Clifford C. v. Dcs, B.H. ( 2022 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
CLIFFORD C.,
Appellant,
v.
DEPARTMENT OF CHILD SAFETY, B.H.,
Appellees.
No. 1 CA-JV 21-0163
FILED 2-1-2022
Appeal from the Superior Court in Maricopa County
No. JD532493
The Honorable David King Udall, Judge Retired
REVERSED AND REMANDED
COUNSEL
Maricopa County Legal Defender’s Office, Phoenix
By Jamie R. Heller
Counsel for Appellant
Arizona Attorney General’s Office, Tucson
By Dawn Rachelle Williams
Counsel for Appellee
CLIFFORD C. v. DCS, B.H.
Decision of the Court
MEMORANDUM DECISION
Judge David D. Weinzweig delivered the decision of the Court, in which
Presiding Judge Peter B. Swann and Judge Paul J. McMurdie joined.
W E I N Z W E I G, Judge:
¶1 Clifford C. (“Father”) appeals the termination of his parental
rights to a minor child. For the following reasons, we reverse the
termination order and remand for proceedings consistent with this
decision.
FACTS AND PROCEDURAL BACKGROUND
¶2 Father and Mother are the natural parents of a minor child,
born in August 2018. The couple lived together as nomads for “about [one]
year,” staying on the streets, in hotels and a VA-subsidized apartment.
After becoming pregnant in late 2017, Mother left Father and moved to a
homeless shelter. Father lost track of Mother, but he continued to search
for her. He also sought “legal advice on how to proceed to establish
paternity,” and placed his name on Arizona’s putative father registry.
Unbeknownst to Father, Mother had promised Andy and Hayley Rauscher
they could adopt the child. The Rauschers had covered Mother’s living
expenses in the final trimester of pregnancy.
¶3 After months of searching, Father found Mother at a Phoenix
hospital on August 17, 2018, arriving just minutes before she delivered the
child. Father briefly saw Mother, but returned the next day to “get
paternity done,” aware his name would not otherwise appear on the birth
certificate. By then, however, Mother had signed a written consent for Mr.
and Mrs. Rauscher to adopt the child, granting them power of attorney and
relinquishing her parental rights. And so, on August 18, the child was
released from the hospital to the Rauschers.
¶4 Thirteen days later, Father sued Mother for paternity, legal
decision-making and parenting time. He was unaware of the adoption.
Soon after, Mother was declared incompetent.
¶5 Eight months after the birth, on April 30, 2019, the Rauschers
filed a private dependency petition in the superior court to “finalize the
adoption,” asserting “[i]t is in the best interests of the minor child to find
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Decision of the Court
that the child is depend[e]nt upon [the Rauschers, who] are the only parents
that the child has known, and as such, the child is bonded to them.” The
Rauschers described themselves as the child’s “Psychological Father,”
“Psychological Mother” and “Prospective Adoptive Parents.” The couple
provided no contact information for Mother or Father but acknowledged
Father’s paternity action. They argued, however, that Father was “unable
to parent the child due to a history of chronic abuse of danger[ous] drugs,
controlled substances and alcohol,” plus he was homeless.
¶6 Four days later, Father filed a hand-written “request to the
court” in the dependency action, “asking the court to have a paternity test
done for me and [the child], to determine if I’m the father. This way I can
stop the adoption process and get custody of [the child], if he’s my son.
Thank you, and b bless [sic].” The court set an initial dependency hearing
for May 8, directing DCS “to conduct an investigation regarding the
allegations of this petition.”
¶7 Before the hearing, DCS interviewed Father. He described his
relationship with Mother and his efforts to reunite with the child. He
explained he was a veteran, was employed as a housekeeper at the
Veteran’s Administration (“VA”) and was living with a friend but
“working with the VA to get stable housing.” He said he “hardly ever
drinks,” and “denies any history of drug use” aside from marijuana, which
he uses without a prescription for “mood swings and PTSD.” He told DCS
“marijuana wouldn’t be hard to let go,” however, “if he gets his son.”
Summarizing the interview, DCS concluded that Father “is not prepared
for the child as he does not have any necessary supplies to care for a child
at this time,” and “is a first time father and has no knowledge of child
development or how to care for an infant.”
¶8 DCS also interviewed Mother and the Rauschers. Mother
“appeared to not have a concept of time,” and “appeared to not understand
the nature of certain questions.” Meanwhile, the Rauschers were “aware
that mother does not have the mental capacity at this time to care for the
child,” but “stated that mother had two psychological evaluations at the
hospital and both found that she was competent and understanding of the
adoption process.”
