substantially neglected or wilfully refused to remedy the circumstances that caused M.R. to be placed in an out-of-home placement, especially with regard to his failure to participate in services.
II. Best Interests
¶13 Finally, Caleb argues ADES failed to show termination was in M.R.'s best interests. To show parental termination is in the best interests of the child, ADES must demonstrate by a preponderance of the evidence "how the child would benefit from a severance or be harmed by the continuation of the relationship." Maricopa Cnty. Juv. Action No. JS-500274 , 167 Ariz. 1, 5, 804 P.2d 730, 734 (1990); see also Ariz. R.P. Juv. Ct. 66(C). The superior court found ADES had shown by a preponderance of the evidence that termination was in M.R.'s best interests because M.R. was "adoptable, would be available for adoption, and adoption would allow [M.R.] to live in a stable home, free from substance abuse and domestic violence."
¶14 The superior court's findings are supported by the evidence. M.R.'s case manager testified termination would be in M.R.'s best interest because Caleb had not demonstrated stability or the ability to take care of M.R. The case manager also testified M.R. had been in the same placement since birth, had bonded with the foster parents, and the foster parents were committed to adopting M.R.
CONCLUSION
¶15 For the foregoing reasons, we affirm the superior court's order terminating Caleb's parental rights under A.R.S. § 8-533(B)(8)(b).