Lester L. v. Dcs ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
LESTER L., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, L.L., L.L., Appellees.
No. 1 CA-JV 15-0103
FILED 8-11-2015
Appeal from the Superior Court in Mohave County
No. S8015JD201300045
The Honorable Richard Weiss, Judge
AFFIRMED
COUNSEL
Erika A. Arlington, Esq., PC, Flagstaff
By Erika A. Arlington
Counsel for Appellant
Arizona Attorney General's Office, Tucson
By Laura J. Huff
Counsel for Appellee Department of Child Safety
LESTER L. v. DCS, et al.
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Diane M. Johnsen delivered the decision of the Court, in
which Judge Margaret H. Downie and Judge Lawrence F. Winthrop joined.
J O H N S E N, Judge:
¶1 Lester L. ("Father") appeals the superior court's judgment
severing his parental rights to his son and daughter, born in 2000 and 2001,
respectively, on grounds of neglect, chronic drug abuse and 15 months'
time in care, pursuant to Arizona Revised Statutes ("A.R.S.") sections 8-
533(B)(2), (3) and (8)(c) (2015).1 On appeal, Father argues only that the
superior court erred by allowing the Department of Child Safety ("DCS") to
deny him visits with the children and that his trial counsel was ineffective
for failing to press that issue before the superior court. We affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 The children were taken from Father in July 2013 after he was
arrested and charged with domestic violence against his significant other.
In the course of the subsequent dependency, the children told investigators
that Father had physically abused them, and Father admitted he abused
drugs. In the months following the children's removal, Father was
incarcerated intermittently and subject to prosecutions in Arizona and
Nevada.
¶3 Father agreed to a case plan that required him to complete
parenting classes, domestic violence counseling and substance abuse
assessment with follow-up recommendations, and to submit to random
urinalyses for 30 days. Upon his release from incarceration, he was to have
supervised visitation at least once a week for two hours, and supervised
telephone contact with the children twice a week "at the discretion of
placement." After Father was released from jail in August 2013, however,
he missed about half of his scheduled visits. On December 23, 2014, DCS
moved to terminate Father's parental rights. At the subsequent trial in
March 2015, a DCS supervisor testified Father had failed to participate in
random drug testing, failed to complete a substance-abuse assessment and
1 Absent material revision after the relevant date, we cite a statute's
current version.
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LESTER L. v. DCS, et al.
Decision of the Court
had not enrolled in anger-management or domestic-violence classes. The
superior court granted the motion to terminate, finding by clear and
convincing evidence the statutory grounds of neglect (Father failed "to
provide an adequate home and financial means to meet the daily needs of
his children"), chronic abuse of dangerous drugs, and 15 months' time in
care. The court further found DCS had "made reasonable efforts to provide
[Father] with rehabilitative services" and "appropriate reunification
services," and also found, by a preponderance of the evidence, that
termination was in the best interests of the children.
¶4 We have jurisdiction of Father's timely appeal pursuant to
A.R.S. § 8-235(A) (2015).
DISCUSSION
¶5 The superior court may terminate a parent-child relationship
upon proof by clear and convincing evidence of at least one of the statutory
grounds set out in A.R.S. § 8-533(B). Michael J. v. Ariz. Dep't of Econ. Sec.,
196 Ariz. 246, 249, ¶ 12 (2000). Additionally, the court must find by a
preponderance of the evidence that termination is in the child's best
interests. Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 22 (2005). On appeal,
this court will accept the superior court's findings of fact unless no
reasonable evidence supports them. Jesus M. v. Ariz. Dep't of Econ. Sec., 203
Ariz. 278, 280, ¶ 4 (App. 2002).
¶6 Termination of a parent's rights on grounds of time in care or
substance abuse requires proof that DCS has made a diligent effort to
rehabilitate the parent and reunify the family. A.R.S. § 8-533(B)(8)(c) (time
in care); Jennifer G. v. Ariz. Dep't of Econ. Sec., 211 Ariz. 450, 453 n.3 (App.
2005) (substance abuse).2 Among such efforts may be the allowance and
facilitation of visits between a parent and child. See In re Maricopa County
Juv. Action No. JD-5312, 178 Ariz. 372, 375 (App. 1994) ("[v]isitation with the
child may be critical to the parent's ability" to show child should be returned
to his custody).
¶7 On appeal, Father argues DCS failed to make diligent or
reasonable efforts to provide him with appropriate reunification services
because it did not allow him visits with his children after April 2014. He
argues the superior court erred by allowing DCS to end his weekly
2 We need not address whether DCS has any legal obligation to
provide reunification services when it moves for termination of parental
rights based on neglect. See A.R.S. § 8-533(B)(2).
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LESTER L. v. DCS, et al.