¶9 A day before the hearing, DCS reported to the court and
offered some preliminary conclusions:
[Father] has diminished behavioral, cognitive, and emotional
protective caregiver capacities. [He] does not have a history
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Decision of the Court
of protecting the child because he was unable to protect the
child due to [Mother]’s decision making. [He] has not
demonstrated impulse control as he is smoking marijuana as
a way to control his mood swings and [PTSD]. [He] has not
demonstrated that he has adequate skills to fulfill caregiving
responsibility due to his lack of knowledge of child
development and limited parenting experience. In addition,
[he] does not meet his emotional needs as demonstrated by
him smoking marijuana in order to maintain his PTSD.
** ** **
Mr. and Mrs. Rauscher have been [the child’s] primary
caretakers since he was born. At this time, it is consistent with
the Department’s preferences until paternity and the case
plan has been established.
¶10 At the May 8 hearing, DCS joined the private dependency
action and secured custody of the child. The court affirmed the dependency
and ordered that “the child remain in the physical placement of the current
placement,” the Rauschers. Father was present for the hearing and an
earlier team decision meeting.
¶11 Soon after, Father established paternity and the court ordered
him to participate in drug testing, parent-aide services, and supervised
parenting time “at a minimum of two hours, two times per week.” The
court also ordered random drug tests because Father tested positive for
methamphetamine and marijuana. After a few months, however, DCS
decided the drug tests were unnecessary because Father had consistently
tested negative.
June 2019—February 2020
¶12 DCS reported on Father’s progress in August 2019 and
January 2020, noting his determination “to provide for his child.” Father
secured housing on June 1, which he maintained for the entire dependency
action, along with full-time employment as a janitor at the VA hospital. He
was “consistent with visitation dates and times,” “prepared at all visits with
food, formula, diapers and toys,” and “show[ed] concern for his child.” He
also “closed out of case aide visitation successfully” and was meeting the
“conditions for return.” But DCS still had “some concerns” about Father’s
mental health, stemming from a supervised visit in late August when
Father “became upset about his child crying,” “told [him] to shut up” and
“spanked him out of frustration.” The visit was ended. Nobody saw the
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incident, but a parent aide inside the room believed Father had only
“cuss[ed] about” the Rauschers. DCS recognized a similar tension,
commending Father: “Despite his disagreement with where his child is
placed[,] he continues to participate in services and has started to be able to
develop a bond with his child.”
¶13 Father became frustrated with parent-aide services. He was
assigned three aides in four months because the first resigned, the second
continually canceled visits, and the third disagreed about what happened
during the August 2019 visit. He “lost trust” in parent-aide services and
“was not receptive to the parent aide’s suggestions.” The referral closed
out in January 2020. DCS acknowledged the complications had “delayed
[Father’s] progress in enhancing his parental capacities.”
¶14 When parent-aide services restarted in late February, DCS
reported that the first visit “went well and [Father] was prepared with toys
and snacks for [the child].” DCS questioned Father’s basic parenting skills,
such as changing diapers, but concluded that he was “actively engaged in
services and ha[d] been demonstrating some enhanced protective
capacities.”
¶15 DCS asked Father to undergo a psychological evaluation. A
clinical psychologist, Dr. Joseph Bluth, examined Father in September 2019,
about 17-18 months before the termination hearing. Dr. Bluth described
Father as “pleasant” and “congenial” with fair “insight and judgment.” He
noted that Father had been diagnosed with PTSD from his combat in Desert
Storm, which “could affect his ability [to] provide a safe and effective home
for the child, as he could be distracted by his mental health symptoms at
times.” He recommended that Father continue with his counseling
treatment and parent-skills training.
¶16 DCS also asked Father to undergo a bonding and best-
interests assessment. A licensed psychologist, Dr. Al Silberman, performed
the assessment in February 2020, over a year before the termination hearing.
After observing Father and child for 20 minutes, Dr. Silberman reported
that Father “loves his child and has made good progress,” “appears [to
have] made a great deal of effort in bettering himself,” “seemed to respond
to his child appropriately,” “was aware of the child’s needs even though
the child is only beginning to verbalize” and “seem[s] to have an adequate
understanding of his son.” Dr. Silberman concluded: “At this point, it
appears that the foster parents are more able to meet the child’s needs.
However, if the father continues with his stability, then he might also be
appropriate,” adding that “[m]ore time is needed to see if the father can
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continue with the improvements he has made, including his emotional and
financial stability.”
March 2020—July 2020
¶17 COVID-19 arrived in March 2020, and Father transitioned to
virtual visits, which went “poorly” because neither Father nor the child
adapted to the new format. The child cried “inconsolably,” and Father
missed visits or did not engage. But DCS reported that visitation
“improved over time,” and parent aides described how Father read to the
child and encouraged him to talk.
