Brooks H. v. Dcs, Z.H.

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

BROOKS H., Appellant,

v.

DEPARTMENT OF CHILD SAFETY, Z.H., Appellees.

No. 1 CA-JV 21-0255
FILED 1-18-2022

Appeal from the Superior Court in Maricopa County
No. JD34569
The Honorable David O. Cunanan, Judge

AFFIRMED

COUNSEL

Law Office of Edward D. Johnson, Peoria
By Edward D. Johnson
Counsel for Appellant

Arizona Attorney General’s Office, Tucson
By James W. Rappaport
Counsel for Appellee Department of Child Safety
 BROOKS H. v. DCS, Z.H.
Decision of the Court

MEMORANDUM DECISION

Judge Samuel A. Thumma delivered the decision of the Court, in which
Presiding Judge Jennifer B. Campbell and Judge Angela K. Paton joined.

T H U M M A, Judge:

¶1 Brooks H. (Father) appeals from an order terminating his
parental right to his son, Z.H., based on 15-months time-in-care. Because
Father has shown no error, the order is affirmed.

FACTS1 AND PROCEDURAL HISTORY

¶2 Father and Mother2 are the biological parents of Z.H., born in
2012. Before July 2018, the Arizona Department of Child Services (DCS) had
received reports about Mother’s mistreatment of her children, including
Z.H. By that time, Father, his significant other and Z.H. had moved to
Texas. In July 2018, Texas police responded to reports that Z.H. was being
beaten by Father’s significant other. The Texas Department of Family and
Protective Services removed Z.H. from Father’s care and a medical
examination revealed injuries consistent with abuse. Texas then took
custody of Z.H. and, by November 2018, he was placed in a kinship
placement in Arizona.

¶3 In March 2019, the Texas and Arizona courts found
jurisdiction was proper in Arizona. The case was then transferred to the
Arizona Superior Court in Maricopa County and DCS filed a dependency
petition. In July 2019, Z.H. was found dependent as to Father, when he did
not contest the allegations, and the court adopted a family reunification case
plan. DCS offered Father various reunification services, including
visitation, parent aide services, urinalysis and hair follicle testing, housing
resources, counseling services, case aides and psychiatric services,

1This court views the evidence in a light most favorable to sustaining the
superior court’s findings. See Manuel M. v. Ariz. Dep’t of Econ. Sec., 218 Ariz.
205, 207 ¶ 2 (App. 2008).

2 Although Mother’s parental rights have been terminated, she is not a party

to this appeal.

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including an evaluation. Given a concern about lack of progress, in
November 2019, the court adopted a concurrent case plan of severance and
adoption.

¶4 In 2019 and 2020, Father sporadically participated in some
services, but was closed out of many for lack of participation. Father’s visits
were inconsistent, and he did not successfully complete parent aide
services. Although testing positive for marijuana, Father had a medical
marijuana card and substance abuse was not considered a barrier to
reunification.

¶5 In 2020, Father completed a psychological evaluation in
which the psychologist recommended a psychiatric evaluation as well as
anger management, parenting and other classes. Father’s reaction to the
proposed evaluation was that DCS was creating more “hoops” for him to
jump through. Father’s lack of consistency with visits was reported to have
a negative influence on Z.H., who needed support and “redirection” after
one canceled visit in particular. As a result, DCS placed Father on a “call to
confirm” list for visits. When Z.H. said he did not want to have any more
visits, DCS suspended visits until Father could show more consistency.

¶6 In 2021, Father appeared to engage in some services, but
remained inconsistent with visits. From January through March 2021,
Father completed five of eleven scheduled visits. And during visits, Father
did not stay for the entire time allocated. During this same time, his
participation in parenting skills sessions also was sporadic, with Father
participating in five of twelve sessions. Father’s excuses for this lack of
participation included oversleeping, traffic, securing an apartment, having
no money and just not showing up.

