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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

DARRELL S., Appellant,

v.

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

No. 1 CA-JV 19-0148
FILED 10-24-2019

Appeal from the Superior Court in Maricopa County
No. JD34784
The Honorable Karen A. Mullins, Judge

AFFIRMED

COUNSEL

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

Arizona Attorney General’s Office, Phoenix
By Sandra L. Nahigian
Counsel for Appellee Department of Child Safety
 DARRELL S. v. DCS, et al.
Decision of the Court

MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Maria Elena Cruz and Judge Kent E. Cattani joined.

W I N T H R O P, Judge:

¶1 Darrell S. (“Father”) appeals the juvenile court’s termination
of his parental rights to S.S. and E.S. (collectively “the children”). For the
following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 The Department of Child Safety (“DCS”) brought the children
into care in August 2017, after police were called because Father was lying
on his living room floor screaming that he had been stabbed. The police
determined that Father was not injured and was hallucinating due to
methamphetamine use. Both children were in the home and in Father’s sole
care at the time of the incident. Mother’s whereabouts at the time were
unknown.1

¶3 The next day, Father admitted to DCS that he used
methamphetamine to cope with stress. He agreed that it would be best for
the children to be cared for by a family member, and they were placed with
maternal grandparents. The children were found to be dependent in
September 2017.

¶4 Father did an initial intake and drug test through TERROS but
failed to maintain contact and was closed out of all services. He did not
contact DCS again until March 2018. In April 2018, he did another intake
with TERROS and he began drug testing. In June 2018, Father met with a
psychologist, Dr. Jones, for an evaluation. During the evaluation, Father
stated that he had not used drugs since August 2017, and that the incident
in which the police were called was not caused by drugs. Dr. Jones
diagnosed Father with stimulant use disorder, alcohol use disorder, and
child neglect and indicated that Father’s prognosis was good “based on him
staying engaged in services and having negative drug tests and obtaining

1 Mother’s rights to the children were also terminated; she is not a
party to this appeal.

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Decision of the Court

stable housing.” The day after his evaluation, however, Father was arrested
for refusing to leave a Walmart after having a verbal altercation with a store
employee. Father was extremely intoxicated at the time and had crashed
his motorcycle prior to arriving at the Walmart.

¶5 After the arrest, Father stopped participating in services and
was again closed out of services. DCS was unable to contact Father until
October 2018, at which time he asked to relinquish his parental rights.
Around that same time, Father self-referred to TERROS for individual
counseling with Jessica Jouas, and began drug testing. Although every
drug test Father submitted since reengaging in services was negative, he
missed multiple tests every month and had diluted tests. In January 2019,
the case plan was changed to severance and adoption.

¶6 After a two-day evidentiary hearing, the court found that
although Father was participating in drug testing, it had only been for a few
months and only after the case plan was changed. The court additionally
found that although his recorded drug tests were negative, he had failed to
call in for testing a “significant number of days,” and thus Father could
have still been using drugs and just avoided detection. The court further
found that Father was not a credible or accurate reporter of his drug use as
he had repeatedly misrepresented his drug use to the court and his drug
counselors. The court terminated Father’s parental rights on both the drug
use and time-in-care grounds pursuant to Arizona Revised Statutes
(“A.R.S.”) section 8-533(B)(3), (8)(a),(c). This appeal followed.

ANALYSIS

¶7 A parent’s right to custody and control of his own child, while
fundamental, is not absolute. Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz.
246, 248, ¶¶ 11-12 (2000). Severance of a parental relationship may be
warranted where the state proves one of A.R.S. § 8-533’s statutory grounds
for termination by “clear and convincing evidence.” Id. at 248-49, ¶ 12;
A.R.S. § 8-863(B). “Clear and convincing” means the grounds for
termination are “highly probable or reasonably certain.” Kent K. v. Bobby
M., 210 Ariz. 279, 284-85, ¶ 25 (2005). Under A.R.S. § 8-533(B)(3), a parent’s
rights to their child may be terminated if the court finds that a parent is
unable to discharge their “parental responsibilities because of . . . chronic
abuse of dangerous drugs, controlled substances or alcohol and there are
reasonable grounds to believe that the condition will continue for a
prolonged indeterminate period.” Additionally, the court must also
determine what is in the best interests of the child by a preponderance of
the evidence. Id. at 283-84, ¶¶ 17, 22.

