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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                              PAULE C., Appellant,

                                         v.

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

                              No. 1 CA-JV 18-0315
                                FILED 8-1-2019


            Appeal from the Superior Court in Maricopa County
                              No. JD530310
                The Honorable Karen L. O’Connor, Judge

                       REVERSED AND REMANDED


                                    COUNSEL

John L. Popilek, PC, Scottsdale
By John L. Popilek
Counsel for Appellant

Arizona Attorney General’s Office, Tucson
By Michelle R. Nimmo
Counsel for Appellee Department of Child Safety



                        MEMORANDUM DECISION

Judge Kent E. Cattani delivered the decision of the Court, in which
Presiding Judge David D. Weinzweig and Judge Jennifer M. Perkins joined.
                           PAULE C. v. DCS, J.H.
                            Decision of the Court

C A T T A N I, Judge:

¶1             Paule C. (“Father”) appeals from the superior court’s order
severing his parental rights as to his son, J.H. Termination was based in
part on concerns raised in the late-stage denial of Father’s application under
the Interstate Compact on the Placement of Children (“ICPC”) to have J.H.
reside with him in Florida. Because Father was not allowed an adequate
opportunity to address these concerns and thereby avoid severance, we
conclude that Father was denied due process. Accordingly, we reverse the
termination of Father’s parental rights and remand for further proceedings
consistent with this decision.

             FACTS AND PROCEDURAL BACKGROUND

¶2             Father and Charlinda H. (“Mother”)1 were living in Florida
when Mother left for Arizona. She was eight months pregnant and alleged
domestic violence by Father. She gave birth to J.H. a few weeks later in
September 2016. J.H. had significant medical issues. He suffered a stroke
in utero, resulting in a large void filled with fluid in the right side of his
skull, and a shunt was placed in his head. He was paralyzed on the left side
of his body and suffered from a clotting disorder. J.H. was also born
substance-exposed to marijuana, and the Department of Child Safety
(“DCS”) took him into care shortly after his birth.

¶3           Mother informed DCS that Father was J.H.’s biological father,
and Father, who still lived in Florida, contacted DCS and sought to establish
paternity, which he did several months later. Father also indicated that he
would participate in whatever services were necessary to have J.H. placed
in his care.

¶4           Based on Mother’s allegations, DCS alleged J.H. was
dependent as to Father due to domestic violence, substance abuse, and
mental health issues. Father denied the dependency allegations but
submitted the issue to the superior court, which found J.H. dependent.

¶5           Because Father lived in Florida, DCS submitted an ICPC
application under Arizona Revised Statutes (“A.R.S.”) §§ 8-548 to -548.06 to
place J.H. with Father. In March 2017, the Florida social worker who
conducted the ICPC evaluation denied Father’s application because he had



1       Mother’s parental rights as to J.H. were previously terminated, and
she is not a party to this appeal.


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                          PAULE C. v. DCS, J.H.
                           Decision of the Court

not completed services and because two rooms in his house were locked,
preventing inspection.

¶6            DCS then began providing Father with reunification services,
all of which he successfully completed. These services included a
psychological evaluation, Skype visits with J.H., transportation for in-
person visits with J.H. in Arizona, drug testing, and counseling, which
included 20 group sessions. Father also found and paid for counseling
services in Florida on his own. Additionally, he participated in parenting
classes, networked with parents of special-needs children, and found
resources for children with special needs.

¶7           Father never tested positive for illegal substances, and,
consequently, he was not required to drug test after June 2017.
Additionally, DCS was unable to substantiate Mother’s claims about
domestic violence, so domestic-violence concerns and services were
removed from Father’s case plan.

¶8            Despite Father’s compliance with the case plan, in January
2018 DCS filed a motion to terminate based on Father’s failure to file a
notice of claim of paternity with Arizona’s putative fathers registry. See
A.R.S. § 8-533(B)(6). The next month, however, DCS submitted a second
ICPC application. As of March 2018, DCS’s position was that Father “was
compliant with all of the DCS services,” and DCS was simply waiting for
the ICPC to be approved.

¶9            In June 2018, the second ICPC was denied. The ICPC social
worker in Florida expressed several areas of concern, including her belief
that Father had not satisfactorily remedied substance-abuse concerns
because he refused to submit to one random drug test and had not
articulated a robust relapse prevention plan. The social worker also
expressed concern that Father was previously involved in an intimate
relationship with Mother’s mother before he began his relationship with
Mother. And the social worker noted Father’s lack of local support and his
lack of a bond with J.H., with whom he had never lived. Finally, the social
worker cited to police records documenting that Mother had twice accused
Father of domestic violence in 2016.

