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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

RICHARD P., Appellant,

v.

DEPARTMENT OF CHILD SAFETY, E.P., E.P., Appellees.

No. 1 CA-JV 19-0113
FILED 2-25-2020

Appeal from the Superior Court in Maricopa County
No. JD35161
The Honorable Pamela Hearn Svoboda, Judge

AFFIRMED

COUNSEL

The Stavris Law Firm PLLC, Scottsdale
By Alison Stavris
Counsel for Appellant

Arizona Attorney General’s Office, Tucson
By Autumn Spritzer
Counsel for Appellee Department of Child Safety
 RICHARD P. v. DCS, et al.
Decision of the Court

MEMORANDUM DECISION

Judge Joshua Rogers1 delivered the decision of the Court, in which Acting
Presiding Judge David D. Weinzweig and Chief Judge Peter B. Swann
joined.

R O G E R S, Judge:

¶1 Richard P. ("Father") appeals the superior court's order
terminating his parental rights to his two children, born in 2016 and 2017.2
For the following reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 After Father's second child was born substance exposed in
September 2017, the Department of Child Safety ("DCS") began providing
Father and his children's mother ("Mother") services, although the parents
retained custody of their children.3 DCS required the parents to drug test
and the children's maternal grandfather to supervise Mother and Father
while with their children. Father attended intake with Terros and
participated in drug tests, but he failed to attend group therapy sessions.
Towards the end of November 2017, Father told DCS he would no longer
participate in services and admitted leaving Mother alone with the children
in violation of the safety plan and minimized concerns about the violation.
DCS then took the children into its custody and, in December 2017, filed a
dependency petition as to Father and Mother in superior court.

¶3 DCS thereafter provided Father with services including
individual counseling, substance abuse treatment, drug testing, parent

1 The Honorable Joshua Rogers, Judge of the Arizona Superior Court,
has been authorized to sit in this matter pursuant to Article 6, Section 3 of
the Arizona Constitution.

2 The court also terminated the parental rights of the children's
mother. This decision does not address her rights.

3 We view the facts and reasonable inferences therefrom in the light
most favorable to affirming the superior court's order. Ariz. Dep't of Econ.
Sec. v. Matthew L., 223 Ariz. 547, 549, ¶ 7 (App. 2010).

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 RICHARD P. v. DCS, et al.
Decision of the Court

aide, case aide, and bus passes; it also provided him with domestic violence
counseling services because he had harmed Mother in 2013. Father had
sporadic periods of negative drug tests followed by periods when he
missed tests; DCS never received proof that Father completed any
substance abuse treatment program. Father refused to participate in
counseling services and was closed out on four separate occasions. He was
also closed out of case aide and parent aide services for lack of contact, and
he cancelled more than half of his scheduled visitations.

¶4 In October 2018, DCS moved to terminate Father's parental
rights. The superior court held a trial in March 2019, at which a DCS
supervisor and Father testified. The court ultimately terminated Father's
parental rights, finding that DCS had proven abandonment, chronic
substance abuse, and nine months’ time-in-care under A.R.S. § 8-533(B)(1),
(B)(3), and (B)(8)(a) and that termination was in the children's best interests.

DISCUSSION

¶5 The right to custody of one's child is fundamental but not
absolute. Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, 248, ¶¶ 11-12
(2000). When DCS seeks termination of a parent-child relationship, it must
prove, by clear and convincing evidence, the existence of a statutory ground
under A.R.S. § 8-533(B), and, 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., 196 Ariz. at 249, ¶ 12. "Because the
juvenile court is in the best position to weigh evidence and assess witness
credibility, we accept [that] court's findings of fact if reasonable evidence
and inferences support them, and will affirm a severance order unless it is
clearly erroneous." Demetrius L. v. Joshlynn F., 239 Ariz. 1, 3, ¶ 9 (2016).

¶6 Under § 8-533(B)(8)(a), DCS must show that (1) the child has
been in an out-of-home placement for at least nine months; (2) DCS "has
made a diligent effort to provide appropriate reunification services;" and
(3) the parent has "substantially neglected or wilfully refused to remedy the
circumstances that cause" the child's out-of-home placement. 4 Father does
not contest the first and third prongs; he only argues DCS failed to
diligently provide appropriate reunification services. In particular, he

4 Because substantial evidence supports the court's decision to sever
Father's rights under § 8-533(B)(8)(a), we need not address Father's
arguments relating to the other grounds for severance. See Jesus M. v. Ariz.
Dep't of Econ. Sec., 203 Ariz. 278, 280, ¶ 3 (App. 2002).

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 RICHARD P. v. DCS, et al.
Decision of the Court

argues that DCS failed to "maintain contact with [him] during the pendency
of the case," and that it failed to offer him services after he moved to
California.

¶7 Those arguments fail because, as the superior court found,
Father waived any challenge to the adequacy of the services DCS provided
him. See Shawanee S. v. Ariz. Dep't of Econ. Sec., 234 Ariz. 174, 178-79, ¶¶ 13-
16 (App. 2014). The superior court held nine hearings at which Father could
have raised the inadequacy of the services provided by DCS, including at
least three after Father moved to California in October or November 2018.
Father only points to two instances in which he raised an issue. At an April
2018 hearing, Father complained that his case manager had not responded
to his recent attempts to contact her, although by then he had been closed
out of services for failure to participate.5 The only other time Father raised
DCS's failure to communicate, and the only time he raised DCS's failure to
provide him services in California, was during trial, at least four months
after he moved to California and 17 months after DCS became involved.

¶8 Father points to an email he sent to his attorney, which was
also cc'd to the DCS case manager, in which he said his "family would like
to know if [he] can do services out in California." But this email does not
make clear whether Father was actually requesting services be reinitiated
or wanted the DCS case manager to take any action.

¶9 Beyond the waiver, the superior court found, and the record
supports, that DCS provided Father with services including individual
counseling, domestic violence counseling, substance abuse treatment, drug
testing, parent aide, case aide, and bus passes. Thus, reasonable evidence
supports the court's finding that DCS diligently provided Father with
appropriate reunification services.

¶10 Father also argues the superior court erred when it found
termination of his parental rights was in the children's best interests.
Termination of a parent's rights "is in the child's best interests 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).

5 Before the hearing, DCS reinitiated visitation, but ultimately Father
was closed out for not engaging.

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 RICHARD P. v. DCS, et al.
Decision of the Court

¶11 The court heard testimony that Father had not completed any
drug treatment, domestic violence, or individual counseling program and
attended less than half of scheduled visitations with the children. Further,
Father admitted he could not afford his own housing and had not sent the
children any support. The DCS supervisor testified that one of Father's
children has special needs, and the other was being evaluated for
developmental issues. She further stated that the children's placement is
providing for the children's needs, is strongly bonded with the children,
and the children know the placement as their parents. Based on this
evidence, we cannot say the court erred when it found termination of
Father's parental rights was in the children's best interests.

CONCLUSION

¶12 For all the reasons stated above, we affirm.

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

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