¶18 DCS resumed in-person visits in May 2020. Father “was
observed to be cleaning up the apartment” and he “provided appropriate
toys and snacks” to the child. But Father continued to clash with the parent
aides. At one point, Father became “agitated” with a parent aide who
offered advice about getting the child to nap, and “a very large argument”
broke out. Father ended the visit early and canceled a follow-up skills
session. By June 2020, Father again refused to work with parent-aide
services and the second referral was closed.
¶19 DCS next referred Father to therapeutic visitation so he could
develop a bond with the child. The visits were virtual. The therapist
reported that Father demonstrated “healthy parenting skills” after two
visits, but Father “did not exhibit a compliant approach and was defensive”
after the third visit. The therapist recommended that in-home visits would
be safer and more effective than virtual or in-office visits. Father requested
a third parent-aide referral. DCS declined, citing Father’s disagreements
with prior aides.
August 2020—January 2021
¶20 Father continued to have supervised in-person visitation
through 2020. DCS reported that Father had trouble with diaper changes
and fed the child “Cheetos and apple juice at every visit,” remarking that
he “does not seem to understand appropriate nutrition for a child [his] age.”
DCS expressed concern about Father’s lack of progress in basic parenting
skills.
¶21 Father worked to resolve the concerns. Around July or
August 2020, he independently sought parenting classes and counseling
through outside organizations. At the hearing, Father testified he had
obtained “well over 20 certificates” from attending various parenting
courses. He described learning about stages of childhood, age-appropriate
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Decision of the Court
behaviors and building self-esteem through praise, and how he put these
lessons into practice with the child. Black Child and Family Services told
DCS that Father was working to improve his protective capacities.
Moreover, Father independently began counseling in early 2021, which
continued through the April severance hearing.
¶22 By November 2020, Father requested that visits be increased
from two to four hours so he would have more time with the child. DCS
reported that Father “seems to do well with interacting with Baby Boy in
small lengths of time” but it was “unknown” how longer visits would go.
Yet, in January 2021, a case aide reported that a four-hour visit “went well.”
And that month, Father provided many foods beyond Cheetos and juice,
including cereal, peanut butter and jelly sandwiches, chicken nuggets,
crackers, cheese and pizza bites. Father kept the child occupied with an
assortment of child-friendly activities.
Severance Hearing and Order
¶23 The juvenile court held a two-day severance hearing in
February and April 2021. It heard testimony from Father, a DCS Specialist,
Dr. Bluth and Dr. Silberman. Seventeen months had elapsed since Dr. Bluth
examined Father. Twelve months had elapsed since Dr. Silberman
examined Father. Dr. Bluth agreed it would have helped to receive more
records and information “because [his evaluation of Father] was done at the
beginning of the case.” The DCS Specialist testified that Father had not
shown he could parent the child. She was troubled that Father took nearly
two years to understand where he needed to improve. She believed Father
was “not truly absorbing the information,” and that he was “reluctant to
engage” with services. She also raised concern about the poor relationship
between Father and service providers.
¶24 After the hearing, the court terminated Father’s parental
rights to the child based on 15-months out-of-home placement. A.R.S. § 8-
533(B)(8)(c). The court generally found that Father (1) “has been unable to
remedy the circumstances that cause the child to be in an out-of-home
placement,” and (2) “[t]here is a substantial likelihood that [he] will not be
capable of exercising proper and effective parental care and control in the
near future.” The court reasoned that termination was in the child’s best
interests because the Rauschers had a “significant relationship” with the
child, and adoption by placement would provide permanency and stability.
¶25 DCS drafted a proposed termination order, which the court
signed. The order listed “concerns” about Father’s parenting skills and
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Decision of the Court
mental health, including that “Father failed to understand appropriate food
and snack and proper nutrition for the child as he almost always gave
Cheetos and juice at visits,” and Father still brought the wrong size diapers.
The order emphasized as “extremely concerning” that Father “alleges he is
finally understanding the parenting skills being taught to him after
receiving services for almost two years.” On mental health, the order
generally mentioned “concerns about father’s mental health stability and
ability to control his impulses regarding his anger.”
¶26 Father timely appealed. We have jurisdiction. A.R.S. §§ 8-
235(A), 12-120.21, and 12- 2101(A)(1).
DISCUSSION
¶27 To terminate parental rights, the superior court must find
clear and convincing evidence of a statutory ground for severance under
A.R.S. § 8-533(B), and that termination is in the child’s best interests.
Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 249, ¶ 12 (2000). “When
the statutory grounds for termination are challenged, we will affirm a
termination order unless we must say as a matter of law that no one could
reasonably find the evidence supporting statutory grounds for termination
to be clear and convincing.” Jordan C. v. Ariz. Dep’t of Econ. Sec., 223 Ariz.
