State v. Bergen

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

BERGEN C., Appellant,

v.

DEPARTMENT OF CHILD SAFETY, R.C., W.C., Appellees.

No. 1 CA-JV 18-0446
FILED 7-23-2019

Appeal from the Superior Court in Navajo County
No. S0900JD201800001
The Honorable David J. Martin, Judge Pro Tem

AFFIRMED

COUNSEL

Southwestern Law Center, Tucson
By David Gurney
Counsel for Appellant

Arizona Attorney General’s Office, Tucson
By Michelle R. Nimmo
Counsel for Appellee, Department of Child Safety
 BERGEN C. v. DCS, et al.
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Jennifer B. Campbell delivered the decision of the Court,
in which Judge Maria Elena Cruz and Judge James B. Morse Jr. joined.

C A M P B E L L, Judge:

¶1 Bergen C. (“Father”) appeals the juvenile court’s order
terminating his parental rights to his two children on the grounds of neglect
and a prior termination of his parental rights. See Ariz. Rev. Stat. (“A.R.S.”)
§ 8-533(B)(2), (10). Because reasonable evidence supports the court’s order,
we affirm.

BACKGROUND

¶2 Rachelle A. (“Mother”) and Father are the biological parents
of Willie, born January 5, 2018, and Rastas, born January 21, 2017
(collectively, “the children”).1 The Department of Child Safety (“DCS”)
received a report that Mother gave birth to baby Willie in a motel room in
the middle of the night. DCS caseworkers and police officers went to the
motel room to check on baby and Mother the next day. When they entered
the room, Mother was incoherent and confused. The baby was wrapped in
a blanket next to her on the bed. While Father was not present when DCS
arrived, Mother explained he helped deliver Willie and tied the umbilical
cord with a zip-tie. In the morning, Father called his mother to pick up
Rastas, who was present for the birth, and then left to go to work.

¶3 At the time DCS arrived, Mother still had not fed the baby—
nearly 10 hours after she gave birth. Both Mother and baby were taken to
the hospital. Both tested positive for amphetamine, methamphetamine, and
marijuana. The baby was admitted and remained in the Neonatal Intensive
Care Unit (“NICU”) for 20 days while being treated for complications from
birth. At the severance hearing, Mother testified she was using
methamphetamine and marijuana during her pregnancy and failed to seek
prenatal care. DCS located Rastas with his grandmother and took him into

1 Mother’s parental rights to Willie and Rastas were also terminated,
but she is not a party to this appeal.

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Decision of the Court

DCS custody because of concerns that DCS was unable to implement a
danger plan that grandmother or parents would be willing to follow.

¶4 DCS subsequently filed a dependency petition, alleging the
children were dependent regarding Father because of neglect—he failed to
protect the children from the effects of Mother’s substance abuse. Shortly
after, DCS filed a petition for termination of Father’s parental rights on the
grounds of neglect and that he had parental rights to another child
terminated within the preceding two years for the same cause and is
currently unable to discharge parental responsibilities due to the same
cause. See A.R.S. § 8-533(B)(2), (10).

¶5 In June and September 2016, Father’s parental rights had been
terminated to three other children due to neglect. Those three children, like
the new baby, were all born substance exposed. The DCS caseworker who
worked on the prior cases testified that Father knew about Mother’s drug
use but failed to see the severity of it. DCS also noted concerns in the
previous cases about the condition of the home—there were times when the
family did not have utilities and the family had been evicted because the
house was unsanitary. Finally, the DCS caseworker testified that Father
would not engage in services provided by DCS and “refused to help with
anything in regards to [Mother].”

¶6 In this case, Father continued to refuse services from DCS.
Father emailed the DCS caseworker, stating he would not participate in
services because they did not help him in his prior dependency and
termination. Regarding the children in this case, DCS’s concerns were the
ongoing substance abuse, not engaging in services, and not identifying and
making behavior changes to make the children safe.

