Opinion
No. 1 CA-JV 18-0245
01-31-2019
BRIANNA M., Appellant, v. DEPARTMENT OF CHILD SAFETY, I.C., Appellees.
COUNSEL Maricopa County Public Advocate, Mesa By Suzanne Sanchez Counsel for Appellant Arizona Attorney General's Office, Mesa By Lauren J. Lowe Counsel for Appellee Department of Child Safety
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
Appeal from the Superior Court in Maricopa County
No. JD30442
The Honorable Nicolas B. Hoskins, Judge Pro Tempore
AFFIRMED
COUNSEL
Maricopa County Public Advocate, Mesa
By Suzanne Sanchez
Counsel for Appellant
Arizona Attorney General's Office, Mesa
By Lauren J. Lowe
Counsel for Appellee Department of Child Safety
MEMORANDUM DECISION
Presiding Judge Jennifer M. Perkins delivered the decision of the Court, in which Judge Lawrence F. Winthrop and Judge Jon W. Thompson joined.
PERKINS, Judge:
¶1 Brianna M. ("Mother") appeals from an order terminating her parental rights to her son, I.C. For the following reasons, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 In June 2014, Mother gave birth to I.C. prematurely at twenty-six weeks gestation. After remaining in the hospital's neonatal intensive care unit for almost four months, Mother and Lee C. ("Father") brought I.C. home. They were I.C.'s primary caretakers, and Father cared for him when Mother worked. Father is not a party to this appeal.
¶3 In April 2015, Mother and Father brought I.C. to the emergency room for vomiting and diarrhea. At ten and a half months, I.C. had the bodyweight of a five-week-old infant because the parents were not providing him with specialized feeding as doctors had instructed. Doctors diagnosed I.C. with failure to thrive. They also discovered that I.C. had multiple posterior rib fractures most likely caused by nonaccidental trauma. The Department of Child Safety ("DCS") then became involved.
¶4 During the ensuing investigation, both Mother and Father denied causing I.C.'s injuries. Mother attributed his failure to thrive to his prematurity. Given his injuries and special needs, DCS took custody of I.C. and filed a dependency petition. In October 2015, the court found I.C. dependent and set concurrent case plans of family reunification and severance and adoption. Over the subsequent dependency, DCS offered Mother several services, including psychological evaluations, individual counseling, family therapy, a parent aide, a family-reunification team, and visitation. Mother participated successfully in her services and completed parenting classes. Despite her progress, Mother struggled with making recommended behavioral changes—vacillating between admitting and denying that Father posed a danger to I.C.
¶5 Mother completed a psychological evaluation in January 2016 with Dr. Karen Mansfield-Blair. During the evaluation Mother
acknowledged that DCS deemed I.C.'s injuries as nonaccidental but she still believed "they c[a]me from him being severely premature." Dr. Blair diagnosed Mother with post-traumatic stress disorder and borderline intellectual functioning. She gave Mother a poor prognosis of being able to minimally parent I.C. in the future, but noted that Mother could improve that prognosis by engaging in effective therapy.
¶6 Mother engaged in therapy from May to September 2016. Mother initially agreed that I.C.'s injuries were nonaccidental but denied knowing how he was injured. She told her therapist that although she had ended her relationship with Father, they remained "best friends" and she thought Father had never harmed I.C. By September, Mother acknowledged that Father had been quick to anger in the past and that I.C.'s injuries were nonaccidental. She also recognized the need to protect I.C. from Father in the future.
¶7 Despite Mother's apparent progress, she continued contacting Father. She also did not intervene when Father became angry with I.C. during a shared visit. In March 2017, the court noted with concern Mother's "continued reliance on Father and her focus on him rather than the child." The court changed the case plan to termination and adoption and DCS moved to terminate Mother's parental rights for fifteen months' time in care. DCS also alleged the abuse ground but failed to prove it.
¶8 The next month, Mother completed a second psychological evaluation with Dr. James Thal in which she denied that Father had ever mistreated a child. Dr. Thal noted that Mother had a "striking . . . lack of recognition or awareness" caused by a self-defeating and inadequate coping mechanism. Dr. Thal opined that Mother's "inability to perceive dangers or threats to her child's well being" would place I.C. at risk of harm while in Mother's care. He also noted features of a personality disorder characterized by extreme denial and moderate narcissism. Dr. Thal concluded that I.C. could not be safely returned to Mother and gave a guarded prognosis of her future parenting ability. He recommended that she continue therapy, and she did so from July through December 2017.
¶9 In August 2017, Mother moved the juvenile court to return I.C. to her custody, and the court held a combined hearing on Mother's motion and DCS's severance motion in September. At the hearing, Mother testified that she believed Father had injured I.C. and expressed concern that Father had not engaged in services. She intended on gaining full custody of I.C. and testified that Father should not be allowed any parenting time with him. She also testified that she and Father were no longer friends and only spoke if they needed to discuss I.C.
¶10 After the hearing, DCS withdrew its severance motion and asked the court to change the case plan to reunification as to Mother. In November 2017, DCS provided Mother with a family reunification team and the court placed I.C. back in her physical custody. At that time, DCS allowed Father visits with I.C. only through a case aide; there were no other approved safety monitors. Within two weeks, however, Mother arranged a visit between Father and I.C. without DCS's knowledge or permission. She later stated to DCS and I.C.'s foster family that Father had not had any contact with her or I.C. Mother also allowed Father contact with I.C. on at least two more occasions. In February 2018, DCS removed I.C. from Mother's custody and again referred her to counseling. In March 2018, DCS filed a renewed motion for termination.
