Opinion
No. 1 CA-JV 17-0230
11-14-2017
JARED B., Appellant, v. DEPARTMENT OF CHILD SAFETY, S.G., T.G., Appellees.
COUNSEL Robert D. Rosanelli, Attorney at Law, Phoenix By Robert D. Rosanelli Counsel for Appellant Arizona Attorney General's Office, Phoenix By Amber E. Pershon Counsel for Appellee
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. JD29714
The Honorable Cari A. Harrison, Judge
AFFIRMED
COUNSEL Robert D. Rosanelli, Attorney at Law, Phoenix
By Robert D. Rosanelli
Counsel for Appellant Arizona Attorney General's Office, Phoenix
By Amber E. Pershon
Counsel for Appellee
MEMORANDUM DECISION
Presiding Judge James P. Beene delivered the decision of the Court, in which Judge Randall M. Howe and Judge Kent E. Cattani joined. BEENE, Judge:
¶1 Jared B. ("Father") appeals the termination of his parental rights to his child, T.G. (born in 2014). For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Father is the biological parent of T.G. In December 2014, the Department of Child Safety ("DCS") received a report that Father and Bridget G. ("Mother") were neglecting T.G. Mother's home was unsanitary, had drug paraphernalia strewn throughout, and strangers would come and go from the house seeking drugs. At that time, Father's location was unknown. As a result, DCS took custody of T.G. and filed a petition alleging T.G. dependent as to Father because he neglected T.G. and was "unwilling or unable to provide [T.G.] with proper and effective parental care and control." DCS later amended the petition to allege that Father was neglecting T.G. because of Father's mental health issues and substance abuse.
Mother's rights were terminated along with Father's. However, this appeal only pertains to Father.
¶3 During the dependency, Father was cited for possession of marijuana and speeding after he had purchased marijuana with children in his car. Father also tested positive for marijuana and failed to submit to required drug tests. Father did not have a valid medical marijuana card. Father had also been involved in domestic disputes with both Mother and his live-in girlfriend. These disputes resulted in charges of domestic violence assault and disorderly conduct, and Father ultimately pled guilty to disorderly conduct.
¶4 DCS provided Father several services, including urinalysis and hair-follicle testing, a psychological evaluation, individual counseling, parent aide services, and transportation assistance. Father's first parent aide reported that Father did not respond positively to suggestions and that he had cause for concern about Father's decision-making skills. Another parent aide noted that Father was "showing signs of an abuser" and yelled at both T.G. and his girlfriend. Dr. Sonia Perala conducted Father's psychological evaluation and recommended that Father complete a bonding and attachment assessment as well as continue individual counseling. Father's counselor reported that Father had several barriers preventing him from changing, including "cognitive delays, enabling behavior in relation to domestic violence and cannabis use." Dr. Elizabeth Capps-Conkle, who conducted the bonding and attachment assessment, found that Father would likely be unable to demonstrate minimally adequate parenting skills in the foreseeable future and that T.G. could be at risk of neglect or abuse in Father's care.
¶5 Father's parent aide referrals closed unsuccessfully because of his inability to achieve the necessary behavioral changes. While Father did complete his individual counseling, his counselor noted concerns regarding Father's domestic violence history and parenting ability. The DCS case manager reported that although Father had participated in the recommended services, he had failed to make the necessary behavioral changes needed to rectify the reasons that brought T.G. into care.
¶6 In April 2016, DCS moved to terminate Father's parental rights to T.G. based on Father's substance abuse and 15 months out-of-home placement. See Arizona Revised Statutes ("A.R.S.") sections 8-533(B)(3) and -533(B)(8)(c). In May 2017, the court terminated Father's parental rights to T.G. on both grounds alleged in the motion, and found that severance would be in T.G.'s best interests. Father timely appealed. We have jurisdiction pursuant to A.R.S. §§ 8-235(A), 12-120.21(A)(1), and -2101(A)(1).
DISCUSSION
¶7 Custody of one's children is a fundamental, but not absolute, right. Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, 248, ¶¶ 11-12 (2000). The superior court may terminate a parent's rights upon clear and convincing evidence of one of the statutory grounds in A.R.S. § 8-533(B) and upon finding by a preponderance of the evidence that termination is in the best interests of the child. Id. at 248-49, ¶ 12.
Father does not challenge the superior court's finding that termination of his parental rights is in T.G.'s best interests; thus, we do not address it. --------
¶8 We review a termination order for an abuse of discretion and will affirm the order "unless its factual findings are clearly erroneous, that is, unless there is no reasonable evidence to support them." Audra T. v. Ariz. Dep't of Econ. Sec., 194 Ariz. 376, 377, ¶ 2 (App. 1998). Because the superior court "is in the best position to weigh the evidence, observe the parties, judge the credibility of witnesses, and make appropriate findings," we will accept its findings of fact unless no reasonable evidence supports them. Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, 280, ¶ 4 (App. 2002).
¶9 Under § 8-533(B)(8)(c), DCS must show that (1) the child has been in an out-of-home placement for at least 15 months, (2) "[DCS] has made a diligent effort to provide appropriate reunification services," (3) "the parent has been unable to remedy the circumstances that cause the child to be in an out-of-home placement," and (4) "there is a substantial likelihood that the parent will not be capable of exercising proper and effective parental care and control in the near future." Under the statute, the "circumstances which cause the child to be in an out-of-home placement" are those that exist at the time of severance. Marina P. v. Ariz. Dep't of Econ. Sec., 214 Ariz. 326, 330, ¶ 22 (App. 2007).
¶10 Father argues that the superior court erred in finding that he was unable to exercise proper and effective care and control of T.G. at present and in the near future. We disagree.
¶11 Reasonable evidence supports the superior court's findings that Father had been unable to remedy the circumstances that caused T.G.'s out-of-home placement and there was a substantial likelihood that Father would not be capable of exercising proper and effective parental care and control in the near future. Father's first parent aide service closed unsuccessfully because of his inability to meet the goal of making good parenting decisions. Similarly, Father's second parent aide service closed unsuccessfully because he failed to demonstrate that he understood the effects of marijuana on his parenting, had fights with his girlfriend during visits with his son, had difficulty understanding healthy boundaries and relationships, and did not understand his own mental health needs.
¶12 Dr. Perala diagnosed Father with opioid use disorder, cannabis use disorder, specific learning disability, suspected child neglect, and ADHD, and recommended that Father continue to receive counseling for those issues. His counselor had concerns with Father's ability to parent his son despite successfully completing the referral. Dr. Capps-Conkle testified that Father had not accepted the risks of marijuana use, lacked insight, which made it more likely he would repeat mistakes and not be able to overcome his deficits quickly enough to meet T.G.'s needs. Dr. Capps-Conkle further stated that it would be futile to offer Father any further parenting or reunification services. Accordingly, the superior court did not err in terminating Father's parental rights to T.G. under A.R.S. § 8-533(B)(8)(c). Therefore, we need not address Father's argument that the court erred in terminating his parental rights based on substance abuse under A.R.S. § 8-533(B)(3). See Michael J., 196 Ariz. at 251, ¶ 27 (if appellate court affirms one statutory basis, it need not address other statutory bases for termination).
CONCLUSION
¶13 For the foregoing reasons, we affirm.