Opinion
No. 1 CA-JV 15-0138
10-22-2015
RACHEL R., Appellant, v. DEPARTMENT OF CHILD SAFETY, T.R., Appellees.
COUNSEL Law Office of Florence M. Bruemmer, Anthem By Florence M. Bruemmer Counsel for Appellant Arizona Attorney General's Office, Mesa By Eric K. Knobloch Counsel for Appellee DCS
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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 Yavapai County
No. P1300JD201200070
The Honorable Anna C. Young, Judge
AFFIRMED
COUNSEL Law Office of Florence M. Bruemmer, Anthem
By Florence M. Bruemmer
Counsel for Appellant
Arizona Attorney General's Office, Mesa
By Eric K. Knobloch
Counsel for Appellee DCS
MEMORANDUM DECISION
Judge Jon W. Thompson delivered the decision of the Court, in which Presiding Judge Randall M. Howe and Judge Lawrence F. Winthrop joined. THOMPSON, Judge:
¶1 Rachel R. (mother) appeals from the juvenile court's order terminating her parental rights as to T.R. (child). For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
We review the evidence and draw all reasonable inferences in the light most favorable to upholding the juvenile court's factual findings. Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, 282, ¶ 13, 53 P.3d 203, 207 (App. 2002) (citation omitted).
¶2 Child, born in 2010, is the biological son of mother and Jonathon R. (father). Child has a history of suffering from asthma and respiratory distress. While living in Texas in November 2011, mother and father took child to a fire department station to receive medical assistance for child's breathing difficulties. The fire department gave child breathing treatments and directed mother to immediately take child to the emergency room. Instead, mother first drove child home to pick up a family member. By the time mother eventually took him to the emergency room, child had turned blue and stopped breathing. Child was admitted to the Children's Medical Center of Dallas, intubated, and placed on life support.
Father, whose parental rights were also terminated, is not a party to this appeal.
Child previously received emergency room treatment for his medical condition in August 2011 and October 2011.
¶3 An allegation of medical neglect of child was filed with Texas Child Protective Services (CPS). After child's release from the hospital, CPS implemented a safety plan whereby mother agreed to reside with child at his paternal grandmother's residence and follow up on all of child's recommended medical appointments. A month later, CPS released mother from supervision after disposing of the medical neglect allegation as "unable to determine."
Three prior reports of mother's medical neglect and neglectful supervision of child were filed with CPS in 2010 and 2011. The reports alleged that mother abused illegal substances and failed to provide medical assistance for child when he was sick and that father had a history of domestic violence. CPS deemed these reports deemed unsubstantiated. --------
¶4 In April 2012, mother and child moved to Arizona. Two weeks later, DCS received a report that child was admitted to Phoenix Children's Hospital for breathing difficulties, intubated, and placed on death alert. After child was stabilized, the hospital directed mother to take child to a doctor and pulmonologist within a week, but she failed to do so. DCS attempted to offer in-home services to mother but was unable to locate her after mother was evicted from her residence.
¶5 Five months later, child was again admitted to Phoenix Children's Hospital for asthma exacerbation. DCS received a report that because mother failed to refill child's prescription, she ran out of child's medication prior to his hospitalization. DCS took child into temporary custody and filed a dependency petition based on mother's and father's failure to provide appropriate medical care for child and mother's mental health issues. The court found child dependent and set the case plan as reunification concurrent with adoption. Child was eventually placed with his paternal grandfather in Texas.
¶6 DCS began providing numerous rehabilitative services to mother, including: childhood asthma education; supervised visitation; transportation; parent aide services; parenting classes; psychological evaluation; individual counseling; and substance abuse assessment, testing, and treatment. Mother received a psychological evaluation by Dr. Russell Wagner, who diagnosed mother with depression and anxiety. Dr. Wagner opined that because of her mental health issues, mother could not provide adequate care for child and recommended individual counseling and a psychiatric evaluation. After attending three sessions, mother ceased participating in individualized counseling.
¶7 Throughout the dependency, mother provided occasional gifts for child, but did not attend child's medical appointments or sign up for the recommended asthma education classes. Mother failed to attend twelve out of forty supervised visits with child — cancelling several at the last minute. Additionally, even though mother was informed of the detrimental effects second-hand smoke would have on child's medical condition, mother's gifts to child smelled strongly of cigarette smoke and child required breathing treatments after visits with mother.
