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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

CHARLES H., Appellant,

v.

DEPARTMENT OF CHILD SAFETY, J.B., A.B., Appellees.

No. 1 CA-JV 19-0326
FILED 4-30-2020

Appeal from the Superior Court in Maricopa County
No. JD528730
The Honorable Karen L. O’Connor, Judge (Retired)

AFFIRMED

COUNSEL

Robert D. Rosanelli Attorney at Law, Phoenix
By Robert D. Rosanelli
Counsel for Appellant

Arizona Attorney General’s Office, Phoenix
By Doriane F. Neaverth
Counsel for Appellee Department of Child Safety
 CHARLES H. v. DCS, et al.
Decision of the Court

MEMORANDUM DECISION

Judge Randall M. Howe delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Chief Judge Peter B. Swann
joined.

H O W E, Judge:

¶1 Charles H. (“Father”) appeals the juvenile court’s order
terminating his parental rights to his children. For the following reasons,
we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Father and Katrina B. (“Mother”)1 have two children, J.B.,
born in 2013, and A.B., born in 2016. In May 2015, before A.B. was born, the
Department of Child Safety removed J.B. from Mother’s and Father’s care
and petitioned for a dependency alleging substance abuse and neglect. J.B.
was adjudicated dependent and the Department offered Mother and Father
reunification services that only Father completed. The dependency was
dismissed, and Father was awarded sole legal decision-making and
physical custody of J.B.

¶3 After the first dependency action, Mother and Father
continued to use drugs and Father left the children alone in Mother’s care
while he was at work. Father also engaged in domestic violence toward
Mother in front of the children. In February 2018, the Department
petitioned for dependency alleging, among other things, substance abuse
and neglect by Father. The Department also took custody of the children
pursuant to court order.

¶4 After learning that the Department was going to take custody
of their children, Mother and Father left for California. The Department
took custody of the children in California in April 2018. The children were
placed in the care of their maternal grandmother, a kinship licensed foster
home.

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

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 CHARLES H. v. DCS, et al.
Decision of the Court

¶5 Father was referred to TASC and Physician Services, Inc. for
substance abuse testing in April 2018. Father participated in substance
abuse testing once in May 2018 but did not participate again until
September 2018. Between May 2018 and January 2019, Father tested seven
times and tested positive for marijuana or methamphetamine each time.
During this time, Father either failed to call in or failed to appear for testing
more than 200 times.

¶6 The Department also referred Father to TERROS in May 2018
for substance abuse treatment. Father did not participate, and the referral
was closed in October 2018. Father was referred to TERROS again in
November 2018. Father completed the intake and was referred for intensive
outpatient treatment. He was diagnosed with alcohol dependency disorder
and informed that he needed to demonstrate sobriety from all substances,
including alcohol, for six months. He was resistant and noncompliant and
did not engage or actively participate in group sessions. He was closed out
unsuccessfully in February 2019.

¶7 In August 2018, the juvenile court adjudicated the children
dependent. That same month, Father was referred for a parent-aide. Father
failed to communicate and cancelled several scheduled visits and skills
sessions. He was closed out unsuccessfully in March 2019. Since then,
Father participated in supervised visitation. Father was referred to
individual counseling in September 2018, and he attended all scheduled
sessions from October 2018 to January 2019.

¶8 In February 2019, Father self-referred to Crossroads for
substance abuse treatment and earned a certificate completing the “Right
Track Program” in March 2019. Father started testing negative for drugs in
February 2019 but tested positive for marijuana twice in March 2019. Father
tested negative for drugs from the end of March to June 2019 but failed to
test in July and August 2019. Father also presumptively tested positive for
alcohol in September 2019.

¶9 Father was referred to TERROS for substance abuse treatment
a third time in April 2019. In May 2019, he completed an intake and was
referred to the standard out-patient program. He completed that program
and, at the time of the termination adjudication, was in the recovery and
maintenance program.

¶10 Given a lack of progress, in April and May 2019, the court
changed the case plan to severance and adoption. In May 2019, the
Department moved to terminate Father’s parental rights based on nine and

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Decision of the Court

15 months’ out-of-home placement and chronic substance abuse. The
juvenile court held a termination hearing in September 2019. A Department
case manager testified that the Department still had concerns about Father’s
substance abuse and that termination of his parental rights was in the
children’s best interests. Mother also testified that Father would go from
being clean to using substances and that the children would not be safe in
his care.

¶11 The juvenile court terminated Father’s parental rights to J.B.
and A.B. under A.R.S. § 8–533 (B)(8)(a), out-of-home placement for nine
months; (B)(8)(b), out-of-home placement for 15 months; and (B)(3), chronic
substance abuse. Father timely appealed.

