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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
ROBERT D., Appellant,
v.
DEPARTMENT OF CHILD SAFETY,1 S.G., D.G., R.D., Appellees.
No. 1 CA-JV 14-0143
FILED 2-26-2015
Appeal from the Superior Court in Maricopa County
No. JD 509108
The Honorable James P. Beene, Judge
AFFIRMED
COUNSEL
Robert D. Rosanelli, Attorney at Law, Phoenix
By Robert D. Rosanelli
Counsel for Appellant
Arizona Attorney General’s Office, Mesa
By Eric K. Knobloch
Counsel for Appellee, Department of Child Safety
1 Pursuant to S.B. 1001, Section 157, 51st Leg., 2nd Spec. Sess. (Ariz.
2014) (enacted), the Arizona Department of Child Safety is substituted for
the Arizona Department of Economic Security in this matter. See ARCAP
27.
ROBERT D. v. DCS, et al.
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Margaret H. Downie delivered the decision of the Court,
in which Judge Patricia K. Norris and Judge Randall M. Howe joined.
D O W N I E, Judge:
¶1 Robert D. (“Father”) appeals from the juvenile court’s order
terminating his parental rights. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY2
¶2 Father and Michelle G. (“Mother”) are the parents of S.G.,
D.G., and R.D.3 In February 2011, the children were removed from their
parents’ care and placed with their paternal grandparents after Mother
tested positive for methamphetamine and marijuana upon giving birth to
J.G.4 DCS filed a dependency petition as to S.G., D.G., R.D., and J.G. The
petition alleged the children were dependent as to Father due to neglect.
The children were found dependent as to Father in April 2011.
¶3 The initial case plan was for family reunification. DCS
planned to offer Father numerous services, including drug testing,
substance abuse treatment, couples’ counseling, parent aide services, and
visitation. However, in May of 2011, Father advised the DCS case
manager of a three-month jail sentence he needed to serve for a DUI
conviction. Father stated he would be turning himself in to serve his
sentence “the next week.” The case manager explained that if she were to
make referrals for the planned services, they would close unsuccessfully
because Father would be in custody. She and Father agreed to “hold off
on services until after he served his time.” However, the case manager
went ahead and referred Father for drug testing.
2 On appeal, “[w]e view the facts in the light most favorable to
upholding the juvenile court’s order.” Ariz. Dep’t of Econ. Sec. v. Matthew
L., 223 Ariz. 547, 549, ¶ 7, 225 P.3d 604, 606 (App. 2010).
3 Mother was initially a party to this appeal, but her appeal has since
been dismissed. See Ariz. R.P. Juv. Ct. 106(G)(1).
4 J.G. is not at issue in these proceedings. Father is not J.G.’s
biological father.
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ROBERT D. v. DCS, et al.
Decision of the Court
¶4 By July 2011, Father had yet to turn himself in to serve his
jail term, despite the case manager urging him to do so. In January 2012,
the court changed the case plan to severance and adoption.
¶5 Father never turned himself in to serve his DUI sentence.
Instead, he was arrested on an unrelated warrant in February 2012. Upon
his release from jail, DCS made referrals for drug testing, substance abuse
treatment, and parenting classes. DCS also urged Father to participate in
couples counseling with Mother.
¶6 A contested severance trial took place on six dates over
seven months. The parties submitted written closing arguments, and the
juvenile court issued its severance order in May 2014. The court
terminated Father’s parental rights on the grounds of abandonment, see
Arizona Revised Statutes (“A.R.S.”) section 8-533(B)(1), and nine months
in out-of-home care, see A.R.S. § 8-533(B)(8)(a). The court also found
termination to be in the children’s best interests.
¶7 Father timely appealed. We have jurisdiction pursuant to
A.R.S. §§ 8-235(A), 12-120.21(A)(1), and -2101(A)(1).
DISCUSSION
¶8 To terminate parental rights, the juvenile court must find at
least one of the statutory factors enumerated in A.R.S. § 8-533(B) by clear
and convincing evidence. Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz.
