Anthony D. v. Dcs, A.D. ( 2022 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
ANTHONY D., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, A.D.1, Appellees.
No. 1 CA-JV 22-0034
FILED 7-5-2022
Appeal from the Superior Court in Maricopa County
No. JD39291
The Honorable Christopher Whitten, Judge
AFFIRMED
COUNSEL
Maricopa County Public Advocate’s Office, Mesa
By Suzanne W. Sanchez
Counsel for Appellant
Arizona Attorney General’s Office, Tucson
By Jennifer R. Blum
Counsel for Appellee Department of Child Safety
1This caption is amended as reflected and shall be used on all further
documents filed in this appeal.
ANTHONY D. v. DCS, A.D.
Decision of the Court
MEMORANDUM DECISION
Judge D. Steven Williams delivered the decision of the court, in which
Presiding Judge Cynthia J. Bailey and Judge Peter B. Swann joined.
W I L L I A M S, Judge:
¶1 Anthony D. (“Father”) appeals the superior court’s order
terminating his parental rights. For the following reasons, we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 Father and Chelsea S. (“Mother”) 2 are the parents of A.D.
Father suffers from medical conditions that sometimes require
hospitalizations. Mother admitted to using methamphetamine and fentanyl
daily during her pregnancy. A.D. was born prematurely and hospitalized
for substance withdrawals. When A.D. stabilized, Father had not yet
established paternity, and neither parent could meet her basic needs. The
Arizona Department of Child Safety (“DCS”) took custody of the infant and
petitioned for a dependency. The superior court adjudicated A.D.
dependent after Father failed to appear for a pre-trial conference without
good cause.
¶3 DCS referred Father for substance-abuse testing and a
treatment assessment, Family Connections, and a parent-aide with
visitation. During the substance-abuse intake, Father denied any drug use,
so the provider did not recommend him for treatment. Soon afterwards,
Father submitted a hair follicle test that returned positive for
methamphetamine and amphetamine. He then admitted to using the drug
about five months prior.
¶4 On Father’s second referral for substance-abuse treatment,
the provider enrolled him in a program that met virtually and required
substance-abuse testing twice per week. Father reported he had “no
barriers” to attending the program. Nonetheless, Father’s referral closed
two months later because he did not maintain contact with the provider.
2 Mother’s parental rights were also terminated, but she is not a party to this
appeal.
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ANTHONY D. v. DCS, A.D.
Decision of the Court
¶5 Throughout the dependency, Father missed several drug tests
and tested positive once for opiates and once for barbiturates, though he
later testified that these positive tests resulted from medication
administered while he was in the hospital. Father’s parent-aide service
closed because he failed to maintain contact with the provider. Similarly,
Father failed to maintain contact with his Family Connections provider, and
that referral closed.
¶6 DCS then moved to terminate Father’s parental rights on the
grounds of substance-abuse and six months’ and nine months’ time in an
out-of-home placement. See A.R.S. § 8-533(B)(3), (B)(8)(a), (B)(8)(b). The
following month, Father called in only once to determine if he needed to
submit to substance-abuse testing. Additionally, DCS provided Father with
supervised visits after his parent-aide referral closed, but he missed almost
half of them. Father also did not establish stable housing. After a trial, the
superior court terminated Father’s parental rights on all grounds alleged,
and Father appealed.
¶7 We have jurisdiction under Article 6, Section 9, of the Arizona
Constitution, A.R.S. §§ 8-235(A), 12-120.21(A)(1), -2101(A)(1), and Arizona
Rule of Procedure for the Juvenile Court 103(A).
DISCUSSION
¶8 Father challenges the superior court’s determinations that
DCS made a diligent or reasonable effort to provide him with appropriate
reunification services and that termination was in A.D.’s best interests.
¶9 A parent’s right to custody and control of his own child, while
fundamental, is not absolute. Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz.
246, 248, ¶¶ 11-12 (2000). Termination of a parental relationship may be
warranted where the state proves one statutory ground under A.R.S.
