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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

MANUEL T., Appellant,

v.

DEPARTMENT OF CHILD SAFETY, M.A., B.A., Appellees.

No. 1 CA-JV 18-0200
FILED 12-4-2018

Appeal from the Superior Court in Maricopa County
No. JD30722
The Honorable Cari A. Harrison, Judge

AFFIRMED

COUNSEL

Law Office of H. Clark Jones L.L.C., Mesa
By H. Clark Jones
Counsel for Appellant

Arizona Attorney General’s Office, Tucson
By Laura J. Huff
Counsel for Appellee Department of Child Safety
 MANUEL T. v. DCS, et al.
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Kenton D. Jones delivered the decision of the Court, in
which Vice Chief Judge Peter B. Swann and Judge David W. Weinzweig
joined.

J O N E S, Judge:

¶1 Manuel T. (Father) appeals the juvenile court’s order
terminating his parental rights to M.A. and B.A. (the Children), arguing the
Department of Child Safety (DCS) failed to prove the statutory grounds for
severance by clear and convincing evidence and that severance was in the
Children’s best interests by a preponderance of the evidence. For the
following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 In June 2015, DCS received a report that B.A. had been
sexually abused.1 During the subsequent investigation, all four of Father’s
daughters, then ages fourteen, twelve, nine, and four, disclosed sexual
abuse by family members. DCS identified a general lack of supervision and
“pattern of the children residing with family/friends and [being] harmed
while in their care” and removed the sisters from their parents’ care. DCS
filed a petition alleging all four girls were dependent as to Father and their
mother (Mother) on the grounds of neglect. Although Father contested the
allegations of the petition, he did not appear for trial, and the juvenile court
adjudicated the Children dependent and adopted a case plan of family
reunification.2

1 “[W]e view the evidence and reasonable inferences to be drawn from
it in the light most favorable to sustaining the court’s decision.” Jordan C.
v. Ariz. Dep’t of Econ. Sec., 223 Ariz. 86, 93, ¶ 18 (App. 2009) (citing Jesus M.
v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 282, ¶ 13 (App. 2002)).

2 The four sisters were also adjudicated dependent as to Mother in
October 2015. Mother’s parental rights to the Children were terminated in
May 2018, and her appeal was dismissed after her counsel avowed he had
identified no non-frivolous issues for this Court’s review. At the time of

2
 MANUEL T. v. DCS, et al.
Decision of the Court

¶3 Father was referred for supervised visitation, parent aide
services, individual counseling with an emphasis on domestic violence and
anger management, and transportation assistance — services he initially
declined. Father eventually engaged in counseling in May 2016. He only
began visiting the Children regularly in September 2016 — more than a year
after their removal. Father successfully completed parent aide services in
December 2016 but became irate and violent when the oldest daughter
refused to attend visitation. Father would also cancel visitation altogether
if the oldest daughter was not available to assist him in parenting the
younger children. Accordingly, DCS reduced the frequency of visitation
and recommended he continue with individual counseling.

¶4 DCS also expressed concern regarding Father’s ability to
maintain stable employment and obtain appropriate housing. In January
2017, DCS referred Father to a specialist, who provided him with
community resources for housing assistance and helped him complete an
application for Section 8 housing. In May, DCS advised Father it could
assist him with a housing subsidy if he provided appropriate
documentation. However, Father did not obtain the necessary information.
Father’s Section 8 housing application was also denied because it was
incomplete. He did not reapply or otherwise follow up with DCS or the
specialist.

¶5 After missing scheduled appointments in June and
November 2016, Father finally underwent a psychological evaluation in
May 2017. At the evaluation, Father reported he could and would parent
the Children but for his lack of suitable housing. But the psychologist found
Father was making no effort to address this issue, choosing instead to blame
DCS for not simply providing him a place to live. She also identified
“numerous other barriers to parenting,” including undetermined sexual
maladjustment allegations, possible substance abuse, personality
disturbances related to repressed anger and hostility, and a lack of effort
that reflected “an indirect expression of his acknowledgment that single
parenting is overwhelming for him at his age and under his circumstances.”
The psychologist concluded that any child in Father’s care remained at risk
for further neglect and Father’s prognosis for becoming a minimally
adequate parent in the foreseeable future was poor given his lack of
accountability and insight into the circumstances.

our review, the Children’s two older sisters remained in out-of-home care
but refused to consent to a change in case plan to severance and adoption.

