Court of Appeals of Arizona, First Division, Department E
October 17, 2013
Jose R., Appellant,
ARIZONA DEPARTMENT OF ECONOMIC SECURITY, J.M., Appellees.
Not for Publication – Ariz. R.P. Juv. Ct. 103(G); ARCAP 28
Appeal from the Superior Court in Maricopa County Cause No. JD509777 The Honorable Brian K. Ishikawa, Judge
Thomas C. Horne, Attorney General Mesa By Amanda Holguin, Assistant Attorney General Attorneys for Appellee
Arizona Department of Economic Security Christina Phillis, Maricopa County Public Advocate Mesa By Suzanne W. Sanchez, Deputy Public Advocate Attorneys for Appellant
LAWRENCE F. WINTHROP, Presiding Judge
¶1 Jose R. ("Father") appeals the juvenile court's order terminating his parental rights to J.M. ("Child"). Father argues that reasonable evidence does not support the finding that the Arizona Department of Economic Security ("ADES") provided adequate remedial services and that termination was not in the best interest of Child. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 In November 2011, the Child Protective Services ("CPS") Hotline received a report that Catalina M. ("Mother") and Father were abusing drugs while living with Child and her half-brother in a motel room. A CPS home visit revealed drugs and syringes on the floor within Child's reach; Child was sixteen months old at the time. After her removal from Mother and Father's custody, Child was diagnosed with Fetal Alcohol Syndrome ("FAS") and requires substantial therapy to help her address her developmental delays.
¶3 On December 12, 2011, ADES filed a dependency petition alleging Child was dependent as to Father and Mother. At the preliminary protective hearing the juvenile court ratified a family reunification case plan. The preliminary protective order placed Child and her half-brother with a family friend. The juvenile court ordered Father and Mother to have one supervised visit per week for two hours. The juvenile court ordered ADES to offer, and Father agreed to, the following services: (1) Parent aide services, (2) substance abuse treatment through TERROS, (3) frequent substance abuse testing via urinalysis, and (4) transportation services.
¶4 During the pendency of this case, Father struggled with drug abuse, failed to participate in remedial services, and neglected court appearances. From November 29, 2011 until September 20, 2012, Father only appeared at TASC for urinalysis testing twice.
¶5 On January 13, 2012, Father was arrested for possession of dangerous drugs and possession of drug paraphernalia. Father failed to appear for mediation on February 15, 2012. On February 22, after Father failed to appear for the scheduled pretrial conference, the juvenile court converted the conference to a dependency hearing and found Child dependent as to Father. At some point prior to April 9, 2012, Father was incarcerated and consequently did not participate in remedial services until his release. At the June 8 report and review hearing, upon oral motion by ADES, the court ordered the case plan changed to severance and adoption. On June 19, ADES filed a motion to terminate Father's parental rights pursuant to Arizona Revised Statutes ("A.R.S.") section 8-533(B)(3) (West 2013),  which provides statutory grounds for termination when a parent is unable to discharge parental responsibilities because of chronic drug abuse that will continue for a prolonged indeterminate period, and because termination was in the best interest of Child.
¶6 On July 6, 2012, Father committed criminal trespass in the third degree. In July 2012, Father participated in all visits with Child and a majority of the one-on-ones with his parent aide. In August, Father participated in less than half of his visits with Child and failed to meet with his parent aide for one-on-ones. In September, Father seldom participated in visits or one-on-ones. That month Father's probation was revoked, and he was again incarcerated from September 12, 2012 to December 29, 2012. Father's parent aide services were closed out on October 10 for Father's continued failure to appear.
¶7 On April 3 and 8, 2013, the juvenile court held a contested termination adjudication hearing. The court heard testimony from the CPS case manager and Father regarding his over twenty-year substance abuse problems. Father also testified about his efforts to overcome his addiction following his most recent incarceration. The CPS case manager testified and ADES offered evidence that Father did not substantially participate in offered remedial services. On May 6, 2013, the juvenile court filed a severance order terminating Father's parental rights to Child, pursuant to A.R.S. § 8-533(B)(3) and because termination was in the best interest of Child. On May 17, 2013, Father filed a timely notice of appeal. We have appellate jurisdiction pursuant to the Arizona Constitution, Article 6, Section 9, A.R.S. § 8-235(A), and Rule 103(A) of the Arizona Rules of Procedure for the Juvenile Court.
