Opinion
No. 2 CA-JV 2017-0109
11-13-2017
JESSICA B., Appellant, v. DEPARTMENT OF CHILD SAFETY, M.B., D.B., AND D.-B., Appellees.
COUNSEL The Stavris Law Firm, PLLC, Scottsdale By Alison Stavris Counsel for Appellant Mark Brnovich, Arizona Attorney General By Cathleen E. Fuller, 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NOT FOR PUBLICATION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 Pinal County
No. S1100JD201400056
The Honorable DeLana J. Fuller, Judge Pro Tempore
AFFIRMED
COUNSEL
The Stavris Law Firm, PLLC, Scottsdale
By Alison Stavris
Counsel for Appellant
Mark Brnovich, Arizona Attorney General
By Cathleen E. Fuller, Assistant Attorney General, Tucson
Counsel for Appellee Department of Child Safety
MEMORANDUM DECISION
Chief Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Vásquez and Judge Eppich concurred.
ECKERSTROM, Chief Judge:
¶1 Appellant Jessica B. challenges the juvenile court's May 2017 order, terminating her parental rights to her children, D.B., D.-B., and M.B., on the grounds of Jessica's chronic abuse of dangerous drugs, the length of her incarceration, and her inability to remedy the circumstances causing the children to remain in a court-ordered, out-of-home placement for longer than fifteen months. See A.R.S. § 8-533(B)(3), (B)(4), (B)(8)(c). Jessica challenges the sufficiency of the evidence to sustain those statutory grounds for severance or to establish that terminating her parental rights was in the children's best interests.
¶2 To sever a parent's rights, the juvenile court must find there is clear and convincing evidence at least one of the statutory grounds for termination exists, and that a preponderance of the evidence establishes severing the parent's rights is in the child's best interests. Kent K. v. Bobby M., 210 Ariz. 279, ¶¶ 32, 41 (2005). We do not reweigh the evidence on appeal; rather, we defer to the 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). Consequently, we will affirm the order if reasonable evidence supports the factual findings upon which the order is based. Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, ¶ 4 (App. 2002). And we view the evidence in the light most favorable to upholding the court's order. See Christy C. v. Ariz. Dep't of Econ. Sec., 214 Ariz. 445, ¶ 12 (App. 2007).
¶3 The children were taken into the custody of the Arizona Department of Child Safety in February 2014 after DCS received a hotline call that Jessica was going to harm herself or the children. DCS had also observed or received reports of neglect and abuse of the children. The Tohono O'odham Nation intervened in March 2014, as the Indian Child
Welfare Act (ICWA) applies in this matter, and the children were adjudicated dependent in June 2014.
¶4 In April 2015, after Jessica had made substantial progress on a case plan and had obtained housing, DCS returned the children to her physical custody. But thereafter Jessica began to miss appointments and stopped communicating with providers. She tested positive for methamphetamine use three times in June 2015. She continued to test positive for drug use, stopped participating in services, and the children were removed from her care in October 2015. She had no contact with them for several months.
¶5 Jessica contacted her caseworker again in July 2016. She was at that time in a domestic violence shelter and was receiving some services through the shelter and Indian Health Services. During that time, she had provided some drug test samples that were negative for drug use before testing positive again in September. She was arrested that month for aggravated assault and flight from a law enforcement vehicle; she was sentenced to a 1.5-year term of imprisonment. After a contested severance hearing in April 2017, the juvenile court ordered Jessica's parental rights to the children terminated. By the time of the severance trial in April 2017, the children had been in care for approximately thirty-one months—from February 2014 to April 2015 and from October 2015 to the trial, as detailed above.
¶6 Jessica argues the juvenile court erred in terminating her parental rights based on the children's residence in out-of-home, court-ordered care for a cumulative total of fifteen months or longer. In so doing, she relies on favorable testimony but does not address the contrary evidence cited by the court. But we do not reweigh the evidence, Jesus M., 203 Ariz. 278, ¶ 12 and will defer to the court's resolution of conflicting inferences if supported by the record, In re Pima County Adoption of B-6355 & H-533, 118 Ariz. 111, 115 (1978). As detailed above, although she was at times compliant with her case plan and made progress, Jessica's failure to remedy the circumstances causing the children to be in court-ordered, out-of-home care is amply demonstrated by the record.
¶7 Likewise we must reject Jessica's claims that DCS failed to provide adequate services; the juvenile court's contrary conclusion is supported by the record. Id. Jessica received domestic violence and parenting classes, anger management counseling, substance abuse assessment and treatment, individual counseling, random drug testing,
visitation, a psychological evaluation, and was offered, but did not complete, in-home reunification services when the children were returned to her. And Jessica's failure to maintain sobriety and inability to care for the children after their return, as well as her current incarceration, support the court's conclusion that she will not be capable of exercising proper parental care in the near future. See A.R.S. § 8-533(B)(8)(c). Because we conclude that sufficient evidence supports the time-in-care ground for termination, we need not consider the remaining grounds. Mary Lou C. v. Arizona Dep't of Econ. Sec., 207 Ariz. 43, ¶ 14 (App. 2004).
¶8 Jessica also asserts the juvenile court "erred in concluding that severance was in the child[ren]'s best interest." She contends that "because she has a bond with her children" severance is not in their best interests. But, that a bond exists between a parent and child is not itself dispositive of best interests. See Bennigno R. v. Ariz. Dep't. of Econ. Sec., 233 Ariz. 345, ¶¶30-31 (App. 2013) (affirming severance when juvenile court had acknowledged bond, but weighed other "competing interests").
¶9 In making a best interests finding, the juvenile court must consider "how the child would benefit from a severance or be harmed by the continuation of the relationship." In re Maricopa Cty. Juv. Action No. JS-500274, 167 Ariz. 1, 5 (1990). Among the factors the court properly may consider is whether a child is adoptable and evidence "that an existing placement is meeting the needs of the child." Mary Lou C., 207 Ariz. 43, ¶ 19; see also Maricopa Cty. No. JS-500274, 167 Ariz. at 6 (to establish severance in child's best interests, "petitioner might prove that there is a current adoptive plan for the child"). In this case, the caseworker testified that severance was in the children's best interests because adoptive homes had been identified, the children needed permanency, and the adoptive placements could meet the children's needs. Thus, the court's conclusion as to best interests is supported by the evidence, and we will not disturb it. Jesus M., 203 Ariz. 278, ¶ 4.
¶10 Therefore, we affirm the juvenile court's order terminating Jessica's parental rights.