Opinion
No. 2 CA-JV 2015-0201 No. 2 CA-JV 2015-0202 No. 2 CA-JV 2015-0203 (Consolidated)
04-01-2016
INEZ R., Appellant, v. DEPARTMENT OF CHILD SAFETY, Appellee. AARON R., Appellant, v. DEPARTMENT OF CHILD SAFETY, Appellee. E.R., A.R. AND S.R., Appellants, v. DEPARTMENT OF CHILD SAFETY, Appellee.
COUNSEL Sarah Michèle Martin, Tucson Counsel for Appellant Inez R. Scott W. Schlievert, Tucson Counsel for Appellant Aaron R. Pima County Office of Children's Counsel, Tucson By Edith A. Croxen Counsel for Appellants E.R., A.R. and S.R. Mark Brnovich, Arizona Attorney General By Laura J. Huff, Assistant Attorney General, Tucson Counsel for Appellee Department of Child Safety
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f); Ariz. R. P. Juv. Ct. 103(G). Appeal from the Superior Court in Pima County
No. JD195482
The Honorable Geoffrey L. Ferlan, Judge Pro Tempore
AFFIRMED
COUNSEL Sarah Michèle Martin, Tucson
Counsel for Appellant Inez R. Scott W. Schlievert, Tucson
Counsel for Appellant Aaron R. Pima County Office of Children's Counsel, Tucson
By Edith A. Croxen
Counsel for Appellants E.R., A.R. and S.R. Mark Brnovich, Arizona Attorney General
By Laura J. Huff, Assistant Attorney General, Tucson
Counsel for Appellee Department of Child Safety
MEMORANDUM DECISION
Presiding Judge Howard authored the decision of the Court, in which Judge Espinosa and Judge Staring concurred. HOWARD, Presiding Judge:
¶1 In this consolidated appeal, parents Inez R. and Aaron R., and children E.R., A.R., and S.R., born in 2004, 2006, and 2007, challenge the juvenile court's order terminating the parents' rights on the ground that the children had been in a court-ordered, out-of-home placement for fifteen months or longer. See A.R.S. § 8-533(B)(8)(c). Finding no error, we affirm.
¶2 Before it may terminate a parent's rights, a juvenile court must find by clear and convincing evidence that at least one statutory ground for severance exists and must find by a preponderance of the evidence that terminating the parent's rights is in the best interests of the child. See A.R.S. §§ 8-533(B), 8-537(B); Kent K. v. Bobby M., 210 Ariz. 279, ¶ 41, 110 P.3d 1013, 1022 (2005). "On review . . . we will accept the juvenile 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, ¶ 4, 53 P.3d 203, 205 (App. 2002).
¶3 We view the evidence 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, 995 P.2d 682, 686 (2000). In June 2013, the Department of Child Safety (DCS) took temporary custody of the children based on allegations of domestic violence, the parents' history of mental illness, and Aaron's "alcoholism." The parents admitted the allegations set forth in the dependency petition, and the children were adjudicated dependent in July and September 2013. In May 2015, the case plan was changed to severance and adoption, and DCS then filed a motion to terminate based on the ground of length of time in care as to both parents and abandonment as to Aaron. See A.R.S. § 8-533(B)(1) and (B)(8)(c). After a contested severance hearing that spanned several days in July, August and September 2015, during which the children met privately with the judge, the juvenile court granted DCS's motion on the time-in-care ground and severed the parents' rights. This appeal followed.
DCS is substituted for the Arizona Department of Economic Security in this decision. See 2014 Ariz. Sess. Laws, 2nd Spec. Sess., ch. 1, § 20.
A prior dependency proceeding was dismissed in 2012.
¶4 At the severance hearing, DCS case manager Sandi Lee testified the children were currently placed together in a group home, and they had experienced several placements during the dependency. Lee added that, "[n]ormally," DCS does not "actively look for an adoptive placement during the course of an ongoing case." And although Lee acknowledged that "all three children still are not willing to accept that they will not be returning to their mother," she nonetheless testified that termination of the parents' rights was in the children's best interests. She also testified that, despite the services provided, both parents had continued to struggle with sobriety and mental health issues; the children need permanency, stability and consistency; and, termination would permit the search for an adoptive home to move forward.
