Opinion
No. 1 CA-JV 15-0331
04-12-2016
MICHAEL C., Appellant, v. DEPARTMENT OF CHILD SAFETY, D.C., S.C., D.C., N.C., Appellees.
COUNSEL The Stavris Law Firm, PLLC, Scottsdale By Alison Stavris Counsel for Appellant Arizona Attorney General's Office, Mesa By Michael F. Valenzuela 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. JD19912
The Honorable Kristin C. Hoffman, Judge
AFFIRMED
COUNSEL The Stavris Law Firm, PLLC, Scottsdale
By Alison Stavris
Counsel for Appellant Arizona Attorney General's Office, Mesa
By Michael F. Valenzuela
Counsel for Appellee Department of Child Safety
MEMORANDUM DECISION
Presiding Judge Jon W. Thompson delivered the decision of the Court, in which Judge Maurice Portley and Judge Patricia K. Norris, joined. THOMPSON, Judge:
¶1 Michael C. (father) appeals from the juvenile court's order terminating his parental rights as to D.C., S.C., D.C. (D.M.C.), and N.C. (collectively the children). For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
We review the evidence and draw all reasonable inferences in the light most favorable to upholding the juvenile court's factual findings. Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, 282, ¶ 13, 53 P.3d 203, 207 (App. 2002).
¶2 Holly C. (mother) and father are the biological parents of D.C., born in May 2004, S.C., born in September 2005, D.M.C., born in June 2009, and N.C., born in August 2010. In January 2011, DCS took N.C. into temporary custody after a doctor diagnosed her with "failure to thrive without medical reason." DCS reported that while in parents' care, N.C. gained only one ounce in a week and was at risk of severe developmental damage. DCS also reported that mother and father were not feeding the children properly and were not providing appropriate medical care and services for each of the children's special needs.
Mother's parental rights to children were terminated on September 25 2015, and are not subject to this appeal.
A report of mother and father's neglect was filed with DCS in November 2010 after N.C. was admitted to the hospital for a fever and failure to thrive. DCS deemed the report unsubstantiated.
D.C. was diagnosed with attention deficit hyperactivity disorder (ADHD), megalocornea-mental retardation syndrome (MMR), and seizure disorder; S.C. was underweight and diagnosed with MMR; and D.M.C. had developmental and speech delays.
¶3 DCS filed a dependency petition based on father's and mother's neglect, and the juvenile court found the children dependent as to both. Shortly thereafter, D.C. and S.C. were placed with their maternal aunt, and D.M.C. and N.C. were placed with their maternal grandmother. Father completed many reunification services, including Family Preservation Program Teams (FPPT), and the juvenile court thereafter dismissed the dependency.
¶4 In June 2013, a case manager reported that mother and father's home was extremely unclean and infested with bed bugs, the children had multiple bug bites on their bodies, and the children were found with live bed bugs and eggs on their clothing. Mother informed DCS that she was having the house treated for bed bugs. Four months later, DCS took the children into temporary custody after receiving a report that father and mother had failed to resolve the bed bug infestation in their house, and their ten year old daughter, G.C., was being sent to school in a diaper and soiled clothes.
Four additional reports of mother and father's neglect and abuse were filed with DCS between August 2011 and December 2012; DCS deemed these reports unsubstantiated.
G.C. is not a party to this appeal.
¶5 DCS filed a petition alleging that the children were dependent because father and mother were unable and/or unwilling to parent them due to neglect, an unfit home, and a prior dependency. The juvenile court found the children dependent as to both parents and placed them into foster care. DCS established a case plan of reunification and offered father the following services: parent aide, psychological evaluation, transportation, supervised visitation, and parenting classes and individual counseling.
¶6 Dr. Joseph Bluth, a licensed psychologist, preformed a psychological evaluation of father in February 2014. Dr. Bluth diagnosed father with adjustment disorder with mixed anxiety and depressed mood. Dr. Bluth expressed concerns that father's disorder could affect his ability to provide a safe effective home for the children and be attentive to the children's needs. Dr. Bluth opined that the children were at risk of neglect while in father's care because father appeared "overwhelmed with taking care of five children with special needs." Dr. Bluth concluded that father would be unlikely to adequately parent the children in the foreseeable future, noting that "the conditions have been around for some time." Nonetheless, Dr. Bluth recommended parent skills training and individual counseling to improve father's depression and anxiety.
