                          NOTICE: NOT FOR PUBLICATION.
   UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
          LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                              JUAN A., Appellant,

                                        v.

            DEPARTMENT OF CHILD SAFETY, I.T., Appellees.

                             No. 1 CA-JV 16-0156
                               FILED 11-1-2016


           Appeal from the Superior Court in Maricopa County
                            No. JD 510779
                  The Honorable James P. Beene, Judge

                                  AFFIRMED


                                   COUNSEL

Gates Law Firm, LLC, Buckeye
By S. Marie Gates
Counsel for Appellant

Arizona Attorney General’s Office, Mesa
By Ashlee N. Hoffmann
Counsel for Appellee, Department of Child Safety
                           JUAN A. v. DCS, I.T.
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Patricia A. Orozco delivered the decision of the Court, in which
Presiding Judge Andrew W. Gould and Judge Peter B. Swann joined.


O R O Z C O, Judge:

¶1            Juan A. (Father) appeals the court’s termination of his
parental rights to his daughter, I.T. For the following reasons, we affirm.

                 FACTS AND PROCEDURAL HISTORY

¶2            In January 2013, Arizona Department of Child Safety (DCS)
initiated dependency proceedings as to Father, alleging that I.T. was
dependent due to neglect. After the issue of dependency was submitted to
the court, I.T. was found dependent. DCS filed a severance action in
December 2015, alleging as grounds for termination the length of time in an
out-of-home placement.

¶3            After a contested severance hearing, the court took the matter
under advisement and terminated Father’s rights on the grounds that I.T.
had been in an out-of-home placement for fifteen months or longer.1 The
court further determined Father failed to remedy the circumstances
resulting in placement and a substantial likelihood existed Father would
remain incapable of providing effective parental care and control in the
near future despite DCS’ “diligent efforts to provide reunification services.”
The court also found DCS proved by a preponderance of the evidence the
severance was in I.T.’s best interests.

¶4            Father timely appealed. We have jurisdiction pursuant to
Article 6, Section 9, of the Arizona Constitution, and Arizona Revised
Statutes (A.R.S.) sections 8-235.A, 12-120.21.A.1 and -2101.A (West 2016).2


1      The court terminated Mother’s rights to I.T., but she is not a party to
this appeal.

2     We cite to the current version of applicable statutes absent any
change material to this decision.




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                            JUAN A. v. DCS, I.T.
                            Decision of the Court

                                DISCUSSION

¶5             Father argues the court erred in terminating his parental
rights “because his housing [and] employment situation wasn’t what [DCS]
thought it should be” and further contends that “it is not in [I.T.]’s best
interest to be separated from her biological father.”3

¶6              A parent-child relationship may be terminated when a court
finds at least one of the statutory grounds for severance and determines that
severance is in the child’s best interests. A.R.S. § 8-533.B; Mary Lou C. v.
Ariz. Dep’t of Econ. Sec., 207 Ariz. 43, 47, ¶ 8 (App. 2004). We review a court’s
severance determination for an abuse of discretion, adopting its findings of
fact unless clearly erroneous. Id. A severance will be upheld unless there
is no evidence to sustain the court’s ruling. Id. Under A.R.S. § 8-533.B.8(c),
a parent’s rights may be terminated when a child has been placed out of
home

       for a cumulative total period of fifteen months or longer[,] . . .
       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.

I.     Ground for Severance

       A.     Time in an Out-of-Home Placement

¶7             At the contested severance hearing, the DCS case manager
testified that I.T. had been in DCS care for over thirty-five months. Father
did not dispute I.T.’s length of time in DCS care at the severance hearing or
on appeal.

       B.     Inability to Remedy Circumstances Resulting in Placement

¶8           The court considers the circumstances at the time of severance
in determining whether the conditions resulting in a child’s removal have
been cured. Marina P. v. Ariz. Dep’t of Econ. Sec., 214 Ariz. 326, 330, ¶ 22

3     Father’s counsel fails to direct this court to any authority or cite to
evidence in the record supporting his arguments on appeal. Nonetheless,
we review the entire record for error, as a parent’s right to control and
custody of his child is a fundamental, constitutional right. See Matter of
Maricopa Cty., Juv. Act. No. JA 33794, 171 Ariz. 90, 91 (App. 1991).


