Michael C. v. Dcs, X.B. ( 2017 )


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  •                       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    UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
    MICHAEL C., Appellant,
    v.
    DEPARTMENT OF CHILD SAFETY, X.B., Appellees.
    No. 1 CA-JV 17-0246
    FILED 12-28-2017
    Appeal from the Superior Court in Maricopa County
    No. JD32496
    The Honorable Nicolas B. Hoskins, Judge Pro Tempore
    AFFIRMED
    COUNSEL
    Denise L. Carroll, Esq., Scottsdale
    By Denise L. Carroll
    Counsel for Appellant
    Arizona Attorney General’s Office, Phoenix
    By JoAnn Falgout
    Counsel for Appellee Department of Child Safety
    MICHAEL C. v. DCS, X.B.
    Decision of the Court
    MEMORANDUM DECISION
    Judge Peter B. Swann delivered the decision of the court, in which Presiding
    Judge Paul J. McMurdie and Judge Patricia A. Orozco1 joined.
    S W A N N, Judge:
    ¶1            Michael C. (“Father”) appeals the juvenile court’s order
    severing his parental rights to X.B. We affirm because reasonable evidence
    supports the order.
    FACTS AND PROCEDURAL HISTORY
    ¶2            Father and Theresa B. (“Mother”) are the biological parents of
    X.B., a male child born on April 12, 2016. Because X.B. was born substance-
    exposed, and Father was in jail at the time, the Department of Child Safety
    (“DCS”) took X.B. into care two days after he was born. Mother’s parental
    rights were severed in a separate proceeding.
    ¶3            DCS filed a dependency petition shortly after it took X.B. into
    care, alleging: (1) failure to protect X.B. from Mother’s substance abuse; (2)
    substance abuse; and (3) domestic violence. DCS offered Father services
    aimed at reunification, including drug testing through TASC, substance-
    abuse counseling through TERROS, supervised visitation, individualized
    counseling, parent-aide services contingent upon 30 days of demonstrated
    sobriety, a psychological evaluation, and transportation.
    ¶4            Father’s participation in supervised visits was inconsistent,
    and he missed most of his drug testing. DCS encouraged Father to stay in
    Arizona and made him aware that moving would make visits with X.B.
    more difficult, but he still moved out of the state without notifying DCS in
    late 2016. DCS then closed him out of visitation and TASC services.
    ¶5            In November 2016, DCS filed a motion to terminate Father’s
    rights on three different grounds — abandonment under A.R.S.
    § 8-533(B)(1), chronic substance abuse under A.R.S. § 8-533(B)(3), and six
    months’ out-of-home placement under A.R.S. § 8-533(B)(8)(b). Father
    1      The Honorable Patricia A. Orozco, Retired Judge of the Court of
    Appeals, Division One, has been authorized to sit in this matter pursuant
    to Article VI, Section 3 of the Arizona Constitution.
    2
    MICHAEL C. v. DCS, X.B.
    Decision of the Court
    returned to Arizona and DCS reopened visitation and TASC services in
    January 2017, but his participation was again inconsistent. He moved out
    of state again in February 2017, and in March, the court granted his request
    for services in Colorado, but he continued to move around the country and
    did not participate in any out-of-state services. Around that same time,
    Father was involved in a domestic dispute with Mother in Colorado.
    ¶6            Father finally returned to Phoenix in May 2017. At that point,
    he had sporadically participated in visitation and drug testing, and had not
    participated at all in the other services offered. Father was present for the
    termination hearing held on May 12, 2017. In its severance order, the court
    found that DCS had not met its burden of proof for termination based on
    abandonment or chronic substance abuse, but that it had met its burden for
    six months’ out-of-home placement and that termination was in X.B.’s best
    interests. The court severed Father’s parental rights to X.B., and he timely
    appeals.2
    DISCUSSION
    ¶7            To sever a parent-child relationship, the juvenile court must
    find by clear and convincing evidence that at least one of the grounds set
    forth in A.R.S. § 8-533(B) exists, and must find by a preponderance of the
    evidence that severance is in the child’s best interests. Kent K. v. Bobby M.,
    
