Opinion
2 CA-JV 2024-0026
07-26-2024
In re Termination of Parental Rights as to H.N., H.M., S.A., N.M., H.Z., and N.K.,
Wiedle Law PLLC, Tucson By Jennifer Wiedle Counsel for Appellant Kristin K. Mayes, Arizona Attorney General By Amber E. Pershon, Assistant Attorney General, Phoenix Counsel for Appellee Department of Child Safety Pima County Office of Children's Counsel, Tucson By David Miller Counsel for Minors
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pima County No. JD20210524 The Honorable Bunkye Olson, Judge Pro Tempore
Wiedle Law PLLC, Tucson
By Jennifer Wiedle
Counsel for Appellant
Kristin K. Mayes, Arizona Attorney General
By Amber E. Pershon, Assistant Attorney General, Phoenix
Counsel for Appellee Department of Child Safety
Pima County Office of Children's Counsel, Tucson
By David Miller
Counsel for Minors
Vice Chief Judge Eppich authored the decision of the Court, in which Presiding Judge Sklar and Judge Brearcliffe concurred.
MEMORANDUM DECISION
EPPICH, Vice Chief Judge:
¶1 Aline K. appeals from the juvenile court's order terminating her parental rights to her six children on neglect and time-in-care grounds: H.N. (born May 2009), H.M. (born September 2012), S.A. (born August 2014), N.M. (born August 2017), H.Z. (born September 2019), and N.K. (born December 2020). See A.R.S. § 8-533(B)(2), (8)(c). We affirm.
¶2 We view the evidence in the light most favorable to sustaining the order. See Christina G. v. Ariz. Dep't of Econ. Sec., 227 Ariz. 231, ¶ 13 (App. 2011). Aline and her husband have a long history of domestic violence, which sometimes included their children. The Department of Child Safety (DCS) first removed the children from their parents' care in 2021, and the children were found dependent as to both parents. After the parents made progress while participating in services, the children were returned to their parents' care. However, in June 2022, DCS again removed the children following another incident of domestic violence and an incident in which Aline had not sought medical treatment for N.M. after he received first- and second-degree burns from hot water. Following their removal, the elder children reported years of abuse including being beaten and being locked in a room for hours with a bucket for toilet. Several of the children also reported that, after they were sexually assaulted by a family member, their parents did not notify the police or take any steps to protect them from the abuser.
¶3 Due to Aline's limited benefit from services, DCS moved to terminate her parental rights on the grounds of neglect, chronic substance abuse, and time in court-ordered, out-of-home care. The juvenile court granted the motion following a contested severance hearing. Although the court concluded DCS had not proven severance was appropriate based on chronic substance abuse, it found DCS had proven termination was warranted on neglect and on the children having been in court-ordered, out-of-home care for fifteen months or longer. See § 8-533(B)(2), (8)(c). It also found termination was in the children's best interests. The court highlighted that Aline had failed to protect her children from sexual abuse, had failed to adequately see to their physical and behavioral medical needs, and had failed to protect them from ongoing domestic violence. The court further observed that, although DCS had provided appropriate reunification services, Aline had not met her treatment goals and had not significantly benefitted from those services. This appeal followed.
The juvenile court also terminated the parental rights of the children's father. He is not a party to this appeal.
¶4 A 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); Sandra R. v. Dep't of Child Safety, 248 Ariz. 224, ¶ 12 (2020). We defer to the juvenile court's factual findings because, as the trier of fact, that court "is in the best position to weigh the evidence, observe the parties, judge the credibility of witnesses, and resolve disputed facts." Ariz. Dep't of Econ. Sec. v. Oscar O., 209 Ariz. 332, ¶ 4 (App. 2004). Accordingly, we will affirm a severance order if reasonable evidence supports the factual findings and the court's legal conclusions are not clearly erroneous. Brionna J. v. Dep't of Child Safety, 255 Ariz. 471, ¶¶ 30-31 (2023).
¶5 We begin with Aline's argument on appeal that the juvenile court erred by terminating her parental rights based on neglect. Aline argues that any finding of neglect can only be based on the incident in June 2022 in which N.M. was burned by hot water because it occurred "after [she] participated in case plan services." She argues that we should not consider previous neglect because "all neglect would be a basis for termination, which obliterates the purpose of reunification services."
¶6 Aline cites no authority supporting her position, and we find no support in the statutory scheme. Section 8-533(B)(2) does not require DCS to provide reunification services before seeking severance of a parent's rights, unlike the time-in-care grounds defined in § 8-533(B)(8). Nor has any caselaw identified a constitutional basis for such a requirement, unlike severance based on mental illness or chronic substance abuse under § 8-533(B)(3). See Jennifer G. v. Ariz. Dep't of Econ. Sec., 211 Ariz. 450, ¶ 12 (App. 2005); Mary Ellen C. v. Ariz. Dep't of Econ. Sec., 193 Ariz. 185, ¶ 34 (App. 1999). Aline does not attempt to draw any parallel between those bases for termination and termination based on neglect. And nothing in § 8-533(B)(2) suggests that, to support termination, the neglect must occur only after DCS becomes involved.
¶7 Aline does not dispute that the years of physical abuse and exposure to domestic violence her children experienced constitute neglect. See A.R.S. § 8-201(25). She suggests only that she is not responsible for it because she could not "control [her husband's] actions" and she was "victimized by DCS" and "blamed for the domestic violence incidents, including times she called the police for help." But Aline cites no authority suggesting that the fact that one parent is abusive means the other parent has no obligation to protect the children from abuse and neglect. See Dep't of Child Safety v. Beene, 235 Ariz. 300, ¶ 9 (App. 2014) (child's interest primary concern in severance proceedings); Ariz. R. P. Juv. Ct. 301(b) (juvenile rules regarding termination must be interpreted to "give[] paramount consideration to the child's health and safety"). Because Aline does not otherwise dispute that the juvenile court's finding of neglect is supported by the evidence, we need not address her argument that termination was not warranted on time-in-care grounds. See Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, ¶ 3 (App. 2002). Aline also has not challenged the court's conclusion that termination was in the children's best interests.
¶8 We affirm the juvenile court's order terminating Aline's parental rights to H.N., H.M., S.A., N.M., H.Z., and N.K.