Kaleb P. 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
KALEB P., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, V.P., B.P., Appellee.
No. 1 CA-JV 21-0024
FILED 6-10-2021
Appeal from the Superior Court in Maricopa County
No. JD27467
The Honorable Robert Ian Brooks, Judge
AFFIRMED
COUNSEL
Robert D. Rosanelli Attorney at Law, Phoenix
By Robert D. Rosanelli
Counsel for Appellant
Arizona Attorney General’s Office, Tucson
By Jennifer R. Blum
Counsel for Appellee
KALEB P. v. DCS, et al.
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Jennifer M. Perkins delivered the decision of the Court, in
which Judge Randall M. Howe and Judge Maria Elena Cruz joined.
P E R K I N S, Judge:
¶1 Kaleb P. (“Father”) appeals the juvenile court’s order
terminating his parental rights to V.P. and B.P. (collectively “children”).
Mother is not a party to this appeal. For the following reasons, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 In September 2015, V.P. was born substance exposed to
methamphetamine, so the Department of Child Safety (“DCS”) took
custody of her. DCS filed a dependency petition, alleging Father’s inability
to parent V.P. due to his incarceration and substance abuse. Father failed to
attend the February 2016 dependency hearing, despite already being
released from jail. The juvenile court found V.P. dependent and approved
a concurrent case plan of family reunification and severance and adoption.
¶3 DCS filed a separate dependency petition regarding B.P. in
June 2017, alleging Father’s inability to parent due to substance abuse,
mental health, and an inability to properly supervise B.P. DCS provided
various reunification services, including substance abuse testing and
treatment, a psychological evaluation, visitation, counseling, and a family
reunification team. Father successfully participated in reunification
services, so DCS moved to return both children to Father’s physical
custody. In January 2018, the juvenile court ordered the children to remain
dependent, but placed the children back in Father’s care. The court
dismissed the dependency petitions two months later.
¶4 In March 2019, the police and DCS received reports alleging
that Father’s girlfriend physically abused V.P. and that Father left the
children unattended while abusing substances. Father first showed a
willingness to cooperate with DCS, but then he hid his whereabouts. DCS
received another report in May 2019, alleging Father left the children alone
in a hotel room. Hotel staff found V.P. eating off the floor and B.P. chewing
a piece of plastic. DCS removed the children, who both tested positive for
methamphetamines, and placed them in an out-of-home foster placement.
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KALEB P. v. DCS, et al.
Decision of the Court
¶5 DCS filed a new dependency petition, alleging Father’s
inability to parent due to substance abuse, domestic violence, inability to
supervise the children, and inability to provide for their needs. Father
objected to the domestic violence ground but pled no contest to the other
allegations. The court approved a concurrent case plan of family
reunification and severance and adoption. DCS referred Father to
supervised visitation and substance abuse treatment and testing, but Father
failed to meaningfully participate. Father only visited the children once
between May and August 2019. DCS also provided V.P. with some
therapeutic services.
¶6 In September 2019, Father pled guilty to committing second-
degree burglary and he received a 2.5-year prison sentence. Father will have
to live in a halfway house upon release and he will be on intensive
probation for another 2.5 years. A DCS psychologist recommended against
the children visiting Father in-person, but DCS facilitated at least five
supervised phone calls since April 2020. In April 2020, the juvenile court
changed the case plan from family reunification to severance and adoption.
DCS petitioned to terminate Father’s parental rights on length of sentence
and prior removal grounds.
¶7 The juvenile court held a multi-day severance hearing. Father
testified that he would need “at least a year” to prove his parental abilities.
He also admitted that he understood needing to complete reunification
services, but that he failed to do so. The court severed Father’s parental
rights on both grounds.
¶8 Father timely appealed, and we have jurisdiction under A.R.S
§§ 8-235(A) and 12-120.21(A)(1).
