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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

MORGAN B., Appellant,

v.

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

No. 1 CA-JV 19-0409
FILED 5-19-2020

Appeal from the Superior Court in Maricopa County
No. JD28612
The Honorable David O. Cunanan, Judge

AFFIRMED

COUNSEL

Czop Law Firm, PLLC, Higley
By Steven Czop
Counsel for Appellant

Arizona Attorney General’s Office, Mesa
By Amanda Adams
Counsel for Appellee Department of Child Safety
 MORGAN B. v. DCS, et al.
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Lawrence F. Winthrop delivered the decision of the Court,
in which Judge Maria Elena Cruz and Judge David B. Gass joined.

W I N T H R O P, Judge:

¶1 Morgan B. (“Father”) appeals the juvenile court’s order
terminating his rights to E.B., born April 28, 2005, and A.B., born June 7,
2006 (collectively, “the children”). Father does not challenge that the
children have been in an out-of-home placement for fifteen months, but
argues the juvenile court erred in finding the Department of Child Safety
(“DCS”) made reasonable and diligent efforts to provide appropriate
reunification services. See Arizona Revised Statutes (“A.R.S.”) section 8-
533(B)(8)(c). For the following reasons, we affirm.

FACTS1 AND PROCEDURAL HISTORY

¶2 Father and Debra D. (“Mother”)2 are the biological parents of
the children. In 2006, Father and Mother divorced. The family court
awarded Mother sole custody of the children and granted Father parenting
time every other weekend, on Saturday and Sunday from 8:00 AM until
3:30 PM. Father continued to have regular parenting time with the children
until 2009 when Mother obtained an order of protection against Father,
which was in place for one year. Thereafter, from 2009 to 2017, Father only
saw the children one time, in 2012.

¶3 Near the time of Father’s last visit with the children, the
children began participating in behavioral-health services. Both children
were diagnosed with attention-deficit-hyperactivity disorder and were
prescribed medication to manage their aggressive and anxious behaviors.
E.B. was also diagnosed with oppositional defiant disorder. In addition,

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

2 Mother’s parental rights were terminated in September 2019, and she
is not a party to this appeal.

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both children exhibited developmental delays and were placed on
Individualized Education Programs. The children also began receiving
counseling services that addressed, in part, their fear of Father.3

¶4 In June 2014, DCS initiated dependency proceedings for the
children, alleging Mother was neglecting the children by subjecting them to
unsanitary living conditions and by allowing them to be around her
boyfriend, who was a registered sex offender. Father began participating
in the dependency case in August 2014, when he attended a mediation and
agreed to participate in services, including parent aide and supervised
therapeutic visitation. In December 2014, however, the dependency was
dismissed and the children were returned to Mother before DCS
implemented any visitation services with Father.

¶5 In June 2015, Father petitioned the family court for a
modification of his parenting time and child support. The family court
ordered Father to participate in therapeutic intervention services to restore
his parenting time with the children, but Father failed to follow through or
contact the appointed therapeutic interventionist and so had no contact
with the children.

¶6 In the following years, the children lived with Mother and her
new husband, where they were exposed to domestic violence and
substance abuse. During this time, the children’s anxious and aggressive
behaviors increased. In June 2017, the children, along with Mother and her
husband, began living with Mother’s parents (“Grandparents”). In August
2017, Mother moved out with her husband and left the children with
Grandparents.

¶7 In November 2017, the juvenile court appointed
Grandparents as the children’s temporary guardians after Mother failed to
maintain any contact with the children. While living with Grandparents,
the children began making progress in their therapy sessions, their
behaviors improved, and they were able to discontinue their medications.

3 E.B. told a counselor she would prefer to have no contact with
Father. E.B. also said she did not like talking to Father on the phone and
would hide under the table when she heard his voice.

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¶8 In February 2018, Grandparents filed a private dependency
petition,4 alleging Mother and Father had abandoned the children based on
neglect, failure to maintain normal parental relationships, and failure to
provide support for the children. Soon after, DCS took temporary legal
custody of the children, although the children remained in Grandparents’
physical custody.

¶9 In May 2018, DCS located Father and personally served him
with the dependency petition. In June, Father appeared at the continued
initial dependency hearing, contested the allegations in the dependency
petition, and requested visits with the children. At that point, Father had
visited with the children only one time in the past nine years, in 2012. DCS
opposed Father having visits with the children until the children’s therapist
found such visits appropriate. Accordingly, the court ordered DCS to
provide a written explanation from the children’s therapist about why
visitation would be contrary to the children’s welfare and to estimate how
long it would be before the children would willingly participate in visits
with Father.