    210 Ariz. 279
    , 288, ¶ 41 (2005); Michael J. v. Ariz. Dep’t of Econ. Sec., 
    196 Ariz. 246
    , 249, ¶ 12 (2000). We accept the court’s findings of fact unless they are
    not supported by any reasonable evidence, and we will affirm the severance
    order unless it is clearly erroneous. Jesus M. v. Ariz. Dep’t of Econ. Sec., 
    203 Ariz. 278
    , 280, ¶ 4 (App. 2002).
    ¶8            Father’s parental rights were severed under A.R.S.
    § 8-533(B)(8)(b). Under that statute, DCS is required to prove that X.B. was
    under three years old, had been in an out-of-home placement under court
    order for a cumulative period of at least six months, and that Father had
    substantially neglected or willfully refused to remedy the circumstances
    that caused X.B. to be in out-of-home placement despite DCS’s diligent
    efforts to provide appropriate reunification services.
    2      Mother is a member of the Tohono O’odham Nation, and X.B. is thus
    protected under the Indian Child Welfare Act of 1978 (“ICWA”), 25 U.S.C.
    §§ 1901–1963. Father only appeals the court’s findings and conclusions
    under A.R.S. § 8-533(B), and not its findings under ICWA.
    3
    MICHAEL C. v. DCS, X.B.
    Decision of the Court
    ¶9             Father contends that DCS did not prove that he substantially
    neglected or willfully refused to remedy the circumstances that caused
    X.B.’s out-of-home placement.3 We find substantial evidence to support the
    court’s decision. Regarding supervised visitation, DCS encouraged Father
    to stay in Arizona and made him aware that his constant moving would
    make visits difficult. DCS first set Father up with supervised visitation in
    May 2016, but because of his inconsistency, the service was closed three
    months later. Upon his return to Phoenix in early 2017, DCS again set up
    supervised visits, but his participation remained inconsistent — his last
    visit to X.B. was in February 2017.
    ¶10           Father has not remedied his issue with substance abuse.
    Father participated in only seven drug tests over the 13 months of the case.
    Though Father tested negative in those seven drug tests, he missed over 20
    other required testing. Then, days before the severance hearing, he tested
    positive for methamphetamine. He testified that the last result was an
    error, and that he has never abused methamphetamine, but the court could
    reasonably have found that his testimony lacked credibility.
    ¶11            Aside from the handful of drug testing and supervised visits,
    Father failed to participate in any reunification services. By his own
    admission, he never started the drug-abuse counseling program. Father
    never took advantage of the individualized counseling meant to address
    his issues with domestic abuse, which was especially relevant given his
    recent domestic abuse incident with Mother, and he did not complete a
    psychological evaluation. Accordingly, sufficient evidence supports the
    court’s conclusion that, “[a]t best, Father substantially neglected to
    participate in services” designed to remedy the issues that caused X.B. to be
    in an out-of-home placement.
    ¶12            Father also contends that DCS failed to prove that it made
    diligent efforts to reunite him with X.B. As discussed above, however, DCS
    offered Father services including TASC, TERROS, supervised visitation,
    individual counseling, a psychological evaluation, a referral for a parent
    aide, and transportation. Father argues that the services did not account for
    his constant moves from state to state for work. But DCS is not required to
    ensure that a parent participates in each service it offers. Christina G. v. Ariz.
    Dep’t of Econ. Sec., 
    227 Ariz. 231
    , 235, ¶ 15 (App. 2011). Here, when Father
    left Arizona without notice, DCS still made reasonable efforts to offer
    3       Father does not contest that X.B. is under three years old, that X.B.
    had been in out-of-home placement for at least six months, or that severance
    of his parental rights was in X.B.’s best interests.
    4
    MICHAEL C. v. DCS, X.B.
    Decision of the Court
    services in another state, but he failed to participate in those services. When
    he did return to Arizona, DCS resumed the services listed above, in which
    Father again substantially neglected to participate. Accordingly, the court’s
    conclusion was supported by sufficient evidence.
    ¶13            Father finally contends that DCS failed to give him an
    appropriate amount of time to participate in services. Because Father’s
    contention that the statutorily allotted period is not reasonable is an
    argument of law, we review it de novo. See Adrian E. v. Ariz. Dep’t of Econ.
    Sec., 
    215 Ariz. 96
    , 100, ¶ 9 (App. 2007). In a severance action, the state must
    balance the rights of the parent to retain rights to the child against the
    child’s need for a stable home within a reasonable time. See Maricopa Cty.
    Juv. Action No. JS-501568, 
    177 Ariz. 571
    , 577 (App. 1994). For children under
    three years old, the Legislature has determined that six months is a
    reasonable amount of time for a parent to remedy the circumstances that
    caused the child to be in out-of-home care. See A.R.S. § 8-533(B)(8)(b). Here,
    13 months had passed from the time X.B. was placed in out-of-home care to
    the date of the severance hearing. Father’s movement from state to state
    does not excuse his failure to participate in so many of the offered services
    over that 13 month period. Thus, the court did not err in finding that Father
    had a reasonable amount of time to remedy the issues listed in the
    dependency petition.
    CONCLUSION
    ¶14          For the reasons set forth above, we affirm the juvenile court’s
    order severing Father’s parental relationship with X.B.
    AMY M. WOOD • Clerk of the Court
    FILED:    JT
    5
    

Document Info

Docket Number: 1 CA-JV 17-0246

Filed Date: 12/28/2017

Precedential Status: Non-Precedential

Modified Date: 4/17/2021