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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

PATRICK G., Appellant,

v.

DEPARTMENT OF CHILD SAFETY, H.G., SALT RIVER PIMA
MARICOPA INDIAN COMMUNITY, Appellees.

No. 1 CA-JV 17-0520
FILED 5-1-2018

Appeal from the Superior Court in Maricopa County
No. JD30498, JS18878
The Honorable Cari A. Harrison, Judge

AFFIRMED

COUNSEL

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

Arizona Attorney General’s Office, Phoenix
By Sandra L. Nahigian
Counsel for Appellee Department of Child Safety
 PATRICK G. v. DCS, et al.
Decision of the Court

MEMORANDUM DECISION

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

J O N E S, Judge:

¶1 Patrick G. (Father) appeals the juvenile court’s order
terminating his parental rights to H.G. (Child). For the following reasons,
we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 In May 2015, the Department of Child Safety (DCS) filed a
petition alleging Child and her three half-siblings were dependent as to
their mother (Mother) based upon grounds of neglect and substance abuse.1
At the time, Father had approximately seven months left to serve of a 10.5-
year prison term imposed following his plea of guilty to armed robbery and
aggravated assault occurring in 2006 when Child was only five months’ old.
Because both Father and Child are enrolled members of the Salt River Pima-
Maricopa Indian Community (the Community), the Indian Child Welfare
Act (ICWA), 25 U.S.C. §§ 1901 to 1963,2 applies to the severance
proceedings.

¶3 Father, who had previously had no contact with Child, was
encouraged to engage in whatever services were available to him in prison.
In July 2015, the juvenile court authorized visits between Child and her
paternal uncle (Uncle), also a Community member. Uncle facilitated
cultural activities for Child and telephone calls between Child and Father.
Father was released on community supervision in September 2015 and
began participating in urinalysis testing and supervised visitation. After

1 We view the evidence in the light most favorable to upholding the
juvenile court’s order terminating parental rights. Yvonne L. v. Ariz. Dep’t
of Econ. Sec., 227 Ariz. 415, 422, ¶ 27 (App. 2011) (citing Maricopa Cty. Juv.
Action No. JD-5312, 178 Ariz. 372, 376 (App. 1994)).

2 Absent material changes from the relevant date, we cite a statute’s
current version.

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Father demonstrated thirty days’ sobriety, DCS referred Father for parent
aide services. In January 2016, Child was placed with Uncle.

¶4 In late June 2016, Father began to feel overwhelmed, stopped
participating in services, and ceased all contact with Child and DCS.
Mother continued to comply with the case plan, however, and the
dependency was dismissed in November 2016 after Child and her half-
sister were returned to Mother’s care.3 The following month, DCS received
reports of domestic violence and illegal drug use in Mother’s home and,
again, removed the children. Child and her half-sister were placed with
their maternal grandmother (Grandmother). Child continued to visit Uncle
on the Community reservation on weekends.

¶5 At the time, Mother reported Father was “on the run for
violating probation.” Indeed, the record shows Father had begun abusing
alcohol and absconded from community supervision. He was eventually
caught and reincarcerated in December 2016 but did not attempt to contact
Child or DCS, and DCS did not learn of his reincarceration until March
2017.

¶6 Meanwhile, DCS filed a second dependency petition, and the
juvenile court adopted a case plan of severance and adoption, noting that
Father had failed to maintain an appropriate relationship with Child or
demonstrate a sober and crime-free lifestyle. The court also permitted the
Community to intervene. See 25 U.S.C. § 1911(c) (granting an Indian child’s
tribe the right to intervene in “any State court proceeding for the foster care
placement of, or termination of parental rights to, an Indian child”). DCS
promptly filed a petition to terminate the parent-child relationship. When
Father was released in August 2017, he began weekly supervised visits with
Child but did not participate in any other services through DCS or the
criminal court.

¶7 At the contested dependency and severance trial in October
2017, the DCS caseworker testified Grandmother was meeting Child’s
needs and willing to adopt her. She reported visitation with Father was
going fine, but that Child, only a few days shy of her twelfth birthday, did
not want to live with Father because “he doesn’t know her.” Rather, Child
wished to remain with her half-sister and would consent to an adoption by
Grandmother.

3 Child’s other two half-siblings were successfully reunified with their
father in February 2016.

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¶8 The DCS caseworker also testified that termination was in
Child’s best interests. Although Father had begun building a relationship
with Child when she was first removed, that relationship was damaged
when he violated his community supervision and disappeared for seven
months without any explanation. Thus, the caseworker surmised Child
would both be harmed through continuation of the unstable relationship,
and benefitted by termination that would free her to live in a safe, stable,
permanent, and drug- and alcohol-free home with Grandmother.

