Mario B. v. Dcs ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
MARIO B.,
Appellant,
v.
DEPARTMENT OF CHILD SAFETY, J.B.,
TOHONO O’ODHAM NATION,
Appellees.
No. 1 CA-JV 20-0332
FILED 3-23-2021
Appeal from the Superior Court in Maricopa County
No. JD531872
The Honorable Kristin Culbertson, Judge
AFFIRMED
COUNSEL
David W. Bell Attorney at Law, Higley
By David W. Bell
Counsel for Appellant
Arizona Attorney General’s Office, Mesa
By Thomas Jose
Counsel for Appellee Department of Child Safety
Law Office of Justin Fernstrom
By Justin Fernstrom
Counsel for Appellee Tohono O’odham Nation
MARIO B. v. DCS, et al.
Decision of the Court
MEMORANDUM DECISION
Judge David D. Weinzweig delivered the decision of the Court, in which
Presiding Judge David B. Gass and Judge Michael J. Brown joined.
W E I N Z W E I G, Judge:
¶1 Mario B. (“Father”) appeals the superior court’s order
terminating his parental rights to J.B. (“Child”). The Indian Child Welfare
Act (“ICWA”) applies through Mother’s lineage. See 25 U.S.C. §§ 1902-03.
For reasons that follow, we affirm the judgment terminating Father’s
parental rights.
FACTS AND PROCEDURAL BACKGROUND
¶2 Father is Child’s biological parent.1 Between August and
September 2018, the Department of Child Services (“DCS”) secured
temporary custody of Child and petitioned the superior court to find Child
dependent as to Father based on allegations of domestic abuse, neglect and
substance abuse. The Tohono O’odham Nation (“Nation”) later intervened
because Mother and Child were affiliated with the Nation. Child was found
dependent in March 2019.
¶3 DCS twice referred Father for substance abuse treatment and
testing, but he missed most of the drug tests and failed most he took. He
likewise missed several domestic violence counseling sessions. The
provider ultimately closed each referral based on Father’s lack of
engagement and success.
¶4 In August 2019, DCS moved to terminate Father’s parental
rights on grounds of neglect, substance abuse and time-in-care. The court
denied the motion in January 2020, finding that DCS had not made active
or reasonable efforts to help Father reunify because DCS had not referred
Father for a third time to substance abuse treatment after he tested positive
for THC and methamphetamines.
1 The court terminated Mother’s parental rights in November 2019;
she is not party to this appeal.
2
MARIO B. v. DCS, et al.
Decision of the Court
¶5 Consistent with the court’s direction, DCS again referred
Father to substance abuse treatment, but he continued to miss drug tests,
and domestic-violence services were closed out for inconsistent attendance.
¶6 DCS again moved to terminate Father’s parental rights in
February 2020 on grounds of substance abuse and fifteen months time-in-
care. After performing a bonding and best-interests assessment in May
2020, a licensed psychologist determined that Child was at risk because of
Father’s issues relating to anger management, domestic violence and
substance abuse.
¶7 The superior court held a contested severance hearing over
two days in July and August 2020. Father was present, represented by
counsel and testified on his own behalf. The court heard testimony of case
managers from DCS and the Nation. The Nation’s case manager testified
that Child’s placement complied with ICWA and that DCS had made active
efforts to reunify Father and Child, which were unsuccessful. The
psychologist also testified that Father could not safely parent Child.
¶8 In October 2020, the court terminated Father’s parental rights
to Child on both grounds alleged and found termination was in Child’s best
interests because he was adoptable, succeeding in his placement and would
remain at risk with Father. The court also found that DCS made “active”
efforts to provide reunification services under ICWA. Father timely
appealed. We have jurisdiction. See A.R.S. § 8-235(A).
DISCUSSION
¶9 Father has a fundamental—but not absolute—right to parent
his children. Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 248, ¶¶ 11-
12 (2000). To sever the parent-child relationship, the juvenile court must
find clear and convincing evidence of at least one statutory ground under
A.R.S. § 8–533(B), and must find by a preponderance of the evidence that
termination is in the child’s best interests. Id. We will affirm a severance
order unless it is clearly erroneous. Jesus M. v. Ariz. Dep’t of Econ. Sec., 203
Ariz. 278, 280, ¶ 4 (App. 2002). We accept the court’s findings of fact unless
no reasonable evidence supports them, id., and view the evidence in the
light most favorable to upholding the order, Denise R. v. Ariz. Dep’t of Econ.
Sec., 221 Ariz. 92, 97, ¶ 20 (App. 2009), but review legal questions de novo,
Arturo D. v. Dep’t of Child Safety, 249 Ariz. 20, 23, ¶ 9 (App. 2020).
¶10 Father argues the juvenile court erroneously found that DCS
made active and reasonable reunification efforts and that termination was
in Child’s best interests. Because Father shows no error, we affirm.
