Timothy G v. ADES

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 DIVISION ONE FILED: 03/15/2012 RUTH A. WILLINGHAM, CLERK BY: DLL IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE TIMOTHY G., ) ) Appellant, ) ) v. ) ) ARIZONA DEPARTMENT OF ECONOMIC ) SECURITY, JAYDEN G., ) ) Appellees. ) ) __________________________________) No. 1 CA-JV 11-0122 DEPARTMENT C MEMORANDUM DECISION (Not for Publication 103(G) Ariz. R.P. Juv. Ct.; Rule 28 ARCAP) Appeal from the Superior Court in Maricopa County Cause No. JD508026 The Honorable Raymond P. Lee, Judge (Retired) AFFIRMED Robert D. Rosanelli, Attorney for Appellant Phoenix Thomas C. Horne, Arizona Attorney General By Laura J. Huff, Assistant Attorney General Attorneys for Appellee Arizona Department of Economic Security Tucson D O W N I E, Judge ¶1 Timothy G. ( Father ) appeals the termination of his parental rights. For the following reasons, we affirm. FACTS AND PROCEDURAL HISTORY 1 ¶2 J.G., born in April 2008, is the biological child of Father and A.J. (collectively, the parents ). 2 Because J.G. was diagnosed with failure to thrive and significant developmental delays, his intervention parents, pediatrician referred program specialty however, appointments and and failed mother to told the parents medical attend the to an early services. 3 The several pediatrician specialty J.G. was developmentally normal and ate everything. ¶3 In June 2009, Child Protective Services ( CPS ) received an allegation of neglect and contacted the parents, who agreed to take J.G. to a hospital for assessment. immediately hospitalized for ten days. J.G. was Physicians inserted a nasogastric feeding tube ( NG tube ), which was used several times each day to ensure J.G. received proper nourishment and 1 We view the evidence in the light most favorable to affirming the juvenile court s decision. See Michael J. v. Ariz. Dep t of Econ. Sec., 196 Ariz. 246, 250, ¶ 20, 995 P.2d 682, 686 (2000) (citation omitted). 2 A.J. is not a party to this appeal. We reference her only as necessary to develop the issues on appeal. 3 Father and J.G. both have DiGeorge s Syndrome, a chromosomal abnormality with a range of effects, including mild to severe mental retardation, growth retardation, feeding problems, and cardiac, kidney and cleft palate defects. J.G. was also diagnosed with cerebral palsy and autism. 2 gained weight. tube. CPS The parents received instruction about the NG services, initially but planned changed the to plan offer because intensive the in home parents were distracted and not attentive, 4 did not actively participate in J.G. s care in the hospital, and could not independently insert the NG tube. In July 2009, the Arizona Department of Economic Security ( ADES ) filed a dependency petition, alleging, inter alia, that Father was unable to parent J.G. based on his failure to appropriately address the child s weight issues, inability to use the NG tube, and his own developmental disabilities, which impaired his motivation level and consistent follow through to meet J.G. s dependent. special needs. The juvenile court found J.G. The initial case plan was for family reunification. Father agreed to participate in parent aide services, training for the NG tube, and a behavioral health intake to determine his need for additional services. ¶4 J.G. continued to express no interest in food and had difficulty chewing. A gastrointestinal feeding tube ( G tube ) was inserted, and a feeding journal documented specific times and amounts of food J.G. needed 4 to sustain his life. His Hospital staff had difficulty waking the parents to participate in feedings. The parents could not accurately report J.G. s calorie intake and minimized his developmental delays and failure to gain weight. They also played video games, ate J.G. s food, and were caught fooling around in the child s hospital room. 3 structured meal times could take up to two hours to complete, and he threw up if fed too fast. ¶5 Parent step-by-step aides provided instructions to repetitive, Father about how to hands-on, feed J.G. orally and through the G tube, and how to clean the G tube to prevent infection. The parents, though, [c]onsistently fed J.G. 1/4 as little as to 1/3 the total ounces needed to sustain life, gave him chips ( a definite choking hazard ), and relied supervised on the foster visits. parent Father to supply also formula failed to during take his responsibility [to feed J.G.] seriously and missed parenting aide sessions or cut them short. was not particularly engaged When he was present, Father or participate in the sessions. proactive and often did not Parenting aides reported Father would fix food for himself, sit on the couch, and observe or sleep during the sessions. required When constant Father prompting, participated in reminders, and feedings, he guidance. Several times, he attempted to insert a G tube that was unsanitary due to visible old food particles and mold. ¶6 Parent aides also instructed Father about J.G. s developmental stages, including age appropriate play and how to engage him with activities. those suggestions, he Although Father was receptive to lacked follow required additional direction. 