Opinion
2 CA-JV 2021-0052
12-13-2021
Candice L., Appellant, v. Department of Child Safety, R.L., and M.L., Appellees.
Generation Justice, Phoenix By Timothy D. Keller, Rebecca Smith Masterson, and Brittany Reiner Counsel for Appellant Mark Brnovich, Arizona Attorney General By Dawn R. Williams, Assistant Attorney General, Tucson Counsel for Appellee Department of Child Safety Sara L. Dent, Cochise County Legal Defender By Justin Gettler, Assistant Legal Defender, Bisbee Counsel for Minors
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Cochise County No. JD201900075 The Honorable John F. Kelliher Jr., Judge
Generation Justice, Phoenix By Timothy D. Keller, Rebecca Smith Masterson, and Brittany Reiner Counsel for Appellant
Mark Brnovich, Arizona Attorney General By Dawn R. Williams, Assistant Attorney General, Tucson Counsel for Appellee Department of Child Safety
Sara L. Dent, Cochise County Legal Defender By Justin Gettler, Assistant Legal Defender, Bisbee Counsel for Minors
Chief Judge Vásquez authored the decision of the Court, in which Presiding Judge Eppich and Judge Espinosa concurred.
MEMORANDUM DECISION
VÁSQUEZ, CHIEF JUDGE
¶1 Candice L. appeals from the juvenile court's March 2021 order terminating her parental rights to her son, R.L., and her daughter, M.L., twins born in September 2014, based on length of time in court-ordered care. See A.R.S. § 8-533(B)(8)(a), (c). She argues insufficient evidence supports the grounds for termination and the finding that termination was in the children's best interests. For the following reasons, we affirm.
The juvenile court also terminated the parental rights of the children's father. He is not a party to this appeal.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to affirming the juvenile court's order. See Christina G. v. Ariz. Dep't of Econ. Sec., 227 Ariz. 231, ¶ 13 (App. 2011). On October 5, 2019, M.L. was admitted to the hospital after ingesting a caustic drain cleaning liquid while in the care of her maternal grandfather and step-grandmother. She sustained chemical burns to her mouth, vocal chords, esophagus, and stomach, making it practically impossible for her to eat and swallow. She required bimonthly surgeries and the use of a feeding tube for nearly eighteen months.
Although much of the record refers to the drain cleaner as Drano, it appears to have been a similar product called Hair-B-Gone.
¶3 The Department of Child Safety (DCS) received a report of the incident on October 9, 2019, and an investigation ensued. The next day in M.L.'s hospital room, a nurse overheard Candice tell M.L. that "bad guys" were at their house and were coming to talk to her later. That same day, a caseworker interviewed both Candice and M.L. at the hospital. Candice stated that she and R.L. were not home at the time of the incident, although they all lived together with the maternal grandfather and step-grandmother. She explained that M.L. had gone into the bathroom to get ready for bed and had voluntarily ingested the drain cleaner, which they stored on the floor behind the toilet for at least eight months with a defective cap. Candice described M.L. as a "difficult" child.
¶4 During M.L.'s interview, the caseworker asked her if anyone had forced her to drink the drain cleaner, and M.L. responded, "Grandpa did it" because she was "in trouble." Outside M.L.'s hospital room, the caseworker asked Candice if there was somewhere else she and the children could stay in light of M.L.'s allegation. Candice became upset and repeatedly yelled, "My daughter's a liar," while the door was open and M.L. could hear. While calling friends in an attempt to find somewhere to stay, Candice again called M.L. a liar and stated that the children were being removed because of M.L., also while M.L. could hear.
¶5 Later that day, DCS took custody of the children and subsequently filed a dependency petition, alleging that Candice had neglected R.L. and M.L. as a result of abuse and a failure to protect. The petition cited M.L.'s ingestion of the drain cleaner and the ongoing criminal investigation into that incident, as well as Candice's behaviors in denying that the maternal grandfather had harmed M.L. and in calling M.L. a liar. In November 2019, Candice entered a no-contest plea to the allegations in the petition, and the juvenile court adjudicated the children dependent. The court confirmed a primary case plan of family reunification with a concurrent case plan of severance and adoption. DCS offered a variety of rehabilitative services, including individual therapy, psychological evaluations, child and family team (CFT) and adult recovery team (ART) meetings, parenting education, and visitation.
