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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ANDREW P., Appellant,

v.

DEPARTMENT OF CHILD SAFETY, M.P., A.P., Appellees. 1

No. 1 CA-JV 21-0265
FILED 3-24-2022

Appeal from the Superior Court in Maricopa County
No. JD 530180
The Honorable Kristin Culbertson, Judge

AFFIRMED

COUNSEL

Denise L. Carroll, Scottsdale
Counsel for Appellant

Arizona Attorney General’s Office, Mesa
By Amanda Adams
Counsel for Defendant, Appellee, Department of Child Safety

1 The caption is amended as reflected above. This caption shall be
used on all further documents filed in this appeal.
 ANDREW P. v. DCS, et al.
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Jennifer B. Campbell delivered the decision of the Court,
in which Judge Randall M. Howe and Judge James B. Morse Jr. joined.

C A M P B E L L, Judge:

¶1 Andrew P. appeals from the termination of his parental rights
to his two children on the grounds of abandonment and out-of-home
placement. See A.R.S. § 8-533(B)(1), (B)(8). He disputes the juvenile court’s
finding that the Department of Child Safety (DCS) made appropriate
reunification efforts before severance. See § 8-533(B)(8) (requiring agency
responsible for child to make “a diligent effort to provide appropriate
reunification services” before severance). Because the record supports that
finding, we affirm.

BACKGROUND

¶2 Andrew P. (Father) and Jade P. (Mother) are the biological
parents of Sophia and Liam.2 In late 2019, DCS received a report alleging
that Father had physically abused nine-month-old Sophia. DCS
investigated but was unable to locate Father. Mother, who was then four-
months’ pregnant with Liam, told DCS that she was using heroin, that
Father was using cocaine, and that Father was no longer involved in
Sophia’s life.

¶3 In January 2020, DCS took Sophia into care along with
another child of Mother’s, Lauren, who disclosed domestic violence
between Father and Mother. 3 DCS served Father in-person with a petition
for dependency that month, but Father did not respond to DCS’s efforts to
contact him or personally appear at hearings until May 2020.4

2 We use pseudonyms to protect the identities of the minors.

3 Lauren is not a party to this appeal.
4 In its initial service, DCS mistakenly provided notice of a hearing
that had already occurred. DCS attempted to re-serve Father three times in
late January but was unsuccessful. DCS eventually re-served Father with

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Decision of the Court

¶4 In June 2020, Liam was born. Father visited him in the
hospital, but did not sign Liam’s birth certificate because of his concerns
about his paternity. After learning that Mother was still using heroin and
that Liam had been exposed to several illegal substances, DCS took Liam
into care as well.

¶5 Early in August 2020, the juvenile court adjudicated both
Sophia and Liam dependent regarding Father, approved DCS’s case plan
of family reunification, and ordered Father to complete a hair-follicle drug
test. DCS referred Father for the follicle test and random urine testing, a
substance-abuse assessment, paternity testing (for Liam), supervised
visitation with Sophia, and transportation services. DCS also consulted
with a psychologist, who recommended Father complete a psychological
evaluation once he had demonstrated 30 days of sobriety.

¶6 During August, Father submitted two urine samples, both of
which tested positive for marijuana. He missed eight additional urine tests
that month and twice refused the court-ordered follicle test. Father
completed the substance-abuse assessment that month, admitting that he
used marijuana without a medical marijuana card to alleviate back pain.
But the provider did not diagnose Father with a substance-abuse disorder
or recommend treatment. Father initially refused to take a paternity test but
submitted to a test at the end of the month which established his paternity
of Liam.

¶7 That summer, Father missed more than half of his supervised
visits with Sophia. He missed some of the visits because, as DCS’s case
manager testified, the taxi company DCS hired “stopped transporting [him]
because he would consistently no-show for the cab.” Because of the missed
visits, DCS cancelled Father’s visitation services in September, and he did
not contact DCS to resume visits until December. Father resumed regular
visitation with both children in January 2021, but he insisted on feeding his
children “whatever he want[ed],” giving his infant son pizza and french
fries rather than the formula DCS recommended, even after the food gave
Liam digestive problems. Father continued to miss all his scheduled urine
tests throughout the summer, fall, and the first few months of 2021.

¶8 In March 2021, DCS petitioned to terminate Father’s rights to
Sophia and Liam. Father then began submitting urine tests, providing ten
negative samples from March 31st to June 4th. During that period, however,

proper notice in March 2020 by mail, by publication, and by posting copies
outside his residence.

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he also missed nine scheduled urine tests and refused three follicle tests. In
light of the negative tests results when Father did test, DCS referred Father
for a psychological evaluation, scheduling him for an appointment at the
end of June.

¶9 The juvenile court held the severance hearing in June of 2021,
before the evaluation could be completed. After taking the matter under
advisement, the court terminated Father’s parental rights as to Sophia on
the grounds of abandonment and the grounds of six-, nine-, and fifteen
months’ out-of-home placement; and as to Liam on the grounds of six
months’ out-of-home placement. Father timely appealed from the
termination ruling.5

DISCUSSION

¶10 On appeal, Father challenges only the juvenile court’s finding
that DCS made appropriate reunification efforts before severance. “We
review the court’s termination decision for an abuse of discretion and will
affirm unless no reasonable evidence supports the court's findings.” Jessie
D. v. Dep’t of Child Safety, 251 Ariz. 574, 579, ¶ 10 (2021). We review legal
issues de novo including the interpretation and application of A.R.S.
§ 8-533. Id. at 580, ¶ 10.

