Nicholas T. v. Dcs, K.N. ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
NICHOLAS T., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, K.N., Appellees.
No. 1 CA-JV 17-0174
FILED 12-19-2017
Appeal from the Superior Court in Maricopa County
No. JD18102
The Honorable William R. Wingard, Judge Pro Tempore
AFFIRMED
COUNSEL
David W. Bell Attorney at Law, Mesa
By David W. Bell
Counsel for Appellant
Arizona Attorney General’s Office, Tucson
By Michelle R. Nimmo
Counsel for Appellee Department of Child Safety
NICHOLAS T. v. DCS, K.N.
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 Nicholas T. (“Father”) appeals the superior court’s
termination of his parental rights to K.N. For the following reasons, we
affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 Father and Guadalupe N. (“Mother”) are the biological
parents of K.N., born in July 2008. 1 In October 2015, the Arizona
Department of Child Safety (“DCS”) took temporary physical custody of
K.N. after reports that Father had abandoned the child, and Mother was
neglecting the child by exposing him to domestic violence in the home. DCS
initiated dependency proceedings regarding both parents, alleging K.N.
was dependent concerning Father due to abandonment and failure to
provide for the child’s basic needs. The superior court adjudicated K.N.
dependent in April 2016, and in October 2016 DCS filed a motion to
terminate the parent-child relationship between K.N. and both parents.
Regarding Father, DCS alleged K.N. had been in an out-of-home placement
for a cumulative total period of (1) nine months or longer and Father had
substantially neglected or willfully refused to remedy the circumstances
that caused the child to be in an out-of-home placement; and (2) 15 months
or longer, and Father failed to remedy the circumstances that caused the
child to be in an out-of-home placement. See Ariz. Rev. Stat. (“A.R.S.”) § 8-
533(B)(8)(a), (c).
¶3 After a two-day severance hearing in February and March
2017, the superior court issued an order in March 2017 terminating Father’s
parental rights on both grounds alleged. The court found the child had been
in an out-of-home placement for more than 15 months and that Father had
substantially neglected or willfully refused to remedy the circumstances
that caused the child to be in an out-of-home placement. Specifically, the
1 Mother is not a party to this appeal.
2
NICHOLAS T. v. DCS, K.N.
Decision of the Court
court relied on Father’s inability to make himself available to parent the
child or to provide a stable home environment, and concluded that he
would be incapable of exercising proper and effective parental care and
control in the near future. The court also found that severance was in the
best interests of the child. 2 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).
DISCUSSION
¶4 A parent-child relationship may be terminated when a court
finds at least one statutory ground for severance and determines that
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, adopting its findings of fact unless
clearly erroneous. Id. A court’s disposition will be upheld unless there is no
reasonable evidence to sustain it. Id. We do not reweigh the evidence on
appeal. Jesus M. v. ADES, 203 Ariz. 278, 282, ¶ 12 (App. 2002).
¶5 Father argues the superior court erred by finding he had
“substantially neglected or willfully refused to remedy the circumstances”
causing the child to remain in an out-of-home placement for more than nine
months, and concluding there was a substantial likelihood that he would
be unable to provide proper and effective parental care and control in the
near future. Reasonable evidence supports these findings.
¶6 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 the
child to be in an out-of-home placement.
The court considers the circumstances at the time of the severance trial in
determining whether the conditions resulting in a child’s removal have
been cured. Marina P. v. ADES, 214 Ariz. 326, 330, ¶ 22 (App. 2007).
¶7 The superior court found Father substantially neglected to
remedy the circumstances that caused the child to be in an out-of-home
2 Father does not challenge the superior court’s best interests finding
on appeal. Therefore, we do not address that finding.
3
NICHOLAS T. v. DCS, K.N.
Decision of the Court
placement because he was still unable to provide basic needs for the child.
Father was living in Utah at the time of the hearing, and still had not
completed an Interstate Compact on the Placement of Children (“ICPC”)
application despite the efforts of DCS to initiate one. Father testified at the
hearing that he had recently left a residential treatment facility, against the
advice of the professionals there. At the facility, he had been receiving
treatment for his addiction to cocaine. Father also admitted that he had
previously left the same residential treatment facility, and relapsed twice.
¶8 Father contends the superior court should have focused on
his “efforts” to remedy the circumstances, rather than his unsuccessful
results. See Marina P., 214 Ariz. at 329, ¶ 20 (the test under A.R.S.
§ 8-533(B)(8)(a) “focuses on the level of the parent’s effort to cure the
circumstances rather than the parent’s success in actually doing so”). In
support, Father points out his accomplished sobriety, despite several
relapses; his preparedness to return to Arizona because he was no longer
on probation; his occasional phone contact with K.N.; and his other
completed services that were offered by DCS. 3 Despite this evidence, the
record supports the superior court’s finding that Father’s effort was limited,
and therefore he substantially neglected to remedy the specific
circumstances causing the out-of-home placement.
¶9 While we applaud Father’s sobriety at the time of the hearing,
the court identified Father’s inability to provide basic needs for the child,
including a stable home, which led to K.N. being placed in out-of-home
care. At the time of the hearing, the evidence showed Father was living with
an ex-girlfriend whom he had previously been convicted of assaulting.
While Father claims in his opening brief that he was prepared to move back
to Arizona to parent K.N., there is no evidence in the record that he had
made any effort to do so at the time of the hearing. In fact, despite DCS’s
efforts, Father had failed to complete the ICPC application that would have
allowed K.N. to return to Father in Utah, failed to seek enforcement of his
allotted parenting time under a previous superior court order, and had only
physically visited with K.N. twice since his incarceration in February 2013. 4
Finally, while Father did complete several services offered by DCS as part
of the reunification efforts, the evidence in the record at the time of the
3 Father participated in therapy including a focus on domestic
violence, dialectical behavior, family skills, and cognitive behavior.
4 One of the two visits he testified about was just before the severance
hearing, when he returned to Arizona in February 2017.
4
NICHOLAS T. v. DCS, K.N.
Decision of the Court
hearing showed that he had not made any efforts to provide a stable home
for, or effectively prepare to parent K.N. in any meaningful way. See Marina
P., 214 Ariz. at 329, ¶ 20 (“[T]he moving party must establish that the parent
has ‘substantially neglected or willfully refused’ to cure the circumstances
that had caused the child to remain in a court-supervised placement out of the
parent’s care.”) (emphasis added). Accordingly, we find the superior court
did not abuse its discretion by finding Father substantially neglected to
remedy the circumstances that caused the child to be in an out-of-home
placement. 5
CONCLUSION
¶10 For the foregoing reasons, we affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
5 When we have found at least one of the grounds for severance is
proven by clear and convincing evidence, we do not need to address claims
raised regarding other grounds found by the superior court. Jesus M., 203
Ariz. at 280, ¶ 3.
5