Opinion
No. 1 CA-JV 20-0201
02-09-2021
GREGGORY H., Appellant, v. DEPARTMENT OF CHILD SAFETY, S.H., Appellees.
COUNSEL David W. Bell, Attorney at Law, Higley By David W. Bell Counsel for Appellant Greggory H. Arizona Attorney General's Office, Mesa By Lauren J. Lowe Counsel for Appellee Department of Child Safety
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
Appeal from the Superior Court in Maricopa County
No. JD17361
The Honorable Randall H. Warner, Judge
AFFIRMED
COUNSEL
David W. Bell, Attorney at Law, Higley
By David W. Bell
Counsel for Appellant Greggory H.
Arizona Attorney General's Office, Mesa
By Lauren J. Lowe
Counsel for Appellee Department of Child Safety
MEMORANDUM DECISION
Judge Kent E. Cattani delivered the decision of the Court, in which Presiding Judge Randall M. Howe and Judge Cynthia J. Bailey joined.
CATTANI, Judge:
¶1 Greggory H. ("Father") appeals the superior court's order terminating his parental rights to his daughter, S.H. For reasons that follow, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 S.H. was born to Father and Tamika S. ("Mother") in July 2016. The Department of Child Safety ("DCS") took her into care soon thereafter, and the superior court found S.H. dependent as to both parents. Mother's chronic substance abuse ultimately led to termination of her parental rights.
¶3 Although substance abuse was initially a concern for Father as well, he later resolved the issue, and the court ended the requirement that he participate in substance-abuse treatment services. And from the beginning of the case, Father was loving and appropriate during visits with S.H. But a different issue preventing reunification persisted throughout the dependency: Father's continued lack of stable housing left him unable to provide a safe living environment for S.H. or care for her in the long term.
¶4 A stroke in his teens left Father disabled, and he received Social Security disability benefits and nutrition assistance benefits ($783 and $100 per month, respectively, at the time of the severance trial). Although he looked for part-time or temporary employment to supplement his income, Father had completed only a single housecleaning job over the four years of the dependency. Helping Father find and access low-income housing resources was a primary focus of the services DCS provided.
¶5 Father was incarcerated out-of-state for a few months in early 2017, then, after returning to Arizona, he was homeless or living in a Phoenix-area shelter through the beginning of 2018. After that, he lived with his sister for several months, then moved in with a friend and her children through early 2019. But Father himself did not want S.H. to live in that environment, and he resisted taking steps necessary to place S.H. in that home.
¶6 During this period, Father's DCS case manager, substance-abuse treatment provider, parent aide, and court-appointed community coordinator provided him with housing resources and help seeking and applying for housing assistance. DCS gave Father documents with multiple listings for local housing resources, but the organizations he contacted required several months to find housing. Additionally, Father's substance-abuse treatment provider assigned a case manager to assist him with housing and transportation resources. Over a series of communications and in-person meetings from late 2016 into early 2017, the provider referred Father to local halfway houses and sober-living facilities as well as a local housing hotline for further resources, reviewed in detail the requirements and information necessary to apply for a subsidized-housing voucher from Maricopa County, and followed up to confirm he completed his application and was placed on a waitlist. And Father's parent aide helped him apply to be placed on a waitlist for HUD-subsidized housing with the City of Phoenix, and the aide helped Father make calls and follow up on housing options first explored with his other providers.
¶7 In late 2018, citing Father's inability to secure safe and stable housing, DCS moved to terminate his parental rights to S.H. based on 15-months' time in care. The superior court denied severance at that time. Although acknowledging the efforts DCS had made to that point, the court concluded that DCS had not yet done enough given Father's need for significant assistance to find housing. The court stated that "[w]hether [Father] will be able to do that even with greater Department involve[ment] is not clear. But further efforts must be made." Noting that Father's limited income and inability to secure permanent housing seemed to stem, at least in part, from his disability, the court changed the case plan to guardianship as a potential long-term solution without resorting to severance. Both Father and DCS, however, declined to pursue the guardianship option.
¶8 Father subsequently stayed with a friend off and on for several months. Meanwhile, his DCS case manager learned that the City of Phoenix had no record of his application for Section 8 housing and that the waitlist had been closed for several years. The case manager again gave Father the application website and helped him complete and submit applications for several other housing subsidy and assistance programs. Although Father was placed on the "quite extensive" waitlist for one such program, he did not meet the income requirements for the other programs, and his applications were denied.
¶9 In late May 2019, Father found a place in the To Love One Another transitional housing program. This program provided temporary
housing, usually for four to six months, while working with participants to secure permanent, stable housing and employment opportunities. Although Father had not yet requested such help, his DCS case manager coordinated with the director of To Love One Another to add assistance locating permanent affordable housing to his service plan.
¶10 The transitional housing program generally provided housing for short periods of time, but Father continued living in multiple To Love One Another locations for over a year. And the first few locations included houses shared with several other individuals that Father agreed would be inappropriate to be around S.H. At that point, in early 2020, noting that S.H. had been in care for well over three years and that Father had been unable to resolve his housing instability, DCS again moved to terminate his parental rights to S.H. based on 15-months' time in care.