3
 MANUEL T. v. DCS, et al.
Decision of the Court

¶6 The same psychologist performed a bonding assessment the
following August. She found the four sisters highly bonded to each other
and Father and suggested it would not be in their best interests to be
separated. Although these findings were consistent with reports of positive
interaction at visitation, Father’s participation in rehabilitative services
waned as he struggled with physical ailments and eventually underwent
back surgery requiring a lengthy recovery period. Additionally, despite
being advised housing was a significant barrier to reunification, Father
refused to secure appropriate housing unless and until the Children were
returned to his care.

¶7 By November 2017, Father had ceased all contact with DCS
and stopped participating in services, except for visitation. The juvenile
court changed the case plan to severance and adoption in December. DCS
immediately moved to terminate Father’s parental rights, alleging
severance was warranted based upon the time the Children had been in
out-of-home care. One month before trial, Father became irate in the
hallway after a court hearing when the DCS case manager suggested
specific anger management counseling.

¶8 At trial, the DCS case manager acknowledged Father’s partial
participation in services but identified unresolved concerns regarding
Father’s lack of stable employment and housing, anger issues, and failure
to recognize or understand why the Children were placed in out-of-home
care. Like the psychologist, the case manager believed Father would not be
able to parent in the foreseeable future because he was not prioritizing
reunification tasks. Notably, the case manager did not believe the Children
were safe in Father’s care, notwithstanding the housing issue, and believed,
in the absence of any apparent behavioral changes, “the older children will
continue to parent the younger children.” She testified the Children were
adoptable and in an adoptive placement who was willing to facilitate
continued contact between the Children and their older sisters. She also
acknowledged that even though separating the sisters was not ideal, it was
nonetheless in the Children’s best interests to pursue a plan that would give
them an opportunity for stability and permanency, rather than leaving
them “to linger in the foster care system.”

¶9 Father testified he believed he could provide for the Children
financially and would obtain appropriate housing “immediately” after they
were returned to his care. He denied any domestic violence or anger issues
and expressed concern regarding the Children being separated from their
older sisters.

4
 MANUEL T. v. DCS, et al.
Decision of the Court

¶10 After taking the matter under advisement, the juvenile court
found DCS proved by clear and convincing evidence that it had made
diligent efforts to provide appropriate reunification services but
termination of Father’s parental rights was warranted because he had been
unable to remedy the circumstances causing the Children to be in an out-
of-home placement for longer than the statutory period and there was a
substantial likelihood he would be unable to parent in the near future. See
Ariz. Rev. Stat. (A.R.S.) § 8-533(B)(8)(c).3 The court also found severance
was in the Children’s best interests and entered an order terminating
Father’s parental rights. Father timely appealed. We have jurisdiction
pursuant to 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

I. DCS Proved the Grounds for Severance by Clear and Convincing
Evidence.

¶11 Father argues the juvenile court erred in concluding DCS
proved the statutory grounds for severance by clear and convincing
evidence. Specifically, Father contends insufficient evidence supports the
court’s findings that: (1) DCS made reasonable efforts to assist Father in
obtaining appropriate housing for the Children, which he characterizes as
the “main obstacle to reunification,” and (2) Father’s housing at the time of
trial was not suitable for the Children. We defer to the court’s factual
findings, including those regarding DCS’s diligence in providing services,
so long as they are supported by substantial evidence. See Lashonda M. v.
Ariz. Dep’t of Econ. Sec., 210 Ariz. 77, 81-82, ¶¶ 13, 16 (App. 2005) (citations
omitted); Jesus M., 203 Ariz. at 280, ¶ 4 (citing Michael J. v. Ariz. Dep’t of Econ.
Sec., 196 Ariz. 246, 250, ¶ 20 (2000), and Jennifer B. v. Ariz. Dep’t of Econ. Sec.,
189 Ariz. 553, 555 (App. 1997)).

¶12 Substantial evidence supports the juvenile court’s findings
here. Father himself testified he could easily obtain and afford suitable
housing and would do so “immediately” if the Children were returned to
his care. Father also testified the Children could not live with him in the
hotel room he currently occupied. Although DCS cannot prove termination
is warranted without first making reasonable efforts to preserve the family,
it cannot force a parent to take advantage of the services offered or perform
required reunification tasks. See Yvonne L. v. Ariz. Dep’t of Econ. Sec., 227

3 Absent material changes from the relevant date, we cite the current
version of rules and statutes.

5
 MANUEL T. v. DCS, et al.
Decision of the Court

Ariz. 415, 422, 423, ¶¶ 27, 34 (App. 2011) (citing Maricopa Cty. Juv. Action
No. JS-501904, 180 Ariz. 348, 353 (App. 1994)). The record supports the
court’s finding that it was not a lack of services, but a lack of will, that kept
Father from obtaining appropriate housing. We find no error.

