Opinion
1 CA-JV 22-0267
06-27-2023
IN RE TERMINATION OF PARENTAL RIGHTS AS TO R.C., L.C., D.C., and A.J.
Maricopa County Public Advocate, Mesa By Suzanne W. Sanchez Counsel for Appellant Arizona Attorney General's Office, Phoenix By Bailey Leo Counsel for Appellee Department of Child Safety
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County No. JD40409 The Honorable Robert Ian Brooks, Judge
Maricopa County Public Advocate, Mesa By Suzanne W. Sanchez Counsel for Appellant
Arizona Attorney General's Office, Phoenix By Bailey Leo Counsel for Appellee Department of Child Safety
Judge Brian Y. Furuya delivered the decision of the Court, in which Vice Chief Judge David B. Gass and Judge Andrew M. Jacobs joined.
MEMORANDUM DECISION
FURUYA, JUDGE
¶1 Patricia J. ("Mother") appeals the juvenile court's order terminating her parental rights as to her four minor children, R.C., L.C., D.C., and A.J. (collectively "Children"). For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 The Department of Child Safety ("DCS") filed a dependency proceeding in January 2021 after a serious domestic violence incident between Mother and Richard C. ("Father"). Allegedly, Mother was driving and twice intentionally crashed her car into Father's car while the three oldest of Mother's four children were in her car. Following the crashes, Mother fled the scene and later screened DCS's phone calls.
Father is not a party to this appeal.
¶3 In January 2021, DCS alleged the three oldest children were dependent as to Mother because of mental illness, substance abuse, instability, and domestic violence. After the court resolved a jurisdictional issue, DCS added the fourth child to the dependency. Mother pled no contest to DCS's filing the following April, and the court found the Children dependent.
In its termination order, the court found DCS did not sufficiently prove substance abuse or instability.
¶4 During the dependency, Mother traveled frequently between Arizona and California and switched her residency between the two states multiple times. While Mother was in Arizona, DCS offered her substance abuse testing and treatment, facilitated visitation, and case management to plan therapeutic and domestic violence services. DCS referred Mother to Terros for services, but Mother failed to participate in the services Terros recommended. While Mother was in California, DCS offered her substance abuse testing local to her and tried to provide case management services to evaluate her out-of-state services. However, Mother did not maintain constant contact with DCS, in part because of her frequent travel. She also missed visits with the Children, requested shorter visits, and did not give her full attention during visits she did attend. Further, she only partially participated in domestic violence services and was closed out of the service in California because her careless manner of participation threatened other participants' confidentiality. DCS tried to obtain records to gauge her progress through treatment sessions, but Mother refused to sign a release of information. After the court changed the case plan to termination and adoption, DCS petitioned to terminate Mother's parental right under Arizona Revised Statutes ("A.R.S.") § 8-533(B)(8)(c) based on the fifteenmonths' time-in-care ground.
¶5 After trial in October 2022, the court found Mother was "minimally compliant with services" in Arizona. It drew a negative inference regarding her services in California, finding she may have refused to sign the release of information because the records showed no progress on her part. The court found she was also inconsistent in her virtual and inperson visitation with the Children.
¶6 The court further found DCS made "diligent and reasonable" reunification efforts, but Mother neglected to meaningfully engage with the services and it would have been futile for DCS to offer other services. It found Mother had not taken sufficient steps to address domestic violence issues or her mental health. The court also found the Children's best interests supported termination of her parental rights because they were adoptable, although the Children were bonded to Mother and the oldest two desired reunification. Based upon these findings, the court terminated Mother's parental rights under the fifteen-months' time-in-care ground under A.R.S. § 8-533(B)(8)(c).
¶7 Mother timely appealed, and we have jurisdiction under Article 6, Section 9 of the Arizona Constitution and A.R.S. §§ 8-235(A), 12-120.21(A), and 12-2101(A).
DISCUSSION
¶8 Mother argues DCS failed to offer her sufficient reunification services and the court erred by finding termination of her parental rights was in the Children's best interests. DCS counters that Mother waived her argument regarding sufficiency of services, it did offer sufficient services, and termination was in the Children's best interests.
I. Standard of Review
¶9 We review the juvenile court's determination for an abuse of discretion. Mary Lou C. v. Ariz. Dep't of Econ. Sec., 207 Ariz. 43, 47 ¶ 8 (App. 2004) (citation omitted). We will affirm unless its findings were "clearly erroneous," meaning there was "no reasonable evidence to support them." Xavier R. v. Joseph R., 230 Ariz. 96, 100 ¶ 11 (App. 2012) (citations omitted).
¶10 To terminate parental rights, the juvenile court must find by clear and convincing evidence that DCS established at least one statutory ground in A.R.S. § 8-533(B) and must then find by a preponderance of the evidence that termination is in the child's best interests. Kent K. v. Bobby M., 210 Ariz. 279, 284 ¶ 22 (2005).
