Opinion
No. 1 CA-JV 18-0228
01-10-2019
LADONNA L., Appellant, v. DEPARTMENT OF CHILD SAFETY, J.U., J.U., Appellees.
COUNSEL John L. Popilek PC, Scottsdale By John L. Popilek Counsel for Appellant Arizona Attorney General's Office, Phoenix By JoAnn Falgout 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. JD30503
The Honorable Cari A. Harrison, Judge
AFFIRMED
COUNSEL
John L. Popilek PC, Scottsdale
By John L. Popilek
Counsel for Appellant
Arizona Attorney General's Office, Phoenix
By JoAnn Falgout
Counsel for Appellee Department of Child Safety
MEMORANDUM DECISION
Judge Kent E. Cattani delivered the decision of the Court, in which Presiding Judge Jennifer B. Campbell and Judge Paul J. McMurdie joined.
CATTANI, Judge:
¶1 Ladonna L. ("Mother") appeals from the superior court's ruling terminating her parental rights as to Jo. and Ju. For reasons that follow, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 Mother is the sole adoptive parent of Jo., born in January 2010, and Ju., born in December 2010. For a period in 2014 and 2015, Mother's adult son, Chris, lived with Mother and the children. Despite Chris's prior drug offenses and ongoing criminal activity, Mother permitted him to live in her home and to supervise the children.
¶3 In May 2015, the Department of Child Safety ("DCS") received a report that Jo. had bruises suggesting physical abuse. Jo. told the DCS investigator that the large bruise on his forearm had been caused by Chris hitting him with a belt. Ju. confirmed that she had witnessed Chris hitting Jo. Both children said that Mother was home but in another room at the time, and both children indicated that physical abuse against Jo. was a frequent occurrence. The children described other ways that both Mother and Chris would discipline Jo., including spanking him and having him stand in the corner of a room for extended periods of time.
¶4 Mother told the DCS investigator that she had been out of the house when Jo. was injured, and she initially claimed that although she noticed the bruising, she did not ask Jo. or Chris what had happened. Although Mother had been subject to a recent DCS investigation related to Chris disciplining Jo. inappropriately (locking him in a bedroom for an extended time without access to a bathroom as well as threatening to shave his eyebrows and pull out his eyelashes), she dismissed the children's allegations, stating several times that she did not believe them because of their age.
¶5 DCS took Jo. and Ju. into care, and the court later found the children to be dependent as to Mother. DCS offered Mother an array of
services designed to help her understand her role in the physical and emotional harm that Jo. and Ju. suffered, understand her responsibility to provide the children with a safe and supportive environment free from physical abuse, and learn appropriate methods of non-physical discipline. Such services included supervised visitation, therapeutic visitation, case aide/parent aide, parenting classes, psychological evaluation, individual therapy, psychiatric care, best interests bonding assessment, and transportation to facilitate participation in the offered services.
¶6 Mother's participation in supervised visitation was marked by several concerning behaviors. She regularly showed preference for Ju. and often actively ignored Jo. When Jo. acted out to draw Mother's attention, she was unable to manage his aggressive behavior and instead would just become upset or continue to ignore him. On several occasions, Mother brought unapproved or unknown individuals to visitation, including someone she referred to as the children's "daddy" but whom the children did not seem to know. Mother also made inappropriate comments to both children about the dependency case, and even attempted to hide these conversations by having them in a "secret place" at the visitation venue. The children became physically ill and emotionally destabilized after visits, and DCS ceased supervised visitation and began a transition to therapeutic visitation.
¶7 In the meantime, Mother underwent a psychological evaluation in mid-2016. The evaluator noted that Mother suffered from long-term depression that was potentially associated with her inattention to the children's physical and emotional needs, and the evaluator expressed concern that, even a full year after DCS took the children into care, Mother had not demonstrated improved parenting skills. The evaluator also noted that Mother exhibited a potentially unhealthy attachment to Ju. The evaluator highlighted a continued risk to the children if in Mother's care because of her unwillingness or inability to recognize that Jo. had been subjected to physical abuse, her failure to recognize the emotional harm to Ju. associated with witnessing the abuse, and her continued threats to Jo. (even during supervised visitation) that he would be in "big trouble" when he returned home.
