Opinion
2 CA-JV 2023-0059
12-26-2023
In re Termination of Parental Rights as to J.S.,
Mindy S., Tucson In Propria Persona Kristin K. Mayes, Arizona Attorney General By Autumn Spritzer, Assistant Attorney General, Tucson Counsel for Appellee Department of Child Safety
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pima County No. JD20200606 The Honorable Jennifer Espino, Judge Pro Tempore
Mindy S., Tucson In Propria Persona
Kristin K. Mayes, Arizona Attorney General By Autumn Spritzer, Assistant Attorney General, Tucson Counsel for Appellee Department of Child Safety
Judge Sklar authored the decision of the Court, in which Presiding Judge Staring and Judge O'Neil concurred.
MEMORANDUM DECISION
SKLAR, JUDGE
¶1 Mindy S. appeals from the juvenile court's order terminating her parental rights to her son, J.S., born August 2020, on time-in-care grounds. See A.R.S. § 8-533(B)(8)(c). We affirm.
¶2 We view the facts in the light most favorable to upholding the juvenile court's ruling. See Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, ¶ 20 (2000). J.S., who was born prematurely and substance-exposed, was removed from Mindy's and the alleged father's care in September 2020, and found dependent as to the parents in November 2020. In February 2022, the Department of Child Safety (DCS) filed a motion to terminate the parent-child relationship on the grounds of chronic substance abuse and time-in-care. See A.R.S. § 8-533(B)(3), (8)(c). After a contested severance hearing that ended in February 2023, the court found termination was warranted on the time-in-care ground as to Mindy and was in J.S.'s best interests. This appeal followed.
DCS subsequently withdrew the chronic substance abuse ground as to Mindy.
The juvenile court also terminated the parental rights of the father. He is not a party to this appeal.
¶3 To terminate a parental relationship, the juvenile court must find by clear and convincing evidence at least one of the grounds for termination in A.R.S. § 8-533(B) and by a preponderance of the evidence that termination is in the child's best interests. Alma S. v. Dep't of Child Safety, 245 Ariz. 146, ¶ 8 (2018). "The juvenile court, as the trier of fact in a termination proceeding, is in the best position to weigh the evidence, observe the parties, judge the credibility of witnesses, and make appropriate findings." Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, ¶ 4 (App. 2002). We do not reweigh the evidence and will look only to determine if there is reasonable evidence to sustain the court's ruling. See Mary Lou C. v. Ariz. Dep't of Econ. Sec., 207 Ariz. 43, ¶ 8 (App. 2004). We will affirm the court's ruling unless it is clearly erroneous. See Demetrius L. v. Joshlynn F., 239 Ariz. 1, ¶ 9 (2016). A juvenile court may terminate a parent's rights under § 8-533(B)(8)(c) if the out-of-home placement has continued for fifteen months or longer and "the parent has been unable to remedy the circumstances that cause the child to be in an out-of-home placement and 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."
¶4 On appeal, Mindy's counsel filed an affidavit pursuant to Rule 607(e), Ariz. R. P. Juv. Ct., in lieu of an opening brief. That affidavit avowed that counsel had "reviewed the entire record on appeal" but found "no non-frivolous issues." Mindy subsequently filed her own pro se brief under Rule 607(e)(3). She broadly argues that it is in J.S.'s best interests to be with her and that she deserves a "second chance" to parent him. However, her brief contains no legal argument and instead simply provides her view of the case. And, although Mindy claims the juvenile court erred in terminating her parental rights, she has not identified any error. Her failure to do so constitutes waiver of her arguments on appeal. See Christina G. v. Ariz. Dep't of Econ. Sec., 227 Ariz. 231, n.6 (App. 2011) (failure to develop argument on appeal results in abandonment and waiver of issue). Although Mindy is proceeding pro se, we must hold her briefing to the same standards as briefing presented by counsel. See Flynn v. Campbell, 243 Ariz. 76, ¶ 24 (2017) ("We hold unrepresented litigants in Arizona to the same standards as attorneys.").
Although Mindy asserts that the juvenile court erroneously stated J.S., who requires hearing aids, was not consistently wearing his hearing aids when he was with her, she has not sufficiently developed an argument that termination was not warranted for that reason.
¶5 In addition to concluding Mindy has waived her arguments on appeal, we have reviewed the record, including eleven days of trial transcripts, and the juvenile court's fifteen-page minute entry. Based on that review, we address the merits of Mindy's appeal despite the waiver. The minute entry provides a detailed recitation of the facts of the case with citation to supporting documents and the court's legal analysis and conclusions. The court's factual findings include that J.S. had been in DCS's care for "approximately 29 months." The court detailed the "diligent and reasonable" efforts DCS had made to provide Mindy with services during the dependency, noting that she did not "consistently participate or complete services from September 2020-December 2021," even though she participated in services after that time. The court ultimately concluded "the provision of further or different reunification services would have been futile."
¶6 The juvenile court also found Mindy was unable to remedy the circumstances causing J.S. to be in an out-of-home placement at the time of severance, noting she would need at least one year to "catch up" and, therefore, there was a substantial likelihood she would be incapable of parenting J.S. effectively in the near future. As to best interests, the court found that J.S. was adoptable and that his placement had "consistently met his specific needs, is willing to continue to do so, and is willing to adopt him." The court also concluded J.S. would suffer a detriment if Mindy's parental rights are not terminated, "as her delay in engaging in services and [J.S.'s] therapy sessions has resulted in her being significantly behind in caregiver skills."
¶7 In light of the juvenile court's "thorough findings of fact and sustainable conclusions of law with respect to both the statutory grounds for severance and the child[]'s best interests, we believe little would be gained by our further 'rehashing the trial court's correct ruling' in our decision." Jesus M., 203 Ariz. 278, ¶ 16 (quoting State v. Whipple, 177 Ariz. 272, 274 (App. 1993)). We do not, however, agree with Mindy's appellate counsel that no non-frivolous issues exist. The trial testimony contained many illustrations of Mindy's improved participation in services, her heightened understanding and ability to accommodate J.S.'s special needs, and her potential ability to parent in the future. Although this testimony does not provide a sufficient basis for reversing the court's decision, it is not so insufficient as to be frivolous.
¶8 We affirm the juvenile court's ruling terminating Mindy's parental rights to J.S.