Jeremy C. v. ADES et al

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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 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE JEREMY C., ) ) Appellant, ) ) v. ) ) ARIZONA DEPARTMENT OF ECONOMIC ) SECURITY, KOEL C., LAURA B., ) KATRINA B., ) ) Appellees. ) ) __________________________________) DIVISION ONE FILED: 07-27-2010 PHILIP G. URRY,CLERK BY: GH No. 1 CA-JV 09-0225 DEPARTMENT D MEMORANDUM DECISION (Not for Publication 103(G) Ariz.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. JD 507171 The Honorable Linda A. Akers, Judge AFFIRMED Robert D. Rosanelli, Attorney for Appellant Phoenix D O W N I E, Judge ¶1 Jeremy C. appeals from terminating his parental rights. affirm. the juvenile court s order For the following reasons, we FACTUAL AND PROCEDURAL HISTORY 1 Appellant is the father of K.C., who was born in 2006. 2 ¶2 Appellant was around to parent or participate in parenting for the first seven months of K.C. s life and then had some incarceration problems . . . [s]o it was kind of an off and on thing. K.C. has lived with her maternal grandmother ( grandmother ) since she was six months old; grandmother cared for her extensively before that time as well. Appellant visited his daughter when he was not incarcerated, but did not provide financial support because all of his money went to drugs. ¶3 In March 2008, grandmother filed a dependency petition, alleging that appellant resided in a DOC half-way house and was unable to effectively because of his drug addiction. and safely parent K.C. She asked the court to place K.C. in the care, custody and control of the Arizona Department of Economic Security ( ADES ) and in her physical custody. ¶4 At the preliminary protective contested the allegations of dependency. hearing, appellant The court appointed a guardian ad litem ( GAL ) for K.C. and counsel for appellant; ADES joined in the petition. The court placed K.C. in 1 We view the facts in the light most favorable to affirming the juvenile court s order. Denise R. v. Ariz. Dep t of Econ. Sec., 221 Ariz. 92, 95, ¶ 10, 210 P.3d 1263, 1266 (App. 2009) (citation omitted). 2 K.C. s mother is not a party to this consented to termination of her parental rights. 2 appeal. She grandmother s physical custody. Because the case plan was for family reunification, the court ordered appellant to participate in services, including a psychological examination, substance abuse programming and urinalysis testing ( UA ), and parent aide services. The court allowed appellant to visit with K.C. at ADES s discretion for a minimum of four hours weekly. During a mediation in April 2008, appellant agreed to submit the issue of dependency to the court. The juvenile court subsequently found K.C. dependent as to appellant. ¶5 plan. Appellant failed to fully participate in the case Visitation services were closed because he missed so many visits. Appellant inconsistently submitted to UA testing and went months without testing at all. He completed two months of intensive outpatient substance abuse programming, but tested positive failed on to every drug participate test in conducted during aftercare that services. time and Appellant completed a psychological evaluation. ¶6 In November 2008, severance and adoption. appellant s parental the case plan was changed to In December, the GAL moved to terminate rights. After a contested severance hearing, the court terminated appellant s parental rights in a signed order appealed. We filed have November 23, jurisdiction 2009. pursuant Statutes ( A.R.S. ) section 8-235(A) (2007). 3 Appellant to timely Arizona Revised DISCUSSION ¶7 if The juvenile court may terminate parental rights only clear and convincing evidence supports such a Denise R., 221 Ariz. at 93, ¶ 2, 210 P.3d at 1264. decision. Clear and convincing evidence is that which makes the alleged facts highly probable or reasonably certain. ¶8 Id. Section 8-533(B)(8) (2007) allows parental rights to be terminated when [T]he agency responsible for the care of the child has made a diligent effort to provide appropriate reunification services and that one of the following circumstances exist: (a) The child has been in an outof-home placement for a cumulative total period of nine months or longer . . . and the parent has substantially neglected or willfully refused to remedy the circumstances that cause the child to be in an out-ofhome placement. . . . . (c) The child has been in an outof-home placement for a cumulative total period of fifteen months or longer . . . [and] the parent has been unable to remedy the circumstances that cause the child to be in an out-of-home placement and there is a substantial likelihood that the parent will not be capable of exercising proper and effective parental care 4 and control future. ¶9 in in the near The juvenile court relied on both of these provisions severing termination severance appellant s pursuant when responsibilities dangerous a to It A.R.S. person because drugs, rights. 3 is of controlled also 8-533(B)(3), unable a found to history substances which discharge of . grounds . chronic . and for allows parental abuse there of are reasonable grounds to believe that the condition will continue for a prolonged indeterminate period. ¶10 Appellant contends: (1) there is insufficient evidence that he substantially neglected, willfully refused, or was unable to remedy the circumstances that required K.C. s outof-home placement; and (2) his history of drug abuse did not warrant severance. 