Earl S. v. Dcs ( 2017 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
EARL S., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, N.N., Appellees.
No. 1 CA-JV 16-0330
FILED 3-9-2017
Appeal from the Superior Court in Maricopa County
No. JD29597
The Honorable Alison Bachus, Judge
AFFIRMED
COUNSEL
David W. Bell Attorney at Law, Higley
By David Bell
Counsel for Appellant
Arizona Attorney General’s Office, Phoenix
By JoAnn Falgout
Counsel for Appellee Department of Child Safety
EARL S. v. DCS, et al.
Decision of the Court
MEMORANDUM DECISION
Judge Paul J. McMurdie delivered the decision of the Court, in which
Presiding Judge Kenton D. Jones and Judge Patricia K. Norris joined.
M c M U R D I E, Judge:
¶1 Earl S. (“Father”) appeals the juvenile court’s termination of
his parental rights to N.N. For the following reasons, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 Father and Brandy N. (“Mother”) are the biological parents of
N.N., born in August 2008.1 In December 2014, the Department of Child
Safety (“DCS”) took temporary custody of N.N. after responding with
Phoenix Police to a domestic disturbance at Father’s apartment. DCS filed
a dependency petition alleging N.N. was dependent as to Father because
he had failed to protect N.N. from Mother’s physical abuse, he was unable
or unwilling to address his mental health, his abuse of illegal drugs,
engaging in domestic violence with Mother, and was unable to provide
basic needs for N.N. including a stable residence. N.N. was found
dependent as to Father in February 2015 and the court confirmed the case
plan of family reunification concurrent with severance and adoption. The
court ordered services for Father including paternity testing, the
appointment of a parent aide, psychiatric evaluation, substance abuse
testing and treatment, and a referral for domestic violence services.
¶3 Father participated in some substance abuse testing with
TASC, testing positive for methamphetamine in October 2015. In February
2016, one year after N.N. was determined dependent, Father had not yet
established paternity and DCS filed a motion to terminate his parental
rights on the grounds of mental illness, substance abuse, and time in out-
of-home care pursuant to Arizona Revised Statutes (“A.R.S.”) section
8-533(B)(3) and (8)(a). Father established paternity in April 2016, and tested
positive for methamphetamine again in May 2016. In June 2016, Father
completed a psychological evaluation which listed “diagnostic
impressions” of amphetamine abuse, polysubstance abuse by history,
1 Mother’s parental rights to N.N. were also severed in the same order,
but she is not a party to this appeal.
2
EARL S. v. DCS, et al.
Decision of the Court
bipolar disorder with psychotic features, schizoaffective disorder, and
schizophrenia.
¶4 A two-day severance hearing took place in July and August
2016, after which the court granted the motion finding clear and convincing
evidence of all three alleged grounds and that termination was in the child’s
best interests. The juvenile court also found DCS had made reasonable
efforts to reunify the family and that further efforts to address Father’s
substance abuse and mental health issues would have been futile. Father
timely appealed and we have jurisdiction pursuant to Article 6, Section 9,
of the Arizona Constitution; A.R.S. § 8-235(A) (2016); and Arizona Rule of
Procedure for the Juvenile Court 103(A).2
DISCUSSION
¶5 Father argues the juvenile court erred by finding: (1) DCS
made reasonable efforts to provide reunification services related to N.N.’s
out-of-home placement and Father’s mental health; and (2) sufficient
evidence existed proving Father had a history of chronic substance abuse.
¶6 To justify termination of Fathers’ parental rights, the juvenile
court is required to find the existence of at least one statutory ground by
clear and convincing evidence. Michael J. v. ADES, 196 Ariz. 246, 249, ¶ 12
(2000). “The juvenile court . . . is in the best position to weigh the evidence,
observe the parties, judge the credibility of the witnesses, and make
appropriate findings.” Jesus M. v. ADES, 203 Ariz. 278, 280, ¶ 4 (App. 2002).
Therefore, we view the evidence in a severance case in the light most
favorable to sustaining the juvenile court’s findings. ADES v. Matthew L.,
223 Ariz. 547, 549, ¶ 7 (App. 2010).
¶7 Before a motion to sever parental rights under A.R.S.
