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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                             WILLIE W., Appellant,

                                         v.

     DEPARTMENT OF CHILD SAFETY, J.W., E.W., R.W., Appellees.

                              No. 1 CA-JV 15-0375
                               FILED 9-13-2016


            Appeal from the Superior Court in Maricopa County
                              No. JD511098
                The Honorable Karen L. O’Connor, Judge

                                   AFFIRMED


                                    COUNSEL

The Stavris Law Firm, PLLC, Scottsdale
By Alison Stavris
Counsel for Appellant

Arizona Attorney General’s Office, Mesa
By Nicholas Chapman-Hushek
Counsel for Appellee Department of Child Safety
                         WILLIE W. v. DCS et al.
                          Decision of the Court



                      MEMORANDUM DECISION

Judge Peter B. Swann delivered the decision of the court, in which
Presiding Judge Patricia A. Orozco and Judge Jon W. Thompson joined.


S W A N N, Judge:

¶1            Willie W. (“Father”) appeals the termination of his parental
rights for J.W., E.W., and R.W. He contends that the state failed to present
sufficient evidence to support severance based on the grounds that the
children were out of his care for fifteen consecutive months. He also
contends that the Department of Child Safety (“the Department”)1 did not
make reasonable efforts to preserve his family and failed to provide
adequate reunification services. Finally, he asserts that the trial court
erred in finding that severance was in the best interests of the children.

                FACTS AND PROCEDURAL HISTORY

¶2            The Department removed two children from Father and
Mother’s custody in May 2013 and removed the third immediately after
         2

her birth in July 2013, and the court found the children dependent as to
both parents. In December 2014, the Department moved to change the
case plan to severance, alleging the children had been in an out-of-home
placement for fifteen or more months pursuant to a court order. At the
severance hearing, the issue was primarily whether the Department had
provided adequate services and made reasonable efforts to reunite the
family. The following evidence was presented at the severance hearing.


1      Pursuant to S.B. 1001, Section 157, 51st Leg., 2nd Spec. Sess. (Ariz.
2014) (enacted), the Department of Child Safety is substituted for the
Arizona Department of Economic Security in this matter. See ARCAP 27.
For convenience, in the text of our decision we refer to both the
Department of Child Safety and the Arizona Department of Economic
Security as “the Department.”

2      Mother also had her parental rights terminated on the grounds that
the children had been in an out-of-home placement for fifteen months and
that mental illness or mental deficiency prevents her from caring for the
children. She is not a party to this appeal.



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                         WILLIE W. v. DCS et al.
                          Decision of the Court
¶3            Father has a long history of substance and alcohol abuse and
has had convictions for drug-related offenses. The parents had prior
contact with the Department for allegations of neglect and abuse of J.W.
and neglect of E.W., though previous reports were largely
unsubstantiated. In 2011, Mother and J.W. were hit by a vehicle while
they were crossing the street and suffered traumatic brain injuries. Both
J.W. and Mother experienced ongoing cognitive issues from the accident,
and Mother was no longer able to parent the children independently.
They received an award from the case arising from the accident that pays
for their care. Father became the primary caretaker for Mother. But he
had difficulty acknowledging that Mother was not capable of becoming
independent after the accident.

¶4            In May 2013, Father ran into a parked car while he was
driving under the influence of alcohol with his two older children in the
car. Because the Department believed Mother was unable to care for the
children independently, the children were temporarily placed in the
Department’s custody. The Department petitioned the court to declare
the children dependent, alleging that Father was unable to parent because
of neglect, substance abuse and mental health issues.

¶5           Mother gave birth to R.W. in July 2013, though neither
parent knew that Mother was pregnant until a few weeks before she gave
birth. R.W. was immediately removed from her parents, and the
Department alleged that the child was dependent as to Father because of
substance abuse, neglect and the dependency case for the two older
children. The court found all three children dependent as to Father.

¶6             The Department referred Father for substance abuse
treatment and psychological evaluation. The psychologist opined that
Father was overwhelmed with his many responsibilities and had turned
to drinking as a means of coping with stress. She reported that if Father
“attain[ed] emotional stability and sobriety,” his prognosis to be a
minimally adequate parent was “guarded to fair.” He was referred for
individual counseling, but he did not cooperate with the therapists
assigned to him and requested to change therapists twice before he was
closed out of services for nonparticipation. Father had disagreements
with the parent aides during visits with the children, but the final parent-
aide report stated that his case was closed because he “has achieved all
Behavioral Changes related to safety to address the reasons the children
were placed into custody.” The Department’s caseworker signed the final
report, approving the termination, though she then testified at the
severance trial that she did not agree with the final report’s finding that
Father had completed the program. Father was also required to


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                         WILLIE W. v. DCS et al.
                          Decision of the Court
participate in random drug screenings. According to a Department
report, he inconsistently participated in drug testing, but completed a
standard outpatient-treatment course for substance abuse.

