Vernon H. v. Dcs, E.H.

                      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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.




                                     IN THE
              ARIZONA COURT OF APPEALS
                                 DIVISION ONE


                            VERNON H., Appellant,

                                         v.

            DEPARTMENT OF CHILD SAFETY, E.H., Appellees.

                              No. 1 CA-JV 19-0040
                                FILED 10-27-2020


            Appeal from the Superior Court in Maricopa County
                              No. JD30552
                 The Honorable Jeanne M. Garcia, Judge

                                   AFFIRMED


                                    COUNSEL

John L. Popilek, P.C., Scottsdale
By John L. Popilek
Counsel for Appellant

Arizona Attorney General’s Office, Phoenix
By Doriane F. Neaverth
Counsel for Appellee Department of Child Safety
                         VERNON H. v. DCS, E.H.
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Jennifer B. Campbell and Judge Maurice Portley1 joined.


W I N T H R O P, Judge:

¶1             Vernon H. (“Father”) appeals the juvenile court’s order
terminating his parental rights to E.H. Father argues the Department of
Child Safety (“DCS”) failed to meet its burden of proof as to the grounds
for termination. Father also contends that, by ignoring his relationship with
E.H., the juvenile court erred in finding that severance was in the child’s
best interests. In addition, Father argues the court abused its discretion in
declining to grant a continuance when Father failed to appear for the final
day of the severance hearing. For the following reasons, we affirm.

                FACTS2 AND PROCEDURAL HISTORY

¶2             In March 2015, DCS received a report that E.H., then six years
old, had witnessed a domestic violence dispute between Father and his
then-girlfriend (“Girlfriend”). After the incident, Father represented that
Girlfriend had moved out, and E.H. was allowed to remain in Father’s
home. However, just two months later, Girlfriend attempted suicide while
E.H. was present. Father then allowed E.H. to ride in the ambulance with
Girlfriend and to remain in Girlfriend’s hospital room while Girlfriend was
yelling about wanting to hurt herself. Just a few days later, Father allowed
E.H. to ride alone in a vehicle with Girlfriend, who was driving while
intoxicated and collided with another car. Girlfriend and E.H. were taken
to the hospital; Girlfriend’s blood alcohol level measured over three times
the legal limit. DCS assumed custody of E.H. at the hospital.




1      The Honorable Maurice Portley, Retired Judge of the Court of
Appeals, Division One, has been authorized to sit in this matter pursuant
to Article 6, Section 3, of the Arizona Constitution.

2       We review the facts and reasonable inferences therefrom in the light
most favorable to affirming the juvenile court’s order. Ariz. Dep’t of Econ.
Sec. v. Matthew L., 

223 Ariz. 547

, 549, ¶ 7 (App. 2010).


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                         VERNON H. v. DCS, E.H.
                           Decision of the Court

¶3            Following these incidents, DCS filed a dependency petition,
alleging Father had neglected E.H. by failing to protect E.H. from
Girlfriend’s substance abuse, mental health episodes, and acts of domestic
violence. The court adjudicated E.H. dependent after Father failed to
appear for the dependency hearing in August 2015.

¶4            DCS offered services to Father to facilitate reunification with
E.H., including parenting classes with a domestic violence component,
parent aide services, transportation services, psychological evaluations,
and counseling services. In the following months, Father made some
progress with his services, completing multiple parenting classes, an
outpatient domestic violence counseling program, and a psychological
evaluation. However, Father did not consistently attend his individual
counseling and was closed out from counseling on multiple occasions
because of his lack of participation.

¶5            The court conducted a severance hearing in May 2017. The
court declined to terminate Father’s parental rights, noting difficulties
caused by the high turnover of case managers (seven case managers over a
two-year period), which resulted in lapses in communication with DCS.
The court also recognized that Father consistently had positive visits with
E.H. and had completed a domestic violence program and parenting
classes. The court stated that the only service Father had not completed
was individual counseling, but the court was “optimistic that Father
[would] successfully complete his individual counseling” and be able to
exercise proper and effective parental care and control in the near future.
The court also found there was a “strong bond” between Father and E.H.
The court then reinstated the case plan of family reunification and
specifically cautioned Father to “complete his individual counseling
expeditiously.”

¶6             In the following months, Father did not comply with the
court’s directive, failing to participate on numerous occasions in scheduled
counseling services, and was therefore closed out of such services by
multiple providers. DCS also became concerned that Father was
experiencing substance abuse issues or mental health problems. The court
ordered Father to submit a hair follicle drug test and DCS referred Father
for another psychological evaluation, but Father did not complete either the
test or evaluation. Thus, the court changed the case plan to severance and
adoption.

