Alma S. v. Dep't of Child Safety , 425 P.3d 1089 ( 2018 )

IN THE
SUPREME COURT OF THE STATE OF ARIZONA
ALMA S.,
Appellant,
v.
DEPARTMENT OF CHILD SAFETY, J.R., I.R.,
Appellees.
No. CV-17-0363-PR
Filed September 14, 2018
Appeal from the Superior Court in Maricopa County
The Honorable Cari A. Harrison, Judge
Nos. JS18287
JD30481
AFFIRMED
Opinion of the Court of Appeals, Division One
244 Ariz. 152 (App. 2017)
VACATED
COUNSEL:
H. Clark Jones (argued), Law Office of H. Clark Jones, LLC, Mesa, Attorney
for Alma S.
Mark Brnovich, Arizona Attorney General, Dominic E. Draye, Solicitor
General, Nicholas Chapman-Hushek (argued), Toni M. Valadez, Assistant
Attorneys General, Mesa, Attorneys for Department of Child Safety
JUSTICE LOPEZ authored the opinion of the Court, in which CHIEF
JUSTICE BALES, VICE CHIEF JUSTICE BRUTINEL, and JUSTICES
PELANDER, TIMMER, and GOULD joined. JUSTICE BOLICK concurred
in the result.
JUSTICE LOPEZ, opinion of the Court:
ALMA S. V. DEPARTMENT OF CHILD SAFETY
Opinion of the Court
¶1 This case concerns the inquiry juvenile courts must make to
determine whether parental severance is in the “best interests of the child”
for purposes of A.R.S. § 8-533(B). We hold that courts must consider the
totality of the circumstances existing at the time of the severance
determination, including the child’s adoptability and the parent’s
rehabilitation.
I. BACKGROUND
¶2 Alma S. (“Mother”) was involved in a relationship with
Esdras R. (“Father”). I.R. is the biological child of Mother and Father, and
J.R. is Mother’s biological child but not Father’s. J.R.’s father abused Mother
during their previous relationship. Father also routinely abused Mother
and both children. Father, in May 2015, severely beat two-month-old I.R.
while Mother was at work. When Mother returned, she failed to take I.R.
to the hospital even though Father was absent for several hours. Without
Father’s knowledge, I.R. was finally taken to the hospital the next day by
Mother’s sister and cousin. Hospital staff determined that I.R. had a healing
rib fracture, a right tibia fracture, a possible left femur fracture (ultimately
ruled out), and multiple bruises. The staff also observed bruises on
two-year-old J.R.
¶3 The Department of Child Safety (“DCS”) subsequently
removed both children from Mother’s home, and the children were
determined to be dependent. Over the next eighteen months, DCS
provided Mother and Father with an array of services, including a parent
aide, drug testing, and a psychological evaluation. Mother’s drug testing
was discontinued after she passed consecutive tests. However, the
psychologist who conducted Mother’s evaluation diagnosed her with
mood and personality disorders, and multiple substance abuse disorders in
self-reported remission. He noted Mother’s “poor judgment” in choosing
abusive romantic partners and entrusting her children to someone
“significantly unfit” to care for them. He concluded that Mother was
unable to protect herself or the children from abuse, that she lacked insight
into the dangers posed by abusive partners, that “[m]aintaining a
relationship, even when destructive, becomes more important than the
safety of [her] children,” and that her future parenting prospects were
“poor at best.” Mother’s DCS case manager agreed, concluding that Mother
was unable to protect the children.
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ALMA S. V. DEPARTMENT OF CHILD SAFETY
Opinion of the Court
¶4 In December 2015, DCS moved to terminate Mother’s
parental rights to both children on the ground that she was unable to
protect them from abuse. See § 8-533(B)(2). Following a two-day
evidentiary hearing in November 2016, the juvenile court severed Mother’s
parental rights. It inferred that Mother was aware that Father caused I.R.’s
injuries and did not report them or seek medical care. It also noted that
although Mother claimed to have ended her relationship with Father, he
had stated otherwise to his therapist. The court then determined that
severance was in the best interests of the children because their current
out-of-home placements were meeting their needs, the children were in an
adoptive placement, and both children would be “considered adoptable if
the current placement was not able to complete the adoption for any
reason.” Mother appealed, challenging only the juvenile court’s
best-interests finding.
