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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

OCTAVIO G., Appellant,

v.

DEPARTMENT OF CHILD SAFETY, J.S-G, J.S-G, J.G,
Appellees.

No. 1 CA-JV 19-0259
FILED 2-11-2020

Appeal from the Superior Court in Maricopa County
No. JD17456
The Honorable Randall H. Warner, Judge

AFFIRMED

COUNSEL

David W. Bell, Mesa
Counsel for Appellant

Arizona Attorney General’s Office, Tucson
By Cathleen E. Fuller
Counsel for Appellee Department of Child Safety
 OCTAVIO G. v. DCS, et al.
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Samuel A. Thumma delivered the decision of the Court, in
which Judge Randall M. Howe and Judge Diane M. Johnsen joined.

T H U M M A, Judge:

¶1 Octavio G. (Father) challenges the superior court’s
termination of his parental rights to his three biological children based on
15-months time-in-care. Finding no error, this court affirms.

FACTS AND PROCEDURAL HISTORY

¶2 A prior dependency proceeding involving the older two
children lasted from January 2015 to June 2016. When that matter was
dismissed, Father was granted custody and sole legal decision-making,
with Mother having supervised visitation.

¶3 In February 2017, the youngest child was born substance-
exposed to marijuana. Early one morning in April 2017, police found
Mother and the three children sleeping on the ground outside. The infant
was wearing only a diaper and the other children used napkins to stay
warm. The police arrested Mother, who said she and the children had “been
staying at her father’s house for the past week and had been kicked out.”
The Department of Child Safety (DCS) took the children into care because
it could not reach Father and no one else could care for them.

¶4 This second dependency petition, filed in April 2017, alleged
Father neglected the children “by failing to provide them with the basic
necessities of life.” The court found the children dependent as to Father in
July 2017, adopting a case plan of family reunification, concurrent with
severance and adoption for two of the children.

¶5 DCS provided Father various services. Although Father
successfully completed substance abuse testing, he was unsuccessfully
closed out of parent aide services. Given the passage of time and a lack of
progress, the court changed the case plan to severance and adoption in
October 2018, and DCS moved to terminate based on 15-months time-in-
care.

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 OCTAVIO G. v. DCS, et al.
Decision of the Court

¶6 At the two-day adjudication in July 2019, Father and two DCS
child safety specialists testified. After taking the matter under advisement,
the court found DCS had met its burden of proof and that termination was
in the best interests of the children:

[Father] is the same person today that he was
when he allowed the Children to stay with
Mother. . . . Time in care cases can often seem
like the Department is seeking termination
merely because a parent has not jumped
through required hoops. This is not this case. . . .
Nothing Father has done in the time since [the
Children were taken into care] would prevent
that or something similar from happening again
if the Children were returned to Father.

¶7 This court has jurisdiction over Father’s timely appeal
pursuant to Article 6, Section 9, of the Arizona Constitution, Arizona
Revised Statutes (A.R.S.) §§ 8-235(A) and 12-120.21(A)(1) (2020) and
Arizona Rules of Procedure for the Juvenile Court 103 and 104.1

DISCUSSION

¶8 As applicable here, to terminate parental rights, a court must
find by clear and convincing evidence that at least one statutory ground in
A.R.S. § 8-533(B) has been proven and must find 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. v. Ariz. Dep’t of Econ. Sec.,
196 Ariz. 246, 249 ¶ 12 (2000). Because the superior court “is in the best
position to weigh the evidence, observe the parties, judge the credibility of
witnesses, and resolve disputed facts,” this court will affirm an order
terminating parental rights as long as it is supported by reasonable
evidence. Jordan C. v. Ariz. Dep’t of Econ. Sec., 223 Ariz. 86, 93 ¶ 18 (App.
2009) (citation omitted).

¶9 The 15-months time-in-care ground requires proof by clear
and convincing evidence that DCS “has made a diligent effort to provide
appropriate reunification services” and that:

The child has been in an out-of-home placement
for a cumulative total period of fifteen months

1Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.

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 OCTAVIO G. v. DCS, et al.
Decision of the Court

or longer pursuant to court order or voluntary
placement pursuant to [A.R.S.] § 8-806, the
parent has been unable to remedy the
circumstances that cause the child to be in an
out-of-home placement and 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); Michael J., 196 Ariz. at 249 ¶ 12. Father does not
challenge the adequacy of the services provided, nor does he dispute that
the children have been in care for 15 months or the best interests finding,
all of which the record supports. Instead, Father argues the court erred
when it found the evidence demonstrated he had not remedied the
circumstances that caused the removal of the children.

¶10 Father’s arguments on appeal seek to reweigh the evidence,
something this court will not do. See Jesus M. v. Ariz. Dep’t of Econ. Sec., 203
Ariz. 278, 282 ¶ 12 (App. 2002). This is particularly true where, as here, the
superior court found Father’s testimony was not credible.

¶11 In addressing how this second dependency came to be, Father
argues that he “had [no] way of knowing beforehand that Mother would
leave the grandfather’s home with the children during the authorized
visit.” At trial, he testified that the children had been with Mother for only
eight hours before police found them sleeping on the ground that morning.
The superior court, however, did not believe Father, given that police found
Mother and the children at 5:37 a.m. The court also noted Father had not
notified DCS that Mother had custody of the children, had not reported the
children missing, and could not be located for several days to take custody
of the children. This evidence supported the court’s finding that Father had
entrusted the children with Mother for far longer than the eight hours he
claimed.

¶12 Father argues he satisfied DCS’ requirements for reunification
by enhancing his protective role and his ability to recognize threats to the
children’s well-being. However, the evidence supports the court’s findings
that Father was referred for several services, but ultimately “[n]othing
Father has done in the time since” this second dependency began would
prevent the concerns that brought the children back in care. Other than
substance abuse testing, Father did not successfully complete any of the
services DCS provided.

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 OCTAVIO G. v. DCS, et al.
Decision of the Court

¶13 Father argues that DCS kept “changing the finish line” once
he completed “the objectives requested.” He contends he improved his
parenting abilities and points out that the psychiatric evaluator
recommended a family reunification team. At trial, however, a DCS child
safety specialist testified that a family reunification team “is a progression
where typically a parent is successful from a parent aide service and then
they would go into a family reunification team service.” Father, however,
never successfully completed any parent aide service, a predicate for a
family reunification team. The record does not reflect that Father completed
“the objectives requested,” let alone that any relevant “finish line” kept
changing.

¶14 The record reflects that the superior court properly
considered the evidence before it granted the motion to terminate. In doing
so, the court found that Father’s parenting abilities had not changed since
he allowed the children to stay with Mother in April 2017. On this record,
Father has not shown the court erred in granting DCS’ motion.

CONCLUSION

¶15 The superior court’s order terminating Father’s parental
rights to the three children is affirmed.

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

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