Opinion
No. 1 CA-JV 17-0101
09-28-2017
KEVIN M., Appellant, v. DEPARTMENT OF CHILD SAFETY, C.M., J.M., Appellees.
COUNSEL Denise L. Carroll, Esq., Scottsdale By Denise L. Carroll Counsel for Appellant Arizona Attorney General's Office, Mesa By Nicholas Chapman-Hushek Counsel for Appellee Department of Child Safety
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. JD29699
The Honorable Randall H. Warner, Judge
AFFIRMED
COUNSEL Denise L. Carroll, Esq., Scottsdale
By Denise L. Carroll
Counsel for Appellant Arizona Attorney General's Office, Mesa
By Nicholas Chapman-Hushek
Counsel for Appellee Department of Child Safety
MEMORANDUM DECISION
Judge Kent E. Cattani delivered the decision of the Court, in which Presiding Judge James P. Beene and Judge Randall M. Howe joined. CATTANI, Judge:
¶1 Kevin M. ("Father") appeals from the superior court's ruling terminating his parental rights as to his daughters C.M. and J.M. For reasons that follow, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 Father and Dametria W. ("Mother") are the biological parents of C.M., born in April 2013, and J.M., born in October 2014. One month before C.M.'s birth, Mother was hospitalized after Father reportedly hit her in the stomach and put a gun to her head. Father acknowledged a history of domestic violence with Mother, although he denied any instances after 2013.
Mother's parental rights to C.M., J.M., and three other children were also terminated, but she is not a party to this appeal.
¶3 J.M. was born substance-exposed to methamphetamine, and Mother, who also tested positive for methamphetamine, admitted using it well into her pregnancy. The Department of Child Safety ("DCS") put a safety plan into place, and Father agreed to self-refer for parenting classes and domestic violence classes and counseling. Services for Mother also included drug testing and treatment, but she never completed treatment and never demonstrated any period of sobriety.
¶4 Neither parent had engaged in services by the end of 2014, and DCS initiated dependency proceedings. Father again agreed to self-refer for parenting classes as well as domestic violence classes and counseling in the community, and DCS agreed to establish visitation through a parent aide. But Father moved away from Arizona soon thereafter without completing the required services.
¶5 By November 2015, however, Father had completed a 16-hour online domestic violence class and a 4-hour online parenting class, and he soon returned to Arizona. Father then re-engaged with a parent aide and successfully completed that service in June 2016, and his visitation with C.M. and J.M. went well and progressed from supervised to unsupervised visits. Although DCS suspected that Father and Mother might have resumed their relationship, DCS returned the children to Father's physical custody in late August 2016, with the caveat that he could not allow the children to have contact with Mother (who had not shown an ability to stop her drug use) outside of her supervised visitations.
¶6 Just four days later, DCS removed C.M. and J.M. from Father's custody because Father was not protecting them from Mother. C.M. reported that Mother lived in the home with them and "whoop[ed]" her and J.M., and the sign-in sheets from daycare showed Mother dropping off J.M. and C.M. even though they were supposed to be in Father's care. Just after removal, C.M. confirmed that Mother had made her breakfast and done her hair that morning. And one of Mother's other children reported that Mother was bruised after a physical altercation with Father, that both Mother and the child were afraid because Father had a gun under his bed, and that Father (a prohibited possessor) had threatened to use the gun to kill Mother.
¶7 Father generally denied DCS's bases for removing C.M. and J.M., and he claimed that Mother did not live with him and that he never allowed her around the children while they were in his custody. He stated that he had broken up with her immediately after J.M.'s birth, when he learned she used methamphetamine. Father acknowledged, however, that they were still married, that he communicated with her regularly, that he still had some of her possessions, that he gave her rides (including to her visitations), and that he helped her out financially. Father also claimed Mother had not signed the children into daycare, and that DCS had mistaken his adult daughter for Mother when previously reporting Mother's presence at his home.
¶8 In light of Father's failure to insulate the children from Mother, DCS moved to terminate Father's parental rights to C.M. and J.M. based on 15-months' time in care, and the superior court granted severance on that ground. See Ariz. Rev. Stat. ("A.R.S.") § 8-533(B)(8)(c). Father timely appealed, and we have jurisdiction under A.R.S. § 8-235(A).