¶6 Although DCS repeatedly tried to place the children together, they were unable to do so. On October 25, 2019, when M.L. was released from the hospital, she was placed in licensed foster care certified to meet her special needs arising from her ingestion of the drain cleaner, and she remained there throughout the dependency. Upon his removal, R.L. was also placed in licensed foster care, but he was moved to a group home in December 2019, because the foster home was found to be unsanitary. In both homes, R.L. displayed behavioral problems, including screaming, crying, kicking, and cursing. Because of concerns that he was not being adequately supervised and was being bullied, R.L. was moved to a licensed therapeutic foster home in February 2020. However, R.L.'s behavioral problems escalated with him breaking furniture, physically lashing out at others, and attempting to break windows. Consequently, R.L. was placed in another licensed therapeutic foster home in June 2020.
¶7 That same month, R.L. underwent a psychological evaluation and was diagnosed with attention deficit hyperactivity disorder (ADHD), adjustment disorder, and disruptive mood dysregulation disorder. He also completed a psychiatric evaluation and was additionally diagnosed with post-traumatic stress disorder. After being prescribed medication to address these diagnoses, R.L.'s aggression lessened and his ability to focus increased. He stabilized and was doing "fairly well" in his placement. Although Candice insisted that R.L.'s behavioral problems began after removal, the DCS caseworker assigned to the case opined that they must have existed prior. She explained that while "children do increase negative behaviors upon removal," they do not do so "to this extent" because they have "learned appropriate and healthy self-soothing and self-regulation techniques," which R.L. had not. Candice's therapist agreed that Candice likely would have seen R.L.'s ADHD behaviors as early as age two.
¶8 The criminal investigation surrounding M.L.'s ingestion of the drain cleaner ended with no charges being filed. However, during the dependency, both children reported that the maternal grandfather was mean to them, Candice, and the maternal step-grandmother and that they were afraid of and did not like him. In addition, Candice gave conflicting statements about the maternal grandfather. On one hand, she reported "having a rough relationship with her father and then blacking out portions of her childhood," but, on the other, she stated that "she had a great childhood and that her father is supportive of her and she loves him."
It is notable, however, that one of the physicians who consulted on M.L.'s case testified she believed the poisoning was non-accidental as "the degree of injury that she had" was not typically seen with accidental ingestion. The physician further explained, "[A] child of [M.L.]'s age, if she were to accidentally have some in her mouth . . . would typically spit it out and not . . . consume quantities of it . . . because it tastes gross and it hurts. And given the extent of her injury, from her mouth all the way to her stomach," it was "more consistent with being forced to drink something."
¶9 At a review hearing in April 2020, the DCS caseworker stated that Candice was participating in services but she "does not seem to understand the reasons behind the dependency." A few months later, in June 2020, the DCS caseworker reported that Candice was "making progress at understanding the severity of [M.L.'s] injuries, as well as [R.L.'s] ongoing behavioral issues." Candice moved out of the maternal grandfather's home and moved in with her boyfriend. Although DCS was willing to return R.L. to Candice, she did not want him returned to her while she was living with her boyfriend due to a lack of space. But Candice also refused a housing subsidy offered by DCS to help her obtain her own home.
¶10 Throughout the dependency, both children had supervised visitation with Candice. On June 12, 2020, Candice was allowed a partially unsupervised visit, which reportedly went well. Shortly thereafter, however, the children filed a motion to suspend Candice's unsupervised visits. They argued that Candice favors R.L., shows no empathy for M.L., cannot meet M.L.'s health needs, and needs to make more progress in individual therapy. "Until then," the children asserted, "unsupervised visitation is not safe for [them]." Later that month, DCS and the children's guardian ad litem reached a stipulation regarding the visits. They agreed Candice would get two hours of unsupervised visitation with the children, immediately followed by two hours supervised. The stipulation further provided that DCS would not recommend returning physical custody of the children to Candice until (1) she "verbalizes and shows by her actions that she can protect the children" and "has gained insight into why she was not willing to consider the danger that [the maternal grandfather] posed to [M.L.] in the first months after [M.L.] was poisoned"; (2) she "shows [M.L.] that she believes [her]," which will "probably" require family therapy; and (3) she can parent the children on her own, as evidenced by "living by herself in a home which is suitable for the children" and "maintaining a stable income."
