Wiley A. v. Dcs, K.A. ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
WILEY A., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, K.A., Appellee.
No. 1 CA-JV 19-0002
FILED 9-5-2019
Appeal from the Superior Court in Yavapai County
No. P1300JD201700053
The Honorable Anna C. Young, Judge
AFFIRMED
COUNSEL
Robert D. Rosanelli Attorney at Law, Phoenix
By Robert D. Rosanelli
Counsel for Appellant
Arizona Attorney General’s Office, Mesa
By Lauren J. Lowe
Counsel for Appellee Department of Child Safety
WILEY A. v. DCS, K.A.
Decision of the Court
MEMORANDUM DECISION
Judge Kenton D. Jones delivered the decision of the Court, in which
Presiding Judge Michael J. Brown and Judge David D. Weinzweig joined.
J O N E S, Judge:
¶1 Wiley A. (Father) appeals the juvenile court’s order
terminating his parental rights to K.A. (Child), arguing the Department of
Child Safety (DCS) failed to prove the statutory grounds for severance by
clear and convincing evidence. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Child was born in February 2018.1 At the time, Child’s half-
sister (Sister) was in out-of-home care after medical personnel discovered
she had suffered multiple unexplained fractures and other chronic medical
conditions which Sister’s primary caretakers — Child’s mother (Mother)
and Father — had failed to address. DCS expressed concern for Child’s
safety given her young age, the severity of the injuries Sister suffered while
in Child’s parents’ care, and the parents’ admitted history of substance
abuse and domestic violence.
¶3 DCS took temporary custody of Child and filed a petition
alleging she was dependent as to Father upon the grounds of neglect and
substance abuse.2 In March 2018, the juvenile court found Child dependent
as to Father and adopted a case plan of family reunification concurrent with
severance and adoption. Father was immediately referred for individual
1 “We view the facts . . . in a light most favorable to sustaining the
juvenile court’s findings.” Demetrius L. v. Joshlynn F., 239 Ariz. 1, 2, ¶ 2
(2016) (citing Maricopa Cty. Juv. Action No. JS-8490, 179 Ariz. 102, 106 (1994)).
2 DCS also alleged Child was dependent as to Mother upon the
grounds of neglect, substance abuse, and a prior termination, and her
parental rights were terminated in December 2018. Mother’s challenge to
the termination order was dismissed after her counsel was unable to
identify any non-frivolous issues for this Court’s review, and she is not a
party to this appeal.
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WILEY A. v. DCS, K.A.
Decision of the Court
counseling, anger management, supervised visitation, parenting classes,
and parent aide services.
¶4 Father was also referred for substance abuse testing. Father
reported using marijuana daily since age seventeen. When Child was
removed, Father was using marijuana and prescription opiates to treat a
back injury but reported at a review hearing that he was committed to
discontinuing marijuana for pain management. Indeed, between February
and May 2018, Father tested positive for marijuana or its metabolite
fourteen times and opiates fifteen times. After discontinuing marijuana,
however, Father’s drug use escalated; he tested positive for heroin in June
and methamphetamine in July and August. An August 2018 hair follicle
drug screen confirmed the presence of various opioid substances and
methamphetamine. Nonetheless, Father declined substance abuse
treatment.
¶5 At his June 2018 psychological evaluation, Father admitted
being physically dependent upon opiates. He continued to test positive for
opiates regularly until the juvenile court changed the case plan to severance
and adoption in September, when he discontinued testing altogether.
Meanwhile, Father was arrested for theft, had been evicted from his
residence, changed jobs frequently, and been observed under the influence
in public. Although he completed an anger management course, Father
remained volatile and could no longer participate in visits with the
placement because of the “friction” between them. Thus, DCS expressed
concern that, although Father had been going through the motions of
services, “the associated behavioral changes are not present.”
¶6 In November 2018, Father was arrested for possession of
methamphetamine — his second criminal charge incurred during the
dependency proceedings. By the time of trial in December, Father had yet
to secure stable housing.
¶7 At trial, the DCS case manager testified that, based upon her
education, background, training, and review of the circumstances, Father
was unable to discharge his parental responsibilities as a result of his
substance abuse because it prevented him from obtaining appropriate
housing, made him more volatile, and rendered him unable to identify
safety risks. The case manager also testified that Child was adoptable and
in a relative adoptive placement that was willing and able to meet her
needs, including providing her a safe, stable, substance-free home. Father
did not testify.
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WILEY A. v. DCS, K.A.