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Decision of the Court

I. Statutory Grounds

¶8 “[W]e will accept the juvenile court’s findings of fact unless
no reasonable evidence supports those findings, and we will affirm a
severance order unless it is clearly erroneous.” Jesus M. v. Ariz. Dep’t of
Econ. Sec., 203 Ariz. 278, 280, ¶ 4 (App. 2002). We do not reweigh the
evidence, but “look only to determine if there is evidence to sustain the
court’s ruling.” Mary Lou C. v. Ariz. Dep’t of Econ. Sec., 207 Ariz. 43, 47, ¶ 8
(App. 2004).

¶9 On appeal, Father argues the juvenile court abused its
discretion by terminating his parental rights based on the substance abuse
ground because both Dr. Jones and Ms. Jouas opined that his prognosis for
sobriety was good and therefore there were not reasonable grounds to
believe the condition would continue for a prolonged indeterminate period.
Those opinions, however, were based on Father’s unreliable and inaccurate
self-reporting.

¶10 Ms. Jouas’ opinion was based on Father’s statement that he
was compliant with his drug testing, which the record shows he was not.
Also, Dr. Jones’ evaluation was based on Father’s statement that he had
been drug free for ten months, and that the hallucination incident was not
caused by drug use but exhaustion. The record shows both those
statements are not true. Father admitted to using methamphetamine at the
time of the hallucination incident, and he tested positive for alcohol,
cocaine, and methamphetamine in September 2017. He also admitted to
using methamphetamine in February 2018, during his second TERROS
intake evaluation.

¶11 Additionally, Dr. Jones’ report specifically stated that Father’s
prognosis was good as long as he continued to participate in the services
provided by DCS, and maintained his sobriety. Father failed to meet the
minimum requirements set forth by Dr. Jones. He was arrested the day
after the evaluation after crashing on a motorcycle while seriously
intoxicated, then failed to participate in any services or maintain contact
with DCS for four months. When Father did make contact, it was to inquire
about relinquishing his parental rights.

¶12 In summary, both therapists based their opinions on
information they received directly from Father, who was not honest with
them. Indeed, the court specifically found that Father was not a credible or
accurate reporter of his drug use and that the record reflected a history of
drug use that was likely to continue for a prolonged and indeterminate

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Decision of the Court

period of time. Because the evidence supports the court’s decision to
terminate Father’s parental relationship, we affirm.2

II. Best Interests

¶13 Father also argues that the juvenile court erred in finding that
severance was in the best interests of the children. Severance is in the
children’s best interests if they would benefit from severance or be harmed
by continuation of the parent-child relationship. Maricopa Cty. Juv. Action
No. JS-500274, 167 Ariz. 1, 5 (1990). Relevant factors include whether the
child’s existing placement is meeting the child’s needs, whether the child is
adoptable, and whether an adoptive placement is immediately available.
Raymond F. v. Ariz. Dep’t of Econ. Sec., 224 Ariz. 373, 379-80 ¶¶ 30-33 (App.
2010).

¶14 In this instance, the children were placed with maternal
grandparents who were meeting their needs and expressed a willingness to
adopt. The case manager testified that severance and adoption were in the
children’s best interests because they needed permanency and they were
adoptable even if grandparents were unable to do so. As such, the evidence
supports the court’s determination that severance and adoption were in the
children’s best interests.

CONCLUSION

¶15 For the foregoing reasons, we affirm the juvenile court’s
termination of Father’s parental relationship.

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

2 Because we affirm on the substance abuse ground, we need not
consider whether the juvenile court’s findings justified severance based on
the time-in-care ground pursuant to A.R.S. § 8-533(B)(8)(a) and (c). See
Michael J., 196 Ariz. at 251, ¶ 27.

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