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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
BRANDI K., DAVID C., Appellants,
v.
DEPARTMENT OF CHILD SAFETY, D.C., Appellees.
No. 1 CA-JV 21-0023
FILED 7-8-2021
Appeal from the Superior Court in Maricopa County
No. JD 532153
The Honorable Jeffrey A. Rueter, Judge
AFFIRMED
COUNSEL
Czop Law Firm PLLC, Higley
By Steven Czop
Counsel for Appellant, Brandi K.
John L. Popilek, Scottsdale
Counsel for Appellant, David C.
Arizona Attorney General’s Office, Phoenix
By Emily M. Stokes
Counsel for Appellee, Department of Child Safety
BRANDI K., DAVID C. v. DCS, D.C.
Decision of the Court
MEMORANDUM DECISION
Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge David B. Gass and Judge David D. Weinzweig joined.
B R O W N, Judge:
¶1 Brandi K. (“Mother”) and David C. (“Father”) appeal the
termination of their parental rights to their son, D.C., born in November
2018. For the following reasons, we affirm.
BACKGROUND
¶2 The Department of Child Safety (“DCS”) learned about D.C.
when Mother tested positive for amphetamines at his birth. DCS took
temporary custody of D.C. and petitioned the juvenile court to find him
dependent as to Mother and Father on grounds of substance abuse, lack of
housing, and unemployment. The parents did not contest the dependency.
Mother admitted she had a history of substance abuse, including using
methamphetamine two weeks before D.C.’s birth. During the dependency
case she missed several tests, but always tested negative. Around January
2020, DCS helped the parents acquire a housing voucher, but they chose to
move into a sober living facility.
¶3 In March 2020, DCS moved for termination of their parental
rights, citing grounds of prolonged substance abuse, six months’ time-in-
care, and fifteen months’ time-in-care. A.R.S. § 8-533(B)(3), (8)(b–c). The
termination hearing was originally scheduled for September 24, 2020, but
was continued when the court granted DCS’s motion to continue, filed
three days before the hearing.
¶4 Father did not appear at the telephonic termination hearing
set for January 5, 2021. His counsel told the court:
I didn’t learn that my client was in treatment until I tried to
get ahold of him just the other day. The person I spoke to . . .
told me that she would get a message to him . . . and I never
have heard from him. So, he’s not here today because he is in
treatment. . . . I’m requesting that we continue as to my client.
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Decision of the Court
DCS objected to the continuance, and the court denied the motion, stating
there was no evidence Father was incapable of calling in.
¶5 The DCS case manager, Colleen Teague, acknowledged
Mother’s accomplishments in achieving sobriety and completing services,
as well as consistent visitation with D.C. However, Teague expressed two
remaining concerns: (1) Mother was still in a relationship with Father, who
had not demonstrated sobriety; and (2) she still resided in the sober living
facility, which DCS did not consider to be stable housing for D.C. Teague
explained that Mother lacked financial stability, and she expressed concern
whether she could maintain sobriety outside of a controlled environment.
As to Father, Teague noted his history of substance abuse, explaining he
tested positive over 20 times for marijuana, opiates, methamphetamines,
and amphetamines between September 2019 and May 2020.
¶6 Mother claimed she had been sober since her last positive test
in December 2018, though DCS noted it could only document eight months
of sobriety. After several unsuccessful attempts, Mother completed
substance abuse treatment in August 2020. Throughout the dependency
case, Mother lived and worked at the sober living facility, where she
received payment in the form of a credit toward her rent. She testified she
had kicked Father out of the facility in December 2020 after a relapse.
Addressing Father’s failure to appear, Mother said he had been in treatment
since December 19, following his relapse, and he was currently at an
inpatient treatment center. She admitted she had not informed DCS of his
status, and when asked whether she had told Father to call into the hearing,
she replied: “He was in class today.”
¶7 The juvenile court issued a comprehensive ruling terminating
Mother’s and Father’s parental rights. First, the court found Father lacked
good cause for his failure to appear, which was treated as a waiver of his
rights and an admission of the allegations. It noted no evidence showed
Father could not have attended the trial while participating in rehabilitative
services. Second, the court found DCS had proven all three grounds for
termination as to Father, citing his long history of substance abuse, failure
to participate in services, and lack of stability. Third, the court found DCS
had proven the fifteen months’ time-in-care ground as to Mother, citing her
relationship with Father and her continued residence at the sober living
facility. Finally, the court found termination was in D.C.’s best interests
because he was adoptable and the parents had failed to make the necessary
behavioral changes. Mother and Father separately appealed the court’s
ruling.