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                            JUAN A. v. DCS, I.T.
                            Decision of the Court

(App. 2007). The court must find the parent is “unable to remedy the
circumstances that cause[d] the child to be in an out-of-home placement.”
A.R.S. § 8-533.B.8(c). As part of its analysis, the court must take into account
the reunification services provided by DCS. See Jordan C. v. Ariz. Dep’t of
Econ. Sec., 223 Ariz. 86, 93, ¶ 17 (App. 2009).

¶9           As grounds for dependency, DCS alleged that Father
neglected I.T. by failing to provide stable housing or financial support.
According to the case manager, although Father obtained housing as of
December 2015, three months before the severance hearing, “[h]e would
need to maintain this particular residence for a substantial period of time in
order to consider it stable.” The DCS case manager also testified Father
received drug testing and treatment, along with parent aid referrals, and
Father does not dispute the adequacy of DCS services.

¶10           Furthermore, Father was required to obtain stable
employment as part of the case plan; the first time he presented any
evidence of employment was at the severance hearing. The pay stub Father
presented at the March 2016 hearing to prove employment was from
January 2015. Additionally, Father admitted his employment was
temporary. As a result, the DCS case manager concluded Father “has been
unable to provide a safe environment or a stable home, and financial means
in order to [provide for] the daily needs of his child on a consistent basis”
for the previous thirty-five months, and thus failed to cure the
circumstances leading to I.T.’s out-of-home placement. Lastly, against the
advice of his DCS case manager, Father left Arizona for a job for “three or
four months,” during which time he had only phone visits with I.T.

¶11            Finding that “Father’s first and only submission of
documentary evidence to substantiate his employment occurred just prior
to the initiation of the hearing” and the evidence submitted “is not from
Father’s current employer,” the court concluded “that Father’s de minimus
effort[] at remediation does not negate the fact that [I.T.] has been in an
out-of-home placement for over three (3) years and Father has only begun
[to] address his unstable employment and housing issues.” The court
found that even with DCS’ appropriate reunification efforts, Father’s
employment and living situation remained unstable.

       C.     Likelihood of Inability to Exercise Proper and Effective Care

¶12         In addition to finding Father unable to remedy the
circumstances resulting in the out-of-home placement, the court must also
find DCS proved by clear and convincing evidence that Father will be



                                       4
                            JUAN A. v. DCS, I.T.
                            Decision of the Court

unable to properly parent in the near future. See Jordan C., 223 Ariz. at 98,
¶ 36. As a result of Father’s inconsistent employment and housing, I.T.
remained in DCS care and the case manager concluded a substantial
likelihood Father would remain incapable of exercising parental care and
control in the near future existed. The court agreed, finding Father had
been unable to provide the basic necessities for I.T. for almost three years
and lacked the “necessary parental skills to properly and effectively care
for [I.T.] in the near future.” Because evidence in the record supports the
grounds for termination, we find no error.

II.    Best Interests Determination

¶13            “Whether severance is in the child’s best interests is a question
of fact for the juvenile court to determine.” Jesus M. v. Ariz. Dep’t of Econ.
Sec., 203 Ariz. 278, 282, ¶ 13 (App. 2002). A court’s best interests
determination must consider whether the child would benefit from
termination or, in the alternative, whether continuation of the parent-child
relationship would be harmful. Mary Lou C., 207 Ariz. at 50, ¶ 19. Existence
of an adoptive plan is sufficient evidence that termination would result in
a benefit. Id. (citation omitted).

¶14            At the time of severance, I.T. resided in a licensed foster home
with her half-brother. According to the DCS case manager, the placement
had cared for the children during the dependency proceedings, and met
I.T.’s “physical, social, educational, medical, psychological and emotional
needs.” The court heard testimony that I.T. and her half-brother have
special needs and are bonded. I.T.’s foster parent testified I.T. and her half-
brother had never been apart for more than twenty-four hours and to
separate them would be detrimental to both children. Her foster parent
further testified he was prepared to adopt I.T.

¶15           The court concluded that I.T. would benefit from termination
of Father’s parental rights, finding that “compelling testimony . . .
established that [I.T.] and [her] half-sibling would suffer extreme trauma if
separated from one another.” Because evidence in the record supports the
court’s determination, we find no error.




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                          JUAN A. v. DCS, I.T.
                          Decision of the Court

                             CONCLUSION

¶16           For the foregoing reasons, we affirm the court’s severance of
Father’s rights to I.T.




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




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