Floyd R. v. Dcs, S.R. ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
FLOYD R., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, S.R., Appellees.
No. 1 CA-JV 16-0357
FILED 3-28-2017
Appeal from the Superior Court in Maricopa County
No. JD528524
The Honorable Janice K. Crawford, Judge
AFFIRMED
COUNSEL
Gates Law Firm, LLC, Buckeye
By S. Marie Gates
Counsel for Appellant
Arizona Attorney General’s Office, Tucson
By Daniel R. Huff
Counsel for Appellee Department of Child Safety
FLOYD R. v. DCS, S.R.
Decision of the Court
MEMORANDUM DECISION
Judge Patricia A. Orozco delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge Maurice Portley1 joined.
O R O Z C O, Judge:
¶1 Floyd R. (Father) appeals the juvenile court’s order
terminating his parental rights to his daughter, S.R. (the child). For the
following reasons, we affirm.
BACKGROUND
¶2 Father and Sharon S. (Mother) are the parents of the child,
born in 2006. In February 2015, the Department of Child Safety (DCS) filed
a dependency petition alleging Father was unable to parent due to parental
domestic violence. The petition alleged Father had tested positive for
methamphetamine and was unable to parent due to substance abuse. The
petition further asserted Father was currently homeless and had neglected
the child’s medical and educational needs. Following a hearing in May
2015, the court found the child dependent as to Father.
¶3 On February 23, 2016, DCS filed a motion to terminate
Father’s parental rights alleging, as amended, the grounds of chronic
substance abuse under Arizona Revised Statutes (A.R.S.) section 8-533.B.3,2
as well as nine- and fifteen-months out-of-home placement under § 8-
533.B.8.a and c.
¶4 The juvenile court held a contested severance hearing on
August 9, 2016. After taking the matter under advisement, on August 25,
2016, the court issued its findings and ruling terminating Father’s parental
1 The Honorable Patricia A. Orozco and the Honorable Maurice
Portley, Retired Judges of the Court of Appeals, Division One have been
authorized to sit in this matter pursuant to Article VI, Section 3 of the
Arizona Constitution.
2 Absent material change since the date of relevant events, we cite to
the current version of statutes.
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FLOYD R. v. DCS, S.R.
Decision of the Court
rights to the child on all grounds alleged. Father timely appealed and we
have jurisdiction under A.R.S. §§ 8-235.A, 12-120.21.A.1, and 12-2101.A.1.
DISCUSSION3
¶5 The juvenile court may terminate a parent’s rights if it finds
one of the statutory grounds by clear and convincing evidence, and the
termination is in the child’s best interests. Kent K. v. Bobby M., 210 Ariz. 279,
281–82, 288, ¶¶ 7, 41 (2005) (interpreting A.R.S. § 8–533.B). We review an
order terminating parental rights for an abuse of discretion and will affirm
the order if it is supported by sufficient evidence in the record. Calvin B. v.
Brittany B., 232 Ariz. 292, 296, ¶ 17 (App. 2013). We defer to the juvenile
court’s determinations on conflicts in the evidence, as it “is in the best
position to weigh the evidence, observe the parties, judge the credibility of
witnesses, and make appropriate findings.” Jesus M. v. Ariz. Dep’t of Econ.
Sec., 203 Ariz. 278, 280, ¶ 4 (App. 2002).
3 Father’s opening brief is deficient. The two-page cursory argument
section contains no citations to legal authority and only a few references to
the record. See ARCAP 13(a)(7)(A) (requiring “citations of legal authorities
and appropriate references to the portions of the record on which the
appellant relies”); Ariz. R.P. Juv. Ct. 106(A) (applying ARCAP 13 to juvenile
appeals). Rule 13(a)(7)(A) requires that the argument section must include
“contentions concerning each issue presented for review, with supporting
reasons for each contention, and with citations of legal authorities . . . on which
the appellant relies.” (Emphasis added). Father does not include citations
to legal authority with his substantive arguments. Although we exercise
our discretion to address the issues raised in this case because of the
significant liberty interests involved, we caution counsel that failure to
comply with these Rules can result in dismissal of an appeal. See Ritchie v.
