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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

DANIEL S., Appellant,

v.

DEPARTMENT OF CHILD SAFETY, R.B., L.S., Appellees.

No. 1 CA-JV 19-0004
FILED: 7-23-2019

Appeal from the Superior Court in Maricopa County
No. JD538162
The Honorable Karen L. O’Connor, Judge

AFFIRMED

COUNSEL

Maricopa County Legal Defender’s Office, Phoenix
By Jamie R. Heller
Counsel for Plaintiff/Appellant

Arizona Attorney General’s Office, Mesa
By Amanda Adams
Counsel for Appellee, Department of Child Safety
 DANIEL S. v. DCS, et al.
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Jennifer M. Perkins delivered the decision of the Court, in
which Judge Michael J. Brown and Judge Samuel A. Thumma joined.

P E R K I N S, Judge:

¶1 Daniel S. (“Father”) appeals the juvenile court’s order
terminating his parental relationship with R.B. and L.S. For the following
reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 Father and Rachel D. (“Mother”) are the natural parents of
R.B., born in April 2008, and L.S., born in May 2011. The juvenile court
terminated Mother’s parental rights, and she is not a party to this appeal.
For over fifteen years, Mother abused drugs and alcohol, and for over
eleven years, the parents engaged in an “on again, off again” relationship.
They repeatedly engaged in domestic violence, separated, and then moved
back in together.

¶3 In October 2015, the parents completed a legal decision-
making and parenting time agreement, but in July 2016, Father sought an
order to temporarily cancel Mother’s parenting time and award him full
legal decision-making for the children. In his request, Father stated that
“Mother has been strung out on drugs and is a threat to the children. She is
violent and suicidal and she bit my finger. The police were called and she
had to be removed from my property.” He also stated that Mother tried to
jump from his vehicle while the children were in the car. Maternal
grandparents filed for temporary custody of the children, citing concerns
about abuse and neglect from Father. The family court temporarily
awarded Father sole legal decision-making and allowed Mother supervised
parenting time only.

¶4 In December 2016, the children’s best-interests attorney,
appointed by the family court, filed a dependency petition for the children.
The attorney alleged that Mother continued abusing alcohol and the
parents continued to engage in domestic violence. The petition also alleged
that in October 2016 Mother drank vodka, grabbed a knife, and threatened
to harm herself in front of the children. The next month, Father was arrested

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for disorderly conduct after fighting with another man at Mother’s
residence. As a result, in December 2016 the Department of Child Safety
(“DCS”) took custody of the children.

¶5 The juvenile court eventually found the children dependent
as to Father and set a case plan of family reunification. DCS asked Father to
submit to rule-out urinalysis tests through TASC and referred him for a
psychological evaluation. DCS also provided Father with Ph.D.-level
counseling, a parent aide with visitation, and resources for parenting
classes in the community.

¶6 In February 2017, police arrested Father for assault and
domestic violence against Mother. Six months later, Father contacted
Mother and she pepper sprayed him. Despite these incidents, Father and
Mother carried on their cyclical relationship. Father’s criminal probation
terms required him to complete anger management and domestic violence
classes. In May 2017, Father completed a psychological evaluation with
Doctor Gregory Novie. Novie concluded that Father did not understand the
impact that domestic violence had on the children and they would be at risk
in his care if he allowed Mother around them.

¶7 Father eventually completed all services, and in early 2018,
began some unsupervised visits with the children. DCS stopped the visits
soon afterwards because Father maintained a relationship with Mother,
who still struggled with addiction. At a meeting in May 2018, DCS
expressed its concerns to Father that he keep Mother away from the
children. Rather than address these concerns, he stated that the parents
would always love each other. In July, the juvenile court changed the case
plan to termination and adoption and DCS then moved to terminate
Father’s parental rights under the ground of 15 months’ time in care. See
Ariz. Rev. Stat. (“A.R.S.”) § 8-533(B)(8)(c). At a meeting in October, Father
and Mother arrived holding hands and informed DCS that they were in a
relationship and living together.

