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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ENRICO G., Appellant,

v.

DEPARTMENT OF CHILD SAFETY, E.G., A.G., K.G., Appellees.

Nos. 1 CA-JV 15-0098, 1 CA-JV 15-0099 (Consolidated)
FILED 9-24-2015

Appeal from the Superior Court in Maricopa County
Nos. JD27407 and JD27378
The Honorable Bradley Astrowsky, Judge

AFFIRMED

COUNSEL

John L. Popilek, P.C., Scottsdale
By John L. Popilek
Counsel for Appellant

Arizona Attorney General’s Office, Phoenix
By JoAnn Falgout
Counsel for Appellee Department of Child Safety
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MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Jon W. Thompson joined.

W I N T H R O P, Judge:

¶1 In this consolidated appeal, Enrico G. (“Father”) appeals the
juvenile court’s orders terminating his parental rights to his biological
children - E.G., A.G., and K.G. (collectively, “the children”) - on the grounds
of chronic abuse of dangerous drugs and nine or more months’ care in an
out-of-home placement. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY1

¶2 The children were born between June 2010 and October 2013.
In November 2013, Father, who is visually impaired and suffers from post-
traumatic stress disorder (“PTSD”) after being shot in the head, was
involved in a violent domestic relationship with Martika M., the mother of
E.G. and A.G. Father also had a daughter, K.G., from a previous
relationship who lived with him,2 and Martika M. had at least three other
biological children from previous relationships.

¶3 Both Father and Martika M. have a history of substance abuse,
and Father admittedly uses methamphetamine and marijuana. Father
would often leave K.G. in the care of Martika M., despite knowing Martika
M. did not like K.G. and would neglect and/or abuse her.

1 We view the facts and the reasonable inferences therefrom in the
light most favorable to sustaining the juvenile court’s determinations.
Jordan C. v. Ariz. Dep’t of Econ. Sec., 223 Ariz. 86, 93, ¶ 18, 219 P.3d 296, 303
(App. 2009).

2 K.G.’s mother had not been in her life since birth.

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¶4 On November 13, 2013, the Department of Child Safety
(“DCS”)3 initiated a dependency petition (case number JD27378) as to K.G.,
alleging K.G. was dependent as to Father due to abuse or neglect.4 The
petition alleged Father had neglected K.G. due to his substance abuse while
caring for her, exposing K.G. to domestic violence, and Father’s mental
health issues. The petition further alleged Father had reported “he uses
methamphetamine to address complications from post[-]traumatic stress
disorder,” and that Father failed to protect K.G. from Martika M.’s physical
abuse. Shortly thereafter, ADES initiated a second dependency petition
(case number JD27407) as to E.G. and A.G., alleging Father neglected them
due to substance abuse and failing to provide the basic necessities of life,
and abused them by failing to protect them from the domestic violence
between him and Martika M.5 In addition to the assistance of counsel,
Father was appointed a guardian ad litem to represent his interests.

¶5 In January 2014, E.G., A.G., and K.G. were adjudicated
dependent as to Father. The court ordered case plans of reunification
concurrent with severance and adoption. In support of the case plans, the
court ordered that Father receive substance testing by TASC, substance
abuse treatment services provided by TERROS, parent aide services upon
demonstration of sobriety, transportation, domestic violence counseling,

3 At the outset of these proceedings, the children were taken into care
by Child Protective Services (“CPS”), formerly a division of the Arizona
Department of Economic Security (“ADES”), and ADES filed both
dependency petitions in this case. In May 2014, CPS was removed as an
entity within ADES and replaced by DCS, an entity outside of ADES. See
2014 Ariz. Sess. Laws, ch. 1, §§ 6, 20, 54 (2d Spec. Sess.). Accordingly, DCS
has been substituted for ADES in this matter. See ARCAP 27. References
to DCS encompass both ADES and the former CPS.

4 The dependency petition also alleged K.G. was dependent as to her
biological mother, whose parental rights were ultimately terminated.
K.G.’s biological mother is not a party to this appeal.