¶11 The juvenile court held a contested severance hearing in May and June 2018. There, Mother testified that she had allowed Father to contact I.C. only three times, but the court found her testimony not credible. Indeed, Father had posted some photos of himself with I.C. on Facebook. I.C.'s hairstyle, which changed dramatically around the time Mother regained physical custody of I.C., suggested the photos were taken during the three months I.C. was in Mother's care.
¶12 Additionally, Claudine B. (a friend of I.C.'s foster mother) testified that while working with Mother in February 2018, she noticed pictures of I.C. taken at a family themed pizza parlor. One of the photos showed I.C. with "a man that [she] didn't recognize." After Claudine B. informed Mother about her relationship with I.C., Mother told her the man in the photo was I.C.'s "dad but don't tell anybody because he's not supposed to see him until after I get custody back." Once DCS had regained physical custody of I.C., Mother expressed frustration with the case manager, stating she "didn't understand why [I.C.'s contact with Father] was a problem." She told the case manager that if DCS did not want Father and I.C. to have any contact, "then [DCS] should have severed his rights prior to . . . returning [I.C.] to her care" because Father "was going to always be [I.C.'s] father, regardless of the outcome" of the case.
¶13 After the hearing, the juvenile court terminated Mother's parental rights to I.C. under the fifteen months' time in care ground and Mother timely appealed.
DISCUSSION
¶14 On appeal, Mother challenges only the court's finding that termination of her parental rights was in I.C.'s best interests. Reasonable evidence supports the court's finding that continuing the parent-child
relationship would be detrimental to I.C. because "Mother has not demonstrated that she can protect" him.
¶15 As applicable here, to terminate parental rights, a court must find at least one statutory ground articulated in Arizona Revised Statutes section 8-533(B) has been proven by clear and convincing evidence and must find by a preponderance of the evidence that termination is in the best interests of the child. See Kent K. v. Bobby M., 210 Ariz. 279, 288 ¶ 41 (2005) (preponderance standard for best interests); Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, 249, ¶ 12 (2000) (clear and convincing standard for statutory ground). Because the juvenile court "is in the best position to weigh the evidence, observe the parties, judge the credibility of witnesses, and resolve disputed facts," this court will affirm an order terminating parental rights so long as it is supported by reasonable evidence. Jordan C. v. Ariz. Dep't of Econ. Sec., 223 Ariz. 86, 93, ¶ 18 (App. 2009) (quoting Ariz. Dep't of Econ. Sec. v. Oscar O., 209 Ariz. 332, 334, ¶ 4 (App. 2004)).
¶16 Termination is in a child's best interests if the child would benefit from terminating the parent-child relationship or be harmed by its continuation. In re Maricopa Cty. Juv. Action No. JS-500274, 167 Ariz. 1, 5 (1990). Courts "must consider the totality of the circumstances existing at the time of the severance determination, including the child's adoptability and the parent's rehabilitation." Alma S. v. Dep't of Child Safety, 245 Ariz. 146, 148, ¶ 1 (2018).
¶17 "In a best interests inquiry . . . 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. at 286, ¶ 35; see also In re Maricopa Cty. Juv. Action No. JS-6831, 155 Ariz. 556, 559 (App. 1988) ("In most cases, the presence of a statutory ground will have a negative effect on the children[,]" which supports a best interests finding.). Once a juvenile court finds that a parent is unfit, the focus shifts to the child's interests. Kent K., 210 Ariz. at 285, 287, ¶¶ 31, 37. 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. at 286, ¶ 35. Of foremost concern in that regard is "protect[ing] a child's interest in stability and security." Id. at ¶ 34 (citing In re Pima Cty. Juv. Severance Action No. S-114487, 179 Ariz. 86, 101 (1994)).
¶18 Although Mother engaged in services and, at times, acknowledged the need to protect I.C. from Father, she did not demonstrate that she was capable of doing so. About a month before regaining physical custody of I.C., Mother testified that she believed Father had caused I.C.'s
rib fractures and that she did not want him to have any parenting time. But only a few weeks later, she repeatedly allowed Father access to I.C. without DCS's knowledge or permission. She then denied having any contact with Father to the DCS case manager and I.C.'s foster mother. Mother only admitted the contact once DCS had removed I.C. from her physical custody. Mother's deceptiveness in allowing Father—who had not engaged with his DCS case plan—to have repeated contact with I.C. supports a reasonable inference that she could not recognize or protect the child from future harm.
¶19 This inference is further supported by Dr. Thal's testimony at the severance hearing. He testified that Mother had not fully internalized her therapy and that she showed an ongoing pattern "in which [her] decision[s] seem[] to be on behalf of the father rather than in . . . [I.C.'s] best interest." He gave Mother a poor prognosis for demonstrating minimally adequate parenting skills, testifying that after three years of working her case plan, Mother still "does not . . . discharge her basic parental responsibility . . . with respect to protecting [I.C.], as she ha[s] been directed, taught, and trained to do."
¶20 For these same reasons, the case manager testified that Mother "would [not] be able to utilize the services and resources that are available to her to ensure" I.C.'s "safe[ty] in the future." She concluded that without severance, I.C. "would be stuck waiting . . . for an unknown amount of time for [Mother] to demonstrate that she would be able to protect" him and lingering in foster care "would deprive him [of] . . . permanency." She testified that he was in an adoptive placement who was meeting his needs. In counseling sessions, Mother was working on assertiveness, including how to set boundaries and say no, issues she had worked on as early as April 2016. These were skills Mother was unable to utilize during the three months I.C. was in her care. On this record, reasonable evidence supports the juvenile court's best-interests determination.
CONCLUSION
¶21 For the foregoing reasons, we affirm the superior court's order terminating Mother's parental rights to I.C.