Kansas H., Daniel Z. v. Dcs ( 2022 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
KANSAS H., DANIEL Z., Appellants,
v.
DEPARTMENT OF CHILD SAFETY, I.Z., A.Z., K.Z., Appellees.
No. 1 CA-JV 21-0222
FILED 2-3-2022
Appeal from the Superior Court in Maricopa County
No. JD529107
The Honorable David King Udall, Judge (Retired)
AFFIRMED
COUNSEL
Robert D. Rosanelli, Attorney at Law, Phoenix
By Robert D. Rosanelli
Counsel for Appellant Kansas H.
H. Clark Jones, Attorney at Law, Mesa
By H. Clark Jones
Counsel for Appellant Daniel Z.
Arizona Attorney General’s Office, Phoenix
By Emily M. Stokes
Counsel for Appellee Department of Child Safety
John L. Popilek, P.C., Scottsdale
By John L. Popilek
Counsel for Appellee I.Z.
KANSAS H., DANIEL Z. v. DCS et al
Decision of the Court
MEMORANDUM DECISION
Judge D. Steven Williams delivered the decision of the court, in which
Presiding Judge Cynthia J. Bailey and Judge Peter B. Swann joined.
W I L L I A M S, Judge:
¶1 Kansas H. (“Mother”) and Daniel Z. (“Father”) appeal the
superior court’s order terminating their parental rights to I.Z., A.Z., and
K.Z. (the “children”). For the following reasons, we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 In 2015, the Department of Child Safety (“DCS”) received a
report that Mother and Father, who lived in California, had sent the
children to stay with an aunt in Arizona without providing her the
necessary paperwork to obtain medical treatment for them. The reporter
also alleged Mother and Father were homeless, using drugs, and engaging
in acts of domestic violence.
¶3 When interviewed by DCS, both parents admitted they had
untreated mental-health disorders and regularly used marijuana. Mother
disclosed a history of methamphetamine use as well as a history of suicidal
ideations and attempts. The children witnessed at least two suicide
attempts, when Mother “jump[ed] out of a moving car going 70 mph” and
“jump[ed] off a bridge.” Father disclosed he had previously been arrested
for a domestic-violence incident involving Mother and that he was
“wanted” in Arizona for violating probation on a firearm-related offense.
Mother described Father as having “anger issues.”
¶4 DCS filed a dependency petition alleging substance abuse,
domestic violence, mental-health issues, and neglect. In early 2016, the
superior court, exercising temporary emergency jurisdiction, adjudicated
the children dependent, set a case plan of family reunification, and ordered
DCS provide both parents with a psychological evaluation, substance abuse
treatment, and counseling with a domestic violence component.
¶5 DCS attempted to place the children with Mother and/or
Father in California under the Interstate Compact on the Placement of
Children (“ICPC”). The ICPC application was denied due to unresolved
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Decision of the Court
criminal matters involving both parents. The children have resided with a
placement in Arizona since 2015.
¶6 In the summer of 2016, Mother and Father completed
psychological evaluations with Dr. Mansfield-Blair. Dr. Mansfield-Blair
diagnosed Mother with several mental disorders and recommended she
participate in Dialectical Behavioral Therapy (“DBT”). During Father’s
evaluation with Dr. Mansfield-Blair, he blamed his extended family for
DCS’s involvement, claiming they “made up” the allegations against him.
Dr. Mansfield-Blair diagnosed Father with several mental disorders and
recommended that both parents participate in counseling, ongoing drug
testing, and complete a second psychological evaluation after maintaining
sobriety for at least one year.
¶7 DCS referred both parents to a therapist in California, but
they never began services, claiming the office was too far away despite
DCS’s willingness to provide transportation. Mother and Father also
claimed their schedule conflicted with the therapist’s schedule. The
therapist reported to DCS that this claim was not accurate. DCS then
attempted to assign Mother and Father to another therapist, but the
assignment was delayed due to the indecision of the parents as to whether
services should begin in California or Arizona.
