Opinion
No. 2 CA-JV 2018-0140
01-08-2019
DALILA P., Appellant, v. DEPARTMENT OF CHILD SAFETY, P.P., I.D., AND J.D., Appellees.
COUNSEL Joel Feinman, Pima County Public Defender By David J. Euchner and Jennifer G. Rochelle, Assistant Public Defenders, Tucson 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 Minors
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NOT FOR PUBLICATION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. JD20160425
The Honorable Lisa Bibbens, Judge Pro Tempore
AFFIRMED
COUNSEL Joel Feinman, Pima County Public Defender
By David J. Euchner and Jennifer G. Rochelle,
Assistant Public Defenders, Tucson
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 Minors
MEMORANDUM DECISION
Presiding Judge Staring authored the decision of the Court, in which Judge Vásquez and Judge Brearcliffe concurred. STARING, Presiding Judge: ¶1 Dalila P., the mother of P.P., I.D., and J.D., appeals from the juvenile court's order terminating her parental rights on the grounds of neglect, chronic substance abuse, and length of time in court-ordered care, pursuant to A.R.S. § 8-533(B)(2), (B)(3), and (B)(8)(c). Dalila contends there was insufficient evidence to support the court's order as to any of the three grounds. She also challenges the constitutionality of Arizona's severance statute. For the reasons stated below, we affirm the court's ruling.
Factual and Procedural Background
¶2 In July 2016, the Department of Child Safety (DCS) took temporary custody of P.P., born in May 2009, and I.D., born in November 2014, based on reports of Dalila's use of drugs, including methamphetamine, her lack of adequate housing, and her incarceration. Dalila had been incarcerated for violating probation imposed following her theft conviction. She had left the children in the care of a neighbor, who, in turn, had left the children with her own daughter, who was unable to care for them. J.D. was born in October 2016, shortly after Dalila was released from jail. Dalila tested positive for methamphetamine at the time of the birth. DCS filed a dependency petition as to J.D. The children were adjudicated dependent in October, after Dalila entered a plea of no contest. ¶3 DCS provided the family with a panoply of reunification services, including services designed to address Dalila's ongoing substance-abuse problem. After a permanency hearing in June 2017, the juvenile court found Dalila was in minimal compliance with the case plan, and granted DCS's previously filed motion for a concurrent case plan of family reunification and severance and adoption. The court found DCS had made reasonable efforts to accomplish reunification, but the parents were unable to remedy the circumstances that caused the children to remain out of the home. The court added that returning the children to the parents at that time "would create a substantial risk of harm to the minors' physical, mental or emotional health or safety." ¶4 After a dependency review hearing in September 2017, the juvenile court found the children remained dependent and Dalila was not in compliance with the case plan, which the court changed to severance and adoption. The court again found DCS had made reasonable efforts to reunify the family, offering services that included parenting classes, healthy relationships classes, supervised visitation, random drug testing, substance abuse education and treatment, and relapse prevention. DCS then filed a motion for termination of parent-child relationship in September 2017. ¶5 After hearings that were held between February and May 2018, the juvenile court terminated Dalila's parental rights to all three children on the grounds of neglect, chronic substance abuse, and length of time in care (fifteen months or longer). In its twenty-nine-page under-advisement ruling, the court reviewed the history of this case and made detailed factual findings related to the statutory grounds for termination, citing the exhibits, testimony or other portions of the record that supported those findings and its conclusion that DCS had sustained its burden as to the three grounds it had alleged. This appeal followed.
