Appeal of Maricopa County Juvenile Action No. JS-6520
| Decision Date | 18 February 1988 |
| Docket Number | CA-JUV,No. 1,JS-6520,1 |
| Citation | 157 Ariz. 238,756 P.2d 335 |
| Parties | In the Matter of the Appeal in MARICOPA COUNTY JUVENILE ACTION NO.397. |
| Court | Arizona Court of Appeals |
The natural father of three minor children appeals from an order of the juvenile court terminating his parental rights. The only issue on appeal is whether the evidence supported the grounds for termination.
Three children, 12-year-old David Ray, 11-year-old Teresa Marie and 7-year-old Johan Michael, are the subjects of the termination proceeding. Appellant is the biological father of all three children. David and Teresa have the same mother, Kathleen J.; Johan's mother is Cheryl M. Kathleen J.'s parental rights were terminated and Cheryl M. signed a consent, relinquishing her rights to Johan.
The youngest child, Johan, first came to the attention of the Arizona Department of Economic Security (DES) in January, 1982. At that time his mother was jailed on a charge of drunk and disorderly conduct. Prior to her arrest, witnesses reported that she was both verbally and physically abusive to Johan. On February 16, 1982, DES placed Johan in a temporary foster home. The court subsequently found him dependent and made him a ward of the court. For three months in 1982 Johan was placed in the physical custody of appellant. This placement, however, proved unsuccessful, and Johan has remained in foster care since August of 1982. Presently he is in a "fost-adopt placement," which is a potential adoptive home.
The two older children, David and Teresa, came to the attention of DES in May 1982, when their maternal grandmother contacted the agency and advised it that she was unable to continue caring for her grandchildren. The children's mother had left the children in the grandmother's care for "the weekend" two weeks earlier. Subsequently, the grandmother received a letter from her daughter, advising her that she was in New Mexico and could not take the children. David and Teresa were later placed in foster care and made wards of the court on January 17, 1983. The children's chances for adoption are "slim" according to DES; therefore long-term foster care is the probable treatment plan.
All three children have been in foster care since mid-1982. The two oldest children are in the same home. The youngest child, Johan, has seen his half-siblings infrequently.
Between 1982 and 1985, DES offered appellant a wide range of services to facilitate reintegration of the family. These included parenting classes, mental health counseling, and referrals to a variety of agencies for treatment of an alcohol problem. Appellant declined or failed to cooperate with these remedial services, claiming he was capable of controlling his admitted life-long drinking problem without assistance.
Appellant visited David and Teresa on a continuous, if sporadic, basis prior and subsequent to the filing of the petition for severance. DES did not require appellant to arrange visitation through the agency because he had a prior relationship with the foster parents of David and Teresa. Because of this arrangement, DES was unaware of the exact number of these visits. Appellant's contacts with Johan, who was in a different foster home than the other two children, has been nearly non-existent. In 1983, appellant saw his then 2-year-old son a total of four times. Appellant visited Johan only once in 1984 at Christmastime and once in 1985, again during the Christmas holidays.
In July 1985, DES filed a petition to terminate the parent-child relationship between appellant and his three children, alleging abandonment. In October 1985 and May 1986, appellant then entered into agreements with DES to work for his children's return. Appellant agreed to attend Alcoholics Anonymous, have individual therapy, maintain a regular visitation schedule with his children, and obtain a suitable home for all of them. The termination hearing was continued in order to provide appellant an opportunity to regain his children.
Appellant failed to follow through on the provisions of these agreements, and on October 17, 1986, DES amended its petition for termination to include the grounds of inability to parent due to mental illness and/or a history of chronic alcohol abuse pursuant to A.R.S. § 8-533(B)(3) and length of out-of-home placement pursuant to A.R.S. § 8-533(B)(6)(a) and (b). The juvenile court terminated the parent-child relationship between appellant and Johan based on abandonment, mental illness and alcohol abuse, and both out-of-home placement grounds. Appellant's rights to David and Teresa were terminated on all of the above except for abandonment grounds.
Unquestionably, parents have a fundamental liberty interest in the care, custody and management of their children. Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). Therefore, while the best interest of the child is a valid factor in deciding whether to terminate the parent-child relationship, it cannot be the sole basis for termination. Juvenile Appeal S-1607, 147 Ariz. 237, 238, 709 P.2d 871, 873 (1985). However, this right to parent is not absolute. The state has an interest in the welfare and health of children. See Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). When the welfare of the child is in serious jeopardy, the state will act to protect the child and will interfere with this valued relationship. Juvenile Appeal J-5666, 133 Ariz. 157, 161, 650 P.2d 459, 463 (1982). Arizona courts have recognized that parental rights should be terminated only when concerted effort to preserve the relationship fails. Juvenile Appeal S-111, 25 Ariz.App. 380, 387, 543 P.2d 809, 817 (1975). Towards this end, DES has an affirmative duty to make all reasonable efforts to preserve the family relationship. DES v. Mahoney, 24 Ariz.App. 534, 540 P.2d 153 (1975).
A.R.S. § 8-533 sets forth the grounds for termination of parent-child relationships. The statute reads in pertinent part:
B. Evidence sufficient to justify the termination of the parent-child relationship shall include any one of the following, and in considering any of the following grounds, the court may also consider the needs of the child:
1. That the parent has abandoned the child.
....
3. That the parent is unable to discharge the 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 will continue for prolonged indeterminate period.
....
6. That the child is being cared for in an out-of-home placement under the supervision of the juvenile court, the division or a licensed child welfare agency, that the agency responsible for the care of the child has made a diligent effort to provide appropriate remedial services and that either of the following circumstances exists:
(a) The child has been in an out-of-home placement for a cumulative total period of one year or longer pursuant to court order and the parent has substantially neglected or wilfully refused to remedy the circumstances which cause the child to be in the out-of-home placement.
(b) The child has been in an out-of-home placement for a cumulative total period of two years or longer pursuant to court order, the parent has been unable to remedy the circumstances which cause the child to be in an out-of-home placement and there is substantial likelihood that the parent will not be capable of exercising proper and effective parental care and control in the near future.
On review, the appellate court will accept the juvenile court's findings of fact in support of severance unless they are clearly erroneous. Juvenile Appeal S-1607, 147 Ariz. at 238, 709 P.2d at 872 (1985).
Following the termination proceedings the juvenile court made the following conclusions of law:
(1) that the court has jurisdiction over this matter pursuant to A.R.S. § 8-531, et seq.;
(2) that as to all three of the children, the natural father ... is unable to discharge parental responsibility because of mental illness and a chronic abuse of alcohol and there are reasonable grounds to believe that these conditions will continue for a prolonged, indeterminate period;
(3) that as to all three of the children, they have been in an out-of-home placement for a cumulative total period of one year or longer pursuant to court order and he has substantially neglected or wilfully refused to remedy the circumstances which cause the children and each of them to be in an out-of-home placement;
(4) that the children and each of them have been in an out-of-home placement for a cumulative total period of two years or longer pursuant to court order and the father has been unable to remedy the circumstances which cause the children and each of them to be in an out-of-home placement and there is a substantial likelihood that the father will not be capable of exercising proper and effective care and control in the near future;
(5) that as to Johan, the father has abandoned the child and has made no effort to maintain a parental relationship with him. In the opinion of the court, the evidence indicates he has made only token efforts to communicate with the child and none to support him;
(6) that the state has failed to meet its burden of clear and convincing proof as to the abandonment of David and Teresa by the father, ... and, therefore, those allegations in the petition as to abandonment of those two children will be dismissed.
We will address first the termination of the parent-child relationship of appellant and his youngest son,...
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