Opinion
No. 2 CA-JV 2018-0066 No. 2 CA-JV 2018-0078 (Consolidated)
10-05-2018
ROBERT W., Appellant, v. DEPARTMENT OF CHILD SAFETY, N.W., AND R.W., Appellees. MARISSA N., Appellant, v. DEPARTMENT OF CHILD SAFETY, N.W., AND R.W., Appellees.
COUNSEL The Huff Law Firm PLLC, Tucson By Daniel R. Huff Counsel for Appellant Robert W. Joel Feinman, Pima County Public Defender By David J. Euchner, Assistant Public Defender, Tucson Counsel for Appellant Marissa N. 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NOT FOR PUBLICATION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 Pima County
No. JD20150677
The Honorable Wayne E. Yehling, Judge
AFFIRMED
COUNSEL The Huff Law Firm PLLC, Tucson
By Daniel R. Huff
Counsel for Appellant Robert W. Joel Feinman, Pima County Public Defender
By David J. Euchner, Assistant Public Defender, Tucson
Counsel for Appellant Marissa N. Mark Brnovich, Arizona Attorney General
By Cathleen E. Fuller, Assistant Attorney General, Tucson
Counsel for Appellee Department of Child Safety
MEMORANDUM DECISION
Chief Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Staring and Judge Brearcliffe concurred. ECKERSTROM, Chief Judge:
¶1 Robert W. and Marissa N. appeal from the juvenile court's order terminating their parental rights to their children, N.W. and R.W., born in June 2015 and August 2016, on the ground that they had been in court-ordered care for longer than fifteen months. See A.R.S. § 8-533(B)(8)(c). The parents contend the evidence was insufficient to support termination of their rights and that severance was not in the children's best interests. We affirm.
¶2 We view the facts in the light most favorable to sustaining the juvenile court's ruling. Demetrius L. v. Joshlynn F., 239 Ariz. 1, ¶ 2 (2016). N.W. was removed from the parents' care in September 2015 and R.W. in August 2016. The children were found dependent in November 2015 and December 2016. At a May 2017 dependency review hearing, the Department of Child Safety (DCS) noted its "serious" concern with "the regression" the parents had made toward family reunification, at which time the court warned the parents they needed to be "quick" in resolving the concerns that had led to the dependency and changed the case goal plan to severance and adoption.
In their opening brief, the parents state that at the May 2017 hearing "the court determined that missed or canceled visits as noted by DCS were 'due to no fault of the parents.'" Although DCS did, in fact, inform the court "of missed visits due to no fault of the parents," the minute entry from that hearing does not show the court made any such finding, nor have the parents directed us to any place in the record so showing.
¶3 In August 2017, just after the parents' peer ambassador stopped working with them "due to [the parents'] lack of cooperation," the juvenile court found the parents minimally compliant and granted DCS leave to file a motion for termination. DCS filed its motion in November 2017, alleging as grounds for termination neglect and fifteen-month time-in-care grounds. See A.R.S. §§ 8-533(B)(2), (8)(c). After a contested severance hearing that concluded in March 2018, the court granted DCS's motion on the out-of-home placement ground and found that termination was in the children's best interests. This appeal followed.
¶4 In its severance ruling, the juvenile court noted that DCS had provided the parents with multiple services to facilitate reunification, including couples and individual counseling, case management, drug testing, substance abuse education, psychological evaluation, parent-child assessment and therapy, visitation, relapse prevention, and child and family team meetings. The court found that although the parents initially had been in either full or substantial compliance with the case plan, their performance had declined after December 2016 when they were evicted for the third time. For example, the parents failed to complete and submit a necessary budget form, they missed or cancelled several visits with the children, and Marissa did not comply with required drug tests. In fact, the court noted, and the record shows, that "[f]rom the inception of the case, the parents only occasionally participated in mandated drug testing," which impacted their ability to reach the required thirty days of sustained sobriety necessary to participate in parent-child therapy.
¶5 Concluding the parents were not "amenable to consistently following a case plan," the juvenile court noted that their "explanations for failure to engage in service[s] were combative, evasive and/or defensive, and were not credible." The court ultimately concluded it would take "at least several months" for the parents to demonstrate they could provide continued stable housing and remain sober for a sufficient time period to participate in the required therapy. The court added, "if the past is a predictor of [the parents'] future ability to perform consistently, it may take much longer [than three months]," and thus concluded "there is a substantial likelihood that the parents will not be capable of exercising proper and effective parental care and control in the near future."
¶6 A juvenile court may terminate a parent's rights if it finds clear and convincing evidence of a statutory ground for severance and finds by a preponderance of the evidence that termination is in the child's best interests. 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. Dep't 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. See Denise R. v. Ariz. Dep't of Econ. Sec., 221 Ariz. 92, ¶ 10 (App. 2009).
