Shane D., Kassandra D. v. Dcs, T.D. ( 2021 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
SHANE D., KASSANDRA D., Appellants,
v.
DEPARTMENT OF CHILD SAFETY, T.D., Appellees.
No. 1 CA-JV 20-0245
FILED 3-16-2021
Appeal from the Superior Court in Mohave County
No. S8015JD201900028
The Honorable Megan McCoy, Judge Pro Tempore
AFFIRMED
COUNSEL
The Stavris Law Firm, PLLC, Scottsdale
By Alison Stavris
Counsel for Appellant Shane D.
Law Office of Michael & Casey, Phoenix
By Robert Casey
Counsel for Appellant Kassandra D.
Arizona Attorney General’s Office, Mesa
By Tom Jose
Counsel for Appellee Department of Child Safety
SHANE D., KASSANDRA D. v. DCS, T.D.
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Paul J. McMurdie delivered the Court’s decision, in which
Judge Cynthia J. Bailey and Judge Lawrence F. Winthrop joined.
M c M U R D I E, Judge:
¶1 Shane D. (“Father”) and Kassandra D. (“Mother”)
(collectively “Parents”) appeal from their parental right’s termination for
Connor, age ten.1 For the following reasons, we affirm.
FACTS2 AND PROCEDURAL BACKGROUND
¶2 Before moving to Arizona in December of 2017, Mother and
Father lived in Nebraska, where they had been intermittently involved with
Nebraska Child Protective Services. Mother has been diagnosed with
bipolar disorder and schizophrenia and has a history of attempting suicide.
While in Nebraska, she was believed to be abusing prescription
medications. Father was also suspected of substance abuse.
¶3 In February 2019, the Arizona Department of Child Safety
(“DCS”) in Kingman received a report that Mother engaged in domestic
violence against Father in front of Connor and his older half-brother. The
report alleged Mother put a knife to Father’s throat during an argument. As
a result, DCS offered in-home services to the family. Father, who worked as
a long-haul truck driver and spent much of his time traveling for work, did
not participate in the services.
¶4 In April 2019, DCS learned that Mother attempted suicide and
was hospitalized. Connor was at school when the suicide attempt occurred,
and DCS could not reach Father before Connor needed to be picked up from
school. Because neither parent was available to care for Connor, DCS placed
him with a family friend. When DCS was able to reach Father later that day,
1 To protect the identity of the child, we refer to him by a pseudonym.
2 We view the evidence and draw all reasonable inferences from it in
the light most favorable to sustaining the court’s decision. Jordan C. v.
ADES, 223 Ariz. 86, 93, ¶ 18 (App. 2009).
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it informed him there had been a report that he was using drugs and asked
Father to submit to drug testing. Father agreed to submit to testing and said
he would retrieve Connor from the family friend’s house that evening.
Father did not pick up Connor nor submit to drug testing. On April 29,
Connor was adjudicated dependent as to Mother and continued to live with
the family friend.
¶5 In May 2019, after Father returned from work-related travel,
he entered into a mediation agreement with DCS in which he agreed to
engage actively in services. Father requested and was provided information
identifying service providers. In exchange, DCS agreed to consider moving
the children back with Father under a safety plan with in-home services.
Father was referred to several reunification services, including a
community-based substance abuse treatment program, drug testing, and
supervised visitation.
¶6 When Mother was released from the hospital, DCS referred
her for reunification services. In May, Mother attended one supervised visit
but missed her behavioral health appointment. She informed the provider
she planned to visit another behavioral health clinic, but there is no record
that she was seen at another clinic.
¶7 Mother and Father left Arizona together in June 2019 on a
long-distance trucking job. Other than one supervised visit in June, Mother
and Father stopped engaging in Kingman services. At a dependency review
hearing in July, Father objected to DCS’s request to find that it had made
reasonable efforts to prevent or eliminate the need for Connor’s removal.
The court found Connor dependent as to Father and, over Father’s
objection, that DCS had made reasonable efforts. Connor remained in
placement in Arizona until November of 2019.
