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Randy G. v. Dep't of Child Safety

ARIZONA COURT OF APPEALS DIVISION ONE
Jun 5, 2018
No. 1 CA-JV 17-0348 (Ariz. Ct. App. Jun. 5, 2018)

Opinion

No. 1 CA-JV 17-0348

06-05-2018

RANDY G., AISHA J., Appellants, v. DEPARTMENT OF CHILD SAFETY, R.G., S.G., K.J., Appellees.

COUNSEL Robert D. Rosanelli, Attorney at Law, Phoenix By Robert D. Rosanelli Counsel for Appellant Randy G. The Stavris Law Firm, PLLC, Scottsdale By Alison Stavris Counsel for Appellant Aisha J. Arizona Attorney General's Office, Mesa By Amanda Adams 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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
Nos. JD527268 and JS518020
The Honorable Arthur T. Anderson, Judge

AFFIRMED

COUNSEL Robert D. Rosanelli, Attorney at Law, Phoenix
By Robert D. Rosanelli
Counsel for Appellant Randy G. The Stavris Law Firm, PLLC, Scottsdale
By Alison Stavris
Counsel for Appellant Aisha J. Arizona Attorney General's Office, Mesa
By Amanda Adams
Counsel for Appellee Department of Child Safety

MEMORANDUM DECISION

Judge Peter B. Swann delivered the decision of the court, in which Presiding Judge Jon W. Thompson and Judge Maria Elena Cruz joined. SWANN, Judge:

¶1 Aisha J. ("Mother") and Randy G. ("Father") (collectively, "Parents") appeal the juvenile court's order severing their parental rights to three of their children, R.G., S.G., and K.J. (collectively, "Children"), on multiple grounds under A.R.S. § 8-533(B). We affirm because reasonable evidence supports the severance order.

FACTS AND PROCEDURAL HISTORY

¶2 Mother and Father are the parents of five children, including R.G., born in April 2011, S.G., born in January 2015, and K.J., born in April 2016.

Parents' two oldest children were placed in a permanent guardianship with a maternal relative in 2011.

¶3 In late 2013, Parents had multiple domestic disputes involving alcohol, including an incident in which Father put a gun to Mother's head and hit her in the face while then-two-year-old R.G. was at home with them. Days later, officers arrested Mother, who appeared intoxicated, for shoplifting. Mother told the officers that R.G. was home alone, and when the officers went to her apartment, they found R.G. alone with the front door unlocked. The Department of Child Safety took R.G. into custody that day, placed him with maternal relatives, and filed a dependency petition several days later. The court found R.G. dependent as to Mother and Father, and implemented a case plan of family reunification.

The Department of Child Safety replaced the Arizona Department of Economic Security and Child Protective Services in 2014. S.B. 1001, Section 157, 51st Leg., 2nd Spec. Sess. (Ariz. 2014). For convenience, we refer to the current entity throughout this decision.

¶4 DCS offered Father services including drug testing, individual counseling, parent-aide services, psychological evaluations, anger management class, and transportation. Between December 2013 and May 2014, Father successfully completed drug testing and was not referred to a drug treatment program; he completed an anger management class and parenting courses but refused to participate in parent-aide services.

¶5 DCS offered Mother reunification services including drug testing, substance-abuse treatment, individual counseling with a domestic violence component, supervised visitations, psychological evaluations, and transportation. Between February and June 2014, Mother did well in parent-aide visits with R.G., but she continued to struggle with alcohol abuse — testing positive for alcohol several times, submitting "suspicious[ly]" diluted samples, and missing several required tests. Parents also continued to have regular contact with each other despite their history of domestic violence and their claims that they were no longer together.

¶6 Mother intermittently tested positive for alcohol through late 2014, by which point she was pregnant with her and Father's fourth child, S.G. When S.G. was born in January 2015, Parents attempted to flee the hospital with the newborn, but police stopped them and S.G. was immediately taken into DCS custody. DCS filed a dependency petition and placed S.G. at the foster home where R.G. had been living since May 2014. DCS maintained its plan of family reunification for both Mother and Father.

¶7 In mid-2015 Mother had a sustained period of sobriety, completed an outpatient treatment program, and enrolled in an aftercare program. In August 2015, Mother relapsed, but the relapse was not reported on any drug screening or by Mother's drug treatment provider. Then, in December 2015, while Mother was pregnant with her and Father's fifth child, K.J., the police responded to a domestic dispute in which Mother was intoxicated as she tried to remove her belongings from Father's apartment. Mother also tested positive for opiates in February 2016 and for alcohol in March 2016, before giving birth in April.