¶11 At a review hearing in August 2020, the DCS caseworker reported that Candice was participating in therapy but the therapist "stated that she is not fully engaged and therefore there is very little to work on." At the permanency hearing two months later, counsel for DCS advised the juvenile court that Candice "will not acknowledge the incident that caused the dependency" and denies that the children "had behavioral health issues prior to being in the care of DCS." Counsel pointed out that Candice had requested visitation between the children and the maternal grandfather and step-grandmother, despite the children repeatedly expressing their fear and dislike of him. DCS therefore requested a change in the case plan to severance and adoption, which the court granted.
Although R.L. was allowed one supervised visit per month with the maternal grandfather and step-grandmother, M.L. did not have any visitation because of the drain cleaner incident.
¶12 Shortly thereafter, DCS filed a motion for termination of the parent-child relationship, alleging as grounds that Candice had "willfully abused a child or [had] failed to protect a child from willful abuse" and that the children had been in "an out-of-home placement for a cumulative total period of nine months or longer." See § 8-533(B)(2), (B)(8)(a). Specifically, the motion alleged that Candice "fails to see the safety concerns present with the maternal grandfather" and "has failed to engage meaningfully in her individual therapy" based on her "unwillingness to discuss the reasons the children] came into care" and her "refusal . . . to acknowledge that the maternal grandfather may have forced [M.L.] to drink Drano." In January 2021, DCS filed a first amended motion for termination, adding as a ground that the children had been in "an out-of-home placement for a cumulative total period of fifteen months or longer." See § 8-533(B)(8)(c).
¶13 After a hearing in February 2021, the juvenile court granted the motion for termination, finding DCS had proven the grounds of nine and fifteen months in court-ordered care by clear and convincing evidence and termination was in the children's best interests by a preponderance of the evidence. See § 8-533(B)(8)(a), (c). However, the court could not find that Candice had "willfully abused" the children or that the maternal grandfather had forced M.L. to drink the drain cleaner. The court nonetheless determined that Candice had been "neglectful in leaving the toxic chemical available" to the children. The following month, the court entered its findings of fact and conclusions of law. This appeal followed.
Discussion
¶14 On appeal, Candice challenges the sufficiency of the evidence to support the juvenile court's termination order. We will affirm an order terminating parental rights if it is supported by reasonable evidence. Jade K. v. Loraine K, 240 Ariz. 414, ¶ 6 (App. 2016). Put another way, we will not reverse a termination order for insufficient evidence unless, as a matter of law, no reasonable factfinder 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).
¶15 The juvenile court may terminate a parent's rights if it finds by clear and convincing evidence that at least one of the statutory grounds for termination exists and by a preponderance of the evidence that termination of the parent's rights 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). In considering whether this standard has been met, we defer to the juvenile court, as the factfinder, to determine witness credibility and resolve conflicts in the evidence. Jesus M. v. Ariz. Dep't of Econ. Sec, 203 Ariz. 278, ¶ 12 (App. 2002).
¶16 Pursuant to § 8-533(B)(8) (a), the juvenile court may sever a parent's rights if (1) the "child has been in an out-of-home placement for a cumulative total period of nine months or longer pursuant to court order" and (2) "the parent has substantially neglected or wilfully refused to remedy the circumstances that cause the child to be in an out-of-home placement." Section 8-533(B)(8)(c) provides that the court can sever a parent's rights if (1) the "child has been in an out-of-home placement for a cumulative total period of fifteen months or longer pursuant to court order," (2) "the parent has been unable to remedy the circumstances that cause the child to be in an out-of-home placement," and (3) "there is a substantial likelihood that the parent will not be capable of exercising proper and effective parental care and control in the near future." The court must construe "the circumstances that cause the child to be in an out-of-home placement," § 8-533(B)(8), as those existing at the time of the severance, rather than the initial dependency petition. See Marina P. v. Ariz. Dep't of Econ. Sec, 214 Ariz. 326, ¶ 22 (App. 2007).