¶8 On August 2, 2019, Mother called DCS and requested phone
visitation with Connor. She explained that Father had kicked her out of the
truck, and she was looking for shelter space. She provided her mother’s
phone number and address in Nebraska so DCS could set up the referral
for visitation. Mother received in-patient care in Nebraska for medication
management over four days in early August 2019. Mother was seen for a
psychological evaluation at a behavioral healthcare provider in Nebraska
on August 28, 2019.
¶9 In September, DCS referred Father to services for video
visitation with Connor after he made the request. By October, Father lived
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Decision of the Court
in Nebraska, and DCS received conflicting reports about whether he was
living with Mother or with his father, who also lived in the area.
¶10 Mother participated in video visits with Connor twice a week
for September and October. By October, Mother reported that she
participated in a domestic violence program and received one-on-one
counseling. A DCS report from October 18 noted that Mother called DCS
and asked about drug testing. DCS informed her that a hair follicle test
would be appropriate if she could afford it. DCS reported that Mother was
paying out of pocket for drug testing and other services, and she was unable
to afford the cost of submitting regular test results. Mother told DCS she
had difficulty finding treatment whenever she moved to a new state. DCS
recommended she continue to receive medical care and participate in
therapy. A DCS court report prepared October 21 suggested that Mother
appeared to be functioning adequately to parent her child.
¶11 In October, Mother reported to a healthcare provider that she
moved out of her mother’s home and into a motel so that Connor’s
placement with her mother would be approved. Mother also reported a
history of domestic violence with Father and explained that they planned
to participate in marriage counseling because Father had recently broken
up with his girlfriend. At a dependency review hearing on October 30,
counsel for Mother and Father reported on the status of their engagement
in services and reported positively on their involvement and video
visitation. Neither parent objected to the reasonableness of DCS’s efforts.
¶12 In November, the court ordered that Connor be placed with
his maternal grandmother in Nebraska.3 Connor’s grandmother initially
offered to supervise visits for Mother and Father, but after several visits,
she informed DCS she no longer wished to perform that role for safety
3 We caution the juvenile court about continuing to exercise
jurisdiction over a case once the parents and child no longer reside in
Arizona. See A.R.S. § 25-1032(A) (court has continuing jurisdiction over the
child until the court determines that the child and parents or person acting
as a parent do not reside here); Monique B. v. Duncan, 245 Ariz. 371, 376,
¶ 19 (App. 2018) (“Even after the parties move away from the original state,
a determination by the original state that it no longer is exercising exclusive,
continuing jurisdiction applies . . . only after an express judicial
determination.”). Because neither Arizona nor Nebraska recognized that
Nebraska was the more appropriate forum to adjudicate the severance,
Arizona did not lose jurisdiction.
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reasons and because she wanted to shield Connor from Mother and Father’s
continuing discord.
¶13 In December, Father was arrested in Idaho for possession of
controlled substances. After his arrest, Father returned to Nebraska, where
he began residing with Mother. In a January report, DCS noted that it was
still waiting for a hair-follicle test from Mother, and Mother had suspended
her one-on-one counseling sessions because they interfered with her
employment.
¶14 In January, Connor was diagnosed with an intermittent
explosive disorder, a disorder characterized by “recurrent behavioral
outbursts representing a failure to control aggressive impulses[.]” The
therapist who evaluated Connor noted that he had been subjected to
emotional abuse when Father used Connor as a shield to prevent Mother
from assaulting Father. Connor’s teachers reported that his progress was
delayed compared to his peers.
¶15 During a phone call with DCS on January 10, Mother said that
she was living with Father and that her participation in counseling and
other services had lapsed. Mother seemed interested in treatment options
for Father and asked the case manager if he would like to speak with Father,
but the case manager declined. Father submitted three urine samples in
January and each tested negative. At the review hearing on January 22,
neither parent objected to the court’s finding that DCS was making
reasonable efforts.
