North v. Dep't of Child Safety
| Decision Date | 27 April 2017 |
| Docket Number | No. 1 CA-JV 16-0328,1 CA-JV 16-0328 |
| Parties | MAURICE N., Appellant, v. DEPARTMENT OF CHILD SAFETY, M.N., Appellees. |
| Court | Arizona Court of Appeals |
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
Appeal from the Superior Court in Maricopa County
The Honorable Karen L. O'Connor, Judge
AFFIRMED
John L. Popilek, P.C., Scottsdale
By John L. Popilek
Counsel for Appellant
By Nicholas Chapman-Hushek
Judge Lawrence F. Winthrop delivered the decision of the Court, in which Presiding Judge Randall M. Howe and Judge Jon W. Thompson joined.
¶1 Maurice N. ("Father"), the biological father of M.N. ("the child"), appeals the juvenile court's order terminating his parental rights to the child on the ground of six months' time-in-care.1 Father challenges the sufficiency of the evidence supporting the statutory basis found by the court and argues that the Department of Child Safety ("DCS") failed to provide him with appropriate services, but he does not contest the court's finding that severance was in the child's best interest. For the following reasons, we affirm.
¶2 In 2009, Father was charged with Count I, possession of marijuana for sale, a class four felony; Count II, possession of drug paraphernalia, a class six felony; Count III, misconduct involving weapons (possession of a sawed-off shotgun, a prohibited weapon), a class four felony; and Count IV, misconduct involving weapons (possession of a handgun during the commission of an enumerated felony), a class four felony, all stemming from an October 9, 2008 incident that involved a fight and/or stabbing in and around Father's apartment, from which he was allegedly selling drugs. In July 2010, Father pled guilty to amended Count I, solicitation to commit possession of marijuana for sale, a class six undesignated felony, in exchange for dismissal of Counts II, III, and IV. The trial court placed Father on standard probation for eighteen months. Father consistently failed to comply with the conditions of his probation, however, and at least twice his probation officer petitioned to revoke his probation based on allegations that Father failed to report to his probation officer three times, twice failed to advise his probation officer of a change in residence, possessed or used marijuana on four occasions, missed six drug tests (and tested positive on one other), failed to participate and cooperate in substance abuse treatment and counseling and other counseling, failed to maintain employment, and failed to pay probation fees, fines, and other charges. Although Father admitted violating conditions of his probation, the court reinstated probation, revised the expiration date, and eventuallydischarged Father from probation in November 2012, with fees, fines, and other charges still outstanding.3
¶3 In April 2014, Father and his one- or two-year-old daughter (who was also Mother's daughter) left Arizona and moved in with Father's parents in California—leaving Mother pregnant with the child in Arizona. Mother had substance abuse issues, having previously tested positive for opiates and marijuana, and when the child was born in September 2014, his meconium (initial stool sample) tested positive for marijuana.
¶4 DCS insitituted a safety plan, placing the child with a maternal aunt (with whom Mother also lived), and assigning a Family Preservation Team to assist Mother and offer her services; however, Mother was substantially noncompliant and continued to test positive for opiates and marijuana, as well as methamphetamine. In December 2014, the maternal aunt removed Mother from the aunt's home due to Mother's penchant for bringing unknown men into the home, a practice the maternal aunt would not accept due to her status as a relative foster care provider.
¶5 On January 16, 2015, DCS petitioned to have the juvenile court adjudicate the child dependent as to both parents. As to Father, DCS alleged the child was dependent based on abandonment, neglect, and substance abuse.4
¶6 DCS maintained that, despite several attempts, it had been unable to contact Father, and on January 21, 2015, DCS utilized a parent-locate service to find Father, who contacted DCS the next day. DCS advised Father that he must establish paternity of the child and referred Father fora paternity test. Over the next four months, however, Father missed three scheduled paternity tests, maintained only minimum contact with DCS, and made no effort to contact the child.5 Finally, on May 27, 2015, Father submitted to the test, which confirmed his paternity of the child.
¶7 On May 29, 2015, Father appeared at a report and review hearing, and denied the allegations of the dependency petition. Father was advised that before he could unite with the child, he would need to show sobriety by providing a negative rule-out drug test, comply with services recommended by DCS, commit to caring for the child by regularly contacting him, and secure stable employment and housing, which could be verified by disclosing paystubs and a signed lease.
¶8 Father declined to take a rule-out drug test after the May 29 hearing, and over the next several months, DCS arranged for urinalysis testing in Arizona and California, and offered visitation services in Arizona because it could not transport the child to and from California. During the next eight months, however, Father missed at least seven scheduled rule-out urinalysis tests.6 Father also failed to stay in regular contact with DCS and visit the child—even when Father appeared for case-related hearings in Arizona.7
¶9 On August 13, 2015, the court adjudicated the child dependent as to Father, and ordered a case plan of reunification concurrent with severance and adoption. Father failed to appear at that hearing.
¶10 On October 27, 2015, the juvenile court ordered the case plan changed to severance and adoption, and on November 16, 2015, DCS moved to terminate the parents' rights. As to Father, DCS alleged the statutory ground of six months' time-in-care as the basis for severance. SeeAriz. Rev. Stat. ("A.R.S.") § 8-533(B)(8)(b) (Supp. 2016). DCS also alleged that it had "made a diligent effort to provide appropriate reunification services" but that Father had "substantially neglected or willfully refused to remedy the circumstances that cause[d] the child[] to be in an out-of-home placement." Father had still not participated in rule-out drug testing, visitation, or parent aide services, and had not provided proof of employment or stable housing, or shown that he could adequately parent the child and meet his daily needs.
¶11 On November 30, 2015, Father advised the DCS case manager assigned to his case that he would begin travelling to Arizona every other weekend to visit the child. Although the parent aide indicated a willingness to work with Father and consider his travel and work schedule, Father did not participate in a supervised visit until January 23, 2016.
¶12 Father finally submitted to a hair follicle test on February 9, 2016, when he came to Arizona for a pretrial conference. That test was negative for illegal substances. Father then also participated in a second supervised visitation; however, after the second visitation, Father advised the DCS case manager in March 2016 that he no longer had a job and could not afford to come to Arizona to visit the child.
¶13 After Father's negative hair follicle test, the juvenile court ordered an expedited home study in California under the Interstate Compact on the Placement of Children ("ICPC"). DCS sought reconsideration of the order, however, after discovering Father's criminal record and Father's failure to provide DCS with the necessary proof of employment and stable housing. After reviewing Father's criminal history, the juvenile court determined that Father was ineligible for the ICPC process.8
¶14 In May 2016, DCS closed Father out of parent aide services and supervised visitation because he had missed too many visits and apsychological consultation indicated that further visits with Father were not in the child's best interest. By that time, the child was more than twenty months old, and Father had visited him only twice.
¶15 At the severance hearing, Father testified he had worked for a call center "for about a month and a half" before being located by DCS, and that he had lost that job after traveling to Arizona for a court hearing. He further testified that he had since done "different side jobs" for the charter school where his mother worked; however, he had yet to provide DCS a copy of any paystub or lease, and he testified that he could not leave his parents' home and independently meet the child's needs until he became "financially stable." He also testified he did not find having a job important to support the child, and as noted, he continued to use marijuana despite not having a valid medical marijuana card.
¶16 The DCS case manager opined that Father had substantially neglected or wilfully refused to remedy the circumstances that had caused the child to be in an out-of-home placement, and explained her concern with placing the child with Father:
She further stated that the child was currently placed in an adoptive placement—with the maternal cousin—and that termination...
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