Byron v. Dcs

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

BYRON W., Appellant,

v.

DEPARTMENT OF CHILD SAFETY, B.W., L.W., Appellees.

No. 1 CA-JV 19-0311
FILED 4-7-2020

Appeal from the Superior Court in Maricopa County
No. JD33161
The Honorable Sara J. Agne, Judge

AFFIRMED

COUNSEL

Czop Law Firm, PLLC, Higley
By Steven Czop
Counsel for Appellant

Arizona Attorney General’s Office, Phoenix
By Sandra L. Nahigian
Counsel for Appellee Department of Child Safety
 BYRON W. v. DCS, et al.
Decision of the Court

MEMORANDUM DECISION

Judge David B. Gass delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge Maria Elena Cruz
joined.

G A S S, Judge:

¶1 Byron W. (father) appeals the superior court’s order
terminating his parental rights to B and L, his biological children. Because
reasonable evidence supports the superior court’s order, the termination
of parental rights is affirmed.

FACTUAL AND PROCEDURAL HISTORY

¶2 DeChoal M. (mother) and father are the biological parents of
B and L (the children), both born August 19, 2016. Mother tested positive
for methamphetamine while pregnant with the children. Father reported
using marijuana in February 2016 and submitted a diluted urinalysis test
to the Department of Child Safety (DCS) as part of DCS’s services in
August 2016. After the children were born, DCS filed an in-home
dependency petition, offered in-home services, and placed the children
with their parents in a safety monitor’s home with a safety plan.

¶3 Mother and father violated the safety plan and were forced
to leave the safety monitor’s home. Father hid this fact from DCS for a
week. DCS filed a motion to change the children’s physical custody from
mother and father to DCS. In January 2017, the superior court granted
DCS’s motion. The children were placed with a maternal great aunt. In
January 2018, the superior court changed the case plan to severance and
adoption.

¶4 In February 2018, Dr. George Bluth conducted a
psychological evaluation of father. Dr. Bluth testified to his findings at the
August 2019 severance hearing. Dr. Bluth opined that father’s continued
use of marijuana is a barrier to reunification in this case, regardless of
whether the use is illegal or is medicinal and legal.

¶5 In September 2018, the superior court conducted a contested
severance hearing to consider the State’s petition to sever the children’s
parental relationship with mother and father. The superior court

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 BYRON W. v. DCS, et al.
Decision of the Court

terminated mother’s parental rights but denied father’s termination
because DCS did not meet its burden of showing father (1) was unable to
remedy the circumstances that caused the out of home placement, and (2)
was substantially likely to be incapable of exercising proper and effective
parental care and control in the near future.

¶6 The superior court specifically stated:

The Court is unable to make this finding as to [f]ather—
[DCS] had not, by the time of trial, assessed [f]ather’s living
arrangements or employment so as to permit the Court to
determine whether [f]ather had remedied or failed to
remedy instability that previously caused out-of-home
placement of the [c]hildren. [. . .] Given the circumstances
discussed as to [f]ather above, the Court does not find him
incapable of exercising proper and effective parental care
and control in the near future. Quite possibly, [f]ather will be
able to exercise that care and control in the near future or
would be able to do so now.

¶7 The superior court changed the case plan to reunification for
father. Father subsequently missed many of his scheduled urinalysis tests,
family-time coaching sessions, and visits with the children. Father
continued to live at his mother’s house, which DCS indicated was not an
appropriate residence for the children. Father also did not hold a steady
job.

¶8 In April 2019, the superior court granted the guardian ad
litem’s motion to change the case plan to severance and adoption.
Specifically, the motion alleged father continued to lack stable housing,
failed to demonstrate financial stability, regularly canceled or missed
visits, and continuously tested positive for tetrahydrocannabinol, showing
marijuana use.

¶9 In August 2019, the superior court held a contested
severance hearing. The superior court granted the motion to sever father’s
parental rights. The superior court found father’s “inability to provide a
safe and stable home for his [c]hildren” by the time of the hearing proved
a substantial likelihood he will not be capable of exercising proper and
effective parental care and control in the near future. As to the findings
from the September 2018 hearing, the superior court said “[f]ather’s lack
of progress since that Ruling issued has belied [the] prognostication” he
could possibly exercise proper care and control in the near future.

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 BYRON W. v. DCS, et al.
Decision of the Court

¶10 Father timely appealed. Father argues the superior court
erred when it found he will not be capable of exercising proper and
effective parental care in the near future. This court has jurisdiction under
A.R.S. §§ 8-235 and 12-120.21(A)(1).

