Joshua H. 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
JOSHUA H., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, M.H., J.H., J.H., Appellees.
No. 1 CA-JV 17-0357
FILED 12-19-2017
Appeal from the Superior Court in Maricopa County
No. JD32667
The Honorable Cari A. Harrison, Judge
AFFIRMED
COUNSEL
Czop Law Firm PLLC, Higley
By Steven Czop
Counsel for Appellant
Arizona Attorney General’s Office, Phoenix
By Sandra L. Nahigian
Counsel for Appellee Department of Child Safety
JOSHUA H. v. DCS, et al.
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Paul J. McMurdie delivered the decision of the Court, in
which Judge Peter B. Swann and Judge James B. Morse Jr. joined.
M c M U R D I E, Judge:
¶1 Joshua H. (“Father”) appeals the superior court’s termination
of his parental rights. For the following reasons, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 Father and Rene P. (“Mother”) are the biological parents of
M.H., J.H., and J.H. (“the Children”). 1 After the youngest child tested
positive for opiates shortly after birth, and Father and Mother failed to
comply with the in-home services offered by the Department of Child
Safety (“DCS”), DCS took the Children into temporary physical custody.
DCS then initiated dependency proceedings regarding both parents. DCS
alleged each child was dependent concerning Father due to abuse and
neglect based on his substance abuse, failure to protect the Children from
Mother’s substance abuse, and failure to provide the Children with a safe
and stable living environment. The superior court adjudicated the Children
dependent in July 2016.
¶3 After the dependency hearing, the case plan was set for
reunification. DCS initially referred Father for a TERROS substance abuse
assessment and, after Father completed an intake, DCS did not recommend
substance abuse treatment. DCS also referred Father for TASC substance
abuse testing on three different occassions, but Father did not participate
and was dismissed from the TASC program in July 2016 because he failed
to provide urinalysis samples. DCS again referred Father to TASC in
September 2016, and Father then provided two negative urinalysis samples.
In October 2016, the superior court ordered the transition for the Children
to return home, beginning with partially unsupervised visits with Father.
1 In July 2017, the superior court terminated Mother’s parental rights.
Mother did not appeal that ruling and is not a party to this appeal.
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JOSHUA H. v. DCS, et al.
Decision of the Court
DCS was preparing to transition the Children back home with Father by
December 9, 2016.
¶4 On December 1, 2016, an urgent care facility in Florence called
the police to respond to an incident involving Mother. Mother left the
urgent care facility with Father before the police arrived, but the police
pulled Father over. Father initially told the superior court that he randomly
ran into Mother at the urgent care facility, but testified at the severance trial
that he was giving Mother a ride to an in-patient drug facility in Mesa and
stopped at the urgent care facility because he needed medical attention. The
police found prescription Xanax underneath Mother’s seat in the car, and
Mother admitted to police that she and Father were “script shopping.”
Father was driving on an expired license, but police did not arrest him
because he needed medical attention. After the incident, DCS
recommended the Children remain in their out-of-home placements, and
the court subsequently affirmed the out-of-home placement orders. The
court also ordered Father to participate in parent-aide services and random
urinalysis testing, and to self-refer to domestic violence counseling.
¶5 Later in December 2016, Father left Arizona and travelled to
California for three to four weeks to address legal matters pending there.
Father informed DCS he was leaving the state, and contacted DCS again
after returning in January 2017. From December 2016 to March 2017, Father
missed several visits with the Children and failed to provide urinalysis
samples or participate in parent-aide services or domestic violence
counseling. In March 2017, DCS petitioned to terminate Father‘s parental
rights to the Children based on a cumulative total period of nine months in
out-of-home placement and Father’s substantial neglect or willful refusal to
remedy the circumstances that caused the Children to be in an out-of-home
placement. See Ariz. Rev. Stat. (“A.R.S.”) § 8-533(B)(8)(a).
¶6 A severance trial was held in July 2017. At the time of the trial,
Father had provided at least 15 negative urinalysis samples, but missed
three tests in May and June 2017. He also began, but had not completed,
domestic violence counseling and substance abuse classes. Father
additionally had one parent-aide referral closed out unsuccessfully, and
was waiting for a new parent aide to be assigned. After the hearing, the
superior court issued an order terminating Father’s parental rights to the
Children. The court found that the Children had been in out-of-home
placement for longer than nine months, DCS made diligent efforts to
reunify the family, and Father substantially neglected or willfully refused
to remedy the circumstances that caused the Children to be in an out-of-
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JOSHUA H. v. DCS, et al.
