Victor B., Elizabeth B. 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
VICTOR B., ELIZABETH B.,
Appellants,
v.
DEPARTMENT OF CHILD SAFETY, E.M., C.B.,
Appellees.
No. 1 CA-JV 17-0005
FILED 9-28-2017
Appeal from the Superior Court in Maricopa County
No. JD510990
The Honorable Arthur T. Anderson, Judge
AFFIRMED
COUNSEL
The Stavris Law Firm, PLLC, Scottsdale
By Alison Stavris
Counsel for Appellant Father
Denise L. Carroll, Esq, Scottsdale
By Denise Lynn Carroll
Counsel for Appellant Mother
Arizona Attorney General's Office, Tucson
By Dawn R. Williams
Counsel for Appellee DCS
VICTOR B., ELIZABETH B. v. DCS, et al.
Decision of the Court
MEMORANDUM DECISION
Judge Diane M. Johnsen delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge Maria Elena Cruz joined.
J O H N S E N, Judge:
¶1 Elizabeth B. ("Mother") appeals the superior court's order
terminating her parental rights to her two children, and Victor B. ("Father")
appeals the order terminating his parental rights to his child. We affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 Mother is the biological parent of a girl born in 2012.1 Mother
and Father together are the biological parents of another girl born in 2014.
In April 2013, the Department of Child Services ("DCS") removed the older
girl from Mother and placed her with the girl's maternal grandmother; the
superior court found the child dependent based on evidence that Mother
had a substance-abuse problem, lacked stable housing and had neglected
the child.2 Mother participated in parent-aide services, completed
substance-abuse counseling and rented an apartment with Father. After the
younger girl was born, DCS returned the older girl to Mother in September
2014.
¶3 Less than a month later, Mother and Father were involved in
a violent altercation with Mother's family outside a restaurant in Gilbert.
Father stabbed maternal grandmother's boyfriend, and Mother shouted
profane threats at maternal grandmother. Both children witnessed these
events, and both parents were arrested. DCS eventually took both children
into custody and filed a dependency action for the younger one five days
later. The superior court found the child dependent as to both parents in
1 We view the facts and draw all reasonable inferences in the light
most favorable to upholding the superior court's order. Jesus M. v. Ariz.
Dep't of Econ. Sec., 203 Ariz. 278, 282, ¶ 13 (App. 2002).
2 The superior court also found the child dependent as to her
biological father, whose rights later were severed. He is not a party to this
appeal.
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VICTOR B., ELIZABETH B. v. DCS, et al.
Decision of the Court
April 2015; meanwhile, the dependency for the older child remained in
place.
¶4 DCS recommended Father attend a substance-abuse
treatment program, but he refused; he also missed some anger-
management counseling sessions and would not attend parenting classes
or participate in one-on-one supervised visitation meetings. Father
unsuccessfully closed-out of substance-abuse treatment for the second time
in December 2014. DCS recommended Mother attend parenting-skills
groups and domestic-violence counseling. In December 2014, Father and
Mother decided to enroll in treatment programs at Potter's House, a
counseling center with which DCS had no contract. The parents' case
manager advised them DCS would not be able to pay for services at Potter's
House and told them that DCS could pay for the same services at a
comparable facility. Mother successfully completed her domestic-violence
treatment program on July 22, 2015.
¶5 On July 30, 2015, only one week later, police came to Mother
and Father's apartment to investigate a claim of domestic violence. Father
escalated the situation by raising his voice to the officers. The officers
arrested Father, who proceeded to bash his own head on the center divider
of the squad car, drawing blood. Father eventually pled guilty to disorderly
conduct with domestic violence and attempted aggravated assault and was
given a two-year term of probation.
