Opinion
No. 2 CA-JV 2015-0163
12-23-2015
JOHN N., Appellant, v. DEPARTMENT OF CHILD SAFETY AND N.N., Appellees.
COUNSEL Horne Slaton, PLLC, Scottsdale By Tom Horne Counsel for Appellant Mark Brnovich, Arizona Attorney General By Laura J. Huff, Assistant Attorney General, Tucson Counsel for Appellee Department of Child Safety
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f); Ariz. R. P. Juv. Ct. 103(G). Appeal from the Superior Court in Graham County
No. JD201400007
The Honorable D. Corey Sanders, Judge
AFFIRMED
COUNSEL Horne Slaton, PLLC, Scottsdale
By Tom Horne
Counsel for Appellant Mark Brnovich, Arizona Attorney General
By Laura J. Huff, Assistant Attorney General, Tucson
Counsel for Appellee Department of Child Safety
MEMORANDUM DECISION
Presiding Judge Howard authored the decision of the Court, in which Judge Espinosa and Judge Staring concurred. HOWARD, Presiding Judge:
¶1 John N. appeals from the juvenile court's August 11, 2015, order terminating his parental rights to his daughter, N.N., born in 2014, on the grounds of both nine- and six-month out-of-home placement. See A.R.S. § 8-533(B)(8)(a), (b). John contends the evidence was insufficient to support the termination of his rights. We affirm for the reasons stated below.
The juvenile court also terminated the parental rights of N.N.'s mother, who is not a party to this appeal. Although the termination order provides "the parent-child relationship between [mother] and [father] and [N.N.], be and is terminated under A.R.S. § 8-533(B)(8)(b), 8-533(B)(8)(a), 8-533(B)(3), & 8-533(B)," it is clear from the rest of the order and the juvenile court's June 26 under-advisement ruling that John's rights were terminated pursuant to § 8-533(B)(8)(a) and (b), and not subsection (B)(3). John does not challenge this aspect of the court's ruling on appeal.
¶2 A juvenile court may terminate a parent's rights if it finds by clear and convincing evidence that any statutory ground for severance exists and by a preponderance of the evidence that severance is in the child's best interests. A.R.S. §§ 8-533(B), 8-537(B); Kent K. v. Bobby M., 210 Ariz. 279, ¶ 41, 110 P.3d 1013, 1022 (2005). "On review, . . . we will accept the juvenile court's findings of fact unless no reasonable evidence supports those findings, and we will affirm a severance order unless it is clearly erroneous." Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, ¶ 4, 53 P.3d 203, 205 (App. 2002).
¶3 We view the evidence in the light most favorable to upholding the juvenile court's ruling. See Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, ¶ 20, 995 P.2d 682, 686 (2000). N.N. was born with "medical complications" and tested positive for opiates at birth. She was immediately removed from the parents' custody and the Department of Child Safety (DCS) filed a dependency petition alleging she was dependent as to John because he had failed to protect her—despite his "knowledge of mother's past history with substance abuse," he did not question the mother's failure to "receiv[e] appropriate medical care and prenatal care during her pregnancy." The petition also alleged that John had a "prior history with alcohol use" and he had not "received any treatment for his issues regarding alcohol or substance abuse."
¶4 In June 2014, John pled no contest to the dependency petition and acknowledged he had multiple prior convictions for driving while under the influence of an intoxicant and had tested positive for drugs (heroin, codeine and morphine) in May 2014. The juvenile court adjudicated N.N. dependent as to John and imposed a concurrent case plan of family reunification and severance and adoption. The court also admonished John that "substantially neglecting or willfully refusing to participate in reunification services would be grounds for termination of parental rights and could change the case plan to severance and adoption." DCS offered John a variety of reunification services, including substance abuse treatment, parenting classes, parent-child relationship therapy, supervised parenting time, urinalysis and hair follicle testing, and clinical family assessment. John was also required to "remain sober and seek treatment for his substance abuse issue," parent N.N. safely and appropriately and protect her from harm, and maintain a source of income and a stable and safe home.
¶5 Due to John's failure to promptly, consistently, and willingly participate in services, the juvenile court changed the case plan to severance and adoption in January 2015. DCS filed a motion to terminate John's parental rights based on grounds of nine- and six-month out-of-home placement and history of substance abuse. Following a three-day contested severance hearing held in May and June 2015, the court terminated John's parental rights to N.N. on the out-of-home placement grounds. See § 8-533(B)(8)(a), (b).