5 The dependency petition also alleged E.G. and A.G. were dependent
as to Martika M., and alleged Martika M.’s three other minor children
residing with her were dependent as to her and their fathers. The parental
rights of Martika M. as to all five children and the parental rights of the
other children’s fathers were ultimately terminated. Neither Martika M.
nor the other fathers are parties to this appeal.

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and visitation.6 Father, however, was generally noncompliant with
services, and his attendance at report and review hearings was sporadic.

¶6 In October 2014, DCS moved to terminate Father’s parental
rights as to all three children on the grounds of an inability to discharge
parental responsibilities due to chronic substance abuse pursuant to
Arizona Revised Statutes (“A.R.S.”) section 8-533(B)(3)7 and the children’s
ongoing need for out-of-home placement for nine months or longer
pursuant to A.R.S. § 8-533(B)(8)(a). DCS alleged that, as to Father’s
substance abuse, Father had been inconsistent in submitting to testing –
causing multiple service referrals to be closed out - and on the occasions he
did provide samples, Father had tested positive for amphetamine,
methamphetamine, and marijuana. Father had also been recommended to
participate in an intensive outpatient program through TERROS, but had
failed to engage with the program, and although he had expressed a desire
to engage in an inpatient program, he had made no steps toward that goal,
despite being provided a list of community resources for him to engage in
an inpatient facility. DCS further alleged Father had been inconsistent in
visiting the children, often cancelling or showing up unprepared, had failed
to obtain stable housing or employment as required for reunification, and
had failed to demonstrate any of the behavioral changes outlined in his case
plan.

¶7 An initial severance by motion hearing was conducted on
December 11, 2014, in both matters as to all three children. Father, however,
did not appear at the hearing. The court found no good cause for Father’s
absence and that he had waived his right to contest the allegations
contained in the termination motions, see Ariz. R.P. Juv. Ct. 65(D)(3), but
did not take testimony or rule on DCS’s severance motions. Instead, the
court gave Father leave to file a motion “to show there’s good cause for his
failure to appear and that there’s a meritorious defense to the motion,”

6 Nothing in the record indicates Father, his attorney, or his guardian
ad litem objected to these services, suggested they were inadequate, or
requested any additional services at that time.

7 We cite the current version of the statutes if no revisions material to
our decision have occurred since the relevant dates.

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consistent with this court’s admonition in Christy A. v. Arizona Department
of Economic Security, 217 Ariz. 299, 173 P.3d 463 (App. 2007).8

¶8 On February 19, 2015, Father filed a “Motion to Set Aside
Default Judgment and Termination of Parental Rights” in both cases,
arguing his good cause for not attending the December 11, 2014 hearing
was that he was “suffering from a psychotic break, and was unable to make
any rational decision.”9 The motion did not include any allegation Father
had a meritorious defense. No additional evidence was provided. DCS
responded, objecting to the motion and noting Father had presented no
evidence supporting his claim of a “psychotic break,” and had failed to
allege, let alone prove, a meritorious defense to the severance motion.

¶9 On February 25, 2015, the court held a hearing on Father’s
motion to set aside the waiver. At the hearing, the court pointed out
Father’s parental rights had not yet been terminated and “the Court just
found that he waived his right to have a contested trial” as a result of his
earlier absence. The court went on to address Father’s motion, indicating it
“didn’t see anything in the motion that indicated that [Father] was in a
facility at that particular time” and offered Father an opportunity to
provide additional evidence, specifically requesting whether there was
something Father would like to present to supplement the record. No
supplements were offered.

¶10 Presented with no additional evidence to support Father’s
motion, the court found Father had presented no good cause for his failure
to appear. The court further found Father’s motion did not comply with
the requirements of Christy A. because it lacked any evidence or allegation
of a meritorious defense; accordingly, the court denied the motion.

8 Meanwhile, Father and Martika M. continued to be involved in a
violent relationship - Martika M. was cited for disorderly conduct (domestic
violence) on January 2, 2015 - and Father continued to not participate in
services.