§ 8-533(B)(3) is granted, the moving party must show “the parent is unable
to discharge parental responsibilities because of mental illness [or a] mental
deficiency . . . and that there are reasonable grounds to believe that the
condition will continue for a prolonged indeterminate period.” Denise R. v.
ADES, 221 Ariz. 92, 95, ¶ 11 (App. 2009) (quoting A.R.S. § 8-533(B)(3)). The
court must also make a finding that severance would be in the child’s best
interests. Jesus M., 203 Ariz. at 280, ¶ 3; A.R.S. § 8-533(B). Father does not
contest the juvenile court’s findings that he was unable to discharge his
2 Absent material revision after the relevant date, we cite a statute’s
current version.
3
EARL S. v. DCS, et al.
Decision of the Court
parental responsibility due to mental illness, that there were reasonable
grounds to believe his condition would continue, or that severance was in
the child’s best interests.3 As a result, we do not review those findings.
¶8 DCS also has an affirmative duty to make all reasonable
efforts to preserve the family relationship. Christina G. v. ADES, 227 Ariz.
231, 234-35, ¶ 14 (App. 2011). This includes providing appropriate services
to help reunify the family. Id. Father does not argue mental health services
were not provided, but rather because visitation with the child was not
provided, there was never a possibility to reunify the family.
¶9 Father argues DCS must establish that “no other services
could [have been] provided,” Pima County Severance Action No. S-2397, 161
Ariz. 574, 577 (App. 1989). Father takes this rule out of context. The next
sentence states, “Although the parent-child relationship should not be
severed unless every effort has been made to preserve the relationship,
[DCS] is clearly not obligated to provide services which are futile.” Id. (emphasis
added). DCS is “not required to provide services that are futile” or have no
“reasonable prospect of success.” Christina G., 227 Ariz. at 235, ¶ 15. While
visitation is a necessary step in the process of reunification, DCS is not
required to provide, or attempt to provide visitation before a severance can
take place. See Christina G., 227 Ariz. at 235, ¶ 15 (DCS does not need to
ensure that a parent participates in every service offered). If a parent is not
participating in the court ordered services, it is within their discretion to
withhold visitation with the child until those important steps are
completed. See Maricopa County Juvenile Action No. JD-5312, 178 Ariz. 372,
375 (App. 1994) (once a right to visitation is at issue the superior court has
broad discretion).
¶10 In this case, the court ordered in the preliminary protective
order that Father was to establish paternity and complete a psychological
3 Father does state he “strongly disagrees” with the court’s finding on
his ability to exercise proper and effective parental control in the near
future, but offers no argument or support on this issue, therefore it is
waived. See Christina G. v. ADES, 227 Ariz. 231, 234, ¶ 14, n.6 (App. 2011)
(failure to develop an argument usually results in abandonment and waiver
of the issue) (citation omitted).
4
EARL S. v. DCS, et al.
Decision of the Court
consultation before visitation with the child could begin.4 Father’s paternity
was established in the court’s minute entry 17 months after the preliminary
protective order was issued, and Father completed the psychological
evaluation 18 months after it was issued, only one month before the
severance hearing was set to take place.5 Accordingly, DCS was not
required to initiate visitation with Father.
¶11 Because we accept the court’s findings of fact unless clearly
erroneous, we find the court did not err in severing Father’s parental rights
under A.R.S. § 8-533(B)(3). See Maricopa County Juv. Action No. JS-501568,
177 Ariz. 571, 576 (App. 1994). Accordingly, we need not address Father’s
other arguments on the grounds of chronic substance abuse. See Jesus M.,
203 Ariz. at 280, ¶ 3 (“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 other grounds.”).
CONCLUSION
¶12 For the foregoing reasons, we affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
4 There was testimony at the severance hearing that Father’s visitation
was withheld solely because N.N. did not want visitation with Father;
however, other evidence was considered by the juvenile court in
determining whether Father’s visitation was appropriate. As a result,
Father’s reliance on Desiree S. v. DCS, 235 Ariz. 532, 534, ¶ 11 (App. 2014)
(no evidence in the record supported the superior court’s findings mother
was unable to remedy the circumstances bringing her child into DCS’s care
or to parent her child) is distinguishable.
5 By the time the psychological evaluation was transmitted to DCS,
only three weeks remained until the severance hearing.
5