Opinion
No. 1 CA-JV 19-0410
06-18-2020
LELAND B., Appellant, v. DEPARTMENT OF CHILD SAFETY, P.D., Appellees.
COUNSEL The Stavris Law Firm, PLLC, Scottsdale By Christopher Stavris Counsel for Appellant Arizona Attorney General's Office, Mesa By Thomas Jose 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. JD34655
The Honorable Lori Ash, Judge Pro Tempore
AFFIRMED
COUNSEL The Stavris Law Firm, PLLC, Scottsdale
By Christopher Stavris
Counsel for Appellant Arizona Attorney General's Office, Mesa
By Thomas Jose
Counsel for Appellee Department of Child Safety
MEMORANDUM DECISION
Judge Kent E. Cattani delivered the decision of the Court, in which Presiding Judge Paul J. McMurdie and Judge Jennifer B. Campbell joined. CATTANI, Judge:
¶1 Leland B. ("Father") appeals from the superior court's ruling terminating his parental rights as to his daughter, P.D. For reasons that follow, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 P.D. was born in May 2017. Both Kimberly D. ("Mother") and P.D. tested positive for marijuana at the birth, and the Department of Child Safety ("DCS") was notified. Mother and Father then agreed to a safety plan that included voluntarily placing P.D. with Mother's mother ("Maternal Grandmother"). Father subsequently tested positive for THC and cocaine, and DCS petitioned for an out-of-home dependency in August 2017. The superior court later found P.D. dependent as to both Mother and Father.
Mother's parental rights have also been terminated; she is not a party to this appeal.
¶3 The court ordered services for Father including substance-abuse testing and treatment, a case aide for twice-weekly supervised visitation, parent aide services after 30 days of demonstrated sobriety, and transportation "as needed, as requested." Father's drug testing was inconsistent, and his treatment referral was closed unsuccessfully for lack of engagement. Father had no visits with P.D. at the beginning of the dependency. Father claimed that Maternal Grandmother would not allow him to see P.D. and that contacting DCS yielded no result. According to Maternal Grandmother, DCS had not scheduled visits and Father did not call her to see P.D., although he may have sent her a message on social media. As DCS was setting up a case aide to supervise visitation, however, Father was arrested on felony charges.
¶4 Father remained incarcerated from November 2017 through January 2019. While jailed, Father participated in "Thinking for a Change," a family program, and AA meetings. He also consistently appeared telephonically for hearings in the dependency proceeding. Father had no visits or other contact with P.D. over that period.
¶5 In January 2019, Father was released from confinement after pleading guilty to misconduct involving weapons, and he was placed on three years' supervised probation. DCS offered Father the same array of reunification services, including substance-abuse treatment, substance-abuse testing, and supervised visitation. Father completed an initial assessment for substance-abuse treatment, but services were not recommended at that time.
¶6 Father's compliance with substance-abuse testing was inconsistent. After a slow start through February, Father had a period of successful participation, but then faltered again beginning in May 2019. Father tested positive for oxycodone or oxymorphone on several occasions from mid-May to early June 2019. Although Father attributed those results to prescription medication for a dental procedure, two positive tests predated the procedure and, in any event, his prescription was not for oxycodone but for hydrocodone, for which Father tested negative.
Father also tested positive for THC, which was expected because he had a medical marijuna card.
¶7 Over the months that followed, Father called in and completed drug tests only sporadically, and the service provider suspended his testing referral several times for consecutive missed tests. And Father again tested positive for oxycodone in early September. He was similarly inconsistent with drug testing (through a different provider) that was imposed as a condition of his probation.
¶8 Father claimed that he missed calling in because his cell phone broke in July and he had to wait for a replacement. And Father attributed missed drug tests to transportation issues, which became more acute when his driver license was suspended after he was arrested and charged with DUI (marijuana) on July 15, 2019. Although Father claimed that DCS refused his request for help with transportation or a more convenient testing location, he also acknowledged that he might have withdrawn his request and told his case manager that he could get a ride from his girlfriend.
This DUI charge also precipitated a petition to revoke Father's probation. Although this petition, like the DUI case, remained pending at the time of the severance hearing, if the superior court were to subsequently find a probation violation, Father would be facing a mandatory 3.75 years in prison per the terms of his original plea agreement. --------
¶9 Father's participation in skills sessions and in visitation was unsatisfactory as well. He claimed that frequent changes in the individual parent aide assigned to his case made it difficult for him to engage effectively. While Father was initially assigned a case aide to supervise visitation, the superior court ordered assignment of a parent aide (even before Father had demonstrated 30 days of sobriety) on Father's request. But Father regularly arrived late to visits with P.D. or missed visits entirely. As Father himself described it, "if I can make it, yes[,] [i]f I can't, no." Additionally, in the weeks leading up to the severance hearing, P.D., who generally seemed safe and happy in Maternal Grandmother's care, began experiencing nightmares and behavior changes after visits with Father.
¶10 DCS moved to terminate Father's parental rights on the statutory ground of 15-months' time in care. See A.R.S. § 8-533(B)(8)(c). After the termination adjudication hearing, the superior court took judicial notice of new criminal charges—felony threatening or intimidating as well as misdemeanor assault and disorderly conduct—filed against Father after the hearing closed. The court then terminated Father's parental rights, finding grounds for severance and that severance would be in P.D.'s best interests. Father timely appealed, and we have jurisdiction under A.R.S. § 8-235(A).