¶7            In May 2014, Father pleaded guilty to one count of
aggravated driving while under the influence of intoxicating liquor. The
court suspended his sentence and placed him on three years of probation,
though he was required to serve eight months in jail as a condition of
probation. While in jail, Father voluntarily participated in anger
management and substance abuse classes, but he did not receive the
services recommended in the psychological evaluation. The Department
caseworker sent update letters to him. Father did not respond in writing
or send any letters or cards, but the letters from the Department did not
contain the Department’s address, and the caseworker was not aware if he
received the envelope with the address.3 Father testified at the severance
hearing that he had attempted to call the caseworker but that the
caseworker’s phone number did not accept collect calls. He did, however,
call J.W. and E.W. from jail. The caseworker agreed that the Department
did not provide Father with some of the services recommended by the
psychologist.

¶8            In December 2014, while Father was still in jail, the
Department moved to have parental rights terminated. After Father left
jail in January 2015, the Department again referred him for services. He
resumed drug testing but was, once again, inconsistent, though he did
produce clean test results once a month for many months. Father’s
substance abuse counselor testified that Father immediately reengaged in
counseling after he left jail, and he always informed them when he missed
a test. She believed he was not using alcohol. The case aide for home
visitations, however, testified that during the October 14, 2015 visit, the
parents took beer to the house. The substance abuse counselor testified
that did not concern her because Father admitted there was beer in the
house and did not try to hide it.

¶9           The Department referred Father for another psychological
evaluation, conducted in June 2015 by Dr. Thal.              The report
recommendations stated that it was “imperative” that Father work with a
parent aide to improve his parenting skills and commit to therapy with a

3      Father testified that he is not comfortable writing and prefers oral
communication. A psychological assessment confirmed that Father has
low literacy skills. There is no evidence that the Department attempted to
accommodate for this.



                                    4
                         WILLIE W. v. DCS et al.
                          Decision of the Court
“doctoral level therapist . . . on a weekly basis,” but the psychologist did
not think it was likely that Father would become a minimally adequate
parent. Dr. Thal later clarified that a therapist with a doctoral degree was
not necessary but he recommended a “[person] who usually ha[d]
amassed considerable expertise and usually a lot of credits beyond [his]
masters.” The caseworker testified that Father was “offered” counseling
but the Department did not refer him because he had “refused.” Father
was finally referred for individual counseling in May at the request of his
counsel but was not assigned a therapist until August. But in spite of the
psychologist’s recommendation, the Department referred Father to a
masters-level therapist and did not provide instruction by a parent aide.

¶10           At the initial severance hearing in January 2015, the court
ordered therapeutic visitation with R.W. to resume, and at a pre-trial
conference in February the court again ordered therapeutic visits with
R.W. The Department did not comply; in a minute entry from May, the
court ordered the Department to “provide a written explanation as to why
the order of 1/26/2015 was not complied with” and to provide parents
and counsel a therapy session schedule for the next 90 days. Almost three
months after the Department reinstated therapeutic visitation, it moved
the court to suspend the visitations because “Father lacks impulse control
and his behaviors have become unpredictable.” In particular, the
therapist supervising visitation stated in a letter to the caseworker that
Father had been “exhibiting some hostile behavior toward [the] therapist
and the office manager.” The court, however, denied the motion and
expected visits to resume. At the severance hearing in September 2015,
the court questioned the Department’s counsel about why the visits had
not resumed and was informed that in spite of the court’s order, the
current therapist refused to see Father, requiring the Department to
submit another referral.

¶11           At the hearing, Father’s attorney informed the court that the
Department had not timely provided her with all the records it intended
to introduce into evidence. And the caseworker admitted that she
possibly had not documented all her contacts with Father, though the
Department policy required it. The court expressed uncertainty about
whether the Department had provided Father with reasonable
reunification services. Nevertheless, the court found that the Department
had shown by clear and convincing evidence that the children had been in
an out-of-home placement for fifteen months and that by a preponderance
of the evidence, termination was in the best interests of the children. The
court ordered parental rights terminated. Father appeals.




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                          WILLIE W. v. DCS et al.
                           Decision of the Court
                               DISCUSSION

¶12            To sever parental rights, the court must find clear and
convincing evidence of at least one statutory ground for severance, and
that a preponderance of the evidence shows that severance is in the best
interests of the child. A.R.S. § 8-533(B); Jennifer G. v. Ariz. Dep’t of Econ.
Sec., 211 Ariz. 450, 453, ¶ 12 (App. 2005). The court’s order must articulate
specific findings of fact to support the severance. A.R.S. § 8-538(A); Ariz.
R.P. Juv. Ct. 66(F)(2)(a). We accept the court’s findings of fact unless they
are not supported by any reasonable evidence, and we will affirm the
severance order unless it is clearly erroneous. Jesus M. v. Ariz. Dep’t of
Econ. Sec., 203 Ariz. 278, 280, ¶ 4 (App. 2002).

