Opinion
2 CA-JV 2023-0149
05-17-2024
In re Termination of Parental Rights as to M.M.,
Desiree M., Tucson In Propria Persona Kristin K. Mayes, Arizona Attorney General By Dawn R. Williams, 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Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court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. JD20160021 The Honorable Jennifer Espino, Judge Pro Tempore
Desiree M., Tucson In Propria Persona
Kristin K. Mayes, Arizona Attorney General By Dawn R. Williams, Assistant Attorney General, Tucson Counsel for Appellee Department of Child Safety
Vice Chief Judge Staring authored the decision of the Court, in which Judge Sklar and Judge O'Neil concurred.
MEMORANDUM DECISION
STARING, VICE CHIEF JUDGE
¶1 Desiree M. appeals from the juvenile court's December 2023 ruling terminating her parental rights to her daughter, M.M., born in November 2017, based on length of time in court-ordered care. See A.R.S. § 8-533(B)(8)(a). We affirm.
Factual and Procedural Background
¶2 We view the facts 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 2017, before M.M. was born, Desiree's parental rights to two other children were terminated based on neglect and length of time in court-ordered care. See § 8-533(B)(2), (8)(a). During that case, the Department of Child Safety (DCS) alleged that Desiree was neglecting the children based, in part, on her methamphetamine use.
¶3 In June 2022, DCS received a report that Desiree had left M.M. with M.M.'s adult half-sister, V.C., while Desiree traveled to New Mexico, and that Desiree's home was unfit due to her drug use. V.C. confirmed that Desiree often left M.M. with her for days at a time. M.M.'s father, Joe V., reported that Desiree and M.M. lived in a recreational vehicle (RV) parked on his property and that Desiree used marijuana and methamphetamine.A DCS investigator observed "used syringes all over" the RV, as well as a marijuana pipe and paraphernalia. The investigator was unable to reach Desiree, and DCS took custody of M.M., ultimately placing her with V.C. DCS also filed a petition alleging that M.M. was dependent as to Desiree due to Desiree's substance abuse, neglect of M.M., and failure to provide a safe and fit home.
The juvenile court also terminated Joe's parental rights to M.M. based on relinquishment. See § 8-533(B)(7). He is not a party to this appeal.
¶4 The following month, at the initial dependency hearing, the juvenile court ordered Desiree to complete "a rule out hair test and urine test," providing that "if they are both negative, then [she need not] continue with the drug testing protocol." The court also ordered DCS to provide appropriate reunification services.
¶5 In December 2022, Desiree entered a no contest plea as to the dependency petition, and the juvenile court adjudicated M.M. dependent. The court set a case plan goal of family reunification, ordered DCS to continue providing services, and ordered Desiree to participate in those services. Desiree, however, refused to drug test, as required. At the permanency hearing in April 2023, Desiree failed to appear, and the court found her "minimally compliant" with the case plan. The court then changed the case plan goal to severance and adoption.
¶6 Later that month, DCS filed a motion for termination of the parent-child relationship, asserting, as to Desiree, neglect under § 8-533(B)(2), chronic substance abuse under § 8-533(B)(3), and length of time in court-ordered care under § 8-533(B)(8)(a). At the contested severance hearing, DCS withdrew the neglect ground. Desiree admitted that she had not completed any drug testing or most of the services, maintaining that DCS had "kidnapped" M.M. and questioning why she should have to abide by court orders when DCS did not have to do so. She further stated that she would not submit to drug testing unless there was a guarantee that M.M. would be returned to her.
¶7 In December 2023, the juvenile court granted DCS's motion for termination. The court found that DCS had established the ground of length of time in court-ordered care and that termination was in M.M.'s best interests. This appeal followed.
Having found the § 8-533(B)(8)(a) ground proven, the juvenile court declined to address the § 8-533(B)(3) ground.
Discussion
¶8 In a pro se brief, filed pursuant to Rule 607(e)(1)(B), Ariz. R. P. Juv. Ct., Desiree asserts that the juvenile court "erred in terminating the parent-child relationship solely based on the time the child has been in an out-of-home placement" because termination of parental rights also "requires finding that the parent is unfit." Desiree maintains that the court failed to make a finding of parental unfitness.
