Darryl S. v. Dcs, D.S.

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

DARRYL S.,
Appellant,

v.

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

No. 1 CA-JV 20-0066
FILED 8-11-2020

Appeal from the Superior Court in Maricopa County
No. JS519078
JD531666
The Honorable Kristin R. Culbertson, Judge

AFFIRMED

COUNSEL

Vierling Law Offices, Phoenix
By Thomas A. Vierling
Counsel for Appellant

Arizona Attorney General's Office, Phoenix
By Emily M. Stokes
Counsel for Appellee
 DARRYL S. v. DCS, D.S.
Decision of the Court

MEMORANDUM DECISION

Presiding Judge James B. Morse Jr. delivered the decision of the Court, in
which Judge Maria Elena Cruz and Judge Paul J. McMurdie joined.

M O R S E, Judge:

¶1 Darryl S. ("Father") appeals the juvenile court's order
terminating his parental rights to his child, D.S. For the following reasons,
we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 Father and Shatrefa W. ("Mother") are the natural parents of
D.S., born December 2017 (the "Child"). Father has a history of child abuse
and domestic violence. Father also has a history with the Department of
Child Safety ("DCS"), which includes the loss of parental rights to his other
children with Mother. Additionally, Mother's rights to her oldest child, not
mutual with Father, were severed based on physical and sexual abuse by
Mother and Father.

¶3 Soon after the Child was born, DCS put a safety plan in place
that allowed Mother in-home custody of the Child, but permitted Father
only supervised visits. In April 2018, DCS took the Child into care after it
learned that Mother was violating the safety plan by allowing Father to
have regular, unsupervised contact with the Child. In May, DCS filed a
dependency petition asserting abuse, neglect, and failure to prevent abuse.
When Father failed to appear at the dependency hearing, the court
proceeded in absentia and found the Child dependent as to Father. DCS
eventually placed the Child with a licensed foster-adoptive home.

¶4 During the dependency, DCS offered Father a variety of
rehabilitative services to address his domestic-violence and child-abuse
issues. In November 2018, Father participated in a psychological
evaluation. The psychologist recommended that Father engage in
domestic-violence intervention services and parent-aide services to learn
how to interact compassionately with the Child. DCS referred Father for
domestic-violence counseling in October 2018. However, Father only
attended the intake session, missed the remaining nineteen sessions, and
was discharged from the service. DCS offered supervised visitation and

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Decision of the Court

provided Father with a case aide to monitor visits, but Father missed some
visits and arrived late to others. Visits stopped when Father lost contact
with DCS.

¶5 In October 2018, DCS filed a petition to terminate Father's
parental rights to the Child, alleging the grounds of abuse and neglect. In
February 2019, DCS amended the petition to add the six-month time-in-care
ground.

¶6 The juvenile court held a one-day trial in December 2019. The
case manager testified about Father's history of domestic violence and child
abuse, his failure to complete needed services, and that the Child's
placement was interested in adopting him and meeting his needs. At trial,
Father admitted that he had not completed any domestic-violence or anger-
management program. Father denied that domestic-violence services were
warranted because he claimed there were no official reports of domestic
violence.

¶7 The court found termination warranted on the abuse and
time-in-care grounds. See A.R.S. § 8-533(B)(2) and (B)(8)(b). The court also
found severance was in the Child's best interests and terminated Father's
parental rights. The juvenile court also terminated Mother's parental rights
to the Child, but she is not a party to this appeal.

¶8 Father timely appealed, and we have jurisdiction pursuant to
A.R.S. §§ 8-235(A), 12-120.21(A)(1), and -2101(A)(1).

DISCUSSION

¶9 To terminate a parent-child relationship, the juvenile court
must find that clear and convincing evidence supports one of the statutory
grounds for severance. A.R.S. § 8-533(B); Kent K. v. Bobby M., 210 Ariz. 279,
284, ¶ 22 (2005). Additionally, the court must determine by a
preponderance of the evidence that termination of the relationship is in the
child's best interests. Kent K., 210 Ariz. at 284, 288, ¶¶ 22, 41. We review
the court's termination order for an abuse of discretion but review legal
issues de novo. Mary Lou C. v. Ariz. Dep't of Econ. Sec., 207 Ariz. 43, 47, ¶¶
8-9 (App. 2004). We accept the court's findings of fact unless no reasonable
evidence supports them. Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278,
280, ¶ 4 (App. 2002).

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 DARRYL S. v. DCS, D.S.
Decision of the Court

I. Statutory Grounds for Termination.

¶10 Father challenges the juvenile court's finding that the six-
month time-in-care ground was proven by clear and convincing evidence.
As to the abuse ground, Father asserts that the juvenile court failed to apply
the clear and convincing evidence standard.

A. Time-in-Care.

¶11 To prove the allegations for the six-month time-in-care
ground, DCS had to show that it "made a diligent effort to provide
appropriate reunification services" and that:

The child who is under three years of age has been in an out-
of-home placement for a cumulative total period of six
months or longer pursuant to court order and the parent has
substantially neglected or wilfully refused to remedy the
circumstances that cause the child to be in an out-of-home
placement, including refusal to participate in reunification
services offered by the department.

A.R.S. § 8-533(B)(8)(b). The relevant "circumstances" are those "existing at
the time of the severance that prevent a parent from being able to
appropriately provide for his or her children." Jordan C. v. Ariz. Dep't of
Econ. Sec., 223 Ariz. 86, 96, ¶ 34 n.14 (App. 2009) (quoting Marina P. v. Ariz.
Dep't of Econ. Sec., 214 Ariz. 326, 330, ¶ 22 (App. 2007)).

