Opinion
No. 2 CA-JV 2019-0117 No. 2 CA-JV 2019-0118 (Consolidated)
02-14-2020
ANDREA M., Appellant, v. DEPARTMENT OF CHILD SAFETY, Appellee. A.C., A.-C., F.C., AND ANDREA M., Appellants, v. DEPARTMENT OF CHILD SAFETY, Appellee.
COUNSEL Law Office of Ransom Young, Tucson By Ransom Young Counsel for Appellant Andrea M. Mark Brnovich, Arizona Attorney General By Michelle R. Nimmo, Assistant Attorney General, Tucson Counsel for Appellee Department of Child Safety Pima County Office of Children's Counsel, Tucson By Christopher Z. Lloyd Counsel for Minors
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f); Ariz. R. P. Juv. Ct. 103(G). Appeal from the Superior Court in Pima County
No. JD205058
The Honorable Peter W. Hochuli, Judge
AFFIRMED
COUNSEL Law Office of Ransom Young, Tucson
By Ransom Young
Counsel for Appellant Andrea M. Mark Brnovich, Arizona Attorney General
By Michelle R. Nimmo, Assistant Attorney General, Tucson
Counsel for Appellee Department of Child Safety Pima County Office of Children's Counsel, Tucson
By Christopher Z. Lloyd
Counsel for Minors MEMORANDUM DECISION Presiding Judge Eppich authored the decision of the Court, in which Judge Espinosa and Judge Eckerstrom concurred. EPPICH, Presiding Judge:
¶1 Appellants Andrea M. and her children A.C., born in April 2006, A.-C., born in June 2008, and F.C., born in February 2017, appeal from the juvenile court's August 2019 ruling terminating her parental rights. They challenge the sufficiency of the evidence to support the court's determination that termination of Andrea's parental rights was in the children's best interests. For the reasons stated below, we affirm.
The juvenile court also severed the parental rights of the children's father, who is not a party to this appeal.
Upon the children's motion, this court consolidated Andrea's and her children's appeals, and Andrea subsequently filed a notice joining her children's opening brief.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to affirming the juvenile court's ruling. See Demetrius L. v. Joshlynn F., 239 Ariz. 1, ¶ 2 (2016). Andrea has five children, all of whom—except F.C. who had not yet been born—were previously adjudicated dependent on two occasions. The court dismissed those proceedings in June 2014 and August 2016, upon the parents' compliance with the case plan and the request of the Department of Child Safety (DCS).
¶3 The current proceeding began in April 2017, after DCS received reports of substance abuse, neglect, and physical abuse involving the family. Specifically, it was reported that the children had "very little supervision in the home" and were "covered in filth," that three of them frequently smoked marijuana, that A.C. had multiple bruises on his arm, and that A.-C. "display[ed] aggressive behaviors," in one instance causing the police to intervene. After an additional report of substance abuse and neglect, as well as a concern that the family was going to be evicted from their home, DCS took custody of A.C., A.-C., and F.C. In June and July 2017, DCS filed dependency petitions concerning those three children, alleging "abuse and/or neglect" as to Andrea. Shortly thereafter, Andrea admitted the allegations—including a history of methamphetamine use, mental-health issues, and domestic violence—in amended petitions.
Andrea's two oldest children, who have different fathers, were on "runaway status" at various times throughout this proceeding. Although they were adjudicated dependent in December 2017, they were not a part of the severance.
¶4 The juvenile court approved a case plan of family reunification, and the children remained in out-of-home placements while DCS offered the parents a variety of services. With regard to Andrea, the services included supervised visitation, random drug testing, substance-abuse education and relapse prevention, domestic-violence and healthy-relationship classes, therapy, and parenting classes. At first, Andrea's participation in the services was "somewhere between noncompliant and minimally compliant," according to a caseworker. In November 2018, the court suspended Andrea's visitation because of her "erratic and inappropriate behavior" and concerns for the children's emotional wellbeing. Although the court granted her leave to request a hearing to reinstate visitation after reviewing the rules, Andrea did not do so. Her participation in the other services also declined.
¶5 In April 2019, DCS filed a motion to terminate Andrea's parental rights based on chronic substance abuse and fifteen-month time-in-care grounds. In August 2019, after a two-day contested severance hearing, the juvenile court granted DCS's motion on both grounds, also finding severance was in the children's best interests. This appeal followed.
Discussion
¶6 Appellants argue the juvenile court erred by concluding that termination of Andrea's parental rights was in the children's best interests. "[W]e will affirm a termination order that is supported by reasonable evidence." Jordan C. v. Ariz. Dep't of Econ. Sec., 223 Ariz. 86, ¶ 18 (App. 2009). That is, we will not reverse a termination order for insufficient evidence unless, as a matter of law, no reasonable factfinder could have found the evidence satisfied the applicable burden of proof. See Denise R. v. Ariz. Dep't of Econ. Sec., 221 Ariz. 92, ¶ 10 (App. 2009).
¶7 A juvenile court may terminate a parent's rights if it finds clear and convincing evidence of a statutory ground for severance and finds by a preponderance of the evidence that termination is in the child's best interests. A.R.S. §§ 8-533(B), 8-537(B); Kent K. v. Bobby M., 210 Ariz. 279, ¶ 41 (2005). To establish the latter, DCS must show that the child would benefit from severance of the parent-child relationship or be harmed by continuing the relationship. A.R. v. Dep't of Child Safety, 246 Ariz. 402, ¶ 8 (App. 2019). This showing cannot be based on speculation. See In re Maricopa Cty. Juv. Action No. JS-500274, 167 Ariz. 1, 7 (1990); Titus S. v. Dep't of Child Safety, 244 Ariz. 365, ¶ 34 (App. 2018). However, as part of the best-interests inquiry, "we can presume that the interests of the parent and child diverge because the court has already found the existence of one of the statutory grounds for termination by clear and convincing evidence." Kent K., 210 Ariz. 279, ¶ 35. "Thus, in considering best interests, the court must balance the unfit parent's 'diluted' interest 'against the independent and often adverse interests of the child in a safe and stable home life.'" Demetrius L., 239 Ariz. 1, ¶ 15 (quoting Kent K., 210 Ariz. 279, ¶ 35).
