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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
JOSE S., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, R.S., C.S., D.S., Appellees.
No. 1 CA-JV 16-0296
FILED 1-31-2017
Appeal from the Superior Court in Maricopa County
No. JD27835
The Honorable Christopher T. Whitten, Judge
AFFIRMED
COUNSEL
John L. Popilek PC, Scottsdale
By John L. Popilek
Counsel for Appellant
Arizona Attorney General’s Office, Tucson
By Cathleen E. Fuller
Counsel for Appellee Department of Child Safety
JOSE S. v. DCS, et al.
Decision of the Court
MEMORANDUM DECISION
Judge Paul J. McMurdie delivered the decision of the Court, in which
Presiding Judge Kenton D. Jones and Judge Patricia K. Norris joined.
M c M U R D I E, Judge:
¶1 Jose S. (“Father”) appeals the superior court’s termination of
his parental rights to his three children. For the following reasons, we
affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 Father and Hannah S. (“Mother”) are the biological parents of
R.S., born in November 2009, C.S., born in November 2009, and D.S., born
in May 2013, (the “Children”).1 On February 11, 2014, the Arizona
Department of Child Safety (“DCS”) took temporary physical custody of
the Children after Father called the police about someone standing on his
balcony and pointing a gun at him and his family. Father’s call was based
on a hallucination caused by his misuse of psychiatric medications. Soon
thereafter, DCS visited Father’s apartment and found the Children in a state
of poor hygiene, living in unsanitary conditions. DCS initiated dependency
proceedings as to both Father and Mother, alleging the Children dependent
due to abuse and neglect.2 The Children were adjudicated dependent in
July 2014. In October 2015, DCS filed a motion to terminate the parent-child
relationship between the Children and both parents. As to Father, DCS
alleged two grounds for severance: (1) mental illness and mental deficiency,
and (2) the Children’s length of time in an out-of-home placement.
¶3 At trial, Father testified he had been receiving psychiatric
medication monitoring services since 2006, when the superior court
ordered Father to participate in psychiatric treatment due to his mental
1 Mother and Father are the biological parents of three other children.
Their parental rights to these children were terminated prior to this case.
2 Although Mother is not a party to this appeal, it should be noted that
Mother was diagnosed with schizoaffective disorder with bipolar
tendencies and has been hospitalized due to her mental health condition
several times since approximately 2001.
2
JOSE S. v. DCS, et al.
Decision of the Court
health instability, caused by non-compliance with prescribed treatment. In
2009, Father’s diagnoses included substance induced psychotic
hallucinations. Since 2010, Father’s diagnoses included a schizoaffective
disorder unspecified, bipolar disorder (severe, with psychotic features),
and borderline intellectual functioning. Unspecified substance use disorder
was ruled out in January 2015. Father uses medications prescribed for
anxiety, audio hallucinations, depression, and insomnia.
¶4 After the trial, the superior court terminated Father’s parental
rights on both grounds. The court also found the severance was in the
Children’s best interests.3 Father timely appealed. We have jurisdiction
pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona
Revised Statutes (“A.R.S.”) sections 8-235(A), 12-120.21(A)(1) and -2101(A)
(2016).4
DISCUSSION
¶5 A parent-child relationship may be terminated when a court
finds at least one of the statutory grounds for severance and determines that
severance is in the child’s best interests. A.R.S. § 8-533(B); Mary Lou C. v.
ADES, 207 Ariz. 43, 47, ¶ 8 (App. 2004). We review a court’s severance
determination for an abuse of discretion, adopting its findings of fact unless
clearly erroneous. Id. A court’s disposition will be upheld unless there is no
reasonable evidence to sustain it. Id. We do not reweigh the evidence on
appeal. Jesus M. v. ADES, 203 Ariz. 278, 282, ¶ 12 (App. 2002).
¶6 Father argues DCS failed to prove any ground for severance
by clear and convincing evidence because Dr. Mastikian’s psychological
evaluation overly relied upon the belief Father used illegal substances.
Father contends no clear and convincing evidence existed without Dr.
Mastikian’s expert report.
¶7 Under A.R.S. § 8-533(B)(8)(c), a parent’s rights may be
terminated when a child has been placed out of home:
3 Father does not challenge the superior court’s best interests finding
on appeal. Father has therefore waived any claim regarding that finding.
See State v. Carver, 160 Ariz. 167, 175 (1989) (“Failure to argue a claim usually
constitutes abandonment and waiver of that claim.”).