¶7           During the same time, Father also missed around half of his
scheduled visits with E.H.—now nine years old—and she began exhibiting


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                         VERNON H. v. DCS, E.H.
                           Decision of the Court

escalating negative behaviors. Because of this, a psychologist who
evaluated E.H. directed that the previously-recommended visits with
Father be suspended until E.H. and Father’s negative behaviors stabilized,
Father completed the court-ordered hair follicle drug test, and E.H. could
be evaluated for additional services. Accordingly, DCS moved to suspend
Father’s visitation in November 2018 and the court granted the motion.

¶8            A second severance hearing was held in November and
December 2018. Father did not appear for the last day of the hearing. The
court granted Father’s counsel’s request to take a thirty-minute recess to
wait for Father but, after that time expired, declined to further continue the
hearing. The court did not enter any form of default against Father based
on his nonappearance, but did allow closing arguments to proceed in
Father’s absence.3

¶9             The court took the matter under advisement, and issued a
final ruling on February 1, 2019, terminating Father’s parental rights to E.H.
based on the fifteen-month time-in-care ground pursuant to Arizona
Revised Statutes (“A.R.S.”) section 8-533(B)(8)(c). The court also found E.H.
was in an adoptive placement and severance was in her best interests.
Father timely appealed the order.

¶10           Two months after Father filed his notice of appeal, however,
a case manager reported to the Foster Care Review Board that E.H. was not
in an adoptive placement, was “demonstrating sexualized behaviors,”
“inappropriately touched another child in the home,” and was working
with a therapist “to address trauma she has experienced.” As a result of
this information, Father argued in his opening brief that the case should be
remanded for an evidentiary hearing as to the circumstances of any abuse
and E.H.’s best interests, noting that the court and DCS had rejected
Father’s previous concerns that E.H. was being sexually abused while in
DCS care.4



3       About six weeks after the severance hearing concluded, Father filed
a letter with the court seeking to explain his absence. The court declined to
consider Father’s ex parte communication and encouraged Father to
“contact his counsel to file a properly supported and served Motion on all
parties.” No such motion was ever filed.

4      During the 2018 severance hearing, Father’s counsel informed the
court that Father believed E.H. had been sexually abused while in DCS care,



                                      4
                         VERNON H. v. DCS, E.H.
                           Decision of the Court

¶11            A previous panel of this Court considered the parties’ briefs,
noted that the Foster Care Review Board report was contrary to the juvenile
court findings relied on in terminating Father’s parental rights, and issued
an order staying the appeal and re-vesting jurisdiction in the juvenile court
to determine whether E.H. was still adoptable and whether severance was
in E.H.’s best interests.

¶12            In March 2020, the juvenile court held an evidentiary hearing
to reevaluate its best-interests determination. At the hearing, a DCS
adoption specialist testified that although E.H. had not actually been in an
adoptive placement when the termination order was issued, E.H. was
currently in an adoptive placement and was an adoptable child. Following
completion of the hearing, the court affirmed the previous best-interests
finding, stating that even if E.H. had not been in an adoptive placement at
the time of severance, the court had consistently noted that she was an
otherwise adoptable child. The court then issued new findings of fact and
conclusions of law on March 25, 2020.

¶13          Father filed a second notice of appeal.5 We have jurisdiction
pursuant to A.R.S. §§ 8-235(A), 12-120.21(A)(1), and 12-2101(A)(2).

                                ANALYSIS

       I.     Standard of Review

¶14            Parents have a fundamental liberty interest in the care,
custody, and management of their children. Kent K. v. Bobby M., 

210 Ariz. 279

, 284, ¶ 24 (2005). A court may sever parental 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 child’s
best interests. See A.R.S. §§ 8-533(B), -537(B); Kent 

K., 210 Ariz. at 281-82

,
288, ¶¶ 7, 41.



a program supervisor testified that Father had previously filed a report
with DCS to report the abuse, and Father testified that he believed E.H. had
been sexually abused.

5      The superior court granted Father’s request to file an untimely
second notice of appeal, based on the unique procedural history of the case
and Father’s reliance on this Court’s prior representation that the appeal
would be “automatically reinstated.” Accordingly, this Court reinstated
Father’s appeal and allowed the parties to file supplemental briefs.


