Opinion
No. 2 CA-JV 2018-0158
01-25-2019
KATILYNN S., Appellant, v. DEPARTMENT OF CHILD SAFETY, I.S., C.D., W.T., AND T.T., Appellees.
COUNSEL Harriette P. Levitt, Tucson 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NOT FOR PUBLICATION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. S1100JD201400213
The Honorable DeLana J. Fuller, Judge Pro Tempore
AFFIRMED
COUNSEL Harriette P. Levitt, Tucson
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
Judge Brearcliffe authored the decision of the Court, in which Presiding Judge Staring and Judge Vásquez concurred. BREARCLIFFE, Judge:
¶1 Katilynn S. appeals from the juvenile court's order terminating her parental rights to her children, I.S., C.D., W.T., and T.T., born in November 2009, January 2011, August 2014, and August 2015, respectively, on the grounds the children had been in court-ordered care for longer than fifteen months, and abuse. See A.R.S. § 8-533(B)(2), (8)(c). On appeal, Katilynn challenges the sufficiency of the evidence both to support termination based on abuse and to establish that terminating her parental rights was in the children's best interests. Finding no error, we affirm.
The juvenile court also terminated the parental rights of W.T. and T.T.'s father, who is not a party to this appeal.
¶2 We view the facts in the light most favorable to sustaining the juvenile court's ruling. Demetrius L. v. Joshlynn F., 239 Ariz. 1, ¶ 2 (2016). In August 2014, the Department of Child Safety (DCS) took I.S. and C.D. into custody based on allegations of neglect, substance abuse, and failure to protect or provide the "basic necessities of life." W.T. was removed from Katilynn's care shortly after he was born later that month, and T.T. was removed following her birth in August 2015. I.S., C.D., and W.T. were adjudicated dependent in October 2014, as was T.T. in September 2015. Although the juvenile court granted DCS's motion for change of custody of I.S. and C.D. to Katilynn in June 2017, it ordered the children removed from her care in September 2017, due to a DCS report of serious visible injuries to the children.
At the severance hearing, Katilynn testified that the injuries I.S. and C.D. sustained in her care did not "even" require a trip to the doctor.
¶3 In September 2017, the juvenile court changed the case plan to severance and adoption, and DCS filed a motion to terminate Katilynn's rights to the children based on abuse, mental illness, and fifteen-month time-in-care grounds. In June 2018, after a five-day contested severance hearing that began in January, the court granted DCS's motion and found that severance was in the children's best interests. This appeal followed.
Although DCS later withdrew the mental-illness ground, the juvenile court mistakenly referred to that ground in its severance ruling filed on July 30, 2018, although it did not do so in its original June 15, 2018, under-advisement ruling. --------
¶4 A juvenile court may terminate a parent's rights if it finds clear and convincing evidence of a statutory ground for severance and finds by a preponderance of the evidence that termination is in the child's best interests. A.R.S. §§ 8-533(B), 8-537(B); Kent K. v. Bobby M., 210 Ariz. 279, ¶ 41 (2005). "[W]e will affirm a termination order that is supported by reasonable evidence." Jordan C. v. Ariz. Dep't of Econ. Sec., 223 Ariz. 86, ¶ 18 (App. 2009). That is, 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. See Denise R. v. Ariz. Dep't of Econ. Sec., 221 Ariz. 92, ¶ 10 (App. 2009).
¶5 Katilynn first argues there was insufficient evidence to support severance based on abuse or failure to protect. We note, however, that because she has not challenged the time-in-care ground, she has abandoned and waived any claim related to it. See Crystal E. v. Dep't of Child Safety, 241 Ariz. 576, ¶ 5 (App. 2017) (failure to challenge termination on specific statutory ground constitutes abandonment and waiver on appeal). Because a statutory ground for termination has been established and is not challenged on appeal, we need not address any arguments Katilynn raises regarding the abuse ground. See Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, ¶ 3 (App. 2002) (appellate court need not consider challenge to alternate grounds for severance if evidence supports any one ground).
¶6 Katilynn next argues the juvenile court abused its discretion in concluding severance was in the children's best interests, asserting the foster parents "did little to advance" her ability to bond with the two younger children. Pointing out the expressed desire of the two older children to live with her, she contends severance would destroy the "very close bond" she shares with them, asserting uncontroverted evidence established that relationship.