Discussion
Sufficiency of the Evidence
¶6 Dalila challenges the sufficiency of the evidence as to each statutory ground for termination, citing evidence in her favor that she argues negates the juvenile court's factual findings. She emphasizes her own testimony that she was no longer using methamphetamine by the time of the severance hearings, and although she tested positive for marijuana, she had obtained a card authorizing her use of marijuana for medical purposes in February 2018. ¶7 To terminate a parent's rights, the juvenile court must find by clear and convincing evidence at least one of the grounds for termination set forth in § 8-533(B), and that a preponderance of the evidence shows severance of the parent's rights is in the child's best interests. See Titus S. v. Dep't of Child Safety, 244 Ariz. 365, ¶ 15 (App. 2018) (citing A.R.S. §§ 8-533(B), 8-537(B); Kent K. v. Bobby M., 210 Ariz. 279, ¶ 41 (2005)). "We view the evidence in the light most favorable to upholding the court's order." Id. We will "'accept the juvenile court's findings of fact if reasonable evidence and inferences support them, and will affirm a severance order unless it is clearly erroneous.'" Alma S. v. Dep't of Child Safety, 245 Ariz. 146, ¶ 18 (2018) (quoting Demetrius L. v. Joshlynn F., 239 Ariz. 1, ¶ 9 (2016)). ¶8 Dalila acknowledges that "because only one ground need be proven in order for the juvenile court's termination order to stand, appellate courts often will end its review upon affirmance of a single ground," citing this court's decision in Jesus M. v. Arizona Department of Economic Security, 203 Ariz. 278, ¶ 3 (App. 2002), which relies on the supreme court's decision in Michael J. v. Arizona Department of Economic Security, 196 Ariz. 246, ¶¶ 12, 27 (2000), and our decision in Maricopa County Juvenile Action No. JS-6520, 157 Ariz. 238 (App. 1988). Dalila asserts that "[t]his rationale is erroneous because it fails to recognize the importance of the proof of multiple grounds when the juvenile court weighs the best interests of children," urging us to consider the sufficiency of the evidence to support all three grounds. ¶9 We reject Dalila's assertion that these decisions are flawed, particularly our supreme court's decision in Michael J., which we repeatedly have cited for this proposition. See, e.g., Antonio M. v. Ariz. Dep't of Econ. Sec., 222 Ariz. 369, ¶ 4 (App. 2009); Bobby G. v. Ariz. Dep't of Econ. Sec., 219 Ariz. 506, ¶ 12 (App. 2008); Jesus M., 203 Ariz. 278, ¶ 3. We are not, in any event, in a position to "overrule, modify, or disregard" a decision by our supreme court. City of Phoenix v. Leroy's Liquors, Inc., 177 Ariz. 375, 378 (App. 1993). In Michael J., the court stated that because it found sufficient evidence to affirm the termination of the father's rights based on abandonment, it "need not consider whether the trial court's findings justified severance on the other grounds," and only mentioned those grounds "briefly" in order "[t]o afford guidance for future actions." 196 Ariz. 246, ¶ 27. Moreover, Dalila is not challenging the best-interests finding, other than in connection with her challenge to the constitutionality of the statute and her apparent contention that the best-interests determination should be subject to the higher burden of clear-and-convincing evidence. In any event, our determination that there was sufficient evidence of one statutory ground for termination would not foreclose our consideration of evidence related to all of the grounds in determining the sufficiency of the evidence to support the juvenile court's best-interests finding. We therefore turn to the length of time the children were in care, which, as discussed below, is supported by ample evidence and is a sufficient basis for sustaining the juvenile court's ruling. ¶10 A parent's rights may be terminated under § 8-533(B)(8)(c) if a juvenile court finds clear and convincing evidence that the child has been in court-ordered, out-of-home care for fifteen months or longer, the parent "has been unable to remedy the circumstances" requiring that placement, "and there is a substantial likelihood that the parent[s] will not be capable of exercising proper and effective parental care and control in the near future." In its ruling, the juvenile court reviewed the history of the case and made general factual findings that related to all of the grounds alleged and the children's best interests. The court then made additional findings that related to each of the three statutory grounds the court found DCS had established, including length of time in care (fifteen months or longer). As to many of these findings, the court specified the evidentiary support for that finding. ¶11 Dalila acknowledges that, as she stipulated below, the children were in care for fifteen months or longer. But, she argues, DCS