I.     THE TRIAL COURT DID NOT ERR IN FINDING THAT
       SEVERANCE WAS IN THE BEST INTERESTS OF THE
       CHILDREN.

¶13          The best-interests determination must explain “how the
[children] would benefit from a severance or be harmed by the
continuation of the relationship.” Raymond F. v. Ariz. Dep’t of Econ. Sec.,
224 Ariz. 373, 379, ¶ 30 (App. 2010) (citation omitted). The court may
consider factors such as whether an adoptive placement is immediately
available and whether an existing placement is meeting the children’s
needs. Audra T. v. Ariz. Dep’t of Econ. Sec., 194 Ariz. 376, 377, ¶ 5 (App.
1998).

¶14           Father contends that the court erred in finding that
severance was in the best interests of the children; we disagree. The court
found that the children’s current placements were meeting their needs,
particularly for J.W. who has special needs arising from the 2011 accident.
Additionally, R.W. is placed in an adoptive placement. This case has been
ongoing for nearly three years at this point, and as the court stated in its
order, “[t]he children have the right to a safe, stable and permanent home
where all of their needs are met.”

II.    THE COURT DID NOT ERR IN FINDING THE STATUTORY
       GROUNDS FOR TERMINATION.

¶15           The Department alleged that the children had been in an
out-of-home placement for a cumulative period of fifteen months or
longer, that Father had been unable to remedy the circumstances
necessitating the out-of-home placement, and that there is a substantial
likelihood that Father will not be capable of exercising proper and
effective parental care and control in the near future. See A.R.S. § 8-


                                      6
                          WILLIE W. v. DCS et al.
                           Decision of the Court
533(B)(8)(c). It also alleged that Father was offered drug testing, substance
abuse assessment and treatment, a parent aide, psychological assessment,
visitation with the children and transportation.4

¶16           Father contends both that the trial court erred in finding that
his children were in an out-of-home placement for fifteen months or
longer and that the Department did not make reasonable efforts to unify
the family. It is undisputed that the children have been out of the parents’
home for more than fifteen months pursuant to a court order, but there is
some question about whether the Department has provided adequate
services to Father. It has failed to implement some services recommended
by the psychologists, and failed to follow a court order. Dr. Thal’s
psychological assessment recommended parent-aide services and that
Father see a doctoral-level therapist. But the Department provided neither
parent-aide instruction nor a doctoral-level therapist, even though the
caseworker testified that she did not agree that Father had successfully
completed parent-aide services. Several therapists involved in Father’s
case recommended individual psychotherapy to help Father control his
anger and impulsive outbursts, but the Department did not refer Father
for any therapy to address this issue until May 2015. Father testified in
September that the therapist had not contacted him yet. Furthermore, the
Department failed to comply with a court order to provide Father with
therapeutic visitation with R.W. for nearly five months. Only after the
court asked for a written explanation did the Department comply, and
then it promptly moved to terminate visits again. When the court denied
the motion, the Department again failed to implement therapeutic
visitation. The Department argues that we do not need to examine if it
provided adequate services because its “efforts would have been futile”
and characterizes its actions as “diligent effort.”

¶17           It is true that the Department is not required to offer
reunification efforts if they would be futile. Mary Ellen C. v. Ariz. Dep’t of
Econ. Sec., 193 Ariz. 185, 192, ¶ 34 (App. 1999). With the exception of
substance abuse counseling, Father only began to substantially participate
after he was released from jail in January 2015. By that time, the children
had already been out of his care for more than fifteen months.
Additionally, Dr. Thal testified that Father’s progress was very slow:
“Let[’s] say he’s benefited [from services], but the benefit has come so
slowly and the cost has been the children lingering . . . day after day,


4     On at least one occasion, the Department failed to provide Father
transportation for a visitation.



                                      7
                         WILLIE W. v. DCS et al.
                          Decision of the Court
month after month, year after year in an out-of-home placement and their
lives being in this suspended situation.” He ultimately concluded that
Father was “not able to parent independently at this point in time,” and
that was not likely to change in the near future. We cannot say based on
the record here whether Father would have benefited from more
intervention, but the Department should have timely referred Father for
all recommended and ordered services after his release from jail before
concluding that such interventions were futile.

¶18          The failure by the Department to obey court orders is not a
phenomenon we take lightly. But to fashion an effective remedy, a party
must seek relief promptly. The court here would have granted a motion to
compel the Department to implement services had Father timely
submitted the motion, and its failure to do so may well have warranted
relief by way of special action. Though the Department’s performance in
this case was imperfect, we cannot on this record alter the result at this
juncture.

                             CONCLUSION

¶19          For the foregoing reasons, we affirm the order terminating
Father’s parental rights.




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




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