                                IN THE
            ARIZONA COURT OF APPEALS
                            DIVISION ONE


                        ALYSSA W., Appellant,

                                    v.

                       JUSTIN G., J.G., Appellees.

                         No. 1 CA-JV 17-0393
                           FILED 11-15-2018


           Appeal from the Superior Court in Mohave County
                        No. L8015SV201607005
          The Honorable Douglas Camacho, Judge Pro Tempore

                   REVERSED AND REMANDED


                              COUNSEL

Silk Law Office, Lake Havasu City
By Melinda Silk
Counsel for Appellant
                      ALYSSA W. v. JUSTIN G., J.G.
                         Opinion of the Court



                                OPINION

Judge Maria Elena Cruz delivered the opinion of the Court, in which
Presiding Judge Michael J. Brown and Judge David W. Weinzweig joined.



C R U Z, Judge:

¶1             Alyssa W. (“Mother”) challenges the juvenile court’s order
denying her petition to terminate the parental rights of Justin G. (“Father”)
to their son, J.G. Mother argues the court erroneously placed the burden
on her to demonstrate that she personally made reasonable efforts to help
Father overcome his alcohol abuse and reunify him with J.G. We hold that
Arizona Revised Statutes (“A.R.S.”) section 8-533(B) does not require a
private party seeking to terminate another’s parental relationship to make
affirmative efforts to reunify that parent, but only to show that necessary
rehabilitative services were made available to the parent or it would have
been futile. We reverse and remand for a best interests determination.

               FACTUAL AND PROCEDURAL HISTORY

¶2             J.G. was born in Lake Havasu City, in December 2012; his
parents lived together for a time but never married. Mother and Father
separated due, in part, to Father’s alcohol abuse and Mother eventually
filed a petition to terminate Father’s parental rights to J.G.

¶3             Following a contested severance hearing, the juvenile court
found that (1) Father has a history of alcohol abuse; (2) his alcohol abuse
causes him to be unable to discharge his parental responsibilities; and (3) a
reasonable belief exists that Father’s chronic alcohol abuse will continue.
After finding that “Father’s unawareness of his substance abuse issues . . .
shows that any attempts at [persuading him to seek help for his substance
abuse issues] would likely have been futile,” the court nonetheless declined
to sever Father’s parental rights because Mother failed to make reasonable
efforts to reunify the family or show, notwithstanding its own earlier
finding of likely futility, that such efforts would have been futile.




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                       ALYSSA W. v. JUSTIN G., J.G.
                          Opinion of the Court

¶4           Mother filed a timely notice of appeal. We have jurisdiction
pursuant to A.R.S. § 8-235(A) and Arizona Rule of Procedure for the
Juvenile Court 103(A).1

                               DISCUSSION

¶5            Mother argues the juvenile court erred when it interpreted
A.R.S. § 8-533(B) to require her, a private party, to prove she made
reasonable efforts to reunify Father with J.G. or that such efforts would have
been futile.2

¶6            We review de novo the court’s interpretation of a statute. See
Linda V. v. Ariz. Dep’t of Econ. Sec., 211 Ariz. 76, 78, ¶ 7 (App. 2005). When
construing a statute, we look first to the statutory language; if the language
is plain and unambiguous, we apply it without resorting to other rules of
statutory construction. Ariz. Dep’t of Econ. Sec. v. Superior Court, 186 Ariz.
405, 408 (App. 1996). If the language of a statute or rule is unambiguous,
“we apply it as written.” Roberto F. v. DCS, 237 Ariz. 440, 441, ¶ 6 (2015).
Only if the language is unclear do “we apply secondary principles of
construction.” Id.

¶7             To terminate parental rights, a juvenile court must first find
by clear and convincing evidence, A.R.S. § 8-863(B), the existence of at least
one statutory ground for termination pursuant to A.R.S. § 8-533(B). Kent K.
v. Bobby M., 210 Ariz. 279, 284, ¶ 22 (2005). Section 8-533(B)(3) permits the
termination of parental rights when it is shown “[t]hat the parent is unable
to discharge parental responsibilities because of . . . a history of chronic
abuse of . . . alcohol and there are reasonable grounds to believe that the
condition will continue for a prolonged indeterminate period.”

