Christopher L. v. Ades, A.W. ( 2014 )

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
Christopher L., Appellant,
v.
Arizona Department of Economic Security, A.W., Appellees.
No. 1 CA-JV 13-0258
FILED 4-17-2014
Appeal from the Superior Court in Maricopa County
No. JD20915
The Honorable Joan M. Sinclair, Judge
AFFIRMED
COUNSEL
David W. Bell Attorney at Law, Mesa
By David W. Bell
Counsel for Appellant
Arizona Attorney General’s Office, Phoenix
By Michael Valenzuela
Counsel for Appellee Arizona Department of Economic Security
Christopher L. v. ADES, A.W.
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Patricia A. Orozco delivered the decision of the Court, in
which Judge Lawrence F. Winthrop and Judge Kenton D. Jones joined.
OROZCO, Judge:
¶1 Christopher L. (Father) appeals the juvenile court’s order
terminating his parental rights as to his child, A.W. (Child). The juvenile
court also found severance was in Child’s best interests. For the following
reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 In July 2011, Child’s mother (Mother) gave birth to a child,
who tested positive for marijuana.1 As a result, Arizona Department of
Economic Security (ADES) initiated an investigation, and Mother
admitted to smoking marijuana every day. Because Mother failed to
participate in the services thereafter provided to her, ADES removed
Child from Mother’s home in October 2011.
¶3 In a report to the juvenile court, ADES noted Father had
neglected to protect Child from Mother’s substance abuse and neglect, by
failing to establish paternity, and by not providing financial assistance for
Child. As a result, ADES filed a dependency petition on behalf of Child.
At the initial protective order hearing, Father contested the dependency
action and agreed to engage in a myriad of reunification services, which
included: urinalysis testing through TASC; TERROS Families First, parent
aide services; and psychological consultation, evaluation, and counseling.
¶4 Father failed to significantly participate in the services
provided. He did not contact TASC for urinalysis testing until March 2013
and, that same month, tested positive for marijuana. Moreover, ADES
submitted three TERROS referrals for Father in October 2011, August
2012, and May 2013. For both the October 2011 and August 2012 referrals,
Father scheduled the intake appointment but failed to attend the
assessment and did not participate in services. Consequently, both the
1 Mother is not a party to this appeal.
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Christopher L. v. ADES, A.W.
Decision of the Court
October 2011 and August 2012 referrals were closed as “non-compliant.”
Father was also referred for parent-aide services in February 2012 and July
2012, but Father, likewise, did not participate in these referrals. Lastly,
Father failed to attend the dependency adjudication hearing in March
2012. As a result, the hearing proceeded without Father and the juvenile
court found Child dependent as to Father.
¶5 Based upon Father’s minimal participation in the offered
services and extensive criminal history, the Arizona Supreme Court Foster
Care Review Board recommended ADES change the case plan from
family reunification to severance and adoption. Thereafter, the juvenile
court changed the case plan to severance, and in April 2013, ADES filed a
motion to sever Father’s parental rights pursuant to Arizona Revised
Statutes (A.R.S.) sections 8-533.B.8(a) and -533.B.8(c) (2014).2 In its motion,
ADES alleged that severance was in Child’s best interests.
¶6 Shortly after the juvenile court changed the case plan, Father
commenced parent aide services and received weekly supervised visits
with Child. In March 2013, Father scheduled a TERROS intake and
completed the assessment. At the assessment, Father explained he had
obtained an Arizona medical marijuana card and been using marijuana
for medicinal purposes for approximately eighteen months for pain
management.3 Father explained his card had recently expired, and he was
currently awaiting his new card. Based on this information, TERROS
issued Father a “no treatment” recommendation on the condition that he
provide TERROS with his updated medical marijuana card. Father never
submitted the new card to TERROS. As a result, TERROS closed Father’s
case.
¶7 Father participated in a psychological evaluation. The
psychologist concluded Father had a history of cannabis abuse, possessed
poor mechanisms when dealing with stress, and noted symptoms of
depression and anxiety. Ultimately, the psychologist recommended
Father participate in substance abuse counseling, obtain individual
counseling services, participate in a psychiatric evaluation, and engage in
2 We cite to the current versions when no material revisions have
since occurred.
3 Father stated he received his initial medical marijuana card in 2011;
however, Father was arrested in November of 2011 and subsequently
convicted of being in possession of marijuana in 2012.
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Christopher L. v. ADES, A.W.
Decision of the Court
parenting aide services. Based on the recommendation, ADES referred
Father for individual counseling, a psychiatric evaluation, and parent aide
services. Although Father successfully completed the parent aide services,
Father only completed two counseling sessions before he stopped
attending. Father did not attend a scheduled psychiatric evaluation.
Moreover, Father failed to regularly submit to mandatory urinalysis tests
throughout 2013, but when he did appear for testing, he tested positive for
marijuana.4
¶8 The juvenile court held a contested severance hearing. The
caseworker testified as to Father’s lack of meaningful participation in the
various services and recommended termination of Father’s parental
rights. The case worker explained Child had been in the ADES system
since 2011 and, during that time, Child had been in multiple placements
and was finally in a relative placement. Moreover, the caseworker opined
that termination was in Child’s best interests because Child was adoptable
and deserved permanency.