¶5 The court of appeals vacated the juvenile court’s order,
holding that “the record supporting the court’s best-interests determination
is insubstantial.” Alma S. v. Dep’t of Child Safety, 244 Ariz. 152, 155 ¶ 1 (App.
2017). To terminate Mother’s parental rights, the court reasoned, DCS
“must show that there is a substantial likelihood that the parent will not be
capable of parenting effectively in the near future, not that someone with
better parenting skills may be able to care for the child.” Id. at 162 ¶ 36
(citing Roberto F. v. Ariz. Dep’t of Econ. Sec., 232 Ariz. 45, 53 ¶ 38 n.11 (App.
2013)). According to the court of appeals, when parent-aide services
demonstrate “a parent’s ability to parent the children,” the parent and
children have a bond, and the parent’s living situation is “safe and stable,”
“the children’s adoptability, household stability, and the ability of their
current placements to meet their needs are subordinate to the fundamental
rights of the parent in determining best interests, unless severance removes
a detriment caused by the parental relationship.” Id. ¶ 38. Throughout its
opinion, the court stressed the importance of a parent’s constitutional right
to raise her children. See, e.g., id. at 157 ¶ 11, 158 ¶ 20, 163 ¶ 39.
¶6 The court of appeals conducted a detailed analysis of the
evidence presented to the juvenile court. In reaching its holding, the court
rejected the juvenile court’s finding that Mother and Father were still in a
relationship, id. at 158 ¶¶ 16–17, 160 ¶ 27, and disagreed with the DCS case
manager and the psychologist’s conclusion that Mother lacked the ability
to protect the children from abuse, id. at 158 ¶¶ 19–20, 160 ¶¶ 25–27.
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ALMA S. V. DEPARTMENT OF CHILD SAFETY
Opinion of the Court
Despite the court’s acknowledgement that the only issue on appeal was the
juvenile court’s best-interests determination, id. at 156 ¶ 7, it found that “it
cannot be inferred from this record that Mother is an unfit parent,” id. at 160
¶ 24 (emphasis added).
¶7 We granted review to clarify the appropriate inquiry for a
best-interests analysis under § 8-533(B)—an issue of statewide importance.
We have jurisdiction under article 6, section 5(3) of the Arizona
Constitution and A.R.S. § 12-120.24.
II. THE TWO-STEP SEVERANCE INQUIRY
¶8 Section 8-533(B) sets forth the grounds that “justify the
termination of the parent-child relationship,” and states that “the court
shall also consider the best interests of the child” in deciding whether to
terminate parental rights. We have interpreted § 8-533(B) as entailing a
two-step inquiry. See Demetrius L. v. Joshlynn F., 239 Ariz. 1, 4 ¶ 15 (2016).
First, the juvenile court must find by clear and convincing evidence that a
statutory ground for termination exists. Kent K. v. Bobby M., 210 Ariz. 279,
286 ¶ 35 (2005); see also A.R.S. § 8-537(B) (“The court’s findings with respect
to grounds for termination shall be based upon clear and convincing
evidence . . . .”). Second, the court must determine by a preponderance of
the evidence that severance is in the child’s best interests. Kent K., 210 Ariz.
at 284 ¶ 22, 285–86 ¶ 31.
¶9 In Kent K., we implicitly equated the substantive grounds for
termination listed in § 8-533(B) with parental unfitness. Id. at 285–86 ¶¶ 31–
32. We now explicitly reiterate that conclusion, which ensures compliance
with the due process requirement that a court find, by clear and convincing
evidence, parental unfitness when a severance is contested. See Santosky v.
Kramer, 455 U.S. 745, 769 (1982); Kent K., 210 Ariz. at 285 ¶ 28. If a statutory
ground were not synonymous with unfitness, a contested severance based
on such ground would be constitutionally infirm.
