Opinion
No. 1 CA-JV 17-0560
07-26-2018
TED D., Appellant, v. DEPARTMENT OF CHILD SAFETY, T.D., Appellees.
COUNSEL John L. Popilek, PC, Scottsdale By John L. Popilek Counsel for Appellant Arizona Attorney General's Office, Tucson By Autumn Spritzer Counsel for Appellee Department of Child Safety
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. JD31840
The Honorable Alison S. Bachus, Judge
AFFIRMED
COUNSEL John L. Popilek, PC, Scottsdale
By John L. Popilek
Counsel for Appellant Arizona Attorney General's Office, Tucson
By Autumn Spritzer
Counsel for Appellee Department of Child Safety
MEMORANDUM DECISION
Judge Peter B. Swann delivered the decision of the court, in which Presiding Judge Jon W. Thompson and Judge James P. Beene joined. SWANN, Judge:
¶1 Ted D. ("Father") appeals the juvenile court's order terminating his parental rights to T.D. on the statutory ground of fifteen months' time-in-care under A.R.S. § 8-533(B)(8)(c). Father's sole argument on appeal is that the Department of Child Safety ("Department") presented insufficient evidence to support the statutory ground for severance. We hold that the state met its burden by clear and convincing evidence, and we therefore affirm.
Mother's rights to T.D. were also terminated in these proceedings, but she is not a party to this appeal.
FACTS AND PROCEDURAL HISTORY
¶2 Father is the biological parent of T.D., born in May 2014. When T.D. was six months old, Father moved to Colorado to start a new job. In Colorado, Father was involved in a car accident while driving under the influence. The accident was Father's third instance of driving under the influence, and he was convicted of vehicular assault. The court sentenced Father to five years' imprisonment. While Father was serving his sentence, T.D.'s mother was arrested for shoplifting while with T.D. In December 2015, the Department took custody of T.D. and placed him with his maternal great aunt. The Department filed a dependency petition, alleging T.D. dependent as to Father for being unable to provide T.D. with effective parental care and control due to his incarceration, and the court set a hearing.
¶3 Given Father's incarceration in Colorado, the Department recommended that he access drug, alcohol, and mental health services through the Colorado Department of Corrections. While incarcerated, Father wrote letters, sent pictures, and maintained communication with T.D. In May 2016, Father was released to a halfway-house where he participated in Intervention Community Correction Services. While at the halfway-house, Father once tampered with his drug test and had five major incident reports for alcohol abuse. After successfully completing the Intervention Community Correction Services program, Father was released on house arrest and then on parole. From December 2016 to May 2017, Father provided regular negative drug samples. In June 2017, the Department provided him with a list of community parenting classes that he could complete in Colorado.
¶4 In October 2017, Father came to Arizona to undergo a psychological evaluation and bonding assessment provided by the Department. Dr. Daniel Juliano, who performed the psychological evaluation, received reports indicating that Father was attending outpatient groups for relapse prevention of alcohol, that he was an active member with regular participation, and that he had been demonstrating sobriety since his last relapse in Fall 2016. Father described his use of alcohol as "just binge drinking" and admitted that he had consumed alcohol "recently." Dr. Juliano recommended "relapse prevention and supportive counseling as well as possible specific trauma treatment," and stated that "[t]he binge quality of [Father's] drinking . . . is a risk factor to a child."
¶5 Dr. Al Silberman, who conducted the bonding assessment, opined that Father claimed to love his child "but it appears he has much more of a problem with alcohol than he can acknowledge," and Dr. Silberman ultimately recommended "a full year of sobriety" before reunification could take place.
¶6 The court held the severance trial in November 2017. Father testified that in order to transfer his parole to Arizona, he would need to be in compliance with his parole conditions, which included abstaining from alcohol and controlled substances. Father further testified that he participated in drug testing, there had been no issues with the tests, and that he had been able to maintain steady living conditions and employment. The Department questioned Father concerning his most recent use of alcohol, and Father stated that it was "a possibility" that he tested positive for alcohol and cocaine in August 2017. The report from Father's parole officer indicated that Father had a positive drug test that month. Father also admitted to relapsing since his release from prison, but he mentioned that relapse "is a part of recovery."
The court informed Father that he could invoke his Fifth Amendment constitutional right against self-incrimination. Nonetheless, Father proceeded to describe his use of illegal substances while on parole.
