Mychel E. v. Dcs, A.S.

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

MYCHEL E., Appellant,

v.

DEPARTMENT OF CHILD SAFETY, A.S., Appellees.

No. 1 CA-JV 17-0280
FILED 1-16-2018

Appeal from the Superior Court in Maricopa County
Nos. JD33267
JS18793
The Honorable Alison S. Bachus, Judge

AFFIRMED

COUNSEL

David W. Bell Attorney at Law, Higley
By David W. Bell
Counsel for Appellant

Arizona Attorney General’s Office, Tucson
By Laura J. Huff
Counsel for Appellee Department of Child Safety
 MYCHEL E. v. DCS, A.S.
Decision of the Court

MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge Diane M. Johnsen joined.

C R U Z, Judge:

¶1 Mychel E. (“Father”) appeals the superior court’s order
terminating his parental rights. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2 Father is the biological parent of A.S., born October 1, 2016.
When A.S. was born, hospital staff immediately reported the birth to the
Department of Child Safety (“DCS”) due to Father’s and mother’s1
“extensive history with DCS.” Both Father’s and mother’s parental rights
to two other children had recently been terminated. At the time of A.S.’s
birth, Father was incarcerated.

¶3 Five days after A.S.’s birth, DCS filed a dependency petition,
alleging Father was incarcerated and had a long history of substance abuse
which prevented him from providing proper and effective parental care
and control to A.S. Two months later, in December 2016, DCS petitioned to
terminate Father’s parental rights to A.S. because his parental rights to
another child had been terminated within the preceding two years for the
same cause. See Ariz. Rev. Stat. (“A.R.S.”) § 8-533(B)(10).

¶4 At the combined dependency and termination hearing in May
2017, the court found A.S. dependent as to Father and granted DCS’ motion
to file an amended petition for termination to add an allegation of
abandonment as to Father. After hearing testimony from Father and the
DCS case manager, the court terminated Father’s parental rights on both
grounds.

¶5 Regarding the prior termination of parental rights within the
preceding two years, the superior court first found that Father’s rights to

1 Mother’s parental rights were terminated simultaneously with
Father’s, but she is not a party to this appeal.

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Decision of the Court

another child, M.E., were terminated in September 2016.2 It found the
factual causes of the termination were Father’s incarceration and his failure
to engage in services, maintain housing, or sustain a source of income. With
regard to Father’s ability to parent A.S., the court found Father had been,
and currently was, in the custody of the Arizona Department of Corrections
and accordingly lacked housing or regular employment, and had not
engaged in services offered by DCS. The court found that DCS had
provided Father sufficient reunification services and that based on Father’s
history and the evidence before the court, there was nothing to indicate
Father’s plan for A.S. would be sufficiently different than his unsuccessful
plan for M.E. so as to produce a different result.

¶6 With regards to the ground of abandonment, the superior
court found Father had done “nothing” to establish a relationship with A.S.;
had failed to provide support, ask for visits, or send any cards, gifts, or
letters; and did not rebut the presumption of abandonment resulting from
his failure to maintain a normal parent-child relationship for a period
beyond six months.

¶7 The superior court found by a preponderance of the evidence
that termination of Father’s parental rights was in A.S.’s best interest
because A.S. had been in the same placement since he was removed from
Father’s care in October 2016; the placement was meeting all of A.S.’s needs,
providing A.S. with a stable home, and allowing visits from A.S.’s siblings;
and A.S. had bonded with the placement. The court also found termination
of Father’s parental rights was in A.S.’s best interest because it would
further the plan of adoption, which would provide A.S. with permanency,
stability, and a drug-free home; A.S. was adoptable; and another adoptive
placement could be located should the current placement be unable to
adopt.

¶8 Father timely appealed. We have jurisdiction pursuant to
A.R.S. §§ 12-120.21(A)(1), and -2101(A)(1).

2 Although the termination order for another child, S.E., also was
before the court, that order does not discuss the factual cause for
termination. Accordingly, in considering the prior-termination ground
alleged for severance of Father’s rights to A.S., we focus on the order
terminating Father’s rights pertaining to M.E.

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 MYCHEL E. v. DCS, A.S.
Decision of the Court

DISCUSSION

¶9 Father argues the superior court erred by allowing the State
to add an untimely allegation of abandonment over Father’s objection and
by finding DCS had proven both grounds for termination of his parental
rights. However, because we conclude sufficient evidence supports
termination on the ground of “ha[ving] parental rights to another child
terminated within the preceding two years for the same cause,” see A.R.S.
§ 8-533(B)(10), we need not address Father’s contentions regarding the
ground of abandonment or the amendment to the termination petition, see
Crystal E. v. Dep’t of Child Safety, 241 Ariz. 576, 577, ¶ 5 (App. 2017) (stating
this Court need not address an appellant’s arguments pertaining to other
grounds for termination if reasonable evidence supports any one ground).

I. Standard of Review

¶10 We review a termination order for an abuse of discretion.
Frank R. v. Mother Goose Adoptions, 243 Ariz. 111, 114, ¶ 17 (2017). When
reviewing the record, we “accept the juvenile court’s findings of fact unless
no reasonable evidence supports those findings, and we will affirm a
[termination] order unless it is clearly erroneous.” Roberto F. v. Ariz. Dep’t
of Econ. Sec., 232 Ariz. 45, 54, ¶ 41 (App. 2013).

II. Grounds for Termination of Parental Rights

¶11 Father argues the superior court abused its discretion by
finding he was unable to parent A.S. for the same cause that led to the
termination of his parental rights to another child.3 We disagree.