¶10          After the second ICPC denial, DCS amended its motion to
terminate, adding the severance ground of 15 months’ out-of-home
placement. See A.R.S. § 8-533(B)(8)(c). The superior court conducted the
termination adjudication hearing over three days in July and August 2018.
The court severed Father’s parental rights as to J.H., finding grounds for



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                           PAULE C. v. DCS, J.H.
                            Decision of the Court

termination based on 15 months’ out-of-home placement and that
severance would be in J.H.’s best interests.2

¶11           Father timely appealed. We have jurisdiction under A.R.S. §
8-235(A).

                               DISCUSSION

¶12            Termination of parental rights requires clear and convincing
evidence of a statutory ground set forth in A.R.S. § 8-533(B) and proof by a
preponderance of the evidence that termination is in the best interests of the
child. Alma S. v. Dep’t of Child Safety, 245 Ariz. 146, 149–50, ¶ 8 (2018). We
generally review the superior court’s severance ruling for an abuse of
discretion, viewing the evidence in the light most favorable to affirming the
court’s ruling. Ariz. Dep’t of Econ. Sec. v. Matthew L., 223 Ariz. 547, 549, ¶ 7
(App. 2010); Mary Lou C. v. Ariz. Dep’t of Econ. Sec., 207 Ariz. 43, 47, ¶ 8
(App. 2004). But we review de novo the court’s legal conclusions and other
questions of law. Frank R. v. Mother Goose Adoptions, 243 Ariz. 111, 114–15,
¶ 17 (2017); Meryl R. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 24, 25, ¶ 4 (App.
1999).

¶13            Parental rights may be severed based on 15 months’ out-of-
home placement if (1) the child has been in out-of-home placement for at
least 15 months, (2) DCS made diligent efforts to provide the parent with
appropriate reunification services, (3) the parent has been unable to remedy
the circumstances requiring out-of-home placement, and (4) there is a
substantial likelihood that the parent will be unable to provide proper and
effective parental care and control in the near future. A.R.S. § 8-533(B)(8)(c).

¶14           Because parents have a fundamental liberty interest in the
care and custody of their children, the state may only terminate a parent–
child relationship if, consistent with the commands of due process, it
provides the parent with “fundamentally fair procedures.” See Santosky v.
Kramer, 455 U.S. 745, 753–54 (1982). A fundamentally fair procedure
requires DCS to make reasonable efforts to preserve the familial


2       The superior court also found statutory grounds for severance based
on Father’s failure to file a notice of claim of paternity with the putative
fathers registry. See A.R.S. § 8-533(B)(6). DCS did not address this ground
in its answering brief, and conceded at oral argument that Father’s parental
rights could not be terminated on this basis because he in fact established
paternity. We accept DCS’s concession and thus reverse the superior
court’s finding of severance grounds under § 8-533(B)(6).


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                            PAULE C. v. DCS, J.H.
                             Decision of the Court

relationship, see Mary Ellen C. v. Ariz. Dep’t of Econ. Sec., 193 Ariz. 185, 191–
92, ¶ 32 (App. 1999), which includes undertaking “‘measures with a
reasonable prospect of success’ in reuniting the family.” Jordan C. v. Ariz.
Dep’t of Econ. Sec., 223 Ariz. 86, 94, ¶ 20 (App. 2009) (quoting Mary Ellen C.,
193 Ariz. at 192, ¶ 34). Although DCS need not provide every conceivable
service to preserve the family, it must either provide the parent with the
time and the opportunity to improve his parenting ability or demonstrate
that such efforts would be futile. See Mary Ellen C., 193 Ariz. at 192–93, ¶¶
34, 37, 39.

¶15           The requirement that DCS make diligent efforts to reunite the
family relates to its burden to prove that the parent is unfit based on one of
the statutory grounds for severance. Jordan C., 223 Ariz. at 96, ¶ 31. Absent
such efforts, DCS cannot reasonably assess the parent’s progress or
determine whether the parent has been unable to remedy the circumstances
that necessitated out-of-home placement. See id.

¶16           Here, DCS did not allow Father the time and opportunity to
remedy the circumstances necessitating the placement. Nor did DCS
demonstrate that such efforts would be futile. See Mary Ellen C., 193 Ariz.
at 192–93, ¶¶ 37, 39. The court terminated Father’s parental rights based on
new, late-raised concerns outlined in the second ICPC denial for which
Father never received time or services to address. Thus, Father was denied
the “fundamentally fair procedure” that due process requires. See Santosky,
455 U.S. at 753–54.

¶17          After Father’s first ICPC was denied, he remedied the
circumstances leading to the denial. Father was also compliant with his
case plan, and by March 2018, Father had successfully completed all
services.