¶10 Eight of the eleven statutory grounds in § 8-533(B) are proxies
for parental unfitness because they demonstrate a parent’s inability “to
properly parent his/her child.” See Roberto F. at 54 ¶ 42. They address the
most serious instances of parental abuse, neglect, or incapacity. See
§ 8-533(B)(1) (abandonment of the child); § 8-533(B)(2) (neglect or willful
abuse of the child); § 8-533(B)(3) (parent not capable of “discharg[ing]
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ALMA S. V. DEPARTMENT OF CHILD SAFETY
Opinion of the Court
parental responsibilities” due to mental illness or chronic substance abuse);
§ 8-533(B)(4) (parent convicted of a felony that is demonstrative of
unfitness); § 8-533(B)(8) (failure of a parent to “remedy the circumstances
that cause [a] child to be in an out-of-home placement”); § 8-533(B)(9)
(identity and location of parent is unknown despite three months of
“diligent efforts” to find parent); § 8-533(B)(10) (parental rights to another
child terminated within the preceding two years and the parent is
“currently unable to discharge parental responsibilities due to the same
cause”); § 8-533(B)(11) (failure of a parent to discharge parental
responsibilities after child removed for second time within 18 months to
out-of-home placement).
¶11 Section 8-533(B) also lists three other grounds for termination
that are facially procedural and thus potentially not indicative of unfitness.
These grounds address situations in which a parent has voluntarily
relinquished her parental rights or waived her right to contest severance,
and hence a finding of parental unfitness is not required. See § 8-533(B)(5)
(a “potential father fail[s] to file a paternity action” after receiving notice
under A.R.S. § 8-106(G)); § 8-533(B)(6) (a “putative father fail[s] to file a
notice of claim of paternity as prescribed in § 8-106.01”); § 8-533(B)(7)
(“[T]he parents have relinquished their rights to a child to an agency or
have consented to the adoption.”). Thus, all eleven statutory grounds in
§ 8-533(B) either constitute a finding of parental unfitness or operate only
when a parent fails to properly contest the severance.
III. THE BEST-INTERESTS INQUIRY
¶12 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.” Kent K., 210 Ariz. at 286 ¶ 35. Therefore,
once the court finds “that a parent is unfit, the focus shifts to the interests
of the child as distinct from those of the parent.” Id. at 285 ¶ 31; see also
Demetrius L., 239 Ariz. at 4 ¶ 15. The “child’s interest in stability and
security” must be the court’s primary concern. Demetrius L., 239 Ariz. at 4
¶ 15 (quoting Kent K., 210 Ariz. at 286 ¶ 34).
¶13 To this end, we have held that termination 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. ¶ 16. “It is well established
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ALMA S. V. DEPARTMENT OF CHILD SAFETY
Opinion of the Court
in state-initiated cases that the child’s prospective adoption is a benefit that
can support a best-interests finding,” id., but that does not mean that courts
are free to disregard other evidence regarding a child’s best interests, see
Lawrence R. v. Ariz. Dep’t of Econ. Sec., 217 Ariz. 585, 588 ¶ 11 (App. 2008)
(“While a [factfinder] may find that severance is in a child’s best interests if
the child is found to be adoptable, the [factfinder] is not required to do so.”).
Courts must consider the totality of the circumstances existing at the time
of the severance determination. Dominique M. v. Dep’t of Child Safety, 240
Ariz. 96, 98–99 ¶¶ 11–12 (App. 2016) (noting that courts may consider the
negative effect on a child of the continued presence of a statutory severance
ground in a totality of the circumstances best-interests inquiry).
¶14 Here, the court of appeals erred by relying on Lawrence R. to
support the proposition that adoptability alone can never support a
best-interests finding “sufficient to overcome a parent’s constitutional
rights.” Alma S., 244 Ariz. at 162 ¶ 35. Lawrence R. does not reach that
conclusion but merely notes that, under a prior statutory scheme, a jury
may find that severance is in a child’s best interests if the child is adoptable.
Lawrence R., 217 Ariz. at 588 ¶ 11. Further, Lawrence R. comports with
binding precedent from this Court. In Demetrius L., we concluded that
“[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.” 239 Ariz. at 4 ¶ 12.
