Justin C. v. Dcs, S.C. ( 2015 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
JUSTIN C., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, S.C., Appellees.
No. 1 CA-JV 15-0136
FILED 12-1-2015
Appeal from the Superior Court in Apache County
No. S0100JD201300001
The Honorable Donna J. Grimsley, Judge Pro Tem
AFFIRMED
COUNSEL
Law Office of Devin Brown, St. Johns
By Devin Brown
Counsel for Plaintiff/Appellant
Arizona Attorney General’s Office, Mesa
By Amanda Adams
Counsel for Appellee Department of Child Safety
JUSTIN C. v. DCS, S.C.
Decision of the Court
MEMORANDUM DECISION
Judge Jon W. Thompson delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Lawrence F. Winthrop joined.
T H O M P S O N, Judge:
¶1 Justin C. (Justin) appeals from the juvenile court’s order
terminating his parental rights to his daughter S.C. For the following
reasons, we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 S.C. was born in January 2012. Justin and S.C.’s mother, D.H.,
were never married.1 S.C. came into the care of the Department of Child
Safety (DCS)2 after DCS received a referral that S.C. and her seven-year-old
half-brother had been neglected. When DCS contacted Justin and D.H. in
January 2013, D.H. admitted to using methamphetamine and Justin
admitted to using marijuana on a regular basis. DCS allowed S.C. to remain
in the home with D.H. and Justin, but the next day Justin attempted to
choke D.H. and hit her in the face while she was holding S.C. Police
arrested Justin, who was already on probation for assault. DCS took
custody of S.C. and placed her in a foster home along with her brother.
¶3 DCS filed a dependency petition and in January 2013 the
juvenile court found that S.C. was a dependent child as to both Justin and
D.H. The court approved a case plan of family reunification, and DCS put
services into place. Justin’s participation in services was inconsistent, and
in January 2014, the juvenile court approved a case plan of severance and
adoption. DCS filed a severance motion, and the court held a contested
severance trial over three days in the fall of 2014 and in January 2015. The
court terminated Justin’s parental rights pursuant to Arizona Revised
1 D.H.’s parental rights were previously terminated; she is not a party to
this appeal.
2The Arizona Department of Economic Security originated this action but
was later replaced by the Department of Child Safety. See S.B. 1001, 51st
Leg., 2d Spec. Sess. (Ariz. 2014). We refer to both entities as “DCS.”
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Decision of the Court
Statutes (A.R.S.) sections 8-533(B)(8)(a) (Supp. 2012) (nine months’ out of
home placement) and 8-533(B)(3) (substance abuse). Justin timely
appealed. We have jurisdiction pursuant to A.R.S. §§ 8-235 (2010), 12-
120.21(A)(1) (2010), and -2101 (A)(1) (Supp. 2012).
DISCUSSION
¶4 On appeal, Justin argues that insufficient evidence supported
the juvenile court’s findings concerning both of the statutory grounds for
severance (nine months’ out of home placement and substance abuse). He
does not appeal from the juvenile court’s best interest finding.
¶5 “We will not disturb the juvenile court’s order severing
parental rights unless its factual findings are clearly erroneous, that is,
unless there is no reasonable evidence to support them.” Audra T. v. Ariz.
Dep’t of Econ. Sec., 194 Ariz. 376, 377, ¶ 2, 982 P.2d 1290, 1291 (App. 1998)
(citations omitted). We view the facts in the light most favorable to
sustaining the juvenile court’s ruling. Lashonda M. v. Ariz. Dep’t of Econ. Sec.,
210 Ariz. 77, 82, ¶ 13, 107 P.3d 923, 928 (App. 2005). We do not reweigh the
evidence, because “[t]he 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, 53 P.3d 203, 205
(App. 2002) (citation omitted). The juvenile court may terminate a parent-
child relationship if DCS proves by clear and convincing evidence at least
one of the statutory grounds set forth in A.R.S. § 8-533(B). Michael J. v. Ariz.
Dep’t of Econ. Sec., 196 Ariz. 246, 249, ¶ 12, 995 P.2d 682, 685 (2000). The
court must also find by a preponderance of the evidence that severance is
in the child’s best interests. Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 22, 110
P.3d 1013, 1018 (2005).