¶8 Father argues that ADES did not provide remedial services adequate to promote reunification and that termination was not in the best interest of Child. We will not disturb the juvenile court's order severing parental rights unless its findings are clearly erroneous, meaning no reasonable evidence supports them. Audra T. v. Ariz. Dep't of Econ. Sec, 194 Ariz. 376, 377, ¶ 2, 982 P.2d 1290, 1291 (App. 1998).
I. Termination Pursuant to A.R.S. § 8-533(B)(3)
¶9Under A.R.S. § 8-533(B)(3),
B. Evidence sufficient to justify the termination of the parent-child relationship shall include . . . . 3. That the parent is unable to discharge parental responsibilities because of . . . a history of chronic abuse of dangerous drugs, controlled substances or alcohol and there are reasonable grounds to believe that the condition will continue for a prolonged indeterminate period.
ADES must prove the requisite elements by clear and convincing evidence. See Santosky v. Kramer, 455 U.S. 745, 769 (1982). ADES must also provide evidence that it fulfilled its duty to provide remedial services to the parent before seeking to terminate parental rights under § 8-533(B)(3) . See Mary Ellen C. v. Ariz. Dep't of Econ. Sec, 193 Ariz. 185, 191-92, ¶ 31-34, 971 P.2d 1046, 1052-53 (App. 1999) . Father argues that ADES did not prove the statutory ground for termination because it did not provide adequate remedial services to assist Father in learning specialized medical skills necessary to meet Child's needs related to FAS. We disagree.
¶10 As a preliminary matter, ADES argues that Father waived this argument because he did not challenge the adequacy of services during any proceedings before the juvenile court. See Christina G. v. Ariz. Dep't of Econ. Sec, 227 Ariz. 231, 235, ¶ 15, n.8, 256 P.3d 628, 632, n.8 (App. 2011) (suggesting that a parent may waive her argument that ADES failed to provide adequate services when the parent agreed to the services ordered by the court at the outset of dependency and failed to raise that argument at other proceedings). Father did not challenge the adequacy of ADES services at any of seven hearings before the juvenile court, nor did Father raise his concerns at mediation. Other than a stray question during cross-examination of the CPS case manager at the termination hearing, nothing in the record suggests that Father raised this argument below, and it is deemed waived.
¶11 Even if properly raised on appeal, Father's argument fails because reasonable evidence supports the finding that CPS offered adequate services in which Father failed to participate. ADES offered Father the following services: (1) Parent aide services, (2) substance abuse treatment through TERROS, (3) substance abuse testing via urinalysis, and (4) transportation services. The CPS case manager specifically testified that the parent aide services offered included instruction to address Child's medical needs. The record, however, indicates that Father rarely availed himself of parent aide services. The CPS case manager was forced to concede on cross-examination that Father had never been "provided" such training. Because Father's counsel did not further probe this subject with the case manager, it is unclear from the record whether the case manager meant that Father had never been "provided" that training because he did not participate in parent aide services or because ADES did not offer those services. In determining credibility and making the requisite findings, the juvenile court had the discretion to evaluate the potential discrepancy in the case manager's testimony, and we will not substitute our judgment for that of the juvenile court. Instead, "we view the evidence and reasonable inferences to be drawn from it in the light most favorable to sustaining the court's decision, and we will affirm a termination order that is supported by reasonable evidence." Jordan C. v. Ariz. Dep't of Econ. Sec, 223 Ariz. 86, 93, ¶ 18, 219 P.3d 296, 303 (App. 2009) (citation omitted) . On this record, reasonable evidence supports the juvenile court's finding that ADES offered Father adequate remedial services.
