Kevin E. v. Dcs, A.W.

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

KEVIN E.,
Appellant,

v.

DEPARTMENT OF CHILD SAFETY, A.W.,
Appellees.

No. 1 CA-JV 17-0559
FILED 8-7-2018

Appeal from the Superior Court in Maricopa County
No. JD529261
The Honorable Patricia A. Starr, Judge

AFFIRMED

COUNSEL

Maricopa County Legal Defender's Office, Phoenix
By Kathryn E. Harris
Counsel for Appellant

Arizona Attorney General's Office, Mesa
By Ashlee N. Hoffmann
Counsel for Appellee DCS
 KEVIN E. v. DCS, A.W.
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MEMORANDUM DECISION

Judge Diane M. Johnsen delivered the decision of the Court, in which
Presiding Judge Kenton D. Jones and Judge Paul J. McMurdie joined.

J O H N S E N, Judge:

¶1 Kevin E. ("Father") appeals the superior court's order severing
his rights to parent his child, arguing that the court erred in concluding that
the Department of Child Safety ("DCS") had established grounds for
severance and that severance was in the child's best interests. Because
substantial evidence supports the court's findings and conclusions, we
affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 In September 2015, bystanders called police about an
intoxicated woman with track marks on her arm who was begging for
money and food with a child at a fast-food restaurant. Police responded
and found the child dirty and dressed in ill-fitting clothes. The child, then
over two-and-a-half years old, had urinated on himself and communicated
only through grunts and cries. The child had various scratches, bruises and
scars and three cigarette burns on his inner thigh. Police discovered the
child had been staying in a hotel room with several family members,
including the child's grandparents, who had a history of methamphetamine
use and domestic violence. Upon review of its records, DCS discovered it
had responded on several previous occasions to reports of substance abuse,
domestic violence, homelessness and neglect affecting the child's care. DCS
decided to take custody of the child, who was found to suffer from post-
traumatic stress disorder ("PTSD") and to be somewhat developmentally
delayed.

¶3 When DCS contacted Father, he smelled of marijuana, and
although he denied recent marijuana use, he tested positive. Father was not
working, had no income and no residence of his own, and allowed the
child's grandparents to be the child's primary caretakers even though he
knew of their substance abuse and domestic violence. When asked about
the child's injuries, Father responded that the child had accidentally burned
himself with one of his caregiver's cigarettes. He also maintained that the

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child's scratches, bruises and scars came from fighting his two-year-old
cousin.

¶4 DCS filed a dependency petition alleging Father abused
substances, did not have a job, was not providing stable housing or
appropriate parental supervision for the child and had left the child with
inappropriate caregivers.1 After a preliminary hearing in which Father
denied the allegations but submitted the issue for the superior court to
determine, the court found the child dependent as to Father on September
30, 2015.

¶5 A psychologist to whom DCS referred Father determined that
Father, who had very little formal education and was illiterate, functioned
at an extremely low intellectual level. The psychologist reported that Father
did not demonstrate knowledge of appropriate parenting skills and did not
understand that he had put his child at risk by leaving him with
inappropriate caregivers. The psychologist concluded that the prognosis
was poor that Father would be able to demonstrate minimally adequate
parenting skills in the future, with some possibility that the prognosis could
become fair with services and support.

¶6 Over the first 18 months of the dependency, Father
participated inconsistently in services offered by DCS. He attended drug-
abuse counseling but missed sessions. He submitted to drug tests, but
tested positive on several occasions, missed others, and did not go to the
correct testing location on still others. Father began participating regularly
in visits with the child, but during visits he often would only sit with the
child and watch television; when Father did interact with the child, he often
did so in inappropriate ways. Father talked about the case in front of the
child, which negatively affected the child's behavior before and after visits.

¶7 In April 2017, the superior court changed the case plan from
family reunification to severance and adoption, and DCS filed a motion to
terminate Father's parental rights based on 15 months' time-in-care. See
Arizona Revised Statutes ("A.R.S.") section 8-533(B)(8)(c) (2018).2

1 DCS also alleged dependency as to the child's mother, and the court
ultimately severed her parental rights based on abandonment. She is not a
party to this appeal.

