In Re Term of Parental Rights as to J.G. ( 2023 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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 J.G.
No. 1 CA-JV 22-0263
FILED 5-9-2023
Appeal from the Superior Court in Maricopa County
No. JD21000
The Honorable Julie Ann Mata, Judge
AFFIRMED
COUNSEL
Law Office of H. Clark Jones LLC, Mesa
By H. Clark Jones
Counsel for Appellant
Arizona Attorney General’s Office, Tucson
By Jennifer L. Thorson
Counsel for Appellee
IN RE TERM OF PARENTAL RIGHTS AS TO J.G.
Decision of the Court
MEMORANDUM DECISION
Judge Michael S. Catlett delivered the decision of the Court, in which
Presiding Judge Paul J. McMurdie and Judge Michael J. Brown joined.
C A T L E T T, Judge:
¶1 J.G.’s father (“Father”) appeals the superior court’s order
terminating his parental rights. Because the superior court made all
required statutory findings and reasonable evidence supports those
findings, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 In October 2020, the Department of Child Safety (“DCS”) took
custody of J.G. because, at birth, he and his mother tested positive for
methamphetamine. At that time, Father was incarcerated for
methamphetamine possession and had used the drug for over twenty
years. Father did not contest the dependency petition DCS filed, and the
court adjudicated J.G. dependent.
¶3 The superior court ordered DCS to provide Father with
paternity testing and, upon his release, with substance-abuse testing and
treatment and parenting services. The DCS investigator spoke with Father,
and Father expressed interest in engaging in services after release. DCS
reported it was, thereafter, difficult to maintain regular contact with Father
or visit him in person due to COVID-19 restrictions. Nonetheless, DCS
asked him to self-refer for any services available in his detention facility,
such as parenting classes, substance-abuse treatment, or self-improvement
courses. The case manager attempted to contact Father but could not reach
anyone at the prison. DCS also could not provide Father with a paternity
test while in prison.
¶4 In May 2021, Father was released from custody. The case
manager’s efforts to contact him proved unsuccessful until August when
he appeared in court and provided updated contact information. The case
manager then set up monthly appointments to discuss services and referred
Father for substance-abuse testing and treatment as well as supervised
visits with J.G. Afterward, Father maintained inconsistent communication
with the case manager.
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IN RE TERM OF PARENTAL RIGHTS AS TO J.G.
Decision of the Court
¶5 Father failed to participate in substance-abuse services, and
those referrals were closed. Additionally, Father completed only five visits
with J.G., the last occurring in November 2021—a year before the severance
trial. Around the time of the last visit, Father was again incarcerated on
drug charges and was not released until early 2022. He did not re-engage
with DCS until October 2022, when he told the case manager he did not
want to participate in services until he had confirmation of paternity.
Father obtained confirmation of paternity the following month but did not
act on DCS’s renewed referrals for substance-abuse services and visitation
before the severance trial.
¶6 DCS moved to terminate Father’s parental rights under the
six- and fifteen-month out-of-home placement grounds. See A.R.S. § 8-
533(B)(8)(b)–(c). After hearing the evidence presented at trial, the superior
court severed Father’s parental rights. Under the six-month ground, the
court found the following:
Father neither engaged with the Department nor did he visit
with the child. While it is possible that Father engaged in
some services as a condition of his probation, he did not seek
a Release of Records from APD [Adult Probation
Department] until October of 2022. Father acknowledged
there was no excuse for his failure to stay in communication
with his attorney, or his case manager. While he testified to
doing services through APD those services were not the same
expectations as the Department’s expectations. While the
Court acknowledges and commends Father for his recent
probation compliance, two negative drug tests for APD and
one DCS test that was positive for THC do not negate years of
substance abuse as evident by Father’s criminal history.
Father has refused to participate in reunification services that
would have allowed him to bond with his child and
demonstrate appropriate parenting capacities.
¶7 Father timely appealed. This Court has jurisdiction under
A.R.S. § 8-235(A).
DISCUSSION
¶8 Father challenges whether sufficient evidence supports the
severance order. A parent’s right to custody and control of his child, while
fundamental, is not absolute. Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz.
246, 248 ¶¶ 11–12 (2000). Severance of a parental relationship may be
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IN RE TERM OF PARENTAL RIGHTS AS TO J.G.
Decision of the Court
warranted where the state proves one of the statutory grounds in A.R.S. §
8-533 by “clear and convincing evidence.” Id. at 248 ¶ 12. “Clear and
convincing” means the grounds for severance are “highly probable or
reasonably certain.” Kent K. v. Bobby M., 210 Ariz. 279, 284–85 ¶ 25 (2005).
