Opinion
No. 2 CA-JV 2017-0013
06-29-2017
KRISTEN H., Appellant, v. DEPARTMENT OF CHILD SAFETY, A.H., I.H., AND A.I. Appellees.
COUNSEL Law Office of Lincoln Green Jr., Phoenix By Lincoln Green Jr. Counsel for Appellant 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NOT FOR PUBLICATION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 Pinal County
No. S1100JD20090163
The Honorable Henry G. Gooday Jr., Judge
AFFIRMED
COUNSEL Law Office of Lincoln Green Jr., Phoenix
By Lincoln Green Jr.
Counsel for Appellant Mark Brnovich, Arizona Attorney General
By Laura J. Huff, 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 Howard concurred. ECKERSTROM, Chief Judge:
The Hon. Joseph W. Howard, a retired judge of this court, is called back to active duty to serve on this case pursuant to orders of this court and our supreme court.
¶1 Kristen H. appeals from the juvenile court's January 2017 order terminating her parental rights to her three youngest children, A.H., born in September 2005; I.H., born in August 2010; and A.I., born in March 2012. On appeal, Kristen contends there was insufficient evidence to support the court's findings that termination was warranted on a statutory time-in-care ground and would be in the children's best interests. We review a termination order for an abuse of discretion. Mary Lou C. v. Ariz. Dep't of Econ. Sec., 207 Ariz. 43, ¶ 8, 83 P.3d 43, 47 (App. 2004). We find none here and, for the following reasons, we affirm the court's termination order.
Factual and Procedural Background
¶2 A.H. and his older sister were first removed from Kristen's care in November 2009, after she was arrested for drug possession and child endangerment during a traffic stop. The two children were adjudicated dependent but were reunited with Kristen at an in-patient treatment program, and the dependency was dismissed in November 2010, when I.H. was nearly three months old.
¶3 In January 2014, when A.I. was twenty-two months old, the Department of Child Safety (DCS) filed a second dependency petition with regard to all four of Kristen's children, alleging she was using methamphetamine and marijuana, was neglecting the children, had physically abused them, and had failed to protect her ten-year-old daughter from sexual abuse. The children were adjudicated dependent in February, after Kristen submitted to the dependency without making admissions. Before the first permanency hearing in July 2014, DCS reported that Kristen was not consistently calling in for random urinalysis and, although physically present, was "not always engaging in her services." At DCS's request, the juvenile court ordered severance and adoption as a concurrent case plan goal.
DCS has replaced the Arizona Department of Economic Security (ADES) as the agency responsible for administering child welfare and placement services under title 8, A.R.S. See 2014 Ariz. Sess. Laws 2d Spec. Sess., ch. 1, § 20. For simplicity, our references to DCS in this decision encompass both ADES and Child Protective Services, formerly a division of ADES.
¶4 The psychologist who evaluated Kristen in October 2014 diagnosed her as having an antisocial personality disorder with prominent borderline traits, noting her severe substance use disorder and her history of parental physical abuse and neglect. The psychologist further noted that "mental health services . . . have been attempted and have stabilized her, but not . . . to a level" permitting reunification. She also stated the prognosis was "poor" that Kristen would be able "to demonstrate minimally adequate parenting skills in the foreseeable future."
¶5 Consistent with the psychologist's recommendations, Kristen received multiple services, including psychological and psychiatric evaluations, substance abuse treatment, urinalysis, individual counseling, childhood trauma counseling, parenting classes, case management services, and visitation. In December 2014, DCS reported Kristen remained drug free and was actively participating in services, but needed to make additional progress in therapy before she would be ready to parent the children, and the juvenile court "affirm[ed]" reunification as the sole case plan goal.
¶6 By June 2015, however, DCS recommended a change in the case plan to severance and adoption. According to the case manager's report, Kristen's therapists had concluded she would require an additional eighteen months of treatment, with "no guarantee" the children could be safely returned to her at that time. In correspondence attached to the report, Kristen's therapists had spoken highly of her efforts and progress in therapy, noting, in addition, her continuing engagement with Narcotics Anonymous and her success in obtaining employment and independent housing. But they also agreed that, as one therapist put it, "She still has quite a bit of work ahead of her." As her primary individual therapist explained, Kristen has, "at times of calm," "made significant personal growth therapeutically" and "can demonstrate a level of insight into her diagnosis, emotions and behaviors" rarely seen by that counselor. But she added that, in times of "intense stress or crisis, [Kristen] has demonstrated a diminished capacity to maintain that progress and her progress can become stifled." Similarly, another therapist noted that, in times of "distress and pressure," Kristen had "exhibited some impetuous and inappropriate reactions," and another stated, "When panicked or stressed she is unable to maintain rational thought processes and makes poor impulsive decisions." As of June 2015, her primary individual therapist estimated Kristen would require a year to eighteen months of continued therapy to learn skills to address these issues.