DISCUSSION
¶9 We review the severance of parental rights for an abuse of
discretion. Titus S. v. Dep’t of Child Safety, 244 Ariz. 365, 369, ¶ 15 (App.
2018). We will uphold the juvenile court’s findings of fact “if supported by
adequate evidence in the record.” Christy C. v. Ariz. Dep’t of Econ. Sec., 214
Ariz. 445, 452, ¶ 19 (App. 2007) (quoting State v. Smith, 123 Ariz. 243, 247
(1979)). “The juvenile court, as the trier of fact in a termination proceeding,
is in the best position to weigh the evidence, observe the parties, judge the
credibility of witnesses, and make appropriate findings.” Jesus M. v. Ariz.
Dep’t of Econ. Sec., 203 Ariz. 278, 280, ¶ 4 (App. 2002).
¶10 Before irrevocably severing parental rights, “due process
requires that the State support its allegations by at least clear and
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KALEB P. v. DCS, et al.
Decision of the Court
convincing evidence.” Santosky v. Kramer, 455 U.S. 745, 747–48 (1982).
“[S]uch a standard adequately conveys to the factfinder the level of
subjective certainty about his factual conclusions necessary to satisfy due
process.” Id. at 769. To sever the parent-child relationship, the juvenile court
must find, by clear and convincing evidence, parental unfitness based on at
least one statutory ground under A.R.S. § 8-533(B). Kent K. v. Bobby M., 210
Ariz. 279, 284, ¶ 22 (2005).
¶11 The juvenile court may sever Father’s parental rights based
on prior removal if: (1) an out-of-home placement cared for the children
under court order; (2) DCS made diligent efforts to provide appropriate
reunification services; (3) the juvenile court restored Father’s legal custody;
and (4) within 18 months after being returned, DCS again removed the
children from Father’s custody, the children are in an out-of-home
placement under the supervision of the juvenile court, DCS, or a licensed
child welfare agency, and Father cannot discharge his parental
responsibilities. See A.R.S. § 8-533(B)(11).
¶12 The juvenile court removed the children from Father’s care
during the initial dependencies. The court then returned the children to
Father’s legal custody in March 2018, when it dismissed the dependencies.
DCS removed the children 14 months later and placed them with a foster
family. And Father’s current incarceration prevents him from discharging
his parental responsibilities.
¶13 DCS provided significant reunification services during the
initial dependencies. These services included substance abuse treatment,
drug testing, a psychological evaluation, and visitation. Father’s successful
participation in services led the juvenile court to restore his legal custody.
Father argues DCS provided no reunification services while incarcerated.
But the record suggests otherwise. DCS’s psychologist recommended
against in-person visits, but Father received several supervised phone calls.
And Father’s argument does not account for the four months preceding his
incarceration, during which DCS provided supervised visitation, drug
testing, substance abuse treatment, and therapeutic services for V.P. See
Jordan C. v. Ariz. Dep’t of Econ. Sec., 223 Ariz. 86, 94, ¶ 20 (App. 2009) (DCS
must provide efforts with a reasonable prospect of success in reuniting the
family). DCS provided these services, before changing the case plan to
severance, in support of its goal to reunify Father with the children. Father
simply failed to utilize these services.
¶14 Father also contends the “parental responsibilities” element
requires more reunification services to fairly assess his ability to parent the
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KALEB P. v. DCS, et al.
Decision of the Court
children. We disagree. Father’s incarceration, and his inevitable halfway
house stay, prevent him from assuming any parental responsibility.
¶15 The record supports the juvenile court’s finding that DCS
provided appropriate reunification services. The court thus did not abuse
its discretion by severing Father’s parental rights based on the prior
removal ground. See A.R.S. § 8-533(B)(11). Given this determination, we
need not address the other severance ground (length of sentence) in the
petition. See Michael J. v. Dep’t of Econ. Sec., 196 Ariz. 246, 251, ¶ 27 (2000).
CONCLUSION
¶16 We affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
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