¶9 The Community case manager testified as an ICWA expert
that DCS had made active efforts to preserve the Indian family, but they
had been unsuccessful because Father had failed to engage in services or
remedy his deficiencies. Therefore, the expert believed Child was at risk of
serious emotional and physical injury if left in Father’s care. The expert
added that the Community supported Child’s placement with
Grandmother, who had been encouraging Child to maintain contact with
Father’s family.

¶10 Father testified he had absconded because “[i]t was too
much,” he was “overwhelmed,” and he “didn’t know how to be a dad.” By
the time of trial, however, Father had recently married, obtained
employment as a landscaper, and signed a lease on an apartment large
enough to afford Child her own room. He believed the parenting and anger
management classes he completed in prison had remedied his negative
behaviors such that he could meet Child’s needs. It had never occurred to
Father to tell DCS about his new wife, and the juvenile court later took
judicial notice of a pending family court action that revealed Child’s new
stepmother had abandoned her own four children, failed to participate in
reunification therapy, and was facing termination of her parenting time.
Father said he was unaware of the family court case and did not know if his
wife or her children would act appropriately around Child.

¶11 After taking the matter under advisement, the juvenile court
found that Child was dependent as to Father and that termination of his
parental rights was warranted upon grounds of abandonment. The court
also found that DCS had made active efforts to provide rehabilitative
services to Father, those efforts had been unsuccessful, and Father’s
continued custody of Child would likely cause Child serious emotional or
physical damage. The court then terminated Father’s parental rights to

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Child.4 Father timely appealed, and we have jurisdiction pursuant to
Arizona Revised Statutes (A.R.S.) §§ 8-235(A), 12-120.21(A)(1), -2101(A)(1),
and Arizona Rule of Procedure for the Juvenile Court 103(A).

DISCUSSION

¶12 Generally, the juvenile court may terminate a person’s
parental rights if it finds that a statutory ground exists and termination is
in the child’s best interests. Valerie M. v. Ariz. Dep’t of Econ. Sec., 219 Ariz.
331, 334, ¶ 9 (2009) (citing A.R.S. §§ 8-533(B), -537(B), and Kent K. v. Bobby
M., 210 Ariz. 279, 284, ¶ 22 (2005)). When the child is an Indian child, ICWA
requires two additional findings. First, the court must find by clear and
convincing evidence that active efforts at “remedial services and
rehabilitative programs designed to prevent the breakup of the Indian
family” were made and were unsuccessful. 25 U.S.C. § 1912(d); Yvonne L.,
227 Ariz. at 421, ¶ 26 (App. 2011) (holding “the necessary ICWA ‘active
efforts’ finding must . . . be made under the clear and convincing evidence
standard”). Second, the court must make “a determination, supported by
evidence beyond a reasonable doubt, including testimony of qualified
expert witnesses, that the continued custody of the child by the parent or
Indian custodian is likely to result in serious emotional or physical damage
to the child.” 25 U.S.C. § 1912(f).

¶13 Father does not contest the sufficiency of the evidence to
sustain the juvenile court’s findings on the grounds for severance or Child’s
best interests, arguing only that insufficient evidence supports the court’s
ICWA findings. We review ICWA findings for an abuse of discretion and
will affirm so long as the record contains substantial evidence to support
them. See Yvonne L., 227 Ariz. at 422, ¶ 27 (citing Audra T. v. Ariz. Dep’t of
Econ. Sec., 194 Ariz. 376, 377, ¶ 2 (App. 1998)).

I. Unsuccessful Active Efforts

¶14 Father argues DCS failed to make active efforts to preserve
the Indian family by failing to provide services or take action to strengthen
his bond with Child while he was incarcerated.5 Specifically, Father

4 The juvenile court also terminated Mother’s parental rights to Child.
Mother did not appeal that determination and is not a party to this action.

5 DCS argues Father waived this argument by not raising the issue
with the juvenile court. Although a parent may waive his objection to the

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contends DCS was required to provide visitation with Child while he was
in prison.