¶7 Father participated in and completed his referral for individual counseling. At the conclusion of his referral, father's counselor reported that father "lacks the appropriate skills to manage not only his life but those of his children . . . and if his children were placed back into his custody then it would upset the basic structure of his life." The counselor noted that Father "has never been able to find his own housing or save any money to show he can meet anything but the very basic needs of life." The counselor concluded that father's prognosis was "fair on his own but poor [if] he is reunified with his children."
¶8 DCS continued to offer services to father, including four hours of supervised visitation and one hour of parenting skills training each week. Father was fairly consistent with the visits and demonstrated a strong bond with the children. However, father missed a scheduled visit in August 2014 after he physically assaulted mother at a bus stop on the way to a visitation. Father also failed on multiple occasions to properly discipline, redirect, and maintain control of the children during the visitations. During each visit, the parent aides frequently had to intervene to stop the children's inappropriate behavior and prevent possible injuries. As a result, DCS added a second parent aide to attend each of the visitations.
Father was subsequently convicted of domestic violence, assault, criminal damage, and resisting arrest and was placed on probation. In early 2015, he violated his probation and was incarcerated for approximately one month.
¶9 Father also failed to intervene or acknowledge when the children displayed sexualized behavior during the visits. The parent aide documented nine instances of sexualized behavior by the children and G.C., including touching their genitals, kissing each other, inappropriately touching each other, and referring to each other as boyfriend and girlfriend. Despite DCS's attempt to address this behavior with father, he consistently denied that the sexualized behavior occurred or was a problem. To assist father in appropriately dealing with the children's behavior, DCS referred father to Buwalda Psychological Services for therapeutic visitations. However, after the initial intake, father failed to attend the service. Parent aide closed out unsuccessfully after father failed to demonstrate appropriate parenting skills, discipline the children, and protect the children from abuse or neglect.
¶10 DCS filed a motion for termination of father's parental rights on the grounds of fifteen months' time in care and a prior dependency. See Ariz. Rev. Stat. (A.R.S.) § 8-533(B)(8)(c), (B)(11) (Supp. 2015). DCS also argued that termination would be in child's best interests. See A.R.S. § 8-533(B). After a contested severance hearing, the juvenile court found that DCS had established the grounds for severance, and that termination was in the best interest of the children. Accordingly, the juvenile court terminated father's parental rights to the children.
¶11 Father timely appealed. We have jurisdiction pursuant to A.R.S. §§ 8-235(A) (2014), and 12-2101(A)(1) (Supp. 2015).
DISCUSSION
¶12 The juvenile court may terminate the parent-child relationship only upon finding that clear and convincing evidence demonstrates at least one statutory ground for severance; the court must also determine 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, 110 P.3d 1013, 1018 (2005). To avoid severance, the parent must make more than trivial or de minimus efforts at remediation. Maricopa Cnty. Juv. Action No. JS-501568, 177 Ariz. 571, 576 n.1, 869 P.2d 1224, 1229 n.1 (App. 1994). On appeal, "we will accept the juvenile court's findings of fact unless no reasonable evidence supports those findings, and we will affirm a [termination] order unless it is clearly erroneous." Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, 280, ¶ 4, 53 P.3d 203, 205 (App. 2002).
¶13 To justify terminating a parent-child relationship under A.R.S. § 8-533(B)(8), DCS must show that it has "made a diligent effort to provide appropriate reunification services." Mary Ellen C. v. Ariz. Dep't of Econ. Sec., 193 Ariz. 185, 191, ¶ 26, 971 P.2d 1046, 1052 (App. 1999). The juvenile court may then properly sever a parent's rights if (1) the child has been in out-of-home placement for fifteen months or longer; (2) the parent has been unable to remedy the circumstances causing the child to be in out-of-home placement; and (3) a substantial likelihood existed that the parent would not be able to properly care for the child in the near future. A.R.S. § 8-533(B)(8)(c).