¶9 Father testified his medical marijuana card contained an
error that listed the incorrect expiration date as March 2013 -- rather than
March 2014. Father also stated he smoked marijuana pursuant to his
medical marijuana card to manage pain from a broken femur he suffered
as a teen. Father further testified he was unaware of ADES’s requirement
that he submit to substance abuse testing. Father asserted his belief that
he completed the individual counseling requirements. Father also argued
his delay in starting services was due to a lack of instruction from ADES.
¶10 In a detailed minute entry, the juvenile court severed
Father’s parental rights. The juvenile court specifically noted the length of
Child’s out-of-home placement, Father’s criminal record and his history of
non-participation in the various programs. Moreover, the juvenile court
found Father’s testimony regarding ADES’s failure to provide instruction
regarding reunification services was not credible and was contradicted by
other evidence. The juvenile court held ADES met its burden on the
severance grounds. Furthermore, the juvenile court found that severance
was in Child’s best interests.
4 Father tested positive for marijuana use in March, April, June, July,
and August 2013.
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Christopher L. v. ADES, A.W.
Decision of the Court
¶11 Father timely appealed. We have jurisdiction pursuant to
Article 6, Section 9, of the Arizona Constitution, and A.R.S. §§ 8-235.A
(2014), 12-120.21.A.1 (2003), and -2101.A.1 (Supp. 2013).
DISCUSSION
¶12 The juvenile court, as the trier of fact, “is in the best position
to weigh the evidence, observe the parties, judge the credibility of the
witnesses, and resolve disputed facts.” Ariz. Dep’t of Econ. Sec. v. Oscar O.,
209 Ariz. 332, 334, ¶ 4, 100 P.3d 943, 945 (App. 2004). Accordingly, we do
not reweigh the evidence. Id. at 336, ¶ 14, 100 P.3d at 947. Additionally,
we accept the juvenile court’s findings of fact, unless no reasonable
evidence exists to support them. Id. at 334, ¶ 4, 100 P.3d at 945.
¶13 Under A.R.S. § 8-533, the juvenile court may terminate the
parent-child relationship if it finds that any one of the statutory grounds
exist and that severance is in the child’s best interests. See Michael J. v.
Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 248-49, ¶ 12, 995 P.2d 682, 684-85
(2000).
I. Grounds for Severance
¶14 The juvenile court may terminate a parent-child relationship
if, pursuant to court order or voluntary placement, a child has been placed
out of the parent’s home for a total of nine months or longer, and the
parent has “substantially neglected or willfully refused” to rectify the
issues that caused the child to be placed out of home. See A.R.S. § 8-
533.B.8(a). This includes a parent’s refusal to “participate in reunification
services offered by [ADES].” Id.
¶15 Father does not dispute that Child has been in an out of
home placement for nine months or longer, that ADES made diligent
efforts to provide him with reunification services, and that he
substantially neglected or willfully refused to remedy the circumstances
that caused Child to be in an out-of-home placement. Father only
contends that he is “immediately ready and able to care for [Child],” and
his marijuana use is not sufficient grounds to terminate the relationship.
Thus, we find Father’s failure to challenge these findings means he
concedes them. See Britz v. Kinsvater, 87 Ariz. 385, 388, 351 P.2d 986, 987
(1960) (assuming that the trial court’s findings of fact are conceded when a
party fails to challenge them).
¶16 Father’s concessions aside, we find sufficient evidence
supports the juvenile court’s conclusion. At the time of the severance
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Christopher L. v. ADES, A.W.
Decision of the Court
hearing, Child had been in an out-of-home placement for almost two
years. Moreover, the record indicates that approximately eighteen months
passed between the initial dependency petition and the motion for
severance. During that time, Father repeatedly failed to engage in various
reunification services offered to him. He did not attend the dependency
hearing, continuously failed to show up to appointments and was non-
responsive despite ADES’s efforts to reach out to him. Father only began
engaging in reunification services after ADES filed the motion to sever his
parental rights. Even then, however, Father only participated in the
parent aide services. Father did not comply with regular substance abuse
testing, failed to provide an updated medical marijuana card, and did not
seek further individual counseling.
II. Best Interests
¶17 Father next contends the juvenile court erred in finding that
severance was in Child’s best interests because the “evidence clearly
demonstrated that Father and [Child] have a strong and loving
relationship.”
¶18 A determination of a child’s best interests must include a
finding as to how the child will benefit from the severance or that a
continuation of the relationship will harm the child. Maricopa Cnty. Juv.
Action No. JS-500274, 167 Ariz. 1, 5, 804 P.2d 730, 734 (1990). Relevant
factors favoring severance include evidence of an adoption plan, or
evidence that the child’s current placement is meeting his needs. See
Audra T. v. Ariz. Dep’t of Econ. Sec., 194 Ariz. 376, 377, ¶ 5, 982 P.2d 1290,
1291 (App. 1998).
¶19 Here, the ADES case manager testified that severance would
be in Child’s best interests because he had been living in foster care since
2011 and had been moved multiple times. The case manager further
testified that Child deserved permanency, was doing well in his current
relative placement, the placement was meeting all of his needs, and Child
was adoptable.
¶20 Thus, there was sufficient evidence to support the juvenile
court’s findings that severance was in Child’s best interests.
Conclusion
¶21 For the foregoing reasons, we affirm the juvenile court’s
termination of Father’s parental rights as to Child.
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