Opinion
2 CA-JV 2021-0071
01-14-2022
Scott L., Appellant, v. Department of Child Safety and D.L., Appellees.
Emily Danies, Tucson Counsel for Appellant Mark Brnovich, Arizona Attorney General By Dawn R. Williams, Assistant Attorney General, Tucson 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Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court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 Pima County No. JD185854 The Honorable Joan Wagener, Judge
Emily Danies, Tucson Counsel for Appellant
Mark Brnovich, Arizona Attorney General By Dawn R. Williams, Assistant Attorney General, Tucson Counsel for Appellee Department of Child Safety
Judge Brearcliffe authored the decision of the Court, in which Presiding Judge Eppich and Vice Chief Judge Staring concurred.
MEMORANDUM DECISION
BREARCLIFFE, JUDGE
¶1 Scott L. appeals from the juvenile court's June 2021 order terminating his parental rights to his son, D.L., born in January 2016, based on the ground of neglect. See A.R.S. § 8-533(B)(2). Scott argues there was insufficient evidence to sever his parental rights on that ground and the court abused its discretion by finding that termination was in D.L.'s best interests. We affirm.
D.L.'s mother, whose parental rights were also terminated, is not a party to this appeal.
Factual and Procedural Background
¶2 Before it may terminate a parent's rights, a juvenile court must find by clear and convincing evidence that at least one statutory ground for severance exists and must find by a preponderance of the evidence that terminating the parent's rights is in the best interests of the child. A.R.S. §§ 8-533(B), 8-537(B); Kent K. v. Bobby M., 210 Ariz. 279, ¶ 41 (2005). "[W]e will affirm a termination order that is supported by reasonable evidence." Jordan C. v. Ariz. Dept 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 fact-finder could have found the evidence satisfied the applicable burden of proof. Denise R. v. Ariz. Dept of Econ. Sec., 221 Ariz. 92, ¶ 10 (App. 2009). We view the facts in the light most favorable to sustaining the juvenile court's findings. Demetrius L. v. Joshlynn F., 239 Ariz. 1, ¶ 2 (2016).
¶3 The parents had a protracted history with the Department of Child Safety (DCS) beginning in 2008. D.L., who was born substance exposed, was taken into custody shortly after birth and was adjudicated dependent as to Scott in February 2016 based on admitted allegations of substance abuse, failure to protect and care for D.L., domestic violence with the mother, and untreated mental illness. D.L. was transitioned back to the parents' custody in November 2016, but was removed once again in January 2017 due to the mother's substance abuse and mental health issues, domestic violence between the parents, and Scott's failure to protect D.L.
D.L. has a half-brother, born in 2004, and a sister, born in 2008 (siblings), who were previously adjudicated dependent. They were not part of the underlying severance matter.
¶4 In June 2017, DCS filed a motion to terminate the parents' rights as to D.L., but at the scheduled contested severance hearing and combined dependency review hearing in November 2017, it orally moved to withdraw that motion, which the juvenile court granted. The court dismissed the dependency in March 2018, and D.L. was returned to the parents. In November 2019, DCS removed D.L. from the parents' custody for the third time and filed another dependency petition alleging D.L. had tested positive for methamphetamine and Scott had failed to protect him from the mother's "unstable mental health and likely substance abuse." In January 2020, D.L. was adjudicated dependent as to the parents for the second time. DCS provided Scott with a variety of services, including a psychological evaluation, drug testing, individual therapy, parenting classes, healthy relationship group therapy, and family therapy.
In addition, one of D.L.'s siblings had tested positive for marijuana.
¶5 In March 2020, DCS filed a motion to terminate the parents' rights based on neglect as to Scott. See A.R.S. § 8-533(B)(2). After a severance hearing, which was held between July 2020 and April 2021, the juvenile court granted the motion, terminating Scott's parental rights to D.L. In its nineteen-page ruling, the court reviewed the history of the case, and made detailed factual findings supported by reasonable evidence in the record showing that Scott had failed to protect D.L. from the mother's substance abuse and mental health issues and that termination of his parental rights was in D.L.'s best interests. This appeal followed.
Discussion
¶6 To terminate Scott's parental rights based on abuse or neglect, DCS was required to show he had "neglected or wil[l]fully abused a child," including "situations in which the parent knew or reasonably should have known that a person was abusing or neglecting a child." § 8-533(B)(2). Relevant here, neglect is defined as "[t]he inability or unwillingness of a parent, guardian or custodian of a child to provide that child with supervision, food, clothing, shelter or medical care if that inability or unwillingness causes unreasonable risk of harm to the child's health or welfare." A.R.S. § 8-201(25)(a).