Diligent Efforts at Reunification
¶14 Father argues that DCS failed to make reasonable efforts to provide appropriate services to father to allow reunification. Specifically, he argues that DCS failed to offer additional counseling, a parent aide extension, anger management classes, and did not notify father of children's medical appointments.
¶15 DCS is required to make a diligent effort to provide appropriate reunification services to parents. A.R.S. § 8-533(B)(8). In so doing, it must provide the parent "with the time and opportunity to participate in programs designed to help her become an effective parent." Maricopa Cnty. Juv. Action No. JS-501904, 180 Ariz. 348, 353, 884 P.2d 234, 239 (App. 1994) (citation omitted). DCS is not required, however, to provide a parent with every conceivable service or to undertake futile rehabilitative measures. Mary Ellen C., 193 Ariz. at 192, ¶¶ 34, 37, 971 P.2d at 1053.
¶16 The juvenile court found that DCS made "diligent efforts to provide reunification services." When DCS assumed custody of the children, it began providing services aimed at assisting father in reaching the case plan goal of family reunification. These services included individual counseling, parent skills training, psychological evaluations, FPPT, and supervised visitations. The counseling sessions addressed father's need for anger management and parenting skills. In addition, DCS provided father with material on sexualized behavior in children, and referred him to therapeutic visitations with a counselor. Despite this referral, father failed to participate in the therapeutic visitations and continued to deny the existence of any inappropriate sexualized behavior by the children.
¶17 DCS was not required to provide father with every conceivable service to aid him in reunification, and the record shows that DCS did provide father with time and opportunity to take the steps necessary to demonstrate his ability to care for the children. We therefore conclude that the evidence is sufficient to support the juvenile court's finding that DCS made a diligent effort to provide reasonable reunification services.
Fifteen Months' Out-Of-Home Placement
¶18 Father does not challenge the juvenile court's finding that the children have been in out-of-home placement for longer than fifteen months or that severance was in the children's best interest. Rather, father argues that the juvenile court improperly found that he was unable to remedy the circumstances causing the children's out-of-home placement and that he will not be able to properly care for them in the near future. We disagree.
¶19 Reasonable evidence supported the juvenile court's finding that DCS had proven the fifteen months' time in care ground. At the severance hearing, the DCS caseworker testified, and father conceded, that he had difficulty controlling and supervising all of the children during the visitations. Father was unable to identify each of the children's special needs and services they required, and did not have stable housing for the children. Father also continued to deny that the children exhibited sexually inappropriate behavior, and he refused to participate in therapeutic visitations with the children and a counselor. Dr. Blume opined that father was unlikely to be able to adequately parent the children, "as both parents seemed to be overwhelmed with taking care of five children with special needs." Additionally, father's counselor testified that father's "ability to maintain his own life is about all that he can manage."
¶20 The juvenile court found that "[t]here is a substantial likelihood that neither Mother nor Father will be capable of exercising proper and effective parental care and control in the near future." Although father presented evidence that he made some effort to remedy the circumstances through counseling and that he was often loving and attentive during the supervised visitations, the juvenile court had to resolve any conflicts in the evidence, and we decline to re-weigh the evidence. See Jesus M., 203 Ariz. at 280, ¶ 4, 53 P.3d at 205. Accordingly, the juvenile court did not err in finding that the statutory ground for termination had been met by clear and convincing evidence.
Because we find the court did not err in terminating father's parental rights under A.R.S. § 8-533(B)(8)(c), we do not address the additional ground for termination. See Jesus M, 203 Ariz. at 280, ¶ 3, 53 P.3d at 205 ("If clear and convincing evidence supports any one of the statutory grounds on which the juvenile court ordered severance, we need not address claims pertaining to the other grounds."). --------
CONCLUSION
¶21 Based upon the foregoing, we affirm the juvenile court's termination order.