¶16 In February 2020, Mother called the police while she was
barricaded in a room away from Father in the home they shared to report
an incident of domestic violence. Mother subsequently moved into a
domestic violence shelter, and Father moved in with his father. Parents
were offered supervised visitation toward the end of February, but the
visits were suspended due to their inappropriate behavior at the visits.
¶17 At a team decision-making meeting on March 6, Father
reported that he had enrolled in substance-abuse treatment, was about to
start domestic-violence classes, and had already submitted a hair follicle for
drug testing. After the meeting, Mother obtained a substance-abuse
evaluation and enrolled in a domestic-abuse program.
¶18 After an evidentiary hearing on April 8, the court changed the
case plan from reunification to severance and adoption and ordered DCS to
file a termination motion. A minute entry from the April 8 permanency
hearing noted that the DCS case manager “addressed [the] concerns of the
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lack of guidance from the Department for the Parents to comply with
services.” DCS moved to terminate Mother and Father’s rights based on
neglect and nine months’ time-in-care. Also, DCS alleged Father was unfit
because of his chronic substance abuse and that Mother was unfit on the
ground of mental illness.
¶19 On April 22, there was another domestic violence incident
between Mother and Father, which resulted in a visible injury to Father’s
face. In June, Father was charged with domestic assault for alleged acts on
May 6, 2020. On June 6, Mother and Father signed a lease for an apartment
and lived together at the time of the trial.
¶20 The juvenile court conducted a contested severance hearing
in July 2020. The court heard evidence about Mother’s behavioral-health
status, Father’s substance abuse, the constant turmoil and domestic
violence between Mother and Father, and their engagement in services
throughout the case. At the hearing, Mother and Father challenged the
adequacy of DCS’s reunification efforts. When asked whether DCS was
obligated to offer services to Parents in Nebraska after they left Arizona, the
case manager answered:
That’s on the parents. It’s a lot easier for them to be able to
contact those services, make those appointments, and know
what places to even go to in their given area. It would be just
as difficult . . . to implement something in Phoenix, although
I have a greater chance of obtaining resources . . . to assist
them with that, I still don’t know what they offer in that area.
* * *
I don’t have the ability to coordinate with a psychologist or
psychiatrist out of [Arizona]. I wouldn’t know who they
could go to [in Nebraska]. Again, if we don’t have an address
of where they reside, I wouldn’t even know where to begin to
look for that type of professional to perform that evaluation.
And it also would, there again, require mental health
background, case notes, prior drug testing, other information
relevant to be able to come to that informed decision that the
evaluation would make.
¶21 After considering the evidence presented at trial, the court
terminated Mother and Father’s parental rights after concluding that each
ground for termination had been proven by clear and convincing evidence
and termination was in Connor’s best interests. Mother and Father
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Decision of the Court
appealed, and we have jurisdiction under A.R.S. §§ 8-235(A) and
12-120.21(A)(1).
DISCUSSION
¶22 On appeal, Father argues it was error for the juvenile court to
terminate his parental rights because the State failed to prove by clear and
convincing evidence that Father neglected Connor. Father also claims that
DCS failed to provide him with appropriate reunification services. Mother
and Father both argue that the State failed to satisfy its obligation to make
reasonable efforts to preserve the family relationship and prove by a
preponderance of the evidence that it was in Connor’s best interests to
terminate their parental rights. DCS argues Mother and Father waived
review of the adequacy of DCS’s efforts by failing to timely object. DCS also
argues we can summarily affirm the termination of Mother’s parental rights
because she failed to challenge the neglect ground.
¶23 At the outset, we note that while Mother failed to challenge
the neglect ground, she did challenge the reasonableness of DCS’s efforts
and the court’s finding that termination was in Connor’s best interests. Each
of these must be proven before the court may terminate a parent’s rights
based on neglect under A.R.S. § 8-533(B)(2). See Mary Ellen C. v. ADES, 193
Ariz. 185, 192, ¶¶ 33–34 (App. 1999); Ariz. R.P. Juv. Ct. 66(C). Therefore, we
cannot summarily affirm the termination of Mother’s rights on the neglect
ground as urged by DCS.