A. Nine Months’ Out of Home Placement
¶6 Under A.R.S. § 8-533(B)(8)(a), the juvenile court may
terminate a parent-child relationship if DCS “made a diligent effort to
provide appropriate reunification services,” the child was in an out-of-
home placement for nine months or longer, and the parent substantially
neglected or willfully refused to remedy the circumstances that caused the
child to remain out of the home. DCS “is not required to provide every
conceivable service or to ensure that a parent participates in each service it
offers.” Maricopa Cty. Juv. Action No. JS-501904, 180 Ariz. 348, 353, 884 P.2d
234, 239 (App. 1994). DCS fulfills its statutory mandate to diligently
provide appropriate reunification services when it “provide[s] [a parent]
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Decision of the Court
with the time and opportunity to participate in programs designed to help
[the parent] become an effective parent.” Id. “To ‘substantially [neglect] or
willfully [refuse] to remedy a circumstance,’ a parent must be aware that
[DCS] alleges that the circumstance exists and is one that, if it continues to
exist at severance, may result in the termination of [the parent’s] parental
rights.” Marina P. v. Dep’t of Econ. Sec., 214 Ariz. 326, 332, ¶ 35, 152 P.3d
1209, 1215 (App. 2007) (citation omitted).
¶7 At the time DCS filed its severance motion in February 2014
S.C. had been in an out-of-home placement for approximately thirteen
months, and by the last day of trial she had been in care for approximately
two years. During the dependency, DCS requested that Justin participate
in substance abuse assessment and treatment services, random drug
testing, parenting classes, parent-aide services, and visitation. From the
outset of the dependency, DCS also informed Justin he would need to
“demonstrate an ability to parent . . . without violence in the home and an
ability to provide the basic needs of [S.C.] such as shelter, food and
clothing.”
¶8 Justin completed the substance abuse assessment in January
2013. The intake worker who completed the assessment recommended that
Justin begin an intensive outpatient substance abuse treatment, that he
participate in domestic violence classes, and that he attend parenting
classes. Justin began attending the intensive outpatient sessions, but his
attendance was “very inconsistent” until 2014. He missed nearly half of the
sessions he was expected to attend in 2013. His attendance improved in
2014, although he missed several sessions. Justin’s substance abuse
counselor, W.G., testified that even after Justin’s attendance improved, he
continued to deny that he had a substance abuse problem and was there
“just to get [S.C.] back.” By the last day of trial, Justin had completed the
outpatient treatment program, but still needed to complete an aftercare
program.
¶9 Justin tested positive for opiates in February, March, May,
October and December 2013. In May 2013 he tested positive for
methamphetamine and twice tested positive for marijuana. He tested
positive for marijuana in November 2013, and as a result of that positive
test and because he was found to possess alcohol, he served a total of
fourteen days in jail in January and February 2014 for violating his
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Decision of the Court
probation. He tested positive for opiates twice and methamphetamine once
in January 2014.3 In May and September 2014 he tested positive for opiates.
¶10 Justin’s probation officer, A.O., testified that Justin had been
on intensive probation since July 2013, after he assaulted D.H. As part of
his probation, Justin was required to participate in both intensive outpatient
substance abuse counseling and domestic violence counseling. A.O.
testified that Justin was closed out of domestic violence treatment in 2013,
attended four domestic violence sessions in 2014, and missed one session.
A.O. explained that, as of the date of her testimony in September 2014,
Justin had not successfully completed domestic violence treatment because
he still had about thirteen of twenty-six sessions to complete. However, on
the last day of trial four months later, Justin testified that he had completed
twenty-five sessions and would complete his last session within a week.
¶11 Justin completed a psychological evaluation with Dr. Shane
Hunt, a licensed psychologist, in December 2013. Dr. Hunt diagnosed
Justin with antisocial personality disorder, ADHD, intermittent explosive
disorder, alcohol abuse in early partial remission, cannabis use in early
partial remission, and amphetamine abuse in early partial remission. Dr.
Hunt opined that Justin had a limited ability to make appropriate decisions
that would be in a child’s best interest, let alone his own best interest:
I’m very concerned in regards to [Justin] not
having the emotional regulation to be able to
take care of his own needs and keep himself out
of . . . trouble . . . much less putting children in
his care. You know, it’s the hostility and the
anger, the poor temperament, the difficulties in
. . . making what I would call responsible
3 By January 2014, the DCS case manager had spoken with Justin and
advised him that DCS had not been provided with a prescription for opiates
(hydrocodone or oxycodone) although he had been testing positive for both
of those drugs. Justin did not provide a prescription for opiates until
August 2014, when he provided his probation officer with a prescription
for hydrocodone. Subsequently, Justin’s treating physician stopped
prescribing Justin opiates after the probation department informed the
doctor about Justin’s history of substance abuse. Justin’s substance abuse
counselor, W.G., testified that continued use of opiates, even with a
prescription, presented a potential problem due to a high potential for
cross-addiction.