¶18           Nevertheless, after the Florida social worker denied Father’s
second ICPC application in May 2018, a few weeks later, DCS (and
subsequently the superior court) relied on concerns underlying that denial
to support severance even though the concerns had not been raised in
Father’s case plan. Father was not provided with services to address some
of the concerns underlying the ICPC denial, and, in some instances, DCS
had even told Father that it did not have a concern. For example, the Florida
social worker cited the two police calls Mother made in 2016 alleging
domestic violence by Father. But DCS was aware of Mother’s allegations
and had nevertheless removed domestic violence from Father’s case plan.
Regarding the social worker’s concern about Father’s past intimate
relationship with Mother’s mother, even assuming that this might in some


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                          PAULE C. v. DCS, J.H.
                           Decision of the Court

way bear on Father’s fitness as a parent, DCS did not inform Father about
this concern. And although the social worker posited concerns about the
bond between Father and J.H., DCS noted no such concerns. Father
participated regularly in Skype visits, he was never advised he needed to
physically visit J.H. more often, and DCS case workers witnessed positive
in-person interactions between Father and J.H. Similarly, Father was never
advised that he should attend J.H.’s medical appointments in person rather
than telephonically.

¶19           Substance abuse was a common concern both addressed by
DCS and offered as a reason for ICPC denial. The Florida social worker
cited to Father’s refusal to immediately submit to one random drug test at
work, as well as his “unsatisfactory” relapse prevention plan. Although
Father refused one random drug test requested by the Florida social
worker, he submitted a sample just days later and tested negative. And by
that point, DCS had for months told Father that he was compliant with his
case plan and even stopped requiring drug testing given Father’s uniformly
negative drug test results. Father had also completed a counseling program
that included relapse prevention work, group therapy, and AA meetings.
One slightly delayed drug test after Father successfully completed all DCS-
mandated substance-abuse services does not constitute clear and
convincing evidence that Father was unable to remedy the circumstances
necessitating out-of-home placement. See Jordan C., 223 Ariz. at 93, ¶ 18.

¶20           And even though J.H. had been in foster care for almost two
years, DCS did not establish that providing additional reunification
services would be futile. See Mary Ellen C., 193 Ariz. at 193, ¶ 39. In fact,
Father demonstrated throughout the entire dependency proceeding that
additional efforts would not have been futile. He reached out to DCS about
J.H. and complied with all DCS requests. He attended every court
proceeding, either telephonically or in person, and participated in the
Foster Care Review Board meetings. He searched for and found a
counseling program that met DCS’s requirements. He found a daycare for
J.H. designed for children with special needs. He researched J.H.’s medical
conditions and spoke with J.H’s doctors. And he testified that he was
willing to continue participating in services if requested by the court. The
only evidence purporting to establish futility was the DCS case worker’s
testimony that she had never before applied for a third ICPC and was
unsure if another jurisdiction would review a third application. But such
administrative concerns do not constitute clear and convincing evidence of
unfitness to parent or that services would not be helpful.




                                     6
                           PAULE C. v. DCS, J.H.
                            Decision of the Court

¶21             We also note that ICPC approval turns primarily on whether
an out-of-state placement is in the best interests of the child. See A.R.S. § 8-
548, art. I, art. III(d). But parental rights cannot be terminated based on a
best-interests determination alone. DCS must first prove by clear and
convincing evidence that a parent is unfit under a statutory ground. See
Santosky, 455 U.S. at 759–61; Alma S., 245 Ariz. at 150, ¶ 9; see also Donald W.
v. Dep’t of Child Safety, No. 1 CA-JV 18-0322, 2019 WL 2181154, at *9, ¶ 42
(Ariz. App. May 21, 2019) (“A denied ICPC alone does not preclude a
parent from gaining custody of the child.”); cf. Vivek S. Sankaran, Out of
State and Out of Luck: The Treatment of Non-Custodial Parents Under the
Interstate Compact on the Placement of Children, 25 Yale L. & Pol’y Rev. 63, 83–
87, 89 (2006).

¶22           In sum, the second ICPC was denied for reasons that Father
had already addressed to DCS’s satisfaction or that DCS had never raised,
much less given Father the “time and opportunity” to remedy. See Mary
Ellen C., 193 Ariz. at 192, ¶ 37. Because DCS and the superior court relied
on these newly raised concerns to support severance based on 15 months’
out-of-home placement—notwithstanding the absence of any opportunity
for Father to address and resolve these issues—Father was denied due
process, and we thus reverse the termination of his parental rights.

                                CONCLUSION

¶23            For the foregoing reasons, we reverse the order terminating
Father’s parental rights and remand for further proceedings consistent with
this decision.




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




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