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BRANDI K., DAVID C. v. DCS, D.C.
Decision of the Court
DISCUSSION
A. Mother’s Appeal
¶8 To terminate parental rights, the juvenile court must find (1)
one of the statutory grounds articulated in A.R.S. § 8–533(B), by clear and
convincing evidence; and (2) that termination is in the child’s best interests,
by a preponderance of the evidence. Kent K. v. Bobby M., 210 Ariz. 279, 284,
¶ 22 (2005). We view the evidence in the light most favorable to sustaining
the court’s ruling and will affirm if supported by reasonable evidence.
Jordan C. v. Ariz. Dep’t of Econ. Sec., 223 Ariz. 86, 93, ¶ 18 (App. 2009). We
do not reweigh the evidence presented because “the resolution of
conflicting evidence is ‘uniquely the province of the juvenile court’ . . . even
when ‘sharply disputed’ facts exist.” Alma S. v. Dep’t of Child Safety, 245
Ariz. 146, 151, ¶ 18 (2018) (citations omitted).
1. Statutory Ground
¶9 When seeking termination based on out-of-home placement
for a cumulative period of fifteen months or longer, DCS must prove (1) it
made diligent efforts to provide appropriate reunification services, (2) the
child was in an out-of-home placement for at least fifteen months, (3)
Mother was unable to remedy the circumstances that caused D.C. to be in
such placement, and (4) a substantial likelihood existed that Mother would
not be capable of exercising proper and effective parental care and control
in the near future. A.R.S. § 8-533(B)(8)(c). Mother argues the court lacked
reasonable evidence to find she failed to remedy the circumstances leading
to D.C.’s placement and could not parent D.C. in the near future.
¶10 The juvenile court found that Mother was unable to remedy
the circumstances leading to D.C.’s placement, including the “instability
that is attendant with substance abuse.” The court noted that Mother
remained with and ultimately married Father in 2020, despite his
continuing struggle with substance abuse and her awareness that she
would be held to his level of progress. The court found that Mother
“fail[ed] to recognize the threat that Father’s substance abuse poses to
[D.C.]” and she continued to reside in the sober living home, rather than
trying to secure housing. The court stated the facility was “not a proper
environment for a young child” due to the “continuous turnover” of the
residents and possible exposure to substance abuse.
¶11 Second, the court found that Mother would be unable to
parent D.C. in the near future, questioning the permanence of her
newfound sobriety. The court explained that Mother had not yet
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BRANDI K., DAVID C. v. DCS, D.C.
Decision of the Court
demonstrated sobriety outside of the structured environment of the sober
living facility and had no plans to move out. The court reiterated its
concerns about Mother’s relationship with Father, and it noted Mother had
been unemployed for over ten years.
¶12 Mother argues she could remain in the sober living facility
and DCS did not make a showing that D.C. would not be allowed to live
there. But DCS presented evidence the facility would not be appropriate
housing for a child, even if children are allowed to live there. Teague
testified that DCS had concerns about transient individuals moving in and
out of the facility and the child’s possible exposure to substance abuse. She
also explained that DCS does not consider the facility to be “stable
housing,” which usually means the parent has their name on a lease.
¶13 In addition, Mother contends her willingness to expel Father
from the sober living facility after he relapsed shows she can protect D.C.
from Father’s substance abuse. But DCS presented evidence to the
contrary. Teague testified that Mother had been informed she would be
held to Father’s level of progress so long as they were a couple and living
together. Teague explained her concerns about Mother’s ability to maintain
her sobriety if exposed to Father’s substance abuse, and opined that Mother
does not understand the impact of Father’s substance abuse on D.C.
Because we do not reweigh the evidence on appeal, Alma S., 245 Ariz. at
151, ¶ 18, reasonable evidence supports termination based on fifteen
months’ time-in-care.
2. Best Interests
¶14 “Termination is in the child’s best interests if either: (1) the
child will benefit from severance; or (2) the child will be harmed if
severance is denied.” Id. at 150, ¶ 13. “[W]hen a current placement meets
the child’s needs, and the child’s prospective adoption is otherwise legally
possible and likely,” a court may find termination of parental rights is in
the child’s best interests. Id. at 151, ¶ 14 (quotation and citation omitted).