¶15 We recognize that although the focus of the best-interests
inquiry is on the child, courts should consider a parent’s rehabilitation
efforts as part of the best-interests analysis. But what courts must not do,
and what the court of appeals did here, see Alma S., 244 Ariz. at 162 ¶ 38, is
subordinate the interests of the child to those of the parent once a
determination of unfitness has been made. Indeed, Santosky recognized
that once such a finding has been made, the parent and child no longer
“share a vital interest in preventing erroneous termination of their natural
relationship,” and “the court may assume . . . that the interests of the child
and the natural parents do diverge.” 455 U.S. at 760; see also Demetrius L.,
239 Ariz. at 4 ¶ 15; Kent K., 210 Ariz. at 286 ¶ 35.
¶16 The court of appeals further erred in its best-interests analysis
by quoting Roberto F. to support its statement that the material issue in the
best-interests inquiry is “whether a parent has the ability to properly parent
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ALMA S. V. DEPARTMENT OF CHILD SAFETY
Opinion of the Court
his/her child.” Alma S., 244 Ariz. at 157 ¶ 13. Roberto F. did not address
best interests; it only addressed parental fitness. 232 Ariz. at 54 ¶ 41 n.14.
By citing Roberto F., the court of appeals conflated the fitness inquiry with
the best-interests inquiry.
IV. SUFFICIENCY OF THE EVIDENCE
¶17 Mother does not dispute that a statutory ground for
termination was proven by clear and convincing evidence. She only
contests the juvenile court’s best-interests finding. Whether that finding is
supported by sufficient evidence is the relevant inquiry here.
¶18 “We accept the juvenile court’s findings of fact if reasonable
evidence and inferences support them, and will affirm a severance order
unless it is clearly erroneous.” Demetrius L. 239 Ariz. at 3 ¶ 9. “The
appellate court’s role is not to weigh the evidence.” State v. Fischer, 242 Ariz.
44, 52 ¶ 28 (2017); see also Dominique M., 240 Ariz. at 98 ¶ 9 (“Mother is in
essence asking us to reweigh the evidence presented to the juvenile court.
We decline to do so.”). The resolution of conflicting evidence is “uniquely
the province of the juvenile court,” Jesus M. v. Ariz. Dep’t of Econ. Sec., 203
Ariz. 278, 282 ¶ 12 (App. 2002), and this rule applies even when “sharply
disputed” facts exist, In re Pima Cty. Severance Action No. S-1607, 147 Ariz.
237, 239 (1985).
¶19 The court of appeals erred in failing to abide by these
standards and instead reweighing the evidence presented to the juvenile
court. For example, the court disbelieved Father’s statement to his therapist
that he and Mother were still in a relationship, rejected the juvenile court’s
findings consistent with Father’s statement, and concluded that Father did
not pose a danger to the children because he was “no longer present in
[their] lives.” Alma S., 244 Ariz. at 158 ¶¶ 16–17, 160 ¶ 27. The court of
appeals also asserted that the juvenile court “did not find that Mother and
Father were still in a relationship.” Id. at 158 ¶ 17. But the juvenile court
did not find that Mother and Father’s relationship had ended, nor did it
question Father’s credibility. In fact, the juvenile court appeared to
question the truth of Mother’s assertion that her relationship with Father
had ended, stating:
Only recently has Mother said that she is no longer with
Father. However, Father has said otherwise to his therapist.
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ALMA S. V. DEPARTMENT OF CHILD SAFETY
Opinion of the Court
Even if the Court accepts Mother is being honest and she is no
longer in a relationship with Father, it is literally too little too
late to demonstrate that she is willing to protect her children
from an abusive person.
(emphasis added). Further, in its best-interests ruling, the juvenile court
reasoned that “[w]hile Mother loves her sons, she chose to continue her
own unhealthy, abusive relationship with Father . . . rather than ending the
relationship to protect herself and her children.”
¶20 The court of appeals also reevaluated the testimony of
Mother’s DCS case manager, finding that the case manager’s “casual
inquiry into the facts is not sufficient to meet even minimal professional
standards” and that the psychologist’s conclusions were “equally
unfounded” and possibly “so lacking” that his testimony should have been
inadmissible. Id. at 158–60 ¶¶ 20–24. But the record supported the juvenile
court’s factual findings and conclusions. For example, the DCS case
manager reviewed Mother’s case file, set up DCS services for Mother, and
exchanged communications with Mother. Similarly, the psychologist
conducted a five-hour psychological evaluation of Mother that included a
“thorough clinical interview” with her, several psychological tests, and a
review of DCS records, and drew his conclusions from his expertise.