¶7 At DCS’ request, the court changed the case plan to severance
and adoption in April 2021. Later that month, DCS moved to terminate
Father’s parental rights, alleging 15-months time-in care. DCS alleged that
Father had not addressed his substance abuse or anger management issues
through counseling and his inconsistent participation in services showed
his failure to make the necessary behavioral changes.

¶8 At a contested severance hearing (as to Father) in July 2021,
where a DCS specialist and Father testified, the court received exhibits and
heard argument. At the end of the hearing, the court found DCS had met
its burden of proof and granted the motion, terminating Father’s parental
rights to Z.H. By that time, Z.H. had been in care for more than three years.
This court has jurisdiction over Father’s timely appeal pursuant to Article

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6, Section 9, of the Arizona Constitution and Arizona Revised Statutes
(A.R.S.) §§ 8-253(A), 12-120.21(A) and 12-2101(A) and Ariz. R.P. Juv. Ct.
103-104 (2022).3

DISCUSSION

¶9 As applicable here, to terminate parental rights, a court must
find by clear and convincing evidence that at least one statutory ground set
forth in A.R.S. § 8-533(B) has been proven and must find by a
preponderance of the evidence that termination is in the best interests of the
child. See Kent K. v. Bobby M., 210 Ariz. 279, 288 ¶ 41 (2005); Michael J. v. Ariz.
Dep’t of Econ. Sec., 196 Ariz. 246, 249 ¶ 12 (2000). Because the superior court
“is in the best position to weigh the evidence, observe the parties, judge the
credibility of the witnesses, and resolve disputed facts,” this court will
affirm an order terminating parental rights if it is supported by reasonable
evidence. Jordan C. v. Ariz. Dep’t of Econ. Sec., 223 Ariz. 86, 93 ¶ 18 (App.
2009) (citation omitted).

I. The Superior Court’s Time-in-Care Finding Is Supported by Clear
and Convincing Evidence.

¶10 Father argues DCS did not make the required showing to
terminate his parental rights based on 15 months time-in-care. To terminate
parental rights on that statutory ground, DCS had to prove by clear and
convincing evidence that Z.H. had been in an out-of-home placement under
court supervision for a cumulative total of 15 months or longer; that DCS
had made a diligent effort to provide appropriate reunification services;
that Father had been unable to remedy the circumstances that caused Z.H.
to be in the out-of-home placement and that there was a substantial
likelihood that Father would not be capable of exercising proper and
effective parental care and control in the near future. See A.R.S. § 8-
533(B)(8)(c).

¶11 On appeal, Father’s challenge to the finding that DCS proved
this statutory ground is that (1) DCS did not make made diligent efforts to
provide appropriate reunification services and (2) the court erred in finding
he had not remedied the circumstances that caused Z.H. to be taken into
custody. Father argues that he did not receive assistance from DCS, that he
found his own parenting class and that DCS would not put in another

3Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.

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referral for him “even though the current parent aide felt that father was
making progress and that another referral would be beneficial.”

¶12 “The purpose of providing reunification services is to afford
a parent ‘the time and opportunity to participate in programs designed to
improve the parent’s ability to care for the child.’ Such efforts also enable
[DCS] to evaluate a parent’s progress, or lack thereof, toward making
reunification possible.” Jordan C. v. Ariz. Dep’t of Econ. Sec., 223 Ariz. 86, 96
¶ 31 (App. 2009) (citation omitted). DCS “is not required to provide every
conceivable service or to ensure that a parent participates in each service it
offers.” Maricopa Cnty. Juv. Action No. JS-501904, 180 Ariz. 348, 353 (App.
1994). Rather, DCS is only obligated to provide services that have “a
reasonable prospect of success.” Mary Ellen C. v. Ariz. Dep’t of Econ. Sec., 193
Ariz. 185, 192 ¶ 34 (App. 1999).

