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John G. v. Arizona Department of Economic Security

Court of Appeals of Arizona, First Division, Department A

July 9, 2013

JOHN G., DAYTONA J., Appellants,

(Not for Publication -Rule 28, Arizona Rules of Civil Appellate Procedure)

Appeal from the Superior Court in Maricopa County Cause No. JD20795 The Honorable Jay R. Adleman, Judge Pro Tempore

Jennifer Perkowski Mesa Attorney for Appellant, John G.

Law Office of David M. Osterfeld, LLC Buckeye By David M. Osterfeld Attorneys for Appellant, Daytona J.

Thomas C. Horne, Arizona Attorney General Phoenix By Eric Devany, Assistant Attorney General Attorneys for Appellees.



¶1 The parents of A.G. ("Child") appeal the superior court's order terminating their parental rights.[1] We affirm.


¶2 Mother and Father are the biological parents of Child, who was born in February 2003 in California. Mother and Child moved to Arizona in 2008, while Father remained in California. In 2011, Mother and Child, then eight years old, were living with Dominick G. and Chad G., the respective fathers of Mother's other two children.[2] According to the evidence at trial, on September 11, 2011, Mother and the two men got into an argument at the home while the children were present, and Mother punched Dominick and cut Chad's throat with a meat cleaver. Mother was taken into custody and charged with aggravated assault with a deadly weapon, three counts of simple assault and one count of disorderly conduct. Father's whereabouts were unknown at the time, and he had not spoken to Child since the previous February. With Mother in jail and Father's whereabouts unknown, the Arizona Department of Economic Security ("Department") took legal custody of Child, who continued to live with Dominick, Chad and her two half-siblings because she had a significant relationship with Dominick, who helped care for her the previous three years and whom she called "Dad."

¶3 In September 2011, the Department filed a dependency petition, alleging that Child was dependent as to Mother due to her incarceration and because she had exposed Child to domestic violence. The Department alleged Child was dependent as to Father because he had failed to maintain a normal parent relationship and to provide for her support. After mediation, Mother submitted the issue of dependency to the superior court, which found Child dependent as to Mother in February 2012. In April 2012, Mother pled guilty to one count of aggravated assault and received a five-year sentence in the Arizona Department of Corrections ("DOC"). Mother was instructed to seek services in prison and she complied, participating in every applicable service offered.

¶4 Father contested the dependency. Father had last seen Child in July 2010 and had not communicated with Child from February 2011 until just after Mother was arrested. At that time, Father lived with his mother ("Grandmother"), was unemployed and received disability payments of $840 per month. Father and the Department agreed prior to the dependency hearing to allow weekly phone visits and to conduct a home survey to determine the suitability of Grandmother's home for Child. The home survey was not conducted, however, because Grandmother deemed it inappropriate for the Child to live in the home and her caretaker refused to provide her Social Security number. Although Father had been granted weekly phone visits, he contacted Child only once before the dependency hearing.

¶5 After a hearing in April 2012, the court adjudicated Child dependent as to Father. At the hearing, Father claimed that he could get a job and a place to live. Father was offered multiple services, including parenting classes, a psychological consultation and services deemed necessary as a result of the consultation. The court also ordered the Department to consider a home study if Father obtained separate housing.

¶6 In May 2012, the case worker, Michelle Samuel, sent Father a certified letter informing him that she was unable to contact him to coordinate services. The letter warned Father that if he did not participate fully in the case plan, he would risk severance of his parental rights. Father signed for the letter but did not contact Samuel to participate in services, claiming the "ball was left in [the Department's] court to contact me with services." Father also did not call Child for the weekly telephone visits or arrange to visit Child in person. The Department never sent Father any details about the psychological evaluation or parenting classes.

¶7 In July 2012, the Department changed its case plan from reunification to severance and adoption and filed a petition for termination of Mother's and Father's parental rights. The petition alleged that Mother had deprived Child of a normal home for a period of years because of her incarceration, pursuant to Arizona Revised Statutes ("A.R.S.") section 8-533(B)(4) (West 2013).[3] The petition alleged Father abandoned Child pursuant to A.R.S. ยง 8-533(B)(1) and that ...

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