¶21 Viewing the record in the light most favorable to upholding
the court’s best-interests finding, Demetrius L., 239 Ariz. at 2 ¶ 2, and
applying our deferential standard of review, see id. at 3 ¶ 9, we conclude
that sufficient evidence supports that finding. Both of Mother’s children
were excelling in their out-of-home placements, the foster parents were
planning to adopt the children, and the children are otherwise adoptable
even if their current placements do not result in adoption. The juvenile
court also found, as part of its consideration of the totality of the
circumstances in its best-interests analysis, that Mother was still inclined to
endanger the children despite her rehabilitative progress.
¶22 Justice Bolick concurs in the result in this case, but unlike
Mother, he questions the constitutionality of Arizona’s termination of
parental rights statutory scheme. Because Mother did not challenge the
constitutionality of the statute, this issue is not before us and we decline to
address it. See, e.g., State v. City of Tucson, 242 Ariz. 588, 599 ¶ 45 (2017) (“We
generally do not reach out to decide important constitutional issues or to
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ALMA S. V. DEPARTMENT OF CHILD SAFETY
Opinion of the Court
upset established precedent when no party has raised or argued such
issues.”).
V. CONCLUSION
¶23 We vacate the court of appeals’ opinion and affirm the
juvenile court’s judgment terminating Mother’s parental rights.
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ALMA S. V. DEPARTMENT OF CHILD SAFETY
JUSTICE BOLICK, Concurring in the Result
¶24 I agree with my colleagues that, applying an abuse of
discretion standard to the juvenile court’s decision, the statutory grounds
for termination of parental rights were met here. I concur only in the result
and write separately because our statutes and rules, as the Court has
interpreted and applied them here and elsewhere, do not adequately
safeguard fundamental parental rights.
¶25 The primacy of parents in the upbringing of their children is
a bedrock principle of American constitutional law. See, e.g., Prince v.
Massachusetts, 321 U.S. 158, 166 (1944) (“It is cardinal with us that the
custody, care and nurture of the child reside first in the parents . . . .”); Troxel
v. Granville, 530 U.S. 57, 65 (2000) (plurality) (“[T]he interest of parents in
the care, custody, and control of their children [] is perhaps the oldest of the
fundamental liberty interests recognized by this Court.”); Stanley v. Illinois,
405 U.S. 645, 651 (1972) (listing cases). The principle of parental sovereignty
is one that has distinguished our exceptional nation from authoritarian
regimes. See, e.g., Aaron T. Martin, Homeschooling in Germany and the United
States, 27 Ariz. J. Int’l. Comp. L. 225 (2010) (tracing Germany’s prohibition
of homeschooling to Nazi regime); Nicole M. Skalla, China’s One-Child
Policy: Illegal Children and the Family Planning Law, 30 Brook. J. Int’l L. 329
(2004) (discussing China’s prior one-child policy); Aleta Wallach,
Comparative Legal Status of American and Soviet Women, 5 Val. U. L. Rev. 439,
479 (1971) (reporting that Soviet policy requires that parents “must bring
up their children in the spirit . . . of communism”).
¶26 With those rights come deep responsibilities, and failing to
fulfill those responsibilities can lead to forfeiture of the rights. But the
permanent severance of the parental relationship is a power of awesome
magnitude that must be exercised with great rectitude and always
cognizant of the fundamental rights at stake. The United States Supreme
Court could not have established this principle more strongly. “The
fundamental liberty interest of natural parents in the care, custody, and
management of their child is protected by the Fourteenth Amendment, and
does not evaporate simply because they have not been model parents or
have lost temporary custody of their child to the State.” Santosky v. Kramer,
455 U.S. 745, 753 (1982). Parents faced with “irretrievable destruction of
their family life” have a “critical need for procedural protections.” Id. Thus,
“[w]hen the State moves to destroy weakened familial bonds, it must
provide the parents with fundamentally fair procedures.” Id. at 753–54.
