Matthew F. v. Dep't of Child Safety

MATTHEW F., Appellant, v. DEPARTMENT OF CHILD SAFETY, K.F., AND M.F., Appellees.

No. 2 CA-JV 2020-0084

ARIZONA COURT OF APPEALS DIVISION TWO

January 15, 2021

THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.

NOT FOR PUBLICATION

See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f); Ariz. R. P. Juv. Ct. 103(G).

Appeal from the Superior Court in Pinal County

No. S1100JD201800094

The Honorable Daniel A. Washburn, Judge

AFFIRMED

COUNSEL

Czop Law Firm PLLC, Higley

By Steven Czop

Counsel for Appellant

Mark Brnovich, Arizona Attorney General

By Cathleen E. Fuller, Assistant Attorney General, Tucson

Counsel for Appellee Department of Child Safety

MEMORANDUM DECISION

Chief Judge Vásquez authored the decision of the Court, in which Presiding Judge Eppich and Judge Brearcliffe concurred.

VÁSQUEZ, Chief Judge:

¶1 Matthew F. appeals from the juvenile court's July 2020 order terminating his parental rights to his daughters, K.F. (born in May 2015) and M.F. (born in December 2017), based on chronic substance abuse and time-in-care grounds.¹ See A.R.S. § 8-533(B)(3), (8)(a), (b), (c). For the following reasons, we affirm.

Factual and Procedural Background

¶2 We view the evidence in the light most favorable to affirming the juvenile court's ruling. See Christina G. v. Ariz. Dep't of Econ. Sec., 227 Ariz. 231, ¶ 13 (App. 2011). While investigating a report of domestic violence between the parents in March 2018, police found drugs which were "very accessible" to the children in the home. In April 2018, Matthew's hair follicle drug test yielded positive results for methamphetamine, cocaine, benzoylecgonine, norcocaine and cocaethylene, and his urine test was positive for amphetamines. Also in April 2018, the Department of Child Safety (DCS) filed an in-home dependency petition for placement in the mother's home; in July 2018, the children were placed with the maternal grandmother. The juvenile court adjudicated the children dependent in September 2018, after the parents admitted the allegations in the dependency petition. In March 2019, the children were placed with the paternal aunt, where they have lived ever since.

¶3 DCS offered Matthew a variety of services during the dependency, including a substance abuse assessment with a psychological examination; random drug testing; group, individual and family counseling; case management services; supervised visitation; a parenting aide; peer support groups; and treatment for anger management and domestic violence. Matthew was closed out of several services for failureto participate, and he failed to consistently comply with required drug testing and indicated an unwillingness to participate in counseling. The juvenile court changed the case plan goal to severance and adoption in July 2019, and DCS filed a petition to terminate the parents' rights to the children based on chronic substance abuse and time-in-care grounds. See § 8-533(B)(3), (8)(a), (b), (c).

¶4 After he tested sober for thirty consistent days in October or November 2019, Matthew was referred for a psychological examination. Dr. Carlos Vega evaluated Matthew in February 2020. Dr. Vega reported: "Matthew is fully aware that the only way DCS can know that he has been clean and sober is via the testing. He is aware that noncompliance with drug testing is equivalent to announcing that he is using drugs." He also concluded Matthew suffers from "a substance use disorder and a general personality disorder with borderline and paranoid features." He recommended Matthew receive intensive psychotherapy, attend Narcotics Anonymous meetings more frequently, and comply with required drug testing.

¶5 After a contested severance trial held in February and June 2020, the juvenile court granted DCS's petition to terminate. It found DCS had established all of the grounds in the petition and that termination of the parents' rights was in the children's best interests. This appeal followed.

¶6 The juvenile court may terminate a parent's rights if it finds by clear and convincing evidence that at least one of the statutory grounds for termination exists and by a preponderance of the evidence that termination is in the child's best interests. See A.R.S. §§ 8-533(B), 8-537(B); Kent K. v. Bobby M., 210 Ariz. 279, ¶ 41 (2005). We review a judgment terminating a parent's rights for abuse of discretion. Mary Lou C. v. Ariz. Dep't of Econ. Sec., 207 Ariz. 43, ¶ 8 (App. 2004). We will "accept the juvenile court's findings of fact if reasonable evidence and inferences support them, and will affirm a severance order unless it is clearly erroneous." Alma S. v. Dep't of Child Safety, 245 Ariz. 146, ¶ 18 (2018) (quoting Demetrius L. v. Joshlynn F., 239 Ariz. 1, ¶ 9 (2016)).