¶24 Father only challenges the court’s findings concerning
Connor’s best interests and DCS’s reunification efforts on the substance
abuse and nine months’ time-in-care grounds. On all three grounds alleged
against her, Mother challenges only the reasonableness of DCS’s
reunification efforts and that termination was in Connor’s best interests.
Because they have not challenged the court’s other findings, they concede
those findings’ accuracy on appeal. Britz v. Kinsvater, 87 Ariz. 385, 388
(1960). “If clear and convincing evidence supports any one of the statutory
grounds on which the juvenile court ordered severance, we need not
address claims pertaining to the other grounds.” Jesus M. v. ADES, 203 Ariz.
278, 280, ¶ 3 (App. 2002). Because we conclude that Mother and Father
waived review of the adequacy of DCS’s efforts and reasonable evidence
supported the court’s finding that termination was in Connor’s best
interests, we do not address the remaining issue raised by Father that DCS
failed to prove Father neglected Connor.
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SHANE D., KASSANDRA D. v. DCS, T.D.
Decision of the Court
A. Mother and Father Waived Review of the Adequacy of the Services
Provided to Them by Failing to Timely Object.
¶25 DCS argues Mother and Father each waived the adequacy of
DCS’s reunification efforts because Father objected to its efforts only once
before trial while neglecting to engage in the services offered, and Mother
did not object at all before trial. After reviewing the record, we conclude
that Mother and Father each failed to timely bring the adequacy of DCS’s
efforts to provide services in Nebraska to the juvenile court’s attention and
therefore waived review of the issue.
¶26 Before seeking to terminate a parent’s rights on the
out-of-home placement grounds, DCS must make a diligent effort to
provide appropriate reunification services. A.R.S. § 8-533(B)(8). To meet its
obligation, DCS must “identify the conditions causing the child’s
out-of-home placement, provide services that have a reasonable prospect of
success to remedy the circumstances as they arise throughout the
time-in-care period, maintain consistent contact with the parent, and make
reasonable efforts to assist the parent in areas where compliance proves
difficult.” Donald W. v. DCS, 247 Ariz. 9, 23, ¶ 50 (App. 2019). Also, before
the court may terminate parental rights, DCS is constitutionally obligated
to make reasonable efforts to reunify the family. Mary Ellen C., 193 Ariz. at
192, ¶ 33.
¶27 We have previously explained that “[i]n determining whether
the grounds for termination have been satisfied, the juvenile court is in a
much better position than this court to evaluate the effectiveness and
impact of the services provided, as credibility determinations may be
required to weigh the evidence presented.” Shawanee S. v. ADES, 234 Ariz.
174, 178, ¶ 15 (App. 2014). The dependency process is designed to allow the
court to review the parties’ progress in meeting the case plan’s goals. Id.The State is required to present an updated case report at periodic reviews
before the court, providing the parties an opportunity to address concerns
so that unnecessary delays can be avoided. Ariz. R.P. Juv. Ct. 58(A), (C).
¶28 Delays are especially harmful when a child must deal with the
uncertainty and insecurity of temporary placement for the case’s duration.
Whether a case ultimately results in reunification or termination of parental
rights, it is typically to the benefit of all that a case is resolved expeditiously.
For this reason, it is essential that parents timely voice their concerns about
services to the court. Shawanee S., 234 Ariz. at 178–79, ¶ 16.
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Decision of the Court
¶29 A parent who does not object to the adequacy of the State’s
efforts to provide court-ordered services is precluded from challenging the
services’ sufficiency on appeal. Shawanee S., 234 Ariz. at 178–79, ¶¶ 16–18.
DCS is obligated both constitutionally and by statute to provide parents
with reunification services before it moves to terminate their parental
rights. Still, though this obligation extends even beyond Arizona’s borders,4
it “does not free a parent from the need to raise a timely objection if the
parent believes services are inadequate.” Id. at 178, ¶ 13.