¶7 In September 2015, the juvenile court changed the case plan goal to severance and adoption, and DCS filed a motion to terminate Kristen's parental rights, alleging mental illness and time-in-care grounds. See A.R.S. § 8-533(B)(3), (8)(c). That same month, the case was transferred to a new DCS case manager and, at a mediation in November, DCS agreed to withdraw its termination motion. The court granted DCS's request and reinstated a goal of reunification.
¶8 On February 11, 2016, DCS reported that I.H. and A.I. were to begin their transition to Kristen's care within a week, with A.H. to be returned to her within two months. Later that month, however, DCS learned that in December 2015, Kristen had allowed a convicted felon to be "paroled" to her home and had married him a few days later. Some weeks later, he had choked Kristen and stabbed her brother, her father, and a neighbor. According to a DCS report, Kristen had not been "forthcoming" with respect to any of these events and did not tell DCS of her marriage or the assaults until a Team Decision Meeting in April.
¶9 The juvenile court approved a case plan of severance and adoption for A.H., I.H., and A.I. after an accelerated permanency hearing in May 2016. In its termination motion, DCS alleged Kristen had been unable to remedy circumstances that caused her children to be in court-ordered, out-of-home care for fifteen months or more, despite having received appropriate reunification services, and it further alleged there was a substantial likelihood she would be unable to parent effectively in the near future. See § 8-533(B)(8)(c).
Reunification continues to be the case plan goal for Kristen's oldest daughter, who was not a party to these termination proceedings.
DCS also alleged termination was warranted because Kristen suffered from a prolonged and disabling mental illness, see § 8-533(B)(3), but it withdrew those allegations before the severance trial.
¶10 Before the summer of 2016, Kristen had moved in with her parents, and then moved to her uncle's house, where she was living when the termination hearing was held in December. She continues to receive counseling services, albeit with a different agency, is still employed, and, by all accounts, has maintained her sobriety.
DCS considers this to be stable housing for Kristen, but her uncle has not been approved as a placement for the children.
¶11 At the termination hearing, one of her previous counselors agreed that Kristen's decision to bring a man into her home without informing DCS, and the assault that followed, caused setbacks in her therapy, and, with respect the pending reunification process, caused serious concern that she was not prioritizing the needs of the children. The counselor expressed some confidence that, through therapy, Kristen could "get past this" and become an effective parent. But she also agreed that therapy for borderline personality disorder "normally take[s] a significant period of time," and she referred to her opinion of June 2015, before the more recent setbacks, that "it would be, at least, another two years, before [Kristen] was in a good stable place" to provide for the needs of her children. The case manager testified that I.H. and A.I. are currently placed together in an adoptive home and that A.H., currently placed in a group home, is an adoptable child.
¶12 At the close of evidence, the juvenile court acknowledged that Kristen's counselor said she "never saw anyone work any harder" than Kristen had worked in therapy. The court also found it "very, very commendable" that she had maintained her sobriety through the course of the dependency. But it also found Kristen's decisions to permit a convicted felon to live with her and to marry him, without informing DCS, was a clear example of what Kristen's counselor called "self-sabotaging" behavior, and of a failure to put the needs of her children ahead of her own. The court noted the case had been pending for "double the 15 months that's required by statute," and, in light of the extensive therapy still required before Kristen could safely parent, found her children "have waited long enough for permanency." The court found DCS had proven the time-in-care ground alleged in its motion, and it also found termination of Kristen's parental rights was in the children's best interests.
Discussion
¶13 On appeal, Kristen contends there was insufficient evidence to support those findings. She argues that (1) she "completed all services" asked of her "and that should entitle her to a reversal of the severance ruling against her"; (2) her relationship with a "significant other," although admittedly a mistake, "did not create a situation where there was a substantial likelihood that she would not be capable of exercising proper and effective parental care and control in the near future"; and (3) her "bond and attachment to her children was sufficient to show the Court that termination of her parental rights would not benefit the children" and would be detrimental to them.