§ 8-533 by “clear and convincing evidence.” Id. At 249, ¶ 12. “Clear and
convincing” means the grounds for termination are “highly probable or
reasonably certain.” Kent K. v. Bobby M., 210 Ariz. 279, 284-85, ¶ 25 (2005).
The court must also find that termination is in the child’s best interests by a
preponderance of the evidence. Id. At 285, ¶ 29.
¶10 This court “will accept the [superior] court’s findings of fact
unless no reasonable evidence supports those findings, and we will affirm
a [termination] order unless it is clearly erroneous.” Jesus M. v. Ariz. Dep’t
of Econ. Sec., 203 Ariz. 278, 280, ¶ 4 (App. 2002). We do not reweigh the
evidence, but “look only to determine if there is evidence to sustain the
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ANTHONY D. v. DCS, A.D.
Decision of the Court
court’s ruling.” Mary Lou C. v. Ariz. Dep’t of Econ. Sec., 207 Ariz. 43, 47, ¶ 8
(App. 2004).
¶11 Before seeking to terminate a parent’s rights on the
substance-abuse or out-of-home placement grounds, DCS must make
reasonable or diligent efforts to provide appropriate reunification services.
See Jennifer G. v. Ariz. Dep’t of Econ. Sec., 211 Ariz. 450, 453, ¶ 12 n.3 (App.
2005) (DCS must make “reasonable efforts” under substance-abuse
ground.); A.R.S. § 8-533(B)(8) (DCS must make “diligent” efforts under
out-of-home placement ground.). DCS satisfies this obligation if it provides
the parent with “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). Additionally, DCS
must “make reasonable efforts to assist the parent in areas where
compliance proves difficult.” Donald W. v. Dep’t of Child Safety, 247 Ariz. 9,
23, ¶ 50 (App. 2019).
¶12 DCS, however, “is not required to provide every conceivable
service or to ensure that a parent participates in each service it offers.”
JS-501904, 180 Ariz. at 353. Nor is it required to undertake rehabilitative
measures that are futile, Mary Ellen C. v. Ariz. Dep’t of Econ. Sec., 193 Ariz.
185, 192, ¶ 34 (App. 1999), to provide services that have “already been
offered,” see Pima Cnty. Severance Action No. S-2397, 161 Ariz. 574, 577 (App.
1989), or to leave “the window of opportunity for remediation open
indefinitely,” Maricopa Cnty. Juv. Action No. JS-501568, 177 Ariz. 571, 577
(App. 1994).
¶13 Father argues hospitalizations and the loss of his cell phone
were obstacles to his participation in services that DCS was required to help
him overcome. As an initial matter, Father had opportunities to challenge
the adequacy of his services in superior court, but he failed to do so. And
Father did not ask DCS for additional services or different providers. See
Shawanee S. v. Ariz. Dep’t of Econ. Sec., 234 Ariz. 174, 178, ¶ 16 (App. 2014)
(providing a parent must voice his concerns about services to the superior
court in a timely manner or waive his right to challenge them on appeal).
¶14 Even if Father has not waived his challenge, reasonable
evidence in the record supports the court’s order. At trial, Father testified
he was hospitalized frequently, he notified DCS and his service providers
each time, and, except for the times he was in the hospital, he consistently
participated in services. The court found Father’s testimony lacked
credibility, noting that although “the records show some hospitalizations,
they are far less than Father described.”
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ANTHONY D. v. DCS, A.D.
Decision of the Court
¶15 The record shows that Father was hospitalized a few times.
Those times, however, do not account for Father’s minimal participation in
services. For example, Father called in and submitted to substance-abuse
testing less than half of the times required. Although Father agreed he had
no barriers to attending substance-abuse treatment virtually twice a week,
he stopped attending or communicating with the provider. Nor did he
respond to the provider’s phone calls, voicemails, home visit, or outreach
letter—all attempts to reengage him in the service. Similarly, Father failed
to participate in the parent-aide service, though his provider gave him
additional time to engage because of his health issues. In closing the service,
the provider noted “[t]here was almost a month that [Father] was not
hospitalized[,] and he still did not make the attempt to follow through with
any visits or skill sessions.” Finally, Father cites the loss of his cell phone,
not hospital visits, as the reason he failed to participate in the Family
Connections service.
