In Re Guardianship of P.J.

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

IN RE GUARDIANSHIP OF P.J.

No. 1 CA-JV 23-0076
FILED 8-29-2023

Appeal from the Superior Court in Maricopa County
No. JD531170
The Honorable Robert Ian Brooks, Judge

AFFIRMED

COUNSEL

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

Arizona Attorney General’s Office, Tucson
By Jennifer R. Blum
Counsel for Appellee Department of Child Safety
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Decision of the Court

MEMORANDUM DECISION

Vice Chief Judge Randall M. Howe delivered the decision of the court, in
which Judge Jennifer M. Perkins and Judge Daniel J. Kiley joined.

H O W E, Judge:

¶1 Frank J. (“Father”) appeals the juvenile court’s order granting
permanent guardianship of his child, P.J., to the child’s paternal
grandmother (“Grandmother”). For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 We view the facts in the light most favorable to sustaining the
juvenile court’s order. Demetrius L. v. Joshlynn F., 239 Ariz. 1, 2 ¶ 2 (2016).
Father and Sarafina H. (“Mother”) are the biological parents of P.J. and
were never married.1 The parents had a history of domestic violence.

¶3 In 2015, the Department petitioned to find P.J. dependent as
to both Father and Mother for abuse or neglect. Because Mother engaged in
services, the juvenile court dismissed the dependency. The court granted
Mother sole legal decision-making authority with Father having supervised
visitation. In 2017, the Department again petitioned to find P.J. dependent
as to both parents for neglect. The Department alleged that P.J. had been
residing with Grandmother for an extended period. The court dismissed
the dependency the following year because the parents agreed that
Grandmother would be P.J.’s caretaker.

¶4 In 2021, P.J.’s school notified the Department that he had
“marks and bruises” on his face and arms. During a forensic interview, P.J.
said that Father had hit him with a “charger cord” because he was mad.
Doctors confirmed that P.J.’s injuries were consistent with his statement.
P.J. also revealed that Father had told him not to tell his teachers or police
and to say “his brother did it” although no other child lived in the
household. Father was arrested and charged with child abuse. He admitted
hitting P.J. because the child had placed food under the couch. Father

1 Mother did not contest the guardianship and is not a party to this
appeal.

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agreed to complete a parenting skills program, and after completion, the
court dismissed the case.

¶5 Because the Department still had concerns about Father’s
drug and alcohol abuse and his history of domestic violence and mental
health issues, it again petitioned to find P.J. dependent as to Father because
of abuse. The court found P.J. dependent as to Father and set the case plan
for reunification. During the dependency proceeding, P.J. continued living
with Grandmother.

¶6 The Department offered Father services, including parenting
skills, substance abuse assessment and treatment, behavioral health
assessment and treatment, visitation, and parent aide classes. Father
sporadically participated in drug testing. He tested positive for cocaine
multiple times between November 2021 and May 2022. He also tested
positive for EtG (alcohol) and THC (cannabinoids), with EtG levels
indicating that “he would be impaired and unable to safely parent” P.J.
Also, Father declined substance-abuse treatment, claiming that he did not
have time. Eventually in April 2022, he participated in a substance-abuse
treatment intake but engaged in the treatment inconsistently. Father first
had to complete substance-abuse treatment before he could undergo anger
management and domestic violence treatment. But he failed to complete
substance-abuse treatment and did not show a sufficient period of sobriety.
In addition, Father was unable to participate consistently in visits because
his work schedule interfered with his appointments. Because Father was
not close to remedying his substance abuse, domestic violence, and
parenting issues, the Department moved to change the case plan to
permanent guardianship. The court changed the case plan to permanent
guardianship and ordered the Department to move to appoint a guardian.

¶7 The Department moved to appoint Grandmother as P.J.’s
permanent guardian. The court held an evidentiary hearing on the motion.
The Department’s child safety specialist testified that the Department was
still concerned about Father’s substance abuse. She also testified that
Grandmother and P.J. had a strong bond and that he was doing well in her
care. She added that Grandmother allowed Father visitation and contact
with P.J. Father testified to using cocaine several times but was working on
quitting. He also testified that his cocaine use would not affect his ability to
parent P.J.