Desiree's opening brief fails to comply with Rule 13(a), Ariz. R. Civ. App. P. See Ariz. R. P. Juv. Ct. 607(b) (Rule 13, Ariz. R. Civ. App. P., applies to appeals from juvenile court); Flynn v. Campbell, 243 Ariz. 76, ¶ 24 (2017) (pro se litigants held to same standards as attorneys). By failing to comply, a party may be deemed to have waived his or her arguments on appeal. Ritchie v. Krasner, 221 Ariz. 288, ¶ 62 (App. 2009). Thus, as DCS points out, we could reject Desiree's claims on this basis. See Bennigno R. v. Ariz. Dep't of Econ. Sec., 233 Ariz. 345, ¶ 11 (App. 2013). However, we prefer to resolve cases on their merits and do so here. See DeLong v. Merrill, 233 Ariz. 163, ¶ 9 (App. 2013).
¶9 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). Thus, we will affirm a severance order if reasonable evidence supports the factual findings and the juvenile court's legal conclusions are not clearly erroneous. See Brionna J. v. Dep't of Child Safety, 255 Ariz. 471, ¶¶ 30-31 (2023).
¶10 Pursuant to § 8-533(B)(8)(a), 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 nine months or longer"; (2) "the parent has substantially neglected or wilfully refused to remedy the circumstances that cause the child to be in an out-of-home placement"; and (3) DCS "has made a diligent effort to provide appropriate reunification services." Our supreme court has determined that 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; see also Alma S. v. Dep't of Child Safety, 245 Ariz. 146, ¶ 9 (2018). Thus, contrary to Desiree's argument, the juvenile court was not required to make a finding of parental unfitness separate from § 8-533(B)(8)(a).
¶11 As to that statutory ground, Desiree asserts that "DCS did not offer any other reunification services due to [her] lack of drug testing." Relying on Desiree S. v. Department of Child Safety, 235 Ariz. 532 (App. 2014), she further contends that "while drug testing can be part of the services offered to parents, its completion or lack thereof may not be the sole determinant of a parent's willingness or ability to remedy the circumstances leading to the out-of-home placement."
¶12 In Desiree S., this court reversed an order terminating the mother's parental rights to R.S. under § 8-533(B)(8)(c). 235 Ariz. 532, ¶¶ 8, 14. We pointed out that the mother had "taken advantage of and participated in the offered services and wants to parent her child." Id. ¶ 13. And we reasoned that the case manager's testimony that the mother "would not be capable of parenting in the near future because R.S. did not want to return to" her was insufficient. Id. ¶¶ 10-11. Put another way, we concluded that "[t]he youngster's subjective belief, without more, cannot be the sole basis to determine as a matter of law that [the mother] will be unable to parent him in the near future." Id. ¶ 10.
¶13 Desiree S. does not apply here. First, the termination in this case was based on § 8-533(B)(8)(a), which requires a slightly different finding-that "the parent has substantially neglected or wilfully refused to remedy the circumstances that cause the child to be in an out-of-home placement"-than § 8-533(B)(8)(c). Second, the juvenile court's finding in this case was not based on the opinion of a child. Instead, the court found that Desiree's own conduct-specifically, her "conscious decision to refrain from services"-had "stunted any progress, resulting in substantially similar circumstances at the time of severance as at the time of removal in June 2022." And those services included more than drug testing.
¶14 At the start of the contested severance hearing, DCS had been offering Desiree services for approximately one year. The services included drug testing, substance-abuse education, relapse prevention, supervised visitation, healthy relationship classes, individual therapy, parenting classes, transportation, and case management. However, Desiree participated only in one team decision meeting, most of the child-family team meetings, and sporadic visitation. As discussed above, she refused to participate in other services. Notably, the case manager described an incident when Desiree was transported to a clinic for a drug test, but she refused to test once she was in the lobby. Desiree admitted that it was her "choice and decision not to participate in services," and she did not seem interested in doing so absent some clear indication that M.M. would be returned to her. Reasonable evidence therefore supports the juvenile court's finding that termination was warranted under § 8-533(B)(8)(a).
DCS was unable to offer a psychological evaluation and family therapy because of Desiree's failure to establish her sobriety through a drug test and her lack of engagement in other services.
¶15 Finally, Desiree maintains that termination of her parental rights was not in M.M.'s best interests. She relies on testimony from M.M.'s therapist that M.M. and Desiree "have a strong bond and that [M.M.] worried about her mother and loved her very much." Desiree's argument, however, essentially amounts to 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). Because the juvenile court's best-interests finding is supported by the record-including the case manager's and therapist's testimony that M.M. would benefit from severance because she is an anxious child who needs permanency and stability-we cannot say the court erred. See Dominique M. v. Dep't of Child Safety, 240 Ariz. 96, ¶ 8 (App. 2016) (best-interests analysis requires consideration of whether termination would result in affirmative benefit to child or would eliminate detriment caused by continuation of parent-child relationship).
Disposition
¶16 For the foregoing reasons, we affirm the juvenile court's ruling terminating Desiree's parental rights to M.M.