Michael C. v. Dcs, X.B. ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
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
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