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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JOEL M., Appellant,

v.

DEPARTMENT OF CHILD SAFETY, S.M.,1 Appellees.

No. 1 CA-JV 16-0487
FILED 5-4-2017

Appeal from the Superior Court in Maricopa County
No. JD22071
The Honorable Jeanne M. Garcia, Judge

AFFIRMED

COUNSEL

Czop Law Firm, PLLC, Higley
By Steven Czop
Counsel for Appellant

Arizona Attorney General’s Office, Phoenix
By Amber E. Pershon
Counsel for Appellee Department of Child Safety

1 This Court, on its own motion, amends the caption to remove S.S. as
a party to this appeal. See infra n.4.
 JOEL M. v. DCS, et al.
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Kenton D. Jones delivered the decision of the Court, in
which Judge Patricia K. Norris and Judge Paul J. McMurdie joined.

J O N E S, Judge:

¶1 Joel M. (Father) appeals the juvenile court’s order terminating
his parental rights to S.M. (Child), arguing only that the Department of
Child Safety (DCS) failed to prove by a preponderance of the evidence that
severance was in Child’s best interests. For the following reasons, we
affirm.

FACTS2 AND PROCEDURAL HISTORY

¶2 Child was born in February 2015 with glutaric acidemia, a
rare genetic disorder that prevents her from processing certain proteins
properly. As a result, Child requires constant monitoring, a strict diet, and
isolation from other children because even common childhood illnesses are
dangerous to her.

¶3 Immediately after Child’s birth, DCS advised Father and
Child’s mother (Mother) of concerns with their ongoing substance abuse
but agreed to an in-home dependency with Mother that required Father’s
contact with Child be supervised. Two weeks later, Father was arrested for
driving under the influence (DUI) of methamphetamine and opiates, with
Child, two of her siblings,3 and Mother in the car, while his license was
suspended for a prior DUI. According to the arresting officer, Mother
appeared under the influence of illegal substances at the time as well; a
subsequent hair follicle test reflected a level of methamphetamine
consistent with daily or weekly use. DCS took temporary custody of all

2 We view the facts in the light most favorable to upholding the
juvenile court’s order terminating parental rights. Marianne N. v. Dep’t of
Child Safety, 240 Ariz. 470, 471 n.1, ¶ 1 (App. 2016) (citing Ariz. Dep’t of Econ.
Sec. v. Matthew L., 223 Ariz. 547, 549, ¶ 7 (App. 2010)).

3 Child has at least seven half-siblings, none of whom are parties to
this appeal.

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Decision of the Court

three children and placed Child in a licensed foster home equipped to care
for a medically fragile child. DCS then filed a petition alleging Father was
neglecting Child through his ongoing substance abuse and domestic
violence. Father denied the allegations of the petition but submitted the
issue of dependency on the record. The juvenile court found Child
dependent as to Father and set a case plan of family reunification
concurrent with severance and adoption.4

¶4 Father admitted he used methamphetamine to cope with
otherwise untreated bipolar disorder and expressed concern that “he
cannot keep himself out of harm’s way.” He was immediately referred for
a substance abuse assessment and treatment, supervised visitation, case
aide services, and transportation assistance. He tested positive for
methamphetamine at more than seventeen times the minimum detection
level5 the day after Child was born. He tested positive for
methamphetamine five more times in March and April 2015. Father
initially advised DCS he did not wish to participate in visitation with Child
if it would be supervised, and those visits were cancelled in April 2015
because he continued to test positive for methamphetamine.

¶5 Father completed a substance abuse assessment in May 2015
and was referred for intensive outpatient substance abuse treatment. He
did not begin attending until August 2015, and then his participation was
sporadic. Meanwhile, Father began testing positive for opiates in June 2015
and benzodiazepines in September. Father advised he was receiving
prescription opioids from three separate doctors and continued to test
positive for opiates until November 2015, when he “made a personal
decision not to test for [DCS] anymore simply because they were making a
mockery of the medications” he alleged were prescribed for a ten-year-old
back injury.

4 The juvenile court also found Child dependent as to Mother.
Mother’s parental rights to Child were terminated in November 2016.
Mother’s appeal was dismissed in January 2017 after her counsel avowed
his review of the record revealed no non-frivolous issues for this Court’s
review, and therefore neither she, nor Child’s half-sibling, S.S., is a party to
this appeal.

5 The laboratory analyzing Father’s urine sample applied a “cut off”
level of 500 nanograms per milliliter of urine. The test results indicated the
presence of methamphetamine at 8,507 nanograms per milliliter.