¶10 When the children, now 12 and 13 years old, learned that
Father wanted to meet with them, they refused. As their therapist began
mentioning Father in counseling sessions, the children’s aggressive and
anxious behaviors increased. E.B. regressed to baby talk, thumb sucking,
and did not want to sleep in her own room, and both of the children
exhibited increased anger issues and became disengaged during therapy
sessions.

¶11 A psychologist, Dr. Erin South, reviewed the children’s
counseling records and interviewed the children individually to
understand their reluctance toward interacting with Father and to
determine what could be done to facilitate contact between the children and
Father. When Dr. South mentioned Father, E.B. stated, “If you try to make
me go see my father that won’t happen. He locked me up in a closet with
clowns, he abused me, he threw me on the couch.” E.B. also said she and
A.B. had ended up with “a lot of bruises” from spending time at Father’s
house, that Father “lie[s] a lot,” and that she is “scared to death of him.”
E.B. also stated, “I don’t know him and I don’t want to.” When Dr. South
suggested various types of visitation E.B. could have with Father, E.B.

4 Grandparents’ temporary guardianship was set to expire on April 9,
2018, and Mother had indicated she would not consent to further
guardianship.

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Decision of the Court

refused all contact, including supervised visits, phone calls, and letters.
A.B. made similar statements to Dr. South, saying she and E.B. both “got
hurt” when with Father, that Father had “locked [them] in a closet with
Halloween clowns and turned them all on and scared us,” and that Father
had sprayed them with cold water and made them stay outside in the cold.
A.B. affirmed she did not want any form of visitation or contact with Father
and added that they had tried to have phone calls with him in the past, but
Father never answered his phone. A.B. explained she would be
“uncomfortable” being in the same room as Father and “would never see
him. Never talk to him.”

¶12 Dr. South also noted that both of the children referred to
Father by his first name, Morgan. When asked about whether their
grandmother or Mother ever talked badly about Father, both children
stated they never brought up Father. Following the interviews, Dr. South
recommended that both children “continue to have a choice in whether to
attend visits or have contact with their father.”

¶13 Meanwhile, DCS referred Father for parent-aide services and
encouraged him to send the children letters, pictures, and gifts to help build
a relationship with them. The children were found dependent as to Father
in October 2018, at which time the court also ordered DCS to offer Father
“therapeutic visits when recommended by the children’s therapist.” Father
wrote three letters to the children, but received no response.5 In November
2018, Father completed the parenting-skills portion of his parent-aide
service, but the service was eventually “unsuccessfully closed out” because
the children were unwilling to participate in visits with Father, meaning
Father did not have the ability to demonstrate his parenting capabilities.

¶14 In the following months, Father stopped sending letters to the
children because he “wasn’t getting a response” and because he had heard
it was upsetting the children. At the encouragement of the DCS case
manager, Father sent a few more letters and some Christmas gifts to the
children in March and April 2019.

¶15 As the topic of engaging with Father continued to be raised,
the children’s anxious and aggressive behaviors at home escalated,

5 Although the children refused to read the letters, DCS provided the
letters to the children’s therapist so that the therapist could help the
children review the letters. DCS also provided a copy of the letters to
Grandparents to save for the children.

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including the children experiencing night terrors and bed-wetting. The
children’s therapist also reported that anytime she tried to discuss Father
with the children, they “shut down . . . emotionally.” In addition, E.B.
would start fidgeting and making noises to “distract from the question,”
while A.B. would “become quieter,” “hide behind her hair,” and try to leave
the room.

¶16 In May 2019, the juvenile court changed the case plan to
severance and adoption,6 and DCS moved to terminate Father’s parental
rights based on abandonment and fifteen-month out-of-home placement.
The juvenile court held the severance hearing in November 2019. After
considering the evidence presented, the court terminated Father’s parental
rights based on the fifteen-month out-of-home placement ground. See
A.R.S. § 8-533(B)(8)(c).

¶17 Father filed a timely notice of appeal. We have jurisdiction
pursuant to A.R.S. § 8-235(A) and Rule 103(A) of the Arizona Rules of
Procedure for the Juvenile Court.

ANALYSIS

I. Standard of Review

¶18 Parental rights may be severed if the court 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); Kent K. v. Bobby M., 210 Ariz.
279, 281-82, 288, ¶¶ 7, 41 (2005).

