Angel L. v. Dcs, A.L. ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
ANGEL L., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, A.L., Appellees.
No. 1 CA-JV 22-0097
FILED 9-15-2022
Appeal from the Superior Court in Maricopa County
No. JD32132
The Honorable David O. Cunanan, Judge, Retired
AFFIRMED
COUNSEL
Maricopa County Legal Defender’s Office, Phoenix
By Jamie R. Heller
Counsel for Appellant
Arizona Attorney General’s Office, Tucson
By Michelle R. Nimmo
Counsel for Appellee Department of Child Safety
ANGEL L. v. DCS, A.L.
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Brian Y. Furuya delivered the decision of the Court, in
which Judge Jennifer B. Campbell and Judge Paul J. McMurdie joined.
F U R U Y A, Judge:
¶1 Angel L. (“Father”) appeals the juvenile court’s order
terminating his parental rights to his minor child (born in 2020).1 Father
challenges the court’s order finding statutory grounds for termination as to
his child (“Child”), that the Department of Child Safety (“DCS”) made
reasonable efforts to provide Father reunification services, and that
termination of his parental rights was in Child’s best interests. For the
following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Father and Mother are the biological parents of Child. In July
2020, DCS became involved upon learning Child was born substance
exposed to fentanyl. Mother admitted to using fentanyl consistently for a
year, though Father claimed he knew nothing about such use and denied
using any substances himself except for marijuana. Mother and Father
agreed to submit to uranalysis (“UA”) and hair follicle testing on July 31
but did not do so until August 4. Father tested positive for marijuana in his
UA, and his hair follicle tested positive for marijuana and cocaine. Mother
tested positive for fentanyl. Child was temporarily placed in a licensed
foster care home.
¶3 In November 2020, Child was adjudicated dependent as to
Father and Mother, and the juvenile court approved a case plan of family
reunification, which was later changed to termination and adoption. DCS
offered Father various reunification services, including a psychological
evaluation, parent aide services, visitation, random UA testing, substance
abuse treatment, and transportation. Father inconsistently engaged with
these services. Although he was asked to begin random UA testing on July
31, Father did not do so until August 14. From October 2021 to March
1 The parental rights of Child’s mother, Extacy T., were also
terminated, and she is not a party to this appeal.
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ANGEL L. v. DCS, A.L.
Decision of the Court
2022—the month of the termination hearing—Father completed 10 out of
24 UA tests.
¶4 In addition to Father failing to drug-test for “three and a half
months” before the termination hearing, he did not complete the
recommended maintenance recovery program from the substance abuse
treatment program at Terros. He was aware that his participation in such
“recommended services” was a condition of Child’s return to Father. As a
result, DCS moved to terminate Father’s parental rights pursuant to the
chronic substance abuse and fifteen-months’ time in out-of-home
placement grounds. See Ariz. Rev. Stat. (“A.R.S.”) § 8-533(B)(3), (8)(c).
¶5 At the March 2022 termination trial, the juvenile court found
Father “voluntarily absented [himself] from the proceedings by not
appearing” and thus waived his right to contest such proceedings. The DCS
case manager testified that Child was currently residing with an adoptive
placement and was otherwise adoptable. The case manager further opined
that terminating Father’s parental rights would benefit Child by allowing
him to have permanency in a stable home.
¶6 The court terminated Father’s parental rights, finding clear
and convincing evidence supported termination and finding by a
preponderance of the evidence that termination would be in Child’s best
interests. Father timely appealed, and we have jurisdiction pursuant to
A.R.S. § 8-235(A) and Arizona Rule of Procedure for the Juvenile Court
103(A).
DISCUSSION
¶7 To terminate a parent’s rights, the juvenile court must find
clear and convincing evidence that supports at least one statutory ground
for termination. A.R.S. § 8-533(B); Ariz. R. P. Juv. Ct. 353(C).2 The court must
also separately find by a preponderance of the evidence that termination is
in the child’s best interests. Ariz. R. P. Juv. Ct. 353(C). We “will affirm the
juvenile court’s termination order absent an abuse of discretion or unless
the court’s findings of fact were clearly erroneous.” E.R. v. DCS, 237 Ariz.
56, 58, ¶ 9 (App. 2015). A finding is clearly erroneous if no reasonable
evidence supports it. Mary Lou C. v. Ariz. Dep’t of Econ. Sec., 207 Ariz. 43, 47
¶ 8 (App. 2004). We will not reweigh the evidence on appeal because the
juvenile court, as a direct observer of the parties’ credibility, is “in the best
2 Absent material revisions after the relevant dates, statutes and rules
cited refer to the current version unless otherwise indicated.
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ANGEL L. v. DCS, A.L.
Decision of the Court
position to weigh the evidence.” Id. Indeed, “[w]e view the facts in the light
most favorable to upholding the juvenile court’s order.” Ariz. Dep’t of Econ.
Sec. v. Matthew L., 223 Ariz. 547, 549 ¶ 7 (App. 2010).
¶8 Parental rights may be terminated if “the parent is unable to
discharge parental responsibilities because of . . . a history of chronic abuse
of dangerous drugs, controlled substances or alcohol and there are
reasonable grounds to believe that the condition will continue for a
prolonged indeterminate period.” A.R.S. § 8-533(B)(3).