I.     When the State Petitions to Terminate Parental Rights

¶8            Although the Department of Child Safety (“DCS”) is the
moving party on most parental terminations in Arizona, the relevant statute
specifically allows private parties to petition for severance. A.R.S. § 8-
533(A) (“Any person or agency that has a legitimate interest in the welfare

1      J.G. is not subject to the Indian Child Welfare Act.

2      No answering brief was filed. Thus, since Mother has raised a
debatable issue, we may “treat the lack of a response as a confession of error
and reverse on that basis.” In re Pinal Cty. Juv. Action No. S-389, 151 Ariz.
564, 565 (App. 1986). In our discretion, we decline to do so.



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                       ALYSSA W. v. JUSTIN G., J.G.
                          Opinion of the Court

of a child, including, but not limited to, a relative, a foster parent, a
physician, the department or a private licensed child welfare agency,” may
commence a severance proceeding); see A.R.S. §§ 8-531(2), -501(A)(3)
(defining “agency” and “department”).

¶9              At issue here is a requirement applicable to some grounds for
severance that the parent must have received “appropriate reunification
services.” The statute expressly requires proof of “reunification services”
when a parent’s rights are to be severed based on the length of time the
child has been in the care of the DCS. A.R.S. § 8-533(B)(8) (six months, nine
months, fifteen months in care); § 8-533(B)(11)(b) (child who has been
returned to parent but is removed again within eighteen months). In these
situations, the statute expressly places on the State the burden of providing
the parent with reunification services, requiring proof that “the agency
responsible for the care of the child has made a diligent effort to provide
reunification services.” A.R.S. § 8-533(B)(8), (11). In these instances, the
State must show that it made reasonable efforts to reunify the family or
demonstrate such efforts would have been futile. Mary Lou C. v. Ariz. Dep’t
of Econ. Sec., 207 Ariz. 43, 50, ¶ 18 (App. 2004) (“rehabilitative measures on
the part of ADES would have been futile in remedying the cause for
Appellant’s inability to discharge parental responsibilities by the time of
the severance hearing.”).

¶10            Although not an express requirement of the statute, this court
has held the State likewise must prove it offered reunification services to a
parent whose rights it seeks to sever on grounds of mental illness or chronic
substance abuse, including alcohol. See Jennifer G. v. Ariz. Dep’t of Econ. Sec.,
211 Ariz. 450, 453, ¶ 12 (App. 2005); Mary Ellen C. v. Ariz. Dep’t of Econ. Sec.,
193 Ariz. 185, 192, ¶ 34 (App. 1999). In Mary Ellen C., this court found the
State has a duty under the constitution to show it has made reasonable
efforts to preserve the family before it can seek severance based on mental
health grounds. 193 Ariz. at 192, ¶ 32. Specifically, we reasoned, “our
courts have defined it on constitutional grounds as a necessary element of
any state attempt to overcome what the United States Supreme Court has
described as the ‘fundamental liberty interest of the natural parents in the
care, custody and management of their child.’” Id. (citing Santosky v.
Kramer, 455 U.S. 745, 753 (1982)). Accordingly, DCS must give parents the
time and opportunity to participate in programs that could help them
become effective parents prior to moving for severance. See Maricopa Cty.
Juv. Action No. JS-501904, 180 Ariz. 348, 353 (App. 1994). The same
reasoning was later applied to severances based on chronic substance
abuse, including alcohol, in Jennifer G., 211 Ariz. at 453.



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                       ALYSSA W. v. JUSTIN G., J.G.
                          Opinion of the Court

II.    When a Private Party Petitions to Terminate Parental Rights

¶11            Severance proceedings implicate the same fundamental
constitutional liberty interests of a parent, whether commenced by DCS or
a private party, because the object of the proceedings is the same—namely,
a court-ordered permanent loss of the parent’s relationship with the child.
“The combined effect of the fundamental character of a parent’s right to his
child and the severity and permanence of termination dictates that the court
sever the parent-child relationship only in the most extraordinary
circumstances, when all other efforts to preserve the relationship have
failed.” Maricopa Cty. Juv. Action No. JA 33794, 171 Ariz. 90, 91-92 (App.
1991) (citations omitted). But the question here is whether private parties
seeking a severance must meet the same requirements as the State.