¶6 Meanwhile, Mother stopped attending her parenting-skills
classes when her insurance was cancelled, and Potter's House terminated
her from the program in September 2015. Potter's House similarly
terminated Father from substance-abuse and anger-management
treatment. Father and Mother also failed to successfully complete their
supervised visitation. Counselors unsuccessfully closed Father out of
another substance-abuse counselling referral in May 2016. Mother began
counseling for depression and substance abuse, but the provider cancelled
services for lack of contact in June 2016. Father did, however, successfully
complete domestic-violence treatment in July 2016.
¶7 DCS moved to terminate Mother's and Father's parental
rights in December 2015. The superior court held a hearing over five days
in November 2016. During the hearing, the court ordered Father to submit
a drug test, and he tested positive for methamphetamine.
¶8 The superior court terminated both parents' rights on the
ground of 15 months' time-in-care under Arizona Revised Statutes
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Decision of the Court
("A.R.S.") section 8-533(B)(8)(c) (2017) and in addition terminated Father's
rights on the ground of prolonged abuse of dangerous drugs, controlled
substances or alcohol under A.R.S. § 8-533(B)(3).3 Mother and Father each
timely appealed. We have jurisdiction pursuant to Article 6, Section 9 of
the Arizona Constitution, A.R.S. §§ 8-235(A) (2017), 12-2101(A)(1) (2017)
and Arizona Rule of Procedure for the Juvenile Court 103(A).
DISCUSSION
A. General Principles.
¶9 The right to custody of one's child is fundamental but not
absolute. Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, 248, ¶¶ 11-12
(2000). The superior court may terminate a parent-child relationship upon
clear and convincing evidence of at least one of the statutory grounds set
forth in A.R.S. § 8-533(B). Michael J., 196 Ariz. at 249, ¶ 12. Additionally,
the court must find by a preponderance of the evidence that termination is
in the child's best interests. Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 22
(2005).
¶10 We review a termination order for an abuse of discretion.
Mary Lou C. v. Ariz. Dep't of Econ. Sec., 207 Ariz. 43, 47, ¶ 8 (App. 2004).
Because the superior court is in the best position to "weigh the evidence,
observe the parties, judge the credibility of witnesses, and make
appropriate findings," we will accept its findings of fact unless no
reasonable evidence supports them. Jesus M. v. Ariz. Dep't of Econ. Sec., 203
Ariz. 278, 280, ¶ 4 (App. 2002). On appeal, this court will affirm a severance
order unless it is clearly erroneous. Id.
¶11 Under § 8-533(B)(8)(c), DCS must show "the child is being
cared for in an out-of-home placement," the child "has been in an out-of-
home placement for a cumulative total period of fifteen months or longer,"
DCS "has made a diligent effort to provide appropriate reunification
services," "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." Under the statute,
the "circumstances which cause the child to be in an out-of-home
placement" are those that exist at the time of severance. Marina P. v. Ariz.
Dep't of Econ. Sec., 214 Ariz. 326, 330, ¶ 22 (App. 2007).
3 Absent material revision after the relevant date, we cite a statute's
current version.
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Decision of the Court
B. Father's Appeal.
¶12 In finding that Father was unable to remedy the
circumstances that caused his child's out-of-home placement, the superior
court cited the two domestic-violence incidents as "proof of Father's
uncontrolled anger." The court also concluded that Father "plays down the
severity of his behavior" and continued to use drugs through the
dependency. Father argues that the superior court erred in finding he had
been unable to remedy the circumstances that caused the out-of-home
placement, but the two domestic-violence incidents, separated only by
months (the second of which occurred during the dependency), along with
Father's drug use and failure to complete numerous rehabilitative services,
reasonably support the superior court's finding that Father was unable to
remedy the circumstances giving rise to his daughter's out-of-home
placement. Cf. Desiree S. v. Dep't of Child Safety, 235 Ariz. 532, 534, ¶ 11 (App.
2014) (insufficient evidence supported severance when parent had
remedied circumstances by "successfully complet[ing] all of the reasonable
services offered to implement family reunification").
