Cesar S. v. Dcs ( 2018 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
CESAR S., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, C.S., R.S., Appellees.
No. 1 CA-JV 18-0028
FILED 7-10-2018
Appeal from the Superior Court in Maricopa County
No. JD32132
The Honorable Jeanne M. Garcia, Judge
AFFIRMED
COUNSEL
Vierling Law Offices, Phoenix
By Thomas A. Vierling
Counsel for Appellant
Arizona Attorney General’s Office, Tucson
By Dawn Rachelle Williams
Counsel for Appellee Department of Child Safety
CESAR S. v. DCS, et al.
Decision of the Court
MEMORANDUM DECISION
Judge David D. Weinzweig delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Paul J. McMurdie joined.
W E I N Z W E I G, Judge:
¶1 Cesar S. (“Father”) appeals the superior court’s order
terminating his parental rights to C.S. and R.S. (“the Children”). We affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Father and Extacy T. (“Mother”) 1 are the biological parents of
C.S., born in September 2013, and R.S., born in December 2014. The
Children suffer from neurofibromatosis, a genetic disorder that requires
close and constant monitoring to avoid cancerous tumors, breathing
problems, heart issues, loss of vision and loss of hearing.
¶3 The Department of Child Safety (“DCS”) took temporary
custody of the Children in February 2016 due to Mother and Father’s
substance abuse, domestic violence and disregard of C.S. and R.S.’s medical
needs. DCS offered family preservation services to Father, but he declined.
DCS placed the Children in a foster home that met their developmental and
medical needs.
¶4 DCS petitioned the superior court to find the Children
dependent, alleging Father was unable to parent due to substance abuse,
domestic violence and neglect. Father denied the allegations in the
dependency petition but submitted the issue to the superior court, which
found the Children dependent in September 2016. The court adopted a plan
of family reunification and referred Father for substance abuse assessment
and treatment services, random urinalysis testing and parent-aide services.
¶5 Father grappled with substance abuse and law enforcement
after removal. In April 2017, he tested positive for an assortment of illegal
drugs, including methamphetamine, amphetamine, cocaine, morphine and
heroin. The following month, he was arrested for driving a stolen vehicle.
1 Mother’s parental rights were also terminated after she entered a
plea of no contest in the severance proceeding. She is not a party to this
appeal.
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CESAR S. v. DCS, et al.
Decision of the Court
And in June 2017, he was sentenced to 1.5 years in prison. Father completed
none of the services DCS offered before he was incarcerated and ultimately
failed to alleviate concerns regarding “sobriety, stable housing, and
attending [the Children’s] medical appointments.”
¶6 In May 2017, DCS moved to terminate Father’s parental rights
on grounds of his substance abuse, length of prison sentence and the
Children’s time in out-of-home placement. The superior court held a
contested three-day severance hearing and heard testimony from Father
and the DCS case manager. In January 2018, the court issued a detailed
minute entry terminating Father’s parental rights to R.S. and C.S. The court
found that DCS proved three statutory grounds and termination was in the
Children’s best interests.
¶7 Father timely appealed. We have jurisdiction pursuant to
Ariz. Const. art. VI, § 9, and A.R.S. § 8-235(A).
DISCUSSION
¶8 To terminate parental rights, a court must find clear and
convincing evidence of at least one statutory ground articulated in A.R.S.
§ 8-533(B) and that termination is in a child’s best interests by a
preponderance of the evidence. Michael J. v. Ariz. Dep’t of Econ. Sec., 196
Ariz. 246, 249, ¶ 12 (2000). We will affirm a severance order unless it is
clearly erroneous. Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 280, ¶ 4
(App. 2002). We accept the court’s findings of fact unless no reasonable
evidence supports them, id., and view the evidence in the light most
favorable to upholding the order. See Denise R. v. Ariz. Dep’t of Econ. Sec.,
221 Ariz. 92, 97, ¶ 20 (App. 2009).
¶9 Father does not challenge the superior court’s finding of three
statutory grounds for severance. Instead, he only argues that termination
of his parental rights was not in the Children’s best interests. The best-
interests prong requires the court to determine whether “the child would
benefit from a severance or be harmed by the continuation of the
relationship.” Mary Lou C. v. Ariz. Dep’t of Econ. Sec., 207 Ariz. 43, 50, ¶ 19
(App. 2004) (quotation omitted).
¶10 The record contains reasonable evidence to support the
superior court’s finding that severance was in the best interests of the
Children. To begin, the court found clear and convincing evidence of three
statutory grounds for termination, including substance abuse, length of
Father’s prison sentence and the Children’s time in out-of-home placement.
We have recognized that “[i]n most cases, the presence of a statutory
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CESAR S. v. DCS, et al.
Decision of the Court
ground will have a negative effect on the children.” Maricopa Cty. Juv.
Action No. JS-6831, 155 Ariz. 556, 559 (App. 1988).
¶11 And, severance made it possible for the Children to be
adopted. Dominique M. v. Dep’t of Child Safety, 240 Ariz. 96, 98, ¶ 10 (App.
2016) (severance “make[s] the Children eligible for adoption”). The court
found that “there is a plan for adoption and if the current case plan cannot
for any reason move forward, the [C]hildren are adoptable.” DCS had
identified two prospective kinship placements for the Children, including
the paternal aunt and maternal grandmother.
¶12 The court also found the Children’s current foster placement
had met their developmental and medical needs. Bennigno R. v. Ariz. Dep’t
of Econ. Sec., 233 Ariz. 345, 350, ¶ 23 (App. 2013) (best-interests analysis
considers “whether the current placement is meeting the child’s needs”).
The foster parents had not missed a single medical appointment for the
Children with “all of their numerous specialty doctors.” In this regard, the
specialized placement ensured that “more attention could be given to [the
Children].” In sum, there is reasonable evidence in the record to support
the superior court’s best-interests finding.
¶13 Father argues that severance was not in the Children’s best
interests because no adoptive placement had been identified, he shares the
same genetic disorder as the Children, his prison sentence was relatively
short and he maintained a close bond with the Children. We are not
persuaded. First, the superior court considered and rejected the same
evidence. We decline to reweigh that evidence. Dominique M., 240 Ariz. at
97-98, ¶¶ 6, 9.
¶14 Second, the best-interests analysis does not require DCS to
have an immediate adoption plan in place at the time of severance when
the child is “adoptable.” Mary Lou C., 207 Ariz. at 50, ¶ 19. Moreover, the
evidence indicated that “the Children’s needs were being met in their
current placements,” without regard to an “identified adoptive placement,”
which supports the best-interests finding. Dominique M., 240 Ariz. at 98, ¶
11.
¶15 Third, while Father also suffers from neurofibromatosis, he
has not demonstrated that the Children would receive better medical
treatment in his care. Just the opposite. He has neglected his own medical
condition, not visiting a doctor since he was eighteen years old. He likewise
failed to get treatment for his Children’s medical needs when he cared for
them, leading in part to their initial removal.
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CESAR S. v. DCS, et al.
Decision of the Court
¶16 And last, though a bond between parent and child is relevant
to the best-interests analysis, it is not dispositive. Bennigno R., 233 Ariz. at
351, ¶ 30 (severance affirmed despite evidence of parents’ bond with
children). The court received and considered evidence of Father’s bond
with the Children. Dominique M., 240 Ariz. at 98-99, ¶ 12. But the court also
considered evidence of Father’s drug use, neglect and criminal history.
CONCLUSION
¶17 We affirm the superior court’s order terminating Father’s
parental rights to the Children.
AMY M. WOOD • Clerk of the Court
FILED: AA
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