¶12            Mother sought severance based on A.R.S. § 8-533(B)(3),
arguing that Father was “unable to discharge parental responsibilities
because of . . . chronic abuse of . . . alcohol.” We conclude a private party
seeking severance on that ground must show that the parent was offered
reunification services or that such services would have been futile.

¶13           To be clear, although the statute does not explicitly require
private parties to prove that reasonable efforts at family reunification have
been made when seeking severance of parental rights on the basis of
chronic substance abuse, we hold that in such a case, severance requires
proof that services were offered, but the parent’s alcohol abuse was not
amenable to rehabilitative services, or that providing such services would
be pointless.

¶14           We do not hold, however, that a private party seeking
severance on grounds of alcohol abuse must herself have offered or
provided those “appropriate reunification services” to the parent. As
noted, A.R.S. § 8-533(B) expressly imposes that requirement on the State in
certain situations, but the statute does not impose the same duty on a
private party seeking severance. Accordingly, the private party need not
necessarily attempt to persuade the parent to seek treatment, or seek
treatment referrals for the parent, or attempt to coax the parent into services
by offering some incentive in the hope rehabilitation will somehow
materialize. We recognize that, unlike a government agency, private
parties may not be in a position to make available to the parent the “type of
therapy [that] offer[s] the most hope for enabling the [parent] to carry out
[their] parental responsibilities[,]” nor can most private parties engage in
the type of “prolonged,” painstaking efforts readily available to the State.
Maricopa Cty. Juv. Action No. JS-5209 & JS-4963, 143 Ariz. 178, 189 (App.


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                       ALYSSA W. v. JUSTIN G., J.G.
                          Opinion of the Court

1984). Neither are private parties usually able to engage in the follow up
necessary to sufficiently secure a service provider’s medical or therapeutic
records to adequately monitor the parent’s progress, or lack thereof; nor
should they be required to do so.

¶15            Instead, the private party need only show that the parent
whose rights are to be severed has either already received or been offered
the necessary rehabilitative services from some provider to no avail or that
engaging the parent in rehabilitative services would be futile. Evidence of
efforts by the private party to encourage or induce the parent to participate
in services may be offered by the private party seeking severance, but it is
not required.

III.   Mother’s Burden in This Case

¶16            The juvenile court found “Mother failed to prove by clear and
convincing evidence that she made reasonable efforts to reunify the family
or that such efforts would have been futile,” but also found “Father’s
unawareness of his substance abuse issues, even today, shows that any
attempts at persuasion would likely have been futile.” We look to the record to
resolve these inconsistent findings. We review a juvenile court’s order in a
severance matter for an abuse of discretion and accept the court’s factual
findings unless clearly erroneous. Mary Lou C., 207 Ariz. at 47, ¶ 8.

¶17          In determining what reasonable efforts Mother could have
made to assist Father in his rehabilitation, the court reached the following
conclusions:

       The Court recognizes Mother’s difficulty in determining what
       efforts would be reasonable for her to take. Mother has no
       authority to control Father because he is an adult and can
       make his own decision. She could not have forced Father to
       go to outpatient treatment, inpatient treatment, alcoholics
       anonymous, or some other support group. For this reason,
       the main efforts that Mother could have made would have been to
       try to persuade him to seek treatment for his substance abuse.

(Emphasis added.) The court also found that, although Mother testified she
talked to Father about his drinking and told him to get help and “Father
agreed that Mother and Father had spoken about Father’s drinking, and
that Mother told him he should not drink after work,” that nonetheless
Mother enabled Father’s drinking when she assisted him in driving
impaired by blowing into the breathalyzer machine installed on his vehicle
and that “she never requested that Father be ordered, [in the family court


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                      ALYSSA W. v. JUSTIN G., J.G.
                         Opinion of the Court

case,] to treatment or counseling.” Therefore, it found “Mother did not take
reasonable efforts to help Father address his alcohol abuse issues, and
thereby reunify the family (Father and [J.G.]).”

