Fernando G. v. Dcs, L.G.

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

FERNANDO G., Appellant,

v.

DEPARTMENT OF CHILD SAFETY, L.G., Appellees.

No. 1 CA-JV 19-0382
FILED 6-16-2020

Appeal from the Superior Court in Maricopa County
No. JD 34958
The Honorable Sara J. Agne, Judge

AFFIRMED

COUNSEL

David W. Bell, Attorney at Law, Higley
By David W. Bell
Counsel for Appellant

Arizona Attorney General’s Office, Phoenix
By JoAnn Falgout
Counsel for Appellee, Department of Child Safety
 FERNANDO G. v. DCS, L.G.
Decision of the Court

MEMORANDUM DECISION

Judge Jennifer B. Campbell delivered the decision of the Court, in which
Presiding Judge Paul J. McMurdie and Judge Kent E. Cattani joined.

C A M P B E L L, Judge:

¶1 Fernando G. (“Father”) appeals the superior court’s order
terminating his parental rights. He argues the evidence was insufficient to
support the superior court’s findings that (1) the Department of Child
Safety (“DCS”) made diligent efforts to provide appropriate reunification
services, and (2) that termination is in the child’s best interests. Because
sufficient evidence supports the superior court’s findings, we affirm.

BACKGROUND

¶2 Father and Veronica G. (“Mother”) have one child in
common, Lydia, who was born in January 2014.1 Mother has another
daughter, Paula, who is not related to Father and not subject to this appeal.
Paula and Lydia live together with paternal grandmother.

¶3 In October 2017, DCS received a report that Mother was using
illegal substances, including methamphetamine and marijuana. A
urinalysis confirmed her use of methamphetamine and amphetamine.
Father was in custody for a weapons misconduct charge at the time the
child was born, and Father was in prison throughout most of the
dependency proceedings.

¶4 DCS took the child into care at the end of October 2017 and
filed a dependency petition alleging that Father was unwilling or unable to
provide proper and effective parental care for the child due to incarceration
and abandonment. The child was found dependent regarding Father in
November of 2017.

¶5 DCS asked Father to participate in any services available in
prison. While in prison, he participated in anger management and an array
of skills classes, including social, feelings, life, and core skills and Narcotics

1 Mother is not a party to this appeal.

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Anonymous. Father also obtained his GED while in prison, but did not
participate in any parenting or child development classes.

¶6 Father was released from custody in April 2019. He saw his
child that day, but then waited weeks before seeing her again. There was a
delay between his release and the start of services because DCS had trouble
contacting him. DCS eventually was forced to enlist paternal grandmother
to help arrange contact with Father.

¶7 DCS arranged for parent aide services, including supervised
visitation, but Father’s participation was inconsistent. Father failed to visit
his child for up to two weeks at a time. Similarly, Father made only
occasional attempts to communicate with his child outside of attending
visitation. The case manager testified that, in addition to parent aide
services, Father needed to complete additional parenting classes. However,
Father continued to demonstrate a reluctance to participate throughout the
provision of services.

¶8 Father participated in a psychological examination with
Dr. Velez, who determined he has an antisocial personality disorder.
Dr. Velez had “concerns . . . regarding [Father’s] . . . capabilities to maintain
and sustain . . . long term emotional and behavioral stability,” and that he
did “not have the coping skills and the stability . . . to manage his behavioral
state and his parenting role.” Dr. Velez opined that Father would benefit
from more parenting classes and parent aide services to bolster his
parenting skills. She also recommended cognitive behavioral therapy
(“CBT”). As of the date of the severance hearing, Father had not called the
CBT provider nor had he looked into the additional parenting classes.

¶9 DCS filed a motion for termination of Father’s parental rights
in December 2018 based on incarceration. After his release from prison,
DCS amended the basis for termination, instead asserting the statutory
ground of fifteen months’ time in care. After holding a one-day contested
severance hearing, the superior court found that (1) DCS had proven the
statutory ground for termination, (2) DCS had made diligent efforts to
provide Father with reunification services, (3) Father was unable to remedy
the circumstances that caused the child to be taken into care, and (4)
termination was in the child’s best interests. Father timely appealed.

DISCUSSION

¶10 “Parents possess a fundamental liberty interest in the care,
custody, and management of their children.” Kent K. v. Bobby M., 210 Ariz.
279, 284, ¶ 24 (2005). But even fundamental rights are not absolute. Id. A

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court may sever those rights if it finds clear and convincing evidence of one
of the statutory grounds for severance and finds by a preponderance of the
evidence that severance is in the children’s best interests. See A.R.S. §§ 8–
533(B), –537(B); Aleise H. v. Dep’t of Child Safety, 245 Ariz. 569, 572, ¶ 7 (App.
2018). The superior court is entrusted with a great deal of discretion in
weighing and balancing the interests of the children, parents, and State.
Cochise Cty. Juv. Action No. 5666–J, 133 Ariz. 157, 160 (1982).