failed to prove she had been unable to remedy the circumstances that caused the children to remain out of the home and there is a substantial likelihood that she will not be capable of exercising proper and effective parental care and control in the near future. Dalila testified at the April 2018 hearing that she was not able to parent the children at that time and admitted she needed additional assistance. She concedes on appeal "[i]t is not disputed that [she] needed more time to get her act together," but argues "she was about to get her 90-day sobriety chip from AA/NA and the court recognized her performance in overcoming substance abuse." ¶12 Dalila points to evidence that was in her favor, including evidence of progress she purportedly had made by the time of the hearing. The juvenile court acknowledged Dalila recently had attended classes and had engaged in "some services," but concluded these efforts had not "allowed her to remedy the circumstances that caused the out-of-home placement": her chronic substance abuse, "which . . . prevented her from being able to safely parent the Children," and caused her failure "to effectively address the substantial damage done to her relationship with her children, particularly [P.P.]" The court added that Dalila had been unable to remain sober for a significant period of time, finding her testimony that she had been sober since December 2017 "demonstrably not credible," noting positive tests for THC metabolite before she obtained her medical marijuana card in February 2018, just before the first day of the hearing. The court also found Dalila's explanation for failing to test on the eve of the severance hearing was not credible. The court made additional, detailed findings related to its conclusion that there was a substantial likelihood Dalila would not be able to adequately parent her children in the near future. Again, the court found much of Dalila's testimony that attempted to refute DCS's evidence in this regard was not credible. ¶13 Dalila is essentially asking this court to reweigh the evidence, which we will not do. See Ariz. Dep't of Econ. Sec. v. Oscar O., 209 Ariz. 332, ¶ 4 (App. 2004). As we previously stated, we review the record to determine whether it contains reasonable evidence to support the findings of fact upon which the termination order is based. See Jesus M., 203 Ariz. 278, ¶ 4. The record supports the juvenile court's thorough factual findings and no purpose would be served by restating the court's ruling in its entirety here. Rather, we adopt the court's findings. Id. ¶ 16 (citing State v. Whipple, 177 Ariz. 272, 274 (App. 1993)).
The juvenile court found DCS had failed to provide sufficient evidence to prove termination was warranted based on the children having been in court-ordered care for nine months under § 8-533(B)(8)(a).
Constitutional Challenges
¶14 Dalila next contends that "Arizona's scheme for termination of parental rights violates due process because 1) it unconstitutionally lessens the burden of proof for finding termination in the best interests of the child, and 2) some grounds for termination provide no opportunity for the court to consider the parent's rehabilitation." With respect to the second part of her argument, Dalila contends the statute is constitutionally infirm because not all grounds for termination require a showing that DCS provided reunification services and that the parent nevertheless was unable to be rehabilitated sufficiently to adequately parent. Dalila asserts the supreme court's recent interpretation of the statute in Alma S. is "troubling," and argues that "for all of the reasons stated in Justice Bolick's concurrence," the result reached by the majority violates due process and results in a process that is "no longer fundamentally fair." ¶15 Dalila did not raise a constitutional challenge to the statute below. Failure to raise a claim in the juvenile court generally waives that claim on appeal, see Christy C. v. Ariz. Dep't of Econ. Sec., 214 Ariz. 445, ¶ 21 (App. 2007), including challenges to the statute's constitutionality, see K.B. v. State Farm Fire & Cas. Co., 189 Ariz. 263, 268 (App. 1997). We may overlook the failure to raise such a claim below. See Marco C. v. Sean C., 218 Ariz. 216, ¶ 6 (App. 2008). We do so here only because Dalila's argument is based to a large degree on Alma S., which was decided after her rights were terminated. ¶16 The children assert and DCS suggests it is not entirely clear Dalila is challenging the facial constitutionality of the statute as well as its validity as applied to her. Dalila concedes in her reply brief that her opening brief "could have been more explicit," but contends her challenge to the burden of proof for the best-interest finding is a facial challenge. Assuming it is sufficiently clear that Dalila is raising a facial challenge to the statute's constitutionality, she must demonstrate there are no circumstances in which the statute could be found valid. State v. Wein, 244 Ariz. 22, ¶ 34 (2018); see also Lisa K. v. Ariz. Dep't of Econ. Sec., 230 Ariz. 173, ¶ 8 (App. 2012). To show the statute is unconstitutional as applied, she must demonstrate its application to her violates her constitutional rights. See Korwin v. Cotton, 234 Ariz. 549, ¶ 32 (App. 2014). She has shown neither, particularly in light of our supreme court's decisions. ¶17 In Alma S., the supreme court addressed the proper inquiry for the best-interest finding and held that "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." 