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    UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                              ANDREW B., Appellant,

                                           v.

       DEPARTMENT OF CHILD SAFETY, M.B., S.B., A.B., Appellees.1

                                No. 1 CA-JV 14-0202
                                  FILED 6-16-2015


              Appeal from the Superior Court in Maricopa County
                                No. JD509060
                   The Honorable Rodrick J. Coffey, Judge

                                     AFFIRMED


                                      COUNSEL

Maricopa County Public Advocate’s Office, Mesa
By Suzanne Sanchez
Counsel for Appellant

Arizona Attorney General’s Office, Tucson
By Cathleen E. Fuller
Counsel for Appellee Department of Child Safety




1The caption has been amended to safeguard the children’s identities
pursuant to Administrative Order 2013-0001.
                         ANDREW B. v. DCS, et al.
                          Decision of the Court



                       MEMORANDUM DECISION

Presiding Judge Samuel A. Thumma delivered the decision of the Court, in
which Judge Patricia A. Orozco and Judge Michael J. Brown joined.


T H U M M A, Judge:

¶1             Andrew B. (Father) challenges the superior court’s order
terminating his parental rights to his children, M.B., S.B., and A.B. Finding
no error, that order is affirmed.

                 FACTS2 AND PROCEDURAL HISTORY

¶2            Father is the biological father of M.B., born in 2005; S.B., born
in 2008 and A.B., born in 2009 (the Children). Amanda C. (Mother) is the
biological mother of the Children; her parental rights have been terminated
and she is not a party to this appeal.

¶3            In January 2011, the Department of Child Safety (DCS) took
the Children into custody after receiving reports that Father left the
Children with a family friend because he was afraid he would hurt them
and Mother had been hospitalized. When the Children came into care, two
alleged Father hit them and M.B. reported that a neighbor’s child, M.L., had
touched her inappropriately. Father generally denied the allegations and
refused to believe the allegations against M.L. DCS filed a dependency
petition alleging Father had neglected the Children by not taking care of
their needs and by failing to protect them from Mother’s substance abuse
and domestic violence. In February 2011, the Children were found
dependent after both Mother and Father denied the allegations but
submitted the matter to the court. The court adopted a family reunification
case plan.

¶4            DCS provided, and Father participated in, many family
reunification services. In June 2012, Father filed a motion for change in
physical custody, asking that S.B. and A.B. be placed in his physical


2This court views the evidence in a light most favorable to sustaining the
superior court’s findings. See Manuel M. v. Ariz. Dep’t of Econ. Sec., 218 Ariz.
205, 207 ¶ 2, 181 P.3d 1126, 1128 (App. 2008).



                                       2
                         ANDREW B. v. DCS, et al.
                          Decision of the Court

custody; by that time, the dependency had been pending for about a year
and a half. In August 2012, over DCS’ objection, the superior court granted
Father’s motion placing S.B. and A.B. in his physical custody. Shortly
thereafter, S.B. incurred an eye injury and Father and S.B. gave conflicting
stories as to how the injury occurred. In September 2012, DCS received a
report that Father had been mugged at the doorway to his hotel room while
S.B. and A.B. were inside the room. During this time, Father also missed
three visits with M.B., including a visit on her birthday. Father also refused
to transport S.B. and A.B. to some visits with M.B., who was not in Father’s
physical custody.

¶5             In December 2012, Father admitted he was aware of a
situation where M.L. and S.B. were in a closet and, when Father found
them, it looked “like [M.L.] was helping with a stuck zipper on her [S.B.’s]
pants.” S.B. reported inappropriate touching to Father but, despite the fact
that M.B. had made similar allegations against M.L, Father did not believe
S.B. Father continued to allow M.L. to be in the home when S.B. was
present. In February 2013, S.B. made disclosures to a therapist of additional
inappropriate touching and contact by M.L. Father did not believe S.B. and
his immediate response was to let M.L.’s mother know of the allegations.
Father also directed S.B. not to discuss any issues of a sexual nature with
her therapist and instead only bring those issues to him. S.B. also told a case
aide that Father said she could not tell anyone about the spankings she had
received from Father.

¶6           Later in February 2013, S.B. and A.B. were removed from
Father’s physical custody based on his failure to protect S.B. and to respond
appropriately to S.B.’s allegations against M.L. By that time, the
dependency had been pending for more than two years. After S.B. and A.B.
were removed from his physical custody, Father missed visits with them.

¶7            In September 2013, over Father’s objection, the superior court
changed the case plan to severance and adoption. DCS’ motion for
termination alleged Father had been unable to remedy the circumstances
that had caused the Children to be in an out-of-home placement for more
than 15 months and there was a substantial likelihood he would be unable
to exercise proper and effective parental care and control in the near future.