DISCUSSION
¶11 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).
¶12 The statutory ground of 15-months' time in care requires proof 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, at time of severance, continue to necessitate 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." A.R.S. § 8-533(B)(8)(c); Jordan C. v. Ariz. Dep't of Econ. Sec., 223 Ariz. 86, 96, ¶ 31 n.14 (App. 2009).
¶13 To fulfill the diligent-effort requirement, DCS must provide reunification 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. v. Ariz. Dep't of Econ. Sec., 193 Ariz. 185, 192, ¶¶ 34, 37 (App. 1999); Maricopa Cty. Juv. Action No. JS-501904, 180 Ariz. 348, 353 (App. 1994); see also Jordan C., 223 Ariz. at 96, ¶ 31. DCS need not provide "every conceivable service" or undertake measures that would prove futile, nor is DCS responsible for ensuring that the parent participates in the services provided. Mary Ellen C., 193 Ariz. at 192, ¶¶ 34, 37 (citation omitted); JS-501904, 180 Ariz. at 353. And although DCS has an affirmative obligation to provide appropriate services, the parent is similarly obligated to raise any perceived inadequacies with the court at a point in the proceedings when allegedly inadequate services could be addressed. See Shawanee S. v Ariz. Dep't of Econ. Sec., 234 Ariz. 174, 178-79, ¶¶ 13-16, 18 (App. 2014).
¶14 Here, Father argues that DCS failed to fulfill the diligent-effort requirement—and inhibited his progress—by failing to institute visitation until after his January 2019 release, provide transportation to services, or communicate with parent aides about Father's progress. But Father's argument relies primarily on his version of events—testimony that the superior court expressly found not credible—and his position is, in large part, inconsistent with other evidence. See Jesus M., 203 Ariz. at 280, 282, ¶¶ 4, 12 (noting the deference given to the superior court's credibility determinations).
¶15 Father notes lack of formal visitation between P.D.'s birth and his incarceration, but Maternal Grandmother testified that, after the first week of the pre-dependency voluntary placement, Father did not attempt to visit P.D. When Father was arrested just three months after the dependency was filed, DCS did not establish visitation in jail, but Father never objected to lack of visitation or pursued alternative ways to stay in contact with P.D.
¶16 Father claims that, after his release in January 2019, he consistently participated in visitation, and he blames his parent aides' poor communication and frequent reassignment for visitation problems. But the court found Father's testimony that "constantly blamed others" not to be credible, and the DCS case manager testified that Father was regularly late to visits or missed them entirely. Father claims that DCS refused his reasonable request for transportation assistance after his driver license was suspended. See Donald W. v. Dep't of Child Safety, 247 Ariz. 9, 23, ¶ 50 (App. 2019). But he acknowledged withdrawing the request after arranging alternative transportation, and in any event, transportation issues beginning in July do not explain his inconsistency before that time. And although Father asserts that only DCS's inaction prevented a transition to in-home visitation as recommended by his latest parent aide, other evidence showed that he failed to adequately engage in or successfully progress through parent aide service requirements.
¶17 In short, the record supports the superior court's finding that DCS made diligent efforts to provide appropriate reunification services, and we thus affirm the finding of statutory grounds for severance based on 15-months' time in care.
¶18 Father also challenges the superior court's finding that severance was in P.D.'s best interests. Termination of parental rights is in a child's best interests if the child would benefit from severance or be harmed by a denial of severance. Alma S. v. Dep't of Child Safety, 245 Ariz. 146, 150, ¶ 13 (2018). The parent's prospects for rehabilitation, as well as the child's adoptability, the existence of an adoptive plan, and whether the placement is meeting the child's needs, are relevant considerations. Id. at 148, ¶ 1; Demetrius L. v. Joshlynn F., 239 Ariz. 1, 3-4, ¶ 12 (2016). Stability and security for the child are primary considerations. Demetrius L., 239 Ariz. at 4, ¶ 15.
¶19 Here, the superior court found that severance would further an adoptive plan for P.D. "in the only home she has known," with the caregiver with whom she had bonded, and contrasted her safe home environment to the nightmares and stress occasioned by visitation with Father. The record supports those findings.
¶20 P.D. was safe and happy in Maternal Grandmother's home, where she had lived since birth, and Maternal Grandmother wished to adopt her. Father argues, however, that he proved his desire and ability to parent P.D. by providing her food, necessities, and affection during visitation. But even setting aside Father's unresolved substance-abuse concerns, he failed to complete parenting services to demonstrate an ability to parent the child.
¶21 Additionally, Maternal Grandmother reported that P.D. found visitation difficult and stressful and had recently begun having nightmares after visits. Although Father offered an alternative explanation for P.D.'s reaction—different parent aides picking her up—the court was not obligated to adopt this explanation, and we do not reweigh the court's assessment on appeal. See Jesus M., 203 Ariz. at 282, ¶ 12.
¶22 Accordingly, the record supports the superior court's best-interests assessment, and we thus affirm the ruling terminating Father's parental rights as to P.D.
CONCLUSION
¶23 The judgment is affirmed.