¶8 When K.J. was born, Mother hid from DCS and lied to her case manager about ever being pregnant. But knowing that Mother had given birth, DCS filed a dependency petition for K.J. During its search for Mother, DCS found alcohol bottles and baby food in a hotel room where she had been staying. In late June 2016, DCS found Mother and K.J. at Father's apartment, and immediately took K.J. into custody, placing her at the foster home with R.G. and S.G. Mother refused additional drug treatment in the summer of 2016, but did participate in a psychological evaluation with Dr. Gregory Novie in which she denied she was using alcohol or that she had a continued relationship with Father. Dr. Novie's evaluation gave Mother a favorable recommendation.

¶9 Meanwhile, although Father participated steadily in supervised visits with R.G. and S.G. in late 2014 and early 2015, the visits stopped in June 2015. Father requested to restart visitations in March 2016, but, because Father hadn't seen Children in nearly a year, DCS scheduled a psychological evaluation to determine whether therapeutic visitations were appropriate. In August 2016, the court ordered that Father participate in the evaluation as a prerequisite to additional visitations, but Father never participated. By the time of trial, he had not visited with R.G. or S.G. for almost two years, and had not seen K.J. since she was removed from his home.

¶10 DCS filed a petition to sever Parents' rights to R.G. and S.G. in May 2016. In September, the court held a dependency hearing as to S.G. and K.J. (R.G. had already been found dependent), finding that they were dependent as to Father, but the court later set that order aside because of its mistaken finding that Father failed to appear without good cause.

¶11 In early 2017, Mother tested positive for alcohol and Father left voicemails with his case manager stating that Mother was living with him. Mother testified that she and Father live very close to each other, but that they had not contacted each other since September 2016.

¶12 DCS supplemented its severance petition in March 2017 to include K.J. Parents contested the allegations and the court held a three-day severance trial. The court held S.G. and K.J. dependent as to Mother, and terminated Parents' parental rights to Children on various statutory grounds. Specifically, the court severed Mother's rights based on fifteen months' (R.G. and S.G.) time-in-care and chronic substance abuse (K.J.). It severed Father's rights based on six months' (S.G. and K.J.), nine months' (R.G. and S.G.) and fifteen months' (R.G. and S.G.) time-in-care, and abandonment (R.G. and S.G.) grounds. Mother and Father timely appealed.

DISCUSSION

¶13 Mother argues that the juvenile court erred by severing her parental rights to R.G. and S.G. based on fifteen months' time-in-care and to K.J. based on chronic substance abuse, and by finding that severance was in Children's best interests. Father argues the court erred by finding Children dependent as to him and by severing his rights to Children on several grounds.

¶14 To sever a parent-child relationship, the court must find by clear and convincing evidence that at least one of the grounds set forth in A.R.S. § 8-533(B) exists, and must find by a preponderance of the evidence that severance is in the child's best interests. Kent K. v. Bobby M., 210 Ariz. 279, 288, ¶ 41 (2005); Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, 249, ¶ 12 (2000). We accept the court's findings of fact unless they are not supported by any reasonable evidence, and we will affirm the severance order unless it is clearly erroneous. Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, 280, ¶ 4 (App. 2002). I. REASONABLE EVIDENCE SUPPORTS THE COURT'S ORDER SEVERING PARENTS' PARENTAL RIGHTS TO R.G. AND S.G. UNDER A.R.S. § 8-533(B)(8)(c).

¶15 Severance under § 8-533(B)(8)(c) requires proof that a child is in out-of-home placement and has been for a cumulative total period of at least fifteen months, that DCS has made a diligent effort to provide appropriate reunification services, that the parent has been unable to remedy the circumstances that caused the child to be in out-of-home placement, and that there is a substantial likelihood that the parent will be incapable of exercising proper and effective parental care and control in the near future.

Neither Mother or Father challenge the juvenile court's findings that R.G. and S.G. were in out-of-home placement for more than fifteen months or that DCS made a diligent effort to provide reunification services.

¶16 Mother argues that insufficient evidence supported the juvenile court's findings that she was unable to remedy the circumstances that caused R.G. and S.G.'s out-of-home placement and that she would not be able to parent in the near future. Mother cites her satisfactory participation in reunification services and Dr. Novie's favorable psychological evaluation report to support her arguments. Despite Mother's efforts, however, reasonable evidence shows that she was not able to actually remedy her substance abuse or her abusive relationship with Father, both of which were reasons for R.G. and S.G.'s out-of-home placement. See A.R.S. § 8-533(B)(8)(c) (requiring that "the parent has been unable to remedy the circumstances" in order to sever on fifteen months' ground) (emphasis added); cf. Marina P. v. Ariz. Dep't of Econ. Sec., 214 Ariz. 326, 329, ¶ 20 (App. 2007) (noting that the nine months' ground focuses on the parent's effort to cure the circumstances, rather than the parent's success in actually doing so).