¶13 At trial, the DCS specialist testified that Father was offered
visitation, parent aide, hair follicle and urinalysis testing, a psychiatric
evaluation and case aides. While Father completed one parent aide referral
in 2020, he needed another referral to succeed, which he claims he was
denied. Father also claimed that he completed parenting classes and has
attended counseling since March 2021.

¶14 The DCS specialist testified that Father did not consistently
participate in visits, including a period where Father did not see Z.H. for
seven months. Later in the case (January through March 2021), Father
participated in just five of eleven offered visits with Z.H., none of which he
attended the full time, and just five of twelve parenting skill sessions. This
record supports a finding that Father’s failure to participate in services
offered (not DCS’ failure to provide proper services) prevented
reunification. Father has not shown that DCS needed to provide more or
different services to discharge its obligations, or that providing more or
different services would produce a more successful outcome. Thus, Father
has not shown that DCS failed to make a diligent effort to provide
appropriate reunification services.

¶15 Father also argues that the superior court did not have
reasonable evidence that he was unable to remedy the circumstances that
brought Z.H. into DCS’ custody. The extended period that Z.H. was in an
out-of-home placement gave Father an ample opportunity to remedy those
circumstances. While noting that in the four months before the trial Father
had shown improvement, the superior court found “[t]here were warning
signs regarding Father’s ability to parent in the foreseeable future which
included his inconsistency in services including visits. Father has not fully

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engaged in services or been consistent in visitations with [Z.H.]. He’s failed
to make the behavioral changes throughout the case.”

¶16 Father challenges the DCS specialist’s testimony, arguing that
he had secured housing, completed a parenting class and was working two
jobs to meet Z.H.’s needs. Father also argues that even though he “did not
‘successfully’ complete his parent aide service,” he “gained valuable
insight” which beneficially impacted his parenting abilities. At trial,
however, the DCS specialist testified that Father had not made the required
progress to remedy the circumstances that caused Z.H. to be taken into care.
She testified that she did not think Father had made his child a “priority”
because of his inconsistency with visits, his failure to protect his child from
previous abuse and his failure to recognize abuse and assess appropriate
caregivers. She also testified that Z.H. needed permanency, stability and a
reliable caregiver and she did not feel as though Father had made the
changes necessary to reunify. On this record, Father has not shown that the
court erred in considering this evidence and concluding DCS had met its
burden to show the 15-months time-in-care statutory ground.

II. The Superior Court’s Best Interests Finding Is Supported by a
Preponderance of the Evidence.

¶17 Father argues the court erred in finding that termination was
in Z.H.’s best interests. “Termination is in the child’s best interest if either:
(1) the child will benefit from severance; or (2) the child will be harmed if
severance is denied.” Alma S. v. Dep’t of Child Safety, 245 Ariz. 146, 150 ¶ 13
(2018). Father argues he was bonded with Z.H., who hugs and kisses him
every time he sees him, has daily phone calls with Z.H. and that Z.H.’s
placement is not in the child’s best interests.4

¶18 The court considered the trial evidence, including the bond
Father had with Z.H. Having weighed and assessed that evidence, the court
found that “the permanency of the child weighs in favor of terminating at
this time. I don’t doubt that [Father] loves that child, and would like to care
for that child, but the short version is that he has a lot going on.” The court
also found that, although “not technically in an adoptable placement now,
testimony was that he is an otherwise adoptable child and other
permanency options have been provided” for Z.H. The court also
concluded that termination would benefit Z.H. by furthering the plan of

4 At the time of trial, DCS had found an adoptive placement for Z.H.,
although the record shows that the placement disrupted after trial, with
Z.H. being placed in a group home.

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adoption and providing him permanency and stability. On this record,
Father has not shown that the court erred in finding that termination of
parental rights was in the best interests of Z.H. See Alma S., 245 Ariz. at 150
¶ 13.

CONCLUSION

¶19 The order terminating Brooks H.’s parental rights to Z.H. is
affirmed.

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

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