¶7 On appeal, the parents argue there was insufficient evidence to support a finding of severance based on the time-in-care ground or that termination was in the children's best interests. The parents maintain that this court's decision in Alma S. "dictates a result opposite from that reached by the juvenile court." Alma S. v. Dep't of Child Safety, 244 Ariz. 152, ¶ 35 (App. 2017), vacated No. CV-17-0363-PR, 799 Ariz. Adv. Rep. 27 (Ariz. Sept. 14, 2018). Notably, in our supreme court's recent decision vacating this court's decision in Alma S., filed since the parties submitted their briefs on appeal, the court found that in making a best interests determination in a severance matter, the juvenile court must consider the totality of the circumstances at the time of the severance, including the child's adoptability and the parent's rehabilitation. Alma S., 799 Ariz. Adv. Rep. 27, ¶ 1.
Time in Care Ground
¶8 For the juvenile court to terminate the parents' rights pursuant to § 8-533(B)(8)(c), DCS was required to show that the children had been in court-ordered, out-of-home placement for fifteen months or longer and that the parents "ha[d] been unable to remedy the circumstances" requiring that placement "and there [wa]s a substantial likelihood that the parent[s] will not be capable of exercising proper and effective parental care and control in the near future." The parents argue that no evidence was provided to support either prong of § 8-533(B)(8)(c), and maintain the court instead relied solely on the fact that the parents had "not complete[d] 100% of the offered services." They generally assert that "some of [the court's] findings" are unsupported by the record, contend the case plan was not "realistic" and left "no wiggle room for missteps," and maintain the court improperly relied on Marissa's mental health problems. The parents further point out they were doing well until their therapist retired, which could have led them to "rationally . . . conclude[] that [upcoming] appointments were probably canceled," thus explaining their failure to show up for future appointments.
The parents summarize in detail portions of the juvenile court's ruling, which they mischaracterize as "findings" made by the court. However, the cited material was the court's direct quotation of DCS's allegations in its motion to terminate, and not the court's findings.
¶9 At the termination hearing, Marissa testified that although she "need[ed] medication for [her] problems," she was not taking any; she was not participating in counseling, even though she knew it was required under her case plan; she had not taken drug tests for approximately a year, even though DCS case manager Emmanuel Vergara had instructed her to do so; and she had never had a job. She added that she has a "good bond" with the children when she sees them, but acknowledged she had not seen them from October 2017 until February 2018 "[b]ecause we had issues." Robert testified about the difficulties the parents faced in obtaining services once their therapist retired in May 2017, and explained that the new therapist wanted them to "start all over from the beginning."
¶10 Vergara testified that although he had advised the parents they needed to demonstrate thirty days of sobriety before they could participate in required parent-child relationship therapy, Marissa had not achieved that goal; the parents' inability to maintain stable housing had been a concern over the course of the dependency; Robert's employment history had been "sporadic"; and consistent compliance with required services would be necessary for the parents to safely parent the children. Vergara also testified that the parents had not been consistent with visits and that although they had completed some services, they had not followed through with others, nor could he say whether the parents had benefitted from any of the services.
¶11 The parents also argue the juvenile court erroneously focused on "problem areas from the beginning of the case when those circumstances were no longer present or had substantially changed." Relying on the now-vacated decision in Alma S., 244 Ariz. 152, ¶¶ 26-27, they contend the court "failed to relate its findings back to the circumstances that caused the children to be dependent in the first place." To the extent we understand this seemingly inconsistent argument, we note that § 8-533(B)(8)(c) refers, in the present tense, to "the circumstances that cause the child to be in an out-of-home placement," which necessarily include the circumstances found and relied upon by the court here, such as the parents' failure to fully participate in or benefit from services, consistently find and maintain gainful employment, and consistently establish stable housing. See Jordan C., 223 Ariz. 86, n.14 (relevant circumstances under § 8-533(B)(8)(c) are those existing at time of severance).
We note that the parents' reliance on this portion of the now-vacated decision in Alma S. is not only inapposite, but also appears to "conflate[] the fitness inquiry with the best-interests inquiry" in that case. Alma S., 799 Ariz. Adv. Rep. 27, ¶ 16. --------
¶12 Accordingly, based on the parents' three prior evictions and the fact that they obtained their most recent housing only one month before the second day of the termination hearing, we cannot conclude the juvenile court erroneously found they were unable to continuously maintain stable housing. Based on this evidence, in addition to Robert's sporadic and Marissa's nonexistent employment history and the parents' inconsistent participation in the case plan, the court did not err by finding the parents would not be capable of exercising proper and effective parental care and control in the near future. See § 8-533(B)(8)(c). The parents apparently assert that Vergara's "baseless opinions and characterizations" were "entitled to no weight" and that the court did not give adequate weight to the impact of the "sudden and unexpected retirement" of their first therapist. But it is for the juvenile court, not this court, to weigh the evidence presented based on its assessment of the witnesses' credibility and its resolution of conflicts in the evidence. Jordan C., 223 Ariz. 86, ¶ 18.