Decision of the Court
telephone visits without sufficient evidence that the visits were
endangering the children. He further argues his trial counsel was
ineffective because counsel failed to press the visitation issue in the superior
court and to ask the court to make an appealable ruling on the issue.
¶8 After Father's son and daughter were taken into care, they
required therapeutic counseling to address their fear of Father arising from
his domestic violence and inability to control his temper. In spring 2014,
the children, then 14 and 13, told authorities they wanted no more visits
with Father. On May 7, 2014, Father filed a "Motion for Status Hearing
Regarding Termination of Visitation," arguing that his weekly telephone
visits had ceased and that it was "difficult, if not impossible" to achieve
reunification without visitation.
¶9 On June 6, DCS convened a Child Family Team meeting to
address visitation. According to a report submitted to the court that month,
the team agreed "to facilitate a telephonic visitation with Father in a
therapeutic environment with the children's therapist." It was thought that
"[t]his will provide the necessary support and safety to the children and
also allow them an opportunity to process the visit in a therapeutic setting."
The therapeutic telephone visit, however, did not go well. According to a
record submitted to the court, "the children were reported to be fearful and
their engagement and conversation was very limited." Further, a case
worker reported, "[t]he telephonic visit with the children did not prove to
be beneficial for the children due to their underlying fear of their father and
the trauma experienced prior to removal. The children, through their
Counsel and therapist[,] continue to refuse any further contact with Dad."
¶10 The single therapeutic telephonic visit that was the product of
the June 6 team meeting apparently was the children's last visit with Father.
After the next hearing in the case, held on July 2, the superior court issued
an order that stated, "[t]his is the time for Permanency Hearing and Status
re: Visitation." The record does not disclose, however, what, if anything,
occurred at the hearing concerning visitation. The court next took up the
issue of visitation at a hearing on August 20. According to the order the
court issued at the conclusion of the hearing, the children continued to say
they "wish to have no visitation," but Father "wants in home visits." The
court made no ruling concerning visitation, however.
¶11 The record in this case contains sufficient evidence to support
the superior court's implicit decision to decline to require DCS to provide
visits after the children said they no longer wanted to see or talk to Father
and after the failure of the June 2014 therapeutic visit. According to the
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LESTER L. v. DCS, et al.
Decision of the Court
DCS case manager, Father's son and daughter were afraid of Father because
of his drug habit and his anger issues. The record demonstrates grounds
for their concern. Shortly after the children were taken into care, Father was
jailed for 60 days in connection with allegations of domestic violence. The
son said Father once became angry and threw him into a table, and both
children expressed concern that if Father were allowed to visit with them
in person, he would run off with them. At trial, Father testified he
disciplined the children using "[o]ld school" means: "They got a lot of
whippings, right," sometimes leaving welts. He acknowledged under oath
that was enough to cause his children to fear him.
¶12 Under the circumstances, including the children's well-
founded fear of Father and their expressed desire not to see or talk to him,
the superior court was not required to order DCS to allow Father to visit
the children. See Mary Lou C. v. Ariz. Dep't of Econ. Sec., 207 Ariz. 43, 50, ¶
17 (App. 2004) ("[W]e will presume that the juvenile court made every
finding necessary to support the severance order if reasonable evidence
supports the order."); Mary Ellen C. v. Ariz. Dep't of Econ. Sec., 193 Ariz. 185,
192, ¶ 34 (App. 1999) (State not required to provide futile efforts at
reunification); JD-5312, 178 Ariz. at 375-77 (affirming order, entered after
hearing, denying visitation rights based on superior court's findings that
visits with parent were so disruptive that termination of visits was in
children's best interests). Further, Father does not dispute that DCS offered
him many other reunification services, most of which, as noted, he failed to
accept.
¶13 Nor do we accept Father's contention that his trial counsel
prejudiced his defense of the termination proceedings by failing to press
the superior court to allow visitation or to issue an appealable order on the
issue. Even if, as Father argues, his lawyer was ineffective or inadequate,
for the reasons stated, Father's defense was not prejudiced as a result. See
John M. v. Ariz. Dep't of Econ. Sec., 217 Ariz. 320, 325, ¶ 18 (App. 2007).
During the intermittent periods in the proceedings when he was not
incarcerated and was allowed visits, Father frequently missed the visits.
Because the record supported the denial of visitation and because Father
does not dispute that sufficient evidence supported the existence of
statutory grounds for termination, he cannot prove that, had his counsel
more vigorously pressed for visitation after April 2014, the outcome of the
termination proceedings "would have been different." See id.5
LESTER L. v. DCS, et al.
Decision of the Court
CONCLUSION
¶14 For the reasons stated above, the superior court's judgment
terminating Father's parental rights as to his son and daughter is affirmed.
:RT
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