Opinion
No. 1 CA-JV 19-0279
04-07-2020
DAISY S., EDDIE M., Appellants, v. DEPARTMENT OF CHILD SAFETY, L.M., S.M., Appellees.
COUNSEL Robert D. Rosanelli, Phoenix Counsel for Appellant Father David W. Bell, Mesa Counsel for Appellant Mother Arizona Attorney General's Office, Phoenix By Sandra L. Nahigian Counsel for Appellee Department of Child Safety
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. JD34819
The Honorable Lori Ash, Judge Pro Tempore
AFFIRMED
COUNSEL Robert D. Rosanelli, Phoenix
Counsel for Appellant Father David W. Bell, Mesa
Counsel for Appellant Mother Arizona Attorney General's Office, Phoenix
By Sandra L. Nahigian
Counsel for Appellee Department of Child Safety
MEMORANDUM DECISION
Presiding Judge Samuel A. Thumma delivered the decision of the Court, in which Judge Randall M. Howe and Chief Judge Peter B. Swann joined. THUMMA, Judge:
¶1 Eddie M. (Father) and Daisy S. (Mother) challenge the superior court's order terminating their parental rights to their two children based on 15-months time-in-care, also challenging the best interests finding. Because parents have shown no error, the order is affirmed.
FACTS AND PROCEDURAL HISTORY
¶2 L.M., born in 2011, and S.M., born in early 2017, were taken into care in September 2017 after emergency responders were called to a bus stop where Mother was passed out, intoxicated. The children were nearby, unsupervised; L.M. had to be stopped from running into the street and S.M. had sweat rings around her stroller's head pad. When Father arrived, he appeared unconcerned and the Department of Child Safety (DCS) took the children into care. Both parents denied that Mother had a drinking problem, claiming she sometimes passed out because of a heart condition. Father said he saw no issue with the incident or Mother's parenting generally. DCS filed a dependency petition, alleging neglect by both parents, given substance abuse and failure to provide a safe and stable home.
¶3 Later in September 2017, the court found the children dependent as to Mother when she did not contest the allegations, adopting a case plan of family reunification. In December 2017, the court found the children dependent as to Father, when he failed to attend a pretrial conference, and the court also adopted a case plan of family reunification.
¶4 DCS provided reunification services to both parents, including drug testing, substance abuse treatment, parent aide services, visitation and transportation. Mother was diagnosed with mild alcohol-abuse disorder and Father with mild cannabis-use disorder. Between September 2017 and December 2018, Father participated in some of the drug and alcohol treatment and testing offered. At the severance adjudication, however, the DCS caseworker testified that Father continued to deny Mother's substance abuse issues and, as a result, he was unable or unwilling to protect the children. Both parents regularly attended supervised visits with the children, but never progressed to unsupervised visits. Mother was closed out of substance abuse services three times for failing to participate; Father, after being closed out once, completed a program in March 2018. Mother was inconsistent with substance abuse testing, which she called "unnecessary." Father was more consistent, missing some tests, but "mostly tested negative."
¶5 In December 2018, given a lack of progress and over the parents' objection, the court changed the case plan to severance and adoption. DCS' motion to terminate, filed later that month, alleged 15-months time-in-care for both parents and that severance was in the best interests of the children.
¶6 In January 2019, Mother self-referred to Native Health to participate in a 12-week program for substance-abuse treatment, although claiming during the intake that she did not have substance-abuse issues. She did not consistently participate and had not completed the program by the June 2019 trial. The couple had stable housing at the time of trial, and Father was employed throughout the dependency.
¶7 The parents briefly separated during the dependency. During a visit while they were separated, Father reported that Mother was consuming alcohol and the supervising case aide reported that she "smelled beer." After Father and Mother reconciled, however, Father denied that report.
¶8 After a two-day trial in late June 2019, where Mother, Father and the DCS case manager testified, the court took the matter under advisement. In August 2019, the court issued its ruling granting DCS' motion, concluding:
The parents do not understand or accept the safety threats. Mother does not recognize or accept her alcohol issues. She has denied throughout this case that she has an issue with alcohol, and she has not demonstrated sobriety in this case. Father does not recognize the danger of Mother's drinking. Father testified that he has no concerns that Mother was abusing alcohol in 2017 and has no concerns that Mother is currently abusing alcohol.
Mother has always been the primary care giver. Father has not demonstrated that he recognizes the danger of leaving the children in the care of Mother or the threat posed by Mother's drinking.Noting the children were placed together in a potentially adoptive home and were doing well, the court also found that termination was in their best interests.
¶9 This court has jurisdiction over the timely appeals by Father and Mother pursuant to Article 6, Section 9, of the Arizona Constitution, Arizona Revised Statutes (A.R.S.) §§ 8-235(A) and 12-120.21(A)(1) (2020) and Arizona Rules of Procedure for the Juvenile Court 103 and 104.
Absent material revisions after the relevant dates, statutes and rules cited refer to the current version unless otherwise indicated.
