Anthony S. 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 ANTHONY S., Appellant, v. ARIZONA DEPARTMENT OF ECONOMIC SECURITY, ANTHONY S., RENE S., Appellees. ) ) ) ) ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 06-24-010 PHILIP G. URRY,CLERK BY: GH 1 CA-JV 10-0019 DEPARTMENT A MEMORANDUM DECISION (Not for Publication Ariz. R.P. Juv. Ct. 103(G); ARCAP 28) Appeal from the Superior Court in Maricopa County Cause No. JD11098 The Honorable Jo Lynn Gentry-Lewis, Judge AFFIRMED Virginia Matté Attorney for Appellant Terry Goddard, Arizona Attorney General by Kathleen Skinner, Assistant Attorney General Attorneys for Appellees B A R K E R, Judge Phoenix Mesa ¶1 Anthony S. ( Father ) appeals the juvenile court s determination that termination of his parental rights was in his children s best interest. For the following reasons, we affirm. Facts and Procedural History 1 ¶2 Father is the biological father March 4, 2002, and Rene, born June 10, 2003. of Anthony, born On September 4, 2008, Child Protective Services ( CPS ) received a report that Father had been jailed a day earlier on an outstanding warrant for failure to pay child support with regard to minor children from another relationship. 2 Father left the children in the care of their paternal aunt without legal documentation. A friend that had lived in Father s home for about a week and a half reported maggots in the kitchen, hammers, clothes all over the floor at Father s home. nails, and dirty Both children had bug bites from gnats in the home, and they appeared malnourished and thin. The children s teeth were green and when the friend attempted to brush their teeth, the children cried because it was painful. children get Father put a lock on the refrigerator because the into everything, and he referred to them as 1 On appeal, we view the facts in the light most favorable to upholding the juvenile court s findings. Maricopa County Juv. Action No. JD-5312, 178 Ariz. 372, 376, 873 P.2d 710, 714 (App. 1994). 2 Father was in jail for approximately one month. He was again incarcerated in November 2009 for about one month on charges of unpaid child support. 2 animals. Following medical evaluations of the children, Anthony had a urinary tract infection and Rene had a tumor/cyst at the back of her neck and an abscess in her tongue. Rene had a habit of banging her head and had symptoms of autism. Father had noticed these symptoms two years earlier but had failed to obtain help for Rene. ¶3 The Arizona Department of Economic Security ( ADES ) filed a dependency September 15, 2008. petition regarding the children on The petition alleged that the children s mother had abandoned them to the care of Father in 2003. The petition further alleged that Father was unable to parent due to incarceration, medical neglect, and neglect. 3 On May 19, 2009, the juvenile court found the children dependent as to Father. When the case manager visited Father s home in July 2009 the backyard was not appropriate for children. down vehicle, chemicals a saw lying out, across the yard. At mechanical the There was a brokenparts, severance tools, hearing testified that these concerns had not been remedied. and Father Father used a mattress as a door between his home and the attached duplex apartment, and he agreed that the duplex was unsafe for children. 3 The petition also named John Doe as an alleged father, but Father s paternity was later established and John Doe was dismissed as a party. 3 ¶4 On September 3, 2009, ADES filed a motion to terminate the parental rights of Father to the children. termination alleged that Father was unable The motion for to discharge his parental responsibilities due to mental illness and a history of chronic substance substances and/or abuse of alcohol dangerous under drugs, Arizona ( A.R.S. ) section 8-533(B)(3) (Supp. 2009). controlled Revised Statutes The motion further alleged that termination was in the children s best interests because it would provide them with stability and permanency. ¶5 On January 6 and 7, 2010, the juvenile court held a contested severance hearing. At the severance hearing Father admitted to a forty-year drug history, but stated that he had only been an addict for twenty addiction as a disease. years. He referred to his Father admitted that he had used methamphetamines as recently as December 2, 2009, and that he smoked methamphetamines once a week for approximately four to five years prior to that date. Father agreed that parenting while using methamphetamines was not good, but admitted he had been doing it for the children s entire lives. any type 2008. of substance abuse treatment prior He never sought to September of In November 2009, Father entered inpatient treatment at Native American Connections to work on his substance addiction. At the severance hearing, Father had been clean approximately one month. 4 ¶6 Father testified that he made about $400 a month, which was not enough to obtain water at his residence. Father testified that he had problems with depression and estimated that he had been depressed for four years, but had never sought treatment and did not indicate to his case manager that he needed additional services. ¶7 The court found ADES had proven the mental illness or chronic substance abuse ground and that termination of Father s parental rights was in the children s best interests. The court further found the children were adoptable, that Anthony had a prospective adoptive placement, and that a prospective adoptive home had been identified for Rene. The court stated termination was in the children s best interests because [a]doption will allow the child to have a permanent, safe and loving home that is able to meet all of their educational, medical, social and developmental needs rather than linger in CPS custody waiting for their father to overcome his forty year addiction. On January 15, 2010, the court terminated Father s parental rights pursuant to A.R.S. § 8-533(B)(3). 