4 Absent material revision after the relevant date, we cite a statute’s
current version.
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JOSE S. v. DCS, et al.
Decision of the Court
for a cumulative total period of fifteen months
or longer[,] . . . the parent has been unable to
remedy the circumstances that cause the child
to be in an out-of-home placement and there is
a substantial likelihood that the parent will not
be capable of exercising proper and effective
parental care and control in the near future.
A. Time in an Out-of-Home Placement.
¶8 At trial, R.W., a supervisor and a case worker for the Children
at DCS, testified the Children had been in DCS’s care for twenty-nine
months. Father did not present any controverting evidence at the severance
hearing or on appeal.
B. Inability to Remedy Circumstances Resulting in Placement.
¶9 The court considers the circumstances at the time of the
severance trial in determining whether the conditions resulting in a child’s
removal have been cured. Marina P. v. ADES, 214 Ariz. 326, 330, ¶ 22 (App.
2007). The court must find the parent is “unable to remedy the
circumstances that cause[d] the child to be in an out-of-home
placement . . . .” A.R.S. § 8-533(B)(8)(c). As part of its analysis, the court
must take into account the reunification services provided by DCS. See
Jordan C. v. ADES, 223 Ariz. 86, 93, ¶ 17 (App. 2009).
¶10 As grounds for dependency, DCS alleged Father failed to
address his mental health issues and provide his Children with sufficient
food, personal hygiene, and a clean and safe environment. Subsequently,
DCS provided Father with services designed to assist him with mental
health issues, such as a psychological evaluation, psychiatric treatment and
monitoring, therapeutic visitations, and transportation to these and other
services.
¶11 After the psychological evaluation, Dr. Mastikian concluded
the Children would be at risk in Father’s care. Although Father argues Dr.
Mastikian overly relied on Father’s distant history of illegal substance
abuse, in a section unrelated to substance abuse Dr. Mastikian stated: “[I]t
is evident that [Father] is unable to independently tend to his own mental
health treatment, which would place his children in substantial harm in the
event that he decides to discontinue his medications again.”
¶12 Moreover, Father never fully engaged in counseling, and
testified he believed counseling would not help him reunite with his
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JOSE S. v. DCS, et al.
Decision of the Court
Children. R.W., a case worker for the Children at DCS, was also concerned
about Father’s compliance with his medication regimen. She testified she
could observe when Father had not taken his medications.
¶13 DCS also provided Father with other services: a TASC
assessment, TERROS drug treatment, a parent aide provided by three
independent agencies, a case aide, and supervised visitations.
Unfortunately, Father did not complete any of these services. Father also
tested positive for methamphetamine during the proceedings.
¶14 Additionally, R.W. testified Father failed to control Mother’s
inappropriate behavior during supervised visitations, such as cussing at the
Children, displaying her breasts to the Children, pretending to shoot herself
in the head, and behaving aggressively toward the parent aide. Father
minimized the significance of Mother’s behavior, sat passively, and let the
Children attempt to control Mother. Father failed to protect the Children
from Mother’s psychotic outbursts.
C. Likelihood of Inability to Exercise Proper and Effective Care.
¶15 In addition to finding Father unable to remedy the
circumstances resulting in the out-of-home placement, the court must also
find DCS proved, by clear and convincing evidence, Father would be
unable to properly parent in the near future. See Jordan C., 223 Ariz. at 98, ¶
36.
¶16 The superior court found Dr. Mastikian’s medical opinion
persuasive and without contradiction in its conclusion that Father was not
capable of exercising proper and effective parental care and control in the
near future. We do not reweigh evidence on appeal. Jesus M., 203 Ariz. at
282, ¶ 12.
¶17 Because we accept the court’s findings of fact unless clearly
erroneous, we find the court did not err in severing Father’s rights to the
Children. Maricopa Cty. Juv. Action No. JS-501568, 177 Ariz. 571, 576 (App.
1994). When clear and convincing evidence supports at least one of the
grounds for severance, we need not address the other reasons for severance.
Jesus M., 203 Ariz. at 280, ¶ 3.
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JOSE S. v. DCS, et al.
Decision of the Court
CONCLUSION
¶18 For the foregoing reasons, we affirm the court’s severance of
Father’s rights to R.S., C.S., and D.S.
AMY M. WOOD • Clerk of the Court
FILED: AA
6