¶11 We will not disturb the court’s termination of parental rights
unless the factual findings are clearly erroneous—that is, unless no
reasonable evidence exists to support them. See Minh T. v. Ariz. Dep’t of
Econ. Sec., 202 Ariz. 76, 78–79, ¶ 9 (App. 2001). We interpret the evidence
and reasonable inferences in the light most favorable to affirming the
court’s order. Manuel M. v. Ariz. Dep’t of Econ. Sec., 218 Ariz. 205, 207, ¶ 2
(App. 2008).

I. Diligent Efforts to Provide Reunification Services

¶12 Father argues DCS failed to make diligent efforts to provide
appropriate reunification services. Specifically, Father contends that DCS
did not allow him enough time to complete the required services after he
got out of prison, and DCS took too long to make appropriate service
arrangements. We disagree.

¶13 DCS satisfies its obligation to make diligent efforts to reunify
by providing a parent “with the time and opportunity to participate in
programs designed to help [the parent] become an effective parent.”
Maricopa Cty. Juv. Action No. JS-501904, 180 Ariz. 348, 353 (App. 1994). To
meet its obligation, DCS need not provide every conceivable service or force
Father to participate in the services offered. Mary Ellen C. v. Ariz. Dep’t of
Econ. Sec., 193 Ariz. 185, 187, ¶ 1 (App. 1999). Stated differently, “[t]he State
is not obliged to undertake futile rehabilitative measures . . . [only] those
which offer a reasonable possibility of success.” Id. at 192, ¶ 37. Parents have
an affirmative duty to engage in services in a timely, consistent manner,
and DCS does not need to leave “the window of opportunity for
remediation open indefinitely.” Maricopa Cty. Juv. Action No. JS-501568, 177
Ariz. 571, 577 (App. 1994).

¶14 While in prison, DCS asked Father to participate in available
services. Although Father took advantage of some self-improvement
services, he did not participate in any classes geared toward parenting or
child development. DCS tried to contact Father multiple times to coordinate
additional services once he was released, but could not reach him. Once

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DCS was able to connect with Father, his participation in the services
offered was inconsistent.

¶15 Though Father argues DCS should have given him more time;
Father failed to maximize the window of opportunity for remediation by
failing to contact DCS, to self-refer for CBT, or to engage in available
services consistently. See JS-501568, 177 Ariz. at 577. Therefore, reasonable
evidence supports the superior court’s diligent efforts finding.

II. Best Interests

¶16 Father argues the evidence was insufficient to support a
finding that the child would benefit from termination. Father asserts the
child’s best interests would be better served by allowing him additional
time to implement recommended services.

¶17 Termination of parental rights is in the children’s best
interests if the termination would benefit the child or if the continuation of
the relationship would harm the child. Aleise H., 245 Ariz. at 572, ¶ 9 . Once
the court’s focus shifts to the best interests analysis, the “foremost concern
. . . is protecting a child’s interest in stability and security.” Id. (citations
omitted). The superior court also considers whether the current placement
is meeting the children’s needs and whether an adoptive placement is
available. Audra T. v. Ariz. Dep’t of Econ. Sec., 194 Ariz. 376, 377, ¶ 5 (App.
1998). Generally, a finite window of opportunity for remediation is in the
best interests of the child. JS-501568, 177 Ariz. at 577.

¶18 Sufficient evidence shows that severance would be in the
child’s best interests. At the time of the severance hearing, the child had
been in care for approximately two years and was placed with her paternal
grandmother. The case manager testified that the child likes living with her
grandmother, and calls her “Mom.” The child lives with her half-sister, who
is also placed with Lydia’s paternal grandmother. Grandmother is planning
to adopt both children, and she has indicated a willingness to permit Father
to have contact and attempt to develop a relationship with the child, even
after severance of his rights. Finally, even if grandmother is unable to adopt
the child, the case manager testified the child is otherwise adoptable.

¶19 Furthermore, sufficient evidence supports a finding that
failure to sever Father’s rights would harm the child. The superior court
found that severance of Father’s parental rights was in the child’s best
interests because “[t]he great weight of the trial testimony was in agreement
that [Father] had much work to do on himself before there would be any
likelihood that he would be a minimally adequate parent.” The child had

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been in care for approximately two years, and the DCS case manager
testified that it would be detrimental for her to continue to linger in care, if
DCS were to give Father more time to complete services.

¶20 Regarding Father’s argument that the superior court failed to
consider relevant facts, as the trier of fact, the superior court is entitled to
determine the appropriate weight to give each fact. Jordan C. v. Ariz. Dep’t
of Econ. Sec., 223 Ariz. 86, 93, ¶ 18 (App. 2009) (The superior court “is in the
best position to weigh the evidence, observe the parties, judge the
credibility of witnesses, and resolve disputed facts.”) (citation omitted).

¶21 The superior court found that termination would be in the
child’s best interests by a preponderance of the evidence. This finding was
within the court’s discretion and is supported by credible evidence.

CONCLUSION

¶22 For the foregoing reasons, we affirm.

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

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