¶11 While the severance motion was pending, in May 2020, Father moved into a private one-bedroom apartment provided by To Love One Another for a six-month term. Father secured a discounted rental rate of $600 per month by paying To Love One Another his full $1,200 federal stimulus payment; Father acknowledged that, without the credit from the stimulus check, he would not have been able to afford the apartment. At the severance trial the next month, the DCS case manager expressed ongoing concern that Father's apartment was neither permanent (as it remained part of a transitional housing program) nor sustainable (as he had to use his one-time stimulus funds to make his monthly rent affordable). And Father explained that he was looking into different housing options for when the six-month term in his current apartment ended, although he had no concrete plans in place.
¶12 Ultimately, the superior court found grounds for severance based on 15-months' time in care. See A.R.S. § 8-533(B)(8)(c). Although noting that DCS "did little, if anything," over the six months preceding the termination hearing (beginning just before the court changed the case plan to severance), the court found that DCS had made a diligent effort to provide Father with reunification services over the course of the four-year dependency, and that he nevertheless remained unable to provide a safe and stable living environment for S.H. or otherwise provide for her needs. Further finding that severance would be in S.H.'s best interests, the court terminated Father's parental rights.
¶13 Father timely appealed, and we have jurisdiction under A.R.S. § 8-235(A).
DISCUSSION
¶14 The superior court is authorized to terminate a parent-child relationship if clear and convincing evidence establishes at least one statutory ground for severance and a preponderance of the evidence shows that severance is in the child's best interests. A.R.S. § 8-533(B); Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 22 (2005). We review a severance ruling for an abuse of discretion, deferring to the superior court's credibility determinations and factual findings. Mary Lou C. v. Ariz. Dep't of Econ. Sec., 207 Ariz. 43, 47, ¶ 8 (App. 2004); Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, 280, ¶ 4 (App. 2002).
¶15 Among other requirements, the statutory ground of 15-months' time in care requires proof that DCS "made a diligent effort to provide [the parent] appropriate reunification services." A.R.S. § 8-533(B)(8)(c). To fulfill the diligent-effort requirement, DCS need not provide "every conceivable service" or those that would prove futile. Mary Ellen C. v. Ariz. Dep't of Econ. Sec., 193 Ariz. 185, 192, ¶ 34 (App. 1999) (citation omitted); Maricopa Cnty. Juv. Action No. JS-501904, 180 Ariz. 348, 353 (App. 1994). DCS must, however, provide services with a "reasonable prospect of success" to afford the parent the time and opportunity to become, if possible, a safe and effective parent. Mary Ellen C., 193 Ariz. at 192, ¶¶ 34, 37; JS-501904, 180 Ariz. at 353. The diligent-effort obligation extends "during the entire time the case plan [is] reunification." Jordan C. v. Ariz. Dep't of Econ. Sec., 223 Ariz. 86, 96, ¶ 30 (App. 2009). And the court must consider DCS's actions as a whole to ensure DCS met its "oblig[ation] to work with the parent toward a shared goal of reunification throughout the statutory period." Donald W. v. Dep't of Child Safety, 247 Ariz. 9, 23, ¶ 49 (App. 2019).
¶16 Father argues that DCS failed to fulfill its diligent-effort obligation for a significant portion of the case, so it could not have made a sufficiently diligent effort overall. In his view, the superior court's December 2018 ruling denying severance because DCS "ha[d] not done enough" in conjunction with the court's June 2020 finding that DCS "did little, if anything, for Father in the past six months," leaves only a one-year period in the interim during which DCS could have complied. He asserts that DCS failed to provide adequate services during that period and that, even if it had done so, diligence for such a small portion of the case is insufficient under Donald W.
¶17 But Father's argument rests on a faulty premise. The court's December 2018 ruling did not discount the services that DCS provided over
the first 18 months of the case; it simply determined that those efforts alone were not yet enough. After the court denied severance, Father's DCS case manager helped him to complete and submit applications (albeit unsuccessfully) for multiple housing subsidy and assistance programs, and the case manager coordinated with Father's transitional housing program to facilitate additional assistance locating permanent affordable housing. The court properly considered these additional efforts in combination with the referrals and help previously provided by Father's DCS case manager, substance-abuse treatment provider, and parent aide, among others, as part of the totality of the circumstances guiding its assessment of DCS's efforts. See id.
¶18 Similarly, DCS's admittedly minimal efforts over the final months leading up to severance do not compel a different result. Not only was the case plan changed from reunification to severance and adoption early in this period of DCS's non-action, see id. (noting that the diligent-efforts requirement extends "for the entire time the case plan is reunification"), but the superior court also found that by that time, after all the interventions outlined above, there was nothing more DCS could do. See Mary Ellen C., 193 Ariz. at 187, ¶ 1. The court properly considered the entire course of the dependency, the resources and assistance provided throughout as well as the limited prospects for additional services, in rendering its decision.
¶19 Father also challenges the superior court's best-interests determination, but the sole basis of his argument is that the court should not have found grounds for termination and thus should not have made a best-interests finding. Because we affirm the court's ruling on statutory grounds, Father's best-interests argument fails. Accordingly, we affirm the ruling terminating Father's parental rights as to S.H.
CONCLUSION
¶20 We affirm.