4 ¶8 Father jurisdiction filed pursuant a to timely notice A.R.S. §§ of appeal. 8-235(A) We have (2007), 12- 120.21(A)(1) (2003), and 12-2101(B) (2003). 4 Mother s rights were terminated at the same hearing. 5 Discussion ¶9 Under A.R.S. § 8-533, a juvenile court may terminate parental rights upon finding one of the enumerated grounds is satisfied and that termination is in the best interests of the child. Maricopa County Juv. Action No. JS-501568, 177 Ariz. 571, 575, 869 P.2d 1224, 1228 (App. 1994). We review for an abuse of discretion and will reverse a severance order only if no reasonable evidence supports it. Jesus M. v. Ariz. Dep t of Econ. Sec., 203 Ariz. 278, 280, ¶ 4, 53 P.3d 203, 205 (App. 2002); see Pima County Juv. Action No. S-2460, 162 Ariz. 156, 158-59, 781 P.2d 634, 636-37 (App. 1989). We accept the juvenile court s findings of fact in support of severance unless they are clearly erroneous. Pima County Severance Action No. S- 1607, 147 Ariz. 237, 238, 709 P.2d 871, 872 (1985). To avoid termination, the parent must make more than a trivial or de minimus effort at remediation. Juv. Action No. JS-501568, 177 Ariz. at 576 n.1, 869 P.2d at 1229 n.1. ¶10 To terminate a parent s rights pursuant to § 8- 533(B)(3), the juvenile court must find by clear and convincing evidence [t]hat the parent is unable to discharge parental responsibilities because of mental illness, mental deficiency or a history of chronic abuse substances or alcohol and believe that the condition of there will 6 dangerous are drugs, reasonable continue for controlled grounds a to prolonged indeterminate sufficiency period. of the Father evidence does proving he not challenge suffered from the mental illness or chronic drug abuse that would probably continue for a prolonged, indeterminate period. 5 Instead, Father argues that termination of his parental rights was not in the children s best interests. See Maricopa County Juv. Action No. JS-500274, 167 Ariz. 1, 5, 804 P.2d 730, 734 (1990) (holding although the best interests of the child alone may not be sufficient to grant termination, they may be sufficient to deny termination ). Father emphasizes that the children have a relationship with him and that they enjoy his visits. Additionally, he argues that Rene is not in an adoptive placement and that she would become a legal orphan if an adoptive family cannot be found for her. Father also asserts that the substance abuse treatment seems to be working for him, and that he is taking appropriate steps to ensure that his recovery continues. ¶11 In considering the children s best interests, the court must determine how the children would benefit from the severance or be harmed by the continuation of their relationship with the parent. Id.; see also Mary Lou C. v. Ariz. Dep t of Econ. Sec., 207 Ariz. 43, 50, ¶ 19, 83 P.3d 43, 50 (App. 2004) 5 The record provides substantial evidence supporting this finding, including Father s admission to a forty-year drug history, his twenty years of addiction, and his untreated depression. 7 (holding the State need only show that the children will benefit from the severance). existence of adoptable, an or This can be demonstrated by proving the adoption by plan, demonstrating by showing that the placement is meeting their needs. the children children s are existing Mary Lou C., 207 Ariz. at 50, ¶ 19, 83 P.3d at 50. ¶12 Here, the record amply supports the juvenile court s finding that termination was in the children s best interests. The case manager testified that both children were adoptable. Although Anthony had a relationship with Father and knew who Father was, the case manager testified that the children were definitely in need of permanency as they had been in care since September of 2008. Additionally, Father would miss two to three consecutive visits with the children and then attend one. Both children reacted negatively to the uncertainty of whether they would see Father at the visits. At his last visit with the children before the hearing he showed up high on drugs. At the severance hearing Father had only been sober for approximately one month, and his case manager testified that giving Father time to maintain sobriety for six to nine months would keep the children out of a permanent home. Anthony s foster mother was willing to adopt him and ensure he had regular contact with Rene. both up to date Both children were doing well, they were with their immunizations 8 and had extensive dental work done. Anthony was excelling in school; Rene was toilet trained and her speech had improved. we conclude court s that reasonable determination that evidence termination Given this record, exists was to in support the the children s best interests. Conclusion ¶13 We do not consider lightly our role when affirming the permanent separation of children from their natural parent. See Maricopa County Juv. Action No. JS-6520, 157 Ariz. 238, 241, 756 P.2d 335, inflicted 338 on (App. 1988). children considered lightly. by However, those who the abuse destructive drugs is also toll not See Juv. Action No. JS-501568, 177 Ariz. at 580, 869 P.2d at 1233. Thus, our deference to the rights of parents can be superseded by the State s substantial interests in protecting children. Id. Parenting is not just procreation; it involves responsibility, hard work, and the ability to meet the needs of those children. unable to fulfill those Id. Those who are unwilling or obligations termination of their parental rights. 9 Id. risk the permanent ¶14 For the foregoing reasons, we affirm the juvenile court s termination of Father s parental rights and its finding that termination was in the children s best interests. /s/ _________________________________ DANIEL A. BARKER, Judge CONCURRING: /s/ _________________________________ PATRICIA A. OROZCO, Presiding Judge /s/ _________________________________ LAWRENCE F. WINTHROP, Judge 10
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