ANALYSIS

¶11 The superior court may terminate parental rights if it finds,
by clear and convincing evidence, the existence of at least one statutory
ground for termination. Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246,
248-49, ¶ 12 (2000). The superior court must consider those “circumstances
existing at the time of the severance that prevent a parent from being able
to appropriately provide for his or her children.” See Marina P. v. Ariz.
Dep’t of Econ. Sec., 214 Ariz. 326, 330, ¶ 22 (App. 2007) (internal quotations
omitted). This court will uphold the superior court’s findings of fact
unless they are unsupported by reasonable evidence, and will affirm a
termination order unless it is clearly erroneous. Jesus M. v. Ariz. Dep’t of
Econ. Sec., 203 Ariz. 278, 280, ¶ 4 (App. 2002). This court will not reweigh
evidence or redetermine the credibility of witnesses. Alma S. v. Dep’t of
Child Safety, 245 Ariz. 146, 151, ¶ 18 (2018).

¶12 Grounds for termination are governed by A.R.S. § 8-533(B),
which identifies the statutory grounds for termination and requires the
court also consider the best interests of the children. Here, DCS moved to
terminate father’s parental relationship under A.R.S. § 8-533(B)(8)(c). This
subsection states when a “child has been in an out-of-home placement for
a cumulative total period of fifteen months or longer pursuant to court
order,” the parental relationship may be terminated if: (1) “the parent has
been unable to remedy the circumstances that cause the child to be in an
out-of-home placement,” and (2) it is substantially likely “the parent will
not be capable of exercising proper and effective parental care and control
in the near future.” See id.

¶13 Here, father does not dispute he was unable to remedy the
circumstances causing the children’s out-of-home placement by the time
of the August 2019 hearing. Father also does not dispute the superior
court’s best interests’ determination. Instead, father argues the superior
court erred in finding a substantial likelihood he will not be capable of
exercising proper parenting in the near future. Father essentially asks this
court to reweigh evidence from the superior court, which this court will
not do.

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 BYRON W. v. DCS, et al.
Decision of the Court

¶14 Father admittedly made positive steps from his situation at
the first severance hearing. Those improvements, however, do not
establish the superior court abused its discretion in concluding father
would not be capable of providing effective parental care in the near
future. See In re Maricopa Cty. Juv. Action No. JS-501568, 177 Ariz. 571, 577
(App. 1994).

¶15 At the September 2018 severance hearing, the superior court
denied DCS’s motion to terminate father’s parental rights in part because
DCS failed to assess father’s then current living arrangements and
employment. Between the two severance hearings, father had an eleven-
month opportunity to improve those circumstances to establish he could
provide a stable home environment for his children.

¶16 In that eleven-month period, father still did not adequately
remedy his unstable employment. As of the August 2019 hearing, father
did have a full-time job, but it was through a temp agency. Further, he
only started the job two days before the hearing. Before this temporary
job, father worked at a restaurant but quit after a few months because he
was not given a raise. Father admits he has gone through “too many” jobs
and his employment has been intermittent over the course of this case.
Father’s habitual job changes and choice to seek work through a temp
agency support the superior court finding a substantial likelihood he will
not secure stable employment in the near future.

¶17 Father secured a car, but had not yet secured suitable
housing where his children could live in the event of reunification. As of
the August 2019 hearing, father lived at his mother’s house, which DCS
believed was not an appropriate home for his children. Father applied for
and was accepted to rent an apartment but could not afford to pay for it
because he had to make car payments.

¶18 In its severance decision, the superior court specifically
identified father’s “inability to provide a safe and stable home for his
[c]hildren” as an indicator he would be unable to be an effective parent in
the near future. In short, father was given eleven months to secure stable
and safe housing but was unable to do so. The superior court found his
lack of progress in securing housing indicated he was unlikely to do so in
the near future. Reasonable evidence supports this finding.

¶19 The children’s best interests are not served by waiting
indefinitely for father to become a capable and effective parent. See JS-
501568, 177 Ariz. at 577. The superior court set a case plan of family

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Decision of the Court

reunification for father after the September 2018 severance hearing. Father
did not follow this plan. Contrary to Father’s arguments on appeal, the
superior court’s decision is supported by reasonable evidence.

CONCLUSION

¶20 Reasonable evidence supports the superior court’s order to
terminate father’s parental rights. Accordingly, this court affirms.

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

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