the court may waive the latter requirement “if reunification of the parent and child is not in the child's best in-terests because the parent is unwilling or unable to properly care for the child.” Id. A court must “give primary consideration to the physical, mental and emotional needs of the child.” § 8-871(C). In the context of proceedings to terminate parental rights, our courts have stated that ADES “need not provide ‘every conceivable service,’ but it must provide a parent with the time and opportunity to participate in programs designed to improve the parent's ability to care for the child.” Mary Ellen C. v. Ariz. Dep't of Econ. Sec., 193 Ariz. 185, ¶ 37, 971 P.2d 1046, 1053 (App.1999), quoting In re Maricopa County Juv. Action No. JS-501904, 180 Ariz. 348, 353, 884 P.2d 234, 239 (App.1994).
ADES filed a dependency petition alleging Fatherplaced “[son]in grave danger by driving with the child while intoxicated” and “us[ing] him as a shield” in a subsequent confrontation with police. ADES also alleged Father had a history of “domestic violence, assault and disorderly conduct” and might have mental health problems. The juvenile court approved a case plan for family reunification that included substance abuse treatment, random urinalysis, psychological evaluation and counseling. Thereafter, however, Father was incarcerated for violations.
Following his release, Father was evaluated by a psychologist who diagnosed him with alcohol dependance and narcissistic personality disorder with antisocial features. The psychologist opined that, although “[a]lcohol dependance can be treated with abstinence,” “[n]arcissistic personality features” are “highly resistant to treatment,” and “[a]ntisocial personality features do not respond to treatment.” She recommended that Father receive individual therapy, psychiatric consultation and parent aide services and that he participate in parenting classes, groups for batterers and individuals with grief issues, and substantial alcohol abuse treatment, including a twelve-step program.
Father participated in numerous services ADES provided him. However, ADES recommended that the court terminate Father's parental rights or establish a permanent guardianship based on Father's alleged failure to benefit sufficiently from those services. At the permanency hearing, the juvenile court changed the case plan goal to permanent guardianship and directed ADES to file a motion for guardianship.
The court held a four-day contested guardianship hearing afterwards noting that the case rested primarily on its determination of the credibility of the parties and witnesses. It did not find credible Father's testimony denying alcohol use and episodes of domestic violence and found that “[w]hile it is true that [Father] has actively participated in the services offered by CPS, it is readily apparent that he has not benefitted from them, his attitudes and behaviors have not changed, and he is not and will not be able to safely parent [son] in the foreseeable future.”
On appeal, Father challenges only the determination that ADES had made reasonable efforts to reunite him with his son. Specifically, he contends the individual therapy and parent aide services he received were lacking. The Court of Appeals did not agree, indicating
In her April 2008 evaluation, [pyshcologist] recommended [Father] engage in individual therapy. But she had no recommendation as to the specific qualifications for a therapist, stating at the guardianship hearing she thought “[a]nybody [who] could communicate with [Father] would be great.” Father was assigned an individual therapist by “CODAC,” the entity through which he received the bulk of his reunification services. Initially, CODAC assigned [D.T.], who also lead the “therapeutic groups” [Father] participated in at CODAC. [Father] appeared to have developed a therapeutic relationship with [D.T.] and apparently never expressed any dissatisfaction with him.”
Second,
“[P]sychologists [M.G. and E.L.] completed a family psychological evaluation of [Father], [son], Brandon and Jim. They opined that, given [Father's] “very deep-set characterological issues ... his prognosis [was] guarded.” But, they recommended [Father] continue to engage in services, including individual therapy. At the guardianship hearing, [M.G.] testified that, at the time, he and [E.L.] thought “[D.T.] was the right guy to” provide individual therapy to [Father]. Nonetheless, [Father's]case manager had become dissatisfied with the level of service [D.T.] had been providing. She also testified that [M.G and E.L.] had recommended a master's level therapist, and apparently shortly thereafter she discovered [D.T.] did not have this level of qualification. [D.T.] was, in fact, a counselor rather than a therapist or a master's level social worker. The case worker spoke with a supervisor at CODAC, and [Father] was reassigned to master's level therapist, [S.R.].
Third,
“[Father] began therapy with [S.R.] . . . and had five sessions with him between then and April 23, 2009, when [S.R.] left CODAC on medical leave. [Father] was then assigned to another master's level therapist, M.D., but he failed to attend the first two appointments he had scheduled with her and then failed to respond to her attempts to set further appointments. Thus, by the time of the guardianship hearing, [Father] had not been attending individual therapy for approximately four months.
Despite his failure to object to the juvenile court's previous determinations at dependency review and permanency hearings that ADES had been making “reasonable efforts” to preserve the family by providing them with various services, he argues on appeal that [D.T.] had not been providing him with appropriate therapy and that CPS should have known sooner [D.T.] was not sufficiently qualified to address his issues.
The Court stated:
“The evidence described above, however, does not support [Father's] arguments. Contrary to [Father's] contention on appeal, [psychologist] Plevell had not specified a master's level therapist was required, [Father] had not complained about his therapy, and he was assigned to a master's level therapist shortly after Drs. M.G. and E.L.] made that recommendation. Although the CPS case worker acknowledged at the guardianship hearing that [D.T.]'s provision of services had been “a problem,” there is no evidence CPS failed to make reasonable reunification efforts in relying on CODAC to assign an appropriate therapist initially and then working with CODAC staff to reassign [Father] to an appropriate individual therapist when [D.T.'s] lack of qualification came to light. Moreover, contrary to [Father's] contention, no evidence showed that, had the issue been discovered earlier, [Father] would have benefitted from counseling. He did not benefit from his sessions with [S.R.]. And as the juvenile court found, it was “readily apparent” from the evidence presented that, although [Father] had participated in numerous appropriate services, he had not benefitted from any of them.”
The Court further indicated that
“Likewise, the evidence does not support [Father's] contention that ADES failed to provide him sufficient parenting instruction. Drs. [pyshcologist], [M.G. and E.L.] all agreed that [Father] needed parenting classes as well as “hands-on” instruction with someone who could give him direct feedback about appropriate parenting practices with [son].”
Bottom line, “The juvenile court's determination that ADES had “made reasonable efforts to reunite [son] with his father and further efforts would be unproductive because Father is unable to properly care for [son]” is supported by the record. So, too, is the court's determination that a permanent guardianship is in [son's]'s best interests. No evidence supports [Father's] contention that ADES failed to make a “good faith” effort to reunite him with his son.”