The court considers the “totality of the circumstances existing at the time of
the severance.” Id. at 150, ¶ 13.
¶15 Mother argues that DCS failed to describe the benefit or
detriment of termination under the totality of the circumstances. We
disagree.
¶16 Teague testified that D.C. is currently placed in a licensed
foster home that is meeting his needs, and that if “for some reason this
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BRANDI K., DAVID C. v. DCS, D.C.
Decision of the Court
placement falls through,” D.C. is “otherwise adoptable.” Teague also
opined that D.C. would be harmed if he reunified with his parents because
they have no home to which D.C. could return, Mother’s current
environment would potentially subject him to substance abuse, and he
would have no financial security. And the juvenile court expressly stated
it considered the “totality of the circumstances,” including Mother’s efforts
towards reunification and her bond with D.C. It explained D.C. would
benefit from severance because he is in an adoptive placement and requires
permanency. The court also found that D.C. would be harmed if it denied
severance because his parents had not made the necessary behavioral
changes and he would be living in an unstable environment. Because
reasonable evidence supports these findings, the court did not err in finding
that termination was in D.C.’s best interests.
B. Father’s Appeal
¶17 Father argues the juvenile court erred by (1) finding he lacked
good cause for missing the termination hearing and (2) denying his request
for a continuance. He does not contest the grounds for termination. We
review a court’s finding of whether good cause exists for failure to appear
for an abuse of discretion. Adrian E. v. Ariz. Dep’t of Econ. Sec., 215 Ariz. 96,
101, ¶ 15 (App. 2007). We will reverse only if the ruling was “manifestly
unreasonable, or exercised on untenable grounds, or for untenable
reasons.” Id. We review the grant or denial of a continuance for an abuse
of discretion. In re MH2003-000240, 206 Ariz. 367, 369, ¶ 10 (App. 2003).
¶18 Here, the juvenile court found that Father’s failure to appear
at the termination hearing was without good cause. A.R.S. § 8-863(C); Ariz.
R.P. Juv. Ct. 66(D)(2). To prove otherwise, Father was required to show that
“(1) mistake, inadvertence, surprise or excusable neglect exists and (2) a
meritorious defense to the claims exists.” Christy A. v. Ariz. Dep’t of Econ.
Sec., 217 Ariz. 299, 304, ¶ 16 (App. 2007); see also Trisha A. v. Dep’t of Child
Safety, 247 Ariz. 84, 89, ¶ 19 (2019). Father has not argued his failure to
appear was a mistake, a surprise, or inadvertent. In addition, he has not
argued excusable neglect or a meritorious defense to the motion for
termination. Thus, the court did not abuse its discretion.
¶19 Even assuming Father has implicitly asserted such matters by
stating he failed to attend the hearing because he was in an inpatient
treatment program for his substance abuse, the court acted within its
discretion in finding Father’s absence was without good cause. Father does
not argue he lacked notice of the hearing or claim he did not know his
failure to appear could result in termination. As DCS notes, Father did not
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Decision of the Court
claim he was unable to attend the termination hearing telephonically, and
he had called into all prior hearings going back to March 2020. Father
suggests that many inpatient facilities do not permit outgoing calls, but he
does not argue or present evidence he was prohibited from doing so.
¶20 Father also argues the juvenile court abused its discretion in
denying his request to continue the hearing, especially because the court
had previously granted a continuance for DCS. A parent may request to
continue a termination hearing if the request is “in writing” and “state[s]
with specificity the reasons for the continuance.” Ariz. R.P. Juv. Ct. 46(A),
(F). The court will grant the motion upon a showing of good cause and will
consider the child’s best interests. Id.; James A. v. Dep’t of Child Safety, 244
Ariz. 319, 322, ¶ 14 (App. 2018). Father waited until the hearing to request
a continuance. By contrast, DCS requested a continuance before the earlier
hearing, explained why it was necessary, and noted that none of the other
parties objected. Given the stark differences between the two motions, the
court did not abuse its discretion in denying Father’s request for
continuance.
CONCLUSION
¶21 Because neither parent has shown the juvenile court erred in
terminating their parental rights, we affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
7