246, 249, ¶ 12, 995 P.2d 682, 685 (2000). The court must also find by a
preponderance of the evidence that severance is in the child’s best
interests. Kent K. v. Bobby M., 210 Ariz. 279, 288, 110 P.3d 1013, 1022
(2005).5
¶9 Substantial evidence supports the termination order under
A.R.S. § 8-533(B)(8)(a) (out-of-home placement for nine months or longer).
Based on that determination, we need not address the additional ground
for severance found by the juvenile court. See Jesus M. v. Ariz. Dep’t of
Econ. Sec., 203 Ariz. 278, 280, ¶ 3, 53 P.3d 203, 205 (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.”).
5 Father has not challenged the best interests finding, so we do not
address it.
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ROBERT D. v. DCS, et al.
Decision of the Court
¶10 To justify severance under A.R.S. § 8-533(B)(8)(a), the court
must find by clear and convincing evidence that the children have “been
in an out-of-home placement for a cumulative total period of nine months
or longer pursuant to court order . . . and the parent has substantially
neglected or willfully refused to remedy the circumstances that cause [the
children] to be in an out-of-home placement.” The court must also find
that DCS “has made a diligent effort to provide appropriate reunification
services.” However, DCS is not required to “undertake rehabilitative
measures that are futile.” Mary Ellen C. v. Ariz. Dep’t of Econ. Sec., 193
Ariz. 185, 192, ¶¶ 33-34, 971 P.2d 1046, 1053 (App. 1999).
¶11 It is undisputed that the children were in an out-of-home
placement for more than nine months. Father, though, contends DCS
denied him access to services until April 2012. He states he “repeatedly”
told DCS that he intended to surrender to begin his jail sentence, but that
“[a]s he made these statements often, and over twelve months, the
Department should have known that [he] had no true intention to do so.”
Father argues:
[Father] had issues with drug abuse and domestic violence.
The Department was aware of his issues and claims that it
intended to assist [Father] with those issues by offering him
substance abuse assessment and treatment, counseling and
parenting education. The Department did not provide those
services to [Father] until April 2012, one year following the
children’s removal.
¶12 The juvenile court characterized Father’s delay in serving his
jail sentence as a “pattern of deception” and found his “unwillingness to
serve his jail sentence directly and adversely affected [DCS’s] ability to
provide him with the necessary services.” The court also found that, had
DCS provided Father with services sooner, “the services would have been
closed out once he began to serve his jail sentence.” Substantial evidence
supports these findings.
¶13 The case manager testified that Father knew he was required
to serve his jail sentence before participating in substance abuse treatment,
parent aide services, counseling, and visitation. The case manager spoke
to Father on at least three occasions about the need to complete his jail
sentence, and, each time, he stated he was going to turn himself in. Father
admitted knowing he must complete his sentence before DCS would refer
him for services and acknowledged making no effort to do so.
Furthermore, Father admitted using alcohol and methamphetamine
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ROBERT D. v. DCS, et al.
Decision of the Court
regularly from the time the children were removed until his arrest in
February 2012. And he concedes that, “[f]rom the initiation of urinalysis
testing until February 2012, [he] sporadically participated in urinalysis
testing.” The juvenile court found that Father failed to drug test on 45
occasions between February 2011 and March 2012.
¶14 Under these circumstances, the juvenile court reasonably
concluded that DCS made diligent efforts to provide Father with
reunification services and that Father neglected to remedy the
circumstances that caused the children to be in out-of-home placements.
Although Father began complying with case plan requirements in 2012,
the juvenile court could reasonably conclude that his “attempt to engage
in the necessary services in the months preceding the termination hearing
is insufficient to exempt him from termination of his rights to his children
pursuant to A.R.S. § 8-533(B)(8)(a).” See Maricopa Cnty. Juv. Action No.
JS-501568, 177 Ariz. 571, 577, 869 P.2d 1224, 1230 (App. 1994) (“Leaving
the window of opportunity for remediation open indefinitely is not
necessary, nor do we think that it is in the child’s or the parent’s best
interests.”); see also Maricopa Cnty. Juv. Action No. JS-501904, 180 Ariz. 348,
353, 884 P.2d 234, 239 (App. 1994) (DCS is not required to ensure a parent
participates in services.).
CONCLUSION
¶15 For the foregoing reasons, we affirm the order terminating
Father’s parental rights to S.G., D.G., and R.D.
:ama
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