¶7 To establish that termination is in a child's best interests, a petitioner must show how the child would benefit from termination or be harmed by the continuation of the parent-child relationship. In re Maricopa Cty. Juv. Action No. JS-5000274, 167 Ariz. 1, 5 (1990). "In a best interests inquiry, however, we can presume that the interests of the parent and child diverge because the court has already found the existence of one of the statutory grounds for termination by clear and convincing evidence." Kent K., 210 Ariz. 279, ¶ 35. "Once a juvenile court finds that a parent is unfit, the focus shifts to the child's interests." Demetrius L., 239 Ariz. 1, ¶ 15. "Thus, in considering best interests, the court must balance the unfit parent's 'diluted' interest 'against the independent and often adverse interests of the child in a safe and stable home life.'" Id. (quoting Kent K., 210 Ariz. 279, ¶ 35).
¶8 At the severance hearing, I.C. and C.D.'s therapist testified that following the children's second removal from Katilynn's care in September 2017, they had exhibited aggressive and regressive behavior, as well as generally showing defiant behavior after routine visits with Katilynn. She also testified that I.S. and C.D. do well "in a safe, structured, secure environment," and that they currently were "making great strides" at school and in their current placement, adding that they had not consistently expressed a desire to live with Katilynn since their removal from her care in 2017.
¶9 Another DCS case manager testified that, despite having provided Katilynn with extensive services during the lengthy dependency, the department remained concerned about the children's safety and the wisdom of her parenting decisions. Evidence was presented that all four children are in the same home with a family who want to adopt them, and they are adoptable children. See Alma S. v. Dep't of Child Safety, 245 Ariz. 146, ¶ 12 (2018) ("The 'child's interest in stability and security' must be the court's primary concern." (quoting Demetrius L., 239 Ariz. 1, ¶ 15)).
¶10 In addition, the foster mother testified that T.T. would return from visits with Katilynn "very . . . needy" and "very blotchy, [with] red spots on her face or diaper rashes." In contrast, one of Katilynn's sisters opined all four children should remain with Katilynn, and another sister testified that severance would not be in I.S. and C.D.'s best interests and would "mess [them] up."
¶11 At the conclusion of the severance hearing, the juvenile court acknowledged that "this is a difficult case" and noted that I.S. and C.D. "want to be with their mother, but are also doing very, very well in their foster home." The court further noted that W.T. and T.T. had been in foster care for their entire lives. With those factors in mind, the court took the matter under advisement, stating it would consider "what's in the best interest of these children." In its written ruling, the court concluded severance would further the plan of adoption and provide the children with permanency and stability, noting they are in an adoptive placement which is meeting their needs. The court also noted that Katilynn had been receiving services for more than thirty-eight months.
¶12 Insofar as Katilynn asserts that her bond with the children somehow rendered the juvenile court's best interests finding improper, we note that "[t]he existence and effect of a bonded relationship between a biological parent and child, although a factor to consider, is not dispositive in addressing best interests." Dominque M. v. Dep't of Child Safety, 240 Ariz. 96, ¶ 12 (App. 2016). And, a juvenile court may find that a child would benefit from termination if the child is considered adoptable. Alma S., 245 Ariz. 146, ¶¶ 13-14; see also Audra T. v. Ariz. Dep't of Econ. Sec., 194 Ariz. 376, ¶ 5 (App. 1998) (court may consider "the immediate availability of an adoptive placement" or "whether an existing placement is meeting the needs of the child" in support of best-interests finding).
¶13 Additionally, it was for the juvenile court, not this court, to determine how much weight to give the evidence and to assess it under the proper standard, including whether the children's need for stability in light of the duration of the dependency should be factors in its best-interests determination. See Jesus M., 203 Ariz. 278, ¶ 4. To the extent Katilynn asks this court to reweigh the evidence, we will not do so. See Ariz. Dep't of Econ. Sec. v. Oscar O., 209 Ariz. 332, ¶ 14 (App. 2004). Based on this record, and "applying our deferential standard of review," Alma S., 245 Ariz. 146, ¶ 21, there was ample evidence to support the court's finding that severance was in the children's best interests. See id. ¶¶ 1, 15 (in making a best-interests determination in severance matter, juvenile court must consider totality of circumstances at time of severance, including parent's rehabilitation).
¶14 Accordingly, we affirm the juvenile court's severance of Katilynn's parental rights to the children.