Opinion
No. 2 CA-JV 2018-0065
07-31-2018
ZOE D., Appellant, v. DEPARTMENT OF CHILD SAFETY AND X.D., Appellees.
COUNSEL Alewelt Law and Consulting PLLC, Phoenix By Jennifer A. Alewelt Counsel for Appellant Mark Brnovich, Arizona Attorney General By Michelle R. Nimmo, Assistant Attorney General, Tucson Counsel for Appellee Department of Child Safety Pima County Office of Children's Counsel, Tucson By Sybil Clarke Counsel for Minor
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NOT FOR PUBLICATION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. JD20140531
The Honorable Patricia A. Green, Judge Pro Tempore
AFFIRMED
COUNSEL Alewelt Law and Consulting PLLC, Phoenix
By Jennifer A. Alewelt
Counsel for Appellant Mark Brnovich, Arizona Attorney General
By Michelle R. Nimmo, Assistant Attorney General, Tucson
Counsel for Appellee Department of Child Safety Pima County Office of Children's Counsel, Tucson
By Sybil Clarke
Counsel for Minor
MEMORANDUM DECISION
Judge Espinosa authored the decision of the Court, in which Presiding Judge Vásquez and Judge Eppich concurred. ESPINOSA, Judge:
¶1 Zoe D. appeals from the juvenile court's order terminating her parental rights to her son, X.D., born May 2015, on the grounds he had been in court-ordered care for longer than fifteen months, Zoe had neglected him, and Zoe's parental rights to another child had been terminated for the same cause. See A.R.S. § 8-533(B)(2), (8)(c), (10). 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). X.D. was removed from his parents' care in January 2016 after Zoe was arrested for assault. Despite Zoe's current involvement in a dependency regarding her older son based on physical and sexual abuse and neglect, it was the first time the Department of Child Safety (DCS) learned of X.D.'s existence, which Zoe had concealed. She admitted allegations establishing dependency and X.D. was found dependent as to Zoe in February 2016.
¶3 In May 2017, noting Zoe's "partial compliance" with the case plan, the juvenile court changed the plan to severance and adoption and directed DCS to file a motion to terminate Zoe's parental rights to X.D. In that motion, DCS alleged termination of Zoe's parental rights was warranted pursuant to § 8-533(B)(2), (8)(c), and (10). After a contested severance hearing that concluded in January 2018, the court granted the motion, finding that DCS had proven all three grounds and termination was in X.D.'s best interests. This appeal followed.
The juvenile court also terminated the rights of X.D.'s father, who is not a party to this appeal. --------
¶4 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).
¶5 For the juvenile court to terminate Zoe's rights pursuant to § 8-533(B)(8)(c), DCS was required to show that the child had been in court-ordered, out-of-home placement for fifteen months or longer and that Zoe "ha[d] been unable to remedy the circumstances" requiring that placement "and there [wa]s a substantial likelihood that [she] w[ould] not be capable of exercising proper and effective parental care and control in the near future." On appeal, Zoe argues there was insufficient evidence to support a finding that she had "substantially neglected or willfully refused to remedy the circumstances" causing X.D. to be in out-of-home placement. As DCS correctly points out, however, that language is not found in § 8-533(B)(8)(c), but instead is found in subsection (B)(8)(a), which permits severance based on a child having been in out-of-home care for only nine months, and (B)(8)(b), regarding children less than three years of age. Neither ground is implicated here.
¶6 Zoe's failure to articulate the correct legal standard would justify our summary rejection of her argument. See Bennigno R. v. Ariz. Dep't of Econ. Sec., 233 Ariz. 345, ¶ 11 (App. 2013) (summary rejection permissible based on "lack of proper and meaningful argument"). Her underlying assertion, however, is that "the circumstances leading to X.D.'s removal no longer existed" at the time of severance. This argument is equally applicable to termination under § 8-533(B)(8)(c) as to termination under subsection (B)(8)(a) or (b). Thus, in our discretion, we address her argument.
¶7 Zoe contends she had remedied the circumstances "leading to X.D.'s removal" because she had no ability to control X.D.'s father's access to him, had surrendered her parental rights to her older son, and was no longer concealing X.D.'s existence from DCS. She points out that, in the termination motion, DCS stated X.D. had been removed from her care because of her involvement in an ongoing dependency and her attempts to conceal X.D. from DCS. But even if we agreed the reasons for X.D.'s removal were limited to those facts, her argument nonetheless fails. Zoe seems to assert that § 8-533(B)(8)(c) is limited to the circumstances that initially caused X.D. to be removed from her care. That interpretation is unsupported by the statutory text. Section 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 juvenile court, such as Zoe's failure to fully participate in or benefit from services, find gainful employment, or establish a suitable home for her child. See Jordan C., 223 Ariz. 86, n.14 (relevant circumstances under § 8-533(B)(8)(c) are those existing at time of severance). Zoe does not argue those findings were unsupported by the record. Accordingly, she has not established the juvenile court erred by terminating her parental rights on this ground. And, because the evidence supports the court's findings, we need not address Zoe's additional arguments that the court erred in terminating her rights based on § 8-533(B)(2) or (10). See Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, ¶ 3 (App. 2002). We also do not address the court's best interests of the child determination, as Zoe has not challenged that finding. Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, ¶ 13 (2000).
¶8 The juvenile court's order terminating Zoe's parental rights to X.D. is affirmed.