Michael C., Tyana T. v. Dcs ( 2021 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
MICHAEL C., TYANA T., Appellants,
v.
DEPARTMENT OF CHILD SAFETY, D.C., N.C., M.C., E.C., R.C.,
GREENVILLE RANCHERIA, Appellees.
No. 1 CA-JV 20-0302
FILED 4-29-2021
Appeal from the Superior Court in Mohave County
No. B8015JD201904031
The Honorable Rick A. Williams, Judge
AFFIRMED
COUNSEL
The Stavris Law Firm, PLLC, Scottsdale
By Alison Stavris
Counsel for Appellant Michael C.
The Law Offices of Michael and Casey, Phoenix
By Robert Ian Casey
Counsel for Appellant Tyana T.
Arizona Attorney General’s Office, Mesa
By Amanda Adams
Counsel for Appellee Department of Child Safety
Peebles Kidder Bergin & Robinson LLP, Sacramento, California
By Gregory M. Narvaez (Pro Hac Vice)
Counsel for Appellee Greenville Rancheria
MEMORANDUM DECISION
Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Jennifer M. Perkins and Judge Randall M. Howe joined.
C R U Z, Judge:
¶1 Michael C. (“Father”) and Tyana T. (“Mother”) appeal from
the superior court’s order terminating their parental rights to D.C., N.C.,
M.C., E.C., and R.C. (“the children”). Because the children are members of
the Greenville Rancheria Tribe (“the Tribe”), these termination proceedings
are subject to the Indian Child Welfare Act (“ICWA”), 25 United States
Code (“U.S.C.”) sections 1901 to -1963. For the following reasons, we
affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 In March 2019, DCS received a report that Father had pushed
and hit Mother in front of the children. D.C., who was fourteen years old,
attempted to intervene. Father grabbed D.C. by the neck and pushed him
into a counter, scratching his neck. The other children were scared and hid
in the home. Before this incident, police had responded to Mother and
Father’s home at least six times for reports of domestic violence.
¶3 Police arrested Father and advised Mother on how to obtain
an order of protection. She did not do so. Father pleaded guilty to three
counts of disturbing the peace, all domestic violence offenses. The factual
basis for Father’s plea stated, “On March 26, 2019 . . . [Father] knowingly
disturbed the peace of his family . . . . [He] engaged in seriously disruptive
behavior when he began to yell, scream, and fight with [Mother], son D.C.,
and daughter N.C. The above incident is domestic violence because all
three victims are members of [Father’s] immediate family.”
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¶4 When Father was released from jail, DCS put a safety plan
into place. Father’s mother (“Grandmother”) was to supervise all contact
between Father, Mother, and the children. DCS required Father to live with
Grandmother until the family engaged in services and addressed the
domestic violence issue.
¶5 Mother and the children were enrolled members of the Tribe,
which is located in California. DCS contacted the Tribe, and the Tribe’s
ICWA worker participated in DCS’s team decision meeting and agreed that
the services offered to the family were appropriate and necessary. DCS
learned that Mother and Father had been evicted from tribal housing in the
past because of domestic violence and that Father was no longer welcome
to reside within tribal jurisdiction for the same reason. DCS also learned
that between 2005 and 2017, when Mother and Father lived in California,
California Child Protective Services received eight reports (deemed
unsubstantiated) about the family, including reports of neglect, abuse,
domestic violence, and drug use.
¶6 In May 2019, DCS received a second report about the family.
One of the children disclosed at school that Father and Mother fought all
the time, and that Father hit all of the children except for the youngest
children, E.C. and R.C. DCS investigated and discovered that Father had
been living at home with Mother’s consent in violation of the safety plan,
domestic violence was occurring daily, and Mother and Father had been
arrested for shoplifting at Walmart. Further, Mother and Father had not
engaged in in-home services and Grandmother had not followed the safety
plan. Mother told DCS that the domestic violence between herself and
Father was “not that bad.” Father denied living in the home or that ongoing
domestic violence had occurred. DCS asked Mother and Father to submit
hair follicles and urinalysis tests but they did not do so. Mother eventually
submitted to a hair follicle test that came back positive for marijuana and
Father eventually submitted a urinalysis test that was also positive for
marijuana.
