CHRISTOPHER A v ADES, GENAVIEVE A

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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 CHRISTOPHER A., ) ) Appellant, ) ) v. ) ) ARIZONA DEPARTMENT OF ECONOMIC ) SECURITY, GENAVIEVE A., ) ) Appellees. ) ) __________________________________) DIVISION ONE FILED: 11/13/2012 RUTH A. WILLINGHAM, CLERK BY: sls 1 CA-JV 12-0043 DEPARTMENT E MEMORANDUM DECISION (Not for PublicationAriz. R.P. Juv. Ct. 88(G); ARCAP 28) Appeal from the Superior Court of Maricopa County Cause No. JD17627 The Honorable Aimee L. Anderson, Judge AFFIRMED Jeffrey M. Zurbriggen, P.C. Attorney for Appellant Phoenix Thomas C. Horne, Attorney General Phoenix By Nicholas Chapman-Hushek, Assistant Attorney General Attorneys for Appellee Arizona Department of Economic Security T H O M P S O N, Judge ¶1 court s Christopher A. (Christopher) appeals from the juvenile order Genavieve. severing his parental rights to For the following reasons, we affirm. his daughter FACTUAL AND PROCEDURAL HISTORY ¶2 Genavieve was born in April 2007. came to the attention of Genavieve first Child Protective Services (CPS) in October 2009 after her brother, Ethan, was born drug-exposed.1 Christopher was in jail at the time of Ethan s birth, but was subsequently released. drugs. He met with CPS and admitted to using The Arizona Department of Economic Security (ADES) filed a dependency petition as to both children, requesting an in-home dependency with Christopher for Genavieve. living with his mother at that time. for Christopher, including a Christopher was CPS put services in place referral to TERROS Families F.I.R.S.T. for substance abuse assessment and treatment, parent aide services, a psychological consultation, and drug testing at TASC. The juvenile court found that Genavieve was a dependent child. ¶3 In December 2010, Christopher was arrested and charged with possession incarcerated. to being urinalysis TERROS. 1 and solicitation of methamphetamine and was He also was not compliant with the caseplan prior incarcerated testing ADES and because he failed failed to complete requested a change of to participate any physical in services at custody to Ethan is not a party to this appeal; Christopher s parental rights to Ethan were previously severed. Genavieve s mother s parental rights to both children were also previously severed. 2 Genavieve s paternal grandmother due to Christopher s incarceration; however, the grandmother subsequently could not care for Genavieve, so the child was moved to foster care. ¶4 Christopher was convicted of the drug charges in May 2010 and was incarcerated until September 2011. caseplan for Christopher, adoption. Genavieve with a remained concurrent family caseplan Initially, the reunification of with severance and CPS requested that Christopher complete the services available to him in prison, including parenting classes, anger management classes, and substance abuse classes. however, CPS requested the court to change severance and adoption and the court did so. the In July 2010, caseplan to Subsequently, ADES filed a motion to terminate Chrisopher s parental rights. ¶5 The juvenile court held a contested severance hearing between August 26, 2011 and September 1, 2011. In the middle of the severance hearing, Christopher was released from prison, and on September 9, 2011, the juvenile court denied the motion to terminate Christopher s parental rights and changed the caseplan back to severance family and reunification adoption, with finding a concurrent that caseplan Christopher of had participated in services in prison and that ADES had not met its burden of proof by clear and convincing evidence. 3 ¶6 Services supervised were again visitation, a put into place, psychological including consultation and evaluation, TERROS Families F.I.R.S.T. substance abuse services, transportation screening. services, Christopher a parent aide participated referral, in the and drug psychological consultation but did not attend the psychological evaluation. Christopher set attend assessment. the up an assessment He with attended TERROS two of but the failed visits to with Genavieve scheduled in early September 2011, but by September 21, 2011 he had disappeared; a warrant was issued for his arrest on his parole violation. Also in September 2011, Christopher was required to call TASC on a daily basis to find out if he would be required to submit to urinalysis testing, but he made just nine out of thirty mandatory phone calls. Two of the five urine tests Christopher completed in September were positive for opiates, and he had an additional five missed urine tests. He admitted to his parole officer that he used methamphetamines in September. After September 20, 2011 CPS was unable to locate Christopher; his mother also did not know his whereabouts and filed a missing persons report. ¶7 In November 2011, Christopher failed to appear juvenile court for Genavieve s report and review hearing. in At ADES s request, the juvenile court changed the caseplan back to 4 severance and adoption. In November 2011, ADES filed a motion to terminate Christopher s parental rights pursuant to Arizona Revised Statutes (A.R.S.) (B)(3) drugs), (Christopher s and § 8-533(B)(1) history (B)(8)(c) of (fifteen (2008) chronic months (abandonment), abuse time Christopher did not attend the severance hearing. of dangerous in care). At the close of the hearing, the juvenile court granted severance based on the grounds of fifteen months time in care and Christopher s chronic abuse of dangerous drugs. The court declined to find abandonment, stating: The Court does find that termination of parental rights is appropriate, and based upon the grounds of substance abuse