¶13 Father further argues DCS failed to show it "made diligent
efforts to provide [him] with rehabilitative services." Father contends the
psychologist who performed his psychosexual examination was biased and
he implies such alleged bias negated DCS's efforts to provide services. To
meet its duty of "diligent effort," DCS "need not provide every conceivable
service, [but] it must provide a parent with the time and opportunity to
participate in programs designed to improve the parent's ability to care for
the child." Mary Ellen C. v. Ariz. Dep't of Econ. Sec., 193 Ariz. 185, 192, ¶ 37
(App. 1999) (citation and quotation omitted). Father contends the
psychologist who examined him was biased against him because she was
married to a prison inmate at the time she examined Father. Father does
not explain such bias, nor does the record demonstrate bias. In any event,
based on evidence showing that DCS provided Father mental health
counseling, parent-aide services, domestic-violence counseling and
substance-abuse counseling, along with transportation to each of these
services, the superior court did not err in finding DCS showed it had made
diligent efforts to provide Father with appropriate reunification services.4
4 Father does not argue severance will not be in his child's best
interests. Because we are affirming the superior court's severance of
Father's parental rights based on 15 months' out-of-home placement, we
need not consider whether the court erred in finding the evidence also
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VICTOR B., ELIZABETH B. v. DCS, et al.
Decision of the Court
C. Mother's Appeal.
¶14 Mother argues DCS failed to make a "diligent effort to provide
appropriate reunification services" because it did not pay for her counseling
at Potter's House after Mother's insurance coverage ran out. See A.R.S. § 8-
533(B)(8). Mother's caseworker, however, testified she had offered Mother
and Father the same services they were receiving at Potter's House at a
different counseling center with which DCS had a contract. The caseworker
further testified she had told Mother and Father before they began services
at Potter's House that they would need to pay for those services because
DCS had no contract with Potter's House. DCS also offered the parents
transportation to the services at the DCS contractor. This evidence
reasonably supports the superior court's finding that DCS "made a diligent
effort to provide appropriate reunification services." See A.R.S. § 8-
533(B)(8).
¶15 Mother further argues the superior court erred in finding that
she will not be capable of exercising proper parental care in the near future.
Mother asserts she could be a better parent if given more time to complete
services. Although Mother did complete some services in 2014, her track
record grew steadily worse after DCS removed the children in October
2014. The superior court noted that "Mother has not embraced individual
counseling to address the difficulties she encountered growing up and how
they impact her mental health, decision-making, and involvement with
abusive men." After DCS filed for severance, Mother enrolled in individual
counseling services, but the provider discharged her several months later
because she had not attended a single individual counseling session. On
the record presented, reasonable evidence supports the superior court's
finding that Mother will be incapable of exercising proper parental care in
the near future. See Maricopa County Juv. Action No. JD-561, 131 Ariz. 25, 28
(1981) ("Implicit in this right of proper parental care are the rights to good
physical care and emotional security.") (citation omitted).
¶16 Last, Mother argues severance is not in the best interests of
her children because they have bonded with her. "A finding that the best
interests of the child will be served by removal from a custodial relationship
may be established by either showing an affirmative benefit to the child by
removal or a detriment to the child by continuing in the relationship."
Jennifer B. v. Ariz. Dep't of Econ. Sec., 189 Ariz. 553, 557 (App. 1997). The
superior court found that termination would benefit the children by freeing
satisfied the statutory ground of chronic drug or alcohol abuse. See Michael
J., 196 Ariz. at 251, ¶ 27.
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VICTOR B., ELIZABETH B. v. DCS, et al.
Decision of the Court
them from the drugs, domestic violence and instability they experienced in
Mother's home. Mother continued to live with Father after he pled guilty
to domestic violence, and Father was still in the home when he tested
positive for methamphetamine in November 2016, reasonably supporting
the superior court's finding.
CONCLUSION
¶17 For the foregoing reasons, we affirm the superior court's order
terminating Mother's parental rights as to both children at issue in this
action and terminating Father's parental rights as to the younger child at
issue in this action.
AMY M. WOOD • Clerk of the Court
FILED: AA
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