Neville T. v. Dcs ( 2017 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
NEVILLE T., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, A.T., Q.T., S.T., A.S., Appellees.
No. 1 CA-JV 17-0234
FILED 12-14-2017
Appeal from the Superior Court in Mohave County
No. B8015JD201404047
B8015JD201404046
The Honorable Rick A. Williams, Judge
AFFIRMED
COUNSEL
Mohave County Legal Defender's Office, Kingman
By Eric Devany
Counsel for Appellant
Arizona Attorney General's Office, Mesa
By Ashlee N. Hoffmann
Counsel for Appellee DCS
NEVILLE T. v. DCS, et al.
Decision of the Court
MEMORANDUM DECISION
Judge Diane M. Johnsen delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge Maria Elena Cruz joined.
J O H N S E N, Judge:
¶1 Neville T. ("Father") appeals the superior court's order
terminating his parental rights. We affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Father is the parent of the four children at issue in these
consolidated cases, the oldest of whom was born in 2003 and the youngest
of whom was born in 2015.1 For most of the pendency of this case, Father
lived with his girlfriend, who is the mother of three of the children. The
superior court also terminated her parental rights. Only Father is a party
to this appeal.
¶3 In mid-July 2014, the Department of Child Safety ("DCS")
received a report that Father had left his eleven-year-old daughter to care
for her sixteen-year-old brother, who is autistic, and her one-year-old
brother while Father was at work. At about the same time, DCS also
received a report following the birth of Father's second daughter that
Father's girlfriend, the infant's mother, was unable to care for her, and that
Father did not visit the baby in the hospital. The DCS case manager who
visited the home in response to the report found it had electricity in only
one room, was very hot, was infested with cockroaches, and was in disarray
with a very unpleasant odor.
¶4 DCS took all the children into care and filed dependency
petitions against Father alleging neglect based on domestic violence,
substance abuse, failure to provide adequate housing and failure to provide
1 This court views the evidence in a light most favorable to sustaining
the superior court's findings. See Manuel M. v. Ariz. Dep't of Econ. Sec., 218
Ariz. 205, 207, ¶ 2 (App. 2008).
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NEVILLE T. v. DCS, et al.
Decision of the Court
adequate supervision.2 At the outset of the proceedings, DCS offered
Father family reunification services and referrals for substance-abuse
assessment, random urinalysis testing, counseling, parenting classes,
parent-aide services and transportation to out-of-town services. DCS also
planned to provide in-home services to Father once he successfully
completed the other services. By December 2014, however, Father was not
able or willing to engage in services, saying he preferred to wait to fully
engage in services if and when ordered to after a finding of dependency by
the court.
¶5 At the April 2015 dependency hearing, Father denied the
allegations but submitted the issue of dependency to the court. In July, DCS
re-referred Father for substance-abuse assessment, urinalysis testing,
parent-aide services and transportation.
¶6 Meanwhile, Father's girlfriend gave birth to another child in
August 2015, and DCS filed a supplemental dependency petition, alleging
neglect based on Father's two open dependency cases and failure to protect
the children from his girlfriend's substance abuse. Specifically, DCS alleged
Father had not completed any of his case plan goals and continued to fail
to show appropriate behavioral changes and parenting skills. By
November 2015, Father had submitted clean drug screens and had
completed parenting classes, but failed to engage in individual counseling
and domestic violence classes. Father was unemployed, and DCS had
safety concerns with his residence, primarily involving his girlfriend, that
rendered it inappropriate for the children.
¶7 In December 2015, the superior court found Father's oldest
daughter and two of her younger siblings dependent as to Father, and
adopted a case plan of family reunification. The court found the youngest
child dependent the following month.
¶8 At a review hearing in June 2016, counsel for DCS noted
Father was doing well; however, his girlfriend was not engaging in services
and had been arrested on domestic violence charges. According to the DCS
lawyer, Father and the girlfriend were living together but claimed they
were no longer romantically involved and were merely roommates.
¶9 Three months later, in September 2016, DCS remained
concerned with Father's ability to safely parent the children due to his
2 The oldest son turned 18 during these proceedings and was not
named in the severance order the court ultimately entered.
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NEVILLE T. v. DCS, et al.
Decision of the Court
continued relationship with his girlfriend and his lack of social support.
The superior court ordered the case plans changed to severance and
adoption, and DCS moved to terminate Father's parental rights based on
several grounds, including out-of-home placement.
¶10 In detailed orders following a February 2017 severance
hearing, the superior court granted the motion to sever based, inter alia, on
its finding that DCS proved, pursuant to Arizona Revised Statutes
("A.R.S.") section 8-533(B)(8)(c) (2017), that the children had been in an out-
of-home placement for 15 months or longer, that Father had been unable to
remedy the circumstances that caused the placement and there was a
substantial likelihood that he would not be capable of exercising proper and
effective parental care and control in the near future.3
¶11 Father filed timely notices of appeal. We have jurisdiction
pursuant to A.R.S. § 8-235(A) (2017) and Arizona Rule of Procedure for the
Juvenile Court 103(A).
DISCUSSION
¶12 On appeal, Father argues the evidence did not support the
superior court's findings that he been unable to remedy the circumstances
that caused the children to be taken into care and that there was a
substantial likelihood that he would not be capable of exercising proper and
effective parental care and control in the near future.