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Decision of the Court
choices are all concerns that I would have in
regards to [Justin’s] minimal and adequate
parenting. And I think it directly impacts that
and it limits his ability to . . . make appropriate
decisions that would be in his children’s best
interest, or even in his own best interest.
Dr. Hunt opined that there was a “high possibility” of abuse or neglect for
a child placed in Justin’s care. He further testified that Justin would need
to demonstrate a year of sobriety before S.C. could be returned to his care.
¶12 S.S., the parent aide assigned to supervise Justin’s visits with
S.C. and provide him with hands-on parenting lessons, testified that during
visits Justin failed to consistently demonstrate hands-on parenting
techniques during the visits, and relied on his parents to meet S.C.’s basic
needs.
¶13 DCS case manager C.C. testified that Justin had failed to make
the necessary behavioral changes to have S.C. returned to his care. She
testified that Justin’s substance abuse problem was unresolved and agreed
with Dr. Hunt’s opinion that Justin needed to demonstrate a year of
sobriety before S.C. could be returned to his care. She testified that Justin
would need to completely finish an entire substance abuse treatment
program. C.C. noted that Justin had only been employed for a few weeks
in October or November 2014 and that he had failed to obtain appropriate
housing. C.C. testified that without a job and appropriate housing Justin
was unable to meet S.C.’s basic needs.
¶14 Based on all of the evidence, the trial court concluded that S.C.
had been cared for in an out of home placement for more than nine months
and Justin substantially neglected or willfully refused to remedy the
circumstances causing S.C. to remain in care. The court found:
[F]ather substantially refused or willfully
neglected to engage in substance abuse until the
child had been in care 17 months and still has
not completed services or exhibited the
behavioral skills necessary for the child to be
safely returned. Father had not completed
domestic violence classes as of January 16, 2015,
although [he] was close to completion. Father
did not engage in parenting classes, so the
parent aid fashioned individual classes for him
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Decision of the Court
during visits and transport, but no certificate of
completion was received. Father continued to
exhibit the detrimental behaviors noted in the
psychological evaluation, even at the time of the
trial. He has not engaged in counseling services
to address his mental health issues. He
continues to blame others. He does not take any
responsibility for his own actions that caused
the child to be in car[e]. He continues to rely on
his parents to provide food for his child.
Father’s late efforts at engaging in services are
not sufficient to demonstrate to the court that he
has met the behavioral changes necessary for
the child to be safely returned to him.
The evidence was sufficient to support the severance order under A.R.S. §
8-533(8)(a). While Justin made some efforts to comply with the caseplan,
those efforts were “too little, too late.” See Maricopa Cty Juv. Action No. JS-
501568, 177 Ariz. 571, 577, 869 P.2d 1224, 1230 (App. 1994). Although Justin
argues that the juvenile court improperly discounted his good faith efforts
and focused just on the first nine months that S.C. was in care, the record
instead shows that the juvenile court looked at Justin’s efforts from the
outset of the dependency and up until the last day of trial. As noted by the
trial court, the only program that Justin actually completed during the
entire dependency was one portion of the drug treatment program. He
failed to demonstrate a year of sobriety and did not demonstrate that he
could meet S.C.’s basic needs.
B. Reunification Services
¶15 Justin further argues that DCS failed to make diligent efforts
to provide appropriate reunification services. Reasonable evidence
supports the juvenile court’s finding that DCS made diligent efforts to
provide reunification services, however. DCS gave Justin “the time and
opportunity” to participate in services designed to help him parent,
including a psychological evaluation, outpatient drug treatment, urinalysis
testing, and parent aid services. Although Justin complains that DCS failed
to provide him with employment assistance, housing assistance, and
transportation assistance4, DCS is not required to provide a parent with
4Justin’s mother testified that he received gas cards from Catholic Services
so he could attend his domestic violence classes.
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Decision of the Court
every conceivable service. See Maricopa Cty. Juv. Action No. JS-501904, 180
Ariz. 348, 353, 884 P.2d 234, 239 (App. 1994).
¶16 Because we affirm the court’s order granting severance on the
basis of nine months in an out-of-home placement, we need not address
Justin’s argument concerning A.R.S. § 8-533(B)(3).
CONCLUSION
¶17 For the foregoing reasons, the juvenile court’s severance order
is affirmed.
:ama
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