¶8 The court granted the motion and found that the Department
made reasonable efforts to reunite the parents and P.J. but that “further
efforts would be unproductive.” The court found that reunification was not

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in P.J.’s best interests because the parents could not properly care for him.
The court found that Father’s “inappropriate discipline and inability to
meet the child’s basic needs was due to his use of substances.” The court
also found that Father struggled with “understanding the significance of
his actions and the safety threat physical abuse poses for [P.J.]” The court
also found that Father did not remedy the circumstances that led to P.J.’s
removal because he continued using substances, including cocaine, even
after the court had changed the case plan to guardianship. The court found
that this demonstrated that he would “continue to use for a prolonged and
indeterminate period.” As a result, it found that reunification efforts would
be futile because Father “minimally participated” in substance abuse
testing and treatment. The court concluded that granting the guardianship
was in P.J.’s best interests because P.J. and Grandmother were bonded and
P.J. would not linger in care while Father “continue[d] intermittent
engagement in services.” Granting the guardianship, the court added,
would provide the parents more time to remedy these concerns while
Grandmother continued to foster the parents’ relationship with P.J. Father
timely appealed.

DISCUSSION

¶9 Father argues that the juvenile court erred in finding that
further efforts to reunite him with P.J. would be unproductive. As the
moving party, the Department has the burden to prove the statutory
grounds to establish a permanent guardianship by clear and convincing
evidence. A.R.S. § 8–872(H). Because the juvenile court was in the “best
position to weigh the evidence, judge the credibility of the parties, observe
the parties, and make appropriate factual findings,” In re Pima Cnty.
Dependency Action No. 93511, 154 Ariz. 543, 546 (App. 1987), we will affirm
the juvenile court’s order granting permanent guardianship unless the
factual findings are clearly erroneous, see Jennifer B. v. Ariz. Dep’t of Econ.
Sec., 189 Ariz. 553, 555 (App. 1997). The findings are clearly erroneous if no
reasonable fact finder could have found that the evidence satisfied the
applicable burden of proof. A.R.S. § 8–872(H); Jennifer B., 189 Ariz. at 555.

¶10 The court may establish a permanent guardianship if in the
child’s best interests and (1) the child was adjudicated dependent; (2) the
child has been in the custody of the prospective permanent guardian for at
least nine months; (3) the Department has made reasonable efforts to
reunite the parent and child and further efforts would be unproductive; and
(4) severance and adoption would not be in the child’s best interests. A.R.S.
§ 8–871(A). In examining whether the court properly determined that
further reunification efforts would be unproductive, we review whether the

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court properly determined that the Department made reasonable efforts to
reunify Father and P.J. A.R.S. § 8–872(H). The Department need not provide
parents “every conceivable service” but should offer them time and
opportunity to participate in services to improve their ability to care for
their child. Mary Ellen C. v. Ariz. Dep’t of Econ. Sec., 193 Ariz. 185, 192 ¶ 37
(App. 1999). The court’s primary consideration must be the child’s
“physical, mental, and emotional needs and safety.” A.R.S. § 8–871(D).

¶11 The juvenile court did not err. The record shows that the
Department made reasonable efforts to reunify Father and P.J. and that
further efforts would be unproductive. The Department provided Father
with substance-abuse treatment, testing, and supervised visitation for over
one year. Yet he did not participate in the services consistently. He
participated only in a few drug tests, which were positive for cocaine and
alcohol. He failed to demonstrate a period of sobriety, even after the case
plan changed to permanent guardianship, although he knew that it was
required to regain custody of P.J. Further, failing to participate in and
complete substance-abuse treatment prevented him from treatment for
domestic violence and anger management. Thus, because Father did not
demonstrate consistent sobriety or participation in services, further
reunification efforts would have been unproductive. See Mary Ellen C., 193
Ariz. at 187 ¶ 1, 192 ¶ 34 (holding that the Department is not required to
undertake futile measures but ones with a “reasonable prospect of
success”).

¶12 Father does not contest the court’s best interests finding, and
thus concedes it. See Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 249
¶ 13 (2000). Nevertheless, reasonable evidence supports the court’s finding
that the permanent guardianship is in P.J.’s best interests. P.J. has lived with
Grandmother for many years. He has bonded with Grandmother and is
doing well in her care. The record supports that a guardianship would
provide for P.J.’s physical, mental, and emotional needs and safety.