¶12 A parent’s rights in the care, custody, and management of his
children are fundamental, but not absolute. Kent K. v. Bobby M., 210 Ariz.
279, 284, ¶ 24 (2005). A court may terminate those rights if it finds: (1) clear
and convincing evidence of one of the statutory grounds for termination in
A.R.S. § 8-533(B), and (2) by a preponderance of the evidence that
termination is in the child’s best interest. Id. at 281–82, 288, ¶¶ 7, 41.

¶13 Section 8-533(B)(10) allows termination if “the parent has had
parental rights to another child terminated within the preceding two years
for the same cause and is currently unable to discharge parental

3 Father does not challenge the superior court’s best-interests finding,
therefore we accept the court’s finding and do not address it further. See
Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 249, ¶ 13 (App. 2000)
(accepting best interests finding when parent did not challenge it).

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 MYCHEL E. v. DCS, A.S.
Decision of the Court

responsibilities due to the same cause.” A.R.S. § 8-533(B)(10). The “same
cause” language in subsection (B)(10) “refer[s] to the factual ‘cause’ that led
to the termination . . . and not the statutory ground or grounds that
supported the preceding [termination].” Mary Lou C. v. Ariz. Dep’t of Econ.
Sec., 207 Ariz. 43, 48, ¶ 11 (App. 2004). When proceeding pursuant to
subsection (B)(10), DCS is required to “prove by clear and convincing
evidence that it had made a reasonable effort to provide [the parent] with
rehabilitative services or that such an effort would be futile.” Id. at 49, ¶ 15.
Even if the record does not support the conclusion that DCS made
reasonable efforts to provide appropriate reunification services, we may
affirm if the facts indicate the parent “could not have completed all of the
services required to remedy the cause making [the parent] unable to
discharge parental responsibilities . . . by the time of the [termination]
hearing.” See id. at 50, ¶ 18 (affirming severance when parent had been
incarcerated throughout proceedings for drug-related offense and the
evidence indicated parent’s substance abuse problem would require “six to
eight months’ inpatient treatment, aftercare substance abuse treatment,
individual therapy, and hands-on parenting instruction” after her release
from prison).

¶14 Sufficient evidence supports the superior court’s finding that
Father had his parental rights to another child terminated within the
preceding two years for the same cause and was unable to discharge
parental responsibilities due to the same cause. Father concedes the court
terminated his rights to M.E. in September 2016 on the ground of out-of-
home placement for nine months. He also concedes that, as the court in
M.E.’s case found, he never engaged in services for M.E., lacked stable
housing and income, and was “in and out of incarceration” throughout the
proceedings. At the termination hearing in this case, Father admitted that
while the case regarding M.E. was in progress, he was arrested multiple
times in 2015 and 2016 for a drug-related offense and told DCS he would
participate in services for M.E. upon his release but never did so. He
acknowledged a history of drug use, including heroin, methamphetamine,
marijuana, and Percocet, starting in 2008, and he admitted he began using
illegal drugs upon his release from jail in 2015 despite receiving services.

¶15 With regards to A.S., Father was incarcerated throughout
A.S.’s dependency and termination proceedings for violating the probation
imposed after his April 2015 drug-related conviction. He accordingly
lacked housing or regular income with which to support A.S. Father
acknowledged receiving letters from the DCS case manager informing him
of the status of A.S.’s case, directing him to participate in services offered to
him while incarcerated, and telling him to provide any supporting

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 MYCHEL E. v. DCS, A.S.
Decision of the Court

documentation to DCS. However, although Father states he participated in
inmate-run Alcoholics Anonymous and Narcotics Anonymous programs,
he did not provide any supporting evidence he participated in such
services. The superior court also expressed concern regarding Father’s
track record with such programs.4 Similarly, although Father stated he
would be living in a halfway home upon his release, he provided no
evidence confirming his enrollment in a halfway home. He also admitted
he did not know whether A.S. could live with him upon his release and
acknowledged he would not be able to immediately take custody of A.S.

¶16 The DCS case manager testified that even after Father’s
release, Father would need to complete roughly six months of services,
including urinalysis, substance abuse assessment, and parent aide services,
before he could be reunited with A.S. Moreover, the case manager stated
Father would be expected to maintain appropriate housing and income,
and he said he had concerns with Father’s ability to parent because Father
was incarcerated and would need to demonstrate sustained sobriety for a
period after his release if he were not allowed to bring A.S. into a halfway
home. The case manager also explained Father had demonstrated a pattern
of promising to participate in services after being released from prison but
not following through with the services, as demonstrated by his actions in
the severance case concerning M.E.

¶17 This evidence is sufficient to show that, as in the termination
proceedings regarding M.E., Father failed to engage in the offered services,
lacked stable housing and income, and was “in and out of incarceration.”
Sufficient evidence supports the superior court’s finding that Father had his
parental rights to another child terminated within the preceding two years
for the same cause and was unable to discharge parental responsibilities
due to the same cause. Additionally, the record does support the court’s
implicit finding that rehabilitative measures by DCS would have been futile
in remedying the cause for Father’s inability to parent A.S. before the time
of the severance hearing.

4 The court noted Father had stated he was participating in Alcoholics
Anonymous and Narcotics Anonymous programs when sentenced for his
criminal matter in 2015 and continued his drug use even while under the
supervision of pretrial services.

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 MYCHEL E. v. DCS, A.S.
Decision of the Court

CONCLUSION

¶18 For the foregoing reasons, we affirm the superior court’s
order terminating Father’s parental rights as to A.S.

AMY M. WOOD • Clerk of the Court
FILED: AA

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