¶8 In its August 2019 ruling, the juvenile court determined by a preponderance of the evidence that "terminating the parent-child relationship as to the parents and the children would remove a detriment and serve the children's best interests." It explained that the children "deserve[] stability, safety, and permanency," but Andrea had not "consistently or substantially" participated in the services offered by DCS. In addition, the court noted that Andrea's visitation with the children had been suspended in 2018, that she had not requested a hearing to reinstate her visits, and that the children do not ask about her. The court recognized that A.C. and A.-C. "express[ed] a desire to be reunified with [their father]" but found that neither parent "demonstrate[ed] . . . through their actions a similar desire." Accordingly, the court concluded, "Continuing the parent-child relationship gives these children a false hope that reunification is possible when in reality, they will continue to languish in the foster care system waiting for their parents to participate in services, conquer their addiction to illegal substances, and put themselves in a position to parent."
Although the juvenile court found harm by continuing the parent-child relationship, it also considered whether the children would benefit from severance, concluding that this factor was not met because an adoptive placement for all three children "would be too speculative in nature."
¶9 Reasonable evidence supports the juvenile court's finding here. See Denise R., 221 Ariz. 92, ¶ 10. This was the family's third dependency, and, as such, a caseworker explained that Andrea should "know what's expected . . . in terms of case plan compliance and what it takes to reunify successfully with [her] children." However, multiple caseworkers described Andrea's compliance as "zero," particularly in the latter half of the dependency. One caseworker explained that Andrea's participation in visitation was "sporadic," leading up to the suspension in 2018 when it ceased altogether. When asked why she did not seek to reinstate visitation, Andrea stated that she "already kn[e]w the rules" and "d[id]n't feel like [she] should have to keep going over them again and again." Andrea had no job and was homeless at the time. She also failed to appear for the first day of the contested severance hearing.
Andrea later explained that she had failed to appear because she "did not have transportation." The juvenile court warned her that "if [she] fail[ed] to appear without good cause [it] could determine that [she] waived [her] rights" and "admitted [her] parental rights should be terminated." --------
¶10 One caseworker stated that he did not "get any indication that [Andrea was] going to participate in services and wrap up this third dependency." The most recent caseworker similarly testified that Andrea had not "engaged in any reunification services for a significant period of time" and had not "remedied the reasons the[] children were brought into care." When asked what the detriment would be if the juvenile court were to deny the motion to terminate, that caseworker opined, "The parental rights would still be intact, . . . and [the children] would just linger in foster care." See In re Pima Cty. Juv. Action No. S-114487, 179 Ariz. 86, 97 (1994) (goal of prompt finality for children in severance avoids leaving them "languish[ing] in limbo").
¶11 Relying on Titus S., appellants nevertheless contend that the juvenile court's "finding was of a speculative detriment." They maintain the court's suggestion that the children "will reach permanency through an adoptive home" is "equally unlikely," pointing out that A.C. and A.-C. wished to be reunified with their father and that A.C. "is old enough that any adoption would require his consent." We find Titus S. distinguishable.
¶12 In Titus S., this court reversed the juvenile court's order terminating Titus's parental rights. 244 Ariz. 365, ¶¶ 34-35. The juvenile court had determined that "'[b]est interest is easily satisfied'" because "'severing [Titus]'s rights will help these two kids realize that they now do have permanency'" and "'hopeful[ly]'" will "'open them up to the idea of adoption.'" Id. ¶ 13. However, on appeal, this court concluded that there was no benefit to terminating the parent-child relationship because "the [juvenile] court's finding, contingent on its 'hope[]' that the children will change their positions, is a 'mere speculative potential benefit that might or might not materialize sometime in the future.'" Id. ¶ 34 (quoting Maricopa Cty. No. JS-500274, 167 Ariz. at 7). In addition, we pointed out that the juvenile court made no finding of "any detriment from the children continuing their long-distance relationship with Titus." Id. Accordingly, we concluded that the record did not support the juvenile court's best-interests determination. Id.
¶13 Here, by contrast, the juvenile court made a finding of harm to the children by continuing the parent-child relationship. See A.R., 246 Ariz. 402, ¶ 8. And contrary to Andrea's suggestion otherwise, that harm was not speculative—the court's concern that the children will "languish in the foster care system" for an undeterminable amount of time was based on Andrea's chronic lack of compliance with the case plan, as contained in the record. See Aleise H. v. Dep't of Child Safety, 245 Ariz. 569, ¶ 10 (App. 2018) (best-interests determination supported by harm in continuing relationship where children would remain in care for indefinite period). The benefit of adoption was arguably speculative because no adoptive family had been identified. But, as the court noted, only one of the two factors—a harm or a benefit—must be present to support the best-interests determination. See Demetrius L., 239 Ariz. 1, ¶ 16 ("Framed in the disjunctive, this standard permits a finding of best interests based on either a benefit to the child from severance or some harm to the child if severance is denied."). Accordingly, the court's determination that termination of the parent-child relationship is in the children's best interests is supported by reasonable evidence. See Jordan C., 223 Ariz. 86, ¶ 18.
Disposition
¶14 For the reasons stated above, we affirm the juvenile court's severance of Andrea's parental rights to A.C., A.-C., and F.C.