¶12 Furthermore, although ADES "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. , 193 Ariz. at 192, ¶ 37, 971 P.2d at 1053, ADES "is not required to provide every conceivable service or to ensure that a parent participates in each service it offers, " Maricopa County Juv. Action No. JS-501904, 180 Ariz. 348, 353, 884 P.2d 234, 239 (App. 1994) (citation omitted). Father's argument is unpersuasive because after failing to participate in the services he cannot now claim that the offered services were inadequate. Cf. A.R.S. § 8-533(B)(8) (statutory ground for termination where child is cared for in out-of-home placement and ADES "has made a diligent effort to provide appropriate reunification services") and Maricopa County Juv. Action No. JS-501568, 177 Ariz. 571, 576, 869 P.2d 1224, 1229 (App. 1994) (holding that the parent who "disappears for months at a time and makes only sporadic, aborted attempts to remedy" the circumstances of the child's out-of-home placement may still face termination of his rights). Father's own testimony and the record unequivocally prove that he failed to meaningfully engage in services prior to his incarceration. Father relies on his "re-engagement" with services after his release from incarceration to assuage concerns about his prior failure to participate, but at the time of the termination adjudication hearing Father's four-month period of "re-engagement" in services paled in comparison to his over twenty-year history of substance abuse and the year he spent avoiding drug testing and substance abuse treatment. Therefore, reasonable evidence supports the juvenile court's finding that Father's drug abuse would continue for a prolonged indeterminate period, and we affirm.
II. Best Interest
¶13 To effectuate severance, the court must find, by a preponderance of the evidence, that termination is in the child's best interest. A.R.S. § 8-533(B); Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 22, 110 P.3d 1013, 1018 (2005) . "[A] determination of the child's best interest must include a finding as to how the child would benefit from a severance or be harmed by the continuation of the relationship." Maricopa County Juv. Action No. JS-500274, 167 Ariz. 1, 5, 804 P.2d 730, 734 (1990). "Factors considered are whether: 1) an adoptive placement is immediately available; 2) the existing placement is meeting the needs of the child; and 3) the [child is] adoptable." Raymond F. v. Ariz. Dep't of Econ. Sec, 224 Ariz. 373, 379, ¶ 30, 231 P.3d 377, 383 (App. 2010) (citations omitted).
¶14 Father argues that termination of his parental rights is not in the best interest of Child because there was not a particularized adoption plan in place at the time of severance. We disagree.
¶15 At the termination adjudication hearing, the CPS case manager testified that severance of Father's parental rights was in the best interest of Child. The case manager testified about Father's history of drug abuse, his refusal to participate in remedial services that would treat his drug addiction, his indifference to Child's well-being while incarcerated, and his inability to understand Child's special medical needs. The case manager also testified that although Child's FAS has complicated her ability to bond with other people, there is a prospective placement with foster mother's sister who has interacted daily with Child during the pendency of this case, is capable of meeting Child's special needs, and wants to adopt Child.
¶16 Father testified at the hearing about his twenty-year history of drug abuse, his unwillingness to participate in remedial services provided by ADES prior to his incarceration, his current employment and history of inability to maintain employment and continue treatment services, his incarceration and criminal record, and current housing instability. Father further testified that he did not understand FAS or Child's medical needs, but that he had requested information during his incarceration that he never received from the case manager. Father also testified that he has been sober for six months, inclusive of his period of incarceration, and that he has begun services to maintain sobriety.
¶17 The juvenile court found that "[t]ermination of the relationship would benefit the child because it would render the child free for adoption. Adoption will provide the child with a safe, stable, loving home free of substance abuse. The child [is] adoptable, and termination of  parental rights would further the plan of adoption." Reasonable evidence supports the court's findings on best interest, and we will not disturb its order.
¶18 Because reasonable evidence supports the findings of the juvenile court, we affirm the decision to terminate Father's parental rights.
CONCURRING: MARGARET H. DOWNIE, Judge JON W. THOMPSON, Judge