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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
JEFFREY W., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, J.W., Appellees.
No. 1 CA-JV 20-0350
FILED 6-29-2021
Appeal from the Superior Court in Yavapai County
No. P1300JD202000001
The Honorable Anna C. Young, Judge
AFFIRMED
COUNSEL
Robert D. Rosanelli, Attorney at Law, Phoenix
By Robert D. Rosanelli
Counsel for Appellant
Arizona Attorney General’s Office, Mesa
By Amanda Adams
Counsel for Appellee Department of Child Safety
JEFFREY W. v. DCS, J.W.
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Kent E. Cattani delivered the decision of the Court, in
which Judge Samuel A. Thumma and Judge Brian Y. Furuya joined.
C A T T A N I, Judge:
¶1 Jeffrey W. (“Father”) appeals the superior court’s order
terminating his parental rights to his son J.W.1 For reasons that follow, we
affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 Father is the biological parent of J.W., born in August 2019.
After J.W.’s birth, hospital staff reported to the Arizona Department of
Child Safety (“DCS”) that J.W. had tested positive for illegal drugs. At the
hospital, J.W.’s mother admitted to using non-prescribed opiates during her
pregnancy. DCS then interviewed Father, and he admitted using
marijuana—but indicated he had a medical marijuana card—and being on
a suboxone program.
¶3 After J.W. was discharged from the hospital, DCS initiated a
safety plan and provided services, including drug testing and in-home
visits from social services. But during the following three months, Father
acted aggressively toward in-home care personnel and refused to submit to
drug tests.
¶4 In December 2019, J.W.’s mother tested positive for
methamphetamine and heroin. DCS became concerned that Father was
also using drugs, and when a DCS specialist visited the home, Father fell
asleep standing up while talking to the specialist. DCS requested Father
submit to a drug test, but he refused. After Father’s refusal, DCS took J.W.
into care.
¶5 DCS then petitioned the court to find J.W. dependent as to
Father, and after Father pled no contest, the court adjudicated J.W.
dependent in January 2020. Following the adjudication, the court adopted
concurrent case plans of family reunification and severance and adoption.
1 J.W.’s mother’s parental rights were also terminated, but she is not a
party to this appeal.
2
JEFFREY W. v. DCS, J.W.
Decision of the Court
DCS offered Father services, including substance abuse assessment,
behavioral health intake and classes, counseling, anger management
education, supervised visitation (including transportation to visits), and
parenting classes.
¶6 From January to May 2020, Father participated sporadically
in services. He submitted to one hair follicle drug test that was positive for
morphine, cocaine, THC, methamphetamine, amphetamine, and heroin.
Instead of the eight to ten urine drug tests per month that DCS required, he
submitted to only four—of which two were positive for methamphetamine
and amphetamine. He participated in the intake for behavioral health
counseling and attended one session of individual counseling but did not
participate in any classes beyond that. Father never registered for parenting
classes, and he missed many visitations with J.W., stating various excuses,
including that he was busy, he forgot, or that he did not like the case aide.
¶7 In May 2020, Father was arrested for ten methamphetamine-,
fentanyl-, and heroin-related offenses. Father rejected a plea offer of 10
years in prison and is facing 20 to 25 years’ imprisonment if convicted.
Following Father’s arrest, DCS informed Father about drug classes in jail.
But Father was subsequently charged with attempting to smuggle
contraband (fentanyl) into the jail, and as a result, he was unable to
participate in those classes.
¶8 In June 2020, the court changed the case plan to severance and
adoption, and DCS moved to sever parental rights on grounds of chronic
substances abuse and six-months’ time-in-care. See A.R.S. §§ 8-533(B)(3),
(8)(b). Following a contested severance trial, the superior court severed
Father’s parental rights based on both grounds. Father timely appealed,
and we have jurisdiction under A.R.S. § 8-235(A).
DISCUSSION
¶9 To terminate parental rights, a superior court must find by
clear and convincing evidence at least one statutory ground for severance
and by a preponderance of the evidence that severance is in the child’s best
interests. Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 22 (2005). We will affirm
the superior court’s order if reasonable evidence supports it,
acknowledging that the superior court is in the “best position to weigh the
evidence, observe the parties, judge the credibility of witnesses, and resolve
disputed facts.” Jordan C. v. Ariz. Dep’t of Econ. Sec., 223 Ariz. 86, 93, ¶ 18
(App. 2009) (citation omitted).
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JEFFREY W. v. DCS, J.W.
Decision of the Court
¶10 Father asserts that DCS did not provide adequate
reunification services. Severance cannot be based on chronic substance
abuse or six months’ time-in-care unless DCS first provides services to
attempt to reunify the family. See Jennifer G. v. Ariz. Dep’t of Econ. Sec., 211
Ariz. 450, 453, ¶ 12 (App. 2005) (requiring DCS to make reasonable efforts
to reunify the family under A.R.S. § 8-533(B)(3)); A.R.S. § 8-533(B)(8)(b)
(requiring DCS make “a diligent effort to provide appropriate reunification
services” to the parent). In assessing whether DCS has made adequate
efforts to reunify the family, the court looks to the totality of the
circumstances, including the services DCS offered throughout the
dependency and the parent’s participation in those services. Donald W. v.
Dep’t of Child Safety, 247 Ariz. 9, 22–23, ¶¶ 48, 49 (App. 2019). DCS need not
provide “every conceivable service” or those that would prove futile. Mary
Ellen C. v. Ariz. Dep’t of Econ. Sec., 193 Ariz. 185, 192, ¶ 34 (App. 1999)
(citation omitted); Maricopa Cnty. Juv. Action No. JS-501904, 180 Ariz. 348,
353 (App. 1994). Instead, DCS fulfills its obligation when it provides a
parent with the time and opportunity to participate in services that have a
“reasonable prospect of success.” Mary Ellen C., 193 Ariz. at 192, ¶ 34.
¶11 Father argues that DCS did not provide adequate
reunification services after his incarceration. Even though Father did not
contest services in the superior court and has arguably waived this
challenge on appeal, see Shawanee S. v. Ariz. Dep’t of Econ. Sec., 234 Ariz. 174,
179, ¶ 18 (App. 2014), we address his argument and conclude that the
evidence supports a finding that DCS provided adequate reunification
services.
¶12 Although Father argues that post-incarceration services were
inadequate, his argument does not acknowledge his failure to participate in
the services throughout the dependency and DCS’s efforts throughout the
dependency. During the dependency, Father missed visitations with J.W.,
failed to participate in counseling, and refused to submit to drug testing.
And when Father did submit to drug tests, he tested positive for illegal
substances. Further, when Father was incarcerated, DCS made him aware
of substance abuse classes in the jail. But his behavior (bringing fentanyl
into the jail) rendered him unable to participate in those services. Thus, the
superior court did not abuse its discretion by concluding that Father failed
to participate in services and that the services DCS provided were adequate.
Cf. Jordan C., 223 Ariz. at 93, ¶ 17 (noting the severance statutes allow the
court to consider the parent’s participation when assessing the adequacy of
the services DCS provided).
4
JEFFREY W. v. DCS, J.W.
Decision of the Court
CONCLUSION
¶13 The superior court’s order is affirmed.
AMY M. WOOD • Clerk of the Court
FILED: AA
5