                                      5
                          VERNON H. v. DCS, E.H.
                            Decision of the Court

¶15             We review the juvenile court’s order severing a parent’s rights
for an abuse of discretion, and we will not disturb the court’s order unless
no reasonable evidence supports its factual findings. E.R. v. Ariz. Dep’t of
Child Safety, 

237 Ariz. 56

, 58, ¶ 9 (App. 2015); Matthew 

L., 223 Ariz. at 549

,
¶ 7. As the trier of fact in a termination proceeding, the juvenile court “is
in the best position to weigh the evidence, observe the parties, judge the
credibility of witnesses, and resolve disputed facts.” Jordan C. v. Ariz. Dep’t
of Econ. Sec., 

223 Ariz. 86

, 93, ¶ 18 (App. 2009) (quoting Ariz. Dep’t of Econ.
Sec. v. Oscar O., 

209 Ariz. 332

, 334, ¶ 4 (App. 2004)). We will not reweigh
the evidence on appeal. See Jesus M. v. Ariz. Dep’t of Econ. Sec., 

203 Ariz. 278

,
282, ¶ 12 (App. 2002).

       II.    Severance Pursuant to A.R.S. § 8-533(B)(8)(c)

¶16            Father argues severance pursuant to A.R.S. § 8-533(B)(8)(c)
was improper because he had remedied the circumstances that caused E.H.
to be in an out-of-home placement—to wit, his failure to protect E.H. from
Girlfriend—by ending his relationship with Girlfriend around three years
prior to the 2018 severance hearing.

¶17           The juvenile court may terminate parental rights pursuant to
A.R.S. § 8-533(B)(8)(c) if DCS has made diligent efforts to provide
reunification services, the child has been in an out-of-home placement for
fifteen months or longer, and “the parent has been unable to remedy the
circumstances that cause the child to be in an out-of-home placement and
there is a substantial likelihood that the parent will not be capable of
exercising proper and effective parental care and control in the near future.”

¶18          Unlike the shorter time-in-care grounds that require the
parent to have “substantially neglected or wilfully refused” to remedy the
circumstances causing the child to be in an out-of-home placement, the
fifteen-month ground requires only that the parent has been “unable to
remedy the circumstances.” Compare A.R.S. § 8-533(B)(8)(a), with (B)(8)(c).

¶19           Here, Father does not dispute that E.H. has been in DCS care
for approximately five years, nor does he challenge the experts’ opinions as
to the therapies needed as a prerequisite to reunification or the adequacy of
services he was offered. Over the years, Father has engaged in and
completed multiple services, including parenting classes and parent aide
services. However, Father’s participation in individual counseling has been
inconsistent and, ultimately, noncompliant. Although Father’s therapy
records from 2017-2018 with counselor Brian Colwell intermittently
indicate Father was engaged and making some progress in counseling



                                       6
                          VERNON H. v. DCS, E.H.
                            Decision of the Court

sessions, the fact remains that Father never successfully completed his
individual counseling, despite the court declining to sever Father’s rights
in 2017 and instead explicitly granting him additional time and directing he
use that time to finish his individual counseling. Father also refused to
complete the court-ordered hair follicle drug test or additional
psychological evaluations to assuage DCS’s ongoing concerns about his
erratic and aggressive behaviors.6

¶20           While Father may have ended his relationship with
Girlfriend, reasonable evidence supports the juvenile court’s conclusion
that Father still had not remedied the circumstances that brough E.H. into
DCS care because Father—despite express direction from the court on
multiple occasions—never obtained a “professional’s opinion that he
[could now] protect his daughter from the hazards of a dysfunctional
relationship.” In addition, the juvenile court did not abuse its discretion in
finding there was a substantial likelihood that Father would not be able to
exercise effective parental control in the near future. Father repeatedly
exhibited erratic or hostile behaviors in front of E.H. As noted previously,
Father also failed to complete necessary individual counseling despite
being given years to do so, and there was no reason to believe Father would
timely complete such counseling even if granted additional time. See
Maricopa Cnty. Juv. Action No. JS-501568, 

177 Ariz. 571

, 577 (App. 1994)
(holding a parent’s window of opportunity for remediation need not
remain open indefinitely).