¶30 Here, Mother explained to DCS in August 2019 that she
struggled to pay for services independently and had difficulty finding
Nebraska service providers. But it does not appear that Mother ever
brought the issue to the court’s attention despite ample opportunity to do
so. Mother does not address the waiver issue on appeal, and our review of
the record has not uncovered an instance in which Mother raised the matter
to the court before the trial.
¶31 Father objected once to the court’s finding of reasonable
efforts at a review hearing in July 2019. However, at the time of that hearing,
Father had only recently left Arizona where he had failed to engage in the
services DCS had provided and was living out of his semi-truck, a situation
that arguably makes referrals for most services futile. Because of Father’s
circumstances and actions at the time of the hearing, any legitimate
concerns Father developed later were not raised by this objection.
¶32 DCS acknowledges that a minute entry from the April 8, 2020,
evidentiary hearing indicated that the case manager “address[ed] the
concerns of the lack of guidance from the Department for the Parents to
comply with services.” But the court ultimately found that DCS’s efforts
were reasonable, and neither parent objected to the court’s finding. Without
a transcript of the hearing, we cannot conclude that Mother or Father
brought the inadequacy of DCS’s services to the court’s attention based on
this minute entry alone. See Bliss v. Treece, 134 Ariz. 516, 519 (1983). (“Where
the record is incomplete, a reviewing court must assume any evidence not
4 At the trial, the DCS case manager denied responsibility for referring
and paying for reunification services in Nebraska. However, until another
court assumes exclusive jurisdiction, or other enumerated circumstances
exist, the obligation to provide such services persists and extends across
state lines. See A.R.S. § 8-846 (enumerating circumstances under which DCS
is not required to provide services); See Donald W., 247 Ariz. at 26–27,
¶¶ 69-73 (DCS required to provide services to a parent living in California).
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Decision of the Court
available on appeal supported the trial court’s action.”). By not timely
bringing their concerns to the court’s attention, Mother and Father waived
review of the adequacy of DCS’s efforts to provide reunification services to
them in Nebraska.
B. Reasonable Evidence Supports the Court’s Finding that it was in
Connor’s Best Interests to Terminate Mother and Father’s Parental
Rights.
¶33 Mother and Father argue that DCS failed to present sufficient
evidence that termination of their parental rights was in Connor’s best
interests. Termination of the parent-child relationship is in the child’s best
interests if the child will benefit from the termination or be harmed if the
relationship continues. Shawanee S., 234 Ariz. at 179, ¶ 20. We will affirm a
termination order supported by reasonable evidence. Jordan C., 223 Ariz. at
93, ¶ 18.
¶34 Here, the court determined that termination of the
parent-child relationship would serve the child’s best interests because it
would further the adoption plan, which would provide Connor with
permanency and stability. The court further explained that the
relationship’s continuation would cause Connor “to linger in care for an
indeterminate period” because his Parents could not care for him. The court
concluded that Parents’ instability had harmed Connor as they entered and
exited his life according to their circumstances. Also, the parent-child
relationship’s continuation would disrupt the appropriate attachment
Connor was developing with his maternal grandmother. At the time of the
severance hearing, the maternal grandmother served as Connor’s
placement and expressed a desire to adopt him.
¶35 The record supports the court’s findings. At the trial, the court
heard testimony about several domestic violence acts between Mother and
Father in the proceeding months. The court also heard from Connor’s
therapist that the emotional trauma of witnessing domestic violence
between Mother and Father could lead Connor to experience anxiety,
depression, and to display disobedience at home and in school. The
therapist testified that because Connor was already showing
developmental delays, he needed to live in a stable environment. He also
testified that grandmother’s ability to remain a steady and consistent
attachment figure in Connor’s life was vital to continue the positive trend
towards catching up to his peers developmentally. On this record, the court
did not abuse its discretion by determining that termination was in the
child’s best interests.
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Decision of the Court
CONCLUSION
¶36 We affirm the court’s termination judgment.
AMY M. WOOD • Clerk of the Court
FILED: AA
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