Opinion
No. 1 CA-JV 11-0083
11-08-2011
JUAN G., Appellant, v. ARIZONA DEPARTMENT OF ECONOMIC SECURITY, JUAN G., JR., BRENDA G., NICOLE G., Appellees.
Anne M. Williams Attorney for Appellant Tempe Thomas C. Horne, Arizona Attorney General By David M. Osterfeld, Assistant Attorney General Attorneys for Appellee ADES Phoenix
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
(Not for Publication -103(G) Ariz. R.P. Juv. Ct.; Rule 28 ARCAP)
Appeal from the Superior Court in Maricopa County
Cause No. JD17014
The Honorable Colleen McNally, Judge
AFFIRMED
Anne M. Williams
Attorney for Appellant
Tempe
Thomas C. Horne, Arizona Attorney General
By David M. Osterfeld, Assistant Attorney General
Attorneys for Appellee ADES
Phoenix SWANN , Judge
¶1 Juan G. ("Father") appeals the juvenile court's determination (1) that he failed to timely remedy the circumstances that caused three of his children to be placed out of the home and (2) that it was in the best interests of his
children to terminate his parental rights. Because the juvenile court did not err in applying the Interstate Compact for the Placement of Children to Father, and
its findings were supported by the evidence, we affirm termination of Father's parental rights.
FACTS AND PROCEDURAL HISTORY
We review the facts in the light most favorable to affirming the juvenile court's order. Denise R. v. Ariz. Dep't of Econ. Sec., 221 Ariz. 92, 95, ¶ 10, 210 P.3d 1263, 1266 (App. 2009).
¶2 In May 2008, Father and Alejandra Cabrera Candelas ("Mother") agreed to leave their three children, B.G., N.G. and J.G. (collectively "the Children"), then 9, 7 and 4 years old respectively, in the care of an aunt and uncle in Arizona. Mother then relocated to Maryland. In July 2008, Child Protective Services ("CPS") became involved with the family when A.L., one of Mother's other three children who was also left with the aunt and uncle, was sexually abused by his grandfather. Once ADES became involved, they learned that Father and Mother left the Children without granting the new caregivers authority to provide for their medical or educational needs. ADES filed a dependency petition for all six children and took temporary custody in late July 2008. Both parents were still in Maryland at the time of the petition and ADES's custody.
Three of Mother's other children were part of the dependency action in the juvenile court, but these children are not Father's biological children and neither the orders regarding those children nor the orders terminating Mother's rights are at issue in this appeal.
¶3 At the August 4, 2008 Protective Hearing the court found that the Children were dependent as to Father and would remain wards of the state. With a case plan of reunification, the court ordered services for Father, including parent aide services, psychological consultation and a directive to follow any resulting recommendations. The court also ordered services including transportation and Interstate Compact for the Placement of Children ("ICPC") services. See generally, A.R.S. § 8-548. The Maryland authorities denied placement with Father under the ICPC in December 2008 because he was undocumented.Arizona caseworkers continued to work with Father and offer him services despite his undocumented status, including providing phone numbers for services in Maryland. ADES also told Father that it could better assist him with finding resources, including housing and employment, if he relocated to Arizona.
Because Father is undocumented, he does not have a valid Social Security number that Maryland authorities could use to run a criminal background check or "to follow" him, thus resulting in denial of ICPC services.
¶4 At the January 2009 dependency hearing for Mother, the Children were found to be dependent and services were ordered in Arizona. At this same hearing, Mother and Father reported that they were living together in Maryland, so the parties agreed to resubmit Mother's request under the ICPC to work toward placement with the parents in Maryland.
¶5 In June 2009 -- more than a year after the Children had been left in Arizona -- ADES took physical custody of the Children because of issues with placements with the relatives. The court ordered ADES to provide transportation for the parents for a visit between the June hearing date and August 27, 2009, and ordered that the parents' psychological evaluations occur during the time they were in Arizona for the visitation. Father visited the children in early August and completed the psychological evaluation.
ADES paid for the transportation to Arizona for this psychological consultation and visit with the children.
¶6 The psychological consultation resulted in recommendations for parenting classes and resources, and services together with Mother, including counseling, and co-parenting because of the concerns regarding Mother's inability to handle all the children -- some of whom have special needs -on her own. While Father completed a parenting class, he never sought out or completed any counseling or other services as recommended.
Services were to be provided together with Mother because caseworkers were unaware that Father had lied about living with Mother.
