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Titus S. v. Department of Child Safety

Court of Appeals of Arizona, Second Division

April 9, 2018

Titus S., Appellant,
Department of Child Safety, T.S., and R.S., Appellees.

          Appeal from the Superior Court in Pima County No. JD20150693 The Honorable Brenden J. Griffin, Judge

          Sarah Michèle Martin, Tucson Counsel for Appellant

          Mark Brnovich, Arizona Attorney General By Michelle R. Nimmo, Assistant Attorney General, Tucson Counsel for Appellee Department of Child Safety

          Presiding Judge Staring authored the opinion of the Court, in which Chief Judge Eckerstrom and Judge Brearcliffe concurred.


          STARING, Presiding Judge

         ¶1 This appeal involves the termination of parental rights of Titus S., an out-of-state father, to T.S., his fourteen-year-old daughter and R.S., his thirteen-year-old son. In the unusual circumstances presented here, we conclude the court's best-interests finding was an abuse of discretion and, accordingly, we reverse the termination order.

         Factual and Procedural Background

         ¶2 In October 2015, T.S. and R.S. were living with their mother, Ariana E., and their stepfather, Donald M., when the Department of Child Safety (DCS) took them into temporary custody based on reports of domestic violence between the couple and allegations that Ariana was a methamphetamine addict. At the time, Titus was living in Nebraska, having left Tucson in 2011 or 2012. He had regularly sent Ariana financial support, as well as gifts for the children, before he suffered a work-related injury in the summer of 2014.[1]

         ¶3 Since that injury, Titus has been unemployed, except for occasional "odd jobs, " and his application for disability payments was still pending as of the adjudication hearing. He has seen the children only once since the injury, in the fall of 2014. He said he was aware of Ariana's history of drug abuse "years back, " noting that the children had lived with him for six months while Ariana was in a drug rehabilitation program "eight to nine years" before the children's removal in 2015. But he maintained he was unaware of any substance-abuse issues when he left Arizona or when he last saw her and the children in 2014. According to a permanency report, once DCS became involved, "he asked if he could pick up the children now." But he did not have custody orders, and DCS reported a "safety concern[]" based on Ariana's statement that Titus used marijuana and Titus's report that he has had two DUI convictions and has a breathalyzer-controlled ignition device installed on his vehicle. The children were adjudicated dependent as to Titus in November 2015, after he admitted the allegations in an amended dependency petition.

         ¶4 In January 2016, DCS reported that Titus had participated in telephone calls with the children and had sent them Christmas gifts but had not responded to the DCS case worker and had not completed a referral, made earlier that month, for an initial drug screen. DCS had nonetheless begun completing an ICPC[2] packet for Titus to seek approval as a placement. In a minute entry following a February dependency review hearing, the juvenile court noted the "attempts to locate a drug testing facility for [Titus], " found Titus "partially compliant" with reunification goals, and found DCS had made reasonable efforts to reunify the family.

         ¶5 Throughout the dependency, DCS reported Titus had "low" or "partial" participation in reunification services. In June 2016, the juvenile court found Titus "in substantial compliance with the case plan, " but added, "[T]here is difficulty ascertaining his compliance based on his out of state status." By a September permanency hearing, an ICPC placement for Titus was "tentatively approved" pending a drug test and home preparations, and the children's attorney filed an objection to DCS's request to change the case plan to severance and adoption, stating, "If return to [Ariana] is not possible [T.S. and R.S.] want to be placed with [Titus]." In its minute entry, the court noted that the children were "agreeable with a guardianship" and that DCS had, at the hearing, recommended guardianship as a new case plan goal. The court did not change the case plan but "grant[ed] leave to all parties to file any motion they deem to be appropriate prior to the next hearing, " which it scheduled for both initial guardianship and initial severance hearings. The court found Titus's compliance with his DCS case plan was "unclear . . . as he lives out-of-state and the Court does not have adequate information."

         ¶6 In January 2017, DCS reported Titus had completed a parenting class but still had not completed baseline drug testing or a psychological evaluation, and DCS had deferred individual counseling services pending the evaluator's recommendation. Noting that no motion for termination or guardianship had yet been filed, the juvenile court granted Ariana's request for mediation, changed the case plan goal "to severance and adoption and permanent guardianship, " and ordered DCS to "file a severance motion or a motion for appointment of a permanent guardian or both if no resolution is reached at the mediation." The court further ordered Titus to submit to a baseline hair follicle drug test.

         ¶7 At a status hearing the following month, DCS told the juvenile court that the children were unwilling to consent to an adoption[3] and that, although T.S.'s placement was willing to adopt her, they were unwilling to serve as permanent guardians. Accordingly, DCS asked for additional time to identify an "appropriate" placement before filing a motion for permanent guardianship. Titus told the court he had completed his psychological evaluation and would be submitting to a hair follicle test, and the court scheduled a permanency hearing for May.

         ¶8 Before the May 2017 hearing, DCS reported a hair follicle test Titus completed in March had been positive for THC, [4] and his urine test had shown the presence of Oxazepam, Nordiazepam, and Temazepam. Titus told DCS the THC result was caused by his recreational use of marijuana during a recent trip to Colorado and the other substances were related to prescription medication for his back injury. But, according to DCS, Titus had not responded to repeated requests for documentation of all his prescriptions. Nor had he provided DCS with documentation of his income.

         ¶9 In its report, DCS also confirmed that Titus had completed his psychological evaluation. Although "individual therapy was not a direct requirement" recommended in the "psycho-social assessment, " the DCS case worker believed "individual counseling would be necessary to address substance use concerns as well as what DCS perceives to be anger management needs."[5] DCS did not provide a referral for counseling, however, as Titus had announced plans of an imminent move from Nebraska to Missouri, where he would live in his mother's home. This move would require a new ICPC application, which DCS had initiated, as well as identification of services in a new state.

         ¶10 According to DCS, T.S. "did not want to be placed with her father, " but also would prefer placement in a guardianship over adoption. And, as of February 2017, R.S. stated he would rather remain in Tucson with his current placement than be placed with Titus, although his first choice continued to be reunification with Ariana. Finally, DCS told the court it had recently required that all further telephone communications between Titus and the children be supervised, as the case worker had become aware of text messages to R.S. discussing the case "in [an] inappropriate context and us[ing] profanity."

         ¶11 At the permanency hearing, the juvenile court granted DCS's motion to change the case plan to severance and adoption, over the objections of both parents and the children. With respect to Titus's compliance with services, the court noted, "[He] is residing out-of-state, and seems to be doing what he can although progress is slow." Later that month, the attorney for the children informed the court of a potential conflict between them, and the court appointed new counsel for T.S.

         ¶12 DCS then filed a motion to terminate Titus's parental rights, alleging, pursuant to A.R.S. § 8-533(B)(2), that he had neglected the children by failing to protect them from Ariana's drug abuse, and also, pursuant to § 8-533(B)(8)(c), that despite "diligent effort[s]" by DCS "to provide appropriate reunification services, " he had been unable to remedy the circumstances causing the children to be in an out-of-home placement for more than fifteen months and there was a substantial likelihood he would be unable to parent effectively in the near future. In July, before the termination hearing, T.S. joined R.S. in his non-licensed foster care/kinship placement.[6] R.S. had been placed there since February 2017, and the placement was willing to either adopt both children or serve as their permanent guardians.

         ¶13 At a contested termination hearing in September 2017, the juvenile court granted the termination motion on the time-in-care ground but found neglect had not ...

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