In Re Term of Parental Rights as to X.K.

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
IN RE TERMINATION OF PARENTAL RIGHTS AS TO X.K.
No. 1 CA-JV 23-0009
FILED 7-6-2023
Appeal from the Superior Court in Maricopa County
No. JD533289
The Honorable Amanda M. Parker, Judge
AFFIRMED
COUNSEL
Maricopa County Legal Defender’s Office, Phoenix
By Jamie R. Heller
Counsel for Appellant
Arizona Attorney General’s Office, Tucson
By Jennifer L. Thorson
Counsel for Appellee Arizona Department of Child Safety
IN RE TERMINATION OF PARENTAL RIGHTS AS TO X.K.
Decision of the Court
MEMORANDUM DECISION
Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Paul J. McMurdie and Judge Michael S. Catlett joined.
B R O W N, Judge:
¶1 X.K.’s father (“Father”) appeals the juvenile court’s order
terminating his parental rights. For the following reasons, we affirm.
BACKGROUND
¶2 X.K. was born substance-exposed in July 2016. Her mother
(“Mother”) admitted to abusing substances while pregnant.1 Father did not
establish paternity to X.K. and had very little contact with her over the next
four years. Meanwhile, Mother abused methamphetamine and heroin, and
most of the time she left X.K. in maternal grandmother’s care.
¶3 In June 2020, the maternal grandmother was arrested for
aggravated driving under the influence while X.K. was in the car. Police
found numerous drugs in the grandmother’s purse, including
methamphetamine, fentanyl, and heroin. The Department of Child Safety
(“DCS”) took custody of X.K. and placed her with the foster family already
caring for her half-brother. DCS could not locate Father at this time, and it
filed a petition asking the juvenile court to adjudicate X.K. dependent,
which the court eventually granted.
¶4 Several weeks later, DCS located Father in prison, serving
time for drug-related charges. Father disclosed that before prison, he
struggled with drug use but had completed a six-month rehabilitation class
in prison. DCS referred Father for paternity testing, eventually confirming
his paternity. The case manager also consulted a psychologist about
starting visitation between Father and X.K. The psychologist
recommended that Father consistently send cards, gifts, and letters to X.K.
for one month before beginning telephonic visits and eventually virtual
visits.
1 Mother’s parental rights to X.K. were also terminated, but Mother is
not a party to this appeal.
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IN RE TERMINATION OF PARENTAL RIGHTS AS TO X.K.
Decision of the Court
¶5 When Father began writing consistently to X.K. several
months later, DCS submitted the paperwork to set up telephonic visits in
prison. The request was still pending at the time of Father’s release on
parole in February 2022. At that time, DCS referred him for drug testing,
the Nurturing Parenting Program, and supervised visits. Father also
received drug testing, treatment, and counseling through parole.
¶6 Father participated in services, including an inpatient
substance-abuse program. He entered a sober-living facility afterward but
nonetheless tested positive for amphetamines, methamphetamines, and
fentanyl. During this time his attendance at visits was inconsistent, and his
visitation referral eventually closed for nonparticipation.
¶7 Three months later, Father’s parole officer moved him to a
sober living facility in Tucson, and Father emailed DCS requesting
telephonic visits. A few days later, however, Father left the facility without
permission, resulting in an arrest warrant; he then failed to maintain contact
with DCS or the court.
¶8 Meanwhile, DCS moved to terminate Father’s parental rights
based on chronic substance abuse and fifteen months in an out-of-home
placement. Father was not present at the initial termination hearing, and
the juvenile court found that his absence was without good cause because
he had been personally served and warned about the consequences of
failing to appear. After taking evidence, the court terminated his parental
rights on each of the alleged grounds. Father timely appealed, and we have
jurisdiction under A.R.S. § 8-235(A).
DISCUSSION
¶9 A parent’s right to the companionship, care, custody,
management, and association of his or her children is fundamental and
constitutionally protected. Michael M. v. Ariz. Dep’t of Econ. Sec., 202 Ariz.
198, 200, ¶ 8 (App. 2002). Nevertheless, a parent’s right to custody and
control of his own child is not absolute. Michael J. v. Ariz. Dep’t of Econ. Sec.,
196 Ariz. 246, 248, ¶¶ 11–12 (2000). Termination of a parental relationship
may be warranted when DCS proves a statutory ground under A.R.S.
§ 8-533 by “clear and convincing evidence.” Id. at 248–49, ¶ 12. The court
must also find that termination is in the child’s best interests by a
preponderance of the evidence. Id. at 284, ¶ 22.
¶10 “[W]e will accept the juvenile court’s findings of fact unless
no reasonable evidence supports those findings, and we will affirm a
severance order unless it is clearly erroneous.” Jesus M. v. Ariz. Dep’t of
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IN RE TERMINATION OF PARENTAL RIGHTS AS TO X.K.
Decision of the Court
Econ. Sec., 203 Ariz. 278, 280, ¶ 4 (App. 2002). We do not reweigh the
evidence on appeal. Id. at 282, ¶ 12. If we conclude that DCS has met its
burden of proving any one of the statutory grounds on which the juvenile
court ordered termination, “we need not address claims pertaining to the
other grounds.” Id. at 280, ¶ 3.
¶11 The juvenile court may terminate parental rights when (1) the
child has been in an out-of-home placement for at least 15 months under a
court order, (2) DCS has made a diligent effort to provide the parent with
appropriate reunification services, (3) the parent has been unable to remedy
the circumstances that cause the child to be in an out-of-home placement,
and (4) a substantial likelihood exists that the parent will not be capable of
exercising proper and effective parental care and control in the near future.