2 Absent material change after the relevant date, we cite a statute's
current version.

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¶8 Over the following months, Father participated inconsistently
in visits with the child through a parent-aide service, cancelling several
visits, failing to show up for others, and ending others early when he was
unable to control the child's behavior. Although Father made some
progress, he continued to show a lack of appropriate parenting skills. He
completed his individual counseling service, but was unable to apply the
coping skills taught there and became highly emotional when the child did
not listen to him; on several occasions, Father began crying during ordinary
conversations with the child. Although Father obtained stable housing
during this period by moving into another man's apartment, that man did
not pass a DCS background check.

¶9 In November 2017, the superior court held a three-day
severance trial, after which it entered an order severing Father's parental
rights. The court found that DCS's efforts to provide services were
reasonable, noting that DCS provided a psychological evaluation,
individual counseling, a parent aide, supervised visitation with a case aide,
transportation and substance-abuse testing and treatment. In particular,
the court found it reasonable that DCS "waited to provide parent aide
services until Father demonstrated a period of sobriety, so that he could
best utilize the information imparted by the parent aide." The court further
found that Father had been unable to remedy the circumstances causing the
out-of-home placement, citing Father's struggles to maintain sobriety and
obtain appropriate housing, his troubles with the law for driving without a
license, and his inability to regulate his emotions in stressful situations and
tendency to give into the child's demands when the child was upset.
Finally, the court concluded that despite Father's progress in some areas, it
was unlikely Father would effectively parent in the near future given the
child's special needs and Father's low level of intellectual functioning and
inability to control his emotions and retain needed parenting skills and
knowledge.

¶10 Father timely appealed. We have jurisdiction pursuant to
Article 6, Section 9, of the Arizona Constitution and A.R.S. §§ 8-235(A)
(2018), 12-120.21(A)(1) (2018) and -2101(A)(1) (2018).

DISCUSSION

¶11 Termination of parental rights requires clear and convincing
evidence of a statutory ground set out in § 8-533(B), Michael J. v. Ariz. Dep't
of Econ. Sec., 196 Ariz. 246, 249, ¶ 12 (2000), and proof by a preponderance
of the evidence that termination is in the best interests of the child, see Kent
K. v. Bobby M., 210 Ariz. 279, 288, ¶ 41 (2005). Because the superior court "is

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in the best position to weigh the evidence, observe the parties, judge the
credibility of witnesses, and resolve disputed facts," we will affirm an order
terminating parental rights if it is supported by reasonable evidence. Jordan
C. v. Ariz. Dep't of Econ. Sec., 223 Ariz. 86, 93, ¶ 18 (App. 2009) (quoting Ariz.
Dep't of Econ. Sec. v. Oscar O., 209 Ariz. 332, 334, ¶ 4 (App. 2004)).

A. 15 Months' Time-In-Care.

¶12 To establish the 15-month time-in-care ground under § 8-
533(B)(8)(c), DCS must show that (1) the child has been in an out-of-home
placement under its supervision for a cumulative total of at least 15 months;
(2) it has made "a diligent effort to provide appropriate reunification
services"; (3) "the parent has been unable to remedy the circumstances that
cause the child to be in an out-of-home placement"; and (4) "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." Father
does not dispute that the child has been in an out-of-home placement for
more than 15 months, but contends the evidence does not support the
remaining three requirements for severance under § 8-533(B)(8)(c).

1. DCS's efforts to provide services.

¶13 Father argues DCS did not make a diligent effort to provide
him appropriate reunification services. Specifically, Father faults DCS for
not referring him for one-on-one therapeutic counseling tailored to the
child's special behavioral needs, which he asserts DCS gave to the child's
foster parent. Father does not cite evidence in the record that the foster
parent actually received a service that he did not, much less evidence that
the service would have been appropriate for Father. Moreover, our review
of the record does not yield support for Father's contention. The foster
parent testified the child's therapist told her about techniques to deal with
behavior caused by the child's emotional issues, including his PTSD and
anxiety. The parent aide, however, told Father that he too should talk to
the therapist about how to deal with the child's behavior related to PTSD.
Instead of seeking out that help, Father denied the child had PTSD.

