Opinion
No. 2 CA-JV 2018-0031 No. 2 CA-JV 2018-0037 (Consolidated)
06-07-2018
SKYE C., Appellant, v. DEPARTMENT OF CHILD SAFETY, P.C., AND K.C., Appellees.
COUNSEL E.M. Hale Law, Lakeside By Elizabeth M. Hale Counsel for Appellant Mark Brnovich, Arizona Attorney General By Cathleen E. Fuller, Assistant Attorney General, Tucson Counsel for Appellee Department of Child Safety
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NOT FOR PUBLICATION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 Graham County
No. JD201600021
The Honorable D. Corey Sanders, Judge Pro Tempore
AFFIRMED
COUNSEL E.M. Hale Law, Lakeside
By Elizabeth M. Hale
Counsel for Appellant Mark Brnovich, Arizona Attorney General
By Cathleen E. Fuller, Assistant Attorney General, Tucson
Counsel for Appellee Department of Child Safety
MEMORANDUM DECISION
Presiding Judge Vásquez authored the decision of the Court, in which Judge Espinosa and Judge Eppich concurred. VÁSQUEZ, Presiding Judge:
¶1 Skye C. appeals from the juvenile court's order denying her "Motion for Change of Placement to Maternal Grandfather" and its subsequent order terminating her parental rights to her children P.C., born in August 2010, and K.C., born in April 2015. We affirm the court's rulings.
Factual and Procedural Background
¶2 The Department of Child Safety (DCS) took temporary custody of the children in November 2016, after receiving reports that Skye and the children's father, Lewis C., were neglecting them by failing to provide a fit home and by engaging in substance abuse and domestic violence. Skye admitted a history of abusing drugs and said her current drug of choice was heroin. According to Lewis, both he and Skye had used drugs in the children's presence in the previous year. Neither parent contested the dependency petition, and the children were adjudicated dependent in December. That same month, Skye was arrested for driving under the influence of alcohol or drugs, and DCS received a report that she had tested positive for opiates in November.
The juvenile court also terminated Lewis's parental rights to the children. He is not a party to this appeal.
¶3 In January 2017, a worker from Southeastern Arizona Behavioral Health Services, Inc. (SEABHS) contacted Skye about her referral for substance abuse services there, but she did not complete the intake procedure until May, when she tested positive for multiple drugs. Also in May, the juvenile court approved a concurrent plan of reunification and severance and adoption for both children.
¶4 Through September 2017, Skye continued to test positive for drugs, including heroin, methamphetamine, and morphine, and she had participated in only two substance abuse group sessions and one individual counseling session. In November, DCS filed a motion to terminate her parental rights on the grounds that (1) she is unable to discharge parental responsibilities because of a history of chronic substance abuse, with "reasonable grounds to believe that the condition will continue for a prolonged indeterminate period," A.R.S. § 8-533(B)(3), and (2) she substantially neglected or willfully refused to remedy the circumstances that caused her children to be in court-ordered, out-of-home care for nine months or more, § 8-533(B)(8)(a). In January 2018, before the termination adjudication hearing, Skye moved to have the children placed with her father, their maternal grandfather. The court denied the motion after a hearing, and Skye timely appealed.
¶5 A termination adjudication hearing was held on January 31, 2018, and the juvenile court issued an under-advisement ruling the following day, granting DCS's motion on both statutory grounds alleged and finding termination was in the children's best interests. Skye timely appealed that ruling as well.
¶6 In a brief addressing both the placement and termination issues, Skye first argues the juvenile court "erred when it allowed the children to continue in foster care rather than placing them with their maternal grandfather." In addition, she maintains DCS failed to prove that she substantially neglected or willfully refused to remedy the circumstances causing the children's out-of-home care. Finally, citing articles available on the internet for the proposition that, generally, "children in out-of-home care continue to fare poorly compared to other children," she contends termination is not in the best interest of these children.
Discussion
¶7 "Juvenile courts have substantial discretion when placing dependent children," and we review placement orders for an abuse of that discretion. Antonio P. v. Ariz. Dep't of Econ. Sec., 218 Ariz. 402, ¶ 8 (App. 2008). We also review termination orders for an abuse of discretion, and we view the evidence in the light most favorable to sustaining the court's rulings. Jade K. v. Loraine K., 240 Ariz. 414, ¶¶ 2, 6 (App. 2016). Denial of Motion for Change of Placement
Although Skye timely appealed from the juvenile court's ruling on her motion to change placement, it is questionable whether she continues to have standing to challenge it on appeal. Cf. Antonio M. v. Ariz. Dep't of Econ. Sec., 222 Ariz. 369, ¶ 2 (App. 2009) (once parental rights terminated, father had no standing to challenge post-termination placement and adoption plan on appeal). Because standing is a jurisprudential concern and does not affect our jurisdiction, Dobson v. State ex rel. Comm'n on Appellate Court Appointments, 233 Ariz. 119, ¶ 9 (2013), and because DCS has not disputed Skye's standing to challenge the placement ruling, we address her argument on its merits.
¶8 Skye acknowledges that the order of placement preferences in A.R.S. § 8-514(B)—which lists grandparents as second in line, after the possibility of placement with a parent—is not mandatory. See Antonio P., 218 Ariz. 402, ¶ 12 ("The statute requires only that the court include placement preference in its analysis of what is in the child's best interest."). But she argues the juvenile court "erred" in denying her motion, alleging the court's order did not "include an analysis of the placement preference when making its ruling" and "fail[ed] to address why the court determined that another home was more suitable" than that offered by the children's maternal grandfather. We cannot agree.