4 through and always ¶7 In October 2010, ADES changed the case plan to severance and adoption and filed a petition to sever Father s parental rights pursuant to Arizona Revised Statutes ( A.R.S. ) section 8-533(B)(8)(c). ADES alleged Father did not understand the significance of J.G. s illness or the special attention to detail and planning necessary to meet his needs, could not independently clean and insert the G tube, failed to participate in a behavioral health intake, and was unable to meet J.G. s basic needs because he had no consistent source of income. ¶8 After a four-day contested terminated Father s parental rights. hearing, the court Father timely appealed. We have jurisdiction pursuant to A.R.S. § 8-235. DISCUSSION ¶9 We will not disturb the juvenile court s disposition absent an abuse of discretion or unless the court s findings of fact were evidence clearly to support erroneous, them. i.e. there Maricopa is County no Juv. reasonable Action No. JV-132905, 186 Ariz. 607, 609, 925 P.2d 748, 750 (App. 1996) (citations omitted); see also Mary Lou C. v. Ariz. Dep't of Econ. Sec., 207 Ariz. 43, 47, ¶ 8, 83 P.3d 43, 47 (App. 2004) (because the juvenile court is in the best position to weigh the evidence, judge the credibility of witnesses, and make appropriate factual findings, we do not reweigh evidence, but 5 consider only whether substantial evidence supports the court s ruling). ¶10 Before severing parental rights, ADES must prove by clear and convincing evidence that at least one statutory ground for severance exists and that it made reasonable efforts preserve the family or that such efforts would be futile. to Ariz. Rev. Stat. § 8-533(B)(8); see also Mary Ellen C. v. Ariz. Dep t of Econ. Sec., 193 Ariz. 185, 193, ¶ 42, 971 P.2d 1046, 1054 (App. 1999). with the Reasonable time and efforts opportunity include to providing participate in a parent programs designed to improve the parent s ability to care for the child. Mary Ellen (citation C., 193 omitted). conceivable measures. service Ariz. at 192, ¶ ADES, though, or undertake 37, need 971 not futile P.2d provide at 1053 every rehabilitative Id. at 187, 192, ¶¶ 1, 37, 971 P.2d at 1048, 1053 (citation omitted). ¶11 Father s only argument on appeal is that ADES failed to provide appropriate reunification services. Specifically, he contends ADES did not have [him] psychologically evaluated to determine his level of functioning and therefore could not be fully informed of his impairment or tailor services to meet his needs. He further contends ADES was less than diligent because it failed to properly train its parent aides to deal 6 with his specific disability. The record does not support Father s contentions. ¶12 Father himself hindered the agency s attempt to tailor services to meet his specific needs by failing to participate in a behavioral health intake offered for that purpose. 5 Additionally, Father s participation in parent aide services was sporadic. ¶13 Although ADES did not tell parent aides Father s exact diagnosis or IQ, usually conveyed. aides testified an aide testified such information is not More importantly, two of Father s parenting they were not hindered in offering services because they conduct their own assessment not based on any kind of diagnosis and adapt their teaching methods accordingly. Father s aides had experience working with developmentally disabled clients and testified that the teaching methods they used -- repetitive, hands-on, step-by-step instructions -- were the best Despite method those to teach methods, the someone aides with DiGeorge testified Father Syndrome. required constant reminding . . . prompting, [and] suggestions and that every session was essentially like starting over. And although ADES provided more than a year of parent aide services, 5 The fact Father scheduled the initial appointment and rescheduled it several times belies any suggestion he required assistance to follow up on the referral for behavioral health services. 7 Father was unable developmental familiar to perform disabilities with DiGeorge basic case Syndrome child manager care and explained duties. A a geneticist that additional services would be futile because if Father had not gotten it at this point, [he is] not going to get it. ¶14 Substantial determination that evidence ADES made supports reasonable the juvenile court s reunification efforts and that additional services for Father would be futile. CONCLUSION ¶15 We affirm the juvenile court s order terminating Father s parental rights. /s/ MARGARET H. DOWNIE, Judge CONCURRING: /s/ PATRICIA K. NORRIS, Presiding Judge /s/ MAURICE PORTLEY, Judge 8

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