¶11 To obtain termination of parental rights on the grounds of
six-, nine-, or fifteen months’ out-of-home placement, DCS must prove by
clear and convincing evidence that it has “made a ‘diligent effort to provide
appropriate reunification services.’”6 Jordan C. v. Ariz. Dep’t of Econ. Sec., 223
Ariz. 86, 93, ¶¶ 17, 19 (App. 2009) (quoting A.R.S. § 8-533(B)(8)) (explaining
statutory and constitutional obligation of agency caring for children to
make “reasonable efforts” to reunify family). DCS need not “provide every

5 The juvenile court also terminated Mother’s parental rights to
Lauren, Sophia, and Liam. Mother appealed from the termination, but we
dismissed her appeal after her counsel averred that there were “no non-
frivolous issues to raise” and Mother declined to file a pro se opening brief.
6 Because DCS met its obligation to provide services under the out-of-
home placement grounds of § 8-533(B)(8), we need not address Father’s
argument on the termination of his rights to Sophia on the abandonment
ground of § 8-533(B)(1). See Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278,
280, ¶ 3 (App. 2002) (“If clear and convincing evidence supports any one of
the statutory grounds on which the juvenile court ordered severance, we
need not address claims pertaining to the other grounds.”).

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conceivable service” or “undertake rehabilitative measures that are futile.”
Id. at 94, ¶ 20 (internal quotation marks omitted). Instead, it must only
“provide a parent with the time and opportunity to participate in programs
designed to improve the parent’s ability to care for the child” and
“undertake measures with a reasonable prospect of success.” Id. (internal
quotation marks omitted).

¶12 Here, the juvenile court found that DCS made reasonable and
diligent efforts “by providing an array of reunification services” and that
“had those services been successfully completed, reunification likely would
have occurred.” The record reasonably supports the court’s findings. DCS
provided Father with a host of services designed to demonstrate and
strengthen his ability to parent his two children during the year-and-a-half
his case was pending. But throughout the case, Father failed to maintain
regular contact with DCS, failed to establish prolonged sobriety, and failed
to show an ability or willingness to appropriately care for his children even
after establishing regular visitation. See In re Pima Cnty. Juv. Severance Action
No. S-114487, 179 Ariz. 86, 97 (1994) (“When . . . circumstances prevent the
unwed father from exercising traditional methods of bonding with his
child, he must act persistently to establish the relationship however
possible . . . .”). Given Father’s lack of engagement, it would have been futile
for DCS to prolong the case to provide Father further services.

¶13 Father argues that “transportation issues” and delays in
renewing supervised visitation services hampered his ability to visit his
children and that DCS’s “late approval” for the psychological evaluation
prevented it from identifying appropriate services. The transportation
issues arose, however, only because Father repeatedly “no-showed” for
scheduled pickups. And the gap in supervised visitation occurred because
Father failed to promptly contact DCS to resume visitation after he missed
most of his scheduled visits and DCS cancelled visitation. Likewise, the
delay in referral for the psychological evaluation was caused by Father’s
consistent failure to submit to regular urine testing and his repeated refusal
to take the court-ordered follicle drug test. In sum, the delays in services
were caused by Father’s lack of diligence, not by DCS—a factor supporting
termination. See § 8-533(B)(8)(b) (parent’s failure to remedy circumstances
causing six-months out-of-home placement may be shown by “refusal to
participate in reunification services”).

¶14 Father also contends that DCS’s policy of delaying a referral
for a psychological evaluation until a parent demonstrates 30 days of
sobriety violates its obligation to provide diligent services. But a
psychological evaluation of a parent who has not demonstrated sobriety is

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exactly the type of futile measure DCS need not undertake. See Deborah D.
v. Dep’t of Child Safety, 1 CA-JV 2017-0046, 2017 WL 4129187, at *2, ¶ 11 (Ariz.
App. Sept. 19, 2017) (mem. decision) (approving of argument that "without
demonstrated sobriety, [psychological] evaluations are considered
invalid"). Given the logistical challenges of ensuring a parent is sober at the
time of the evaluation, a prolonged sobriety requirement is a reasonable
way, as DCS’s case manager testified, to ensure the accuracy of the
assessment. This is particularly true here because DCS had reason to believe
Father was regularly using marijuana and possibly cocaine. DCS informed
Father of the sobriety requirement early in the case, but he chose to engage
in activities that would run afoul of this prerequisite and consistently failed
to submit to required drug testing. We need not decide the reasonableness
of the 30-day duration here because, during the period Father was
providing negative samples, he never went more than two weeks without
missing a test.

¶15 To the extent Father challenges the juvenile court’s denial of
his motion to continue the severance hearing until the psychological
evaluation could be completed, we find no abuse of discretion. See Yavapai
Cnty. Juv. Action No. J-9365, 157 Ariz. 497, 499 (App. 1988) (explaining
motion to continue reviewed for “clear abuse of discretion”). The court
found that Father had “ample time to demonstrate sobriety” so the
evaluation could be completed before trial, that “[i]t was his choice to delay
the process,” and that further delay was not in the children’s best interests.
The record supports these findings and the court’s reasoning.

CONCLUSION

¶16 For the reasons above, we affirm the ruling, filed August 30,
2021, terminating Father’s parental rights to his children, Liam and Sophia.

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

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