¶9 In its ruling, the juvenile court expressly stated it was "mindful of the placement preferences which favor a grandparent," but it correctly observed that "the children's best interests are the controlling consideration." See id. The court then explained its finding that it was "in the children's best interests to continue the department's transition plan to the kinship/adopt placement," noting that "[t]he children have already formed an emotional bond to this anticipated placement and want to be made a permanent part of their family," and that the maternal grandfather, who had not yet retired, was presently unable "to personally care for the children when he is at work." The court further expressed its opinion "that changing the transition plan at this late date to a different placement would be detrimental to the children's emotional well-being." These findings, which are consistent with arguments presented by DCS and the children's guardian ad litem, evince the court's full consideration of the children's best interests in denying Skye's motion for a change of placement.
Although the substance of Skye's argument addresses the juvenile court's ruling on her change of placement motion, her argument heading suggests the court "erred when it did not appoint the maternal grandfather as guardian." No motion for a permanent guardianship was ever before the court or at issue in this appeal. --------
Termination Order
¶10 A juvenile court may terminate a parent's rights if it finds clear and convincing evidence of one of the statutory grounds for termination and a preponderance of evidence that termination of the parent's rights is in the children's best interests. A.R.S. §§ 8-533(B), 8-537(B); Kent K. v. Bobby M., 210 Ariz. 279, ¶ 41 (2005). If sufficient evidence supports any one of the statutory grounds found, "we need not address claims pertaining to the other grounds." Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, ¶ 3 (App. 2002). We will affirm an order terminating parental rights unless we can say as a matter of law that no reasonable person could find the essential elements proven by the applicable evidentiary standard. See Denise R. v. Ariz. Dep't of Econ. Sec., 221 Ariz. 92, ¶¶ 9-10 (App. 2009).
¶11 In its under-advisement ruling, the juvenile court wrote that Skye "either substantially neglected or willfully refused to remedy her chronic drug use and has continued to use until as recently as December [2017]," adding that those facts also provided "a reasonable basis to conclude that her chronic abuse of illegal substances will continue for the prolonged indefinite future." The court thus found that DCS "met [its] burden by clear and convincing evidence" as to both termination grounds alleged. And, citing the "emotional bonds" the children had formed with "their prospective adoptive family," the court found termination to be in the children's best interests.
¶12 Skye first argues the evidence is insufficient to support the juvenile court's determination on time-in-care grounds pursuant to § 8-533(B)(8)(a). But she does not challenge the court's finding that termination was warranted on the substance-abuse ground, pursuant to § 8-533(B)(3). By failing to do so, she has "abandoned and waived any contention that the court erred in granting severance on that basis." Crystal E. v. Dep't of Child Safety, 241 Ariz. 576, ¶ 5 (App. 2017). Thus, we may affirm the court's order based on the substance-abuse ground alone, and need not address the alternative time-in-care ground for severance. See id.
¶13 Even without considering the effect of Skye's waiver, however, substantial evidence supported the juvenile court's ruling as to both grounds. Citing her own hearing testimony, she maintains she "ha[d] been clean and sober for some weeks" before the termination hearing and had "been attending parenting and substance abuse classes." But this court will not reweigh the evidence on review, Jesus M., 203 Ariz. 278, ¶ 12, and the record also contains evidence that Skye did not engage in any services for nearly six months after the children were removed from her care, and then participated only sporadically, eventually having her case closed by SEABHS for lack of contact. See In re Maricopa Cty. Juv. Action No. JS-501568, 177 Ariz. 571, 576 (App. 1994) (court "is well within its discretion in finding substantial neglect and terminating parental rights on that basis" when parent "makes only sporadic, aborted attempts to remedy" circumstances causing out-of-home placement). And, with respect to her history of chronic substance abuse, Skye does not dispute the court's findings that she "consistently tested positive for illegal substances and admitted to a relapse as recently as December of 2017 in spite of being offered treatment services."
¶14 Similarly, in challenging the juvenile court's best-interests determination, Skye does not dispute the court's finding that the children are emotionally bonded with their prospective adoptive family. Despite our supreme court's observation that a child's likely adoption may be sufficiently beneficial to support a best-interests determination, see Demetrius L. v. Joshlynn F., 239 Ariz. 1, ¶ 12 (2016), she asserts, "[I]t is unclear if adoption is enough to remedy the harm that can be done by removing [children] from their parents in the first place." As DCS observes, she relies on articles outside the record for the proposition that, as a general matter, children "placed in foster care . . . have higher delinquency rates, lower earnings, and higher teen pregnancy rates." And she fails to develop any proper argument with respect to the relevant legal consideration, which is whether the court's best-interests determination is based on "a finding as to how the child would benefit from a severance or be harmed by the continuation of the relationship." In re Maricopa Cty. Juv. Action No. JS-500274, 167 Ariz. 1, 5 (1990). The juvenile court's finding, with respect to the children's relationship with their prospective adoptive family, meets that requirement.
Disposition
¶15 For the foregoing reasons, we affirm the juvenile court's orders denying Skye's motion for a change in placement and terminating her parental rights.