3
MARIO B. v. DCS, et al.
Decision of the Court
I. Reunification Efforts
¶11 Before terminating parental rights on substance abuse
grounds, the court must find 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). Reasonable efforts
“give parents the time and opportunity to participate in programs that
could help them become effective parents prior to moving for severance.”
Alyssa W. v. Justin G., 245 Ariz. 599, 601, ¶ 10 (App. 2018).
¶12 And, before terminating parental rights to an Indian child,
DCS must prove by clear and convincing evidence that “active efforts have
been made to provide remedial services and rehabilitative programs
designed to prevent the breakup of the Indian family and that these efforts
have proved unsuccessful.” Yvonne L. v. Ariz. Dep’t of Econ. Sec., 227 Ariz.
415, 421, ¶¶ 20, 26 (App. 2011); accord 25 U.S.C. § 1912(d). DCS must
provide those services with “a reasonable prospect of success,” Mary Ellen
C. v. Ariz. Dep’t of Econ. Sec., 193 Ariz. 185, 192, ¶ 34 (App. 1999), but “is not
required to provide every conceivable service or to ensure that a parent
participates in each service it offers,” Maricopa Cnty. Juv. Action No. JS-
501904, 180 Ariz. 348, 353 (App. 1994).
¶13 If DCS made “active efforts” under ICWA, it also made
“reasonable efforts” because the “active efforts” requirement is at least as
stringent as the “reasonable efforts” requirement. See Vanessa W. v. Dep’t of
Child Safety, 2018 WL 2147213, *3, ¶ 16 (App. 2018). Thus, the same analysis
supports both findings. Id.¶14 DCS referred Father to individual counseling, substance
abuse treatment and testing, domestic abuse counseling and treatment,
along with transportation services. The Nation’s case manager testified that
the Nation believed DCS made active efforts, providing services “sufficient
enough for the Father” but which ultimately proved unsuccessful.
¶15 Still, Father contends DCS did not make active efforts to
remedy his substance abuse issues after he was attacked by several men
and hospitalized in January 2019. He argues in particular that substance
abuse services were futile unless and until he received mental health
services. But the court received testimony and evidence that Father poorly
engaged with substance abuse services before and after the January 2019
attack, including after Father received mental health services and
medication. Reasonable evidence supports the court’s decision finding that
4
MARIO B. v. DCS, et al.
Decision of the Court
DCS made active efforts to reunify Father and Child. Jesus M., 203 Ariz. at
280, ¶ 4.
¶16 We thus affirm that DCS made active and reasonable efforts
regarding Father’s chronic substance abuse and decline to address his
challenge to the fifteen months time-in-care ground. See id. at ¶ 3 (“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.”).
II. Best-interests Finding
¶17 Father also challenges the juvenile court’s finding that
termination is in Child’s best interests. Termination is in a child’s best
interests if the child “would derive an affirmative benefit from termination
or incur a detriment by continuing in the relationship.” Ariz. Dep’t of Econ.
Sec. v. Oscar O., 209 Ariz. 332, 334, ¶ 6 (App. 2004).
¶18 We find no abuse of discretion because the record includes
reasonable evidence to support the court’s best-interests finding. The
record indicates that Child is adoptable and thriving in his current family
placement with maternal great aunt. See id. at 335, ¶ 8 (“In combination,
the existence of a statutory ground for severance and the immediate
availability of a suitable adoptive placement for the children frequently are
sufficient to support a severance order.”); Audra T. v. Ariz. Dep’t of Econ.
Sec., 194 Ariz. 376, 377, ¶ 5 (App. 1998). The court found “[t]his family
placement allows child to maintain relationships with extended family
members,” “[m]aternal great aunt [has] provided child with a loving and
nurturing home environment,” and Child “is thriving in her care.” A
psychologist who examined Father and Child also concluded that
termination would be in Child’s best interests. The court found that Child
would remain at risk without termination because of Father’s instability
and lack of impulse control.
¶19 Father counters that termination was not in Child’s best
interests because Father and Child are bonded. But the court
acknowledged and weighed this bond, which is not dispositive. Dominique
M. v. Ariz. Dep’t of Child Safety, 240 Ariz. 96, 98-99, ¶ 12 (App. 2016). We
5
MARIO B. v. DCS, et al.
Decision of the Court
will not reweigh the evidence on appeal. Hurd v. Hurd, 223 Ariz. 48, 52, ¶
16 (App. 2009).2
CONCLUSION
¶20 For these reasons, we affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
2 Father also contends the court should have never reached the best-
interests prong because DCS failed to make “diligent and active efforts to
provide Father with appropriate services to facilitate” reunification
between Father and Child. This is the same argument addressed in the
previous section and it fails for the same reasons here.
6