Ramiro A. v. Dcs, J.W. ( 2019 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
RAMIRO A.,
Appellant,
v.
DEPARTMENT OF CHILD SAFETY, J.W.,
Appellees.
No. 1 CA-JV 18-0342
FILED 3-7-2019
Appeal from the Superior Court in Maricopa County
No. JD32331
The Honorable Lisa Daniel Flores, Judge
AFFIRMED
COUNSEL
David W. Bell, Attorney at Law, Higley
By David W. Bell
Counsel for Appellant
Arizona Attorney General's Office, Tucson
By Michelle R. Nimmo
Counsel for Appellee DCS
RAMIRO A. v. DCS, J.W.
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Diane M. Johnsen delivered the decision of the Court, in
which Judge Michael J. Brown and Judge Jennifer M. Perkins joined.
J O H N S E N, Judge:
¶1 Ramiro A. ("Father") appeals the superior court's order
severing his parental rights to his son, who was born in 2015.1 Because
sufficient evidence supports the order, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 Father is a Mexican national living in Agua Prieta, Mexico, a
town opposite Douglas on the Arizona-Mexico border. At one time, Father
lived in Arizona, but he was deported and now cannot legally enter the
United States.
¶3 The child was born in Tucson and is not a Mexican citizen. He
was born with a heart condition, is developmentally delayed, has a sensory
disorder that limits his ability to travel for longer than 45 minutes at a time
and has difficulty eating because of a congenital disorder of his esophagus.
He sees nine medical specialists and has some 12-15 medical appointments
a month.
¶4 The Department of Child Safety ("DCS") took custody of the
child in March 2016 after medical personnel reported his mother had failed
to return him for follow-up care. Once in the care of the State, the infant
was immediately hospitalized for congestion and related symptoms. DCS
then filed a dependency petition alleging Father and the mother had
neglected the child. The court eventually found the child was dependent
as to his mother and set the case plan for reunification. Meanwhile, DCS
could not locate Father and finally served him by publication in December
2016. Father first appeared at a hearing in the dependency in April 2017.
During that hearing, DCS stated that Sistema para el Desarrollo Integral de
la Familia ("DIF"), a Mexican government agency equivalent to DCS, could
provide Father some reunification services in Mexico.
1 The court's order also severed the rights of the child's mother, but
her rights are not at issue in this appeal.
2
RAMIRO A. v. DCS, J.W.
Decision of the Court
¶5 In May 2017, Father began participating in services provided
by DIF. According to documentation offered at trial, he participated in
parenting classes that included training on "care and stimulation for
children with developmental delays." Father also completed both a
psychological evaluation and a home study. The psychological evaluation
found Father competent to have custody of his child, and the home study
concluded Father's residence in Mexico was suitable for reunification. DCS,
however, faulted both reports for not evaluating Father's understanding of
nor his ability to care for the child's medical needs.
¶6 Meanwhile, the superior court changed the case plan to
severance and adoption in July 2017. DCS then moved to sever Father's
parental rights based on 15 months' out-of-home placement under Arizona
Revised Statutes ("A.R.S.") section 8-533(B)(8)(c) (2019).2
¶7 On July 2, 2018, DCS reported that DIF had provided a
supplemental report that addressed DCS's concern about the previous
reports. The new report concluded again that Father was competent to
have custody of his son, but stated that 24-hour nursing care would be
"necessary" for the child. The report also stated Father lives five hours from
the nearest city with medical specialists that the child needs and that
Father's insurance does not cover the child because the child is not a
Mexican citizen.
¶8 The superior court held the severance hearing over three days
in June and July 2018. Father, the child's mother, a DCS case manager, a
doctor and an occupational therapist all testified. After hearing the
evidence, the court severed the rights of both parents. As an initial matter,
the court found the child has "special medical needs." The court then found
DCS made diligent efforts to provide reunification services through DIF,
but also concluded the services Father received were insufficient, given the
child's medical needs. The court also found it was substantially likely
Father could not properly parent the child in the near future because Father
lives too far from the necessary specialists and his insurance does not cover
the child.
¶9 Father timely appealed. We have jurisdiction pursuant to
Article 6, Section 9, of the Arizona Constitution, and A.R.S. §§ 8-235(A)
(2019), 12-120.21(A)(1) (2019) and -2101(A)(1) (2019).