¶18            In determining whether efforts to assist Father would have
been futile, the court stated there was “no evidence to suggest that it would
have been futile for Mother to have offered Father unsupervised parenting
time if he successfully an [sic] completed alcohol abuse treatment[,]” and
that there was “no evidence that asking the Court to condition parenting
time on providing clean alcohol tests and obtaining alcohol abuse treatment
would not have been futile.”3

¶19          Contrary to the court’s findings at ¶ 18 supra, the record
contains ample evidence to suggest Father’s parenting time had already
been adversely affected by his substance abuse. The frequency, location
and supervised nature of his parenting time were the result of his alcohol
abuse, and yet, those limitations did not cause him to address his alcohol
abuse issues. Also, Mother testified that in the parties’ family court case,4
Mother asked the court to deny Father parenting time because his chronic
alcohol abuse made him unfit to parent. Further, as her petition alleged:

      Domestic violence has occurred between the parties. He
      drinks almost every night and can become violent when he
      drinks. He will come home drinking after leaving the gym.
      He does not spend time with our son or attempt to have a
      parent/child relationship. He has a breathalyzer installed in
      his vehicle. He has an interest in different women, and not
      having the parent/child relationship has ended the
      relationship. I feel our son deserves better.

¶20         In that contested proceeding Mother was awarded sole legal
decision-making authority over J.G. and Father was granted parenting


3       Although this latter statement reads as supporting a finding of
futility, the context suggests a typographical error in the inclusion of the
word “not,” and that the court intended to say, “no evidence that asking
the Court to condition parenting time on providing clean alcohol tests and
obtaining alcohol abuse treatment would have been futile.”

4      The court took judicial notice of Mother’s Petition to Establish Legal
Decision Making, Parenting Time Rights, and Child Support as filed on
October 24, 2014, and of the minutes of the default hearing held on June 29,
2015, both filed in Mohave County Superior Court case no. DO-2014-07830.


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                       ALYSSA W. v. JUSTIN G., J.G.
                          Opinion of the Court

time, but only when supervised by a third party as approved by Mother.
The juvenile court heard testimony from J.G.’s maternal grandfather and
his wife. The two grandparents relocated to Lake Havasu to serve as third
party supervisors of Father’s parenting time with J.G. They both testified
to the need for their relocation to assist with parenting time supervision,
that during a visit Father arrived smelling of alcohol, “that he just sat there
on the bench . . . was just all sprawled over, had [an] energy drink in his
hand, eyes bloodshot, just . . . he wasn’t interacting at all.” Given the
previous family court proceedings, Father was well aware that his chronic
alcohol consumption affected his parenting time and was the reason for the
supervised nature of the visits. The findings that there was “no evidence to
suggest that it would have been futile for Mother to have offered Father
unsupervised parenting time, if he successfully an [sic] completed alcohol
abuse treatment,” and that there was “no evidence that asking the Court to
condition parenting time on providing clean alcohol tests and obtaining
alcohol abuse treatment would not have been futile” are not supported by
the record.

¶21           In contrast, the record most assuredly supports the juvenile
court’s finding that “Father’s unawareness of his substance abuse issues,
even today, shows that any attempts at persuasion would likely have been
futile.” As previously stated at ¶ 7, supra, in this case Mother was required
to prove all elements of A.R.S. § 8-533(B)(3), and she was also separately
required to establish the futility of making attempts at reunification. The
court found that all of the elements of A.R.S. § 8-533(B)(3) were established
when it found that Father has a “history of alcohol abuse,” that his “alcohol
abuse causes him to be unable to discharge parental responsibilities,” and
that “there is a reasonable belief that the chronic alcohol abuse will
continue.” In light of our holding that Mother did, in fact, establish the
futility of making reunification attempts, the result is that the statutory
ground alleged is now proven.

IV.    Best Interests Finding on Remand

¶22             To grant a petition for severance, the court must also find by
a preponderance of the evidence that termination is in the child’s best
interests. See Kent K., 210 Ariz. at 284, ¶ 22. On remand, the juvenile court
must determine whether termination of Father’s parental rights would be
in J.G.’s best interests.




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                      ALYSSA W. v. JUSTIN G., J.G.
                         Opinion of the Court

                              CONCLUSION

¶23           Because the court’s denial of Mother’s petition to terminate
Father’s parental rights is based solely on Mother’s failure to show that
efforts to reunify the family (Father and child) would be futile, we reverse
the court’s orders and judgment and remand for further proceedings.

¶24            On remand, the court, having previously found Mother has
proven by clear and convincing evidence all elements of termination
pursuant to A.R.S. § 8-533(B)(3), shall now determine whether severance is
also in the child’s best interests.




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




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