Opinion
1 CA-JV 21-0371
05-03-2022
ROSEMARY S., Appellant, v. DEPARTMENT OF CHILD SAFETY, R.F., I.F., Appellees.
Maricopa County Public Advocate's Office, Mesa By Suzanne Sanchez Counsel for Appellant Arizona Attorney General's Office, Tucson By Dawn Williams Counsel for Appellee Department of Child Safety
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County No. JD532937 The Honorable Cassie Bray Woo, Judge
Maricopa County Public Advocate's Office, Mesa By Suzanne Sanchez Counsel for Appellant
Arizona Attorney General's Office, Tucson By Dawn Williams Counsel for Appellee Department of Child Safety
Judge D. Steven Williams delivered the decision of the Court, in which Presiding Judge Cynthia J. Bailey and Judge Peter B. Swann joined.
MEMORANDUM DECISION
WILLIAMS, Judge
¶1 Rosemary S. ("Mother") appeals the superior court's order terminating her parental rights to two of her children. For the following reasons, we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 Mother and Christopher F. ("Father") are the parents of three children. The oldest two, born in 2018 and 2019 respectively, are the subject of this appeal. Both children have significant special needs and require ongoing speech, occupational, and behavioral therapy. Additionally, the younger of the two has cerebral palsy, which requires feeding therapy.
Father's parental rights were also terminated, but he is not a party to this appeal.
Mother's and Father's third child was born during the pendency of this case, does not have special needs, and is not a subject of this appeal.
¶3 The Arizona Department of Child Safety ("DCS") became involved in 2019 when the younger child was born substance-exposed to tetrahydrocannabinol. Mother had a medical marijuana card and used marijuana while pregnant. After being born at home eleven weeks premature, the younger child was transported to the hospital by ambulance and remained in the Neonatal Intensive Care Unit for the next few months. DCS implemented a present danger plan which required, inter alia, that Father only visit the child with DCS supervision. When the parents violated that term of the present danger plan together, were evicted from their apartment, and were (weeks previously) involved in a roll-over car accident where marijuana was found in the older child's diaper bag, DCS petitioned for a dependency and the two children were placed in foster care.
¶4 Though Mother opposed the dependency, she failed to appear for an evidentiary hearing and the superior court adjudicated the children dependent. The court set a case plan of family reunification and Mother was offered a variety of services, including parent-aide, visitation, transportation, substance-abuse assessment and/or treatment, behavioral health, and a psychological evaluation.
¶5 By Mother's own admission, she failed to regularly engage in services until early 2021 (shortly before DCS moved to terminate her parental rights). To her credit, Mother then successfully completed a variety of services, including parenting classes and a substance-abuse program. She last tested positive for marijuana in April 2021. And although Mother was diagnosed with borderline intellectual functioning and a learning disorder, she maintained stable employment throughout the dependency, obtained stable housing by early 2021, and attended at least some of the children's several ongoing medical/therapy appointments.
¶6 The superior court held a two-day termination trial (with the first day in July 2021 and the second in October 2021). At trial, Mother admitted she used marijuana twice a day almost every day while pregnant with the younger child and acknowledged missing several of her children's medical/therapy appointments "for personal reasons" and because they "didn't work out with [her] schedule."
¶7 Regarding Mother's attendance at the medical/therapy appointments, the DCS case manager testified that Mother routinely missed them, with a noticeable drop in attendance since Mother's youngest child was born in August 2021. The case manager further testified that DCS had emphasized to Mother the importance of her attendance so that she could learn to meet the children's special needs, allowed her to bring her newborn child, and informed Mother that she could attend virtually.
¶8 Based in part upon Mother's failure to consistently attend the children's medical/therapy appointments over the two years DCS had been involved, the case manager opined Mother could not take care of the children's special needs and would not likely fully engage in learning about the children's medical needs if given additional time. The psychologist who conducted the best interests bonding assessment, Dr. Capps-Conkle, shared the same opinion.
¶9 The superior court terminated Mother's parental rights based upon the statutory ground of fifteen months in an out-of-home placement under A.R.S. § 8-533(B)(8)(c), and in the children's best interests.
¶ 10 Mother timely appealed. We have jurisdiction under Article 6, Section 9, of the Arizona Constitution, A.R.S. §§ 8-235(A), 12-120.21(A)(1), -2101(A)(1), and Arizona Rule of Procedure for the Juvenile Court 103(A).