Best Interests Finding
¶13 The parents also challenge the juvenile court's best interests finding, asserting it "is driven exclusively by the children's adoptability," and maintaining the court's finding "flies in the face" of this court's decision in Alma S., that if the evidence shows a parent's ability to otherwise care for a child with whom the parent has bonded, then factors such as the child's adoptability and current stability "are subordinate to the fundamental rights of the parent in determining best interests, unless severance removes a detriment caused by the parental relationship." Alma S., 244 Ariz. 152, ¶ 38. However, in light of our supreme court's express holding in Alma S. that courts may not "subordinate the interests of the child to those of the parent once a determination of unfitness has been made," we flatly reject this argument. 799 Ariz. Adv. Rep. 27, ¶ 15.
¶14 To establish that termination is in a child's best interests, a petitioner must show how the child would benefit from termination or be harmed by the continuation of the parent-child relationship. In re Maricopa Cty. Juv. Action No. JS-500274, 167 Ariz. 1, 5 (1990). As our supreme court reaffirmed in Alma S., "The 'child's interest in stability and security' must be the court's primary concern." 799 Ariz. Adv. Rep. 27, ¶ 12 (quoting Demetrius L., 239 Ariz. 1, ¶ 15). That a child's current placement is meeting the child's needs is a proper factor for the court to consider in determining a child's best interests. See Audra T. v. Ariz. Dep't of Econ. Sec., 194 Ariz. 376, ¶ 5 (App. 1998). So, too, is the fact that the child is in a home where the placement wishes to adopt the child. See Demetrius L., 239 Ariz. 1, ¶¶ 12, 16. "In a best interests inquiry, however, 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." Kent K., 210 Ariz. 279, ¶ 35. "Once a juvenile court finds that a parent is unfit, the focus shifts to the child's interests." Demetrius L., 239 Ariz. 1, ¶ 15. "Thus, in considering best interests, the court must balance the unfit parent's 'diluted' interest 'against the independent and often adverse interests of the child in a safe and stable home life.'" Id. (quoting Kent K., 210 Ariz. 279, ¶ 35).
¶15 The record here belies the parents' assertion that the sole basis for the juvenile court's best interests finding was the children's adoptability. Maintaining they attended parent-child relationship therapy and are bonded with the children, the parents essentially assert the court should not have found persuasive Vergara's opinion that termination was in the children's best interests because "the dependency had been going on for a long time and the children deserve permanency." However, Vergara also testified the thirty-month dependency had "gone far too long," he had concerns of "unresolved issues reoccurring" as to Robert, and Marissa had not yet successfully addressed some of her issues. He added the children deserve permanency and stability, noting they would suffer if they were forced to "remain in . . . an unknown legal status," and agreeing that "after nearly 30 months of [DCS] having offered the parents services[,] further reunification efforts would be futile." Vergara also stated the children are adoptable and are in separate placements with relatives who want to adopt them. And, there was evidence that after visiting the parents, both children had difficulty sleeping and experienced "night terrors," and N.W. was described as: "cranky, hair falling out, skin conditions . . . her routine disrupted and taking several days to reacclimate . . . back into the routine."
¶16 Although the juvenile court specifically accepted Vergara's testimony that the children are adoptable, it also determined they are entitled to permanency and concluded that "[k]eeping this case open for at least several more months, after it has been open for the last thirty months as to [N.W.] and for all but a few days of [R.W.'s] life, would be detrimental to the goal of achieving permanency" for them. "Leaving the window of opportunity for remediation open indefinitely is not necessary, nor do we think that it is in the child's or the parent's best interests." In re Maricopa Cty. No. JS-501568, 177 Ariz. 571, 577 (App. 1994). Considering the totality of the circumstances, we find the court properly relied upon the children's adoptability as a benefit in its best interests finding. See Alma S., 799 Ariz. Adv. Rep. 27, ¶¶ 13-14.
Disposition
¶17 For the reasons stated, we conclude ample evidence in the record allowed the juvenile court to terminate the parents' rights to the children based on out-of-home placement and termination was in the children's best interests. We therefore affirm the court's order terminating the parents' parental rights to N.W. and R.W.