¶8 After some delay by service providers, Mother began therapeutic visitation, and she completed around 40 to 50 sessions, each comprising a one-hour visitation period with the children plus a one-hour individual session. Mother continued to show preference for Ju. over Jo., although she denied any favoritism. And Mother continued to discuss the dependency with the children despite acknowledging that her comments
were not age appropriate. Additionally, the children experienced behavioral disruptions after visits with Mother; Ju. would begin hitting her head against objects and Jo. displayed significantly increased aggression.
¶9 In November 2017, Mother and the children participated in a best interests bonding assessment. The evaluator, a doctoral-level psychologist, noted Mother's attempts to redirect responsibility for the dependency onto the children. Mother threatened the children that they would not be able to go home unless they were on their best behavior during the assessment, attempted to manipulate the children by inducing guilt, and potentially compromised the assessment.
¶10 The evaluator opined that Mother presented a continued risk of physical abuse to both children. Although Mother claimed that she would not use corporal punishment on Jo. and Ju., she concurrently told the evaluator that absence of corporal punishment resulted in disrespectful children and contributed to creating murderers and bank robbers. The evaluator also noted Mother's comments that spanking was appropriate as long as it did not leave marks and that she should have kept Jo. home from school to hide his bruises and avoid DCS involvement, which reflected a desire to have hidden past physical abuse and to potentially hide future abuse. Although prior physical abuse had been directed at Jo., the evaluator opined that safety concerns applied to both children given Mother's views on corporal punishment, particularly if Ju. was the only child in the home or began acting out.
¶11 Mother's changing story about whether and how much she knew about the abuse (from outright denying that the abuse occurred, to denying any knowledge of the abuse, to implying that she knew and should not have allowed it) suggested an additional risk that she would not believe the children's disclosures or would not protect them in the future. Ju. made comments that Mother was present on several occasions when Jo. was beaten or otherwise abused but failed to prevent it. Similarly, Jo.'s recognition that "[Mother] says it didn't happen" raised concern that he would not disclose future abuse.
¶12 Even though Mother had participated in all services offered, in the wake of the best interests assessment, DCS moved to sever her parental rights as to both Jo. and Ju. on the basis of 15 months' time in care. See Ariz. Rev. Stat. ("A.R.S.") § 8-533(B)(8)(c).
¶13 At the severance trial, Mother testified that she would not spank Jo. and Ju. and that she never used physical discipline, but also that
"[s]ome kids have to be spanked." She continued to suggest that, had she known of Jo.'s bruises, she would have kept him home from school in May 2015 to avoid DCS involvement. When asked about the difference between her account of the May 2015 abuse (that she was out at the store with Ju.) and both children's account (that Mother was home), Mother stated that "children fib." Although at times testifying that she would have kicked Chris out of the house if she knew he was hitting Jo., she also testified that Chris was welcome in her home and was an appropriate caregiver for the children because he was a family member.
¶14 After noting Mother's inconsistent statements throughout the dependency proceedings and during her testimony, the superior court terminated Mother's parental rights as to both Jo. and Ju., finding grounds for severance based on 15 months' time in care and that severance would be in the children's best interests. Mother timely appealed, and we have jurisdiction under A.R.S. § 8-235(A).
DISCUSSION
¶15 The superior court may terminate the 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; Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 22 (2005). We review the superior court's severance ruling for an abuse of discretion, deferring to the 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).
I. Severance Grounds.
¶16 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."
¶17 Mother does not dispute the existence of severance grounds as to Jo.; nor does she dispute that both children had been in an out-of-home placement for over 15 months or that DCS provided appropriate reunification services. Instead, she argues that the court erred by finding
severance grounds as to Ju. because the prior physical abuse was directed at Jo., not Ju., and Ju. would not be at future risk of abuse, claiming that she never used physical discipline and that Chris was no longer in the home.
¶18 Mother characterizes this as lack of a "constitutional nexus" between the prior abuse of Jo. and the risk of future abuse of Ju., a concept relevant to a different severance ground: willful abuse under A.R.S. § 8-533(A)(2). See Tina T. v. Dep't of Child Safety, 236 Ariz. 295, 299, ¶ 17 (App. 2014). But the record supports the superior court's finding that Mother had failed to cure the circumstances necessitating Ju.'s (not just Jo.'s) out-of-home placement and that Mother would be unable to do so in the near future.