The court must also find that severance is in the child’s best interest by a
preponderance of the evidence. Id. at 288 ¶ 41.
¶9 This Court “will accept the juvenile court’s findings of fact
unless no reasonable evidence supports those findings, and will affirm a
severance order unless it is clearly erroneous.” Jesus M. v. Ariz. Dep’t of
Econ. Sec., 203 Ariz. 278, 280 ¶ 4 (App. 2002). This Court does not reweigh
the evidence, but “look[s] only to determine if there is evidence to sustain
the court’s ruling.” Mary Lou C. v. Ariz. Dep’t of Econ. Sec., 207 Ariz. 43, 47
¶ 8 (App. 2004).
¶10 Father first argues DCS failed to make diligent efforts to
provide him with appropriate reunification services. Before seeking to
terminate a parent’s rights under the six-month out-of-home placement
ground, DCS must make diligent efforts to provide a parent with
appropriate reunification services. See A.R.S. § 8-533(B)(8)(b). To do so,
DCS must provide a parent “with the time and opportunity to participate
in programs designed to help [him] become an effective parent[.]” Maricopa
Cnty. Juv. Action No. JS-501904, 180 Ariz. 348, 353 (App. 1994). It must
undertake rehabilitative measures that have “a reasonable prospect of
success.” Mary Ellen C. v. Ariz. Dep’t of Econ. Sec., 193 Ariz. 185, 192 ¶ 34
(App. 1999). Nevertheless, DCS is not required to ensure a parent
participates in services, and it is not required to provide futile services. Id.;
JS-501904, 180 Ariz. at 353.
¶11 DCS asserts Father waived his argument by failing to raise it
in the superior court. Indeed, Father attended several hearings and had the
case manager’s contact information, but he never raised this issue until the
severance hearing. The superior court considered three separate motions
requesting confirmation that DCS was making reasonable efforts to finalize
permanency, and each resulting minute entry contained findings that DCS
made reasonable efforts. Father did not object to any of the three motions
and did not otherwise request additional services before the severance
hearing. See Shawanee S. v. Ariz. Dep’t of Econ. Sec., 234 Ariz. 174, 178; 241
¶¶ 13; 18 (App. 2014) (A parent must “promptly bring [his] concerns to the
attention of the juvenile court, thereby giving that court a reasonable
opportunity to address the matter and ensure that [DCS is] in compliance
with its obligation to provide appropriate reunification services. . . .”).
Because Father did not raise his concerns with the juvenile court, we decline
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IN RE TERM OF PARENTAL RIGHTS AS TO J.G.
Decision of the Court
to address his arguments here. Notwithstanding waiver, we have reviewed
the record and conclude that it contains sufficient evidence supporting the
juvenile court’s conclusion that DCS made reasonable efforts to provide
Father appropriate reunification services.
¶12 Next, Father argues the court did not make required
“forward-looking” findings under the six- and fifteen-month time-in-care
grounds, or alternatively, these findings were insufficient. DCS asserts
Father waived his argument that the court failed to make required findings
by failing to raise objections in the superior court. See Ariz. R.P. Juv. Ct.
317(b)(1) (party seeking to amend a final order based on insufficient factual
findings must move for relief within twelve days of order entry); Christy C.
v. Ariz. Dep’t of Econ. Sec., 214 Ariz. 445, 452 ¶¶ 20–21 (App. 2007) (This
Court generally does not consider arguments raised for the first time on
appeal, “particularly so as it relates to the alleged lack of detail in the
juvenile court’s findings.”). Because Father’s argument that the court failed
to make the required findings is intertwined with his argument that the
court’s findings were insufficient, and because Father’s argument
misinterprets A.R.S. § 8-533(B)(8)(b), we exercise our discretion and reach
the merits. See Logan B. v. Dep’t of Child Safety, 244 Ariz. 532, 536 ¶ 9 (App.
2018) (“[T]he decision to find waiver is discretionary.”).
¶13 Father argues that the six-month ground requires a “forward-
looking finding that the parent’s impediments to being able to parent are
going to continue,” which the superior court failed to make. Under the six-
month ground, the superior court may terminate a parent’s rights to his
child if it finds by clear and convincing evidence that (1) DCS made diligent
efforts to provide the parent with appropriate reunification services, (2) the
child is under three years of age and under court order, has been in an out-
of-home placement for six months or longer, and (3) the parent has
substantially neglected or willfully refused to remedy the circumstances
that cause the child to be in an out-of-home placement, including refusal to
participate in reunification services offered by DCS. A.R.S. § 8-533(B)(8)(b).