¶13 Father argues that his use of alcohol and cocaine does not
present a danger to P.J. The record, however, shows that historically,
Father’s substance abuse had led him to physically abuse P.J. His levels of
intoxication when he tested positive for alcohol indicated that he was
impaired and would be unable to safely care for P.J. His inability to
understand that substance abuse posed a danger to P.J. is apparent from the
record.

¶14 Father argues that the court was inconsistent in finding that
he would benefit from additional time to make behavioral changes while

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further reunification efforts would be futile. The findings are not
inconsistent, however. The court found that Father’s continued substance
abuse during the dependency showed that he would be using “for a
prolonged and indeterminate period.” It also found that the permanent
guardianship would provide P.J. with permanency “while Father
continue[d] his intermittent engagement with services.” Prolonging the
dependency proceedings pending further reunification efforts would be
futile because Father did not timely remedy his substance abuse to safely
parent P.J. Granting the guardianship would allow P.J. permanency and
provide Father more time to remedy the Department’s concerns. Further,
Father’s parental rights have not been terminated. See A.R.S. § 8–872(I). A
guardianship can be revoked upon a change of circumstances. See A.R.S.
§ 8–873(A).

¶15 Father argues last that the juvenile court did not make
“sufficiently specific findings,” which violated his due process rights.
Further, he contends that the court “deviated from its own stated intent” in
signing the Department’s form of judgment granting the guardianship
instead of making its own findings of fact in a separate minute entry as it
had ordered. A party may move the court to alter or amend a final order
for sufficient findings of fact but must do so within 12 days after entry of
the final order. Ariz. R.P. Juv. Ct. 317(a). Father did not do so and has thus
waived this argument on appeal. See Francine C. v. Dep’t of Child Safety, 249
Ariz. 289, 296 ¶ 17 (App. 2020) (“When a court fails to comply with a rule
that mandates findings, a party who does not raise the issue in an
authorized post-judgment motion may waive it on appeal.”).

¶16 Even so, the court made sufficient factual findings in its final
order. The court found that P.J. lived with Grandmother for at least nine
months as a dependent child. The court found that Father had physically
abused P.J. and admitted to abusing cocaine and alcohol. The court found
that the Department offered Father services, in which he “minimally
participated.” Further, the court found that Father continued to abuse
substances, including cocaine, even after the court changed the case plan to
guardianship. It even found the guardianship was in P.J.’s best interests
because P.J. and Grandmother were bonded, and P.J. would not linger in
care while Father “continue[d] intermittent engagement in services.” These
findings were therefore sufficient. See Ruben M. v. Ariz. Dep’t of Econ. Sec.,
230 Ariz. 236, 240 ¶ 24 (App. 2012) (noting that the “primary purpose for
requiring a court to making express findings of fact and conclusions of law
is to allow the appellate court to determine exactly which issues were
decided and whether the lower court correctly applied the law”).

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¶17 Further, nothing prevented the juvenile court from adopting
the Department’s proposed findings and conclusions. See A.R.S. §§ 8–871,
–872; Ariz. R.P. Juv. Ct. 346. A court “may adopt proposed findings that the
parties submit” as long as “those findings are consistent with the ones that
it reaches independently after properly considering the facts.” Elliott v.
Elliott, 165 Ariz. 128, 134 (App. 1990). The record demonstrates that the
court independently made its own factual findings. At the end of the
evidentiary hearing, the court explained that it would “make sure to read
every page of every exhibit” before making a decision. The court issued the
order about one month later. Even if the court did not set forth its own
separate minute entry, the court clearly considered the exhibits before it in
rendering its decision. We may infer that the court made “whatever
additional findings are necessary to sustain its judgment” if those findings
“are reasonably supported by the evidence and do not conflict with any of
the court’s express findings.” Francine C., 249 Ariz. at 297 ¶ 19. Because
reasonable evidence supports the juvenile court’s order, the court did not
err.

CONCLUSION

¶18 For the foregoing reasons, we affirm.

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

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