Frank E. v. Dcs, C.E. ( 2021 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
FRANK E., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, C.E., Appellees.
No. 1 CA-JV 21-0050
FILED 7-8-2021
Appeal from the Superior Court in Maricopa County
No. JD 37024
The Honorable Lori H. Bustamante, Judge
AFFIRMED
COUNSEL
Robert D. Rosanelli, Phoenix
Counsel for Appellant
Arizona Attorney General’s Office, Mesa
By Eric Devany
Counsel for Appellee, Department of Child Safety
FRANK E. v. DCS, C.E.
Decision of the Court
MEMORANDUM DECISION
Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge David B. Gass and Judge David D. Weinzweig joined.
B R O W N, Judge:
¶1 Frank E. (“Father”) appeals the juvenile court’s order
terminating his parental rights to his daughter, C.E., born in 2015. Because
reasonable evidence supports termination, we affirm.
¶2 Father and Angelica P. (“Mother”) are the biological parents
of C.E. Mother is not a party to this appeal. In February 2019, the
Department of Child Safety (“DCS”) petitioned for dependency, alleging
Father was unwilling or unable to provide proper and effective parental
control over C.E. DCS also alleged Father was not involved in C.E.’s life
and failed to provide for her. In June, Father failed to appear at the
dependency hearing, and the court granted the petition. The court ordered
services and approved the case plan of family reunification. Father was
referred for parent aide services, but they were closed out when Father did
not participate. Father received a second referral and in July 2020
successfully completed parent services.
¶3 Around the same time, however, DCS discovered Father had
multiple convictions for drug-related offenses. Most recently in 2015, the
year C.E. was born, Father pled guilty to attempted possession and
conspiracy to possess methamphetamine for sale and spent three years in
prison. DCS thus requested that Father submit to a urinalysis and hair
follicle drug test. In August 2020, Father tested positive for cocaine, THC,
codeine, opiates, fentanyl, and benzoylecgonine. He was then referred to
parent aide services for the third time, and was told he needed to continue
with drug testing as well as attend drug counseling. Between August and
December of 2020, Father tested positive for fentanyl over 35 times. In
October 2020, DCS moved to terminate Father’s parental rights based on
fifteen months’ time-in-care.
¶4 As of the January 2021 termination hearing, Father was still
working on his third parent aide referral and participating in drug
counseling. Initially he attended standard outpatient treatment, but it was
escalated to intensive outpatient treatment when he continued to test
positive for fentanyl. Father testified he participated in sessions and was
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FRANK E. v. DCS, C.E.
Decision of the Court
on track with the program; however, he admitted using fentanyl as recently
as the week before the hearing. After the juvenile court granted DCS’s
motion for termination, Father timely appealed, challenging only the
statutory ground for termination.
¶5 To terminate parental rights, a court must find by clear and
convincing evidence one of the statutory grounds articulated in A.R.S.
§ 8–533(B). Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 22 (2005). We will
affirm an order terminating parental rights if supported by reasonable
evidence. Jordan C. v. Ariz. Dep’t of Econ. Sec., 223 Ariz. 86, 93, ¶ 18 (App.
2009). As the trier of fact, “[t]he juvenile court is in the best position to
weigh the evidence, observe the parties, judge the credibility of witnesses,
and make appropriate findings.” Christina G. v. Ariz. Dep’t of Econ. Sec., 227
Ariz. 231, 234, ¶ 13 (App. 2011).
¶6 When seeking termination based on out-of-home placement
for a cumulative period of fifteen months or longer, DCS must prove (1) it
made diligent efforts to provide appropriate reunification services, (2) the
child was in an out-of-home placement for at least fifteen months, (3) Father
was unable to remedy the circumstances that caused C.E. to be in such
placement, and (4) a substantial likelihood existed that Father would not be
capable of exercising proper and effective parental care and control in the
near future. A.R.S. § 8-533(B)(8)(c).
¶7 Father challenges only the fourth element, asserting there is
no evidence his ongoing fentanyl use makes him unable to exercise proper
and effective parental care. The juvenile court found that Father “is not
capable of parenting at this time and is unable to parent in the near future”
because “he continues to use illegal substances that impair his ability to
safely parent the child,” and fails to recognize how his drug use endangers
C.E.
¶8 The record supports these findings. As of the termination
hearing, C.E. had been in an out-of-home placement for nearly two years,
and Father had repeatedly tested positive for fentanyl, including just two
days before the termination hearing. Father essentially asks us to reweigh
the evidence, which we will not do. See Jordan C., 223 Ariz. at 93, ¶ 18.
Given Father’s inability to address his drug problem, the court did not err
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FRANK E. v. DCS, C.E.
Decision of the Court
in finding he would not be able to exercise proper and effective parental
care of C.E. in the near future. See A.R.S. § 8–533(B)(8)(c). We affirm the
juvenile court’s order terminating Father’s parental rights.
AMY M. WOOD • Clerk of the Court
FILED: AA
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