By way of example, John "shave[d] his entire body and face each time there [was] a hair follicle test," and only after four additional referrals for hair follicle tests following the positive results in May 2014 did he willingly participate in March 2015.
¶6 On appeal, John contends the juvenile court erroneously found he had been unable to remedy the circumstances that caused the out-of-home placement—the only challenge he has raised to the termination order. He maintains because he engaged in services during the eight months before the severance hearing, to wit, that he "complied with the court order to submit to testing to prove that he was free of drugs . . . for the relevant period leading up to" the court's June 2015 under-advisement ruling, he did not "substantially neglect[] or wilfully refuse[] to remedy the circumstances that cause the child to be in an out-of-home placement." See A.R.S. § 8-533(B)(8)(a), (b). Conceding there "may arguably have been some basis for [the court's finding that he had not complied with the case plan] for the period prior to November 2014," John nonetheless argues his parental rights should not have been terminated.
To the extent John also suggests the foster parents are not a suitable placement for N.N., we note that such a claim is not relevant to the sole issue before this court, to wit, whether the juvenile court properly terminated his parental rights, and that John lacks standing to raise such a claim. See Sands v. Sands, 157 Ariz. 322, 323-24, 757 P.2d 126, 127-28 (App. 1988) (parent whose rights have been terminated lacks standing to challenge child's placement). --------
¶7 However, the evidence showed that John failed to participate substantially in reunification services, including his failure to regularly participate in required drug testing. More specifically, the record shows he did not substantially begin to comply with the case plan requirements until DCS moved to terminate his parental rights in January 2015—after having failed to participate in services consistently for the first nine months of the case plan. The juvenile court correctly noted that, "[n]either parent made serious reunification efforts with [N.N.] until after the Court changed the child's placement [from the paternal grandparents] to a licensed foster home in November 2014," and further found that John "began to engage in counseling and parenting classes about a month after the filing of the termination petition [in January 2015]."
¶8 Such a long delay before participation in services, even if that recent participation appears to be successful, supports a finding that a parent has not made a good-faith effort within the statutory time frame and thus that termination of parental rights is warranted. See In re Maricopa Cnty. Juv. Action No. JS-501568, 177 Ariz. 571, 577, 869 P.2d 1224, 1230 (App. 1994) (finding parent's successful efforts at rehabilitation during eight months prior to trial "'too little, too late'" in light of substantial neglect to remedy addiction for more than a year while child in out-of-home care); see also § 8-533(B)(8)(b) (requiring parent "to participate in reunification services offered by the department"). "Leaving the window of opportunity for remediation open indefinitely is not necessary, nor do we think that it is in the child's or the parent's best interests." Maricopa Cnty. No. JS-501568, 177 Ariz. at 577, 869 P.2d at 1230.
¶9 To the extent John suggests we reweigh the evidence, we will not do so. "We are mindful that our function on review is not to reweigh the evidence before the juvenile court or supersede its assessment of the evidence with our own." Ariz. Dep't of Econ. Sec. v. Oscar O., 209 Ariz. 332, ¶ 14, 100 P.3d 943, 947 (App. 2004). Although the court was presented with evidence John had made progress toward the case plan goals, it was also presented with significant evidence of his non-compliance for the first nine months of the case plan. In addition, the evidence showed John's ongoing refusal to acknowledge his substance abuse problem and addiction to prescription drugs, which reportedly "hinder[ed] his ability to remedy the circumstances that brought [N.N.] into care."
¶10 The record contains reasonable evidence to support the juvenile court's findings with respect to severance based on out-of-home placement. No purpose would be served in restating the court's ruling on these issues in its entirety. Rather, because reasonable evidence supports the court's findings of fact and because we see no error of law in its order, we adopt the ruling as it applies to John. See Jesus M., 203 Ariz. 278, ¶ 16, 53 P.3d at 207-08, citing State v. Whipple, 177 Ariz. 272, 274, 866 P.2d 1358, 1360 (App. 1993).
¶11 For the reasons stated, we conclude ample evidence in the record allowed the juvenile court to conclude John had been unable to remedy the circumstances that caused the out-of-home placement. We therefore affirm the court's order terminating John's parental rights to N.N.