Jessica C., Joel A. v. Dcs, J.Z.

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JESSICA C., JOEL A., Appellants,

v.

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

No. 1 CA-JV 17-0424
FILED 5-29-2018

Appeal from the Superior Court in Maricopa County
No. JD529489
The Honorable Robert H. Oberbillig, Judge Retired

AFFIRMED

COUNSEL

John L. Popilek, PC, Scottsdale
By John L. Popilek
Counsel for Appellant Jessica C.

The Stavris Law Firm, PLLC, Scottsdale
By Christopher Stavris
Counsel for Appellant Joel A.

Arizona Attorney General’s Office, Phoenix
By Jennifer L. Holder
Counsel for Appellee Department of Child Safety
 JESSICA C., JOEL A. v. DCS, J.Z.
Decision of the Court

MEMORANDUM DECISION

Judge Kent E. Cattani delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Jennifer M. Perkins joined.

C A T T A N I, Judge:

¶1 Jessica C. (“Mother”) and Joel A. (“Father”) appeal the
superior court’s order severing their parental rights as to their child, J.Z.
For reasons that follow, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 J.Z. was born in July 2010. Father had a relationship with the
child early on, but he was convicted of a drug offense when J.Z. was
approximately two years old, and he was deported to Mexico (while J.Z.
remained in the United States) in mid-2013. Father returned to the United
States one year later, but was again incarcerated beginning in mid-2015.

¶3 Mother, meanwhile, had a years-long history of abusing
methamphetamine. In late 2015, while Father was still incarcerated, the
Department of Child Safety (“DCS”) removed J.Z. from Mother’s care due
to the risk Mother’s methamphetamine use posed to the child. The superior
court found J.Z. to be dependent as to both parents.

¶4 Over the first ten months of the case, DCS offered Mother a
variety of services targeting her substance abuse. DCS referred her for
substance abuse treatment three times, but on each occasion Mother either
expressly refused services or failed to participate after intake. Mother
reported that she had engaged in a different treatment program, but never
successfully completed it. DCS also required that Mother complete random
drug testing, but she did not call in consistently, did not test consistently
even when she did call in, and frequently tested positive (for
methamphetamine and on occasion for cocaine) when she did test.

¶5 Father last saw J.Z. in mid-2015, and although he had spoken
to the child by phone from prison before the dependency, he only sent J.Z.
one letter (a drawing) after J.Z. was taken into care. Father was released
from confinement around October 2016 and was deported to Mexico, where
Mother soon joined him. The DCS case manager and supervisor contacted
Father and Mother there in early November 2016 and scheduled weekly

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Decision of the Court

phone calls with J.Z. (to be connected and supervised through a DCS case
aide); Mother and Father completed two scheduled calls with the child, but
then stopped calling.

¶6 The case manager and supervisor also discussed with Father
and Mother services they could obtain through DIF (Mexico’s analogue to
DCS). The case supervisor then sent a formal request to the Mexican
consulate for DIF to provide services for both parents, including parenting
classes, substance abuse testing and treatment, and a home study. Father
completed several services, including the home study, several parenting
classes, and drug tests (negative for included substances).

¶7 Mother, however, ended up in jail in Arizona in December
2016, then contacted DCS in January 2017 to request services in Arizona
instead of Mexico. At that time, Mother tested positive for amphetamines
and admitted that she had used methamphetamine while in Mexico, but
she asserted that her drug use aided rather than hindered her parenting
ability. DCS again referred her for drug testing and treatment, but the
service was soon closed for non-compliance. Despite requesting services in
Arizona, Mother apparently returned to Mexico, without contacting DCS
or requesting that DCS put services in place in Mexico.

¶8 In March 2017, DCS moved to terminate Father’s and
Mother’s parental rights. Father thereafter contacted the case manager and
sent J.Z. two packages of clothes and toys. As of May 2017, DCS received
information that Mother was participating in a substance abuse treatment
program in Mexico, but by the end of the month she had left the program
and was again in jail in Arizona.

¶9 In July, the superior court found that statutory grounds
existed to sever each parent’s rights (Father’s based on abandonment;
Mother’s based on chronic substance abuse, nine months’ time in care, and
fifteen months’ time in care), and that severance would be in J.Z.’s best
interests. See Ariz. Rev. Stat. (“A.R.S.”) § 8-533(B)(1), (3), (8)(a), (c). Mother
and Father timely appealed from the termination order, and we have
jurisdiction under A.R.S. § 8-235(A).

DISCUSSION

¶10 The superior court is authorized to terminate a parent–child
relationship if clear and convincing evidence establishes at least one
statutory ground for severance, and a preponderance of the evidence shows
severance to be in the child’s best interests. A.R.S. § 8-533(B); Kent K. v.
Bobby M., 210 Ariz. 279, 284, ¶ 22 (2005). We review a severance ruling for

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an abuse of discretion, deferring to the superior court’s credibility
determinations and factual findings. Mary Lou C. v. Ariz. Dep’t of Econ. Sec.,
207 Ariz. 43, 47, ¶ 8 (App. 2004); Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz.
278, 280, ¶ 4 (App. 2002).

