David T. v. ADES/Ryan H.
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DIVISION ONE FILED: 06/16/2011 RUTH A. WILLINGHAM, CLERK BY: DLL IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE DAVID T. ) ) Appellant, ) ) v. ) ) ARIZONA DEPARTMENT OF ECONOMIC ) SECURITY, RYAN H., ) ) Appellees. ) ) __________________________________) The Margaret court, H. Presiding Downie and Judge No. 1 CA-JV 10-0155 DEPARTMENT C DECISION ORDER Daniel Michael J. A. Brown, Barker and Judges participating, has considered this appeal, which comes to us on remand from the Arizona Supreme Court. David T. ( Father ) appeals the termination of his parental rights to son Ryan. A detailed summary of facts appears in our earlier decision resolving an mother. See appeal filed Krystle T. by Krystle v. Ariz. T. ( Mother ), Dep t of Ryan s Econ. Sec., 1 CA-JV 10-0155, 2011 WL 1259653 (Ariz. App. Apr. 5, 2011) (mem. decision). The facts substantially the same. relevant to Father s appeal are Father s legal arguments also largely track those resolved in Mother s appeal. See id. For the reasons articulated in Krystle T., we find no error in the juvenile court s decision to proceed in absentia after denying the parents request to appear alternatively, for a continuance. Though the court allowed Father telephonically, or See id. at 4-5, ¶¶ 26-31. to appear telephonically at various pretrial proceedings, it repeatedly warned that failure to attend the severance trial could lead to a default and a grant of the State s severance motion. Father did not heed the court s warnings and failed to appear at trial. We next consider Father s contention that the evidence did not justify severance. and convincing termination evidence, enumerated section 8-533. The juvenile court must find, by clear in at least Arizona one of Revised the grounds Statutes for ( A.R.S. ) Kent K. v. Bobby M., 210 Ariz. 279, 280, 284, ¶¶ 1 & 22, 110 P.3d 1013, 1014, 1018 (2005). Pursuant to A.R.S. § 8-533(B)(8)(b), ADES alleged that Father failed to remedy the circumstances that led to Ryan being placed in out-of-home care due to medical neglect. To justify severance § 8-533(B)(8)(b), a court must find: The child who is under three years of age has been in an out-of-home placement for a cumulative total period of six months or longer pursuant to court order and the parent has substantially neglected or wilfully refused to remedy the circumstances that cause the child to be in an out-of-home placement, including refusal to participate 2 under in reunification department. services offered by the At the time of trial, Ryan was less than three years old and had been months. in Father an out-of-home contends, placement though, that for his more than participation six in services precludes a finding that he willfully refused to remedy the circumstances that led to Ryan s out-of-home placement. We disagree. Experts marginally opined better that, though caretaker about his parenting. than Father Mother, appeared there to were be a concerns Father failed to understand the reasons for CPS s involvement, and there were concerns about his ability to tend to Ryan s substantial special needs while also providing for a newborn. However, beginning Father in initially July 2009, participated his in services. participation declined. And in December 2009, his participation ceased altogether when he relocated to Ohio. Father did not return to Arizona, even when Ryan underwent major surgery. The CPS caseworker discussed concerns about domestic violence in the household, the parents lack of understanding of Ryan s complex medical needs, and their inability to care for Ryan on a long-term basis. in Ohio and not Moreover, Father s decision to live participate in 3 his son s ongoing medical treatments reflected an intention to abdicate further parental responsibilities as to Ryan. The record includes clear and convincing evidence of Father s inability or unwillingness to remedy the circumstances that brought Ryan into out-of-home placement. ADES provided appropriate reunification services, including parenting classes, supervised visitation, parent aide services, counseling, and transportation. 1 IT IS ORDERED affirming the juvenile court s severance order. /s/ MARGARET H. DOWNIE, Judge CONCURRING: /s/ DANIEL A. BARKER, Presiding Judge /s/ MICHAEL J. BROWN, Judge 1 Because only one basis for severance is necessary, and we affirm the severance under § 8-533(B)(8)(b), we need not discuss the other grounds found by the juvenile court. See Jesus M. v. Ariz. Dep t of Econ. Sec., 203 Ariz. 278, 280, ¶ 3, 53 P.3d 203, 205 (App. 2002). Father has not challenged the superior court s best interests determination. 4
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