Rick R. v. Dcs, H.R. ( 2019 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
RICK R.,
Appellant,
v.
DEPARTMENT OF CHILD SAFETY, H.R.,
Appellees.
No. 1 CA-JV 18-0197
FILED 3-28-2019
Appeal from the Superior Court in Maricopa County
No. JD528015/JS518702
The Honorable Arthur T. Anderson, Judge
AFFIRMED
COUNSEL
John L. Popilek, PC, Scottsdale
By John L. Popilek
Counsel for Appellant
Arizona Attorney General's Office, Tucson
By Autumn Spritzer
Counsel for Appellee DCS
RICK R. v. DCS, H.R.
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Diane M. Johnsen delivered the decision of the Court, in
which Judge Michael J. Brown and Judge Jennifer M. Perkins joined.
J O H N S E N, Judge:
¶1 Rick R. ("Father") appeals the superior court order severing
his parental rights to his son, H.R., who was born in June 2017. For the
following reasons, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 The Department of Child Safety ("DCS") took the child into
custody days after he was born substance-exposed to methamphetamine
and opiates. DCS interviewed Father and H.R.'s mother ("Mother") a few
days after H.R.'s birth. During that interview, Father was unable to provide
an address at which H.R. would live. Father also denied that Mother used
illicit drugs despite evidence to the contrary. DCS asked Father to submit
a drug test from an approved testing provider, but Father did not do so.
DCS then filed a dependency petition alleging Father was unable to parent
because of substance abuse and a lack of stable housing.1
¶3 As DCS alleged and as Father admits, he has a years-long
history of drug use. He suffered a back injury in 2008 and thereafter took
prescribed opiates for roughly six and a half years. Around 2013, he began
using methamphetamine. That year, Father was convicted of driving under
the influence and resisting arrest, and completed a court-ordered drug-
treatment program.
¶4 In November 2014, Father was arrested for possession of
methamphetamine and later pled guilty to possession of drug
paraphernalia. In July 2015, he was once again arrested for possession of
methamphetamine and was subsequently convicted of possession of a
dangerous drug. Around that time, Father completed a second court-
ordered drug-treatment program.
1 DCS also filed a dependency petition against Mother, but her
parental rights are not at issue in this appeal.
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RICK R. v. DCS, H.R.
Decision of the Court
¶5 In 2016, Father began a relationship with Mother, knowing
she had a history of drug use and that she was then involved in a severance
case involving a child from a previous relationship. Father knew Mother
was using drugs during their relationship, and they lived with another
drug user during Mother's pregnancy with H.R.
¶6 At first, DCS left the case plan open pending a paternity
determination, but offered Father parent-aide services upon 30 days of
sobriety, substance-abuse testing and treatment and supervised visitation.
Father initially refused to participate in any substance-abuse services until
his paternity was established. Even after his paternity was confirmed in
August 2017, Father still refused to participate in services other than
supervised visitation and a single parenting class. He failed to submit any
substance-abuse tests from an approved provider despite five separate
referrals and was closed out of substance-abuse treatment unsuccessfully
in October 2017. Father also failed to show he had established stable
housing.
¶7 In November 2017, Father and Mother were arrested after the
police caught them with a stolen vehicle and methamphetamine. Father
pled guilty to possession of methamphetamine and was sentenced to one
year incarceration and the court imposed a three-year term of supervised
probation. In February 2018, Father began an intensive substance-abuse
treatment program offered to select jail inmates.
¶8 The superior court originally scheduled the dependency
hearing for November 2017. At Father's request, the court continued the
dependency hearing even though DCS already had made clear it intended
to move to change the case plan to severance and adoption. The court
ultimately held a combined dependency and termination adjudication
hearing on March 23, 2018, at which it heard evidence establishing the facts
described above.
¶9 The court granted DCS's motion and severed Father's
parental rights under Arizona Revised Statutes ("A.R.S.") section
8-533(B)(2) (neglect), -533(B)(3) (prolonged drug abuse) and -533(B)(8)(b)
(2019) (six months' time in care).2 Father timely appealed. We have
jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution,
2 Absent material revision after the relevant date, we cite the current
version of a statute or rule.
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RICK R. v. DCS, H.R.
Decision of the Court
A.R.S. §§ 8-235(A) (2019), 12-120.21(A)(1) (2019), -2101(A)(1) (2019) and
Arizona Rule of Procedure for the Juvenile Court 103(A).
DISCUSSION
¶10 The right to custody of one's child is fundamental but not
absolute. Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, 248, ¶¶ 11-12
(2000). The superior court may terminate a parent-child relationship upon
clear and convincing evidence of at least one of the statutory grounds set
out in A.R.S. § 8-533(B). Michael J., 196 Ariz. at 249, ¶ 12. Additionally, the
court must find by a preponderance of the evidence that termination is in
the child's best interests. Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 22 (2005).
