Opinion
No. 2 CA-JV 2018-0212
03-22-2019
CHRISTINA S., Appellant, v. DEPARTMENT OF CHILD SAFETY, B.T., AND C.T., Appellees.
COUNSEL Scott Schlievert, Tucson Counsel for Appellant Mark Brnovich, Arizona Attorney General By Cathleen E. Fuller, Assistant Attorney General, Tucson Counsel for Appellee Department of Child Safety Pima County Office of Children's Counsel, Tucson By Sybil Clarke Counsel for Minors
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NOT FOR PUBLICATION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 Pima County
No. S20170300
The Honorable Dean Christoffel, Judge Pro Tempore
AFFIRMED
COUNSEL Scott Schlievert, Tucson
Counsel for Appellant Mark Brnovich, Arizona Attorney General
By Cathleen E. Fuller, Assistant Attorney General, Tucson
Counsel for Appellee Department of Child Safety Pima County Office of Children's Counsel, Tucson
By Sybil Clarke
Counsel for Minors
MEMORANDUM DECISION
Judge Brearcliffe authored the decision of the Court, in which Presiding Judge Staring and Judge Vásquez concurred. BREARCLIFFE, Judge:
¶1 Christina S., the mother of B.T., born in June 2015, and C.T., born in June 2017, appeals from the juvenile court's October 2018 order terminating her parental rights. Christina challenges the sufficiency of the evidence to support the court's finding that severance of her rights was in the children's best interests. We affirm for the reasons stated below.
¶2 On appeal, we view the evidence in the light most favorable to sustaining the juvenile court's ruling, which we will affirm unless it is clearly erroneous. Alma S. v. Dep't of Child Safety, 245 Ariz. 146, ¶ 18 (2018). In July 2015, the Department of Child Safety (DCS) took B.T., then an infant, into protective custody after DCS received reports of domestic violence in the home, including physical abuse by Brian T., B.T.'s biological father, of Christina and A.O., another child who lived in the home. A.O. told the DCS specialist that Brian and Christina often fought and that Brian hit Christina and she cried. Christina had bruising on her face, arm and the back of her calf, but told the DCS specialist that she was clumsy and had fallen into her dresser; she admitted at the September 2018 severance hearing that there had been domestic violence in the home. Christina tested positive for methamphetamine. So, too, did B.T. and A.O., demonstrating they had been exposed to the drugs.
¶3 DCS filed a dependency petition and B.T. was adjudicated dependent as to Christina in October 2015 after she admitted allegations in an amended petition. B.T. was placed with the maternal great-grandmother. Christina was provided with a variety of services, including substance abuse education and relapse prevention classes. Because of her compliance with the case plan and her progress, at the end of February 2017, DCS recommended that B.T. be returned to her custody. But after C.T. was born in June 2017, Christina relapsed and admitted to using morphine without a prescription. She was unable to maintain employment, was evicted from her home in August 2017, and moved in with the maternal great-grandmother. After the DCS case manager determined that home was unfit, Christina and C.T. moved in with the maternal grandmother.
¶4 DCS took protective custody of C.T. in November 2017 based on abuse and or neglect. Christina was no longer participating in therapy and tested positive for methamphetamine and heroin in November 2017. Between December 2017 and February 2018, she tested positive for methamphetamine. In February 2018, Christina also tested positive for heroin and morphine. She missed a number of tests throughout these periods and denied to the DCS case worker that she had a substance abuse problem.
¶5 At the end of November 2017, B.T. and C.T. filed a petition for termination of Christina's and Brian's parental rights, amending the petition in August 2018. As to Christina, the children alleged the following grounds for termination of her rights: abuse or neglect, A.R.S. § 8-533(B)(2), chronic substance abuse, § 8-533(B)(3), and time in court-ordered care, fifteen months as to B.T. and six months as to C.T., § 8-533(B)(8)(b), (c). After a two-day contested severance hearing in September 2018, the juvenile court entered an under-advisement order in October, granting the children's petition and finding they had presented clear and convincing evidence as to all statutory grounds alleged, and that a preponderance of the evidence established termination of the parents' rights was in the children's best interests. This appeal followed.