¶7 On appeal, Scott contends the juvenile court abused its discretion in terminating his rights, asserting the finding that he had neglected D.L. was not supported by substantial evidence. He maintains the "crux" of the issue is that the court found he had "minimized and denied the mother's drug use and mental health issues." While acknowledging that he had, in fact, "minimize[d] and den[ied]" these issues, he asserts he has changed, as evidenced by the fact that he completed and benefitted from several of the services DCS provided, he is employed, and he was moving into his own home "at the t[i]me of trial." Maintaining that he has taken responsibility for his past actions, he asserts that if D.L. is returned to him, he will have the mother perform drug tests and will require that she have supervised visits with D.L.
¶8 As we previously stated and the record establishes, D.L. was born substance exposed. Scott had left then one-year-old D.L. in the mother's care while, according to police reports, she "was intoxicated beyond a point that she could reasonably take care" of him. Additionally, D.L. had tested positive for methamphetamine when he was three years old. Scott testified at the severance hearing it was "impossible" that D.L. had tested positive for methamphetamine because, he insisted, the results of a separate test were "way different" than the test results DCS had relied upon. However, Scott acknowledges in his opening brief that he did not offer the independent test results as evidence at the severance hearing. And, despite evidence that the mother consistently had tested positive for marijuana, methamphetamine (as recently as January 2021), and alcohol during the dependency, Scott testified she had not used methamphetamine for "a long time." He also testified that although he thought he would be able to tell if the mother was under the influence of drugs or alcohol, he admitted he might not be able to do so.
At the time of the incident, Scott told police the mother "was intoxicated and continued to drink," but reported two days later that it was a "misunderstanding" and she had not been drinking.
The mother has a medical marijuana card.
¶9 Dr. Jill Plevell, the psychologist who conducted Scott's psychological evaluation, testified that he was emotionally dependent on the mother and wanted to protect her, which essentially rendered him unable to identify her issues or to protect the children. Scott's therapist, Gilbert Gilmore, testified that Scott had been attending counseling sessions regularly for the past year and had made progress in therapy, had completed other services, and was planning to move into his own home-testimony the juvenile court acknowledged in its ruling below. However, the court also considered Gilmore's testimony that Scott still did not accept the accuracy of D.L.'s positive test for methamphetamine, because he continued to deny the mother's use of any substances, he was unable to protect the children, and he had not accepted responsibility for the reasons causing the current removal of the children.
¶10 DCS case manager Kristin Olsen opined Scott was unable to protect D.L. from the mother, noting he did not recognize problems with the mother's behavior or believe she was using drugs, despite her positive drug tests since January 2020, and he had not benefitted from reunification services. Olsen added that Scott still denies D.L. had tested positive for methamphetamine and pointed out that he had not provided DCS with the results of the independent test he claimed was negative.
¶11 In its answering brief, DCS asserts that the juvenile court was not limited to considering Scott's recent conduct to determine whether he had neglected D.L. A.R.S. § 8-533(B)(2); Alma S. v. Dept of Child Safety, 245 Ariz. 146, ¶¶ 9-10 (2018) (substantive statutory ground for severance synonymous with parental unfitness). DCS also maintains Scott has failed to challenge the court's findings that he knew or should have known of the mother's substance abuse and failed to protect D.L. from the risks associated with that abuse. In any event, the court considered both Scott's previous and recent conduct in its ruling:
[D.L.] was exposed to methamphetamine .... The fact that [D.L.] tested positive for methamphetamine at high levels shows that [Scott] failed to protect [D.L.] from [mother's] substance abuse. . . . Once [Scott] was made aware of the results of [D.L.'s] test, he failed to take affirmative and appropriate action to protect [D.L.] such as separating from [mother], acknowledging the risk of harm to [D.L.], etc. Further, as the psychological evaluation and the testimony showed, [Scott] is highly protective of [the mother]. As of the last day of trial [Scott] still maintains, in [mother's] defense, that she is not using methamphetamine despite repeatedly testing positive over the course of this
dependency. His desire to protect her in the face of allegations of substance abuse override his parental obligation to protect [D.L.]
[Scott] testified that he might require [mother] to drug test even after the close of the dependency case as a means of preventing her from having contact with the children while she is abusing substances. However, as Dr. Plevell stated, and [Scott] has repeatedly demonstrated, his ability to be objective regarding [mother] is dubious. He has repeatedly and blindly accepted [mother's] excuses and misrepresentations about her drug and alcohol use and positive drug tests and/or has engaged in deception himself. He willingly believes her assertions that the tests were tampered with or the results are false positives. This calls into question his willingness and ability to accept the test results, the harm they highlight and protect [D.L.]
¶12 Additionally, we find unpersuasive Scott's criticism of the juvenile court's comment that his decision to obtain separate housing from the mother "was not the result of an epiphany that [the mother] is a risk to [D.L.] and his siblings but rather that his attorney advised him to obtain independent housing." Scott asserts that regardless of his motivation, "he DID move into a new home." First, Scott testified on the last day of the hearing, he had not yet moved into his new home. Second, and more important, Scott stated at the hearing he was moving "to relieve any concern of [the mother] with the kids until [DCS] is happy," explaining that he had "no concerns" with the mother, but wanted to make DCS and the judge happy. Taken in context, it is clear why the court was concerned that the reason Scott decided to move was to appease DCS and the court. Moreover, we do not reweigh the evidence, Jesus M. v. Ariz. Dept of Econ. Sec, 203 Ariz. 278, ¶ 12 (App. 2002), and we will defer to the juvenile court's resolution of conflicting inferences if supported by the record, see In re Pima Cnty. Adoption of B-6355 & H-533, 118 Ariz. 111, 115 (1978). As summarized above, reasonable evidence supports the court's findings of neglect here. See Jordan C, 223 Ariz. 86, ¶ 18.