¶7 The second ICPC report resulted in approval for the Children's placement with Mother -- and therefore Father because they were residing together. But Arizona and Maryland caseworkers then learned that Father and Mother had lied about living together and lied about the identities of the woman and two children also in the home. These individuals were actually Father's girlfriend and two young children, not his sister and her children as they reported.
¶8 At that point, the ADES caseworker proceeded with plans for the Children to remain in Arizona and offered Father services in Arizona. Father replied to the offer by stating that he did not want to return to Arizona because of the immigration laws. Father's return to Arizona "was always on the table" as an option for him to regain custody of the Children.
¶9 In early 2010, the Children's caseworker became concerned about Father making "inappropriate/false" statements during calls with the Children -- promising them that he was coming to get them or was sending gifts and then failing to follow through -- because Father's statements led to hurt, frustration, anger and disruption for the Children. After numerous discussions regarding the detriment to the Children because of the broken promises and after signing a contract in March 2010 vowing to stop the behavior, Father nonetheless continued. As a result of Father's noncompliance, the caseworker ended Father's phone contacts with the Children in July 2010, and the court denied Father's October 2010 request to reinitiate phone contact.
¶10 In June 2010, ADES moved for the case plan to be changed from reunification to severance and adoption. Father objected to termination. The first hearing was held in January 2011 and was continued to April 2011. Father was present in person for both hearings. Father testified at the January hearing that he would do "anything" to reunify with his children and that he would move to Arizona "today" if that was what it would take to get his children back.
At the same August 26, 2010 hearing, Mother's counsel informed the court that she had consented to termination of her rights and adoption for the Children.
¶11 But when Father was in Arizona for the January severance hearing, he failed to appear for an arranged visit with the Children -- cancelling within an hour of the visit -because it was not "convenient" for him. And though he was in Arizona for a total of ten days, he did not reschedule and declined the next date that ADES offered for a visitation. The caseworker explained to Father that returning to Maryland would make it difficult for him to see or regain custody of his children and Father acknowledged that he understood this.
¶12 The severance hearing was continued until April 2011 and Father returned to Arizona for the hearing. ADES caseworkers arranged a visit during this trip and Father spent "about two hours" with the Children.
¶13 The juvenile court subsequently ordered termination of Father's parental rights, finding pursuant to A.R.S. § 8-533(B)(8)(c): that ADES had made diligent efforts at reunification, that the Children had been in an out-of-home placement for more than 15 months, that Father was unable to remedy the circumstances that caused the Children to be placed out of the home, and that there was a substantial likelihood that he would not be capable of exercising proper care and control in the near future. Father timely appeals. We have jurisdiction pursuant to A.R.S. §§ 8-235(A) and 12-120.21(A)(1) and -2101(A)(1).
STANDARD OF REVIEW
¶14 "The juvenile court, as the trier of fact in a termination proceeding, is in the best position to weigh the evidence, observe the parties, judge the credibility of witnesses, and make appropriate findings." Jesus M. v. Ariz. Dep't of Econ. Sec, 203 Ariz. 278, 280, ¶ 4, 53 P.3d 203, 205 (App. 2002) (citation omitted). Accordingly, on review we will "not reweigh the evidence[,] but will look only to determine if there is evidence to sustain the court's ruling" and "will not disturb the juvenile court's disposition absent an abuse of discretion or unless the court's findings of fact were clearly erroneous, i.e., there is no reasonable evidence to support them." Mary Lou C. v. Ariz. Dep't of Econ. Sec, 207 Ariz. 43, 47, ¶ 8, 83 P.3d 43, 47 (App. 2004).
DISCUSSION
¶15 On appeal, Father argues that the juvenile court erred in applying the ICPC to him because he is a parent and in finding that ADES made diligent efforts at reunification and that termination was in the best interests of the Children. We disagree.
I. THE JUVENILE COURT CORRECTLY DETERMINED THAT THE ICPC WAS APPLICABLE TO FATHER.
¶16 Father's position that the ICPC was inapplicable to
him because of his status as a parent is contrary to Arizona law. In Arizona Department of Economic Security v. Leonardo, this court held that the ICPC applies to placement with a parent who is out-of-state. 200 Ariz. 74, 83, ¶ 28, 22 P.3d 513, 522 (App. 2001). After a thorough review of the Compact's history and purpose, statutory language, and other states' case law interpreting the provisions of the ICPC, the court referred to Regulation 3, promulgated by the Association of Administrators of the Interstate Compact on the Placement of Children (AAIPC). Id. at 78, ¶ 12, 22 P.3d at 517. Regulation 3 provides that a "placement"
ICPC Article VII authorizes the AAIPC, as the designated officer, to "promulgate rules and regulations to carry out more effectively the terms and provisions of [the] compact." A.R.S. § 8-548.