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¶6 Parent aide services were reinitiated in May 2015, and Father
began visiting with Child at the hospital and at her medical appointments.
Although Father acted appropriately with Child, the parent aide expressed
concern that Father and Mother engaged in domestic violence during the
visits and that Father had not addressed his substance abuse, lacked a bond
with Child, and did not understand Child’s medical, physical, and
emotional needs or have the parenting skills to respond appropriately.
Father walked out of substance abuse treatment in February 2016 because
he did not find the service useful and anticipated going to prison soon for
the DUI offense that led to Child’s removal and therefore “had nothing else
to lose.”

¶7 Father was also scheduled for a psychological evaluation with
prearranged transportation three separate times and missed each
appointment. A fourth evaluation was not scheduled because Father
refused to engage in services.

¶8 In March 2016, the juvenile court changed the case plan, over
Father’s objection, to severance and adoption. DCS immediately moved to
terminate Father’s parental rights, alleging severance was warranted based
upon the length of time Child had been in care and Father’s ongoing
substance abuse. At the time, Child had been hospitalized for several days
for respiratory issues after she contracted a common cold and suffered a
stroke. Child’s physician reported she would experience more frequent
strokes and sicknesses as she got older and would likely die before age
twenty.

¶9 By the time of trial in September 2016, Child, then only
nineteen months old, was placed on a continuous feeding tube and was not
expected to walk or talk. She required nine scheduled therapy sessions per
week in addition to her frequent medical appointments. The DCS
caseworker testified Child’s foster parents are medically trained and “doing
really good” meeting and advocating for Child’s basic and special needs,
which she described as a full-time job. Additionally, Child had bonded
with the foster parents and was “highly adoptable.” The caseworker
expressed concern with the length of time Child had been out-of-home —
her entire life — and that Father had not established the sobriety or stability
necessary to care for Child.

¶10 Father denied any responsibility for DCS’s involvement,
testifying Child was taken into DCS custody “simply because [Mother]
tested positive for meth” and that he did not participate in services because
the case “was a losing battle.” He also denied having a substance abuse

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Decision of the Court

problem and testified substance abuse treatment was not a necessary or
valuable service, while simultaneously admitting he had relapsed on
methamphetamine in early 2016 and refusing to submit to urinalysis testing
that would establish his sobriety. Although Father expressed some
understanding of Child’s medical needs, he had not spent more than a few
hours at a time with Child and never outside of the hospital or Child’s
scheduled therapies. Nor did Father successfully complete any of the
offered services, demonstrate any significant period of sobriety, or
discontinue his domestic violence relationship with Mother.

¶11 After taking the matter under advisement, the juvenile court
found DCS proved by clear and convincing evidence that termination of
Father’s parental rights was warranted because Father: (1) substantially
neglected or willfully refused to remedy the circumstances causing Child,
then under three years of age, to be placed in out-of-home care for six
months or longer, see Ariz. Rev. Stat. (A.R.S.) § 8-533(B)(8)(b),6 and (2) had
a history of chronic abuse of various substances and there were reasonable
grounds to believe the condition would continue for a prolonged,
indeterminate period, see A.R.S. § 8-533(B)(3). The court also found
severance was in Child’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

¶12 To terminate parental rights, the juvenile court must find by
a preponderance of the evidence that severance is in the child’s best
interests. A.R.S. § 8-533(B); Ariz. R.P. Juv. Ct. 66(C); Kent K. v. Bobby M., 210
Ariz. 279, 288, ¶ 41 (2005).7 The conclusion must be supported by specific
findings of fact in support of termination. Ariz. R.P. Juv. Ct. 66(F)(2)(a).
Father argues there is insufficient evidence to support the finding that
severance was in Child’s best interests because the record is “unclear as to

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

7 DCS must also prove at least one of the statutory grounds for
severance by clear and convincing evidence, A.R.S. § 8-533(B); Ariz. R.P.
Juv. Ct. 66(C); Kent K., 210 Ariz. at 283, ¶ 16, but Father does not argue
insufficient evidence supports this finding.

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whether [Child] is in an adoptive home or would be able to be adopted.”8
And, he contends, if Child is not likely to be adopted, there is no benefit to
Child in terminating his parental rights in the absence of evidence that she
would be harmed by maintaining parental ties to Father. We disagree in
both regards.