¶19 The juvenile court retains great discretion in weighing the
interests of the child, parent, and state. Cochise Cty. Juv. Action No. 5666-J,
133 Ariz. 157, 160 (1982). As the trier of fact in a termination proceeding,
the juvenile court “is in the best position to weigh the evidence, observe the
parties, judge the credibility of witnesses, and resolve disputed facts.”
Jordan C. v. Ariz. Dep’t of Econ. Sec., 223 Ariz. 86, 93, ¶ 18 (App. 2009)
(quoting Ariz. Dep’t of Econ. Sec. v. Oscar O., 209 Ariz. 332, 334, ¶ 4 (App.
2004)). Resolution of conflicts in the evidence is uniquely the province of
the juvenile court, and we will not reweigh the evidence in our review. See
Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 282, ¶ 12 (App. 2002). We
review the juvenile court’s order severing a parent’s rights for an abuse of

6 A.B.’s counseling records reflect that after she learned the case plan
had been changed from family reunification to severance and adoption, her
bed-wetting stopped.

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discretion, and we will not disturb the juvenile court’s order unless no
reasonable evidence supports its factual findings. E.R. v. Ariz. Dep’t of Child
Safety, 237 Ariz. 56, 58, ¶ 9 (App. 2015); Matthew L., 223 Ariz. at 549, ¶ 7.

II. Reunification Services

¶20 On appeal, Father argues the juvenile court erred in finding
DCS made reasonable and diligent efforts to provide him with reunification
services because DCS did not provide any service to directly address why
the children refused to have contact with him. Father concedes the children
have been in an out-of-home placement for fifteen months or more.

¶21 Under A.R.S. § 8-533(B)(8)(c), the juvenile court may
terminate parental rights if DCS has made a diligent effort to provide the
parent reunification services, the child has been in an out-of-home
placement for fifteen months or longer, “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.”

¶22 In making a “diligent effort” to provide services under A.R.S.
§ 8-533(B)(8), DCS is “not required to provide every conceivable service,”
but must present the 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). DCS
is not required to take measures that are futile and need only “undertake
measures with a reasonable prospect of success.” Mary Ellen C. v. Ariz.
Dep’t of Econ. Sec., 193 Ariz. 185, 192, ¶ 34 (App. 1999). In addition, though
termination under A.R.S. § 8-533(B)(8)(a) requires “the parent has
substantially neglected or wilfully refused to remedy the circumstances that
cause the child to be in an out-of-home placement,” the ground for
termination in this case—subsection (c)—requires only that “the parent has
been unable to remedy the circumstances,” irrespective of the parent’s
participation in reunification services.

¶23 Here, Father argues the parent-aide services he was offered
were inadequate because they did not address how he could rebuild his
relationship with the children. Father claims he should have received
services that would directly address his relationship with the children, such
as individual or family counseling, parenting classes on dealing with a
traumatized child, and forensic interviews of the children to determine the
source of their traumas.

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Decision of the Court

¶24 Reasonable evidence, however, supports the juvenile court’s
finding that DCS “made a diligent effort to provide appropriate
reunification services based on the children’s ability to process the trauma
they experienced.” Father received parent-aide services, which he
participated in to the extent he was able. Father had the opportunity to
communicate with the children through letters in order to rehabilitate his
relationship with the children, but he only sent five or six letters in total.

¶25 The record also shows DCS made an effort to directly address
why the children refused to have contact with Father. Although forensic
interviews were not conducted with the children because it was not
recommended by their therapist, Dr. South interviewed the children to
determine why they were resistant to communication with Father. In
addition, Dr. South testified that both of the therapists that had worked
with the children over a protracted period of time had tried asking them
about Father in order to work through any past traumas associated with
Father. A therapist also tried to review Father’s letters with the children,
despite the children’s persistent resistance.

¶26 Father complains that the children’s therapist focused mainly
on the children’s individual problems rather than addressing their
relationship with Father. But Dr. South testified that the therapy sessions
the children received had been appropriate, and had to focus first on
regulating the children’s every-day problems and behaviors, because those
problems needed to be addressed before the children would be able to
process any trauma associated with Father. She explained that the children
would not likely be ready to process any trauma with Father while involved
with DCS because the children lacked the feelings of permanency and
safety needed to address deeper traumas. In addition, Dr. South testified
she could not think of any additional services that could have been offered
to Father that would assist with reunification and did not think the children
would be able to address their trauma any time in the foreseeable future.
On this record, the juvenile court did not abuse its discretion in finding DCS
made reasonable and diligent efforts to provide Father with reunification
services.