¶7 After hearing evidence from DCS, Mother, and Father, the
juvenile court found that statutory grounds existed to terminate Father’s
parental rights to the children. The court found Father had prior rights to
other children terminated within the preceding two years for the same
cause that existed in this case—neglect—and that the evidence established
that he remains unable to discharge parental responsibilities due to the
same cause. The court also found that termination would be in the
children’s best interests. The court granted DCS’s petition to terminate
Father’s parental rights and Father timely appealed.

DISCUSSION

¶8 Father challenges only the court’s finding on the statutory
ground. He argues the State did not present clear and convincing evidence

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 BERGEN C. v. DCS, et al.
Decision of the Court

sufficient to prove its allegations against him. Consequently, we do not
address whether severance is in the best interests of the children.

¶9 Before terminating a parent-child relationship, the juvenile
court must find at least one statutory ground by clear and convincing
evidence. Christina G. v. Ariz. Dep’t of Econ. Sec., 227 Ariz. 231, 234, ¶ 12
(App. 2011). The juvenile court is in the best position to weigh the evidence
and judge the credibility of witnesses and, as such, this court will not
reweigh evidence. Jennifer S. v. Dep’t of Child Safety, 240 Ariz. 282, 286-87,
¶ 16 (App. 2016). We will affirm the juvenile court’s decision regarding
severance if reasonable evidence supports its factual findings. Id. “If clear
and convincing evidence supports any one of the statutory grounds on
which the juvenile court ordered severance, we need not address claims
pertaining to the other grounds.” Jesus M. v. Ariz. Dep’t of Econ. Sec., 203
Ariz. 278, 280, ¶ 3 (App. 2002).

¶10 Arizona Revised Statutes 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 responsibilities due to the same
cause.” 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 that 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 (quoting Mary Ellen C. v. Ariz. Dep’t of Econ. Sec., 193 Ariz. 185,
193, ¶ 42 (App. 1999)). Even if the record does not support the conclusion
that DCS made reasonable efforts to provide appropriate rehabilitative
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
severance hearing.” See id. at 50, ¶ 18.

¶11 Sufficient evidence supports the juvenile court’s finding that
Father had his parental rights terminated within the preceding two years
for the same cause and is unable to discharge parental responsibilities for
the same cause. The three children to whom Father’s parental rights were
terminated in 2016 were all born substance exposed; here, the new baby,
Willie, was born substance exposed and a hair follicle test from the older
child, Rastas, was positive for marijuana. The juvenile court found Father
neglected the children by failing to protect them from Mother’s neglect and

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Decision of the Court

chronic continued abuse of dangerous drugs, subjecting the children to an
unreasonable risk of harm. The court emphasized that Father’s
“determined insistence that [M]other be the caretaker of the children
notwithstanding her obvious inability to properly do so due to continued
use of dangerous drugs” was part of his failure to protect the children. The
court found that the “shocking circumstances surrounding [Willie’s] birth,”
demonstrate Father’s neglect and failure to protect him from neglect by
exposing him to an unreasonable risk of harm to his health. The doctor who
treated Willie in the NICU testified that had he not been taken to the
hospital as early as he was, his condition could have resulted in death.

¶12 Moreover, the court found Father “has demonstrated a
defiant rejection of offers of assistance to himself, [Mother] and both
children diligently and earnestly presented by DCS.” In both this case and
the prior dependency, Father impeded Mother’s rehabilitation by insisting
she be home to care for the children, leading Mother to end her services,
even though it was recommended she continue in treatment outside the
home. Again, Father blatantly refused services and would not communicate
with DCS. Father sent an email to the DCS caseworker and said, “[w]e will
not participate in services as they did us no good when we did them the
last times.” The current DCS caseworker testified she did not believe Father
had remedied the circumstances that caused DCS intervention. Father
presented no evidence to support his contention that circumstances have
sufficiently changed and he is now able to protect the children from
Mother’s substance abuse. Thus, sufficient evidence supports the court’s
findings.

CONCLUSION

¶13 For the foregoing reasons, we affirm the termination as to
Father.

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

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