1. ¶11 We disagree. Circumstances Leading to Placement Appellant claims his good-faith effort to participate in reunification services precludes termination of his parental Juvenile rights. Action No. See In re JS-501568, 177 Appeal Ariz. of 571, Maricopa 576, County 869 P.2d 1224, 1229 (App. 1994) ( [P]arents who make appreciable, good faith efforts to comply with remedial programs . . . will not be 3 Appellant does not deny that K.C. had been in an out-ofhome placement for more than fifteen months at the time of the severance hearing. 5 found to have circumstances substantially that caused the neglected out-of-home to remedy placement, the even if they cannot completely overcome their difficulties . . . within one year after completion [placement]. ). of outpatient Appellant substance points abuse to his treatment, participation in the psychological examination, UA testing, and visitation as proof he participated impeded by incarceration. in services when not Appellant also claims he has not abused illegal substances since February 2009, has been employed since his last incarceration, and has an apartment suitable for K.C., thus, demonstrating he has remedied the situation that required her out-of-home placement. ¶12 Appellant was ordered to participate in UA testing beginning in April 2008, but he first tested on February 13, 2009. He consistently tested through March 13, but then tested here and Appellant there, did not until he stopped participate in altogether substance abuse in June. aftercare because he had a falling out with a program manager. He missed fifty to sixty percent of his scheduled visits with K.C., even though ADES provided taxi service for him. Appellant spent significant time incarcerated on assault, domestic violence, and possession and sale of drug charges before K.C. s birth, and was incarcerated for a total of twenty-one months between her birth and the severance hearing. 6 ¶13 At the hearing, appellant testified he had lived in four, five, six places since March 2008 and had lived since February 2009 with a woman who had an open Child Protective Services case--a reunifying fact with demonstrating he acknowledged K.C. sobriety Appellant through UA was a also testing deterrent understood was to that required for reunification but had no good reason why he stopped testing in June 2009. Appellant testified he had been continuously employed since March 2009, though he never provided proof because ADES never requested offered no it. real In spite excuse of for that failing employment, appellant to financial provide assistance to his daughter. ¶14 Based could on reasonably neglected causing or record conclude willfully K.C. s substantial the that refused out-of-home likelihood presented, that juvenile appellant to remedy placement he the and would substantially the that not court be circumstances there was capable a of exercising proper and effective parental care and control in the near future. 2. ¶15 that Drug Abuse Appellant claims he is no longer drug dependent and the determination he cannot discharge responsibilities is unfounded and speculative. otherwise. 7 his parental We conclude ¶16 from Appellant admitted using methamphetamine consistently the early 1990 s until the end of November marijuana from the late 1980 s until July 2008. 2008 and He testified he had brief periods of sobriety, but always returned to drug use. Appellant claimed he no longer had a drive to want to use drugs, but admitted he was not showing that commitment through UAs, through drug treatment and through all the requirements of [his] case plan. Instead, he said he had a personal plan to remain drug-free. ¶17 An evaluating psychologist characterized appellant as a person who is impulsive, acts out and whose drug use has lead [sic] to severe impairment. Although the psychological report indicated appellant was motivated for treatment and wants to make changes, the psychologist opined that appellant s drug use, domestic violence . . . time spent in jail . . . anger and aggression would interfere with his ability to parent. The psychologist concluded appellant was not ready to parent his child. ¶18 We do not re-weigh the evidence on appeal. Rather, we consider whether the court had before it evidence upon which an unprejudiced mind might reasonably have reached the same conclusion. Denise R., 221 Ariz. at 94, ¶ 6, 210 P.3d at 1265. Although conflicting testimony was presented at the severance hearing, the juvenile court was in the best position to weigh 8 the evidence, observe the parties, judge witnesses, and make appropriate findings. the credibility of Jesus M. v. Ariz. Dep t of Econ. Sec., 203 Ariz. 278, 280, ¶ 4, 53 P.3d 203, 205 (App. 2002) (citation omitted). The court did not err in terminating appellant s parental rights pursuant to A.R.S. § 8533(B)(3). CONCLUSION ¶19 We affirm the juvenile court s order terminating appellant s parental rights. /s/ MARGARET H. DOWNIE, Judge CONCURRING: /s/ MAURICE PORTLEY, Presiding Judge /s/ PATRICIA A. OROZCO, Judge 9

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