¶14 The text of the statute does not support Father’s suggestion
that the six-month ground required the superior court to find whether
Father would be able to parent in the near future—there is no such
requirement in the statute. Compare A.R.S. § 8-533(B)(8)(c) (requiring the
court to find “a substantial likelihood that the parent will not be capable of
exercising proper and effective parental care and control in the near
future”) with -533(B)(8)(b) (requiring only that the court find “the parent
has substantially neglected or willfully refused to remedy the
circumstances that cause the child to be in an out-of-home placement”). We
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IN RE TERM OF PARENTAL RIGHTS AS TO J.G.
Decision of the Court
will not judicially superimpose such a statutory element. The reason
behind the six-month ground similarly cuts against Father’s argument. The
six-month ground, like its nine-month counterpart, “focuses on the level of
the parent’s effort to cure the circumstances rather than the parent’s success
in actually doing so.” Marina P. v. Ariz. Dep’t of Econ. Sec., 214 Ariz. 326,
329, ¶ 20 (App. 2007). It “was written ‘in response to the increasing number
of children in foster care whose parents maintain parental rights but refuse
to assume their parental responsibilities.’” Maricopa Cnty. Juv. Action No.
JS-501568, 177 Ariz. 571, 577 (App. 1994) (quoting Maricopa Cnty. Juvenile
Action No. JS-6520, 157 Ariz. 238, 243 (App. 1988)). Adopting Father’s
argument would exacerbate that problem, not resolve it.
¶15 We next reject Father’s argument that the court’s factual
findings are “not supported by reasonable evidence, fail to show unfitness,
and improperly shift[ed] the burden to Father to prove his parental fitness.”
Here, the main circumstances preventing J.G.’s return were Father’s history
of substance abuse and an inability to meet the child’s needs. The record
shows Father had over a year to participate in DCS services after his release
in May 2021. Yet he failed to maintain contact with DCS despite its attempts
to engage him, submitted to a single drug test that returned positive for
THC, never completed a substance-abuse assessment (which prevented
treatment recommendations), and attended only five visits. The record,
therefore, adequately supports the superior court’s finding that Father
substantially neglected or willfully refused to remedy the circumstances
causing J.G.’s out-of-home placement. See A.R.S. § 8-533(B)(8)(b)
(substantially neglecting or willfully refusing to remedy the circumstances
includes a finding that the parent “refus[ed] to participate in [DCS]
reunification services”).
¶16 Father nonetheless suggests that despite failing to participate
in DCS services, he remedied his drug abuse and parenting deficits. At trial,
Father testified he had been sober for two years and had stable employment
and housing. He also testified that he had completed treatment and various
classes at a rehabilitation center and had signed up for parenting classes
through adult probation. But Father’s probation records include only a few
drug tests. As the superior court found, those tests alone “do not negate
years of substance abuse” because they do not demonstrate consistent
sobriety. Moreover, although he may have established some employment
and housing, Father had visited J.G. only five times in two years, and, as
the superior court found, had failed to demonstrate appropriate parenting
capacities or a significant bond with J.G.
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IN RE TERM OF PARENTAL RIGHTS AS TO J.G.
Decision of the Court
¶17 Father makes another similar argument—the statute “cannot
be interpreted in a manner that allows a parent” to lose his parental rights
when he “ignores services, yet still manages to ‘remedy the
circumstances,’” suggesting he had done so here. Contrary to Father’s
argument, our Supreme Court recently held that the statutory severance
grounds are synonymous with parental unfitness and confirmed they
“ensure[] compliance with the due process requirement that a court find,
by clear and convincing evidence, parental unfitness when a severance is
contested.” Alma S. v. Dep’t of Child Safety, 245 Ariz. 146, 150 ¶ 9 (2018). We
affirm the juvenile court’s severance decision because the record contains
sufficient evidence to establish the six-month ground and to support the
juvenile court’s conclusion that Father had not remedied the circumstances
leading to out-of-home placement. There is no indication in the record that
the juvenile court severed Father’s parental rights simply because he
“ignore[d] services.”
¶18 Finally, Father asserts the juvenile court improperly shifted
the burden to him to demonstrate he could care for J.G. But he cites a
finding in the court’s order pertaining only to the fifteen-month ground.
Because we hold that reasonable evidence supports the superior court’s
termination order under the six-month ground, we do not address any of
Father’s arguments relative to the fifteen-month ground. 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 the other grounds.”).
CONCLUSION
¶19 We affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
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