245 Ariz. 146, ¶ 1. Reaffirming its decision in Demetrius L., the court stated that the statute creates a two-step inquiry; first, the juvenile court must determine parental unfitness, which is inherent in all but three of the eleven grounds for severance under § 8-533(B). Id. ¶¶ 8-11 (citing Kent K., 210 Ariz. 279, ¶ 9). The court reiterated its implicit conclusion in Kent K. that, other than the three "facially procedural" grounds for termination, the "substantive grounds . . . listed in § 8-533(B) [are equated] with parental unfitness." Id. ¶¶ 9, 11. The court stated that this conclusion "ensures compliance with the due process requirement that a court find, by clear and convincing evidence, parental unfitness when a severance is contested." Id. ¶ 9 (citing Santosky v. Kramer, 455 U.S. 745, 769 (1982)). The court added that if the grounds "were not synonymous with unfitness, a contested severance based on such ground would be constitutionally infirm." Id. Once a determination of unfitness has been made, in the second step of the inquiry, the focus shifts to the child's best interest. Id. ¶¶ 12-14. The court added that even though the focus is on the child at this juncture, "courts should consider a parent's rehabilitation efforts as part of the best-interests analysis." Id. ¶ 15. ¶18 Noting that Justice Bolick "question[ed]" the constitutionality of the severance statute, the majority in Alma S. declined to directly address that issue because the mother had not raised it. Id. ¶ 22. Nevertheless, as discussed above, the court found that, as construed in Kent K., the statute effects a constitutional balance between parents' due process rights and a child's best interests. Id. ¶¶ 8-10. Dalila is asking this court to question the majority's interpretation and application of the statute and the court's earlier approval of the preponderance-of-the-evidence standard for the best-interest finding in Kent K. She urges us to adopt Justice Bolick's reasoning and find the statute constitutionally infirm on its face and as applied. But as we previously stated, we are required to follow the decisions of our supreme court. Leroy's Liquors, 177 Ariz. at 378. We are therefore bound by the majority's express and implied conclusions in Alma S. ¶19 Moreover, Dalila has not established how, ultimately, she was harmed by the application of the statute as to her. The elements of chronic substance abuse under § 8-533(B)(3) and out-of-home placement, under § 8-533(B)(8)(c) required the juvenile court to consider Dalila's rehabilitation efforts and the extent to which she would be able to adequately care for the children within a reasonable period of time. The court's ruling makes clear that it considered these efforts in the context of these statutory grounds, under a clear-and-convincing burden of proof, not just in connection with the best-interests inquiry under the lesser burden of a preponderance of the evidence. Section 8-533(B)(8)(c) in particular expressly required DCS to establish by clear and convincing evidence that it had made diligent efforts to provide Dalila appropriate reunification services and that she nevertheless had been unable to remedy the circumstances that caused the children to remain out of the home. Thus, even if we were to agree with Dalila that neglect as a ground for termination under § 8-533(B)(2) does not withstand constitutional scrutiny because the subsection does not require DCS to make diligent efforts to preserve and strengthen the parental relationship, Alma S., 245 Ariz. 146, ¶ 30 (Bolick, J., concurring), Dalila has suffered no harm. The court made the finding and considered her progress in connection with the other two grounds, one of which is the ground upon which we are sustaining the ruling.
These "procedural" terminations are voluntary relinquishment, § 8-533(B)(7), failure to register as a putative father, § 8-533(B)(6), and failure to file a paternity proceeding after notice of an adoption, § 8-533(B)(5). Alma S., 245 Ariz. 146, ¶ 11. --------
Disposition
¶20 For the reasons stated, we affirm the juvenile court's order terminating Dalila's parental rights to P.P., I.D., and J.D.