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Jose H. v. Arizona Department of Economic Security

Court of Appeals of Arizona, First Division, Department E

June 27, 2013

JOSE H., Appellant,

Not for Publication -Rule 103(G) Ariz. R. P. Juv. Ct.; Rule 28, ARCAP

Appeal from the Superior Court in Maricopa County Cause No. JD8647 The Honorable Colleen McNally, Judge

Law Office of Anne M. Williams, P.C., By Anne M. Williams Attorney for Appellant

Thomas C. Horne, Arizona Attorney General By Nicholas Chapman-Hushek Attorneys for Appellee Arizona Department of Economic Security



¶1 Jose H. ("Father") appeals the juvenile court's order terminating his parental rights to his son ("the child").[1] Father argues that the court "fundamentally erred" by giving greater weight and consideration to the testimony of witnesses (a psychologist and a Child Protective Services ("CPS") case manager) who testified in support of the motion for termination than to the reports of the Mexican home study evaluators and Father's treating therapist in Mexico regarding Father's ability to parent. For the following reasons, we disagree, and therefore affirm the court's order.


¶2 We view the evidence presented to the juvenile court in the light most favorable to affirming the court's findings. Matter of Appeal in Maricopa Cnty., Juvenile Action No. JS-8490, 179 Ariz. 102, 106, 876 P.2d 1137, 1141 (1994).

¶3 Father and Mother[2] are the unmarried parents of the child, born in March 2011. After the child was born substance exposed, the Arizona Department of Economic Security ("ADES") was notified, and the child was taken into CPS custody. At the time of the child's birth, Father was living in Mexico, having been deported[3] in December 2010 after being sent to jail in October 2010. Father had previously lived in the United States for about seven years, although not continuously.

¶4 A few weeks after the child was born, ADES filed a dependency petition as to both Mother and Father. With regard to Father, ADES alleged he had neglected the child because his deportation and inability to reenter the United States prevented him from providing the child with adequate food, shelter, clothing, and medical care, and that he was unable to parent the child, as evidenced by the recent termination of his parental rights as to the two other children. The juvenile court determined that the allegations of the petition were true and found the child dependent as to Father in December 2011. The court approved a case plan of family reunification despite the objection of the child's guardian ad litem ("GAL"), who believed a plan of severance and adoption was more appropriate.

¶5 Based on the court's ruling, ADES offered services to Father, including interstate compact with Mexico, parenting skills class, random drug and alcohol testing, therapy, and domestic violence counseling. To achieve reunification, CPS informed Father he would need to refrain from substance abuse, demonstrate his ability to handle stress, refrain from committing domestic violence, develop fundamental parenting skills, and participate in services that Mexico's social services agency would offer him.

¶6 At a review hearing in June 2012, CPS submitted an addendum report, which summarized a home study conducted on Father by DIF.[4] The addendum report noted several concerns about the home study, including a lack of information regarding Father's history of domestic violence or any efforts to remedy that issue. The report also noted that CPS "had considerable concerns about [Father's] relationship patterns" and that he had never met the child nor had he made any attempts to send the child any cards, pictures, or financial support. Notwithstanding these concerns, CPS requested that the case plan remain family reunification to give ADES more time to make an "educated decision" regarding the best interests of the child. The GAL, however, renewed her request to proceed with severance and adoption. Over Father's objection, the juvenile court changed the case plan and directed the GAL to file a motion for termination. In the subsequent motion, the GAL alleged that termination of Father's rights was justified under Arizona Revised Statutes ("A.R.S.") section 8-533(B)(8)(a) (nine months' time-in-care), (B)(8)(c) (fifteen months' time-in-care), and (B)(10) (prior termination of parental rights for the same cause within the last two years). Father contested the motion and the court held a three-day severance hearing.

¶7 Father testified at the hearing by phone because he was unable to legally enter the United States. He admitted he had numerous contacts with police during his relationship with Mother, which he attributed to Mother's substance abuse. He repeatedly denied any domestic violence, but did admit that his alcohol abuse caused him to lose relationships with his other children (who still reside in Mexico), his job, and his driving privileges. He also admitted that even though he had agreed to have no contact with Mother as a result of the dependency of their two older children, he had sexual intercourse with her knowing that she was abusing drugs at the time. Mother became pregnant with the child. Father's explanation was that Mother "trapped" him by inviting him for meals and talking about the children.

¶8 Father also testified he had not consumed alcohol since 2007 but only participated in one urinalysis test for alcohol. In coordination with Mexican social services Father participated in two home studies. He also participated in substance abuse counseling, substance abuse testing, domestic violence classes and alcohol support meetings. Father expressed frustration in working with CPS and admitted he never tried to provide any support or gifts to the child or otherwise attempt to start a relationship with the child, whom he ...

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