Prentice R. v. Dcs

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
PRENTICE R.,
Appellant,
v.
DEPARTMENT OF CHILD SAFETY, X.R., W.R., V.R.,
Appellees.
No. 1 CA-JV 22-0046
FILED 8-30-2022
Appeal from the Superior Court in Maricopa County
No. JD39100
The Honorable Michael J. Herrod, Judge
REVERSED AND REMANDED
COUNSEL
Maricopa County Legal Defender’s Office, Phoenix
By Jamie R. Heller
Counsel for Appellant
Arizona Attorney General’s Office, Tucson
By Jennifer R. Blum
Counsel for Appellee Department of Child Safety
PRENTICE R. v. DCS, et al.
Decision of the Court
MEMORANDUM DECISION
Presiding Judge David D. Weinzweig delivered the decision of the Court,
in which Judge Brian Y. Furuya and Judge Jennifer M. Perkins joined.
W E I N Z W E I G, Judge:
¶1 Prentice R. (“Father”) appeals the termination of his parental
rights to his three children. We reverse and remand for the reasons that
follow.
FACTS AND PROCEDURAL BACKGROUND
¶2 Mother and Father share three children born between
September 2012 and September 2015. The Department of Child Safety
(“DCS”) first learned about the family in 2016 after both parents were
arrested for possession of dangerous drugs for sale and a weapons
violation. The children were removed and found dependent based on
neglect from criminal activity and substance abuse.
¶3 Father pled guilty to two felonies (attempt to commit
possession of narcotic drugs for sale and misconduct involving weapons)
and received a five-year prison sentence, beginning in April 2017. Mother
received no jail time. Father stayed in touch with the children during his
prison sentence, and he successfully completed several programs on
parenting topics and communication skills.
¶4 The dependency was dismissed in 2019, and the juvenile
court returned the children to Mother. Just months later, DCS removed the
children for a second time. In February 2020, DCS learned that Mother had
been found unconscious behind the wheel of her car, which was parked at
her children’s school. The youngest two children were seated in the car,
but the oldest was found in the parking lot. DCS learned that Mother often
smelled of marijuana and the children were often “one to three hours late”
to school. DCS petitioned the juvenile court to find the children dependent
as to Mother based on substance abuse, mental health and neglect.
¶5 In February 2020, DCS petitioned the juvenile court to find the
children dependent as to Father based on incarceration and neglect due to
substance abuse (specifically, marijuana abuse). DCS later stipulated to
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PRENTICE R. v. DCS, et al.
Decision of the Court
dismiss the substance abuse allegations, and the court found the children
dependent as to Father on incarceration alone.
¶6 About three months later, in September 2020, Father was
released from prison and placed on probation. That same month, Father
secured his medical marijuana card. DCS referred Father for random drug
testing and substance abuse treatment. Under his case plan, DCS directed
Father to “acknowledge the importance of remaining sober in order to
safely parent [his] children [and to] understand the importance of being
sober and how using substances affect[] [his] daily functioning and ability
to parent.”
¶7 The record has conflicting evidence on whether Father
completed an intake for a substance abuse assessment, but Father refused
to attend the treatment itself because he only “deals drugs” and “doesn’t
do drugs.” Father also missed nearly all his random drug tests from
October 2020 to October 2021.
¶8 DCS arranged for Father to have four hours of supervised
visitation per week. The visits went well. In September 2020, a DCS
supervisor reported that Father had been “present and on time to
visitation,” and recognized “[t]he children are forming a close bond with
[Father] and are excited to see him.” By December 2020, Father had missed
some visits for lack of transportation. DCS reported the “[v]isits mostly go
well when [Father] attends.” DCS expressed concern, however, about
Father’s “struggles with managing [the children’s] behaviors,” explaining
he once gave the children “sodas and no food after they stated they were
hungry.”
¶9 The supervised visits stopped in January 2021 because Father
was hospitalized with COVID-19. Soon after, in early April 2021, DCS
petitioned the juvenile court to terminate Father’s parental rights based on
abandonment and nine months’ out-of-home placement. See A.R.S. § 8-
533(B)(1), (B)(8)(a).
¶10 Father resumed the supervised visits in May 2021, and a DCS
supervisor described Father as “definitely consistent with visiting his
children.” The children enjoyed visits and became upset if one was
canceled. Father played games with the children and spoke with them
about school, good behavior and manners. According to the DCS
supervisor, Father had “recently” improved “at engaging with [his] kids.”