       III.   Best Interests of the Child

¶21           Father also argues the court erred in concluding severance
was in E.H.’s best interests because he and E.H. had a strong bond and he
never posed any risk of harm to E.H. He contends the only evidence of any




6       Father contends the juvenile court’s order cited reasons for severance
that were never alleged in the original dependency petition, such as
Father’s substance abuse and mental health issues. But Father’s potential
substance abuse or mental health issues were not cited as additional
grounds for termination, but as ongoing circumstances requiring extension
of E.H.’s out-of-home placement. Although Father’s substance abuse or
mental health issues were not explicitly referred to in the initial dependency
petition, “circumstances” under A.R.S. § 8-533(B)(8) includes circumstances
“existing at the time of the severance.” See Marina P. v. Ariz. Dep’t of Econ.
Sec., 

214 Ariz. 326

, 330, ¶ 22 (App. 2007).


                                        7
                         VERNON H. v. DCS, E.H.
                           Decision of the Court

deterioration of his bond with E.H. came from the DCS case manager and
contradicted a bonding assessment conducted in 2017.

¶22            The best interests of the child “are a necessary, but not
exclusively sufficient, condition for an order of termination.” Maricopa
Cnty. Juv. Action No. JS-500274, 

167 Ariz. 1

, 5 (1990). The juvenile court must
balance the parent’s interest in the care and custody of the child “against
the independent and often adverse interests of the child in a safe and stable
home life.” Kent 

K., 210 Ariz. at 286

, ¶ 35. The best-interests inquiry must
also “include a finding as to how the child would benefit from a severance
or be harmed by continuation of the [parent-child] relationship.” 

JS-500274, 167 Ariz. at 5

.

¶23           Here, the juvenile court noted that the previously-strong
bond between Father and E.H. had eroded because of Father’s lack of
consistent visits and his erratic behaviors in E.H.’s presence. This
conclusion was supported by the case manager’s testimony, and we will
not reweigh the evidence on appeal nor reevaluate the credibility of
witnesses. See Jesus 

M., 203 Ariz. at 282

, ¶ 12. Moreover, other reasonable
evidence supports the court’s best-interests determination. After the March
2020 hearing, the court confirmed that E.H. was in an adoptive placement
that was meeting all of her needs, including her behavioral needs. The court
found that the placement had provided E.H. with necessary structure and
that E.H.’s previous behaviors were under control. In addition, termination
would further the case plan of adoption: the placement intends to adopt
E.H., which would grant her the stability and permanency she has been
lacking for the past five years. See Oscar 

O., 209 Ariz. at 334

, ¶ 6.
Accordingly, reasonable evidence supports the juvenile court’s finding that
termination of Father’s parental rights was in E.H.’s best interests.

       IV.    Denial of Request for Continuance

¶24            Father also argues the court abused its discretion in declining
to grant a further continuance when Father failed to appear on the final day
of the 2018 severance hearing, despite Father’s otherwise long history of
participation in relevant court proceedings.

¶25            “The grant or denial of a continuance is reviewed only for an
abuse of discretion.” In re Maricopa Cnty. Super. Ct. No. MH2003-000240, 

206 Ariz. 367

, 369, ¶ 10 (App. 2003). “A motion to continue is not granted as a
matter of right. Such motion will be granted only if in the discretion of the
trial court circumstances exist making delay indispensible [sic] to the
interests of justice.” State v. Ashelman, 

137 Ariz. 460

, 465 (1983).



                                      8
                        VERNON H. v. DCS, E.H.
                          Decision of the Court

¶26           Here, there is no indication Father was prejudiced by the
refusal to grant a further continuance before proceeding to complete the
hearing. The court did not default Father nor find he waived his right to
have his counsel present evidence or argument. Father had the opportunity
to present his case and cross-examine witnesses on the previous days of the
hearing. The only testimony remaining for the final day was, according to
Father’s counsel, “maybe ten more minutes” of direct examination of Father
and then cross-examination of Father. If anything, the inability to cross-
examine Father prejudiced DCS more than Father. The court heard only
the closing arguments of counsel on the last day. Moreover, despite being
invited to do so, Father never later filed a motion to reopen documenting
good cause for his absence, see supra note 3. See Ariz. R.P. Juv. Ct. 46(F)
(“Motions to continue shall be granted only upon a showing of good
cause.”). On this record, we cannot say the juvenile court abused its
discretion in refusing to grant a continuance. See In re Pima Cnty. Juv.
Severance Action No. S-2462, 

162 Ariz. 536

, 538 (App. 1989) (explaining that
in considering a motion to continue, the court recognizes that the child’s
“best interests are at risk” and “require expedient consideration”).

                              CONCLUSION

¶27          For the foregoing reasons, we affirm the juvenile court’s order
terminating Father’s parental rights to E.H.




                          AMY M. WOOD • Clerk of the Court
                          FILED: AA




                                        9
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