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ALMA S. V. DEPARTMENT OF CHILD SAFETY
JUSTICE BOLICK, Concurring in the Result
¶27 Our statutes and rules as interpreted and applied by this
Court do not always measure up to the demanding constitutional
requirements. See Brenda D. v. Dep’t of Child Safety, 243 Ariz. 437, 449–51
¶¶ 44–54 (2018) (Timmer, J., dissenting) (holding that a parent who is late
to a hearing may lose important rights); Marianne N. v. Dep’t of Child Safety,
243 Ariz. 53, 1008–13 ¶¶ 33–66 (2017) (Eckerstrom, J., dissenting) (holding
that a parent who appeared at fourteen consecutive hearings and who
failed to appear but attempted to participate telephonically in a status
conference can have the proceeding converted to a final termination
hearing and lose her children).
¶28 Termination proceedings in Arizona nearly always result in
permanent severance of parental rights. According to Department of Child
Safety (“DCS”) statistics, from October 2007 to March 2008, petitions for
termination encompassed 510 children, and 484 severances were granted.
Ariz. Dep’t of Econ. Sec., Child Welfare Reporting Requirements: Semi-Annual
Report for the Period of October 1, 2007 Through March 31, 2008, at 61 (2008).
From April to September 2017, ten years later, the number of petitions
increased markedly to 3,097, and 3,095 (99.94%) were granted. Ariz. Dep’t
of Child Safety, Child Welfare Reporting Requirements: Semi-Annual Report for
the Period of April 1, 2017 Through September 30, 2017, at 68 (2017). These
statistics by themselves do not demonstrate that deficiencies exist in
individual cases. They do, however, counsel that we should take great care
to ensure that our termination of parental rights process has not become a
railroad with no stops and only one destination, in which judges act as mere
conductors.
¶29 As the Court recognizes, we have typically applied a
bifurcated process in termination proceedings, determining in the first
stage whether one of the statutory grounds for termination was proved by
clear and convincing evidence, and in the second stage whether termination
is in the best interests of the child by preponderance of the evidence. Supra
¶ 8. This bifurcated process does not appear on the face of the statute,
which instead directs that “in considering any of the . . . grounds” for
termination, “the court shall also consider the best interests of the child.”
A.R.S. § 8-533(B); see Kent K. v. Bobby M., 210 Ariz. 279, 286 ¶ 32 (2005).
Given that the statute treats termination grounds and the child’s best
interests as part of the same analysis, the Court aptly today instructs that
the juvenile court “must consider the totality of the circumstances.” Supra
¶ 1.
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ALMA S. V. DEPARTMENT OF CHILD SAFETY
JUSTICE BOLICK, Concurring in the Result
¶30 A glaring omission from the statute, from a due process
perspective, is its failure to expressly require consideration of a parent’s
rehabilitation where the statutory ground for termination does not
necessarily suggest permanent unfitness. A.R.S. § 8-533(D) provides that
“the court shall consider the availability of reunification services to the
parent and the participation of the parent in these services,” but only as to
§ 8-533(B)(8) and (11)—where child is cared for in a supervised out-of-home
placement and reunification services have been provided. By contrast, in
Santosky, the state was required in the neglect context to make diligent
efforts to encourage and strengthen the parental relationship. 455 U.S. at
748. Indeed, the dissenters emphasized that the “central purpose of the
New York plan is to reunite divided families.” Id. at 771 (Rehnquist, J.,
dissenting). No such explicit requirement either on the state’s part to
engage in such efforts, nor on the juvenile court’s part to consider such
efforts, is present in Arizona’s statutory scheme.
¶31 Our court of appeals has long recognized this due process
prerequisite. In Mary Ellen C. v. Arizona Department of Economic Security, the
court of appeals held that in addition to proving a statutory ground, the
state must prove “an additional element”; specifically, whether it “made
reasonable efforts to preserve the family relationship[.]” 193 Ariz. 185, 191
¶ 28 (App. 1999). The court explained that this inquiry is not statutory but
is required “on constitutional grounds as a necessary element” of any
termination proceeding by Santosky. Id. at 192 ¶ 32; accord Mary Lou C. v.