A.R.S. § 8-533(B)(8)(c).
¶12 Father argues DCS was not diligent in providing him with a
paternity test, visitation, or case management services. To satisfy its
obligation to make diligent efforts, DCS must provide the parent with the
time and opportunity to participate in programs designed to help him
become an effective parent. See In re Maricopa Cnty. Juv. Action No.
JS-501904, 180 Ariz. 348, 353 (App. 1994). Nonetheless, it is not required to
“provide every conceivable service,” to ensure the parent participates in
services, provide duplicate services, or undertake futile reunification
efforts. Id.; Mary Ellen C. v. Ariz. Dep’t of Econ. Sec., 193 Ariz. 185, 192,
¶¶ 33–34 (App. 1999); see In re Pima Cnty. Severance Action No. S-2397, 161
Ariz. 574, 577 (App. 1989).
¶13 The record shows some delay by DCS in completing paternity
testing and looking into visitation for Father. The process took eight
months. Nonetheless, before paternity testing was completed, DCS
consulted with a psychologist about establishing visits. Furthermore,
following the psychologist’s advice, DCS asked Father to write to X.K.
consistently, but he did not follow through for several months or visit her
reliably after his release. By the time the evidentiary hearing was held,
Father had not contacted X.K. for four months. Overall, and despite any
delay in paternity testing, Father had nineteen months to establish a
consistent relationship with X.K., and he failed to do so.
¶14 As for case management services, Father asserts DCS made
no efforts to locate him after he left his first sober-living facility. But it is
unclear what more DCS could have done. The record shows that DCS
completed a parent-locate search, made numerous telephone calls to Father,
and contacted his community supervisor to no avail. Father argues DCS
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IN RE TERMINATION OF PARENTAL RIGHTS AS TO X.K.
Decision of the Court
could have made additional efforts to communicate with him after it
located and served him the termination motion at his residence in
November 2022. But DCS called Father that month, and he did not respond.
Also, by that time Father had failed to engage with DCS for four months,
and the court had changed the case plan to severance and adoption. See
Donald W. v. Dep’t of Child Safety, 247 Ariz. 9, 23, ¶ 49 (App. 2019) (DCS is
required to make diligent efforts “[while] the case plan is reunification”).
On this record, we find no error.
¶15 Father next challenges the court’s findings that he could not
remedy the circumstances causing X.K.’s out-of-home placement and that
there was a substantial likelihood he would not be capable of exercising
proper and effective parental care and control in the near future.
¶16 Here, the circumstances preventing Father from safely
parenting X.K. at the start of the dependency included his substance abuse,
neglect, and incarceration. Regarding substance abuse, Father completed
some treatment, but the record shows he continued to abuse drugs. And
after he tested positive for amphetamines and methamphetamines, he did
not drug test again for DCS before trial—a period of nine months.
Additionally, through the community supervision program, Father tested
positive for amphetamines and fentanyl five months before trial. After that,
he absconded from his sober-living facility, resulting in a warrant for his
arrest. Meanwhile, Father visited six-year-old X.K. inconsistently and did
not contact her in the four months before trial. Nor had he supported X.K.
or established stable housing or employment. These facts support the
court’s findings.
¶17 Father also challenges the juvenile court’s finding that
termination was in X.K.’s best interests. Once the court finds a parent unfit
under at least one statutory ground for termination, “the interests of the
parent and child diverge,” and the court proceeds to balance the unfit
parent’s “interest in the care and custody of his or her child . . . against the
independent and often adverse interests of the child in a safe and stable
home life.” Kent K. v. Bobby M., 210 Ariz. 279, 286, ¶ 35 (2005). “[A]
determination of the child’s best interest must include a finding as to how
the child would benefit from a severance or be harmed by the continuation
of the relationship.” In re Maricopa Cnty. Juv. Action No. JS-500274, 167 Ariz.
1, 5 (1990). Courts “must consider the totality of the circumstances existing
at the time of the severance determination, including the child’s
adoptability and the parent’s rehabilitation.” Alma S. v. Dep’t of Child Safety,
245 Ariz. 146, 148, ¶ 1 (2018).
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IN RE TERMINATION OF PARENTAL RIGHTS AS TO X.K.
Decision of the Court
¶18 The court may find a child would benefit from termination if
there is an adoption plan or if the child is adoptable, Alma S., 245 Ariz. at
150–51, ¶¶ 13–14, or if the child “would benefit psychologically from the
stability an adoption would provide,” JS-501904, 180 Ariz. at 352.
Conversely, the court may find the continuation of the parent-child
relationship would harm a child and may consider evidence of parental
unfitness based on the existence of a termination ground. See A.R.S.
§ 8-533(B); In re Pima Cnty. Juv. Action No. S-2460, 162 Ariz. 156, 158 (App.
1989).
¶19 The juvenile court found that termination would provide X.K.
with permanency and stability because her foster family was meeting her
needs and wished to adopt her. These findings are supported by reasonable
evidence in the record and satisfy the court’s best-interests determination.
¶20 Father points to the services he completed and argues the
record lacked information about his interactions with X.K. Even assuming
Father’s visits with X.K. went well, however, it does not undermine his
overall inconsistency and failure to participate in visits for several months.
Also, because reasonable evidence supports the court’s findings, Father’s
argument is merely an invitation to reweigh the evidence, which we will
not do. See Jesus M., 203 Ariz. at 280, ¶ 12.
CONCLUSION
¶21 We affirm the juvenile court’s termination order.
AMY M. WOOD • Clerk of the Court
FILED: AA
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