includes the arrangement for the care of a child in the home of his parent, other relative, or non-agency guardian in a receiving state when the sending agency is any entity other than a parent, relative, or non-agency guardian making the arrangement for care as a plan exempt under Article VIII(a) of the Compact.Id. at 78-79, ¶ 12, 22 P.3d at 517-518 (quoting ICPC Reg. 3). Accordingly, "when the sending agency is a child protective services agency acting through the state . . . and the child is placed with a parent or other family member who does not have full custodial rights to or guardianship of the child, the ICPC applies to that out-of-state placement." Leonardo, 200 Ariz. at 518, ¶ 13, 22 P.3d at 79. The court also held that "it is in the best interests of a child who is the subject of a dependency proceeding and in the custody of protective services to require an investigation by a receiving state on the suitability of a parent who does not have full custodial rights before placing the child." Id. at 522, ¶ 27, 22 P.3d at 83. The ICPC is the mechanism by which such suitability investigations are ordered and carried out.
¶17 Here, Father's three children were the subjects of dependency proceedings and were in the custody of the state at the time the juvenile court ordered ICPC services. The sending agency was ADES, not the children's mother or other relative or guardian. Accordingly, the juvenile court's application of the ICPC to Father in order to determine the suitability of placement with Father in Maryland, the receiving state, was proper.
¶18 Father argues that the juvenile court erred by applying the ICPC to him as a parent, but fails to argue how the alleged error in application relates to the ultimate finding terminating his rights. We infer that Father's argument is that denial of the ICPC placement in Maryland caused a delay in reunification that formed the basis for terminating his parental rights, and that the court erred because the ICPC does not apply. Even if Father were correct that the ICPC did not apply to him, the discussion below nonetheless demonstrates that his lengthy absence from the children's lives during the period after which the ICPC process terminated provides adequate grounds to support termination of Father's parental rights.
II. ADES MADE DILIGENT EFFORTS AT REUNIFICATION.
¶19 To satisfy the requirements for termination under A.R.S. § 8-533(B)(8)(c), ADES had the burden to "prove by clear and convincing evidence that it had made a reasonable effort to provide [Father] with rehabilitative services or that such an effort would be futile." Mary Ellen C. v. Ariz. Dep't of Econ. Sec, 193 Ariz. 185, 193, ¶ 42, 971 P.2d 1046, 1054 (App. 1999); see also A.R.S. § 8-533(B)(8) (requiring ADES to make a diligent effort to provide appropriate reunification services prior to termination). And though ADES is not required to undertake "futile" rehabilitative measures, it must "undertake measures with a reasonable prospect of success." Mary Ellen C., 193 Ariz. at 192, ¶ 34, 971 P.2d at 1053. Further, "CPS need not provide 'every conceivable service,' [but] it must provide a parent with the time and opportunity to participate in programs designed to improve the parent's ability to care for the child." Id. at 192, ¶ 37, 971 P.2d at 1053 (quoting Maricopa County Juv. Action No. JS-501904, 180 Ariz. 348, 353, 884 P.2d 234, 239 (App. 1994)).
¶20 The juvenile court also found that ADES offered ICPC services, parenting classes, a psychological consult, visits and even transportation. Father does not demonstrate how ADES failed to provide any of the ordered services; the record demonstrates that he in fact received all of the court-ordered services -- with exception of the counseling recommended after the psychological consultation -- and that he utilized the state-provided transportation to visit his children only once in nearly three years. The inescapable fact is that ADES continued to provide services for a period in excess of 15 months even after the ICPC process was over, and that Father did not return to Arizona and meaningfully avail himself of those services.
¶21 Father argues that after the denial of placement with him in Maryland under the ICPC, ADES neglected to support Father and did little in the way of offering services to him. The record shows that after placement under the ICPC was denied, the ADES caseworker in Arizona focused on Mother because the parents had told ADES they were living together. The same caseworker also obtained a list of resources and phone numbers for Maryland services so that Father could access the counseling suggested by the psychological consult.
Without an ICPC approval for the home, CPS did not have the authority to place the Children in Maryland with Father. See A.R.S. § 8-548, art. III.