86, 93, ¶ 18 (App. 2009) (cleaned up). To meet the standard for clear and
convincing evidence, the court must find the grounds for termination are
“highly probable or reasonably certain.” Kent K. v. Bobby M., 210 Ariz. 279,
284-85, ¶ 25 (2005).
¶28 The court terminated Father’s parental rights based on 15
months in an out-of-home placement under A.R.S. § 8-533(B)(8)(c), which
required DCS to provide clear and convincing evidence that (1) the child
had been in an out-of-home placement for at least 15 months, (2) “the parent
has been unable to remedy the circumstances that cause the child to be in
an out-of-home placement,” and (3) “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). DCS also
needed to prove it made diligent efforts to reunify the family. Id.
¶29 On this record, we hold “that no one could reasonably find
the evidence supporting statutory grounds for termination to be clear and
convincing” under A.R.S. § 8-533(B)(8)(c). See Jordan C., 223 Ariz. at 93, ¶
18. DCS does not and cannot dispute that Father has addressed all but two
of its initial concerns. The record is uncontested that Father has maintained
stable housing and full-time employment since June 2019. DCS is not
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Decision of the Court
concerned about substance abuse. By the termination hearing, DCS
challenged only Father’s parenting skills and mental health.
Parenting Skills
¶30 The court found that Father lacked parenting skills “as
evidenced by the lack of proper nutrition, ongoing issues with nap time and
diaper changes.” But this evidence does not prove parental unfitness or
justify termination of parental rights. See Appeal of Maricopa Cnty. Juv.
Action No. JS-6520, 157 Ariz. 238, 254 (App. 1988) (“[T]he parents’ inability
to care for the child must show a danger to the child’s welfare.”). And the
record shows Father was always prepared for visits and offered basic care.
By January 2021, case aides reported the visits “went well,” Father engaged
the child with toys and books, his apartment was “very clean and in order,”
and he brought cheese and crackers, juice, peanut butter and jelly
sandwiches, pizza bites and bananas—all evidence that Father was
becoming a minimally adequate parent. DCS even noted Father’s
improvement with changing diapers.
¶31 Beyond that, the record has no evidence—much less clear and
convincing evidence—that Father is unfit to parent. See Alma S. v. Dep’t of
Child Safety, 245 Ariz. 146, 150, ¶ 9 (2018) (“We now explicitly reiterate that
conclusion, which ensures compliance with the due process requirement
that a court find, by clear and convincing evidence, parental unfitness when
a severance is contested.”). Just the opposite. It shows Father’s robust,
proactive and determined attempts to form a legal and emotional bond
with his child—he searched for Mother during the pregnancy, placed his
name on the putative father registry, sought “legal advice on how to
proceed to establish paternity,” immediately moved to establish paternity
in the superior court, contested the dependency petition and more. The
record shows that Father strived to improve, even when frustrated with
parent-aide services, taking parenting classes from the Family Involvement
Center and Parenting Arizona, and independently obtaining counseling
from Black Family Child Services. See Roberto F. v. Ariz. Dep’t of Econ. Sec,
232 Ariz. 45, 57-58, ¶¶ 58-60 (App. 2013) (relying on a father’s “significant
progress” in obtaining employment, housing, and sobriety, and his
“considerable efforts to provide for the needs of his [c]hildren”).
Mental Health Concerns
¶32 The record does not contain clear and convincing evidence
that Father has been unable to remedy mental health issues, or establish a
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substantial likelihood that he will be incapable of exercising proper and
effective parental care and control in the near future.
¶33 Two mental health experts testified at the termination
hearing. And neither opined that Father’s parental rights should be
terminated. Neither expert concluded or testified that Father could not
“remedy the circumstances” that caused the child’s removal, or that Father
would remain incapable “of exercising proper and effective care and
control in the near future.” They instead offered general, equivocal
observations—likely because they had stale information. Seventeen
months had elapsed since Dr. Bluth examined Father. Twelve months had
elapsed since Dr. Silberman examined Father. DCS had not provided either
expert with updated records or information. Dr. Bluth conceded this
disadvantage, acknowledging “it would [have] help[ed] to get other
information” because he had evaluated Father “at the beginning of the case,
and there may be more information over time that could help to delineate
further diagnoses or problems that the individual may be experiencing.”
¶34 Moreover, aside from one disputed incident, which happened
over 20 months before the severance hearing, DCS complained only about
the relationship between Father and unnamed service providers, asserting
that Father is “easily frustrated and verbally aggressive with service
providers.” On this record, DCS did not prove that Father was a danger to
the child’s welfare. See No. JS-6520, 157 Ariz. at 245.
CONCLUSION
¶35 We reverse the termination order and remand for
dependency proceedings to continue.
AMY M. WOOD • Clerk of the Court
FILED: AA
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