9 On January 6, 2015 (approximately one month after Father’s failure
to appear), Father had an in-person psychological consultation with
Christina K. Lebovitz, Ph.D. Dr. Lebovitz opined that, at that time, Father
was not coherent and was displaying psychotic symptoms. At a meeting
with his case manager earlier that day, Father had admitted recently using
methamphetamine. However, Father “declined crisis services, inpatient
and outpatient treatment” offered through his case manager.

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¶11 On March 10, 2015, the juvenile court heard evidence as to the
severance of all three children. The children’s caseworker recommended
termination of Father’s rights as to the three children. She testified Father
had been provided access to substance abuse testing and treatment,
community resources for inpatient treatment, and multiple referrals for the
same, but had not exhibited any meaningful engagement in the services
offered. Throughout her contact with Father, he tested positive for
marijuana and methamphetamine, failed to submit to testing on multiple
occasions, and allowed his referrals for treatment to lapse several times as
a result of non-participation. The caseworker opined that she believed
Father’s chronic substance abuse rendered him incapable of discharging his
parental duties and responsibilities and that termination was in the
children’s best interest.

¶12 The court found pursuant to A.R.S. § 8-533(B)(3) that DCS had
proven Father was unable to discharge his parental responsibilities as a
result of a history of chronic abuse of dangerous drugs, and there were
reasonable grounds to believe this condition would continue for a
prolonged and indeterminate time. Additionally, the court found pursuant
to A.R.S. § 8-533(B)(8)(a) that the children had been in an out-of-home
placement under the supervision of the court for nine months or longer,
and Father had substantially neglected to remedy the circumstances
leading to the placement. The court also found DCS had made diligent
efforts in providing Father with appropriate reunification services. Finally,
the court found by a preponderance of the evidence that termination of
Father’s parental rights was in the children’s best interest, and terminated
Father’s parental rights to all three children.

¶13 Father filed timely notices of appeal. We have appellate
jurisdiction over these consolidated appeals pursuant to Article 6, Section
9, of the Arizona Constitution, A.R.S. § 8-235(A), and Rule 103(A) of the
Arizona Rules of Procedure for the Juvenile Court.

ANALYSIS

¶14 On appeal, Father raises several issues, arguing the juvenile
court erred in denying his motion to set aside, in failing to find good cause
for his absence, and in requiring him to demonstrate he had a meritorious
defense. We disagree with Father’s arguments.

¶15 Because a finding of good cause for failure to appear is largely
discretionary, this court reviews such a finding for an abuse of discretion.
Adrian E. v. Ariz. Dep’t of Econ. Sec., 215 Ariz. 96, 101, ¶ 15, 158 P.3d 225, 230

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(App. 2007). In analogizing waiver in this context to defaults in civil cases,
this court has found that a waiver in the severance context is properly set
aside with a showing of “good cause.” Christy A., 217 Ariz. at 304, ¶ 16, 173
P.3d at 468. To prove good cause, a party must show that mistake,
inadvertence, surprise, or excusable neglect exists and that a meritorious
defense to the claim exists. Id.

¶16 Father’s only assertion in support of his good cause argument
was that he was experiencing a “psychotic break,” rendering him unable to
make any rational decisions. Father, however, provided no corroborating
evidence such as medical records, testimony, or other evidentiary support
verifying his condition or location as of the date of the missed hearing.
Moreover, when presented with an opportunity to provide evidence
explaining his absence, Father elected not to supplement the record.

¶17 Father further argues the court erred in requiring him to
demonstrate any meritorious defense because he had not yet received
mental health treatment,10 and therefore his meritorious defense had not
yet ripened. If Father required additional services, those could have been
requested through counsel or his guardian ad litem.11 Moreover, if Father
believed he had no obligation to provide a meritorious defense, that issue
should have been addressed in his motion to the court to preserve the issue
for appeal. See Christy C. v. Ariz. Dep’t of Econ. Sec., 214 Ariz. 445, 452, ¶ 21,
153 P.3d 1074, 1081 (App. 2007) (holding that issues cannot be raised for the
first time on appeal). In any event, this argument fails as completely
inconsistent with the well-established practice outlined in Christy A. and
the juvenile court’s order in this case. The juvenile court did not abuse its
discretion in finding there was not a good cause for Father’s absence.