¶8 In December 2018, the juvenile court held a contested
termination hearing and granted DCS’s motion. The court found that Father
failed to make the behavioral changes necessary to show that he could
safely parent the children. Specifically, the court found that Father “lack[s]
insight into the effects [that] Mother’s substance abuse and acts of domestic
violence [have] on the children.” The court also found termination to be in
the children’s best interests because their current placement was meeting
their needs and they were otherwise adoptable. Father timely appeals.

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DISCUSSION

¶9 To terminate a parent-child relationship, the juvenile court
must find at least one statutory ground under A.R.S. § 8-533(B) by clear and
convincing evidence. Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 22 (2005). The
court must also find termination is in the child’s best interests by a
preponderance of the evidence. Id. We review the court’s termination order
for an abuse of discretion and will affirm unless no reasonable evidence
supports the court’s findings. Mary Lou C. v. Ariz. Dep’t of Econ. Sec., 207
Ariz. 43, 47, ¶ 8 (App. 2004). The juvenile court “is in the best position to
weigh the evidence, observe the parties, judge the credibility of witnesses,
and resolve disputed facts.” Ariz. Dep’t of Econ. Sec. v. Oscar O., 209 Ariz.
332, 334, ¶ 4 (App. 2004).

I. Termination Ground.

¶10 The juvenile court may terminate parental rights under the
fifteen-month out-of-home placement ground if it finds that: (1) “[t]he child
has been in an out-of-home placement for a cumulative total period of
fifteen months or longer”; (2) “the parent has been unable to remedy the
circumstances” that cause the out-of-home placement; and (3) “there is a
substantial likelihood that the parent will not be capable of exercising
proper and effective parental care and control in the near future.” A.R.S.
§ 8-533(B)(8)(c). The court must also find that DCS made a diligent effort to
provide appropriate reunification services. A.R.S. § 8-533(B)(8).

¶11 As to the statutory ground, Father challenges only the
juvenile court’s finding that a substantial likelihood exists that he will not
be capable of exercising proper and effective parental care and control in
the near future. The court found that Father could not make the necessary
behavioral changes to safely parent the children because he was unable to
discern that Mother’s domestic violence and substance abuse had negative
effects on the children. The court also found that the parents’ “domestic
violence relationship presents a significant risk to the children” and there
was a “significant likelihood that Father [would] maintain a relationship
with Mother moving forward.” Reasonable evidence supports the court’s
findings.

¶12 When DCS took custody of the children, the parents had
engaged in domestic violence and Mother was abusing alcohol and drugs.
Father and Mother continued their pattern of domestic violence through
early 2017. Father then participated in services, including Ph.D.-level
therapy and classes for domestic violence and anger management. Despite

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his completion of services, the court found Father was unable to place the
children’s needs above his dysfunctional relationship with Mother. See
Bennigno R. v. Ariz. Dep’t of Econ. Sec., 233 Ariz. 345, 350, ¶ 20 (App. 2013)
(termination appropriate when parent has “not benefitted from the services
and additional services would have been futile”).

¶13 Father acknowledged that to safely parent the children, he
“just [had] to get away from” Mother and couldn’t “have anything to do
with her whatsoever” if she was “drinking or on drugs.” The record
reasonably supports conclusions that Mother’s substance abuse was a
trigger for the parents’ domestic violence and Mother had been unable to
maintain sobriety for over fifteen years. Although Mother participated in
several detoxification and inpatient programs in the past, she continually
relapsed. Mother abused substances throughout the dependency, and
Father admitted that she had at least two relapses in the year before the
termination hearing. She came nowhere near establishing a year of sobriety,
the amount of time her evaluating psychologist recommended. Mother also
accrued charges for driving under the influence, with the most recent
charge occurring in 2018, during this dependency. Yet Father maintained a
relationship with her.

¶14 At times during the dependency, Father enabled Mother by
giving her money, which she spent on alcohol. Although Father progressed
to unsupervised visits, he maintained a relationship with Mother and
eventually allowed her to move in with him. As late as October 2018—two
months before the termination hearing—Father told DCS that he loved
Mother and the parents “didn’t understand why [DCS] was maliciously
trying to break them up.” They remained a relationship and lived together
at the time of the termination hearing. Father further admitted that had
Mother contested the termination of her parental rights, he would “still
hope [they could] work things out,” and believed that Mother had
overcome her addictions.