¶8 Throughout the dependency, DCS provided the parents with
supervised visitation. In the spring of 2018, DCS referred the family for
therapeutic visitation after one child expressed discomfort during visits
with the parents. All three children ultimately refused to attend visits citing
their parents’ inability to change, and their happiness with their placement.
The children’s case manager encouraged the children to change their minds
but was unsuccessful.
¶9 In the fall of 2018, Mother was in a car accident and stopped
participating in services. Mother consistently reported to DCS that she was
physically incapable of participating in services, but in 2019 Mother was
charged with manufacturing a controlled substance and a 2020 police
report indicates Mother attended a party where she danced and drank
excessively.
¶10 To his credit, Father completed additional psychological
evaluations as well as individual counseling. Nevertheless, he continued to
deny any responsibility for DCS’s involvement and instead blamed others.
¶11 In the summer of 2020, DCS referred Father and the children
for a bonding assessment with Dr. Bryce Bennett. Dr. Bennett concluded
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Decision of the Court
further services would be unlikely to “alter [the children’s] willingness to
engage in reunification” and that reunification would not be in the
children’s best interests. Dr. Bennett also noted Father’s tone towards the
children was so aggressive that he nearly ended the assessment early and
opined that Father could be even more aggressive around the children
when unobserved.
¶12 In 2021, after the children had been in care for nearly six years,
the superior court changed the case plan from family reunification to
severance and adoption. DCS then moved to terminate Mother and Father’s
parental rights.
¶13 Following a termination trial, the superior court terminated
parental rights based upon fifteen-months in an out-of-home placement, see
A.R.S. § 8-533(B)(8)(c), and found termination to be in the children’s best
interests.
¶14 Mother and Father timely appealed. We have jurisdiction
under Article 6, Section 9, of the Arizona Constitution, A.R.S. §§ 8-235(A),
12-120.21(A)(1), -2101(A)(1), and Arizona Rule of Procedure for the Juvenile
Court 103(A).
DISCUSSION
¶15 Parental rights are fundamental, but not absolute. Dominique
M. v. Dep’t of Child Safety, 240 Ariz. 96, 97, ¶ 7 (App. 2016). A court may
terminate a parent’s right in the care, custody, and management of their
children “if it finds clear and convincing evidence of one of the statutory
grounds for severance, and also finds by a preponderance of the evidence
that severance is in the best interests of the children.” Id. at 97-98, ¶ 7.
¶16 We review a termination order for abuse of discretion,
accepting the court’s factual findings unless clearly erroneous, Mary Lou C.
v. Ariz. Dep’t of Econ. Sec., 207 Ariz. 43, 47, ¶ 8 (App. 2004), and view the
evidence in the light most favorable to sustaining the court’s ruling, Manuel
M. v. Ariz. Dep’t of Econ. Sec., 218 Ariz. 205, 207, ¶ 2 (App. 2008). Because the
superior court “is in the best position to weigh the evidence, observe the
parties, judge the credibility of witnesses, and resolve disputed facts,” we
will affirm an order terminating parental rights if reasonable evidence
supports the order. Jordan C. v. Ariz. Dep’t of Econ. Sec., 223 Ariz. 86, 93, ¶ 18
(App. 2009) (quoting Ariz. Dep’t of Econ. Sec. v. Oscar O., 209 Ariz. 332, 334,
¶ 4 (App. 2004)).
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Decision of the Court
¶17 Fifteen months in an out-of-home placement is one statutory
ground authorizing termination. A.R.S. § 8-533(B)(8)(c). The superior court
may terminate a parent-child relationship under that ground if DCS has
made a diligent effort to provide appropriate reunification services and:
The child has been in an out-of-home placement for a
cumulative total period of fifteen months or longer pursuant
to court order or voluntary placement pursuant to [A.R.S.]
§ 8-806, the parent has been unable to remedy the
circumstances that cause the child to be in an out-of-home
placement and there is a substantial likelihood that the parent
will not be capable of exercising proper and effective parental
care and control in the near future.