¶7 The case manager testified that Father neither enrolled in nor completed a parenting class. She further mentioned that the Department was concerned about Father's ability to parent, particularly due to his "pattern of behavior with substance abuse" and that his relapses could cause him to become "incapacitated to be able to properly care for a young child." Additionally, she testified that T.D. has been placed with a family placement who is meeting his needs and that Dr. Silberman recommended that the placement continue "given concerns with Father's trauma history and history of relapses and guardedness regarding his own recovery."
¶8 The court found that the Department had proven the statutory ground for severance by clear and convincing evidence and that severance was in T.D.'s best interests. Father appeals.
Father does not challenge the court's best-interests finding. We therefore do not address it. --------
DISCUSSION
¶9 To justify severance of the parent-child relationship, the court must find that one statutory ground under A.R.S. § 8-533 has been met by clear and convincing evidence, and that severance is in the child's best interests by a preponderance of the evidence. Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, 249, ¶ 12 (2000). We accept the court's findings unless they are not supported by reasonable evidence, and we affirm the severance order unless it is clearly erroneous. Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, 280, ¶ 4 (App. 2002). We view the evidence in the light most favorable to upholding the court's determination. Denise R. v. Ariz. Dep't of Econ. Sec., 221 Ariz. 92, 97, ¶ 20 (App. 2009).
¶10 A court may terminate parental rights in accordance with A.R.S. § 8-533(B)(8)(c) when a child has been in court-ordered, out-of-home placement for a cumulative total period of at least fifteen months, the parent has been unable to remedy the "circumstances" that led to the out-of-home placement, and there is a substantial likelihood that the parent will be incapable of providing "proper and effective parental care and control in the near future." We interpret "circumstances" under A.R.S. § 8-533(B)(8)(c) to mean those existing at the time of the severance. See Marina P. v. Ariz. Dep't of Econ. Sec., 214 Ariz. 326, 330, ¶ 22 (App. 2007).
¶11 Here, reasonable evidence supports the court's findings that the requirements of A.R.S. § 8-533(B)(8)(c) were met. First, the Department presented evidence that by the time of the severance trial, T.D. had been in out-of-home placement for at least two years.
¶12 Second, the Department proved that Father has been unable to remedy the circumstances that led to out-of-home placement. Though Father was incarcerated in Colorado, the Department directed that Father complete services addressing his alcohol and substance abuse while incarcerated and then through parole. Father complied with services while incarcerated, but upon his release, he had several incidents involving alcohol, and drugs. At one point, Father tampered with his drug test. Further, Father's parole officer stated that Father would not be able to transfer to Arizona until he was in full compliance with his parole. Three months before the severance trial and while he was still on parole, Father had another incident concerning alcohol and substance abuse. And Father also failed to comply with the Department's recommendation concerning parenting classes. Father's continued use of controlled substances and his failure to comply with his terms of parole by the time of the severance trial make it unlikely that Father will be able to remedy the circumstances that led to out-of-home placement.
¶13 Finally, several factors presented by the Department support a finding that Father would be unable to provide effective parental care and control in the near future, including — Father's lack of participation in parenting classes, his alcohol and drug abuse use in August 2017, the ongoing status of his parole, and Dr. Silberman's concerns and recommendation that Father remain completely sober for a full year before being reunified with T.D.
¶14 We also disagree with Father's argument that Jordan C. v. Arizona Department of Economic Security, 223 Ariz. 86 (App. 2009), is controlling. In Jordan C., mother maintained a sober lifestyle for 14 months, and we reversed the court's severance of the mother's parental rights because the only evidence the Department presented in support of its argument that she would be unable to remedy the circumstances in the near future was related to one child's lack of progress "in making a suitable adjustment." Id. at 91, 97-99, ¶¶ 14, 33, 37. Here, the Department presented evidence of several impediments existing at the time of trial that indicated a substantial likelihood that Father would be incapable of providing proper and effective parental care and control in the near future. Father failed to maintain a lifestyle free from substance abuse for a prolonged period of time, he abused alcohol and controlled substances three months before the severance trial, he did not complete his parenting classes, and Dr. Silberman opined that Father "has much more of a problem with alcohol than he can acknowledge."
¶15 Accordingly, we hold that reasonable evidence supports the court's severance of Father's parental rights to T.D. under A.R.S. § 8-533(B)(8)(c).
CONCLUSION
¶16 For the foregoing reasons, we affirm.