2 Absent material revision after the relevant date, we cite the current
version of a statute or rule.
3
RAMIRO A. v. DCS, J.W.
Decision of the Court
DISCUSSION
¶10 The right to custody of one's child is fundamental but not
absolute. Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, 248, ¶¶ 11-12
(2000). When DCS seeks termination of a parent-child relationship, it must
prove, by clear and convincing evidence, the existence of a statutory ground
under A.R.S. § 8-533(B), Michael J., 196 Ariz. at 249, ¶ 12, and, by a
preponderance of the evidence, that termination is in the best interests of
the child, Kent K. v. Bobby M., 210 Ariz. 279, 288, ¶ 41 (2005). Father does
not contest the superior court's best-interests findings.
¶11 Under § 8-533(B)(8)(c), DCS must show that (1) the child has
been in an out-of-home placement under its supervision for at least 15
months; (2) DCS has made "a diligent effort to provide appropriate
reunification services"; (3) "the parent has been unable to remedy the
circumstances that cause the child to be in an out-of-home placement"; and
(4) "there is a substantial likelihood that the parent will not be capable of
exercising proper and effective parental care and control in the near future."
¶12 The superior court is the trier of fact in a termination
proceeding. Jordan C. v. Ariz. Dep't of Econ. Sec., 223 Ariz. 86, 93, ¶ 18 (App.
2009). We view the evidence and reasonable inferences drawn from the
evidence in the light most favorable to sustaining the court's decision. Id.
We will not reweigh the evidence and will not reverse unless no reasonable
evidence supports the court's factual findings. Id.
¶13 Father argues the superior court erred in finding that DCS
made a diligent effort to provide appropriate reunification services. To
satisfy DCS's obligation to provide reunification services under § 8-
533(B)(8), DCS must prove it "made a reasonable effort to preserve the
family." Mary Ellen C. v. Ariz. Dep't of Econ. Sec., 193 Ariz. 185, 192, ¶ 33
(App. 1999). This requires DCS to "undertake measures with a reasonable
prospect of success" and "provide a parent with the time and opportunity
to participate in programs designed to improve the parent's ability to care
for the child." Id. at 192, ¶¶ 34, 37. DCS need not provide "every
conceivable service." Id. at 192, ¶ 37 (quoting Maricopa County Juv. Action
No. JS-501904, 180 Ariz. 348, 353 (App. 1994)).
¶14 Father argues DCS failed to meet its obligation in three ways.
First, Father points to the superior court's finding that the services Father
received were "unrelated to caring for a child with significant medical
needs," and argues that finding shows DCS failed to undertake appropriate
reunification measures. We disagree. Because Father lives in Mexico, DCS
4
RAMIRO A. v. DCS, J.W.
Decision of the Court
could not directly provide him with services, but could only ask DIF to
provide services to him. Through DIF, Father received a home study, a
psychological evaluation and parenting classes. Given that DCS could not
control the specific services provided to Father, the superior court did not
err by finding DCS did what it could under the circumstances.
¶15 Second, Father argues that DCS should have helped him
secure Mexican citizenship for his child so that the child could qualify
under Father's insurance policy. But Father presumably was better situated
than DCS to know the terms of his own insurance policy. According to the
record, DCS became aware of the citizenship issue only after the severance
trial began.
¶16 Third, Father argues DCS never enabled him to be present
telephonically for his child's medical appointments so that he could learn
about his child's conditions. But the DCS case manager testified that the
child's medical providers had declined to allow Father to be present by
telephone because the need for a translator would unduly lengthen the
appointments.
¶17 Father also argues the superior court erred by finding that it
was unlikely he would be able to provide proper parental care for the child
in the near future. Sufficient evidence supports the court's finding. Most
notably, Father lives a five-hour drive from the nearest medical facility that
could provide for the child's medical needs, and, as noted, the child could
travel by car only for 45 minutes at a time. Moreover, the court heard
evidence that DIF recommended 24-hour nursing care for the child, and at
the time of severance, Father's insurance would not cover his child's
medical needs.
CONCLUSION
¶18 For the foregoing reasons, we affirm the superior court's order
severing Father's parental rights.
AMY M. WOOD • Clerk of the Court
FILED: AA
5