Decision of the Court
home placement. The court also found that severance was in the Children’s
best interests. 2
¶7 Father timely appealed, and we have jurisdiction pursuant to
Article 6, Section 9, of the Arizona Constitution and A.R.S. §§ 8-235(A),
12-120.21(A)(1), and -2101(A)(1).
DISCUSSION
¶8 A parent-child relationship may be terminated when a court
finds, by clear and convincing evidence, at least one statutory ground for
severance and determines severance is in the child’s best interests. A.R.S.
§ 8-533(B); Mary Lou C. v. ADES, 207 Ariz. 43, 47, ¶ 8 (App. 2004). We review
a court’s severance determination for an abuse of discretion and adopt its
findings of fact unless clearly erroneous. Id.
¶9 Under A.R.S. § 8-533(B)(8)(a), a parent’s rights may be
terminated when a child has been placed out of home “for a cumulative
total period of nine months or longer . . . and the parent has substantially
neglected or willfully refused to remedy the circumstances that cause[d] the
child to be in an out-of-home placement.” Father argues the superior court
erred by finding he substantially neglected or willfully refused to remedy
the circumstances that caused the Children to be in out-of-home placement.
¶10 Father acknowledges he did not participate in services for a
few months between the start of DCS’s involvement and the severance trial.
However, he argues that beginning in March 2017, he did not miss a visit
with the Children and that his participation in services “increased
significantly.” He references several negative drug tests, his participation
in substance abuse awareness and maintenance class, and his participation
in domestic violence counseling. He therefore contends he should have
been “allowed fifteen months in this case to see if he could make the
behavioral changes necessary to be able to parent in the foreseeable future.”
See Marina P. v. ADES, 214 Ariz. 326, 330, ¶ 21 (App. 2007) (“If the moving
party cannot establish that the parent ‘substantially neglected or willfully
refused’ to cure the circumstances, even if it establishes that the
circumstances were not cured at the time of severance, it cannot obtain
severance until the child has been in an out-of-home placement for at least
fifteen months.”).
2 Father does not challenge the superior court’s best interests finding
on appeal. Therefore, we do not address that finding.
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JOSHUA H. v. DCS, et al.
Decision of the Court
¶11 The superior court ordered Father to participate in several
services over the course of the proceedings. In June, July, and December
2016, the court ordered parent-aide services, and Father was to complete a
parent-aide intake in November 2016. Father testified he was in contact
with parent-aide services, but was unable to schedule any appointments
due to conflicting schedules. The parent-aide referral was closed out in
March 2017 due to sporadic contact and Father’s failure to follow through.
A new parent-aide referral was submitted in June 2017, and Father was
waiting for a new a parent aide to be assigned at the time of trial.
¶12 In December 2016, the court ordered Father to self-refer to
domestic violence counseling. Father testified he “searched for months”
and called “between 20 and 30 places” to find a domestic violence
counseling program, but was repeatedly turned down because he did not
have an open domestic violence case with a court order for counseling. At
the start of DCS’s involvement, in May 2016, DCS provided Mother and
Father with information about domestic violence programs. Father testified
he did not retain those resources because he had not been ordered to
participate in domestic violence counseling and that DCS later provided
him with the name of one domestic violence counseling program, but that
program was no longer available. Father did not contact DCS again
regarding his inability to enroll in domestic violence counseling until late
April or early May 2017. He eventually began domestic violence
counseling, and at the time of the severance hearing Father had completed
two months of an approximately six-month program. 3 As the superior court
noted, parents must “voice their concerns about services to the juvenile
court in a timely manner.” Shawanee S. v. ADES, 234 Ariz. 174, 178, ¶ 16
(App. 2014). Although Father is not contesting the adequacy of services on
appeal, Father could have informed the court about his trouble enrolling in
domestic violence counseling at hearings in March or April 2017.
¶13 This court considers circumstances at the time of the
severance trial in determining whether the circumstances that led to the
child’s removal have been cured. Marina P., 214 Ariz. at 330, ¶ 22. A parent
“who make[s] appreciable, good faith efforts to comply with remedial
3 Father also references his completion of a “Parents for Parents
HOPE” class in May 2017 and his participation in a substance abuse
awareness and maintenance class to support his argument. Father did
complete the parenting class in May 2017. At the time of the severance trial,
Father had only completed “three, maybe four weeks” out of the 12-week
substance abuse program.
