Opinion
No. 1 CA-JV 16-0202
12-08-2016
EBONY H., Appellant, v. DEPARTMENT OF CHILD SAFETY, N.M., K.M., K.M., Appellees.
COUNSEL David W. Bell Attorney at Law, Higley By David W. Bell Counsel for Appellant Arizona Attorney General's Office, Tucson By Daniel R. Huff 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. JD28607
The Honorable Kristen C. Hoffman, Judge Retired
AFFIRMED
COUNSEL David W. Bell Attorney at Law, Higley
By David W. Bell
Counsel for Appellant Arizona Attorney General's Office, Tucson
By Daniel R. Huff
Counsel for Appellee Department of Child Safety
MEMORANDUM DECISION
Judge Donn Kessler delivered the decision of the Court, in which Presiding Judge Kenton D. Jones and Judge Randall M. Howe joined. KESSLER, Judge:
¶1 Ebony H. ("Mother") appeals the family court's termination of her parental rights to her children N.M., K.M., and K.M. (collectively, the "Children"). Mother argues the court erred by finding severance was in the Children's best interests. For the following reasons, we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 Mother and W.M. ("Father") are the biological parents of N.M., born February 2003; K.M., born March 2006; and K.M., born November 2007. In June 2014, the Children's court-appointed Guardian ad Litem filed a dependency petition because Mother and Father were incarcerated and unable to parent the Children. At the time, the Children were living with a family friend. Several months later, the Department of Child Safety ("DCS") substituted as petitioner in the dependency and filed an amended first petition. The petition incorporated the allegations for dependency contained in the original petition and additionally alleged Mother was unable to provide proper and effective parental care and control due to her substance abuse and mental health.
The family court also severed Father's parental rights to the Children, but Father is not a party to this appeal.
¶3 The family court adjudicated the Children dependent in October 2014 and ordered DCS to offer Mother random urinalysis testing, substance abuse assessment and treatment as appropriate, a parent aide with visitation, a psychological evaluation, and transportation necessary for Mother to participate in the services. Mother largely failed to participate in these services and tested positive for cocaine and methamphetamine several times on the occasions in which she did participate in urinalysis. Additionally, Mother's visitation with the Children was sporadic, and she often cancelled or ended visitation early.
¶4 After approximately a year, DCS moved to terminate Mother's parental rights on the grounds of Mother's chronic substance abuse, the Children's care in an out-of-home placement for over nine months, and the Children's care in an out-of-home placement for over fifteen months. See Ariz. Rev. Stat. ("A.R.S.") § 8-533(B)(3), (B)(8)(a), (B)(8)(c) (Supp. 2015). It asserted severance was in the Children's best interests because severance would further the plan of adoption, which would provide the Children with permanency and stability, and because their current adoptive placements were meeting their needs. At the time, K.M. and N.M. were living with the family friend they had originally been placed with, but DCS was seeking an appropriate place for the third child because her previous placement had disrupted. DCS asserted she was adoptable despite not having a placement for her at that time.
We cite to the current versions of relevant statutes unless revisions material to this decision have occurred since the events in question. --------
¶5 The family court severed Mother's rights as to the Children in May 2016, finding DCS had proven all three grounds for severance. It found severance was in the Children's best interest because the Children would be harmed by the continuation of the parental relationship, explaining in part that Mother's inconsistent relationship with the Children had negatively affected them, Mother had failed to make necessary behavioral changes to reunify with the Children since they were taken into DCS care in 2014, and the Children did not demonstrate a strong bond with Mother. The court found the Children were adoptable and noted N.M. had consented to a previous adoption before that placement disrupted.
¶6 Mother timely filed notice of appeal, and we have jurisdiction pursuant to A.R.S. § 8-235(A) (2014).
DISCUSSION
¶7 Mother argues the family court erred in finding severance was in the Children's best interests because DCS failed to present credible evidence that the Children were adoptable. She asserts adoption was not in the Children's best interests because no adoptive home had been identified and N.M. was over the age of twelve but was not consulted as to whether he agreed to adoption.