The juvenile court specified that termination was based on neglect under § 8-533(B)(2). --------
¶6 The juvenile court may terminate a parent's rights if the court finds clear and convincing evidence establishes at least one of the statutory grounds for termination and a preponderance of evidence shows termination of the parent's rights is in the child's best interests. Titus S. v. Dep't of Child Safety, 244 Ariz. 365, ¶ 15 (App. 2018) (citing A.R.S. §§ 8-533(B), 8-537(B); Kent K. v. Bobby M., 210 Ariz. 279, ¶ 41 (2005)). "At the best-interests stage of the analysis, '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.'" Alma S., 245 Ariz. 146, ¶ 12 (quoting Kent K., 210 Ariz. 279, ¶ 35). At that point, "[t]he 'child's interest in stability and security' must be the court's primary concern." Id. (quoting Demetrius L. v. Joshlynn F., 239 Ariz. 1, ¶ 15 (2016)). "[T]ermination is in the child's best interests if either: (1) the child will benefit from severance; or (2) the child will be harmed if severance is denied." Id. ¶ 13.
¶7 The fact that a child's current placement is meeting the child's needs is among the proper factors for a juvenile court to consider in determining whether termination of a parent's rights is in the child's best interests. See Audra T. v. Ariz. Dep't of Econ. Sec., 194 Ariz. 376, ¶ 5 (App. 1998). And, "[w]hen a current placement meets the child's needs and the child's prospective adoption is otherwise legally possible and likely, a juvenile court may find that termination of parental rights, so as to permit adoption, is in the child's best interests." Demetrius L., 239 Ariz. 1, ¶ 12. Evidence that one with whom a child is placed is willing to adopt the child, the child is adoptable, and the child is thriving in the placement may support the finding. Alma S., 245 Ariz. 146, ¶ 21.
¶8 After entering factual findings related to the statutory grounds for severance regarding Christina's persistent substance abuse, inability to attain any significant period of sobriety, failure to benefit from the panoply of services DCS provided, and denial of her substance abuse problem, the juvenile court entered further findings related to the children's best interests. The court found the children would benefit from termination of the parents' rights because "it would free them of an environment of domestic violence and drug abuse and neglect." The court added that the children are adoptable and in adoptive placements that would provide them with a "permanent[,] safe and stable home," enabling them to have a "successful childhood" for a "successful adulthood." The court further found that even if those with whom they are currently placed did not adopt them, they "would easily and quickly be adopted." The court found it would be detrimental to the children not to sever their parents' rights "and require them to wait for their parents to put their own lives together, learn how to control their domestic violence behaviors and their reliance on drugs, and then to learn to parent sufficiently to have a safe environment" for the children, "a process that has already lasted over three years of services . . . without any progress or demonstrated benefit from those services."
¶9 Challenging only the best-interest finding, Christina asserts that at the time C.T. was born, she was in compliance with the case plan and that at the time of the severance hearing, there "was no legal rush" to severance because the children were in a relative placement and appeared to be "well adjusted." She concedes that her progress was not "always . . . consistent," but asserts it was "unreasonable to presume that further efforts would be futile" because she did progress. She adds that there was no evidence that, given the children's young age, transitioning them to live with her would be detrimental to them.
¶10 Christina's emphasis on her possible rehabilitation with additional time and services diverts the focus from where our supreme court has made clear it should be during the best-interest inquiry, which is on the children. Alma S., 245 Ariz. 146, ¶ 12. In any event, the juvenile court considered Christina's failure to progress over time and related that to the children's need for permanence and a safe, stable home. Christina did not and does not contest that each child is adoptable and in an adoptive placement. Additionally, contrary to Christina's assertion, there was ample evidence that the children could not be placed with her.
¶11 The juvenile court considered the factors that are proper and relevant to the best-interest inquiry. And there is sufficient evidence in the record supporting the court's findings, including evidence that Christina failed to maintain sobriety for any extended period of time and was unlikely to be able to be an appropriate parent for them. Additionally, the ongoing case specialist testified severance would be in the children's best interests because they would have permanency and would no longer be in "limbo," and their adoption would allow them to move on with their lives. She explained they had been "in a constant state of limbo," and could not reunite with their parents because of substance abuse and mental health issues, and that starting and stopping visitation and the lack of permanency were detrimental to the children, placing them at risk for further regression. To the extent Christina is asking this court to reweigh the evidence, we will not do so. See Ariz. Dep't of Econ. Sec. v. Oscar O., 209 Ariz. 332, ¶ 4 (App. 2004) (appellate court defers to juvenile court with respect to factual findings because it "is in the best position to weigh the evidence, observe the parties, judge the credibility of witnesses, and resolve disputed facts").
¶12 The juvenile court's order terminating Christina's parental rights is affirmed.