DCS asks that we dismiss Kristen's appeal for failure to comply with Rule 13, Ariz. R. Civ. App. P., which requires an opening brief to include appropriate references to the record. See Ariz. R. Civ. App. P. 13(a)(4), (5), (7)(A); see also Ariz. R. P. Juv. Ct. 106(A) (with exceptions that do not apply here, Rule 13, Ariz. R. Civ. App. P., applies in appeals from juvenile court). Kristen's brief is clearly deficient in this respect, and we admonish counsel that a failure to comply with Rule 13 may result in our disregard of a statement of facts, see State Farm Mut. Auto. Ins. Co. v. Arrington, 192 Ariz. 255, 257 n.1, 963 P.2d 334, 336 n.1 (App. 1998); abandonment and waiver of a claim, see Ritchie v. Krasner, 221 Ariz. 288, ¶ 62, 211 P.3d 1272, 1289 (App. 2009); or dismissal of an appeal, see Adams v. Valley Nat'l Bank of Ariz., 139 Ariz. 340, 342, 678 P.2d 525, 527 (App. 1984). However, because we prefer to resolve cases on their merits, see id., we decline to dismiss the appeal.
¶14 A juvenile court may terminate a parent's rights if it finds clear and convincing evidence of one of the statutory grounds for severance and a preponderance of evidence that termination of the parent's rights is in the children's best interests. A.R.S. §§ 8-533(B), 8-537(B); Kent K. v. Bobby M., 210 Ariz. 279, ¶ 41, 110 P.3d 1013, 1022 (2005). We will not reverse a termination order for insufficient evidence unless, as a matter of law, no reasonable fact-finder could have found the evidence satisfied the applicable burden of proof. Denise R. v. Ariz. Dep't of Econ. Sec., 221 Ariz. 92, ¶ 10, 210 P.3d 1263, 1266 (App. 2009).
¶15 Kristen's commitment and efforts in participating in services are undisputed and commendable. Indeed, at the termination hearing, she was commended for her efforts by her counselor, her DCS case manager, and the juvenile court. But § 8-533(B)(8)(c), the termination ground alleged in this case, is not focused on a parent's efforts, but on her success, or near success, in being able to effectively parent children who have remained in out-of-home care for fifteen months or more. See Marina P. v. Ariz. Dep't of Econ. Sec., 214 Ariz. 326, ¶¶ 20, 22, 152 P.3d 1209, 1212-13 (App. 2007) ("circumstances" in § 8-533(B)(8) means those existing at time of severance "that prevent a parent from being able to appropriately provide for his or her children"). This is consistent with the legislature's express purpose in enacting these time-in-care grounds, which was to "expedite the adoption of numerous children who remain in temporary foster care . . . and in so doing promote a stable and long term family environment for these children." In re Maricopa Cty. Juv. Action No. JS-501568, 177 Ariz. 571, 577, 869 P.2d 1224, 1230 (App. 1994), quoting In re Maricopa Cty. Juv. Action No. JS-6520, 157 Ariz. 238, 243, 756 P.2d 335, 340 (App. 1988); cf. Marina P., 214 Ariz. 326, ¶ 20, 152 P.3d at 1212 (in contrast, finding parent has "substantially neglected or willfully refused to remedy the circumstances" causing out-of-home care for nine months or more, § 8-533(B)(8)(a), "focuses on the level of the parent's effort to cure the circumstances rather than the parent's success in actually doing so.") At the time of termination, these three children had remained in an out-of-home placement for nearly three years, and ample evidence supported the juvenile court's finding of a substantial likelihood that Kristen would remain, for the near future, unable to parent them effectively. See § 8-533(B)(8)(c).
For example, the DCS case manager testified that "[r]ealistically it could be another year" before DCS would again authorize unsupervised visitation, based on Kristen's lack of judgment in permitting a man to live in her home without informing DCS and her history of needing "redirection" for speaking with the children about these dependency proceedings. --------
¶16 Like her challenge to the statutory ground for termination, Kristen's challenge to the juvenile court's finding of best interests is essentially a request that we reweigh the evidence, which we will not do. Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, ¶ 12, 53 P.3d 203, 207 (App. 2002). Evidence of an adoptive plan, such as that in place for I.H. and A.I., is sufficient to support the court's finding, see id. ¶¶ 14-15, as is evidence that A.H. is an adoptable child who would benefit from the stability termination would afford, see In re Maricopa Cty. Juv. Action No. JS-501904, 180 Ariz. 348, 352, 884 P.2d 234, 238 (App. 1994).
Disposition
¶17 For the foregoing reasons, we affirm the juvenile court's order terminating Kristen's parental rights to A.H., I.H., and A.I.