¶19 Even though Ju. was not herself physically abused, Mother failed to protect her from the emotional trauma of witnessing the abuse to Jo. Moreover, the best interests evaluator opined that even after years of services, Mother continued to present a risk of harm to both children. While Mother would sometimes say that she had learned to use appropriate disciplinary techniques, she became "impassioned" when describing how failure to impose corporal punishment caused society's ills (bank robbers, killers). Mother's repeated statement that she should have hidden the evidence of Jo.'s prior abuse, in conjunction with her continued unwillingness to believe her children's reports of abuse by others, evidenced an increased risk that she would be unable or unwilling to protect any child in her care. Moreover, the evaluator concluded that, in light of Mother's pro-corporal punishment attitude, the risk of physical abuse ran to Ju. as well, particularly if Jo. was no longer in the home to draw the brunt of the punishments or if Ju. were to act out as she got older.
¶20 While Mother posits that she eliminated any risk of physical abuse by removing Chris from her home and by disavowing any use of physical discipline herself, she cites only portions of her own testimony to support the argument. Although at times she did testify to that effect, during other portions of her testimony Mother described corporal punishment as necessary, dismissed Jo. and Ju.'s account of the abuse as "fib[s]," wished she had hidden the evidence of the abuse, and described Chris as welcome in her home and an appropriate caregiver for the children simply because he was family. The superior court expressly noted her inconsistent statements and weighed her credibility when rendering its decision, and we will not reweigh the evidence on appeal. See Jesus M., 203 Ariz. at 280, ¶ 4.
¶21 The record supports the superior court's finding that, despite almost three years of services, Mother was unable to remedy the risk of harm necessitating Ju.'s out-of-home placement, and that she was unlikely to be able to do so in the foreseeable future. Accordingly, the court did not abuse its discretion by finding grounds for severance based on 15 months' time in care.
II. Best Interests.
¶22 Mother also argues that the superior court erred by finding severance to be in Jo. and Ju.'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. Demetrius L. v. Joshlynn F., 239 Ariz. 1, 4-5, ¶ 16 (2016). Ensuring stability and security for the child is "[o]f foremost concern." Id. at 4, ¶ 15.
¶23 Mother offers a cursory argument that severance was not in Ju.'s best interests. But the evidence showed that Ju. was living in an adoptive placement, and that she was otherwise adoptable should the need arise. Id. at 3-4, ¶ 12.
¶24 Mother also argues that severance would not be in Jo.'s best interests because his placement had not committed to adopting him. See Titus S. v. Dep't of Child Safety, 244 Ariz. 365, 370, ¶ 22 (App. 2018) (best interests finding based on a child's adoptability or adoptive placement "must reflect a finding that adoption is not only possible, but likely"). But the evidence reflected that Jo.'s behavior was improving in his therapeutic placement and that the placement provided a safe environment and was able to meet his special needs. See Demetrius L., 239 Ariz. at 4-5, ¶¶ 12, 16; see also Raymond F. v. Ariz. Dep't of Econ. Sec., 224 Ariz. 373, 379, ¶ 30 (App. 2010) (listing whether existing placement meets the child's needs as one factor relevant to best interests). Moreover, Jo.'s placement was willing to consider adoption in the event of severance, and in any event remained committed to caring for him for as long as necessary. Compare Titus S., 244 Ariz. at 371, ¶¶ 22, 24 (given that children's consent would be required for an adoption, children's adamant opposition to adoption "render[ed] [adoption] more improbable than likely" and thus insufficient to support a best interests finding).
¶25 Mother further argues that severance would be detrimental to the children because they are not placed together and, absent joint visitation
with Mother, the siblings would lose all contact with each other. But the evidence supports the superior court's finding that the abuse to which the children were exposed—which led to contact with Ju. being an emotional trigger for aggressive and even violent behavior by Jo.—meant that joint placement was not in the children's best interests. Moreover, severance of Mother's parental rights would not preclude future communication or contact between the children, and Ju.'s placement in fact expressed a willingness to facilitate their relationship when appropriate.
¶26 Accordingly, the superior court did not err by finding severance to be in both Jo. and Ju.'s best interests.
CONCLUSION
¶27 For the foregoing reasons, we affirm.