Opinion
No. 2 CA-JV 2018-0254
04-12-2019
AUTUMN B., Appellant, v. DEPARTMENT OF CHILD SAFETY, H.U., AND E.S., Appellees.
COUNSEL Harriette P. Levitt, Tucson 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NOT FOR PUBLICATION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 Cochise County
No. JD201700016
The Honorable Terry Bannon, Judge
AFFIRMED
COUNSEL Harriette P. Levitt, Tucson
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
Judge Brearcliffe authored the decision of the Court, in which Presiding Judge Staring and Judge Vásquez concurred. BREARCLIFFE, Judge:
¶1 Appellant Autumn B. challenges the juvenile court's order of December 10, 2018, terminating her parental rights to her children, H.U. and E.S., on grounds of neglect and Autumn's inability to remedy the circumstances causing the children to remain in a court-ordered, out-of-home placement for longer than fifteen months. See A.R.S. § 8-533(B)(2), (B)(8)(c). On appeal, Autumn challenges the sufficiency of the evidence to sustain either of those statutory grounds for severance or to establish that terminating her parental rights was in the children's best interests.
¶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 children. See A.R.S. §§ 8-533(B), 8-537(B); Kent K. v. Bobby M., 210 Ariz. 279, ¶ 41 (2005). We will affirm an order terminating parental rights unless we must say as a matter of law that no reasonable person could find those essential elements proven by the applicable evidentiary standard. Denise R. v. Ariz. Dep't of Econ. Sec., 221 Ariz. 92, ¶ 10 (App. 2009). We view the evidence in the light most favorable to upholding the court's order. Manuel M. v. Ariz. Dep't of Econ. Sec., 218 Ariz. 205, ¶ 2 (App. 2008).
¶3 From 2007 to 2016, the Department of Child Safety (DCS) received various reports of physical abuse and neglect of Autumn's children, including several substantiated reports beginning in 2013. DCS provided services, including substance-abuse testing and treatment, individual therapy, and parenting education. Autumn participated in some services, but failed to complete substance-abuse treatment or to follow through with referrals for individual therapy.
The Department of Child Safety is substituted for the Arizona Department of Economic Security (ADES) in this decision. See 2014 Ariz. Sess. Laws 2nd Spec. Sess., ch. 1, § 20. For simplicity, our references to DCS in this decision encompass ADES, which formerly administered child welfare and placement services under title 8, and Child Protective Services, formerly a division of ADES. --------
¶4 In January 2017, DCS received a report that H.U., who has autism and is non-verbal, had left Autumn's home during a scheduled visit and was found "naked, climbing a wall." The home was found to have "insufficient locks." Autumn also tested positive for methamphetamine and tetrahydrocannabinol (THC). In February, she was cited for domestic violence and the children were removed from the home. They were adjudicated dependent in April 2017.
¶5 At a review hearing in May 2018, DCS reported that Autumn was employed, "compliant with services," and working on obtaining housing. But shortly thereafter, in June, DCS received a report that H.U. had "overdose[d] with amphetamines" during an unsupervised visit in Autumn's care. H.U. had begun "acting very agitated," and Autumn called her mother, ultimately telling her H.U. may have consumed water from a bottle that had been contaminated with "resin from bongs." Autumn's mother determined it was necessary to take H.U. to the hospital. Autumn told an investigating officer that "[s]he did not know how or where [H.U.] may have been exposed" and likewise told DCS that she was "unsure" how the overdose had occurred.
¶6 In October 2018, the juvenile court changed the case plan from a concurrent plan of reunification and severance to severance and adoption. DCS filed a motion to terminate Autumn's parental rights on the grounds of neglect and the length of time the children had been in care. After a hearing, the court granted the motion, concluding the state had established both grounds for severance and that severance was in the children's best interests.
¶7 Autumn argues "[t]he evidence was insufficient to support the [juvenile] court's findings regarding neglect" and "more than 15 months in care." In challenging the juvenile court's ruling Autumn relies on favorable evidence of her having completed case plan tasks, but does not address the contrary evidence cited by the court. We do not, in any event, reweigh the evidence, Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, ¶ 12 (App. 2002), and will defer to the court's resolution of conflicting inferences if supported by the record. In re Pima Cty. Adoption of B-6355 & H-533, 118 Ariz. 111, 115 (1978). The court's ruling here is supported by the evidence, as detailed above, particularly in view of Autumn's failure to protect her child from what the court found to be a near-fatal overdose even after years of services.
¶8 Likewise, in arguing there was insufficient evidence to show that severance of her parental rights was in the children's best interests, Autumn focuses on evidence of strong bonding between herself and the children. But she does not address the juvenile court's finding that the children "are loved and provided for in their current [kinship] placements," who are willing to adopt the children. See Alma S. v. Dep't of Child Safety, 245 Ariz. 146, ¶¶ 13-14 (2018) (prospective adoption may support best-interest finding). Again, we do not reweigh the evidence. See Jesus M., 203 Ariz. 278, ¶ 12.
¶9 For these reasons, we affirm the juvenile court's order terminating Autumn's parental rights.