¶7 DCS removed the children from the home and filed a
dependency petition. At the time of the removal, some of the children were
bruised and “were found to be fearful in the home.” M.C. had lice and
severe dental decay that required extensive dental work. D.C. had sixteen
cavities that needed filling. M.C. was diagnosed with anxiety and N.C. was
diagnosed with anxiety and depression.
¶8 DCS offered Mother and Father additional services, including
case management services, substance abuse services, urinalysis testing,
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mental health services, domestic violence, anger management, and
parenting classes, supervised visitation, childcare services, parent aide
services, tribal resources, and transportation. In June 2019, the superior
court found the children were dependent. In December 2019, seven-year-
old M.C. moved to suspend her visitation with Mother and Father because
visitation “would endanger seriously [her] physical, mental, moral or
emotional health.” The superior court granted the motion, finding that
visitation would endanger M.C.
¶9 Mother’s and Father’s participation in services was
inconsistent. They failed to participate in substance abuse services and
testing and missed a majority of their visitations with the children until the
case plan was changed to termination and adoption. When Mother and
Father missed visits with the children they seldom called. Mother and
Father both failed to complete domestic violence classes or counseling.
Mother and Father both completed parenting classes before the last day of
the termination adjudication hearing.
¶10 DCS moved to terminate Mother’s and Father’s parental
rights to D.C., N.C., and M.C. pursuant to Arizona Revised Statutes
(“A.R.S.”) section 8-533(B)(8)(a) (nine months’ out-of-home placement) and
A.R.S. § 8-533(B)(2) (neglect or failure to protect from neglect), and to E.C.
and R.C. pursuant to A.R.S. § 8-533(B)(8)(b) (six months’ out-of-home
placement of a child under the age of 3) and A.R.S. § 8-533(B)(2).
¶11 At the termination adjudication hearing, Mother testified that
“[d]omestic violence has never been an issue in [her] relationship” with
Father. She testified she was not currently using marijuana, but then
admitted having used marijuana 2.5 weeks before the first day of the
termination adjudication hearing. In its closing argument, the Tribe’s
attorney indicated the Tribe agreed with DCS’s termination motion:
While the normal circumstance is the Tribe would have
encouraged reunification and did early-on . . . rather than
terminating rights, it’s the parents lack of progress here and
noncompliance, and the Tribe’s belief that [DCS] has made
active efforts here. The Tribe[‘s] support of [DCS]’s proposed
termination . . . stems primarily from the Tribe’s very strong
belief that the children deserve to be in stable, healthy homes.
¶12 In September 2020, the superior court terminated Mother’s
and Father’s parental rights on the grounds alleged in the motion. The
court found that under ICWA, DCS made active efforts to provide remedial
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services and rehabilitative programs designed to prevent the breakup of the
family, those efforts were unsuccessful, and further, continued custody of
the children by Mother and Father would likely result in serious emotional
or physical damage to the children. See 25 U.S.C. § 1912(d), (f).
¶13 Mother and Father timely appealed, and we have jurisdiction
pursuant to A.R.S. §§ 8-235(A), 12-120.21(A)(1), -2101(A)(1).
DISCUSSION
I. Active Efforts
¶14 On appeal, Mother and Father both argue the superior court
erred by finding that DCS made active efforts to provide services and
programs designed to prevent the breakup of the family.
¶15 Under Arizona law, before the superior court may terminate
parental rights it must find that the moving party has proven one or more
of the statutory grounds for termination by clear and convincing evidence.