¶15 Although Father testified that he would not allow Mother to
be around the children when she was drinking or on drugs, it was
reasonable for the court to find that his actions throughout the dependency
contradicted his testimony. See Sandra R. v. Dep’t of Child Safety, 246 Ariz.
180, ___, ¶ 6 (App. 2019) (juvenile court is in the best position to weigh the
evidence). For instance, Father did not explain how he would protect the
children from Mother while maintaining a relationship with her, other than
testifying that she was “willing to move out.” Additionally, Father stated
he “can usually tell” when Mother is drunk but not when “she’s only had a

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couple.” He testified, “It will seem like she’s straight for one second and
then all of a sudden she—like anyone—you can tell she’s drunk.”

¶16 Father was unable to acknowledge his role in the parents’
domestic violence or its effect on the children. The children told DCS that
they had witnessed domestic violence between the parents, but Father
denied the parents ever fought in front of them. When asked about the
events that led to the parents’ domestic violence incidents, he testified he
had no recollection of them. He also testified that he found the domestic
violence classes to be unhelpful and “a real joke,” and that he was “baffled
[about] why [he’s] been going through this [dependency] for two years.”
For all these reasons, Novie gave a guarded prognosis for Father’s future
ability to parent the children and agreed that Father cannot safely parent if
he remains in a relationship with Mother. Both Novie and the case manager
concluded that Father would put the children at risk because he lacked
insight into the dangers inherent in his volatile, ongoing relationship with
Mother.

II. Best Interests.

¶17 Father also challenges the juvenile court’s best-interests
finding. Specifically, he argues that he recognized the need to keep Mother
away from the children if she was intoxicated, that he and the children
share a bond, and that DCS never allowed him the opportunity to
demonstrate the knowledge he learned from completing his services.

¶18 Once the court finds a parent unfit under at least one statutory
ground for termination, “the interests of the parent and child diverge,” and
the court proceeds to balance the unfit parent’s “interest in the care and
custody of his or her child . . . against the independent and often adverse
interests of the child in a safe and stable home life.” Kent K., 210 Ariz. at 286,
¶ 35 (citations omitted). “[A] determination of the child’s best interest must
include a finding as to how the child would benefit from a severance or be
harmed by the continuation of the relationship.” Maricopa Cty. Juv. Action
No. JS-500274, 167 Ariz. 1, 5 (1990) (emphasis omitted). Courts “must
consider the totality of the circumstances existing at the time of the
severance determination, including the child’s adoptability and the
parent’s rehabilitation.” Alma S. v. Dep’t of Child Safety, 245 Ariz. 146, 148,
¶ 1 (2018). Relevant factors in this determination include whether the
current placement is meeting the child’s needs, an adoption plan is in place,
and the child is adoptable. Demetrius L. v. Joshlynn F., 239 Ariz. 1, 3–4, ¶ 12
(2016). Although a factor to consider, a bond between the parent and child

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is not dispositive of the best-interests issue. Dominique M. v. Dep’t of Child
Safety, 240 Ariz. 96, 98–99, ¶ 12 (App. 2016).

¶19 The juvenile court considered the bond Father had with the
children and found that “[w]hile there is no dispute that Father loves his
children, he has not demonstrated insight into the risk his relationship with
Mother poses to the children.” Reasonable evidence supports this finding.
Indeed, Father had many opportunities to demonstrate that he could
protect the children from Mother, but throughout the dependency he
maintained a relationship with her, even while she was still abusing
alcohol. Citing his own testimony, Father asserts that he recognized the
need to protect the children from Mother. However, the court weighed
Father’s testimony against the other evidence presented. Because
reasonable evidence supports the court’s findings, we will not reweigh
them on appeal. See Ariz. Dep’t of Econ. Sec. v. Rocky J., 234 Ariz. 437, 440,
¶ 12 (App. 2014).

¶20 The court also found that severance would benefit the
children because they lived with relatives who wished to adopt them and
who were providing for their needs. By the time of the termination hearing,
they had been in an out-of-home placement for two years, and the case
manager testified that severance would provide them with permanency
and stability.

CONCLUSION

¶21 We affirm the order terminating Father’s parental rights.

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

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