¶9 Father argues the court abused its discretion by terminating
his parental rights based on the substance abuse ground because he
successfully completed substance abuse treatment and his UA tests were
positive for marijuana only (and he had a medical marijuana card). Father’s
argument ignores other evidence of his drug use, including positive hair
follicle test results. It also fails to acknowledge the court’s key finding, that
“Father [was] inconsistent with his testing,” and thus rendered DCS
“unable to fully assess Father’s sobriety,” which Father was required to
demonstrate to show his ability to “maintain a safe, stable, sober, and
sanitary home for himself and his child.” We believe the court’s finding is
supported by reasonable evidence in the record and reflective of the
directive that “a child’s interest in permanency must prevail over a parent’s
uncertain battle with drugs.” Jennifer S. v. DCS, 240 Ariz. 282, 287 ¶ 17 (App.
2016). Thus, the court’s conclusion to terminate on substance abuse grounds
was not in error.3
¶10 Citing Mary Ellen C. v. Ariz. Dep’t of Econ. Sec., 193 Ariz. 185,
192 ¶ 37 (App. 1999), Father contends the court abused its discretion in
finding DCS made reasonable efforts to provide him with reunification
services because DCS neglected to offer him services recommended by the
psychologist who conducted his psychological evaluation. But the treating
psychologist did not testify at trial. Nor did Father offer any evidence—
such as the psychological evaluation—that would have proved these
recommendations or DCS’ failure to honor those recommended services.
Therefore, in the absence of evidence on the matter, we cannot confirm the
existence or nature of the purported recommendation for services or assess
DCS’ alleged failure to provide them. Where the record is so deficient,
3 Because we affirm the court’s finding that clear and convincing
evidence supports the termination order based upon the substance abuse
ground, we do not address Father’s challenges to the court’s findings on the
fifteen-months’ time in out-of-home placement ground. Jesus M. v. Ariz.
Dep’t of Econ. Sec., 203 Ariz. 278, 280 ¶ 3 (App. 2002).
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ANGEL L. v. DCS, A.L.
Decision of the Court
Father’s argument cannot prevail. See Michaelson v. Garr, 234 Ariz. 542, 546
¶ 13 (App. 2014) (explaining it is an appellant’s responsibility to ensure the
record contains material to which he takes exception).
¶11 And contrary to his argument that DCS failed to make
reasonable efforts to provide him with reunification services, the record
reflects Father was offered various reunification services, in which he
inconsistently participated. See Maricopa Cnty. Juv. Action No. JS-501904, 180
Ariz. 348, 353 (App. 1994) (stating DCS fulfills its statutory mandate to
make reasonable efforts to provide reunification services where it affords
the parent “the time and opportunity” to participate in programs designed
to help become an effective parent, and DCS “is not required to provide
every conceivable service or to ensure that a parent participates in each
service it offers”). Further, DCS’ case manager discussed the psychological
evaluation at trial and confirmed that DCS asked Father to self-refer for
individual and couples counseling based on the same. The case manager
provided Father with “a list of places” that would accept his insurance. The
case manager told Father he was required to participate in such counseling
“on his own,” but further testified that when Father disclosed he had
encountered problems with his insurance, the case manager sent him to
Terros. Father also informed the case manager that he “got it all worked
out” and “was able to get a setup with Terros.” But Father ceased
communications with DCS in December 2021 and never provided
documentation that he completed counseling. On this record, the juvenile
court did not abuse its discretion in finding DCS made reasonable efforts to
provide Father with reunification services.
¶12 Finally, Father challenges the court’s best-interests finding.
When a child benefits from termination or is harmed by continuing the
parent-child relationship, termination is in that child’s best interests. Alma
S. v. DCS, 245 Ariz. 146, 150 ¶ 13 (2018). A child may benefit if a current
adoptive plan exists, see Maricopa Cnty. Juv. Action No. JS-500274, 167 Ariz.
1, 6 (1990), or if DCS can show the child is adoptable, Alma S., 245 Ariz. at
150–51 ¶¶ 13–14. The court may also consider whether the existing
placement meets the child’s needs and adoption is otherwise legally
possible and likely. Demetrius L. v. Joshlynn F., 239 Ariz. 1, 3–4 ¶ 12 (2016).
Ultimately, the court’s primary concern during the best-interests inquiry is
“protect[ing] a child’s interest in stability and security.” Id. at 4 ¶ 15
(quoting Kent K. v. Bobby M., 210 Ariz. 279, 286 ¶ 34 (2005)).
¶13 Here, the court found termination would benefit Child,
echoing the case manager’s testimony that “it would further the plan of
adoption, which would provide [Child] with permanency and stability.”
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ANGEL L. v. DCS, A.L.
Decision of the Court
The court also found that Child was residing in an adoptive placement that
met all of his needs and was considered adoptable. Another placement
could be located should his current placement be unable to adopt him.
Father cites no evidence to dispute the case manager’s testimony. Instead,
he criticizes the weight given this testimony. But the court’s findings are
supported by reasonable evidence in the record, and we will not reweigh
that evidence. Mary Lou C., 207 Ariz. at 47 ¶ 8. The court did not err in
finding that termination was in Child’s best interests.
CONCLUSION
¶14 For the foregoing reasons, we affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
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