A.R.S. § 8-537(B). The court must also find by a preponderance of the
evidence that termination is in the child’s best interests. Kent K. v. Bobby M.,
210 Ariz. 279, 284, ¶ 22 (2005). When an Indian child is the subject of a
termination petition, ICWA applies and the court must also find (1) “that
active efforts have been made to provide remedial services and
rehabilitative programs designed to prevent the breakup of the Indian
family and [those] efforts have proved unsuccessful,” and (2) “evidence
beyond a reasonable doubt, including testimony of qualified expert
witnesses, that the continued custody of the child by the parent . . . is likely
to result in serious emotional or physical damage to the child.” 25 U.S.C.
§ 1912(d), (f).
¶16 DCS must prove that it has made “active efforts” to prevent
the breakup of an Indian family by clear and convincing evidence. Yvonne
L. v. Ariz. Dep’t of Econ. Sec., 227 Ariz. 415, 421, ¶ 26 (App. 2011). We view
the evidence and the reasonable inferences to be drawn from it in the light
most favorable to affirming the superior court’s termination order. Jordan
C. v. Ariz. Dep’t of Econ. Sec., 223 Ariz. 86, 93, ¶ 18 (App. 2009). We will not
reverse the superior court’s order unless reasonable evidence does not
support the superior court’s factual findings. Ariz. Dep’t of Econ. Sec. v.
Matthew L., 223 Ariz. 547, 549, ¶ 7 (App. 2010).
¶17 “Active efforts” are “affirmative, active, thorough, and timely
efforts intended primarily to maintain or reunite an Indian child with his or
her family.” 25 Code of Fed. Reg. § 23.2. When an agency such as DCS is
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involved in an ICWA proceeding, “active efforts must involve assisting the
. . . parents . . . through the steps of a case plan and with accessing or
developing the resources necessary to satisfy the case plan.” Id. Active
efforts should be tailored to the facts and circumstances of the case. Id.
“[N]either ICWA nor Arizona law mandates that [DCS] provide every
imaginable service or program designed to prevent the breakup of the
Indian family before the court may find that ‘active efforts’ took place.”
Yvonne L., 227 Ariz. at 423, ¶ 34. Nor can it “force a parent to participate in
recommended services,” but it must “provide parents with the necessary
time and opportunity to participate in programs designed to help [them]
become effective parents.” Id. (citation and internal quotation marks
omitted).
¶18 The record shows that DCS offered Mother and Father case
management services, substance abuse services, urinalysis testing, mental
health services, domestic violence, anger management, and parenting
classes, supervised visitation, childcare services, parent aide services, tribal
resources, and transportation. DCS involved the Tribe in team decision
meetings and used it to find tribal placements for the children. Kasaundra
Gooden, DCS’s ICWA expert, testified that DCS had made active efforts to
prevent the breakup of the Indian family but those efforts had been
unsuccessful. The Tribe indicated it also believed DCS had made active
rehabilitative efforts in this case.
¶19 The superior court recited at length the evidence supporting
its conclusion that clear and convincing evidence demonstrated that DCS
had made active reunification efforts but that those efforts proved
unsuccessful. Sufficient evidence supported that determination.
II. Out-of-Home Placement
¶20 Father also argues the superior court erred by terminating his
parental rights pursuant to A.R.S. § 8-533(B)(8)(a), (b) because there was
insufficient evidence that he substantially neglected or willfully refused to
remedy the circumstances that caused the children to be in out-of-home
placements. We disagree.
¶21 Here, the children had been in out-of-home placements for
nearly fourteen months at the start of the termination adjudication hearing
and for more than fifteen months when the superior court terminated
Father’s parental rights. Father acknowledges that the record reflects he
“did not engage in substance abuse services, failed to complete services and
had not provided documentation regarding his services,” but still argues
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he did not substantially neglect to remedy the circumstances causing the
children to remain in out-of-home placements because he had participated
in mental health services, visitation, and parenting classes.
¶22 “[P]arents who make appreciable, good faith efforts to
comply with remedial programs outlined by [DCS] will not be found to
have substantially neglected to remedy the circumstances that caused out-
of-home placement, even if they cannot completely overcome their
difficulties” within the statutory timeframe. Maricopa Cnty. Juv. Action No.
JS-501568, 177 Ariz. 571, 576 (App. 1994).