¶17 Both subsections additionally require that "the agency responsible for the care of the child has made a diligent effort to provide appropriate reunification services." § 8-533(B)(8). Although "futile efforts are not required, [DCS] must 'undertake measures with a reasonable prospect of success' in reuniting the family." Jordan C. v. Ariz. Dep 't of Econ. Sec, 223 Ariz. 86, ¶ 20 (App. 2009) (quoting Mary Ellen C. v. Ariz. Dep't of Econ. Sec, 193 Ariz. 185, ¶ 34 (App. 1999)).
¶18 As a preliminary matter, Candice misapprehends the circumstances that caused the children to be in out-of-home placements. She contends the circumstances in this case consisted of her "belief that her father is innocent of abuse." Although M.L.'s ingestion of the drain cleaner was no doubt the trigger of this proceeding, while investigating that incident and throughout the course of the dependency, DCS became concerned about other aspects of Candice's ability to exercise proper and effective parental care and control. As DCS points out, the circumstances causing the children's out-of-home placements included "[Candice's] abuse or neglect of M.L. leading to her injury, [Candice's] refusal to acknowledge that she had abused or neglected M.L., [Candice's] inability to understand the severity of the children's needs, and her inability and unwillingness to take steps necessary to resume caring for her children." See Marina P., 214 Ariz. 326, ¶ 22.
To the extent Candice is challenging the initial dependency finding because the children never should have been in out-of-home placements, she cannot do so as part of this appeal from the termination order. See Lindsey M. v. Ariz. Dep't of Econ. Sec., 212 Ariz. 43, ¶ 7 (App. 2006) (describing dependency orders as final and appealable upon entry).
Nine-Months Ground
¶19 Candice contends, "No reasonable evidence supports the juvenile court's finding that [she] refused or substantially neglected to remedy the circumstances that led to removal." She argues she "meaningfully, consistently, and appropriately engaged in services." She relies on evidence that she attended twenty-nine therapy sessions, completed parenting classes, and obtained steady employment and her own home. DCS does not dispute that Candice "participated in reunification services" but instead maintains that she failed to benefit from those services. We agree.
Candice does not dispute that the children had "been in an out-of-home placement for a cumulative total period of nine months or longer pursuant to court order." § 8-533(B)(8)(a). We therefore deem any such argument waived and do not address it. See Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, ¶ 13 (2000) (appellate court will accept juvenile court's findings not challenged on appeal); Crystal E. v. Dep't of Child Safety, 241 Ariz. 576, ¶ 5 (App. 2017) (failure to challenge termination ground constitutes abandonment and waiver on appeal).
¶20 Although Candice consistently attended individual therapy, her therapist testified that, after approximately fourteen months, Candice still did not understand why the children had been removed or the impact of what had happened on M.L. According to the therapist, Candice was not "able to understand and accept responsibility for her action," specifically, "to recognize that she played a part in this and [that] she was neglectful in one sense, whether she left the children with her father or she left the drain cleaner out." The therapist further opined that Candice was not "invested in her individual therapy." Indeed, a little over a month after starting therapy, the therapist reduced Candice's appointments from every week to every other week because they "weren't getting anywhere."
¶21 In addition, although Candice was "initially very consistent" in attending CFT meetings, she became inconsistent over time and still lacked an understanding of the children's needs and behaviors. With regard to M.L., Candice continued to dismiss the severity of her injuries and failed to appreciate her medical needs. With regard to R.L., she continued to deny that his behavioral problems existed prior to removal. The DCS caseworker explained, "[I]f she's not present and participating in each and every CFT where [R.L.'s] behaviors are discussed, then she is unaware of what techniques and recommendations and mechanisms the service providers, placement, behavior coaches, therapists, everybody are using to help [R.L.] manage his behaviors and his emotions." The caseworker further observed that Candice could not implement those techniques during visitation or if the children were returned to her.
