Opinion
2 CA-JV 2023-0096
02-07-2024
In re Termination of Parental Rights as to L.J. and A.J.,
Evalyn J., Tucson In Propria Persona Kristin K. Mayes, Arizona Attorney General By Autumn Spritzer, Assistant Attorney General, Tucson 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Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court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. JD20200034 The Honorable Geoffrey L. Ferlan, Judge Pro Tempore
Evalyn J., Tucson In Propria Persona
Kristin K. Mayes, Arizona Attorney General By Autumn Spritzer, Assistant Attorney General, Tucson Counsel for Appellee Department of Child Safety
Pima County Office of Children's Counsel, Tucson By David Miller Counsel for Minors
Judge Kelly authored the decision of the Court, in which Presiding Judge Brearcliffe and Judge Eckerstrom concurred.
MEMORANDUM DECISION
KELLY, JUDGE
¶1 Evalyn J. appeals from the juvenile court's June 2023 ruling terminating her parental rights to her son, L.J., born in November 2015, and her daughter, A.J., born in December 2017, based on length of time in court-ordered care. See A.R.S. § 8-533(B)(8)(c). We affirm.
Factual and Procedural Background
¶2 We view the evidence in the light most favorable to affirming the juvenile court's ruling. See Christina G. v. Ariz. Dep't of Econ. Sec., 227 Ariz. 231, ¶ 13 (App. 2011). In January 2020, the Department of Child Safety (DCS) removed L.J. and A.J. from Evalyn's care after multiple reports of domestic violence and physical abuse by the children's father, Kenneth J., who is a convicted sex offender and prohibited possessor. One incident involved Kenneth bringing a firearm to A.J.'s birthday party at a restaurant after he and Evalyn had a verbal argument and he "threw [A.J.] across the room." DCS filed a dependency petition, alleging that the children were dependent as to Evalyn due to abuse and neglect. Specifically, DCS alleged that Evalyn had failed to protect the children from Kenneth's physical abuse and domestic violence and that she had an "extensive history of childhood trauma that [had] not been adequately treated." The children were ultimately placed with their paternal grandmother.
The juvenile court also terminated the parental rights of Kenneth. He is not a party to this appeal.
¶3 In August 2020, the juvenile court adjudicated the children dependent as to Evalyn, finding that "there has been a history of domestic violence and [she] has been unable or unwilling to protect the children from the domestic violence." However, the court noted that Evalyn was "working hard and making every effort toward remedying the circumstances" that brought the children into court-ordered care. The court set a case plan goal of family reunification.
¶4 In October 2020, based upon allegations made by Evalyn to several individuals, Kenneth was arrested for possession of child sexual abuse material, and he was subsequently charged with ten counts of sexual exploitation of a minor and one count each of failure to register an online identifier and failure to register as a sex offender. He pled guilty to failure to register an online identifier and was sentenced to 5.5 years' imprisonment. Before his arrest, Evalyn had reported to a coworker that Kenneth continued to be physically abusive toward her and forced her to watch child sexual abuse material. In December 2020, Evalyn filed a petition for dissolution of her marriage to Kenneth.
According to the DCS caseworker, the material included ten images and one video, which included penetration, oral sex, bestiality with a dog, and multiple children, one under the age of two.
¶5 That same month, Evalyn completed a psychological evaluation and was diagnosed with a "Cluster C Personality Disorder," which, according to the psychologist, results in nonassertive, dependent behaviors and affects a parent's understanding that his or her "children should come first." During the evaluation, Evalyn admitted that she had been sexually molested by her stepfather for several years when she was growing up, but she otherwise described him as "good to her." DCS and the juvenile court, while still recognizing that Evalyn was participating in services, began questioning whether she was benefiting from them.
¶6 In August 2022, the juvenile court changed the case plan goal to severance and adoption. DCS then filed a motion for termination of the parent-child relationship, citing neglect under § 8-533(B)(2) and length of time in court-ordered care under § 8-533(B)(8)(c). After a ten-part severance hearing, the juvenile court granted the motion for termination, finding that DCS had established the § 8-533(B)(8)(c) ground and that severance was in the best interests of the children. This appeal followed.