¶16 Father argues DCS should have helped him overcome these
obstacles or find alternative providers. The case manager testified,
however, that Father failed to regularly notify DCS about his
hospitalizations until shortly before the termination trial. Nevertheless,
Father does not explain how else DCS could have helped him overcome his
health issues, particularly when much of his lack of contact with service
providers was during times he was not hospitalized. Moreover, even
though Father’s medical conditions required regular care, one of his
medical providers noted that he was “non-compliant” and failed to attend
his follow-up appointments, causing Father to utilize the emergency room.
Nor does Father suggest how DCS could have assisted him after the loss of
his cell phone or how finding him alternative providers would have helped
him engage in services. On this record, Father has shown no error.
¶17 Father also challenges the superior court’s finding that
termination was in A.D.’s best interests, arguing the court abused its
discretion by failing to justify its deviation from the statutory placement
preferences set forth in A.R.S. § 8-514. Specifically, Father challenges the
court’s findings that A.D.
is not placed with a member of her extended family. Instead,
the child is placed with foster parents. In accordance with
A.R.S. § 8-538(C), placing the child with a member of the
child’s extended family is not an available option because the
only family suggested lived out of state and [an out-of-state
home] study for that placement had not been approved at the
time of the hearing.
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ANTHONY D. v. DCS, A.D.
Decision of the Court
¶18 Under A.R.S. § 8-538(A), (B)(2), (C), the court is required to
recite findings pertaining to the child’s placement, particularly when the
court finds that placement with the child’s extended family is not in the
child’s best interests. As Father acknowledges, however, the superior
court’s determination on whether termination is in a child’s best interests is
“separate from and preliminary to its determination of placement after
[termination].” Antonio M. v. Ariz. Dep’t of Econ. Sec., 222 Ariz. 369, 370-71,
¶ 2 (App. 2009). That is particularly true here where the out-of-state home
study for A.D.’s adult half-sister had not yet been approved, preventing the
court from even considering her as a potential placement at the time of the
termination trial.
¶19 Nonetheless, Father urges this court to address the findings
because they are “inextricably intertwined with the best-interest analysis.”
We disagree.
¶20 The superior court’s order sets forth benefits to termination
and detriments to maintaining the parent-child relationship that support
the best-interests finding without inextricable reliance on the question of
whether A.D. will ultimately be placed with her foster family or her
half-sister. See Maricopa Cnty. Juv. Action No. JS-500274, 167 Ariz. 1, 5 (1990)
(“[A] determination of the child’s best interest must include a finding as to
how the child would benefit from a [termination] or be harmed by the
continuation of the relationship.”); Audra T. v. Ariz. Dep’t of Econ. Sec., 194
Ariz. 176, 377, ¶ 5 (App. 1998) (During the best interests evaluation, the
superior court does not “weigh alternative placement possibilities” but
“may [] consider . . . “the immediate availability of an adoptive placement”
or “whether an existing placement is meeting the needs of the child.”).
¶21 To be sure, Father does not challenge the superior court’s
findings that termination would benefit A.D. because she “is adoptable,”
“in good physical condition,” “has no behavioral issues,” and “is meeting
all of her developmental milestones.” Father does not challenge the court’s
additional findings that A.D.’s foster parents are providing her with a
loving and nurturing home, that she has thrived in their care, and that they
intended to adopt her, providing her with stability and permanency. Nor
does he challenge the court’s findings that maintaining the parent-child
relationship would be detrimental to A.D. because Father “has [not] formed
any bond with [A.D.] in the first year of her life, or made much of [an] effort
to do so, and [Father] seems [in]capable of honest[ly] addressing [his] drug
use.” On this record, the court did not err.
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ANTHONY D. v. DCS, A.D.
Decision of the Court
CONCLUSION
¶22 For the foregoing reasons, we affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
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