¶13 Father does not dispute the remaining findings in the juvenile
court’s order or argue they are insufficient to warrant termination.
Accordingly, the court did not err in concluding DCS proved severance was
warranted based upon his failure to remedy the circumstances causing the
Children to be in out-of-home care for the statutory period.

II. DCS Proved Severance was in the Children’s Best Interests by a
Preponderance of the Evidence.

¶14 Father argues the juvenile court erred in concluding
severance was in the Children’s best interests because it would also sever
their legal relationship with their older sisters, with whom they share a
significant bond. We review the best interests finding for an abuse of
discretion and will reverse only if “as a matter of law, no reasonable fact-
finder could have found the evidence satisfied the applicable burden of
proof.” See Titus S. v. DCS, 244 Ariz. 365, 369, ¶ 15 (App. 2018) (citing Mary
Lou C. v. Ariz. Dep’t of Econ. Sec., 207 Ariz. 43, 47, ¶ 8 (App. 2004), and Denise
R. v. Ariz. Dep’t of Econ. Sec., 221 Ariz. 92, 94-95, ¶¶ 9-10 (App. 2009)).

¶15 The existence of a bond between biological family members,
“although a factor to consider, is not dispositive in addressing best
interests.” Dominique M. v. DCS, 240 Ariz. 96, 98, ¶ 12 (App. 2016) (citing
Bennigno R. v. Ariz. Dep’t of Econ. Sec., 233 Ariz. 345, 351, ¶ 30 (App. 2013)).
Rather, the court must consider all relevant facts and determine, on a case-
by-case basis, whether a preponderance of the evidence supports a finding
that the children “would derive an affirmative benefit from termination or
incur a detriment by continuing in the relationship.” Ariz. Dep’t of Econ. Sec.
v. Oscar O., 209 Ariz. 332, 334, ¶ 6 (App. 2004); accord Demetrius L. v. Joshlynn
F., 239 Ariz. 1, 4, ¶ 16 (2016). The benefit to the children, particularly when
severance is sought based upon the length of time in an out-of-home
placement, is the opportunity for permanency in lieu of remaining
indefinitely in a situation where “parents maintain parental rights but
refuse to assume parental responsibilities.” Oscar O., 209 Ariz. at 337, ¶ 16
(quoting Maricopa Cty. Juv. Action No. JS-6520, 157 Ariz. 238, 243 (App.
1988)). The juvenile court may also consider whether the presence of a
statutory ground for severance will have a negative effect upon the
children. Bennigno R., 233 Ariz. at 350, ¶ 23 (quoting Maricopa Cty. Juv.
Action No. JS-6831, 155 Ariz. 556, 559 (App. 1988)).

6
 MANUEL T. v. DCS, et al.
Decision of the Court

¶16 The juvenile court here noted the Children had been in an out-
of-home placement for nearly three years and, despite this lengthy period,
Father had yet to show he was willing or able to parent them. Although
Father faults the court for “not giv[ing] much weight” to the Children’s
bond with their sisters, we do not reweigh evidence on appeal; “[a] juvenile
court as the trier of fact in a termination proceeding is in the best position
to weigh the evidence, observe the parties, judge the credibility of
witnesses, and resolve disputed facts.” Oscar O., 209 Ariz. at 334, ¶ 4 (citing
Jesus M., 203 Ariz. at 280, ¶ 4). Moreover, the record reflects the court
carefully considered “[the] risk of the four girls not being able to continue
a sibling relationship,” but ultimately determined it was not in the
Children’s best interests “to remain in the foster care system in order to
prioritize their sibling relationships.” Instead, the court found the Children
would benefit from the opportunity to be adopted into a permanent, stable,
and safe home with a placement who had been, and was committed to
continue, facilitating sibling contact. The record supports these
conclusions, and we find no abuse of discretion.

CONCLUSION

¶17 The juvenile court’s order terminating Father’s parental rights
to the Children is affirmed.

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

7