Paul Dana V. B. v. Dep't of Child Safety
| Decision Date | 06 June 2017 |
| Docket Number | No. 1 CA-JV 16-0467,1 CA-JV 16-0467 |
| Parties | PAUL V., DANA B., Appellants, v. DEPARTMENT OF CHILD SAFETY, L.V., R.V., 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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 Mohave County
The Honorable Douglas Camacho, Judge Pro Tempore
AFFIRMED
The Stavris Law Firm, PLLC, Scottsdale
By Alison Stavris
Counsel for Appellant Paul V.
Mohave County Legal Defender's Office, Kingman
By Eric Devany
Counsel for Appellant Dana B.
Arizona Attorney General's Office, Mesa
By Nicholas Chapman-Hushek
Counsel for Appellee Department of Child Safety
MEMORANDUM DECISIONJudge Lawrence F. Winthrop delivered the decision of the Court, in which Presiding Judge Samuel A. Thumma and Judge James P. Beene joined.
¶1 Paul V. ("Father") and Dana B. ("Mother") (collectively, "the parents"), the biological parents of L.V. and R.V. (collectively, "the children"),1 appeal the juvenile court's order terminating their parental rights to the children on multiple statutory grounds. For the following reasons, we affirm.
¶2 The parents have a long history of domestic violence, and Father has a history of substance abuse, specifically alcohol and methamphetamines. Mother has a lengthy history of serious mental illness, and, at times, has refused to use prescribed medications. For both parents, these issues prevent them from properly parenting.
¶3 In January 2014, the parents and children lived in California. At that time, Father called the police given Mother's threat of self harm and concerns about the safety of the children. Police officers took Mother to a mental health facility; however, she checked herself out after twenty-four hours. Over the next several days, the police were called to the residence multiple times due to continuing incidents between the parents.
¶4 After a California state court granted Father emergency temporary custody of the children, Mother took the children to Arizona to live with her parents. The maternal grandparents then contacted Arizona's Department of Child Safety ("DCS"), which removed the children from Mother's care in late January 2014.
¶5 DCS filed a dependency petition, alleging the children were dependent as to the parents due to numerous instances of neglect, as well as abuse on the part of Mother. The juvenile court found the children dependent and adopted a case plan of family reunification.3
¶6 DCS offered the parents a wide variety of services. However, Father initially chose to stay in California, where he was briefly arrested and incarcerated, and did not engage in services or visitation. Mother participated in various services but struggled with her mental health issues, missed numerous sessions, routinely cancelled visitation, and continued to engage in domestic violence with Father when he visited her.
¶7 In May 2014, Father moved to Arizona, was referred for services, began to inconsistently visit the children, drank alcohol with Mother, tested positive for opiates, and admitted using codeine prescribed to Mother. Mother struggled to care for or redirect the children during supervised visits, especially when attempting to care for both children or when Father was present, and she and Father often terminated visits early. Both parents also struggled to maintain stable housing and employment.
¶8 By February 2015, Mother's mental health appeared stable, and the parents were living together in an apartment. They were able to effectively parent as a couple, but not without assistance. Also, Father had a criminal case for which he faced possible incarceration. The parents later began having weekly supervised visits in their home. Due to her mental illness, however, Mother was unable to care for the children on her own.
¶9 In May 2015, Mother engaged in self harm and, pursuant to a psychological evaluation, was diagnosed with "Major Depressive Disorder, recurrent episodes, severe"; "Borderline Personality Disorder"; and rule-out "Bipolar II Disorder." Father also underwent a psychological evaluation, with a resulting recommendation that he engage in "individual counseling for symptoms of anxiety and depression as well as to assess further for any ongoing issues with his own anger toward others if still present," a psychiatric evaluation for a medication evaluation, couplestherapy, psychoeducational parenting classes, and family therapy if he were unified with the children.
¶10 Between October 2014 and October 2015, Father missed over half of his required drug tests and tested positive for alcohol five times and opiates once—even while he engaged in substance-abuse treatment. He also missed nearly forty percent of his domestic violence classes. Nonetheless, by October 2015, the parents were allowed overnight weekend visits with the children, as well as twice-weekly monitored visits, and DCS eventually moved to change the children's physical custody to Father.