¶22 When DCS was willing to return R.L. to Candice, she would not allow the caseworker to assess the condition of her boyfriend's home and stated that she did not want him living there due to limited space. But Candice also refused DCS's financial assistance to obtain appropriate housing where R.L. could have lived with her. According to the DCS caseworker, every disruption in placement for a child "sets them back approximately six months developmentally" and, consequently, R.L., who had been placed in four different homes by the time of the severance hearing, was "disadvantaged" by Candice's "failure to take advantage of [DCS's] offerings."
¶23 Concerning the drain cleaner incident and the maternal grandfather, Candice also failed to remedy the circumstances causing the children to be in out-of-home placements because she continued to show "a complete lack of empathy as to their perception of what occurred in the home, their perception as to how their grandfather treats them as well as the other members in the family, and their feelings of safety and security," as the DCS caseworker testified. Reasonable evidence supports the juvenile court's finding that Candice "substantially neglected or wilfully refused to remedy the circumstances that cause the child [ren] to be in an out-of-home placement." § 8-533(B)(8)(a).
Fifteen-Months Ground
¶24 Candice next argues, "There is no reasonable evidence [her] children belonged in out-of-home placements because she can provide proper and effective care." She points out that M.L. told "opposing stories about the ingestion" of drain cleaner and that "the juvenile court itself was ultimately at a loss to conclude whether M.L. was lying about the incident, remembering incorrectly, or had created a false memory," suggesting that the children should not have been removed from her to begin with. Candice further asserts that, in any event, "she is willing to cut off the relationship with the children's maternal grandparents to protect their physical and emotional well-being."
Section 8-533(B)(8)(c) also requires that the "child has been in an out-of-home placement for a cumulative total period of fifteen months or longer pursuant to court order" and that "the parent has been unable to remedy the circumstances that cause the child to be in an out-of-home placement." Candice does not dispute the former, and we therefore deem it waived and do not address it. See Michael J., 196 Ariz. 246, ¶ 13; Crystal E., 241 Ariz. 576, ¶ 5. With regard to the latter, Candice apparently attempts to incorporate her argument as to whether she "substantially neglected or wilfully refused to remedy the circumstances" under § 8-533(B)(8)(a). But the standards under the subsections are different-a fact she seems to overlook. See Christina G., 227 Ariz. 231, n.6 (argument waived for failure to develop and support it). In any event, for the reasons discussed above, Candice also failed to meet the lesser standard of having been "unable to remedy the circumstances" causing the out-of-home placements. § 8-533(B)(8)(c).
¶25 At the severance hearing, Candice testified that she would accept the children's statements about the drain cleaner and the maternal grandfather and that she would not allow the maternal grandfather and step-grandmother to have contact with the children. However, Candice also testified that she wants to believe the children but "deep down" she thinks the children's beliefs were created by DCS. In addition, Candice continued attempts to facilitate a relationship between the children and the maternal grandfather and step-grandmother, delivering gifts on their behalf to R.L. and M.L. a month before the severance hearing. And Candice stated that she was not concerned about how the children would feel receiving those gifts. The juvenile court, as the trier of fact, therefore had to make a credibility determination about Candice's assertions. See Jesus M., 203 Ariz. 278, ¶ 12. We will not second-guess that determination on appeal.
In October 2020, R.L. also stated that the maternal grandfather had forced M.L. to drink the drain cleaner and that he had been present at the time.
¶26 Moreover, as discussed above, Candice was unsuccessful in individual therapy in that she still could not understand and accept responsibility for her action. In addition, Candice had not been able to apologize to the children, which highlighted DCS's concern about her lack of empathy. At the time of the severance hearing, Candice, M.L., and R.L. also had not engaged in family therapy, which Candice's therapist suggested was necessary to repair the relationship, should not begin until sufficient progress was made in individual therapy, and "would take a while," probably "nine months to a year at minimum." Based on the foregoing, reasonable evidence supports the juvenile court's finding that "there is a substantial likelihood that [Candice] will not be capable of exercising proper and effective parental care and control in the near future." § 8-533(B)(8)(c).