Decision of the Court
¶8 After taking the matter under advisement, the juvenile court
found DCS had proved by clear and convincing evidence that termination
of Father’s parental rights was warranted because: (1) he had either
willfully abused Sister or failed to protect her from neglect and abuse, see
Ariz. Rev. Stat. (A.R.S.) § 8-533(B)(2);3 (2) he was unable to discharge his
parental responsibilities because of a history of chronic substance abuse, see
A.R.S. § 8-533(B)(4); and (3) he “substantially neglected or willfully refused
to remedy the circumstances” causing Child to be in an out-of-home
placement for more than six months, see A.R.S. § 8-533(B)(8)(b). The court
also found DCS proved by a preponderance of the evidence that severance
was in Child’s best interests, and entered an order terminating Father’s
parental rights. Father timely appealed, and we have jurisdiction pursuant
to 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
¶9 To terminate parental rights, the juvenile court must find at
least one statutory ground for severance by clear and convincing evidence.4
Ariz. R.P. Juv. Ct. 66(C); Marianne N. v. DCS, 243 Ariz. 53, 56, ¶ 15 (2017)
(quoting A.R.S. § 8-863(B)). A parent’s rights may be terminated pursuant
to A.R.S. § 8-533(B)(3) when: (1) the parent has a history of chronic abuse of
controlled substances; (2) the parent is unable to discharge parental
responsibilities as a result of the substance abuse; and (3) there are
reasonable grounds to believe the condition will continue for a prolonged
indeterminate period. Raymond F. v. Ariz. Dep’t of Econ. Sec., 224 Ariz. 373,
377, ¶ 15 (App. 2010). We will affirm a termination order “unless we must
say as a matter of law that no one could reasonably find the evidence to be
clear and convincing.” Denise R. v. Ariz. Dep’t of Econ. Sec., 221 Ariz. 92, 94,
¶ 7 (App. 2009) (quoting Murillo v. Hernandez, 79 Ariz. 1, 9 (1955)).
¶10 Father does not dispute that he suffers from a chronic
substance abuse problem that is likely to continue for a prolonged
indeterminate period. He argues only that there was insufficient evidence
to demonstrate that his drug use interfered with his ability to discharge his
3 Absent material changes from the relevant date, we cite the current
version of rules and statutes.
4 The juvenile court must also find by a preponderance of the evidence
that severance is in the child’s best interests, Ariz. R.P. Juv. Ct. 66(C); Kent
K. v. Bobby M., 210 Ariz. 279, 288, ¶ 41 (2005), but Father does not argue
insufficient evidence supports this finding.
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WILEY A. v. DCS, K.A.
Decision of the Court
parental responsibilities because “he continues to function,” i.e., maintain
employment and health insurance and exhibit mental ability in the high-
average range. We disagree.
¶11 The term “parental responsibilities” in A.R.S. § 8-533(B)(3)
refers to “those duties or obligations which a parent has with regard to his
child.” Raymond F., 224 Ariz. at 378, ¶ 20 (citations omitted). “The term is
not intended to encompass any exclusive set of factors but rather to
establish a standard which permits a trial judge flexibility in considering
the unique circumstances of each termination case.” Maricopa Cty. Juv.
Action No. JS-5894, 145 Ariz. 405, 409 (App. 1985). This Court has held,
however, that a parent is incapable of discharging parental responsibilities
if he cannot make appropriate decisions for a child, fails to protect the child
from harm, or demonstrates an inability to provide a safe home for the
child. Raymond F., 224 Ariz. at 378, ¶¶ 21-22; cf. JS-5894, 145 Ariz. at 408(finding that “establishment of a personal relationship with one’s child is
necessarily a parental responsibility” but that achievement alone was
insufficient to defeat severance based upon chronic substance abuse).
¶12 We agree with the juvenile court that Father’s drug use “has
contributed to his instability” in a way that places Child at a risk of harm.
The record reflects that while Father may be capable of holding a job and
parenting appropriately for a few hours of supervised visitation each week,
during the course of this dependency, when his experimentation with
dangerous substances increased, his participation in services and visitation
decreased and he became involved in criminal activity. Father’s continued
and escalating drug use prevented him from completing the essential task
of providing a safe, stable, drug-free home for Child. Moreover, we find it
axiomatic that a parent who is abusing substances cannot meet the rigors of
day-to-day parenting of a child, particularly when the child at issue is of a
young age. Accordingly, the record reasonably supports the finding that
Father’s substance abuse interfered with his ability to parent.5
5 “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. Ariz. Dep’t of
Econ. Sec., 203 Ariz. 278, 280, ¶ 3 (App. 2002) (citing Michael J. v. Ariz. Dep’t
of Econ. Sec., 196 Ariz. 246, 251, ¶ 27 (2000)). Accordingly, we do not address
Father’s arguments that DCS failed to prove severance was warranted on
the grounds of abuse, neglect, or Child’s time in out-of-home care.
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WILEY A. v. DCS, K.A.
Decision of the Court
CONCLUSION
¶13 The juvenile court’s order terminating Father’s parental rights
to Child is affirmed.
AMY M. WOOD • Clerk of the Court
FILED: AA
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