and time in care. The Court is aware that the Department has alleged the ground of abandonment. It is absolutely, positively clear to this Court that [Christopher] has cut off all contact with his daughter and [ADES], the legal guardian to his child, since September 20th of 2011, just days after he walked out of this court when I denied the Motion for Termination and told him this was his time to do what he needed to do to be the father to this child he needed to be. And he has let everyone in this room down, but most importantly, he let down his own biological child who had any chance of having a relationship with him . . . Genavieve. And I will tell you that only because of the litigious nature of [Christopher] s case . . . will I not make a finding by clear and convincing evidence on abandonment . . .. It s not [been] six months. It s [been since] September 20th [that Christopher last had contact with ADES]. 5 Christopher timely appealed. This court has jurisdiction pursuant to A.R.S. §§ 8-235 (2007), 12-120.21(A)(1) (2003), and -2101(B) (2011). DISCUSSION ¶8 Christopher first argues that the juvenile court erred in finding that ADES made diligent efforts to provide him with appropriate reunification services. juvenile court s order severing We will not disturb the parental rights unless its factual findings are clearly erroneous, that is, unless there is no reasonable evidence to support them. Audra T. v. ADES, 194 Ariz. 376, 377, ¶ 2, 982 P.2d 1290, 1291 (App. 1998) (citations omitted). [A]lthough the State is not obliged to undertake futile rehabilitative measures, it is obliged to undertake those which offer a reasonable possibility of success. Mary Ellen C. v. ADES, 193 Ariz. 185, 187, ¶ 1, 971 P.2d 1046, 1048 (App. 1999). In this case, reasonable evidence supports the juvenile court s finding that ADES made a diligent effort to provide appropriate reunification services to Christopher. After he was released from prison, ADES provided Christopher with a referral to TERROS supervised for substance visitation, abuse assessment transportation, a and parent treatment, aide, screening, and a psychological consultation and evaluation. did not follow through with most of those services. 6 drug He When he was in prison, CPS treatment and indicates that asked other Christopher programs Christopher and had to participate he every did so. chance in The to drug record rehabilitate himself but was inconsistent with services and unable to remain drug free when not in prison. ¶9 We find no error. Christopher next argues that the juvenile court erred in granting a severance based on A.R.S. § 8-533(B)(3). statute provides for severance when a parent is The unable to discharge parental responsibilities because of mental illness, mental deficiency or a history of chronic abuse of dangerous drugs, controlled substances or alcohol and there are reasonable grounds to believe that the condition prolonged indeterminate period. ¶10 will continue for a Id. Christopher argues that the court erred in concluding that he had a chronic substance abuse problem and that the abuse would continue for a prolonged indeterminate period. The record supports the juvenile court s conclusion, however. In 2010, Christopher told the best interests evaluator that he had been using methamphetamine regularly since he was sixteen years old until he was most recently imprisoned. The best evaluator noted in her October 12, 2010 report: [Christopher] s major limitations include a history of criminal behavior that involves stealing, using counterfeit money, and illegal drug use. [Christopher] admitted he 7 interests has been using methamphetamine for the past 34 years. He has been in prison during other occasions and upon release continues to use the substance. To his credit, he is currently involved in various substance abuse treatments including groups and individual therapy. However, records reveal that his performance on probation has been poor, he has failed to complete drug treatment on multiple occasions, and has continued with his criminal behavior in the past even when he has assured treatment providers and law enforcement that he would not. Given this information there is a significant chance that [Christopher] will relapse upon his release from prison when faced with external stressors in his environment that are outside of a structured setting such as prison. In 2003, he mentioned he should get probation because I ve changed my life around and quit drugs . . .. Unfortunately, [Christopher] returned to the same criminal behaviors and it appears his condition will continue for a prolonged period of time. The evaluator s prediction became reality. Within several weeks of his release in 2011 Christopher was using methamphetamine again and then disappeared, despite being warned by the juvenile court when the court declined to grant the first severance motion that he would lose his chance to parent Genavieve if he relapsed. determination We find that no error Christopher s in the parental severed pursuant to A.R.S. § 8-533(B)(3). juvenile rights court s should be Because we conclude that the severance should be affirmed on this ground, we decline 8 to address Christopher s argument with regard to A.R.S. § 8533(B)(8)(c) (fifteen months time in care.) See Jesus M. v. ADES, 203 Ariz. 278, 280, ¶ 3, 53 P.3d at 203, 205 (App. 2002) (citations omitted). CONCLUSION ¶11 For the foregoing reasons, the juvenile court s severance order is affirmed. /s/ _________________________________ JON W. THOMPSON, Judge CONCURRING: /s/ PATRICIA K. NORRIS, Presiding Judge /s/ ____________________________________ DIANE M. JOHNSEN, Judge 9 10

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