¶14 More generally, Father had difficulty retaining parenting
techniques he had been taught during the dependency proceedings, and
DCS is not required to provide every conceivable service to a parent or
"undertake rehabilitative measures that are futile." See Mary Ellen C. v. Ariz.
Dep't of Econ. Sec., 193 Ariz. 185, 191-92, ¶¶ 31-34 (App. 1999). In other
respects, the record supports the superior court's conclusion that DCS made
diligent efforts to reunify Father and the child, including, at appropriate

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times, offering Father services aimed at helping him improve his parenting
skills, such as individual counseling, a parent aide and supervised visits
with a case aide.

2. Father's inability to remedy circumstances causing out-of-
home placement.

¶15 Father disputes several of the superior court's findings that
support its conclusion that he had not remedied the circumstances causing
the out-of-home placement. First, Father contends that the court's finding
that he had inadequate housing was contradicted by evidence that Father
had lived in the same residence for five months. But other evidence showed
that the apartment he was living in was not appropriate for the child; in
fact, Father admitted at trial that he knew his roommate had not passed a
background check and that, as a result, the child could not live with him in
that apartment.

¶16 Next, Father takes issue with the court's finding that he "has
struggled throughout the dependency with maintaining sobriety and
consistently drug testing." Father argues he successfully completed drug
treatment, the drug-treatment service had issued a letter stating that he had
a low risk of relapse, and he had provided DCS with a prescription that
explained positive drug tests for opiates and benzodiazepines in February
and March 2017. But evidence supports the court's finding: The DCS case
manager testified that Father consistently missed drug tests throughout the
dependency and had been consistently submitting negative tests only since
July or August 2017. Further, the case manager was doubtful that the
prescription Father provided was for the drugs that caused the positive
tests in early 2017; Father did not produce the prescription at the time of the
tests, and, in any event, his behavior during that period caused the case
manager to believe that he was abusing drugs. For example, on a visit in
late February 2017, the case aide reported that Father was moving slowly,
falling over in the couch constantly, and not talkative.

¶17 Father also disputes the superior court's findings that he had
trouble controlling his emotions and setting limits for his child during
visits, citing testimony from his caseworker and counselor that he contends
is contrary to those conclusions. But substantial evidence supported the
court's findings: A DCS report dated October 6, 2017 stated that Father
"continues to lack the appropriate parenting skills," he had ended two visits
early in August 2017 because he was unable to control the child, and, even
after Father completed individual counseling, he had trouble regulating his
emotions during visits with the child. The parent aide reported that

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although Father showed some improvement in setting limits for the child,
he "did not have healthy boundaries" with the child during a September
2017 visit, at which he gave in to the child's demands.

¶18 Evidence also supported the court's finding that Father had
shown a pattern of cancelling visits with the child during the dependency
– including four visits or appointments with the parent aide in September
2017, just two months before the severance trial. That conduct, particularly
the cancellations shortly before trial, bolsters the court's conclusion that
Father was not dealing well with the stress of parenting.

¶19 Evidence also supported the superior court's finding that
Father's history of driving without a license was a continuing concern.
Father admitted at trial that he had been jailed several times for driving
without a valid license, and that he would go to jail again if caught doing it
again. But before an August 2017 parenting visit, Father told the parent
aide that if the taxi he had ordered did not show up, he was going to drive
his truck to the visit rather than miss the visit with his child, and at trial,
Father admitted that he drove to visits over the summer when his ride did
not arrive. Although Father testified his roommate would be able to give
him rides, the roommate had not passed a DCS background check and so
would not be permitted to transport the child.

¶20 In sum, substantial evidence supported the superior court's
findings supporting its conclusion that Father had not remedied the
circumstances causing the out-of-home placement. When reasonable
evidence supports the court's findings, we do not reweigh the evidence or
second-guess the court's resolution of conflicts in the evidence. See Jesus M.
v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, 282, ¶ 12 (App. 2002).

3. Likelihood that Father would not be able to effectively
parent in the near future.

¶21 Father argues the superior court improperly relied on his
November 2016 psychological evaluation and equivocal testimony by the
psychologist in concluding that he would not be able to effectively parent
in the near future. Father points out that the psychologist testified it had
been nearly a year since she examined Father, and she did not have enough
information at the time of trial to conclude that Father's parenting prospects
remained poor. Furthermore, Father contends that the evidence shows that
his circumstances changed since the psychologist evaluated him.