I. Mother.

¶11 Each of the three statutory severance grounds applicable to
Mother—chronic substance abuse, nine months’ time in care, and fifteen
months’ time in care—require a showing that DCS made reasonable and
diligent efforts to preserve the family by providing the parent rehabilitative
services. See A.R.S. § 8-533(B)(3), (8)(a), (c); Jennifer G. v. Ariz. Dep’t of Econ.
Sec., 211 Ariz. 450, 453 & n.3, ¶ 12 (App. 2005). To fulfill this requirement,
DCS must provide services with a “reasonable prospect of success” to allow
the parent an opportunity to become a safe and effective parent; DCS need
not, however, provide “every conceivable service” or undertake any
measures that would prove futile, and DCS is not responsible for ensuring
that the parent in fact participates in the services provided. Mary Ellen C. v.
Ariz. Dep’t of Econ. Sec., 193 Ariz. 185, 192, ¶¶ 33–34, 37 (App. 1999);
Maricopa Cty. Juv. Action No. JS-501904, 180 Ariz. 348, 353 (App. 1994); see
also Jordan C. v. Ariz. Dep’t of Econ. Sec., 223 Ariz. 86, 96, ¶ 31 (App. 2009).

¶12 Mother argues that the superior court erred by severing her
parental rights because DCS failed to provide her with the requisite
reunification services; she does not otherwise challenge the severance
grounds or the court’s best interests finding. Specifically, Mother argues
that DCS wrongfully failed to arrange services for her in Mexico after
agreeing to do so.

¶13 Contrary to Mother’s assertion, however, the DCS case
supervisor did request services for Mother in Mexico. The services were
not ultimately put in place in Mexico because Mother returned to the
United States soon thereafter and affirmatively requested services be
initiated in Arizona instead. DCS initiated those services, but Mother did
not participate. Moreover, DCS had provided services for Mother for
several months before she briefly moved to Mexico after Father’s release,
and she failed to participate during that time. Accordingly, the record
supports the superior court’s finding that DCS made reasonable and
diligent efforts to provide Mother appropriate reunification services.

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II. Father.

¶14 Father argues that the evidence did not support the court’s
finding that severance was warranted based on abandonment or that
severance would be in J.Z.’s best interests.

¶15 Section 8-533(B)(1) authorizes severance on the ground that
“the parent has abandoned the child.” “Abandonment” is defined as:

the failure of a parent to provide reasonable support and to
maintain regular contact with the child, including providing
normal supervision. Abandonment includes a judicial
finding that a parent has made only minimal efforts to
support and communicate with the child. Failure to maintain
a normal parental relationship with the child without just
cause for a period of six months constitutes prima facie
evidence of abandonment.

A.R.S. § 8-531(1). A finding of abandonment is premised on the parent’s
conduct, not the parent’s subjective intent. See Michael J. v. Ariz. Dep’t of
Econ. Sec., 196 Ariz. 246, 249–50, ¶ 18 (2000). The key consideration is
whether, under the particular circumstances of the case, the parent “has
provided reasonable support, maintained regular contact, made more than
minimal efforts to support and communicate with the child, and
maintained a normal parental relationship.” Id. at ¶¶ 18, 20; see also A.R.S.
§ 8-531(1).

¶16 Father urges that the record did not support an abandonment
finding because he had a relationship with J.Z. before the dependency and
attempted to maintain that relationship during the dependency. Father
asserts that he attempted to contact J.Z. (albeit unsuccessfully), sent him
gifts, and completed services with DIF to facilitate reunification. But Father
last saw J.Z. in mid-2015 (two years before severance), and from December
2015 to October 2016, Father’s only communication with J.Z. was a single
letter. After Father’s release from prison, DCS arranged weekly phone calls
with J.Z., but Father only completed two calls. Although he testified that
he attempted to call and was unable to get through, the record does not
reflect that he made any substantial efforts to correct the phone issue.
Father did not provide any support for J.Z. throughout the dependency and
did not send any gifts until a few weeks before the severance hearing. And
although Father demonstrated a desire to engage in reunification services,
the superior court did not abuse its discretion by concluding that the sum
total of Father’s contact with the child over the 20-month dependency—one

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Decision of the Court

letter, two phone calls, and two gifts—represented only minimal efforts
insufficient to avoid a finding of abandonment.

¶17 Father also argues that the court erred by finding severance
to be in J.Z.’s best interests, urging that he showed commitment to
completing reunification services and could protect J.Z. from Mother’s
substance abuse. Termination is in a child’s best interests if the child would
benefit from severance or if a continued relationship with the parent would
harm the child. Mary Lou C., 207 Ariz. at 50, ¶ 19. Evidence that a child is
adoptable or that an existing placement is meeting the child’s needs may
support a best interests finding. Demetrius L. v. Joshlynn F., 239 Ariz. 1, 4,
¶¶ 14–16 (2016). Ensuring stability and security for the child is “[o]f
foremost concern.” Id. at 4, ¶ 15. Here, the record reflects that J.Z. was
thriving in a stable and loving placement with relatives who were meeting
all his needs and who wished to adopt him. The superior court thus did
not abuse its discretion by finding that severance would serve J.Z.’s best
interests.

CONCLUSION

¶18 For the foregoing reasons, we affirm.

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

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