¶18 Father also argues the court should have held an evidentiary
hearing to resolve any questions about the legitimacy of his claimed
psychotic break. Although Rule 65(C)(6)(c), Ariz. R.P. Juv. Ct., would
appear to refute Father’s underlying premise that the court was required to
hold such a hearing, we need not address the correctness of that premise,
as the record on appeal makes clear the court afforded Father ample
opportunity to introduce evidence and explain his absence before making

10 Father’s mental health issues were not a basis for severance.

11 Along with other requests made and approved by the court, Father’s
counsel did ask that he be permitted to attend NOVA for substance abuse
treatment as opposed to TERROS, suggesting counsel was aware Father
could request alternate or additional services if necessary.

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any determination as to Father’s motion and severance. During the missed
initial severance hearing, the court invited Father, through counsel, to file a
motion consistent with Christy A., refrained from proceeding with evidence
on the severance until hearing the motion, conducted a hearing to discuss
Father’s motion, and affirmatively requested that Father provide evidence
in support of his motion. Father was provided an adequate opportunity to
provide evidence before the court ruled on the termination of parental
rights, but did not do so. A further evidentiary hearing asking for the same
would have been duplicative.

¶19 To the extent Father is asking this court to evaluate DCS’s
diligence with respect to the provision of services,12 our review is limited to
determining whether there was fundamental error. See Monica C. v. Ariz.
Dep’t of Econ. Sec., 211 Ariz. 89, 94, ¶ 22, 118 P.3d 37, 42 (App. 2005) (holding
that failure to object to an issue in the juvenile court preserves review for
fundamental error only). An error is fundamental when it erodes all
likeliness the complaining party received a fair trial. See id. at ¶¶ 23-24.

¶20 Father had both an attorney and a guardian ad litem, and
Father and DCS agreed on the services Father would receive. Father
attended several report and review hearings after that, and at each hearing,
the juvenile court found that DCS had made “reasonable efforts.” Although
Father failed to appear at several hearings, neither his attorney nor his
guardian ad litem objected to the nature or quality of the services provided
or the court’s “reasonable efforts” findings at those hearings. Father has
not provided any explanation as to why mental health services were not
requested or evidence that he would have participated in the additional
services.13 At the severance hearing, Father was represented by counsel and
permitted to cross-examine witnesses and present his argument, but made
no claim that he should have been offered more or different services.

¶21 In any event, substantial evidence supports the juvenile
court’s findings that DCS made “diligent efforts to provide appropriate

12 Father did not argue the services provided were inadequate. As a
general matter, we do not consider issues first raised on appeal. Christy C.,
214 Ariz. at 452, ¶ 21, 153 P.3d at 1081.

13 Dr. Lebovitz noted in her evaluation of Father that Father had
received therapy for his PTSD, but discontinued the therapy after two
sessions and refused to take the Cymbalta that was prescribed for him;
instead, he “used marijuana to decrease his anxiety and also used
meth[amphetamine], opiates and ecstasy.”

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reunification services [to Father].” See Lashonda M. v. Ariz. Dep’t of Econ.
Sec., 210 Ariz. 77, 81-82, ¶ 13, 107 P.3d 923, 927-28 (App. 2005). DCS
presented testimony from Father’s caseworker indicating Father had been
offered a myriad of relevant services - including substance testing and
treatment services, transportation, domestic violence counseling, and
visitation, as well as the opportunity for both outpatient and inpatient
services - but did not exhibit any meaningful engagement. See Maricopa
Cnty. Juv. Action No. JS-501904, 180 Ariz. 348, 353, 884 P.2d 234, 239 (App.
1994) (stating that DCS “is not required to provide every conceivable
service or to ensure that a parent participates in each service it offers”). The
evidence supports the juvenile court’s conclusion that the approved
reunification services were appropriate to address Father’s issues. No error
occurred, much less fundamental error.

CONCLUSION

¶22 For the foregoing reasons, the juvenile court’s orders
terminating Father’s rights to the children are affirmed.

:ama

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