¶17 Throughout this three-and-a-half year case, Mother was unable to show a consistent and sustained period of sobriety. In late 2013 and early 2014, Mother missed several substance screenings, and several more came back positive for alcohol or were diluted to such an extent that they "clearly appear[ed] suspicious." She also consumed alcohol during her pregnancy with S.G. in late 2014. And after successfully completing an outpatient treatment program in mid-2015, and demonstrating her sobriety for several consecutive months, she relapsed again. This pattern continued in 2016, at which point she was pregnant with her fifth child. She refused additional treatment in the summer of 2016, and tested positive for alcohol again in January 2017.

¶18 Mother also had continued contacts with Father, including an incident in December 2015 when Mother was intoxicated and asked police to remove her belongings from Father's apartment, and in June 2016 when DCS found Mother and newborn K.J. at Father's apartment. Mother testified that, despite their turbulent history and the fact that they lived "a couple of apartments down" from each other at the time of trial, she and Father had not made contact since September 2016. But that was contradicted by Father's testimony that they maintained contact, and by the case manager's testimony that Father told her the two were living together in February 2017.

¶19 To support her argument regarding her ability to parent in the near future, Mother cites Dr. Novie's September 2016 recommendation that she be reunified with Children. But Dr. Novie's recommendation was based in part on Mother's inaccurate assertions about her contact with Father and her alcohol use, and when DCS questioned Dr. Novie as to whether his conclusion would have changed if he had known of Mother's relapses and recent contact with Father, he responded that the conclusion "would be less [favorable]." Additionally, Mother's caseworker testified that Mother would not be able to effectively parent in the near future.

¶20 We therefore hold that reasonable evidence supported severing Mother's parental rights to R.G. and S.G. under A.R.S. § 8-533(B)(8)(c).

¶21 Similarly, Father argues that there was insufficient evidence supporting the court's finding that he had not remedied the circumstances that caused R.G. and S.G.'s out-of-home placement and that he was unlikely to do so in the near future. Father successfully completed substance-abuse services, an anger management class, and one parent aide-service, but on the other hand, he refused to participate in other parent aide services and supervised visitations. Father requested visits in March 2016 after not having seen R.G. or S.G. for eight months, but did not participate in the prerequisite evaluation. By the time of trial, he had not seen R.G. or S.G. in almost two years.

¶22 There was also evidence that Father's anger issues and abusive relationship with Mother were likely to continue. Although Father completed an anger management class in early 2014, only months after threatening Mother with a gun while R.G. was in the apartment, he was still involved in domestic disputes with Mother after that. And there was evidence that the two may have lived together as recently as February 2017, and they still lived close to each other at the time of trial. Importantly, Father's case manager testified that his domestic violence issues were still unresolved, and therefore that he was not able to parent at the time of trial or in the near future. Considering the above, we conclude the court could reasonably have found grounds for severance of Father's parental rights to R.G. and S.G. under A.R.S. § 8-533(B)(8)(c).

We therefore do not address whether the evidence also supported severance as to R.G. and S.G. under A.R.S. § 8-533(B)(1), (B)(8)(a), or (B)(8)(b). See Jesus M., 203 Ariz. at 280, ¶ 3 ("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."). --------

¶23 In a tangential argument, Father contends that there was insufficient evidence to support the court's order that Children were dependent as to him, and therefore that the severance itself was error. The court's severance order did not order that Children were dependent as to Father; rather, it found that Children had been ordered dependent as to Father in a previous proceeding. This finding itself was error. In fact, only R.G. had been found dependent at that point. Although the juvenile court had found S.G. and K.J. dependent as to Father in September 2016, it set that order aside in December 2016 due to a mistaken finding regarding the reason Father failed to appear at the hearing. But the court's finding here that Children had already been found dependent did not prejudice Father. See Monica C. v. Ariz. Dep't of Econ. Sec., 211 Ariz. 89, 94, ¶ 22 (App. 2005). There is no rule requiring the court to find a child dependent before severing the parent's rights to that child. And the evidence supporting a severance by clear and convincing evidence here would also support a finding by a preponderance of the evidence that Children were dependent as to Father. See A.R.S. § 8-201(15)(a)(i)-(v) (defining the different bases on which a court may find a child is dependent); see also A.R.S. § 8-844(C)(1) (requiring the court to find a dependency by a preponderance of the evidence). Therefore, had the court not been under the mistaken impression that Children had already been found dependent, it could have made that finding then based on the evidence before it, and the outcome would not have changed. II. REASONABLE EVIDENCE SUPPORTS THE COURT'S SEVERANCE OF PARENTS' PARENTAL RIGHTS TO K.J.