DISCUSSION

¶12 Father challenges the juvenile court’s finding that he
substantially neglected or wilfully refused to remedy the circumstances that
caused his children to be in an out-of-home placement for nine months. A
juvenile court’s termination decision is reviewed for an abuse of discretion.
Mary Lou C. v. Ariz. Dep’t of Econ. Sec., 207 Ariz. 43, 47 ¶ 8 (App. 2004).
“When the statutory grounds for termination are challenged, we will affirm
a termination order unless we must say as a matter of law that no one could
reasonably find the evidence supporting statutory grounds for termination
to be clear and convincing.” Donald W. v. Dep’t of Child Safety, 247 Ariz. 9,
14 ¶ 25 (App. 2019) (quoting Jordan C. v. Ariz. Dep’t of Econ. Sec., 223 Ariz.
86, 93 ¶ 18 (App. 2009)). Because 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), we view the evidence and draw all
reasonable inferences from it in the light most favorable to sustaining the
court’s decision, Jordan C., 223 Ariz. at 93 ¶ 18.

¶13 To terminate parental rights, the juvenile court must find by
clear and convincing evidence the existence of at least one statutory ground
for termination and find by a preponderance of the evidence that
termination is in the child’s best interests. Jennifer S. v. Dep’t of Child Safety,
240 Ariz. 282, 286 ¶ 15 (App. 2016). Parental rights may be terminated when
the child has been in an out-of-home placement for a cumulative period of
nine months or longer and the parent has substantially neglected or wilfully
refused to remedy the circumstances that caused the child to be in an
out-of-home placement. A.R.S. § 8–533(B)(8)(a).

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 CHARLES H. v. DCS, et al.
Decision of the Court

¶14 Substantial evidence supports the juvenile court’s
determination that Father substantially neglected or wilfully refused to
remedy the circumstances that caused his children to be in an out-of-home
placement. One of the circumstances that caused the children to be placed
in an out-of-home placement was Father’s substance abuse. The
Department placed the children with their maternal grandmother in April
2018 and repeatedly offered Father substance abuse treatment and testing
starting in April and May 2018. Father participated in drug testing only
seven times between May 2018 and January 2019 and he tested positive for
either marijuana or methamphetamine each time. He also either failed to
call in or appear for drug testing during that nine-month period more than
200 times. Father was also closed out of substance abuse treatment with
TERROS once in October 2018 and again in February 2019 for failing to
participate. As a result, substantial evidence supports the juvenile court’s
determination that Father substantially neglected or wilfully refused to
remedy his substance abuse. Therefore, the juvenile court did not err by
terminating Father’s parental rights to J.B. and A.B. for nine months
out-of-home placement under A.R.S. § 8–533(B)(8)(a).

¶15 Father argues that he participated in drug testing, completed
individual counseling, and self-referred to Crossroads in February 2019 for
substance abuse treatment. A finding of substantial or wilful neglect is
within the discretion of the juvenile court when a parent makes sporadic,
aborted attempts to remedy the situation. Maricopa Cty. Juv. Action No.
JS-501568, 177 Ariz. 571, 576 (App. 1994). Even though Father made some
attempts to participate in TERROS his attempts were sporadic during the
first ten months of the children’s out-of-home placement and he was closed
out of the service twice. Likewise, Father’s drug testing was sporadic, and
at times non-existent for extended periods, including from May 2018 to
January 2019. And when Father did test during that period, he tested
positive for either marijuana or methamphetamine.

¶16 And while Father self-referred to Crossroads for substance
abuse treatment in February 2019, he continued to test positive for
marijuana in March 2019. He also failed to participate in drug testing in July
and August 2019, and had a presumptive positive for alcohol in September
2019, despite knowing he had a problem with alcohol and that he was
supposed to maintain sobriety. Even though Father eventually participated
in reunification services and completed TERROS in mid-2019, these efforts
came too late. See id. at 577. Therefore, the juvenile court did not err by

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Decision of the Court

terminating Father’s parental rights to J.B. and A.B. for out-of-home
placement for nine months under A.R.S. § 8–533(B)(8)(a).2

CONCLUSION

¶17 For the foregoing reasons, we affirm.

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

2 Father does not challenge the juvenile court’s finding that
termination of his parental rights was in the best interests of the children
and the record supports that finding. We also need not consider the
remaining termination grounds. See Michael J. v. Ariz. Dep’t of Econ. Sec., 196
Ariz. 246, 251 ¶ 27 (2000).

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