¶13 We review the propriety of a best interests finding for an
abuse of discretion. Orezza v. Ramirez, 19 Ariz. App. 405, 409 (1973) (citing
Dunbar v. Dunbar, 102 Ariz. 352, 354 (1967)). We do not reweigh the
evidence; the trier of fact — here, the juvenile court — “is in the best
position to weigh the evidence, observe the parties, judge the credibility of
witnesses, and resolve disputed facts.” Ariz. Dep’t of Econ. Sec. v. Oscar O.,
209 Ariz. 332, 334, ¶ 4 (App. 2004) (citing Jesus M. v. Ariz. Dep’t of Econ. Sec.,
203 Ariz. 278, 280, ¶ 4 (App. 2002)). Accordingly, we will affirm a
termination order unless there is no reasonable evidence to support the
court’s findings. Audra T. v. Ariz. Dep’t of Econ. Sec., 194 Ariz. 376, 377, ¶ 2
(App. 1998) (citing Maricopa Cty. Juv. Action No. JS-4374, 137 Ariz. 19, 21
(App. 1983), and Maricopa Cty. Juv. Action No. JS-378, 21 Ariz. App. 202, 204
(1974)).

¶14 Termination is in a child’s best interests if the child “would
derive an affirmative benefit from the termination or incur a detriment by
continuing the relationship.” Oscar O., 209 Ariz. at 334, ¶ 6 (citations
omitted). Where severance is sought based upon the child’s length of time
in an out-of-home placement, see A.R.S. § 8-533(B)(8), the opportunity for
permanency is a benefit to the child 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), and citing James S. v. Ariz. Dep’t of Econ. Sec., 193 Ariz. 351, 356,
¶ 18 (App. 1998)). In evaluating the child’s opportunity for permanency,

8 DCS argues Father waived any argument regarding the sufficiency
of the juvenile court’s findings by failing to raise them with the juvenile
court. See Christy C. v. Ariz. Dep’t of Econ. Sec., 214 Ariz. 445, 452, ¶ 21 (App.
2007) (“[A] party may not ‘sit back and not call the trial court’s attention to
the lack of a specific finding on a critical issue, and then urge on appeal []
mere lack of a finding on that critical issue as a grounds for reversal.’”)
(quoting Bayless Inv. & Trading Co. v. Bekins Moving & Storage Co., 26 Ariz.
App. 265, 271 (1976)). Nonetheless, in our discretion, we choose to address
the substance of Father’s argument. See Adams v. Valley Nat’l Bank of Ariz.,
139 Ariz. 340, 342 (App. 1984) (recognizing the preference to decide cases
on the merits rather than to dismiss summarily on procedural grounds)
(citing Clemens v. Clark, 101 Ariz. 413, 414 (1966)).

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the juvenile court considers whether the child is adoptable, whether there
is a current plan for the child’s adoption, and whether the current
placement is meeting the child’s needs. See Bennigno R. v. Ariz. Dep’t of Econ.
Sec., 233 Ariz. 345, 350, ¶ 23 (App. 2013) (citations omitted); Audra T., 194
Ariz. at 377, ¶ 5 (citations omitted).

¶15 The juvenile court made specific findings regarding Child’s
extensive medical needs and the foster parents’ dedication to her care and
safety. In contrast, the court found Father’s ongoing substance abuse
“prevents him from providing a good home for [Child] . . . and from
exercising good judgment when it comes to caring for [Child]” — findings
Father does not dispute. See Britz v. Kinsvater, 87 Ariz. 385, 388 (1960)
(“Inasmuch as the trial court’s findings of fact are not themselves
challenged by this appeal, we may assume that their accuracy is
conceded.”).

¶16 These findings are supported by the record and wholly
support the conclusion that termination was in Child’s best interests
because Child would have the opportunity to live in a safe, stable, drug-
free home where all her basic and special needs were met — precisely the
type of home Father had thus far been unable or unwilling to provide. See
Maricopa Cty. Juv. Action No. JS-8490, 179 Ariz. 102, 107 (1994) (affirming the
juvenile court’s best interests finding, in part, because the evidence
established that the child’s existing placement — not the child’s parent —
was meeting the child’s needs). This benefit exists regardless of whether a
specific adoptive placement has been identified because it frees the child
from the risk of neglect from an unfit parent. See Maricopa Cty. Juv. Action
No. JS-501904, 180 Ariz. 348, 352 (App. 1994) (“[DCS] need not show that it
has a specific adoption plan before terminating a parent’s rights.”) (citing
Yavapai Cty. Juv. Action No. J-9956, 169 Ariz. 178, 180 (App. 1991), and JS-
6520, 157 Ariz. at 243-44). The record demonstrates Child would both
benefit from severance and be harmed by continuation of the parental
relationship, and we find no abuse of discretion.

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CONCLUSION

¶17 The order terminating Father’s parental rights to Child is
affirmed.

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

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