¶12 The record amply supports, and Father does not dispute, the
services offered by DCS, the length of the Child's out-of-home placement,
and the Child's age. Instead, Father argues that the juvenile court erred in
determining that DCS had shown Father substantially neglected or
willfully refused to remedy the circumstances causing the Child to be in an
out-of-home placement. Specifically, Father points to services he allegedly
participated in and argues that he established his ability to parent.
Substantial evidence supports the juvenile court's findings, and we reject
Father's arguments.

¶13 The juvenile court found "the critical underlying issue is
Father's abuse of children." The court noted the importance of counseling
with a domestic-violence component "to help Father appropriately parent
without resorting to abuse, or failing to protect from the abuse of others."
DCS provided Father numerous services, including a domestic-violence
counselor, but he attended only one intake session. The caseworker
testified that Father failed to engage in the parent-aide skills sessions, and

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Decision of the Court

failed to complete visitation services. The court described Father's efforts
as "woefully inadequate."

¶14 Father claimed he participated in domestic-violence
counseling at Community Bridges and an eight-hour parenting class.
However, the caseworker testified that she had contacted Community
Bridges and was informed that Father was not involved in anything that
involved a domestic-violence component and the court found no credible
evidence that the parenting class included any domestic-violence element.
Further, the juvenile court expressly found that "Father was not a credible
witness." We must defer to this credibility determination. See Gutierrez v.
Gutierrez, 193 Ariz. 343, 347, ¶ 13 (App. 1998) ("We will defer to the trial
court's determination of witnesses' credibility and the weight to give
conflicting evidence."). Because the record supports the juvenile court's
findings, we will uphold them.

B. Abuse.

¶15 Father asserts that the juvenile court applied the incorrect
legal standard to the abuse ground by relying on an opinion of this Court
subsequently vacated by our supreme court. See Sandra R. v. Dep't of Child
Safety, 246 Ariz. 180 (App. 2019), aff'd in part, vacated in part, 248 Ariz. 224
(2020). Because we affirm on the six-month time-in-care ground, we need
not address Father's challenges to the abuse ground. Jesus M., 203 Ariz. at
280, ¶ 3.

II. Best Interests Finding.

¶16 Terminating a parent-child relationship is in a child's best
interests if the child will benefit from the termination or will be harmed if
the relationship continues. Demetrius L. v. Joshlynn F., 239 Ariz. 1, 4, ¶ 16
(2016). Courts "must consider the totality of the circumstances existing at
the time of the severance determination, including the child's adoptability
and the parent's rehabilitation." Alma S. v. Dep't of Child Safety, 245 Ariz.
146, 148, ¶ 1 (2018); see also Demetrius L., 239 Ariz. at 3-4, ¶ 12 (finding
relevant factors include whether: (1) the current placement is meeting the
child's needs, (2) an adoption plan is in place, and (3) the child is adoptable).
"[T]he existence and effect of a bonded relationship between a biological
parent and a child, although a factor to consider, is not dispositive in
addressing best interests." Dominique M. v. Dep't of Child Safety, 240 Ariz.
96, 98, ¶ 12 (App. 2016).

¶17 Moreover, "[i]n a best interests inquiry, . . . we can presume
that the interests of the parent and child diverge because the court has

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Decision of the Court

already found the existence of one of the statutory grounds for termination
by clear and convincing evidence." Kent K., 210 Ariz. at 286, ¶ 35. Once a
juvenile court finds that a parent is unfit, the focus shifts to the child's
interests. Id. at 285, 287, ¶¶ 31, 37. Thus, the court must balance the unfit
parent's "diluted" interest "against the independent and often adverse
interests of the child in a safe and stable home life." Id. at 286, ¶ 35. Of
foremost concern in that regard is "protect[ing] a child's interest in stability
and security." Id. at ¶ 34 (citation omitted).

¶18 The juvenile court found that termination would benefit the
Child because he needs a safe home "and Father is not likely to provide it."
The court also found that the Child is adoptable, the placement was meeting
the Child's needs, and planned to "proceed to adoption, which will provide
the [C]hild with the added benefit of stability and permanency." Father
argues that the court did not consider the totality of the circumstances,
particularly his parenting ability, the bond between him and the Child, and
his participation in services. But the juvenile court explicitly considered the
parental bond, finding that they were "somewhat bonded," and "visits
between Father and the [C]hild generally went well." But the court noted
that the Child "has been in care most of his life and, has had limited contact
with Father." The court also found that "Father is in denial about the
severity of the risks to [Child] given his history of violence and
unwillingness to acknowledge and address these concerns." Thus, the
record supports that the court considered the "totality of the
circumstances." Alma S., 245 Ariz. at 148, ¶ 1.

¶19 Finally, Father asserts that the court erred when it considered
the risk of abuse in the best interest inquiry. See Maricopa Cty. Juvenile Action
No. JS-500274, 167 Ariz. 1, 5-6 (1990) (noting that it cannot be assumed a
child will benefit from termination just because a statutory ground was
proven). But severance may be in a child's best interest if the juvenile court
finds "some harm to the child if severance is denied." Demetrius L., 239 Ariz.
at 4, ¶ 16. The juvenile court noted Father's history of child abuse, Father's
unwillingness to acknowledge these concerns, the risks to the Child given
this history, and concluded "it would be a detriment to [the Child] to deny
severance." We find no error. See Sandra R., 248 Ariz. at 231, ¶ 32 (affirming
best interests finding when reasonable evidence supported that the
"severance of parental rights will benefit the children because they require
a home environment free of a heightened risk of abuse").

¶20 Thus, the juvenile court did not err in finding termination to
be in the Child's best interests.

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 DARRYL S. v. DCS, D.S.
Decision of the Court

CONCLUSION

¶21 For the foregoing reasons, we affirm the juvenile court's order
terminating Father's parental relationship with the Child.

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

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