¶13 Scott also argues the juvenile court abused its discretion by finding termination was in D.L.'s best interests "[g]iven the overwhelming evidence" against such a finding. Noting that it had "agonized" over its decision, the court ultimately concluded it was in D.L.'s best interests to terminate the parents' rights "so that he may obtain the permanency, safety, consistency and stability that he needs through adoption." The court noted that D.L. "has spent much of his life in out-of-home care . . . has been subject to two dependencies in his short life and has been removed from his parents' care three times." It further concluded "[t]he behaviors demonstrated by the parents highlight their lack of recognition of the needs of their son and their inability to meet those needs," noting "it would likely take years for the parents to sufficiently resolve the risk factors currently existing."
¶14 As our supreme court has directed, when determining best interests, "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." Alma S., 245 Ariz. 146, ¶ 12 (quoting Kent K., 210 Ariz. 279, ¶ 35). "The 'child's interest[s] in stability and security' must be the court's primary concern." Id. (quoting Demetrius L., 239 Ariz. 1, ¶ 15). And, "termination is in the child's best interests if either: (1) the child will benefit from severance; or (2) the child will be harmed if severance is denied." Id. ¶ 13.
¶15 Scott contends that although the juvenile court acknowledged several of his positive accomplishments, it minimized the fact that he "had moved out" and was "ready and able" to protect D.L. from the mother's drug use. He also suggests the court relied unduly on the fact that D.L. is adoptable. Olsen testified D.L. is in an adoptive placement and he is adoptable, and opined that termination is in his best interests and it would be detrimental to him if the parents' rights were not terminated. She explained that D.L. has "spent a lot of his life in care . . . and that is likely to not remedy itself in the near future because [the parents] are not even acknowledging the substance use . . . so he would probably linger in foster care." The court thus determined D.L.'s current placement, which is meeting his needs, is willing to adopt him, a factor favoring a finding of best interests. See Demetrius L., 239 Ariz. 1, ¶ 1.
As we previously noted, Scott had not yet moved into his own home when the severance hearing took place.
¶16 In a related argument, Scott maintains the juvenile court failed to consider that even if the adoptive parents encouraged an ongoing relationship between D.L. and his siblings, that would not help to foster a future relationship between D.L. and his biological parents. However, Scott does not point to any authority suggesting the court was required to ensure the parents would have an ongoing relationship with D.L. after their rights were terminated, nor are we aware of any such authority.
¶17 Although the juvenile court noted several of Scott's accomplishments, it also expressed "concern that [Scott] continues in his strong belief that [the mother] does not pose a risk to . . . [D.L.] He steadfastly supports [the mother] and states that she is not using drugs." The court further noted that although issues related to the mother's erratic behavior and mental health and substance abuse have been raised to Scott, according to Olsen he has been unable to identify those concerns nor has he attempted to address them with the mother. Notably, Scott does not challenge the accuracy of the court's findings, which are amply supported by the evidence presented.
¶18 Scott also points out that D.L.'s attorney argued in closing that severance was not in D.L.'s best interests in light of his bond with his family. To the extent Scott suggests the juvenile court did not give sufficient weight to the opinion of D.L.'s attorney, counsel's viewpoint was but one piece of information for the court to consider. And although the court specifically acknowledged the strong bond between D.L. and his parents and siblings, such a bond is but one factor for the court to consider in its best-interests determination. Dominique M. v. Dept of Child Safety, 240 Ariz. 96, ¶ 12 (App. 2016).
¶19 Despite his belief to the contrary, Scott's arguments regarding the juvenile court's best-interests finding amount to a request for this court to reweigh the evidence, which, as we previously stated, we will not do. See Jesus M., 203 Ariz. 278, ¶ 12. Viewing the evidence of the totality of the circumstances at the time of severance in the light most favorable to upholding the court's ruling, as we must, see Alma S., 245 Ariz. 146, ¶¶ 13, 18, we cannot say the court abused its discretion in finding severance was in D.L.'s best interests. "A best-interests determination need only be supported by a preponderance of the evidence." Bobby G. v. Ariz. Dept of Econ. Sec., 219 Ariz. 506, ¶ 15 (App. 2008). Contrary to Scott's assertion, there is ample evidence in the record supporting the court's best-interests finding here.
Disposition
¶20 Accordingly, we affirm the juvenile court's order terminating Scott's parental rights to D.L.