Id.
¶18 Mother only challenges whether DCS made diligent
reunification efforts. See A.R.S. § 8-533(B)(8) (as a prerequisite to
termination under the out-of-home placement ground, DCS must make “a
diligent effort to provide appropriate reunification services”). Mother does
not challenge the superior court’s statutory findings, or that termination of
the parent-child relationship was in the children’s best interests. Christina
G. v. Ariz. Dep’t of Econ. Sec., 227 Ariz. 231, 234, ¶ 14 n.6 (App. 2011)
(recognizing the failure to develop an argument on appeal usually results
in abandonment and waiver of the issue).
¶19 Mother claims DCS’s efforts were insufficient because,
although DCS offered counseling, DCS did not refer her for DBT even
though that service was recommended by Dr. Mansfield-Blair. The record
shows, however, DCS referred Mother to a mental-health provider who
could have enrolled her in DBT, but Mother chose not to engage, despite
DCS’s willingness to provide transportation. DCS was then unable to refer
Mother to another therapist due to Mother’s indecision as to whether
services should begin in California or Arizona.
¶20 Mother also claims, based upon Dr. Mansfield-Blair’s
recommendations, DCS should have provided her an additional
psychological assessment. However, in 2018, prior to Mother’s accident,
DCS referred Mother for an additional psychological evaluation, but
Mother did not participate. Lastly, Mother contends that following her
accident, DCS should have consulted with its unit psychologist to
determine appropriate services. Mother, however, was unwilling to
participate in services following her accident. Because the requirement that
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Decision of the Court
DCS provide reunification efforts “does not oblige the State to undertake
rehabilitative measures that are futile,” Mary Ellen C. v. Ariz. Dep’t of Econ.
Sec., 193 Ariz. 185, 192, ¶ 34 (App. 1999), the superior court did not err in
finding DCS made a diligent effort to provide Mother appropriate
reunification services.
¶21 Father also challenges whether DCS made diligent
reunification efforts. Father claims DCS’s efforts were insufficient because,
although DCS offered numerous services, DCS failed to provide counseling
services designed to help the children overcome their reluctance to reunify
with him, failed to provide family counseling, and failed to ensure the
children participated in therapeutic visits.
¶22 The record, however, demonstrates DCS offered services
designed to help the children overcome their reluctance to reunify
including referring the family for therapeutic visitation, which included a
family counseling component, and individual therapy in which the
children worked on overcoming the “current issues” in the case. DCS also
referred Father and the children for a bonding assessment to determine
whether additional services could assist in reunification. Dr. Bennett
concluded that further services would be unlikely to “alter [the children’s]
willingness to engage in reunification.” On this record, the superior court
did not err in finding DCS made a diligent effort to provide Father
appropriate reunification services.
¶23 Father also challenges the superior court’s findings that
Father has been unable to remedy the circumstances causing the children
to be in an out-of-home placement and that there is a substantial likelihood
that Father will not be capable of exercising proper and effective parental
care and control in the near future.
¶24 The superior court found Father failed to remedy the
circumstances causing the children to be in an out-of-home placement
because Father failed to resolve his anger problem and refused to accept
responsibility for the trauma and neglect the children suffered in his care.
Though Father sees it differently, reasonable evidence supports the court’s
findings. See Jordan C., 223 Ariz. at 93, ¶ 18. Despite completing an
anger-management class, Father was continually aggressive towards and
around the children. Further, during the approximately six years that the
children were in care, Father refused to accept responsibility for the trauma
and neglect the children suffered. The superior court did not err in finding
Father had not remedied the circumstances causing the children to be in an
out-of-home placement and that there was a substantial likelihood Father
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Decision of the Court
would be unable to exercise proper and effective care and control in the
near future.
CONCLUSION
¶25 For the foregoing reasons, we affirm the superior court’s
order terminating Mother and Father’s parental rights to I.Z., A.Z., and K.Z.
AMY M. WOOD • Clerk of the Court
FILED: AA
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