Appeal In Maricopa County Juvenile Action No. JS-8441, Matter of

• Decision Date: 25 May 1993
• Docket Number: JS-8441,No. 1,CA-JV,1
• Citation: 857 P.2d 1317,175 Ariz. 463
• Parties: In the Matter of the APPEAL IN MARICOPA COUNTY JUVENILE ACTION NO.91-0016.
• Court: Arizona Court of Appeals

Page 1317

857 P.2d 1317

175 Ariz. 463

In the Matter of the APPEAL IN MARICOPA COUNTY JUVENILE ACTION NO. JS-8441.

No. 1 CA-JV 91-0016.

Court of Appeals of Arizona Division 1, Department B.

May 25, 1993.

Redesignated as Opinion and

Publication Ordered Aug. 5, 1993.

[175 Ariz. 465] Peter S. Balkan, Phoenix, for appellant Father.

Helm & Kyle, Ltd. by Margaret R. Tinsley, Tempe, for appellee Arizona Dept. of Economic Security.

Jeanine J. Kenyon, Phoenix, for Minor Child.

OPINION

This appeal has been considered by the court, Presiding Judge RUDOLPH J. GERBER and Judges EINO M. JACOBSON and PHILIP E. TOCI participating.

The natural father ¹ appeals from the juvenile court's 1990 order terminating his parental rights to his daughter on the grounds of out-of-home placement, A.R.S. § 8-533(B)(6). This case was remanded to this court for disposition on the merits after the Arizona Supreme Court held that the notice of appeal was timely filed. See Maricopa County Juv. Action No. JS-8441, 174 Ariz. 341, 849 P.2d 1371 (Ariz.1992).

Standard of Review

A termination order must be supported by clear and convincing evidence establishing a statutory ground and the best interest of the child. Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); Maricopa County Juv. Action No. JS-6831, 155 Ariz. 556, 558, 748 P.2d 785, 787 (App.1988). However, the issue on appeal is whether any reasonable evidence supports the juvenile court's findings. Maricopa County Juv. Action No. JS-3594, 133 Ariz. 582, 585, 653 P.2d 39, 42 (App.1982). On appeal, this court will accept the findings of the juvenile court unless they are clearly erroneous; we will not reweigh the evidence. Pima County Juv. Severance Action No. S-2462, 162 Ariz. 536, 539, 785 P.2d 56, 59 (App.1989).

Out of Home Placement

In this case, the petition for termination of the father's parental rights to his now six-year old daughter alleged statutory grounds for severance under both the one-year out-of-home placement and the two-year out-of-home placement provisions of A.R.S. § 8-533(B)(6). Although the juvenile court did not specify whether termination was based on the one-year or two-year subsection, the father does not dispute that the requisite length of time in out-of-home placement was met in either case. Because the juvenile court included all the requisite findings to support termination under the grounds set forth in A.R.S. § 8-533(B)(6)(b), the two-year subsection, we examine the sufficiency of the evidence on that statutory basis. ²

Under this statutory subsection, after finding the two-year time period is met, the court must make the following findings: (1) the agency has made a diligent effort to provide appropriate remedial services; (2) the parent has been unable to remedy the circumstances which caused the child to be in an out-of-home placement; and (3) a substantial likelihood exists that the parent will not be capable of exercising proper and effective parental control in the near future. See Maricopa County Juv. Action No. JS-6520, 157 Ariz. 238, 243, 756 P.2d 335, 340 (App.1988). The court must also find severance to be in the best interest of the child; that is, that severance provides some benefit over the continuation of the parent-child relationship. Maricopa County Juv. Action No. JS-500274, 167 Ariz. 1, 6, 804 P.2d 730, 735 (1990). The father challenges the sufficiency of evidence on each of these elements.

Diligent Efforts to Provide Remedial Services

The father contends that DES was not diligent in its efforts to provide him with remedial services because he had "personality conflicts" with his primary caseworker at Child Protective Services that impeded his efforts to regain custody of his daughter. We disagree.