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JOSHUA H. v. DCS, et al.
Decision of the Court
programs . . . will not be found to have substantially neglected to remedy
the circumstances that caused out-of-home placement.” Maricopa County
Juv. Action No. JS-501568, 177 Ariz. 571, 576 (App. 1994). However, if a
parent “makes only sporadic, aborted attempts to remedy” the
circumstances, the superior court may terminate the parent’s rights. Id.
¶14 In its order terminating Father’s parental rights, the superior
court listed the numerous services Father was referred to, including:
“urinalysis testing, hair follicle testing, substance abuse assessment,
substance abuse treatment, parent aide, supervised visitation, family
reunification team and self-referral for individual counseling and self-
referral for domestic violence counseling.” The court then analyzed Father’s
participation in each service, noting: (1) Father failed to complete a hair
follicle test; (2) Father did not take a urinalysis test until September 2016,
and missed tests in May and June 2017; (3) the family reunification team
was cancelled after the December 2016 incident; (4) the parent-aide referral
was closed out unsuccessfully for Father’s failure to follow through; (5)
Father left Arizona and did not participate in services for over a month; and
(6) “[o]nce he returned, he did not seek domestic violence counseling or
notify [DCS] or the Court . . . that he was having any difficulty in obtaining
[the counseling] as he now claims.”
¶15 Most importantly, the superior court expressed concern about
Father’s continued relationship with Mother. The court informed Father
multiple times he needed to separate himself from Mother, which Father
acknowledged, but at the severance trial the court told Father it had
“trouble with the fact that [he] could never disentangle [himself] from
Mother.” Father first testified he was not in a relationship with Mother and
had not seen her since December 2016. However, in April 2017 Mother
listed Father’s address as her own, Mother reported to DCS and the
Children’s placement “that she and Father are together and intend to
reconcile as soon as he gets the children home,” and Father later testified he
saw Mother the weekend before the severance trial because Mother gave
birth to their fourth child. 4 On the second day of the severance trial, the
superior court learned that Mother and the newborn baby were missing,
and Father claimed to not know their whereabouts. In its order terminating
Father’s parental rights, the court stated it did not “find it credible that
4 The superior court adjudicated the newborn baby, E.H., dependent
on October 26, 2017.
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JOSHUA H. v. DCS, et al.
Decision of the Court
Father has ended contact with Mother or that he now believes she is a
danger to the children.”
¶16 The superior court stated it did not “find much of Father’s
testimony credible. He admitted that he intentionally lied to the Court and
[DCS] regarding issues that were addressed at previous Court hearings.
Additionally, Father changed his testimony from day one to day two of the
severance trial.” The superior court “is in the best position to weigh the
evidence, observe the parties, judge the credibility of witnesses, and make
appropriate findings.” Jesus M. v. ADES, 203 Ariz. 278, 280, ¶ 4 (App. 2002).
This court does not reweigh the evidence on appeal and only looks to
“determine if there is evidence to sustain the court’s ruling.” Mary Lou C.,
207 Ariz. at 48, ¶ 8.
¶17 The circumstances that led to the Children being placed in
out-of-home care included Father’s substance abuse, failure to protect the
Children from Mother’s substance abuse, and failure to provide a safe and
stable living environment. We recognize the efforts Father has made by
participating in services. However, at the time of the hearing, the evidence
demonstrated that Father had completed just one-third of the domestic
abuse counseling and substance abuse class he enrolled in. While he
testified to reasons for not enrolling in programs immediately after being
ordered to participate in services, the superior court questioned Father’s
credibility as a witness. Questions also arose concerning Father’s living
situation. As the superior court stated, “[a]t the time of trial, Father was
living in Phoenix with his sister but claimed to still be residing at his
residence in Pinal County on weekends. He was unable to explain why a
recent letter sent by [DCS] to his address in Pinal County was returned as
undeliverable.” Further, as discussed above, the superior court repeatedly
expressed concern about Father's continued relationship with Mother, who
failed to consistently participate in services offered to her, was taken into
custody twice during the pendency of this case, and gave birth to a baby
who tested positive for methadone and opiates only days before the
severance hearing. Accordingly, we find the superior court did not abuse
its discretion by finding Father substantially neglected or willfully refused
to remedy the circumstances that caused the Children to be in an out-of-
home placement.
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JOSHUA H. v. DCS, et al.
Decision of the Court
CONCLUSION
¶18 For the foregoing reasons, we affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
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