¶8            The superior court held a severance trial over the course of six
days in the first part of 2014. In June 2014 (reflected in a more formal July
2014 order), the superior court granted the motion and terminated Father’s
parental rights to the Children based on 15-months time-in-care. Father
timely appealed and this court has jurisdiction under Arizona Revised


                                      3
                         ANDREW B. v. DCS, et al.
                          Decision of the Court

Statutes (A.R.S.) sections 8-235, 12-120.21(A)(1) and -2101(A)(1) (2015) 3 and
Arizona Rules of Procedure for the Juvenile Court 103–04.

                               DISCUSSION

I.     DCS Made Diligent Efforts To Reunify The Family.

¶9            On appeal, Father claims DCS failed to make diligent efforts
to reunify the family because it did not provide reunification services other
than visitation after February 2013, when S.B. and A.B. were removed from
his care the second time. Father further contends DCS’ failure to make
diligent efforts is supported by the fact that DCS did not follow its own
experts’ recommendation for therapeutic visitation between Father and
M.B.

¶10           As applicable here, before DCS may terminate the parent-
child relationship, it must offer appropriate reunification services. See Mary
Ellen C. v. Ariz. Dep’t of Econ. Sec., 193 Ariz. 185, 192 ¶ 34, 971 P.2d 1046,
1053 (App. 1999). DCS satisfies this requirement if it provides the parent
with “the time and opportunity to participate in programs designed to help
[him or] her become an effective parent.” Maricopa Cnty. Juv. Action No. JS-
501904, 180 Ariz. 348, 353, 884 P.2d 234, 239 (App. 1994).

¶11            DCS provided Father and the Children numerous family
reunification services, including child and family team meetings, parent
aide services, a psychological consultation and evaluation, a psychiatric
evaluation, a psychosexual evaluation, therapeutic visitation, supervised
visitation, a self-referral for individual counseling and a family
reunification team. The fact that DCS did not offer services other than
supervised visitation after S.B. and A.B. were removed a second time is not
dispositive. In March 2013 and September 2013, the superior court found
without objection that DCS had made reasonable efforts to secure
permanency, including providing various services for Father. Moreover,
futile efforts are not required and DCS “is not required to provide every
conceivable service or to ensure that a parent participates in each service”
offered. Maricopa Cnty. Juv. Action No. JS-501904, 180 Ariz. 348, 353, 884 P.2d
234, 239 (App. 1994); see also Jordan C. v. Ariz. Dep’t of Econ. Sec., 223 Ariz.
86, 94 ¶ 20, 219 P.3d 296, 304 (App. 2009).




3Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.


                                       4
                         ANDREW B. v. DCS, et al.
                          Decision of the Court

¶12            Although Father argued that the facts leading to the second
removal of two of the Children are sufficiently different from the first
removal and thus DCS was required to offer Father additional services, the
court disagreed. The range of services offered to Father were designed to
help him keep the Children safe and promote effective parenting without
the use of physical force. Father, however, demonstrated that he was
unwilling or unable to protect the Children and continued to “engage in
deception to prevent anyone from knowing when his children [had] been
harmed by him or others.” Father was given “the time and opportunity to
participate in programs designed to help [him] become an effective parent”
and, on this record, providing further services would have been futile. See
Maricopa Cnty. Juv. Action No. JS-501904, 180 Ariz. 348, 353, 884 P.2d 234,
239 (App. 1994). Furthermore, there is no evidence that Father sought
specific additional services after S.B. and A.B. were removed from his
physical custody the second time. See Shawanee S. v. Ariz. Dep’t of Econ. Sec.,
234 Ariz. 174, 179 ¶18, 319 P.3d 236, 241 (App. 2014) (noting it is
“incumbent” on parent to raise with superior court concerns about
reunification services).

¶13           Similarly, Father argues that DCS should have offered him
therapeutic visits with M.B. after the suspension of visits in 2012.
Therapeutic visits with M.B. were offered in 2011 but, after a December 2011
psychological evaluation revealing M.B.’s considerable anxiety regarding
visits with Father, the psychologist recommended visits cease. In February
2012, based on reports from the earlier therapeutic visits in 2011, the
psychologist opined that visits could resume “as long as the visits continue
to be positive and appropriate.” Visits resumed, but in November 2012,
M.B. continued to express significant anxiety at the prospect of having visits
with Father and no longer wanted to see him. Father consented to the
cessation of visits with M.B and there is no evidence Father pursued
obtaining further visits after this agreement.

¶14           Reasonable evidence supports the superior court’s finding
that the provision of additional services after the second removal would
have been redundant and futile given Father’s failure to change his
behaviors. Accordingly, DCS fulfilled its obligation to make diligent efforts
to reunify the family. See Mary Ellen C. v. Ariz. Dep’t of Econ. Sec., 193 Ariz.
185, 192 ¶ 34, 971 P.2d 1046, 1053 (App. 1999).




                                       5
                          ANDREW B. v. DCS, et al.
                           Decision of the Court

II.    The Record Supports The Finding That Father Failed To Remedy
       The Circumstances And Was Unable To Parent The Children.