¶22 When it was clear that ADES could not place the Children in Maryland, ADES continued to communicate with Father. ADES discussed the possibility of Father moving to Mexico to work with authorities there. It also discussed the possibility of Father returning to Arizona both so he could regularly visit his children and so that the Arizona caseworkers could better assist him in using Arizona resources, including housing and employment assistance. It is unclear what additional services Father expected Arizona ADES caseworkers to provide for him in Maryland. Indeed, it is unclear how ADES could have been more supportive of reunification in these circumstances.
¶23 Father's argument hinges on the assertion that his immigration status -- and the resulting denial of placement under the ICPC -- caused ADES to fail to provide or offer services to aid him in reunification with his children, despite his willingness to engage in services. He argues that if this was the barrier, ADES should have helped him obtain legal status. Father's argument fails to recognize that his illegal status did not prevent him from seeking, locating or utilizing services that would aid him in reunification with his children.Maryland ICPC worker Dennis Addison testified at the severance hearing that Father's illegal status only prevented approval under the ICPC because the absence of a Social Security number prevented Maryland from "following" Father, not that it prevented Father from receiving community-based services in Maryland or ADES-directed services in Arizona.
We reject entirely the notion that Father's neglect of his children triggered a duty on the part of the State to cure his illegal status.
While A.R.S. §§ 1-501 and -502 preclude Father from applying for public benefits, there was nothing to prevent him from taking advantage of all the services ADES offered to him.
--------
¶24 ADES was not required to provide Father with every conceivable service to aid him in reunification, and the record shows that caseworkers did provide Father with time -- nearly three years -- and opportunity to take the steps necessary to demonstrate his ability to care for the Children. We therefore conclude that the evidence is sufficient to support the juvenile court's finding that ADES made a diligent effort to provide reasonable reunification services.
III. TERMINATION OF FATHER'S PARENTAL RIGHTS IS IN THE BEST INTERESTS OF THE CHILDREN.
¶25 To terminate parental rights, a juvenile court must find by clear and convincing evidence that at least one statutory ground for termination exists, and find by a preponderance of the evidence that termination is in the best interests of the children. See A.R.S. § 8-533(B); Kent K. v. Bobby M. , 210 Ariz. 279, 288, ¶¶ 41-42, 110 P.3d 1013, 1022 (2005). To adequately protect Father's constitutional right to the custody and control of his children, "a determination of the [Children's] best interest must include a finding as to how the [Children] would benefit from a severance or be harmed by the continuation of the relationship." Maricopa County Juv. Action No. JS-500274, 167 Ariz. 1, 5, 804 P.2d 730, 734 (1990).
¶26 Factors that support a finding that a child will benefit from the termination of parental rights include the "immediate availability of an adoptive placement," Audra & Martin T. v. Ariz. Dep't of Econ. Sec, 194 Ariz. 376, 377, ¶ 5, 982 P.2d 1290, 1291 (App. 1998) (citation omitted); "whether an existing placement is meeting the needs of the child," id. ; and that the children are "adoptable." JS-501904, 180 Ariz. at 352, 884 P.2d at 238. "[W]e may infer additional findings of fact and conclusions of law sufficient to sustain the trial court's order as long as those findings are reasonably supported by the evidence, and not in conflict with any express findings." Johnson v. Elson, 192 Ariz. 486, 489, ¶ 11, 967 P.2d 1022, 1025 (App. 1998) (citations omitted).
¶27 At the time of the final severance hearing, the Children had been in out-of-home placements for two months shy of three years. All three were in a foster home that was willing and able to adopt them -- a home B.G and N.G. have been in for most of their time in ADES custody and a home that ADES workers testified is meeting the Children's social, educational, medical, psychological and emotional needs. The juvenile court found that Father "demonstrated a lack of consistency and reliability as a parent" and in addition to cancelling visits, he "failed to maintain regular positive communication by phone or letter." The court further found that the Children need "a permanent home where they can rely upon their parents" to meet their "physical, mental, educational, emotional and special needs."
¶28 Though it would have been preferable for the juvenile court to issue express findings regarding the enumerated factors and how the severance would benefit the Children, there is sufficient evidence in the record to support the court's conclusion that severance would benefit the Children and that the enumerated factors were proven by a preponderance of the evidence. Accordingly, we affirm the juvenile court's finding that severance was in the best interests of the Children.
CONCLUSION
¶29 For the foregoing reasons, we affirm the termination of Father's parental rights as to these three children.
PETER B. SWANN, Judge CONCURRING: DIANE M. JOHNSEN, Presiding Judge PATRICIA A. OROZCO, Judge