DISCUSSION
¶ 11 Parental rights are fundamental, but not absolute. Dominique M. v. Dep't of Child Safety, 240 Ariz. 96, 97, ¶ 7 (App. 2016). A court may terminate a parent's right in the care, custody, and management of their children "if it finds clear and convincing evidence of one of the statutory grounds for severance, and also finds by a preponderance of the evidence that severance is in the best interests of the children." Id. at 98, ¶ 7.
¶ 12 We review a termination order for an abuse of discretion, accepting the court's factual findings unless clearly erroneous, Mary Lou C. v. Ariz. Dep't of Econ. Sec., 207 Ariz. 43, 47, ¶ 8 (App. 2004), and view the evidence in the light most favorable to sustaining the court's ruling, Manuel M. v. Ariz. Dep't of Econ. Sec., 218 Ariz. 205, 207, ¶ 2 (App. 2008). Because the superior court "is in the best position to weigh the evidence, observe the parties, judge the credibility of witnesses, and resolve disputed facts," we will affirm an order terminating parental rights if reasonable evidence supports the order. Jordan C. v. Ariz. Dep't of Econ. Sec., 223 Ariz. 86, 93, ¶ 18 (App. 2009) (quoting Ariz. Dep't of Econ. Sec. v. Oscar O., 209 Ariz. 332, 334, ¶ 4 (App. 2004)).
I. Reasonable Evidence Supports Termination on Fifteen Months in an Out-of-Home Placement Grounds
¶ 13 Fifteen months in an out-of-home placement is one statutory ground authorizing termination. A.R.S. § 8-533(B)(8)(c). The superior court may terminate a parent-child relationship under that ground if:
The child has been in an out-of-home placement for a cumulative total period of fifteen months or longer pursuant to court order or voluntary placement pursuant to [A.R.S.] § 8-806, the parent has been unable to remedy the circumstances that cause the child to be in an out-of-home placement and 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.
¶ 14 Mother does not contest the superior court's findings that the children remained in an out-of-home placement for fifteen months, nor that DCS made diligent reunification efforts. Instead, Mother argues reasonable evidence did not support the court's finding that she was unable to remedy the circumstances that caused the children to be in an out-of-home placement or that a substantial likelihood existed that she would be incapable of properly parenting them in the near future.
¶ 15 The superior court found that "Mother has demonstrated the ability to meet the basic needs of a typical child." (Emphasis added.) But it was in meeting the children's special needs that the court found Mother lacking. A review of the record confirms that Mother was inconsistent in attending the children's medical/therapy appointments and lacked understanding of how to meet the children's special needs.
¶ 16 Near the time of trial, Dr. Capps-Conkle reported that, although "Mother expressed some understanding of her children's special needs, she lacked insight regarding what she would need to do to fully meet those needs through ensuring the children attend all of their appointments." Dr. Capps-Conkle further reported Mother "had yet to attend more than 20 to 30% of the children's appointments, even with virtual attendance." Mother acknowledged missing many of the children's appointments. In fact, the record shows she attended only a small percentage of the appointments in the months before the first trial date and missed nearly twenty (most of them) in the month before the second trial date. Dr. Capps-Conkle opined Mother had not yet shown she was able to provide for the children's special needs on a regular basis, nor would she be able to if given additional time to engage in services. The superior court agreed. Reasonable evidence supports the court's findings.
II. Reasonable Evidence Supports the Best Interests Finding
¶ 17 Mother also contends terminating her parental rights was not in the children's best interests. In conducting the best interests inquiry, the superior court must find by a preponderance of the evidence that the child would either "benefit from a [termination of parental rights] or be harmed by the continuation of the relationship." Maricopa Cnty. Juv. Action No. JS-500274, 167 Ariz. 1, 5 (1990).
¶ 18 The superior court found termination was in the children's best interests because they were residing in an adoptive placement that was meeting all of their special needs. Record evidence supports the finding that the foster placement was meeting the children's special needs. The court also found it would be detrimental for the children to maintain the parent-child relationship because, though Mother had a bond with the children and had made progress in services, she "ha[d] not demonstrated the ability to meet the significant special needs of [the children]." See Dominique M., 240 Ariz. at 98-99, ¶ 12 (providing that, while the existence of a bonded relationship between parent and child is a factor to consider, it is not dispositive in addressing the child's best interests); see also Audra T. v. Ariz. Dep't of Econ. Sec, 194 Ariz. 376, 377, ¶ 5 (App. 1998) (stating a court "may properly consider in favor of [termination]" factors that include "immediate availability of an adoptive placement" and "whether an existing placement is meeting the needs of the child"). On this record, Mother has shown no error.
CONCLUSION
¶ 19 For the foregoing reasons, we affirm the superior court's order terminating Mother's parental rights to two of her children.