¶15 In Arizona, “[w]hat constitutes ‘active efforts’ will vary,
depending on the circumstances, the asserted grounds for severance and
available resources.”6 S.S. v. Stephanie H., 241 Ariz. 419, 425, ¶ 21 (App.
2017) (citations omitted). “Neither ICWA nor Arizona law mandates that
[DCS] provide every imaginable service or program designed to prevent
the breakup of the Indian family before the court may find that ‘active
efforts’ took place.” Yvonne L., 227 Ariz. at 423, ¶ 34. In an abandonment
proceeding, “active efforts” include initiatives “aimed at promoting contact
by a parent with the child and encouraging that parent to embrace his or
her responsibility to support and supervise the child.” Stephanie H., 241
Ariz. at 425, ¶ 22 (citing In re C.A.V., 787 N.W.2d 96, 103 (Iowa App. 2010)).

¶16 The record reflects that DCS encouraged Father to participate
in whatever services were available to him in prison. DCS placed Child
with Uncle and then Grandmother, both of whom demonstrated a
commitment to maintaining Child’s connection to Father and Father’s
family. While incarcerated, Father participated in telephone calls with
Child; he was then referred for weekly visitation once he was released and
established his sobriety. DCS also referred Father for substance abuse
testing and treatment and parent aide services to assist him in proving he
was capable of providing a safe and stable home for Child. As a result of
these efforts, Father was making progress in his relationship with Child,
with whom he had otherwise had no contact for over a decade. Rather than
take advantage of these services, Father absconded from his community

nature and extent of reunification services required by state statute, see
Shawanee S. v. Ariz. Dep’t of Econ. Sec., 234 Ariz. 174, 178-79, ¶¶ 16-18 (App.
2014), DCS cites no authority suggesting a parent can waive an objection to
the nature and extent of reunification efforts separately required by ICWA,
and we find none. Moreover, given the fundamental nature of Father’s
interest in the custody of his child, see Christy A. v. Ariz. Dep’t of Econ. Sec.,
217 Ariz. 299, 306, ¶ 22 (App. 2007) (citing Mara M. v. Ariz. Dep’t of Econ.
Sec., 201 Ariz. 503, 507, ¶ 24 (App. 2002)), we choose to address the merits
of Father’s argument.

6 Although Father contends the “active efforts” ICWA requires are
“far more than simply ‘reasonable’ efforts” required under state law, he
cites no Arizona authority to support that position; nor does he identify
what additional services, if any, would have facilitated his relationship with
Child.

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Decision of the Court

supervision and ceased all contact with Child because he did not know
“how to be a dad.” Nonetheless, during his second incarceration, Father in
fact completed parenting and anger management classes and DCS re-
referred Father for the same services upon his release.

¶17 The juvenile court considered the efforts made to preserve
Child’s family and found on five separate occasions between May 2016 and
October 2017 that they were “active efforts.” On appeal, we “do not
reweigh the evidence concerning the diligence exerted in attempting to
preserve the family,” Yvonne L., 227 Ariz. at 422, ¶ 27 (citing Lashonda M. v.
Ariz. Dep’t of Econ. Sec., 210 Ariz. 77, 81, ¶ 13 (App. 2005)), because the
juvenile court is in the “best position to weigh the evidence, observe the
parties, judge the credibility of witnesses, and make appropriate findings,”
Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 280, ¶ 4 (App. 2002) (citing
Pima Cty. Dependency Action No. 93511, 154 Ariz. 543, 546 (App. 1987)).
Moreover, we decline to hold DCS responsible for delays and interruptions
in services occasioned by Father’s decisions to quit participating in services,
use alcohol, and abscond from supervision. See Yvonne L., 227 Ariz. at 423
n.18, ¶ 34; see also A.A. v. State, 982 P.2d 256, 261 (Alaska 1999) (explaining
that a “parent’s incarceration significantly affects the scope of the active
efforts that the State must make to satisfy the statutory requirement”). We
further decline to adopt a rule requiring DCS to provide in-person prison
visits under all circumstances, particularly here, where Father had not had
contact with Child since she was an infant nearly ten years earlier and had
no existing relationship. Substantial evidence supports the finding that
active efforts were made to prevent the breakup of the Indian family, and
we find no error.

¶18 Father also argues DCS failed to prove the efforts were
unsuccessful because he was rebuilding a bond with Child at the time of
trial. Evidence of progress is not, however, evidence of success; Child
reported to both the DCS caseworker and ICWA expert that Father “did not
know her.” Moreover, Father fails to account for the seven months he
absconded from his budding relationship with Child to abuse alcohol and
avoid the obligations of community supervision. Father’s lack of
participation in substance abuse testing and treatment and parent aide
services prevented him from establishing or maintaining a parental
relationship with Child. These circumstances support the juvenile court’s
finding that the efforts to preserve the family were unsuccessful.