¶22 In making its finding, however, the superior court primarily
relied on the psychologist's testimony relating to Father's low intellectual

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functioning – a circumstance, which, according to the psychologist, was
unlikely to change over time. To be sure, the court also referenced the
psychologist's year-old opinion about the poor prognosis that Father would
be able to effectively parent in the future. But the court cited that opinion
as a starting point for its analysis of Father's accomplishments and shortfalls
during the year following the psychologist's evaluation. Indeed, the court
found that Father had "achieved some of the[] goals" set by the
psychologist, and at trial, "demonstrated a commitment . . . and a true desire
to parent his child." The court also found, however, that Father had not
retained the skills and knowledge necessary to effectively parent the child
in the future, particularly in light of the child's special needs, and concluded
that Father, despite his best efforts, would not be capable of rectifying that
shortcoming.

¶23 Substantial evidence supported that finding and conclusion.
DCS's case manager, who had been assigned to the case for two years,
testified Father lacked cognitive abilities and frequently forgot important
information; he had been unable, for example, to remember what the parent
aide had tried to teach him about the dangers of domestic violence. The
case manager testified that she did not believe Father had the capacity to
retain and use the information provided to him and therefore could not
effectively parent and would not be able to do so in the near future.
Combined with the psychologist's opinion that Father's low level of
intellectual functioning was likely to be a permanent condition, reasonable
evidence supports the superior court's finding that Father would be unable
to effectively parent in the near future. Cf. Vanessa H. v. Ariz. Dep't of Econ.
Sec., 215 Ariz. 252, 257, ¶¶ 22, 25 (App. 2007) (affirming severance when
parent's "cognitive limitations [were] simply too severe for the child to ever
be safe under her care").

B. Child's Best Interests.

¶24 The superior court concluded that severance would be in the
best interests of the child, finding that the current placement provided the
child with stability, addressed the child's special needs and was willing to
adopt the child. The court concluded that the child would benefit from the
permanency provided by adoption and that it would be detrimental to the
child if Father was making day-to-day decisions about the child's care.

¶25 DCS can establish that severance is in the best interests of the
child "by either showing an affirmative benefit to the child by removal or a
detriment to the child by continuing in the relationship." See Jesus M., 203
Ariz. at 282, ¶ 14. When the superior court severs a parent-child

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relationship, the court "must include a finding as to how the child[] would
benefit from a severance or be harmed by the continuation of the
relationship." Xavier R. v. Joseph R., 230 Ariz. 96, 99-100, ¶ 11 (App. 2012)
(quoting In re Appeal in Maricopa County Juv. Action No. JS-500274, 167 Ariz.
1, 5 (1990)); see also A.R.S. § 8-538(A) (2018) (order terminating parental
rights "shall recite the findings on which the order is based").

¶26 "In combination, the existence of a statutory ground for
severance and the immediate availability of a suitable adoptive placement
for [a child] frequently are sufficient to support a severance order." Oscar
O., 209 Ariz. at 335, ¶ 8. Here, the case manager testified that the child's
current placement was willing to adopt him and would provide
permanency and stability and meet the child's needs, including those
arising from the child's PTSD. Father, on the other hand, had denied that
the child had PTSD. Substantial evidence therefore showed that severing
Father's parental rights would provide affirmative benefits to the child,
while returning the child to Father's care would be detrimental. That
showing, combined with the existence of grounds for severance,
sufficiently supports the superior court's conclusion that severance was in
the child's best interests.

¶27 Father argues the court erred by failing to cite any evidence
to support its finding that it would be detrimental to restore Father to the
position of making day-to-day decisions for the child. But while the court
did not reference particular evidence in the paragraph of its decision in
which it reached that conclusion, the court's findings supporting the
grounds for severance amply support the conclusion. Among those
findings were that Father has a low level of intellectual functioning,
continued to be unable "to say no to the child," and continued to drive
without a license. These findings all support the court's conclusion that
Father was likely to make poor decisions, thereby risking harm to the child.

¶28 Father finally argues that the superior court's decision is
erroneous in light of our decision in Alma S. v. Dep’t of Child Safety, 244 Ariz.
152 (App. 2017), review granted (May 8, 2018). The evidence in the record in
Alma S., however, was dissimilar to that here in ways that make that case
inapplicable.

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CONCLUSION

¶29 Because substantial evidence supports the superior court's
findings and conclusions, we affirm the order severing Father's parental
rights.

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

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