¶5 When asked if Inez needed "more time to complete a full treatment and recovery," clinical psychologist Jill Plevell testified: "I think it depends. If she had been showing diligent effort and really trying, then it might. But if it looked like the same problems are cropping up over and over again, then it may be that the children can't wait that long." Opining that "it's up to the Court," Plevell further explained, "it's [a] matter of balancing how long she's [been] given versus how long . . . the children should sit in limbo," and noted that, if the children were returned to Inez and she became "unstable" once again, "they might be exposed to some pretty bad things." Plevell also expressed her "concern[]" when she learned of Inez's drug relapse in April 2015.
¶6 The juvenile court determined that neither parent had remedied the circumstances that had caused the children to remain in out-of-home care for more than two years, and that they would not be capable of exercising parental control in the near future. In its detailed ruling, the court included a summary of the parents' lengthy history of substance abuse and mental illness, housing instability, unemployment, domestic violence, inability to benefit from the services offered by DCS, and Aaron's recent felony conviction. And, concluding that severance was in the children's best interests, the court determined that although the children want to remain with Inez, "[t]here would be a detriment if the parents' parental rights were not terminated due to extending an already long period of instability for the children and continued lack of permanency." The court also concluded the children are adoptable and that freeing them for adoption would provide them with "much needed permanency and greater stability."
¶7 On appeal, the parents and the children argue the juvenile court erred in finding severance was in the children's best interests, asserting the children have a positive relationship with Inez and have expressed a desire to remain with her, and that DCS failed to establish how termination would benefit the children. The children also contend they want to be returned to Inez "no matter how long it takes."
Aaron's entire argument on best interests consists of a few sentences at the conclusion of his brief. --------
¶8 However, appellants do not suggest the juvenile court's extensive, detailed review of the evidence is inaccurate or unsupported by the record, including the court having noted that, although it was aware of the children's desire to return to Inez, it also had considered the extensive time they had been living in limbo, and that they are adoptable. In essence, appellants ask instead that we reweigh the evidence, which we will not do. See Jordan C. v. Ariz. Dep't of Econ. Sec., 223 Ariz. 86, ¶ 18, 219 P.3d 296, 303 (App. 2009) (noting juvenile court, as trier of fact, in best position to weigh evidence, judge credibility of witnesses, and resolve disputed facts).
¶9 Moreover, evidence at the severance hearing supported the juvenile court's findings that the children are adoptable and that placement efforts will move forward once the parents' rights have been severed. We recognize, as did the court, that placing "sibling groups" in one home might be challenging. But appellants do not cite any legal authority holding a juvenile court is bound by such a factor in its best interest determination. Nor do they point to evidence or develop any argument that termination would make such a placement impossible or that any such detriment outweighs the benefit of permanence for the children.
¶10 And, to the extent the children and Inez challenge the qualifications of Lee to testify regarding the children's best interests, the juvenile court was aware of her professional qualifications and was in the best position to determine how much weight to afford her testimony. See id. Because the record before us contains reasonable evidence to support the factual findings in the court's ruling and because we see no error of law, we adopt the court's ruling. See Jesus M., 203 Ariz. 278, ¶ 16, 53 P.3d at 207-08; see also State v. Whipple, 177 Ariz. 272, 274, 866 P.2d 1358, 1360 (App. 1993).
¶11 Additionally, although Aaron concedes that the children were in an out-of-home placement for more than fifteen months, he argues there was insufficient evidence to establish: (1) DCS had made diligent efforts to provide him with appropriate reunification services; (2) he was unable to remedy the circumstances that caused out-of-home care, or; (3) he would be unable to exercise parental care in the near future. The juvenile court's detailed factual findings regarding Aaron's history of substance abuse, mental illness, domestic violence, and inconsistent visits with the children, in addition to the "moderate to high risk of neglect" for a child placed in his care absent a demonstrated period of sobriety, are fully supported by the record. Once again we adopt the court's thorough and correct ruling. See Jesus M., 203 Ariz. 278, ¶ 16, 53 P.3d at 207-08.
¶12 Moreover, to the extent Aaron asserts DCS did not provide appropriate reunification services, we note he did not raise any challenge to the offered services before termination proceedings began below, despite the juvenile court's repeated findings that DCS had made reasonable efforts to accomplish the case plan goals by providing specific services. Accordingly, he has waived any such argument on appeal. See Shawanee S. v. Ariz. Dep't of Econ. Sec., 234 Ariz. 174, ¶¶ 16, 18, 319 P.3d 236, 240-41 (App. 2014) (parent who does not object to adequacy of services waives issue on appeal).
¶13 We therefore affirm the juvenile court's ruling terminating Inez's and Aaron's parental rights to E.R., A.R., and S.R.