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Enrico G. v. Department of Child Safety

Court of Appeals of Arizona, First Division

September 24, 2015

ENRICO G., Appellant,

Not for Publication – Rule 111(c), Rules of the Arizona Supreme Court

Appeal from the Superior Court in Maricopa County Nos. JD27407 and JD27378 The Honorable Bradley Astrowsky, Judge

John L. Popilek, P.C., Scottsdale By John L. Popilek Counsel for Appellant

Arizona Attorney General's Office, Phoenix By JoAnn Falgout Counsel for Appellee Department of Child Safety

Judge Lawrence F. Winthrop delivered the decision of the Court, in which Presiding Judge Randall M. Howe and Judge Jon W. Thompson joined.



¶1 In this consolidated appeal, Enrico G. ("Father") appeals the juvenile court's orders terminating his parental rights to his biological children - E.G., A.G., and K.G. (collectively, "the children") - on the grounds of chronic abuse of dangerous drugs and nine or more months' care in an out-of-home placement. For the following reasons, we affirm.


¶2 The children were born between June 2010 and October 2013. In November 2013, Father, who is visually impaired and suffers from posttraumatic stress disorder ("PTSD") after being shot in the head, was involved in a violent domestic relationship with Martika M., the mother of E.G. and A.G. Father also had a daughter, K.G., from a previous relationship who lived with him, [2] and Martika M. had at least three other biological children from previous relationships.

¶3 Both Father and Martika M. have a history of substance abuse, and Father admittedly uses methamphetamine and marijuana. Father would often leave K.G. in the care of Martika M., despite knowing Martika M. did not like K.G. and would neglect and/or abuse her.

¶4 On November 13, 2013, the Department of Child Safety ("DCS")[3] initiated a dependency petition (case number JD27378) as to K.G., alleging K.G. was dependent as to Father due to abuse or neglect.[4] The petition alleged Father had neglected K.G. due to his substance abuse while caring for her, exposing K.G. to domestic violence, and Father's mental health issues. The petition further alleged Father had reported "he uses methamphetamine to address complications from post[-]traumatic stress disorder, " and that Father failed to protect K.G. from Martika M.'s physical abuse. Shortly thereafter, ADES initiated a second dependency petition (case number JD27407) as to E.G. and A.G., alleging Father neglected them due to substance abuse and failing to provide the basic necessities of life, and abused them by failing to protect them from the domestic violence between him and Martika M.[5] In addition to the assistance of counsel, Father was appointed a guardian ad litem to represent his interests.

¶5 In January 2014, E.G., A.G., and K.G. were adjudicated dependent as to Father. The court ordered case plans of reunification concurrent with severance and adoption. In support of the case plans, the court ordered that Father receive substance testing by TASC, substance abuse treatment services provided by TERROS, parent aide services upon demonstration of sobriety, transportation, domestic violence counseling, and visitation.[6] Father, however, was generally noncompliant with services, and his attendance at report and review hearings was sporadic.

¶6 In October 2014, DCS moved to terminate Father's parental rights as to all three children on the grounds of an inability to discharge parental responsibilities due to chronic substance abuse pursuant to Arizona Revised Statutes ("A.R.S.") section 8-533(B)(3)[7] and the children's ongoing need for out-of-home placement for nine months or longer pursuant to A.R.S. § 8-533(B)(8)(a). DCS alleged that, as to Father's substance abuse, Father had been inconsistent in submitting to testing -causing multiple service referrals to be closed out - and on the occasions he did provide samples, Father had tested positive for amphetamine, methamphetamine, and marijuana. Father had also been recommended to participate in an intensive outpatient program through TERROS, but had failed to engage with the program, and although he had expressed a desire to engage in an inpatient program, he had made no steps toward that goal, despite being provided a list of community resources for him to engage in an inpatient facility. DCS further alleged Father had been inconsistent in visiting the children, often cancelling or showing up unprepared, had failed to obtain stable housing or employment as required for reunification, and had failed to demonstrate any of the behavioral changes outlined in his case plan.

¶7 An initial severance by motion hearing was conducted on December 11, 2014, in both matters as to all three children. Father, however, did not appear at the hearing. The court found no good cause for Father's absence and that he had waived his right to contest the allegations contained in the termination motions, see Ariz. R.P. Juv. Ct. 65(D)(3), but did not take testimony or rule on DCS's severance motions. Instead, the court gave Father leave to file a motion "to show there's good cause for his failure to appear and that there's a meritorious defense to the motion, " ...

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