¶15           The superior court terminated Father’s parental rights
pursuant to A.R.S. § 8-533(B)(8)(c). This court will reverse an order
terminating parental rights only if the factual findings are clearly erroneous
or not supported by the record. See Audra T. v. Ariz. Dep’t of Econ. Sec., 194
Ariz. 376, 377, 982 P.2d 1290, 1291 (App. 1998). This court views the
evidence in a light most favorable to sustaining the superior court’s
findings. See Manuel M. v. Ariz. Dep’t of Econ. Sec., 218 Ariz. 205, 207 ¶ 2, 181
P.3d 1126, 1128 (App. 2008).

¶16          Pursuant to A.R.S. § 8-533(B)(8)(c), the Children must have
been in an out-of-home placement for a “cumulative total period of fifteen
months or longer” and the parent must have been “unable to remedy the
circumstances that cause[d] the child[ren] 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.” It is undisputed that the Children were in an out-of-home
placement for a cumulative total period far exceeding 15 months.

¶17           After Father participated in and completed numerous
services provided by DCS, both A.B. and S.B. were returned to his care for
several months before being removed a second time. Despite Father’s
completion of services, he was unable to remedy the circumstances that
caused the Children to be in an out-of-home placement. For example, the
superior court noted that Father allowed M.L. to be in the home, even after
M.B. and S.B. both accused M.L. of inappropriate sexual conduct. Father
admitted that the accusations by two of the Children of the same improper
conduct by the same individual raised a “red flag,” but it did not cause him
to prohibit contact with M.L. Moreover, Father called S.B. a liar and, instead
of getting help for S.B. given the disclosures, he informed M.L.’s mother to
warn her of the allegations. The superior court found, and the record
supports, that “[t]hroughout the relevant time period, Father has ignored
or minimized negative situations which put his children in danger.”

¶18            The superior court also found, and the record also supports,
that Father’s continued use of physical punishments even after completing
parent aide and family reunification services and Father’s efforts to conceal
his use of such punishments, evidenced his failure to change his behaviors.
Moreover, Father had been given more than two years to participate in
services designed to improve parenting skills.



                                       6
                         ANDREW B. v. DCS, et al.
                          Decision of the Court

¶19            Even if Father and M.B. had participated in more therapeutic
visitation, Father has not shown how this would have changed the fact that
he engaged in deception and was unwilling or unable to protect the
Children. Moreover, DCS “is not required to provide every conceivable
service or to ensure that a parent participates in each service” offered.
Maricopa Cnty. Juv. Action No. JS-501904, 180 Ariz. 348, 353, 884 P.2d 234,
239 (App. 1994). Although Father argues the evidence received should have
been weighed differently, this court does not reweigh the evidence. See Jesus
M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 282 ¶ 12, 53 P.3d 203, 207 (App.
2002) (citing cases).

¶20            Despite Father’s participation in DCS’ services, Father failed
to make the necessary changes in his behavior to ensure the Children’s
safety. Accordingly, viewed in the light most favorable to sustaining the
order, this record supports the factual findings resulting in the termination
of Father’s parental rights pursuant to A.R.S. § 8-533(B)(8)(c). See Manuel M.
v. Ariz. Dep’t of Econ. Sec., 218 Ariz. 205, 207 ¶ 2, 181 P.3d 1126, 1128 (App.
2008).

III.   The Record Supports The Finding That Terminating The Parent-
       Child Relationship Was In The Children’s Best Interests.

¶21            DCS was required to show by a preponderance of the
evidence that severance was in the best interests of the Children. Kent K. v.
Bobby M., 210 Ariz. 279, 288 ¶ 41, 110 P.3d 1013, 1022 (2005). The evidence
must show either that the Children “would derive an affirmative benefit
from termination or incur a detriment by continuing in the relationship.”
Ariz. Dep’t of Econ. Sec. v. Oscar O., 209 Ariz. 332, 334 ¶ 6, 100 P.3d 943, 945
(App. 2004) (citation omitted).

¶22           The trial evidence shows M.B. was in a potential adoptive
placement with a relative and that S.B. and A.B. were in a potential adoptive
placement. In addition, the DCS caseworker testified that termination of
Father’s parental rights would be in the best interests of the Children
because they were adoptable, “lovable kids, doing great [] now” and DCS
had concerns about Father’s use of physical punishment and lack of stable
housing. The trial evidence supports the superior court’s finding that
termination of Father’s parental rights would “benefit the children by
freeing them for adoption and providing them permanency after a lengthy
time in care.” Furthermore, trial evidence supports the conclusion that it
would be in the Children’s best interests to “not be placed with a parent
who refuses to acknowledge dangers and actual harm to the children and
who encourages them to lie or conceal harm that is inflicted upon them.”


                                       7
                         ANDREW B. v. DCS, et al.
                          Decision of the Court

These findings support the conclusion that severance was in the best
interests of the Children. See Kent K. v. Bobby M., 210 Ariz. 279, 288 ¶ 41, 110
P.3d 1013, 1022 (2005).

                               CONCLUSION

¶23          Because the superior court did not err, the order terminating
Father’s parental rights to M.B., S.B. and A.B. is affirmed.




                                      :ama




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