III. Children’s Refusal to See Father

¶27 Father also contends the juvenile court erred in terminating
his parental rights under A.R.S. § 8-533(B)(8)(c) because the children’s
refusal to see him could not be the sole basis for finding there was a
substantial likelihood that Father would not be capable of exercising proper
and effective parental care in the near future.

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¶28 In support of this argument, Father relies on Desiree S. v. Ariz.
Dep’t of Child Safety, which held that a child’s “subjective belief, without
more, cannot be the sole basis to determine as a matter of law” that the
parent will be unable to parent the child in the near future, if parent has
fully engaged in all services offered by DCS. 235 Ariz. 532, 534, ¶ 11 (App.
2014). In Desiree S., DCS removed the child after the mother failed to protect
the child from her abusive husband. Id. at 533, ¶ 3. The child subsequently
refused to attend counseling with the mother, even though there was no
evidence the child could not or should not participate. Id. at 534, ¶ 9 n.5.
The child also stated he did not want to return to the mother because he
believed she could not protect him. Id. at ¶ 10. However, the case manager
testified that the mother had successfully completed all of the services
offered and that there were no barriers for reunification with the mother.
Id. at ¶ 9.

¶29 In contrast, here Dr. South testified the children were not
ready to address their traumas associated with Father and would not likely
be ready for a significant period of time. The case manager testified that,
although family counseling was to be offered as soon as it was deemed
clinically appropriate for the children, such counseling was never deemed
appropriate. In addition, there is a clear record of the anxiety-induced
behaviors the children experienced in response to discussions of Father,
which supported the determination that the children were not ready to
safely participate in counseling or visits with Father.

¶30 Moreover, the continuing lack of any normal parental
relationship is not simply the result of the children’s unilateral refusal to
communicate with Father while in DCS care, but the result of Father’s
longstanding lack of participation in the children’s lives for nearly ten years
and the children’s continuing fear of abuse by Father. Although Father
asserted that he persistently tried to obtain visitation with the children over
the years, the juvenile court explicitly found that the applicable family court
record “undermines Father’s testimony regarding his efforts to parent his
children” and that even when Father was granted therapeutic visitation in
2015 he “failed to seek his visitation rights as ordered.” Even after DCS
became involved, Father wrote less than ten letters to the children and
admitted that he stopped writing the letters at no one’s request.

¶31 Accordingly, unlike Desiree S., here it was not the children’s
subjective belief alone that presented a barrier to Father’s ability to reunite
with the children. Such determination was supported by the opinions of
the case manager and mental health professionals, the children’s extensive
behavioral and mental health records, and by the longstanding record of

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Father’s lack of participation in the children’s lives. On this record, the
juvenile court did not abuse its discretion in finding there is a substantial
likelihood Father would not be capable of exercising proper and effective
parental care and control in the near future.

IV. Best Interests of the Children

¶32 Father does not challenge, and has therefore waived any
argument regarding, the juvenile court’s finding that severance was in the
children’s best interests. See Crystal E. v. Ariz. Dep’t of Child Safety, 241 Ariz.
576, 577, ¶ 5 (App. 2017). Nevertheless, we note reasonable evidence
supports the finding. See generally Maricopa Cty. Juv. Action No. JS–500274,
167 Ariz. 1, 5 (1990) (“[B]est interests of the child are a necessary, but not
exclusively sufficient, condition for an order of termination.”). Here, the
juvenile court found the children are residing together in an adoptive
placement with extended family members, which is meeting all of their
needs. See Audra T. v. Ariz. Dep’t of Econ. Sec., 194 Ariz. 376, 377-78, ¶¶ 5-6
(App. 1998) (recognizing maintaining sibling relationships as a factor
supporting a best-interests finding). Moreover, the court found that
termination of Father’s rights would provide the children with the
permanency and stability they need to process the trauma they have
experienced and would further the case plan of adoption. See Oscar O., 209
Ariz. at 334, ¶ 6. Accordingly, reasonable evidence in the record supports
the court’s finding that terminating Father’s parental rights was in the
children’s best interests.

CONCLUSION

¶33 For the foregoing reasons, we affirm the juvenile court’s order
terminating Father’s parental rights to the children.

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

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