Although the caseworker admitted at trial that the father displayed animosity towards him, he also testified:

What I did was establish Jewish Family and Children's Service as an intermediary so that any animosity that existed on a personal basis would not compromise his abilities to show his parenting skills and to obtain custody of his child.

Because of the child's special needs and the father's borderline learning ability, the caseworker provided for specialized parenting classes, with one-on-one training, and supervised weekly visitation with the child, at which the father was encouraged to care for her medical needs, and allowed to feed, change, and bathe her. A parent aide who supervised five visitations and had nine parenting sessions with the father testified that she communicated with him more than his caseworker because "he was very angry at Larry's authority"; however, the father was generally cooperative with her. The parent aide who supervised his visitation for a year testified that, although the visits "went very well," the father had "an attitude problem," that he was "mad at everyone in the world," and refused to do things that would help him personally and assist him in regaining custody because of his anger at both his caseworker and Child Protective Services.

Besides specialized parenting classes and supervised visits, the record clearly shows that DES provided the father with the opportunity to participate in psychological counseling, a psychiatric evaluation, alcohol abuse programs, and CPR, first aid and nutrition classes that he did not attend. The father also refused to sign the social agreement identifying the steps he needed to take to regain custody, and refused to participate in an anger control group. His caseworker testified that the father's anger has remained a "roadblock" to custody. Several DES witnesses testified that they could think of nothing more the agency could do to provide services that would assist in reunification of the father and his special needs daughter.

Under these circumstances, we believe the juvenile court's finding that DES made diligent efforts to provide appropriate remedial services is supported by the evidence. Although severance should not be considered unless every effort to reunify the family has been made, DES is not required to provide "futile" services. Pima County Severance Action No. S-2397, 161 Ariz. 574, 577, 780 P.2d 407, 410 (App.1989); Maricopa County Juv. Action No. JS-5209 and JS-4963, 143 Ariz. 178, 189, 692 P.2d 1027, 1038 (App.1984). Here, the record establishes that DES made a diligent effort to reunite the father and the child by providing appropriate remedial services.

Circumstances Which Cause Child to be in Out-Of-Home Placement

The father contends that, in considering whether he had remedied the "circumstances which cause the child to be in out-of-home placement," the juvenile court erred in considering the current circumstances of the child's condition that had developed since the filing of the initial dependency petition. He argues that, because the child's medical needs were continually changing since she was made a dependent child, he had no "notice" of what steps he needed to take to "remedy" the out-of-home placement, and thus the juvenile court should have limited its inquiry to whether he had remedied those circumstances alleged in the initial dependency petition, and no others. We disagree with this argument for two reasons.

First, the statute clearly refers to circumstances that "cause," not "caused," the out-of-home placement. The "cause" of that placement at the time of the severance petition was the fact that the child had been adjudicated a dependent child, that is, one "[i]n need of proper and effective parental care and control and no ... parent ... capable of exercising such care and control." A.R.S. § 8-201(11)(a). One reason that the father was unable to care for the child at the time of the severance was because of her special needs, some of which had not yet been discovered at the time the dependency petition was filed. For example, at the time DES became involved in November 1986, the child was less than six months old and had been diagnosed with fetal alcohol syndrome and failure to thrive. As she continued in foster care over the three and a half year period preceding the severance, it became apparent that she was also developmentally delayed, had severe respiratory problems requiring special medical care, and needed speech therapy. The testimony at the severance trial was that the child's developmental lag has worsened with the passage of time. The evidence also established that the father has refused to believe that the child's developmental problems were as serious as they are or that they are permanent. The evidence also indicated that the father was currently unable to provide for the child's needs or to minimally parent her on a full-time, long-term basis. Thus, even if the juvenile court had found that the father had succeeded in remedying the specific circumstances that existed at the time the dependency petition was filed, there was no evidence that the father was now capable of exercising effective parental care and control. Therefore, the child would...