Father also made better food choices for the children over time.
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PRENTICE R. v. DCS, et al.
Decision of the Court
¶11 As before, however, DCS raised various concerns about
Father’s behavior at supervised visits. First, Father often relied on movies
to entertain the children, would yell at the children for minor things, and
threatened to leave the visits early, blaming the children. Second, a parent
aide once “felt threatened” by Father because he yelled at her, so she ended
the visit early and Father stormed out “without saying good-bye to [the
children].” Third, Father fell asleep at some visits and the parent aides
would rouse him. Father blamed “a sleeping disorder and narcolepsy,” but
DCS was skeptical because Father did not produce a doctor’s note. The
record had evidence of Father’s “severe” sleep apnea, however, which is
mentioned in his probation records and a 2014 doctor’s note.
¶12 Father secured housing in May 2021, and his probation
records show he also maintained employment. A DCS supervisor testified
that he was compliant with his probation and acknowledged he kept a
steady job and housing. And beginning in October 2021, Father
consistently participated in random drug tests and almost always tested
positive for THC. He once tested positive for opiates.
¶13 A severance hearing was held in February 2022. The DCS
supervisor testified that Father would not be able to parent the children in
the near future because “there’s been a long period of time where [Father]
hasn’t been fully engaged in his children’s lives. Part of that was his five-
year incarceration.” She added that Father might have fallen asleep at some
visits because of his marijuana use. Father also testified, emphasizing he
had housing, he was employed, he was consistently participating in
random urine tests since October 2021, and he participated in supervised
visits with the children.
¶14 The juvenile court terminated Father’s parenting rights,
reasoning that Father had not attempted to remedy the circumstances
causing the children’s out-of-home placement for nine months:
Simply put, other than attending supervised visits for a
period of time, and working, Father has not done any of the
things necessary to remedy the circumstances that brought
the children into care. He has not shown stability. He has not
shown sobriety. He has not addressed any substance abuse
issues, nor answered the question whether he has a substance
abuse issue. Most importantly, Father has not addressed and
learned parenting skills so that he can parent these children.
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PRENTICE R. v. DCS, et al.
Decision of the Court
¶15 Father appealed. We have jurisdiction. See A.R.S. §§ 12-
2101(A)(1), -120.21(A)(1), 8-235.
DISCUSSION
¶16 To terminate parental rights, the court must find one statutory
ground for termination under A.R.S. § 8-533(B) by clear and convincing
evidence, and that termination is in the child’s best interests by a
preponderance of the evidence. Alma S. v. Dep’t of Child Safety, 245 Ariz.
146, 149-50, ¶ 8 (2018). We affirm a termination order unless it is clearly
erroneous, and accept the court’s findings of fact unless unsupported by
reasonable evidence. Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 280,
¶ 4 (App. 2002).
¶17 The juvenile court found by clear and convincing evidence
that DCS proved the statutory ground of nine months’ out-of-home
placement. See A.R.S. § 8-533(B). On that ground, DCS must prove the
children were in an out-of-home placement for at least nine months, 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.”
A.R.S. § 8-533(B)(8)(a). This ground “focuses on the level of the parent’s
effort to cure the circumstances,” and not “the parent’s success in actually
doing so.” Marina P. v. Ariz. Dep’t of Econ. Sec., 214 Ariz. 326, 329, ¶ 20 (App.
2007). Thus, termination is inappropriate on this ground when a parent
tries to remedy the circumstances but fails. Id. at ¶ 21. To defeat a petition
for termination under Section 8-533(B)(8), the parent must make “at a
minimum, something more than trivial or de minim[i]s efforts at
remediation.” See Matter of Appeal in Maricopa Cnty. Juv. Action No. JS-
501568, 177 Ariz. 571, 576, n.1 (App. 1994).
¶18 We reverse. On this record, Father made more than trivial or
de minimis efforts toward reunification. See id. By the time of the severance
hearing, Father had been hired for steady work, found stable housing, was
compliant with probation and participated in supervised visitation and
drug testing. Although Father has more work to do, his undisputed efforts
on this record are more than trivial.
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PRENTICE R. v. DCS, et al.
Decision of the Court
CONCLUSION
¶19 We reverse and remand.
AMY M. WOOD • Clerk of the Court
FILED: JT
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