II. Adequacy of DCS Services
¶11 We begin with DCS's waiver argument. DCS contends Mother waived her argument it did not offer adequate services by failing to raise it to the juvenile court. Although a party may waive any argument that DCS failed to offer sufficient services, Shawanee S. v. Dep't of Econ. Sec., 234 Ariz. 174, 179 ¶ 16 (App. 2014), in this case Mother did raise it at the severance hearing. Her counsel stated that DCS did not make reasonable efforts and asked the court to provide "very strict guidelines and orders" to DCS for future family reunification. Further, we may decline to apply waiver in our discretion. See France v. Ariz. Cntys. Ins. Pool, 519 P.3d 1029, 1032 ¶ 12 (Ariz. App. 2022). Because the parties have adequately briefed the issue, we decline to apply waiver regarding Mother's argument.
¶12 Mother argues the court erred in finding DCS provided her adequate mental health, domestic violence, and visitation reunification services. We disagree.
¶13 Under the fifteen-months' time-in-care ground, the parent child relationship may be terminated when a child is (1) placed out of parental custody for fifteen months or longer, (2) DCS "has made a diligent effort to provide appropriate reunification services," and (3) despite such efforts, the parent has been unable to remedy the circumstances resulting in the out-of-home placement and there is a substantial likelihood the parent will not be capable of exercising proper and effective parental control in the near future. A.R.S. § 8-533(B)(8)(c). As to reunification services, A.R.S. § 8-533(B)(8)(c) does not require DCS "provide every conceivable service." Maricopa Cnty. Juv. Action No. JS-501904 , 180 Ariz. 348, 353 (App. 1994). And it need not offer the same service a parent is receiving elsewhere. See Pima Cnty. Severance Action No. S-2397 , 161 Ariz. 574, 577 (App. 1989).
¶14 The record shows that while Mother participated in some counseling, her own conduct limited her access to services and DCS' ability to assess her progress. DCS sent Mother to Terros, which diagnosed Mother with an adjustment disorder and referred her to monthly individual counseling. DCS provided her with resources to self-refer to domestic violence counseling and she participated in counseling in Arizona and California. However, Mother did not complete counseling in Arizona and her own conduct during counseling in California caused her to be closed out of that service before completion as well. Mother did not inform DCS or the court of any concern that either counseling service was inadequate. Instead, she insisted she did not need domestic violence counseling. Further, although she did engage in some counseling, DCS could not secure any records from her California counseling sessions because she refused to sign a release for those records, from which the court properly could-and did-draw a negative inference. At bottom, Mother prevented DCS and the court from being able to assess the effectiveness of the services and her progress in addressing the domestic violence and adjustment disorder concerns.
¶15 This backdrop informs our consideration of the adequacy of visitation services. DCS presented testimony that Mother missed several visitation appointments, requested they be reduced from two hours to one, and was often unable to "give the children her full attention during visits." She also repeatedly lost contact with DCS, and her frequent travel between Arizona and California made it difficult to set up further services. Thus, reasonable evidence in the record supports a finding that DCS offered sufficient services pertaining to the ultimate grounds for termination, which were Mother's mental health and her history of domestic violence. And reasonable evidence shows she failed to sufficiently engage with the offered services.
¶16 Moreover, the court found it would have been futile for DCS to offer any further reunification services. Reasonable evidence supports this finding, given Mother's failure to meaningfully engage with the services DCS had already offered. See Mary Ellen C. v. Ariz. Dep't of Econ. Sec., 193 Ariz. 185, 192 ¶ 34 (App. 1999).
¶17 Accordingly, the court did not err in finding DCS offered Mother sufficient reunification services.
III. Best Interests
¶18 Mother argues the court erred in finding termination of her parental rights is in the Children's best interests.
¶19 After finding statutory grounds to support termination of parental rights, the court must consider whether termination is in the child's best interests under the totality of the circumstances. Alma S. v. Dep't of Child Safety, 245 Ariz. 146, 149-50 ¶¶ 8-9, 13 (2018); A.R.S. § 8-533. "The 'child's interest in stability and security' must be the court's primary concern." Alma S., 245 Ariz. at 150 ¶ 12 (citation omitted). The court must find either that the child would benefit from the termination of the parent's rights or that the child would be harmed by continuing a relationship with the parent. Id. at 150 ¶ 13; Maricopa Cnty. Juv. Action No. JS-500274 , 167 Ariz. 1, 5 (1990).
¶20 Here, the court found termination of Mother's parental rights was in the Children's best interests because termination would enable them to be adopted by their aunts, in homes "free from domestic violence"-the youngest in California, the three oldest in Arizona. In so finding, the court balanced the wishes of the two oldest Children to reunify with Mother against the Children's need for permanency. The Children's adoptability alone supports a finding that termination is in the Children's best interests. See Aleise H. v. Dep't of Child Safety, 245 Ariz. 569, 572 ¶ 10 (App. 2018).
¶21 The court also found that refusing to terminate Mother's parental rights would be detrimental to the Children. The court considered the history of domestic violence involving Mother and Father and noted it did not believe she would "make behavior changes necessary to safely parent" the Children. It also found she does not "recognize[] the severity of the domestic violence." Reasonable evidence supports this finding, such as documentation of the automobile crashes while the three oldest Children were in the car. Reasonable evidence also supports the finding she is unlikely to remedy the environment of domestic violence because, as explained above, she failed to meaningfully engage with domestic violence services. Thus, the court's best interests finding was not error.
CONCLUSION
¶22 We affirm.