¶8 Because the family court is in the best position to weigh evidence and judge credibility, "we will accept the [family] court's findings of fact unless no reasonable evidence supports those findings, and we will affirm a severance order unless it is clearly erroneous." Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, 280, ¶ 4 (App. 2002). We do not reweigh the evidence, but "look only to determine if there is evidence to sustain the court's ruling." Mary Lou C. v. Ariz. Dep't of Econ. Sec., 207 Ariz. 43, 47, ¶ 8 (App. 2004).
¶9 To sever a parent-child relationship, DCS must not only prove a statutory basis for severance—which Mother has not alleged to be an issue here—but also prove by a preponderance of the evidence that severance is in the child's best interest. Kent K. v. Bobby M., 210 Ariz. 279, 288, ¶ 41 (2005); see also A.R.S. § 8-533(B). Severance is in the child's best interests if the child would be harmed if the relationship continued or would benefit from terminating the relationship. Demetrius L. v. Joshlynn F., 239 Ariz. 1, 4, ¶ 16 (2016) (quotations and citation omitted). The family court may consider whether a current plan for the child's adoption exists, Bennigno R. v. Ariz. Dep't of Econ. Sec., 233 Ariz. 345, 350, ¶ 23 (App. 2013) (quotations and citation omitted), but DCS need not show that it has a specific adoption plan in place before a court terminates a parent's rights, Maricopa Cty. Juv. Action No. JS-501904, 180 Ariz. 348, 352 (App. 1994). Finally, the court may take into account that "[i]n most cases, the presence of a statutory ground will have a negative effect on the children." Maricopa Cty. Juv. Action No. JS-6831, 155 Ariz. 556, 559 (App. 1988).
¶10 Here, sufficient evidence supports the family court's finding that severance was in the Children's best interests. The DCS case manager testified the Children were adoptable and that severance was in the Children's best interests, even after Mother questioned DCS' adoption plan. The case manager opined that continuing the relationship between Mother and Children would be detrimental to the Children because interaction with Mother increased the Children's behavioral and emotional issues, and she also expressed concerns with Mother's substance abuse issues, living conditions, and ability to provide for the Children financially. The record supports these concerns. Over the course of a year, Mother largely failed to participate in drug testing or substance abuse counseling despite DCS' repeated referrals to those services, and Mother tested positively for drugs on the few occasions she did participate in urinalysis. At the time of the severance trial, Mother stated she was unemployed, supporting herself through social security disability, and living with her mother. The parent aide's reports stated Mother was aggressive, disruptive, and argumentative during visits with the Children, resulting in visitation being moved to the DCS visitation center. Additionally, reports from Behavioral Health Services and Child and Family Team meetings reported that the majority of the Children's disruptive behaviors arose from interactions with Mother. Finally, the DCS case manager stated that the Children had no major behavioral concerns beyond those caused by interaction with Mother, and the Behavioral Health Services and Child and Family Team meetings reports state the Children's behaviors had subsided since the Children had received DCS services. In light of this evidence, we cannot say the court abused its discretion in finding severance was in the Children's best interests.
¶11 Finally, Mother asserts severance was not in N.M.'s best interest because N.M. was over twelve years old and did not consent to any "speculative adoption plan." We disagree. Although A.R.S. § 8-106(A)(3) (Supp. 2015) requires a child twelve or over to consent in open court to an adoption, and we assume without deciding that A.R.S. § 8-106(A)(3) is applicable to an adoption following a severance, no statutory basis requires a child of twelve or over to consent to an adoption as part of a severance proceeding when no specific adoption has been proposed. Such consent can only apply once the adoption is proposed to the court for its approval. Since the court can sever parental rights if a child is adoptable and without a specific adoption before it for approval, it follows that the court does not have to postpone a severance until all the steps needed to approve a later adoption are met.
CONCLUSION
¶12 Having found that there was sufficient evidence to support the family court's findings, we affirm the severance ruling for the Children as to Mother.