In making a determination that a parent has substantially
neglected or willfully refused to remedy the circumstances
which cause the child to be in an out-of-home placement . . .
we construe those circumstances . . . to mean those
circumstances existing at the time of the severance that
prevent a parent from being able to appropriately provide for
his or her children.
Marina P. v. Ariz. Dep’t of Econ. Sec., 214 Ariz. 326, 330, ¶ 22 (App. 2007)
(citation and internal quotation marks omitted).
¶23 Here, the superior court found that Father’s rehabilitation
efforts were “too little too late.” We agree. Father failed to participate in
substance abuse services, failed to participate in urinalysis testing, and
failed to complete domestic violence classes or counseling. At the time of
the termination adjudication hearing, DCS could not safely return the
children to Father’s care because he had not “shown the appropriate
behavior[al] changes needed to maintain and meet the children’s basic
needs.” As the Tribe noted in its answering brief, although Father began
availing himself of some services and began engaging more consistently in
visitation “late in the proceeding . . . [his] efforts were sporadic and
insufficient to demonstrate an ability to care for the children.” Reasonable
evidence supported the superior court’s finding that termination was
warranted pursuant to A.R.S. § 8-533(B)(8)(a), (b).
¶24 Because we affirm the superior court’s termination of Father’s
parental rights to the children on out-of-home placement grounds, we need
not consider his challenge to the alternate ground of neglect. See Jesus M. v.
Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 280, ¶ 3 (App. 2002).
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III. Best Interests
¶25 Finally, Father argues the superior court erred by finding that
termination of his parental rights was in the children’s best interests.
Termination is in a child’s best interests if the child would “derive an
affirmative benefit from termination or incur a detriment by continuing in
the relationship.” Ariz. Dep’t of Econ. Sec. v. Oscar O., 209 Ariz. 332, 334, ¶ 6
(App. 2004). The superior court may find that a child would benefit from
termination if there is an adoption plan or if the child is adoptable. Alma S.
v. Dep’t of Child Safety, 245 Ariz. 146, 150-51, ¶¶ 13-14 (2018). The court
“may take into account that ‘[i]n most cases, the presence of a statutory
ground will have a negative effect on the children.’” Bennigno R. v. Ariz.
Dep’t of Econ. Sec., 233 Ariz. 345, 350, ¶ 23 (App. 2013) (quoting Maricopa
Cnty. Juv. Action No. JS-6831, 155 Ariz. 556, 559 (App. 1988)). In making the
best interests determination, the superior court must “evaluate the totality
of circumstances, which may include the bond between the . . . parent and
the child, the availability of a prospective adoptive placement, risk for
abuse or neglect if the relationship is not terminated, and placement with
siblings.” Timothy B. v. Dep’t of Child Safety, 250 Ariz. 139, 145, ¶ 20 (App.
2020) (internal citation and quotation marks omitted).
¶26 Father argues the superior court failed to “evaluate the
totality of the circumstances” here, including his rehabilitation efforts and
the fact that D.C. and N.C. opposed termination of his parental rights. We
disagree.
¶27 DCS case manager Jesenia Chacon testified that the children
were adoptable and that the Tribe had identified potential ICWA-preferred
adoptive placements for all of the children. Chacon also testified that
termination would serve the children’s best interests because it would
provide them with permanency, safety, and stability.
¶28 The superior court considered the totality of the
circumstances, including D.C.’s and N.C.’s objections to the termination
motion and Father’s inconsistent and incomplete rehabilitation efforts, and
found that termination was in the children’s best interests. Besides freeing
the children for adoption, the court noted that termination would “more
importantly” allow them “to be raised with structure and support” so that
they could “thrive [and] address their past traumas . . . .” Reasonable
evidence supports the superior court’s best interests finding.
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CONCLUSION
¶29 For the foregoing reasons, we affirm the superior court’s
order terminating Mother’s and Father’s parental rights to the children.
AMY M. WOOD • Clerk of the Court
FILED: AA
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