In its ruling, the juvenile court declined to discuss the neglect ground. DCS filed a motion to alter or amend the termination ruling, requesting that the court "include findings on the neglect ground." The court denied the motion.
Discussion
¶7 In a pro se brief, filed pursuant to Rule 607(e)(1)(B), Ariz. R. P. Juv. Ct., Evalyn asserts that DCS withheld information from the juvenile court by "only continu[ing] to outline [her] lack of progress." She contends that she remedied the circumstances that had led to the children being placed in court-ordered care by moving to a "safe home unidentifiable by" Kenneth, finalizing their divorce, and completing the nurturing parenting program.
¶8 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); 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 juvenile court's legal conclusions are not clearly erroneous. Brionna J. v. Dep't of Child Safety, 255 Ariz. 471, ¶¶ 30-31 (2023).
¶9 Pursuant to § 8-533(B)(8)(c), the juvenile court may terminate a parent-child relationship if: (1) "[t]he child has been in an out-of-home placement for a cumulative total period of fifteen months or longer"; (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." Under this ground, the court must also find that DCS "has made a diligent effort to provide appropriate reunification services." § 8-533(B)(8). The time-in-care ground "is a proxy for parental unfitness as a matter of law because it demonstrates a parent's inability to properly parent his or her child." Brionna J., 255 Ariz. 471, ¶ 27.
¶10 Evalyn asserts she has made progress and has remedied several of the circumstances that were at issue throughout this case, but this information was already considered by the juvenile court in reaching its severance determination. Evalyn's arguments on appeal amount to nothing more than a request that we reweigh the evidence, which we will not do. See Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, ¶ 12 (App. 2002).
¶11 Here, the juvenile court recognized Evalyn's compliance with the case plan throughout the proceeding. The problem was her lack of benefit from services. Over approximately three years, Evalyn was offered and participated in supervised visitation, individual therapy, parenting classes, healthy relationship and domestic-violence classes, two parent-child relationship assessments, two psychological evaluations, two rounds of the nurturing parenting program, case management, and more. But as the DCS case manager explained, "[T]here's not a consistency in [Evalyn's] ability to believe what happened to her children, or to think that it was out of the ordinary."
¶12 Despite recognizing Kenneth's harm to the children, including physical abuse of both and sexual abuse of A.J., Evalyn continued to have a relationship with him during the first half of this proceeding. Notably, she was present when Kenneth threw A.J. across the room and slapped L.J. across the face. Yet, at the severance hearing, Evalyn suggested that Kenneth's parental rights should not be terminated and said she "would like to see more interactions" between him and the children before determining the future of that relationship.
¶13 Moreover, in May 2022, at the time of the second parent-child relationship assessment, Evalyn showed "little to no change" and continued to deny "the children's traumatic experience," according to the therapist. The therapist explained that Evalyn still had not fully accepted that A.J. had been sexual abused. The therapist also drew parallels from Evalyn and Kenneth to Evalyn's mother and stepfather in that her mother "remained loyal to the perpetrator," Evalyn's stepfather, "above her child," Evalyn. Similarly, as part of her second psychological evaluation in August 2022, Evalyn showed no meaningful improvement. The psychologist testified that "there were no changes" in terms of Evalyn's attitude, behavior, or thought process. He further stated that her prognosis as to her ability to safely parent her children was "very poor" based on her personality disorder and her lack of change during treatment. Because reasonable evidence supports the juvenile court's factual findings and its legal conclusions are not clearly erroneous, we cannot say the court erred in terminating Evalyn's parental rights to L.J. and A.J. See Brionna J., 255 Ariz. 471, ¶¶ 30-31.
Because of our determination, we decline to address DCS's cross-issue that the juvenile court erred in refusing to address the additional ground of neglect. See Jesus M., 203 Ariz. 278, ¶ 3 ("If clear and convincing evidence supports any one of the statutory grounds on which the juvenile court ordered severance, we need not address claims pertaining to the other grounds.").
Disposition
¶14 For the foregoing reasons, we affirm the juvenile court's ruling terminating Evalyn's parental rights to L.J. and A.J.