¶11 In early December 2015, the juvenile court granted Father physical custody of the children, in part because he assured DCS that he would follow DCS's directive to not leave the children alone with Mother.4 In February 2016, the court orally dismissed the case, and soon after, DCS lodged a formal order to dismiss.
¶12 Shortly thereafter, however, Mother contacted DCS and explained that Father had relapsed on methamphetamines, was physically and emotionally abusing her, and the children were unsafe in the residence.5 Mother sought an order of protection against Father, and she and the children moved in with the maternal grandparents with a safety plan. Father then made harassing phone calls to Mother and caused destruction at the maternal grandparents' residence, including shattering the windows and denting the trunk of Mother's car, which led to the filing of numerous police reports and a charge of aggravated domestic violence against Father. Mother refused to cease communication with Father, however, and the maternal grandparents requested that Mother vacate the residence, leaving Mother without stable housing for her and the children. Mother was referred to a domestic violence shelter, but refused to go.
¶13 Father contacted DCS, expressing concerns that Mother and the children were staying at a homeless shelter. Father also filed an objection to the order to dismiss the dependency, which was joined bycounsel for the children. DCS then moved to withdraw the dismissal, removed the children from Father, and returned them to foster care—their fourth placement in the case. A few days later, Mother came to Father's house uninvited, attempted to break in, and the parents again engaged in domestic violence. Father, who was allegedly intoxicated, choked Mother, and the police were again called. In April 2016, the juvenile court vacated its oral order dismissing the case.
¶14 Between April and August 2016, Father missed approximately one-half of his required drug tests and was arrested for a DUI after driving 104 miles-per-hour in a 55 mile-per-hour zone while intoxicated; Mother was a passenger.6 Arizona Families F.I.R.S.T. assessed Father's condition and recommended he engage in further substance abuse treatment and domestic violence classes, but Father expressly refused both services.
¶15 Both parents missed numerous visits with the children, declined the opportunity to schedule more visits, and did not actively engage in services after the children's re-removal. Mother missed counseling sessions, took her medication inconsistently, and consumed alcohol. She also never secured stable housing for herself, and continued to stay in a relationship with Father, despite his arrest for another DUI.
¶16 On June 30, 2016, DCS moved to terminate the parents' parental rights. As to Father, DCS moved to terminate on the grounds of neglect, chronic substance abuse, nine months' out-of-home placement, and fifteen months' out-of-home placement. As to Mother, DCS moved to terminate on the grounds of neglect, willful abuse, mental illness, nine months' out-of-home placement, and fifteen months' out-of-home placement. See A.R.S. § 8-533(B)(2), (3), (8)(a), (c) (Supp. 2016). In the weeks before trial, Father submitted diluted urine samples—which DCS deemed positive for banned substances—and samples that tested positive for alcohol; however, he denied having a chronic substance abuse history and that his substance abuse hindered his ability to care for the children.
¶17 At the September 27, 2016 termination adjudication hearing, the juvenile court granted DCS's motion to terminate the parents' parental rights to the children. The court terminated Father's rights on the groundsof chronic substance abuse, nine months' out-of-home placement, and fifteen months' out-of-home placement. The court terminated Mother's rights on the grounds of mental illness, nine months' out-of-home placement, and fifteen months' out-of-home placement. The court also found the parents had received proper legal notice of the proceedings, DCS had made a diligent effort to provide appropriate reunification services, and severance was in the children's best interests.
¶18 Father and Mother each filed a timely notice of appeal. We have jurisdiction pursuant to A.R.S. § 8-235(A) (2014) and Rule 103(A) of the Arizona Rules of Procedure for the Juvenile Court.
¶19 "Parents possess a fundamental liberty interest in the care, custody, and management of their children." Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 24, 110 P.3d 1013, 1018 (2005) (citations omitted). Even fundamental rights are not absolute, however. Id. (citation omitted). A court may sever those rights if it finds clear and convincing evidence of one of the statutory grounds for severance, and finds by a preponderance of the evidence that severance is in the children's best interests. See ...
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