Diligent Efforts
¶27 Candice also argues the juvenile court erred in finding that DCS had made a diligent effort to provide appropriate reunification services. But her argument is based on a flawed premise. She contends that "the goal set by DCS-that Candice 'acknowledge the non-accidental nature of the poisoning, '- is unreasonable under the totality of the circumstances." The record shows that DCS wanted Candice to accept responsibility for the part she played in the incident-whether that was leaving M.L. with the maternal grandfather who had forced her to drink the drain cleaner or leaving the drain cleaner with a faulty cap on the floor where M.L. could reach it.
¶28 The reunification services offered in this case included individual therapy, psychological evaluations, CFT and ART meetings, parenting education, financial assistance for housing, and both supervised and unsupervised visitation. Despite one hearing in February 2020, during which the juvenile court found that "reasonable efforts [were] not being made by [DCS] contractors," the court repeatedly determined that DCS was making reasonable efforts to effectuate the case plan goal. The only recommended service that was not offered was family therapy and that was due to "lack of progress" by Candice and the children in individual therapy. Notably, Candice testified at the severance hearing that DCS had offered her "all the services that [she] would need or require in order to be reunified with [the] children." Reasonable evidence therefore supports the court's finding that DCS "made a diligent effort to provide appropriate reunification services." § 8-533(B)(8).
Best Interests
¶29 Lastly, Candice contends, "The juvenile court's conclusion that severance was in the children's best interests is clearly erroneous." She argues that "the significant trauma inflicted upon R.L. by the long separation . . . strongly suggests that he would benefit from reunification." In addition, she points out that she engaged in services, obtained steady employment and a new home, and was highly bonded with the children.
¶30 "[Termination is in the child's best interests if either: (1) the child will benefit from severance; or (2) the child will be harmed if severance is denied." Alma S. v. Dep't of Child Safety, 245 Ariz. 146, ¶ 13 (2018). Potential benefits of severance include that the child is "adoptable or more stable in an existing placement." Dominique M. v. Dep't of Child Safety, 240 Ariz. 96, ¶ 8 (App. 2016). But the court cannot "disregard other evidence regarding a child's best interests" and "must consider the totality of the circumstances existing at the time of the severance determination," including the parent's rehabilitation. Alma S., 245 Ariz. 146, ¶¶ 13, 15. "The existence and effect of a bonded relationship between a biological parent and a child, although a factor to consider, is not dispositive in addressing best interests." Dominique M., 240 Ariz. 96, ¶ 12.
¶31 At the time of the severance hearing, both children were adoptable, and M.L. was in a potential adoptive placement. Despite Candice's bond with the children, the DCS caseworker testified that, particularly for R.L., "the ability to heal and move forward would be increased" if the termination were granted. Indeed, R.L. was doing "fairly well" in his placement after receiving medication for his psychological and psychiatric diagnoses. M.L. had also made significant progress medically while in the care of her foster parents and no longer needed the use of a feeding tube by the time of the severance hearing.
¶32 Conversely, the caseworker testified that the children would be emotionally harmed if severance were denied:
[T]hese children have expressed fear of their grandfather over and over and over. And Mother has made it very clear that she believes . . . the children's grandfather, over them, and continues to see [him] as a support to
her and her family and would continue to support that relationship between the children and her father even though they have expressed multiple times that they are afraid of him and they do not like him.
The caseworker further explained that Candice's "inability to put her children first and to sever ties, or even apologize to the children for what has happened" shows that severance is in their best interests. Reasonable evidence therefore supports the juvenile court's finding that termination was in the children's best interests.
Disposition
¶33 For the foregoing reasons, we affirm the juvenile court's order terminating Candice's parental rights to R.L. and M.L.