Time-in-Care Ground

¶7 On appeal, Matthew argues that DCS failed to make diligent efforts to provide him with appropriate reunification services, specifically complaining that DCS's efforts to provide him with a psychological evaluation and individual counseling were not in time for those services tohelp him reunify with his children. He thus asserts that the time-in-care ground must be reversed. Pursuant to all three subsections of § 8-533(B)(8), before termination is ordered, DCS must make "a diligent effort to provide appropriate reunification services." § 8-533(B)(8) (discussing time in court-ordered care).

¶8 In its ruling below, the juvenile court provided a detailed list of the services DCS had provided, including a summary of the parents' level of participation and completion as to each service. Relevant to Matthew's arguments here, the court specifically noted he had not consistently or fully participated in drug testing, counseling, or domestic violence classes. The court also noted that it had conducted periodic hearings, at which the parents could have voiced concerns about the case plan or services. The court pointed out that Matthew had only voiced concerns about visitation and drug testing at one of those hearings and that both of those concerns had been addressed. Notably, the court expressly found that Matthew had failed to raise any other concerns about the adequacy of the services offered or provided, concluding that he had thus waived the right to challenge the services. See Shawanee S. v. Ariz. Dep't of Econ. Sec., 234 Ariz. 174, ¶ 16 (App. 2014). The court thus concluded, "For the purpose of this order, the details set forth above constitute a finding of both reasonable and/or diligent efforts (where applicable) on the part of [DCS] to effectuate reunification of the family."

¶9 Matthew acknowledges on appeal that he was required to preserve this argument by objecting below to the services provided, yet he asserts, without factual support or citations to the record, that he "objected to services being provided at the review hearings, in motions before the severance trial, and during the trial." In contrast, DCS maintains that Matthew did not object to the adequacy of the services below, nor are we aware of any such objections. Accordingly, we could deem Matthew's argument waived. See id. ¶ 16. However, assuming the argument were not waived, the record nonetheless supports the juvenile court's finding that DCS made diligent efforts to provide Matthew with appropriate services.

¶10 Asserting that DCS did not refer him for a psychological evaluation until November 2019, well after the case began in April 2018, Matthew argues receiving this service earlier would have helped him reunify with his children. However, at trial, Matthew acknowledged he was aware he needed to establish thirty consistent days of sobriety in order to receive a referral for a psychological evaluation, and agreed he had not consistently engaged in substance-abuse treatment or testing since hispositive drug test in 2018. In fact, based on Matthew's failure to participate in random drug testing, his DCS case manager reminded him in November and December 2018 that his psychological evaluation could not be completed until he had documented thirty days of sobriety. Accordingly, as the record shows, any delay in providing a psychological evaluation was caused by Matthew's inability to establish sobriety, not by dilatory conduct on the part of DCS.

¶11 Matthew similarly argues that DCS failed to provide him with necessary counseling services, either before or after the psychological evaluation, asserting those services would not have been futile. See Mary Lou C., 207 Ariz. 43, ¶ 18 (department not required to provide services that are futile). He further maintains that DCS's mistaken belief that Terros Health, where DCS had sent him for services, "typically" offered individual counseling or that he should have self-referred for specialized services, like domestic violence counseling, shows that DCS did not make diligent efforts to provide services.

¶12 However, extensive evidence was presented at trial that Matthew had not engaged in the counseling services offered through Terros Health, nor had he taken advantage of the opportunity to self-refer for such services, as DCS had suggested to him.² DCS also presented evidence that Matthew had failed to attend a meeting scheduled to discuss services for him and that it had made several unsuccessful attempts to meet with him to discuss the referral process for services available to him. Additionally, Dr. Vega testified that Matthew had told him he would not participate in counseling services provided by DCS, a statement Dr. Vega believed. Dr. Vega also reported that Matthew "doesn't take responsibility for his noncompliance in terms of testing or the fact that he's not been able to receive any kind of therapy."

¶13 Matthew is correct that the record contains evidence that DCS did not provide all of the services he claims he needed, but he ignores the competing evidence that he did not meaningfully participate in many of the services that were offered, and more importantly, that he had told Dr. Vega he would...