Absent material revisions after the relevant date, we cite a statute's current version. --------
DISCUSSION
¶9 The superior court is authorized to terminate a parent-child relationship if clear and convincing evidence establishes at least one statutory ground for severance, and a preponderance of the evidence shows severance to be in the child's best interests. A.R.S. § 8-533(B); Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 22 (2005). We review a severance ruling for an abuse of discretion, deferring to the superior court's credibility determinations and factual findings. Mary Lou C. v. Ariz. Dep't of Econ. Sec., 207 Ariz. 43, 47, ¶ 8 (App. 2004); Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, 280, ¶ 4 (App. 2002).
¶10 Severance based on 15-months' time in care under A.R.S. § 8-533(B)(8)(c) requires proof that: (1) the child has been in an out-of-home placement for at least 15 months, (2) "[DCS] has made a diligent effort to provide appropriate reunification services," (3) "the parent has been unable to remedy the circumstances" necessitating the out-of-home placement, and (4) "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." The relevant circumstances are those existing at the time of severance. Jordan C. v. Ariz. Dep't of Econ. Sec., 223 Ariz. 86, 96 n.14, ¶ 31 (App. 2009).
¶11 Father contends that the superior court erred by finding that he had been unable to remedy the circumstances necessitating the out-of-home placement and that he would not be capable of exercising proper parental care in the near future. Father claims that DCS's evidence was largely unsubstantiated or otherwise not credible, and notes his own testimony denying that Mother was present in the home, had picked up the children from daycare, or had other contact with the children. But the superior court is the arbiter of witness credibility, and we defer to the court's assessment of conflicting evidence. See Jesus M., 203 Ariz. at 280, ¶ 4. The court could reasonably credit the children's reports of contact with Mother, and the court could independently distinguish handwriting consistent with Mother's signature from Father's acknowledged "scribble" on the daycare sign-in sheet. The superior court expressly acknowledged Father's testimony disputing any unauthorized contact between Mother and the children, but found to the contrary. Ample evidence supports the court's assessment, and we do not reweigh conflicting evidence on review. See id. at 282, ¶ 12.
¶12 Father next contends that DCS failed to offer adequate reunification services. But nothing in the record indicates that Father previously contested the adequacy of self-referral for domestic violence services or requested additional help to complete domestic violence counseling. See Shawanee S. v. Ariz. Dep't of Econ. Sec., 234 Ariz. 174, 178, ¶¶ 13-14 (App. 2014) (noting the parent's obligation to object to inadequate services and seek appropriate correction throughout the dependency proceedings). And he offers no suggestion of what different services would have been relevant and appropriate for him to address the actual basis for severance: failure to protect the children from the risk posed by Mother. See Mary Ellen C. v. Ariz. Dep't of Econ. Sec., 193 Ariz. 185, 192, ¶ 34 (App. 1999) (holding that DCS's obligation to provide reunification services extends only to those "with a reasonable prospect of success").
¶13 Finally, Father contends that the superior court failed to make factual findings regarding best interests, and that in any event the record does not support a finding that severance would be in the children's best interests. Termination is in a child's best interests if the child would benefit from severance or if a continued relationship with the parent would harm the child. Mary Lou C., 207 Ariz. at 50, ¶ 19. Evidence that a child is adoptable or that an existing placement is meeting the child's needs may support a best interests finding, as may evidence suggesting "some harm to the child if severance is denied." Demetrius L. v. Joshlynn F., 239 Ariz. 1, 4, ¶¶ 14-16 (2016).
¶14 Here, the superior court made express and nuanced best interests findings, acknowledging Father's ability to care for the children in isolation, but finding that his inability to separate and protect them from Mother risked harm to C.M. and J.M. Based on that risk of harm from a continuing relationship as well as the fact that both C.M. and J.M. were adoptable (albeit not yet in an adoptive home) and living in a placement that met all of their needs, the court reasonably concluded that severance of Father's parental rights would be in the children's best interests. See id.
CONCLUSION
¶15 The severance order is affirmed.