Krasner, 221 Ariz. 288, 305, ¶ 62 (App. 2009) (holding the failure to comply
with ARCAP 13 can constitute waiver of that claim).
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Decision of the Court
I. Statutory Grounds4
¶6 Father argues DCS failed to prove Father had an “ongoing
substance abuse problem and that he is unable to appropriately parent.”
Father also asserts DCS failed to provide him with appropriate services. To
support a termination on the ground of chronic substance abuse, there must
be evidence in the record that the parent is unable to discharge his parental
responsibilities “because of . . . a history of chronic abuse of dangerous
drugs, controlled substances or alcohol.” A.R.S. § 8-533.B.3. There must
also be “reasonable grounds to believe that the condition will continue for
a prolonged indeterminate period.” Id. Additionally, the juvenile court
must also have found that DCS “made reasonable efforts to reunify the
family or that such efforts would have been futile.” Jennifer G. v. Ariz. Dep’t
of Econ. Sec., 211 Ariz. 450, 453, ¶ 12 (App. 2005). Because we find sufficient
evidence in the record supports termination based on the ground of chronic
substance abuse, we need not address the other grounds alleged. See
Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 251, ¶ 27 (2000) (holding
if reasonable evidence supports termination on any one statutory ground,
the appellate court need not consider challenges pertaining to other
grounds).
¶7 At the severance hearing, the DCS case manager testified that
at the outset of this case DCS offered Father urinalysis testing, parent aid
services, transportation, and a psychological consultation and evaluation.
The evidence also shows DCS gave Father two referrals for substance abuse
treatment at TERROS, one in March 2015 and the other in June 2015, both
of which were closed due to nonparticipation. With regard to Father’s drug
testing, the DCS reports in evidence indicate that between April 2015 and
4 Father asserts DCS failed to establish his paternity of the child and
that “this mishap is significant and warrants a reversal of the court’s
decision.” Father cites no authority to support this argument. See ARCAP
13(a)(7) (stating appellant’s brief shall include party’s contentions, reasons
therefor, and necessary supporting citations); see also Ariz. R.P. Juv. Ct.
106(A) (applying Rule 13 to juvenile appeals). Further, Father does not cite,
and we do not find, that Father challenged his paternity of the child at any
time after the child was removed from the family home, at the dependency
or as a defense to the termination action, before the superior court. See State
v. Bolton, 182 Ariz. 290, 297 (1995) (holding appeals court will not consider
arguments not raised below unless it is a matter of fundamental error). We
therefore reject Father’s argument regarding paternity.
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FLOYD R. v. DCS, S.R.
Decision of the Court
June 2015, Father missed forty-three calls and seven required tests. The
report further states that Father did not call in at all for testing between June
2015 and January 2016.
¶8 In December 2015, the child moved with her relative
placement to Colorado. At some point after that, Father relocated to
Colorado and, in March 2016, filed a motion requesting information
regarding the child’s whereabouts in Colorado and stating that he “would
like to move to the city/area” to be near her. Father argues the services
DCS provided there were inadequate because the testing sites were too far
from his home, DCS did not provide him transportation, and because the
first time he arrived to test in Colorado he was charged a fee, which he
could not afford. Yet, the record shows that even after relocating to
Colorado, Father failed to substantially comply with services quite apart
from the issues he now complains.
¶9 DCS is required to provide a parent “the time and
opportunity to participate in programs designed to help [him] become an
effective parent.” Maricopa Cnty. Juv. Action No. JS–501904, 180 Ariz. 348,
353 (App. 1994). However, DCS is not required to provide every
conceivable service, and a parent’s failure or refusal to participate in the
services offered or recommended by DCS does not foreclose termination of
the parent’s rights. Id. Additionally, DCS need not undertake futile
rehabilitative measures, but only those that offer a reasonable possibility of
success. Mary Ellen C. v. Ariz. Dep’t of Econ. Sec., 193 Ariz. 185, 186-87, ¶ 1
(App. 1999).