¶8 Because mother failed to make the needed efforts to accomplish the goal of family reunification, the case plan was changed to severance and adoption. In January 2015, DCS moved to terminate the parent-child relationship, alleging: mother neglected child by failing to provide appropriate medical care; mother was unable to discharge her parental responsibilities due to mental illness and there were reasonable grounds to believe that the condition would continue for a prolonged indeterminate period; child had been in an out-of-home placement for a cumulative period of nine months or longer; and child had been in out-of-home placement for a cumulative period of fifteen months or longer, mother had been unable to remedy the circumstances that cause child to be in an out-of-home placement, and there was a substantial likelihood that mother would be incapable of exercising effective parental care and control in the near future. See Ariz. Rev. Stat. (A.R.S.) § 8-533(B) (2), (3), (8)(a), (c) (Supp. 2014). DCS also argued that termination would be in child's best interests. See A.R.S. § 8-533(B).
¶9 After a contested severance hearing, the juvenile court found that DCS had established the grounds for severance, and that termination was in the best interest of child. Accordingly, the juvenile court terminated mother's parental rights to child.
¶10 Mother timely appealed. We have jurisdiction pursuant to A.R.S. §§ 8-235 (2014), and 12-2101(A)(2) (Supp. 2013).
DISCUSSION
¶11 The juvenile court may terminate the parent-child relationship only upon finding that clear and convincing evidence demonstrates at least one statutory ground for severance, and that severance is in the child's best interests. A.R.S. § 8-533(B); Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 22, 110 P.3d 1013, 1018 (2005). On appeal, Mother argues only that the juvenile court erred in finding that termination of her parental rights was in child's best interest.
¶12 To establish that termination is in a child's best interests, the record must contain proof that the child either would benefit from the severance or be harmed if the parental relationship continues. Mary Lou C. v. Ariz. Dep't of Econ. Sec., 207 Ariz. 43, 50, ¶ 19, 83 P.3d 43, 50 (App. 2004). Making a best interests determination requires the juvenile court to balance the fundamental liberty interest a parent has to control and care for his or her child and the child's fundamental interest in a "normal family home." Kent K., 210 Ariz. at 286, ¶ 34, 110 P.3d at 1020 (quoting Santosky v. Kramer, 455 U.S. 745, 759 (1982)). Relevant factors to the best interest determination include whether: "1) an adoptive placement is immediately available; 2) the existing placement is meeting the needs of the child; and 3) the [child is] adoptable." Raymond F. v. Ariz. Dep't of Econ. Sec., 224 Ariz. 373, 379, ¶ 30, 231 P.3d 377, 383 (App. 2010) (citations omitted).
¶13 Mother argues that because she and child have a strong bond and mother did a great job parenting child during her visits, the court should have ordered a permanent guardianship rather than a termination of her parental rights. Although the record supports mother's contention that DCS and mother believed guardianship was an option during the dependency, no party filed a motion for a permanent guardianship. See A.R.S. § 8-872(a) (2014). The juvenile court lacks jurisdiction to institute a guardianship sua sponte. See Ariz. Dep't of Econ. Sec. v. Stanford, 234 Ariz. 477, 479-80, ¶¶ 9-14 (App. 2014). Thus, this was not an option the juvenile court could consider.
¶14 Furthermore, because reasonable evidence supports the finding that child would be harmed by the continuation of the parental relationship and benefited by severance and adoption, we likewise reject mother's argument that the family court should have granted her additional time to benefit from DCS services before terminating her parental rights. The DCS case manager testified that during the two and a half year dependency, mother failed to participate in any of child's medical appointments, missed numerous scheduled visits with child, and continued to smoke cigarettes despite the detrimental effect to child's medical condition. The record also revealed that child's paternal grandfather and his wife are willing to provide a stable, permanent, family-environment for child, the couple are providing for all of child's medical needs, and child is doing well in their care. Although mother professes to love child and share a strong bond with him, mother admits that she remains unable to take care of him. Based on the preponderance of evidence, the juvenile court reasonably concluded that terminating mother's parental rights was in the best interest of child, and we will not disturb that finding on appeal. See Jesus M., 203 Ariz. at 280, ¶ 4, 53 P.3d at 205 (stating that in termination proceedings, the juvenile court "is in the best position to weigh the evidence, observe the parties, judge the credibility of witnesses, and make appropriate findings").
CONCLUSION
¶15 Based on the foregoing, we affirm the juvenile court's order terminating mother's parental rights.