¶13 "Parents possess a fundamental liberty interest in the care,
custody, and management of their children." Kent K. v. Bobby M., 210 Ariz.
279, 284, ¶ 24 (2005). Even fundamental rights are not absolute, however.
Id. A court may sever those rights if it finds clear and convincing evidence
of one of the statutory grounds for severance and finds by a preponderance
of the evidence that severance is in the child's best interests. See A.R.S. §§
8-533(B), -537(B) (2017); Kent K., 210 Ariz. at 281-82, 288, ¶¶ 7, 41. Because
the superior court "is in the best position to weigh the evidence, observe the
parties, judge the credibility of witnesses, and resolve disputed facts," this
court will affirm an order terminating parental rights if reasonable evidence
supports it. Jordan C. v. Ariz. Dep't of Econ. Sec., 223 Ariz. 86, 93, ¶ 18 (App.
2009).
¶14 The superior court severed Father's rights and the girlfriend's
rights to the children in the same minute entry order. The court noted that
3 Absent material revisions after the relevant dates, we cite the current
version of statutes and rules unless otherwise indicated.
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NEVILLE T. v. DCS, et al.
Decision of the Court
the girlfriend had tested positive for methamphetamine early in the
dependency, and, although she was drug-free in January and February
2016, she stopped testing after that and was inconsistent with parent-aide
services. Although the girlfriend enrolled in an inpatient drug program in
August 2016, she left the program early and against advice about 10 days
later. The court also found the girlfriend was convicted of disorderly
conduct/domestic violence in November 2013 and assault/domestic
violence and disorderly conduct/domestic violence in June 2016. As for
Father, the court found that although he completed his case plan of services,
he continued to maintain a relationship with his girlfriend, whose pattern
of drug use and domestic violence put the children at risk.
¶15 At the severance hearing, Father did not dispute that his
girlfriend had a history of substance abuse and testified he believed she was
continuing to abuse drugs even at the time of the hearing. Nevertheless,
Father testified that she was not a danger to the children. Father testified
that the girlfriend continued to live with him until October 2016, four
months before the severance hearing, when he drove her to Los Angeles.
He testified that the girlfriend returned to Arizona in December. Although
Father denied he continued to have a relationship with the girlfriend and
claimed he would not take her back if she returned to his residence, he
admitted he received three or four telephone calls a week from her. The
DCS case manager testified DCS received reports from Father's family that
the girlfriend was present in Father's home in December. Although Father
denied allowing the girlfriend into his home then, he conceded he brought
the girlfriend to visits with the children in December.
¶16 The case manager reiterated her concern for the stability of
Father's home due to the girlfriend's history of domestic violence, and her
concern that Father would not protect the children from domestic violence
from the girlfriend, who the case manager testified "has a tendency to show
up" in Father's home. The case manager testified DCS remained concerned
the girlfriend was not out of the home permanently and had grave concerns
regarding her ongoing contact with Father. But for the girlfriend's presence
in his home, Father would have transitioned to unsupervised visits; in fact,
DCS considered transitioning one of the children back to Father's care in
early 2016, but did not move to do so because the girlfriend continued to be
present in the home.
¶17 The DCS case manager also testified that although Father was
receptive to suggestions, DCS had ongoing concerns regarding Father's
ability to appropriately care for the children. Father brought snacks to his
visits with the children, but he repeatedly provided snacks that caused
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NEVILLE T. v. DCS, et al.
Decision of the Court
them stomach issues; he also was slow to change dirty diapers during visits.
Further, the case manager testified she was concerned that Father struggled
during visits to control the children so that they were safe; the case manager
also said she concerned that Father would be unable to meet the children's
daily basic needs.
¶18 The superior court found that although Father participated in
a number of services, "[p]articipation does not equate to progress." The
court found Father failed to demonstrate he was able to safely and
appropriately parent the children and concluded Father was not credible
when he testified he would not allow the girlfriend back into his home. We
defer to the court's credibility determinations, and we will not reweigh the
evidence on appeal. See Mary Lou C. v. Ariz. Dep't of Econ. Sec., 207 Ariz. 43,
47, ¶ 8 (App. 2004); Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, 280, ¶
4 (App. 2002).
¶19 The record contains reasonable evidence to support the
superior court's findings and conclusions. The children have been in out-
of-home care for years. In the period preceding severance, Father failed to
appreciate and respond to DCS's concerns regarding his relationship with
the girlfriend, who posed a safety risk to the children due to her substance
abuse and history of domestic violence.
¶20 Finally, although Father does not challenge the superior
court's finding that severance was in the children's best interests, the record
supports that finding. See Maricopa County Juv. Action No. JS–500274, 167
Ariz. 1, 5 (1990). The record supports the court's finding that termination
of Father's rights would further the plan to provide the children with
permanency and stability. See Ariz. Dep't of Econ. Sec. v. Oscar O., 209 Ariz.
332, 334, ¶ 6 (App. 2004). The children are doing well in foster placements
that are meeting all their needs, and the children are adoptable. See Mary
Lou C., 207 Ariz. at 50, ¶ 19; Audra T. v. Ariz. Dep't of Econ. Sec., 194 Ariz.
376, 377, ¶ 5 (App. 1998).
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NEVILLE T. v. DCS, et al.
Decision of the Court
CONCLUSION
¶21 For the reasons stated above, we affirm the order severing
Father's parental rights.
AMY M. WOOD • Clerk of the Court
FILED: AA
7