¶10 The case manager testified that she arranged for Father to be
able to complete drug testing in Colorado and offered him another referral
for substance abuse services, but he did not take advantage of the
opportunity. There is also evidence showing Father was told in June 2016,
after he moved from Denver to a smaller town in Colorado, that there were
no services available in his town and that he would have to travel to Denver
to participate in services. The case manager testified that she changed the
assigned testing site to the closest possible location to Father and that she
corrected the issue regarding the fee as soon as she was made aware of it.
She also testified that Father did not call or request transportation assistance
to drug test in Colorado. Further, Father only successfully tested once while
in Colorado, which was positive for alcohol.
¶11 The evidence shows that Father took one drug test at the
beginning of this case in January 2015, which was positive for
methamphetamine, and one test in July 2016, which was positive for
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FLOYD R. v. DCS, S.R.
Decision of the Court
alcohol. These were the only tests Father completed throughout the more
than fifteen-month duration of this case. Father also failed to engage in any
substance abuse treatment. The record supports the court’s findings that
DCS made reasonable efforts to reunify Father with the child, but that
Father failed to participate in the offered services.
¶12 There is also evidence in the record supporting the court’s
finding that Father had a history of chronic substance abuse. The DCS
report showed Father had a previous arrest for driving while intoxicated,
admitted to drinking alcohol and tested positive for alcohol. Also, although
Father denied using methamphetamine, he tested positive in January 2015
and was living with Mother, who admitted to using methamphetamine just
days before the child was removed.
¶13 Evidence also supports the court’s conclusion that Father’s
substance abuse affects his ability to parent, as it coincides with a history of
homelessness, domestic violence, and a failure to meet the child’s medical
and educational needs. Evidence shows Father was homeless in Arizona
after being evicted from Mother’s home and was homeless in Colorado after
he moved there following the child’s move to Colorado. Further, the DCS
reports detail a history of daily domestic violence between Mother and
Father, including one instance where Father bloodied Mother’s nose. When
the child came into care, she had significant untreated dental issues and had
been suspended from school for not having updated immunization records.
Given these facts, coupled with Father’s refusal to participate in substance
abuse treatment or demonstrate sobriety, sufficient evidence supports the
juvenile court’s finding that Father’s substance abuse will continue for a
prolonged and indeterminate period.
II. Best Interests
¶14 Father also challenges the court’s finding that termination of
his parental rights is in the child’s best interest. “To support a finding that
termination is in the child’s best interests, [DCS] must prove that the child
will affirmatively benefit from the termination.” Mary Lou C. v. Ariz. Dep’t
of Econ. Sec., 207 Ariz. 43, 50, ¶ 19 (App. 2004). This means that “a
determination of the child’s best interest[s] must include a finding as to how
the child would benefit from a severance or be harmed by the continuation
of the relationship.” Maricopa Cnty. Juv. Action No. JS–500274, 167 Ariz. 1, 5
(1990). The best interests requirement may be met if, for example, DCS
proves that a current adoptive plan exists for the child, or even that the child
is adoptable. Id. at 6.
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FLOYD R. v. DCS, S.R.
Decision of the Court
¶15 At the termination hearing, the DCS case manager testified
that the child was placed with a relative who was willing to adopt her and
her half-sibling. She further testified that the placement was meeting all of
the child’s needs and that the child would benefit from the termination
because it would allow her to have “a permanent, forever loving home.”
Therefore, we find sufficient evidence supports the court’s finding that
termination of Father’s parental rights is in the child’s best interests. See
Jennifer S. v. Dep’t of Child Safety, 240 Ariz. 282, 287, ¶ 17 (App. 2016) (stating
“a child’s interest in permanency must prevail over a parent’s uncertain
battle with drugs”).
CONCLUSION
¶16 For the foregoing reasons, we affirm the juvenile court’s order
terminating Father’s parental rights to the child.
AMY M. WOOD • Clerk of the Court
FILED: AA
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