DISCUSSION
¶10 As applicable here, to terminate parental rights, a court must find by clear and convincing evidence that at least one statutory ground in A.R.S. § 8-533(B) has been proven and must find by a preponderance of the evidence that termination is in the best interests of the child. See Kent K. v. Bobby M., 210 Ariz. 279, 286, 288 ¶¶ 32, 41 (2005). Because the superior court "is in the best position to weigh the evidence, observe the parties, judge the credibility of witnesses, and resolve disputed facts," this court will affirm an order terminating parental rights as long as it is supported by reasonable evidence. Jordan C. v. Ariz. Dep't of Econ. Sec., 223 Ariz. 86, 93 ¶ 18 (App. 2009) (citations omitted).
I. The Superior Court Properly Terminated Father's Rights Based on 15-Months Time-in-Care.
¶11 The 15-months time-in-care ground requires proof by clear and convincing evidence that DCS "has made a diligent effort to provide appropriate reunification services" and that:
The child has been in an out-of-home placement for a cumulative total period of fifteen months or longer pursuant to court order or voluntary placement pursuant to [A.R.S.] § 8-806, 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.A.R.S. § 8-533(B)(8)(c).
¶12 Father contends that the court erred in finding he failed to remedy the circumstances that caused the children to remain in an out-of-home placement. Father also contends the finding that there is a substantial likelihood he will be incapable of exercising proper and effective parental care and control in the near future is clearly erroneous and contrary to the evidence at trial.
¶13 The children were taken into care given concerns about substance abuse and that parents were unable or unwilling to protect them. Although Father suggests that Mother's issues are attributed to a heart condition, he also concedes that she "may have issues with alcohol." The trial record supports the findings that Mother has unresolved substance abuse issues.
¶14 Father claims that he completed reunification services "and by his testimony, demonstrated his commitment to the children and their safety." In making this argument, Father asks this court to reweigh the conflicting evidence considered by the superior court, something this court will not do on appeal. Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, 282 ¶ 12 (App. 2002) ("[W]e do not re-weigh the evidence on review."). Father also overstates his participation in, and progress from, services during the dependency.
¶15 Father's contention he remedied the circumstances that caused the children to be removed from the home by completing parent aide services and generally providing negative drug testing is insufficient to resolve the issues contributing to the children's removal. DCS removed the children because Father was unable or unwilling to protect the children from Mother's substance abuse, largely because Father consistently refused to admit her problem existed. On the record presented, the court properly could find that Father's completion of services was insufficient to show he could protect the children, especially after the court expressed concern about the credibility of his testimony.
¶16 At trial, Father consistently testified that he had no concerns regarding Mother's alcohol use, both at the time of trial and when the children were taken into DCS' care. Father's lack of recognition of the potential threat demonstrates an inability to protect the children. The court stated that "Father cites his own testimony that he would protect the children from Mother if he thought that she would hurt them or was inebriated around them." But the assessment of a witness's credibility is within the purview of the superior court, which found that much of the testimony by Father and Mother "was contradicted by documentary evidence . . . and was contrary to common sense." Father's lack of acceptance of Mother's issues creates a significant barrier to his ability to remedy the need for the children to be in care.
¶17 When the dependency began, Father faced a driving while intoxicated charge that, when resolved, resulted in him being jailed for three weeks in April and May 2019. Stable housing was a concern, including evidence that the family was evicted from a shelter shortly before DCS took the children into care. Father testifying that he had been staying in a hotel for about a year before the trial. Father testified that he had a history of using marijuana and that, although he had a medical marijuana card, he let it lapse and admitted to missing drug tests in early 2019. DCS referred Father for recovery maintenance testing in late 2018, but Father said he did not need it and did not participate consistently. As a result, concerns persisted about Father's sobriety and his ability to protect the children, particularly given he remained with Mother and she had not resolved her substance abuse issues. On this record, Father has not shown the court erred in terminating his parental rights based on 15-months time-in-care.
II. Mother Has Shown No Error.
¶18 Mother's primary argument on appeal is that the court improperly terminated Father's parental rights, which led to an "improper legal evaluation regarding the merits of" Mother's case. Because the court properly terminated Father's parental rights, the factual premise for this argument is not present.
¶19 Mother also argues the superior court failed to apply the six Michael J. factors, applicable when termination is sought based on a felony sentence under A.R.S. § 8-533(B)(4). Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246 (2000). But DCS did not seek severance, and the superior court did not grant severance, on that ground. Nor has Mother shown how "the premise" of Michael J. applies here or, even if "factor (5)" from Michael J. was lacking, it would mean severance was in error.
¶20 Finally, Mother argues that severance was not in the best interests of the children because the court improperly considered Father's circumstances. "If Father is a proper and fit parent," she argues, "then there is no cause to terminate" Mother's rights. Again, however, severance of Father's parental rights was proper. Moreover, the record shows the children were doing well in a potential adoptive placement, supporting the superior court's best interests finding. See Matter of Appeal in Maricopa Cty. Juvenile Action No . JS-500274 , 167 Ariz. 1, 7 (1990) (noting best interests finding can be based on either a benefit from termination or a detriment if termination is not granted).
CONCLUSION
¶21 The order terminating Mother and Father's parental rights to L.M. and S.M. is affirmed.