"Because the juvenile court is in the best position to weigh evidence and
assess witness credibility, we accept [that] court's findings of fact if
reasonable evidence and inferences support them, and will affirm a
severance order unless it is clearly erroneous." Demetrius L. v. Joshlynn F.,
239 Ariz. 1, 3, ¶ 9 (2016).
¶11 Father first argues the superior court erred in holding the
dependency hearing after the time allowed by statute and in holding a
combined dependency and severance hearing.
¶12 The superior court generally must complete a dependency
adjudication for a child in out-of-home care "within ninety days after
service of the dependency petition" and may allow an additional thirty days
upon a finding of good cause or extraordinary circumstances. See A.R.S. §
8-842(C) (2019). But this time limit is not mandatory, and "a violation . . .
does not automatically render void all subsequent proceedings." Joshua J.
v. Ariz. Dep't of Econ. Sec., 230 Ariz. 417, 425, ¶ 35 (App. 2012). Furthermore,
a timely dependency adjudication is not a prerequisite to a termination
petition or a severance trial. See generally A.R.S. § 8-533(B). In fact, a
permanent resolution of the dependency subsumes prior proceedings. Rita
J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 512, 515, ¶ 9 (App. 2000). A parent is
entitled to appellate relief only if he or she can show prejudice from the
superior court's failure to comply with the statutory deadline. Joshua J., 230
Ariz. at 424, ¶ 24.
¶13 Here, Father has not demonstrated any prejudice from the
superior court's failure to hold a severance hearing separate from the
dependency hearing nor from its failure to hold a dependency hearing
within the statutory time. To begin with, Father was the one who asked for
a continuance on November 27, 2017, even knowing that DCS intended to
move to change the case plan to severance and adoption. On appeal, Father
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RICK R. v. DCS, H.R.
Decision of the Court
speculates that "things may have turned out very differently" and a "quality
rehabilitation program may have been very successful" if the superior court
had not continued the dependency hearing. He also refers to "intermediate
procedural safeguards" that supposedly were absent as a result of the
continuance and the combined hearing, but he offers no specific
explanation for how or why the outcome of the dependency or the
severance would have been different absent the continuance. As described
above, DCS offered Father reunification services, including substance-
abuse treatment, from the outset of the dependency, but Father failed to
participate.
¶14 Father also argues DCS failed to prove any of the three
grounds for severance by clear and convincing evidence.
¶15 Under § 8-533(B)(8)(b), parental rights may be terminated
when a
child who is under three years of age has been in an out-of-
home placement for a cumulative total period of six months
or longer pursuant to court order and the parent has
substantially neglected or wilfully refused to remedy the
circumstances that cause the child to be in an out-of-home
placement, including refusal to participate in reunification
services offered by the department.
The circumstances at issue under this statutory ground for severance are
those "existing at the time of the severance." Marina P. v. Ariz. Dep't of Econ.
Sec., 214 Ariz. 326, 330, ¶ 22 (App. 2007) (quoting Maricopa County Juv.
Action No. JS-8441, 175 Ariz. 463, 468 (App. 1993)).
¶16 Father does not contest the court's findings that the child has
been in out-of-home placement for more than six months, nor does he argue
that DCS failed to comply with its obligation to offer appropriate
reunification services. He also does not challenge the court's ruling that
severance was in the child's best interests. Instead, he only argues that the
evidence does not support the court's finding that he substantially
neglected or willfully refused to remedy the circumstances that caused the
child to be taken into care. Specifically, Father points to his participation in
an intense substance-abuse treatment program during his incarceration as
evidence that he "was well on his way to recovery" at the time of the
severance hearing.
¶17 The record, however, contains substantial evidence in
support of the superior court's finding that Father substantially neglected
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Decision of the Court
or willfully refused to remedy the circumstances that caused his child to
remain in care of the State. To begin with, Father did not start substance-
abuse treatment until February 2018, after his child had been in care for
more than eight months. Up to that point, Father had refused to participate
in services other than supervised visitation and a single parenting class. He
failed to participate in DCS-approved drug testing and was closed out of
substance-abuse treatment unsuccessfully in October 2017. The record
described above also shows Father had a persistent history of drug use and
arrests. In considering Father's participation in the intense substance-abuse
treatment program during his recent incarceration, the superior court also
was free to give due weight to other evidence showing Father had relapsed
after completing two prior drug-treatment programs. We do not reweigh
conflicting evidence or redetermine the credibility of witnesses. Alma S. v.
Dep't of Child Safety, 245 Ariz. 146, 151-52, ¶¶ 18-19 (2018).
¶18 Because substantial evidence supports the court's decision to
sever Father's rights under § 8-533(B)(8)(b), we need not address Father's
arguments relating to the other grounds for severance. Jesus M. v. Ariz.
Dep't of Econ. Sec., 203 Ariz. 278, 280, ¶ 3 (App. 2002).
CONCLUSION
¶19 The record fully supports the superior court's findings and
conclusions. We affirm its order severing Father's parental rights.
AMY M. WOOD • Clerk of the Court
FILED: AA
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