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II. Risk of Physical or Emotional Harm

¶19 “A determination that an Indian child will likely suffer
serious harm if returned to the custody of the parent[] requires clear and
convincing evidence ‘both that the parent’s conduct is likely to harm the
child and that the parent is unlikely to change [his] conduct.’” Steven H. v.
Ariz. Dep’t of Econ. Sec., 218 Ariz. 566, 571-72, ¶ 21 (2008) (quoting E.A. v.
State, 46 P.3d 986, 992 (Alaska 2002), and citing Thomas H. v. State, 184 P.3d
9, 19 (Alaska 2008)). The juvenile court must consider expert testimony that
addresses this issue, but “that expert testimony need not parrot the
language of the statute,” id. at 572-73, ¶¶ 21, 29, and need not provide the
sole basis for the court’s conclusion, Brenda O. v. Ariz. Dep’t of Econ. Sec., 226
Ariz. 137, 142, ¶ 23 (App. 2010) (quoting E.A., 46 P.3d at 992).

¶20 Father argues the ICWA expert’s “unsupported conclusion,
standing alone, cannot constitute ‘proof beyond a reasonable doubt.’” But
the expert’s conclusion was not unsupported. The expert testified he was
familiar with the facts of the case because, as the Community case manager,
he was “in fairly constant communication with [DCS],” had monthly
contact with Child, and reviewed all of the parties’ disclosures. Nor did his
conclusion stand alone. His opinion is supported by Father’s non-
compliance with services, Father’s decisions to abscond from community
supervision and engage in alcohol abuse when the stress of learning how
to parent overwhelmed him, and Father’s failure to appreciate the
detrimental effect of his conduct upon his relationship with Child. The
expert’s opinion is further supported by the DCS caseworker’s testimony
that Child would be harmed if she were removed from Grandmother’s safe,
stable home and separated from her half-sister, only to have Father repeat
his pattern of abandoning her when he relapsed on alcohol or felt
overwhelmed by the day-to-day activities of parenting (which he had yet
to undertake). In this way, the present case is distinguishable from Alma S.
v. DCS, 778 Ariz. Adv. Rep. 24, *4, ¶ 19 (App. 2017) (rejecting the testimony
and conclusions of witnesses whose opinions were “not sufficiently rooted
in the evidence”).

¶21 Father also argues DCS failed to prove he posed a risk of
emotional or physical damage to the child because “there is no evidence
that Father physically or emotionally abused [Child] at any time in her
past.” ICWA does not, however, require proof of abuse; rather, the juvenile
court must find the child is likely to suffer from physical or emotional
damage as a result of a parent’s overall conduct if the child were returned
to his care. The record contains sufficient evidence upon which the court

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could conclude beyond a reasonable doubt that Child was likely to suffer
harm if placed in Father’s care. See supra ¶ 20. We find no error.

III. Father’s Credibility

¶22 Father argues the juvenile court erred in determining he was
not credible in his testimony regarding his financial circumstances. He
argues that the record does not support this finding and that such a
significant error warrants a new trial. The court committed no error.

¶23 Father testified that he had provided financial support to
Child while he was in prison by redirecting a per capita payment he
received from the Community to Child’s placements. But the juvenile court
found that no evidence supported Father’s claim, that Father never
reported the information to DCS, and that Father’s receipt of this income
was generally inconsistent with the court’s appointment of an attorney to
represent him. After considering the circumstances, the court concluded it
“d[id] not find this testimony credible so as to rebut the abandonment otherwise
presented.” (Emphasis added).

¶24 The State rightfully concedes that the record does not support
any finding that Father “was not honest . . . regarding his ability to pay for
an attorney” because Father never completed a financial affidavit for that
purpose. But the juvenile court’s credibility determination did not, as
Father suggests, “significantly impact[] the trial court’s ruling in this
matter.” By its terms, the court’s credibility determination affected only the
conclusion that Father failed to rebut the presumption of abandonment
created by his failure to maintain a normal parental relationship with Child
for six months or longer. See A.R.S. § 8-531(A) (“Failure to maintain a
normal parental relationship with the child without just cause for a period
of six months constitutes prima facie evidence of abandonment.”). Because
Father does not contest the abandonment finding, any error was harmless.

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CONCLUSION

¶25 The juvenile court’s orders are affirmed.

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

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