A. Reasonable Evidence Supports the Court's Order Severing Father's Parental Rights to K.J. Under A.R.S. § 8-533(B)(8)(b).

¶24 Section 8-533(B)(8)(b) required DCS to prove that K.J. was less than three years old and had been in out-of-home placement for six months or longer pursuant to court order, and that Father had substantially neglected or willfully refused to remedy the circumstances that caused K.J. to be in out-of-home placement, including refusal to participate in reunification services.

¶25 Father argues the court erred by severing his parental rights to K.J. under § 8-533(B)(8)(b) because substantial evidence shows that his participation in reunification services was "relentless." But, as discussed above in Section I, although Father participated in several services, he refused to participate in others, including supervised visitation. Most notably, in mid-2016, when K.J. was only a few months old, the court ordered that Father participate in a psychological evaluation before he receive therapeutic visitations with Children, but Father failed even to contact DCS regarding the service. By the time of trial in April 2017, Father had not seen K.J. since DCS took her into custody in June 2016. Therefore, there was sufficient evidence to establish that Father willfully refused to remedy the circumstances that caused K.J.'s out-of-home placement.

B. Reasonable Evidence Supports the Court's Order Severing Mother's Parental Rights to K.J. Under A.R.S. § 8-533(B)(3).

¶26 To sever the parent-child relationship under § 8-533(B)(3), DCS was required to prove that Mother was unable to discharge her parental responsibilities because of a history of chronic abuse of dangerous drugs or controlled substances, and that there were reasonable grounds to believe that the condition would continue for a prolonged indeterminate period.

¶27 Mother argues there was insufficient evidence to establish severing her parental rights on substance-abuse grounds because there were significant periods in which she did not test positive for alcohol. But "temporary abstinence from drugs and alcohol does not outweigh [a parent's] significant history of abuse or [the parent's] consistent inability to abstain during [the] case." Raymond F. v. Ariz. Dep't of Econ. Sec., 224 Ariz. 373, 379, ¶ 29 (App. 2010). As discussed in Section I, DCS provided evidence that Mother has a history of alcohol abuse, and despite not testing positive for alcohol for months-long periods during the case, those periods consistently ended in relapse. Mother's DCS caseworker testified that Mother's failure to recognize her issue with alcohol abuse and to stay clean during the case, when her parental relationship with Children was at stake, suggests her condition will continue into the prolonged indeterminate future. We therefore hold that DCS established this ground for severance by clear and convincing evidence. III. REASONABLE EVIDENCE SUPPORTS THE COURT'S FINDING THAT SEVERANCE OF MOTHER'S PARENTAL RIGHTS SERVED THE CHILDREN'S BEST INTERESTS.

¶28 In considering a child's best interests, the court must determine, based on the totality of the evidence, how the child would benefit from severance or be harmed by continuation of the parent-child relationship. Maricopa Cty. Juv. Action No. JS-9104, 183 Ariz. 455, 461 (App. 1995), abrogated on other grounds by Kent K., 210 Ariz. 279; Maricopa Cty. Juv. Action No. JS-500274, 167 Ariz. 1, 5 (1990). Relevant factors include whether the child would be at risk of abuse or neglect if placed in the parent's care, whether the child's existing placement is meeting the child's needs, whether the child is adoptable, and whether an adoptive placement is immediately available. Raymond F. v. Ariz. Dep't of Econ. Sec., 224 Ariz. 373, 383, ¶ 30 (App. 2010); Christina G. v. Ariz. Dep't of Econ. Sec., 227 Ariz. 231, 238, ¶ 27 (App. 2011); Linda V. v. Ariz. Dep't of Econ. Sec., 211 Ariz. 76, 80, ¶ 17 (App. 2005). Here, DCS presented evidence that Mother was unable to safely care for Children because of her alcohol abuse, that Children were doing well in their foster home, and that adoption by the foster parents would keep them together and offer them permanency. Accordingly, reasonable evidence supported the court's best interests finding.

CONCLUSION

¶29 For the foregoing reasons, we affirm the juvenile court's order severing Mother and Father's parental rights to R.G., S.G., and K.J.


Summaries of

Randy G. v. Dep't of Child Safety

ARIZONA COURT OF APPEALS DIVISION ONE
Jun 5, 2018
No. 1 CA-JV 17-0348 (Ariz. Ct. App. Jun. 5, 2018)
Case details for

Randy G. v. Dep't of Child Safety

Case Details

Full title:RANDY G., AISHA J., Appellants, v. DEPARTMENT OF CHILD SAFETY, R.G., S.G.…

Court:ARIZONA COURT OF APPEALS DIVISION ONE

Date published: Jun 5, 2018

Citations

No. 1 CA-JV 17-0348 (Ariz. Ct. App. Jun. 5, 2018)