Ariz. Dep’t of Econ. Sec., 207 Ariz. 43, 49 ¶ 15 (App. 2004). As my colleague,
then-Judge Gould, aptly described it in Roberto F. v. Arizona Department of
Economic Security, “In any severance proceeding, the material issue facing
the court is whether a parent has the ability to properly parent his/her
child; it is irrelevant whether a child has a stronger attachment to their
foster parents, whether foster parents are more ‘nurturing,’ or whether
foster parents might be more capable or better parents than a natural
parent.” 232 Ariz. 45, 54 ¶ 42 (App. 2013).
¶32 However, the Court today holds that all that must be proven
by clear and convincing evidence is that the parent engaged in one of the
statutory grounds for termination, which by itself “constitute[s] a finding
of parental fitness.” Supra ¶ 11. The Court acknowledges that “the parent’s
rehabilitation” should be part of the “totality of the circumstances” that a
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ALMA S. V. DEPARTMENT OF CHILD SAFETY
JUSTICE BOLICK, Concurring in the Result
court must consider in a termination proceeding. Supra ¶ 1. However, it
errs significantly by failing to accord proper weight to that central
consideration, reducing it from an essential element in proving unfitness to
merely considering it as one part of the child’s best-interests determination,
where it is subordinate to other priorities.
¶33 That holding is at odds with Santosky, in which the statutory
scheme before the Court required the state in the parental unfitness stage
to prove, among other things, “the intensity of its agency’s efforts to reunite
the family.” 455 U.S. at 762. Proof of the state’s efforts, combined with proof
of the parent’s failings, both by clear and convincing evidence, “not only
makes termination of parental rights possible; it entails a judicial
determination that the parents are unfit to raise their own children.” Id. at
760. Here, by contrast, the Court rules that proof of the statutory ground,
standing alone, proves unfitness, without a finding either that the state has
made diligent efforts to reunify the family or that the parent has failed to
remediate the problem. Supra ¶¶ 9, 11; see also supra ¶ 10 (statutory grounds
are “proxies for parental unfitness”).
¶34 Relegating parental rehabilitation to the best-interests inquiry
bodes serious ramifications that eviscerate the parent’s fundamental rights.
The statutory grounds may reflect a moment in time, or unique
circumstances, that justify removal of the child from the home but may not
reflect permanent or even ongoing unfitness. The unfitness determination
cannot properly be made without considering the state’s reunification
efforts and the parent’s success in regaining or attaining parenting skills.
See, e.g., A.M. v. A.C., 296 P.3d 1026, 1035 ¶ 29 (Colo. 2013) (“Before
terminating the parent-child relationship, the trial court must consider and
eliminate less drastic alternatives, . . . and the parents must be given the
opportunity to rehabilitate through participation in a treatment plan . . . .”
(citations omitted)). Once the case moves to the dispositional stage, the
parent’s rights are, at best, only one factor among many; for as the Court
observes, in the best-interests inquiry, the child’s “stability and security”
are the “primary concern.” Supra ¶ 12.
¶35 Additionally, consideration of parental rehabilitation during
the dispositional stage reduces significantly the state’s burden, from clear
and convincing evidence to preponderance of the evidence. Here, Mother’s
relationship with her children was permanently severed despite the fact
that she received extensive rehabilitation services, and that DCS and the
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ALMA S. V. DEPARTMENT OF CHILD SAFETY
JUSTICE BOLICK, Concurring in the Result
guardian ad litem agreed that Mother maintained a bond with her children
and possessed adequate parenting skills. Although such considerations are
important in determining a child’s best interests, they are also central in
making the predicate determination that the parent is unfit.
¶36 Indeed, as the Court observes, once unfitness is determined,
the best-interests standard is satisfied upon a showing that the child will
benefit from severance or will be harmed if severance is denied. Supra ¶ 13.
Considering rehabilitation in that context, rather than as an essential
element in proving unfitness, strips the parent’s rights of their fundamental
nature because the interests of the parent and child are presumed to diverge
and the child’s interests are paramount.
¶37 The Court goes on to declare that “what courts must not do,
and what the court of appeals did here, . . . is subordinate the interests of
the child to those of the parent once a determination of unfitness has been
made.” Supra ¶ 15. But that is not what the court of appeals said or did.
Rather, the court of appeals stated that “[i]f a parent’s ability to parent the
children has been established by parent-aide services, there is a bond
between the children and parent, and the parent has attained a safe and
stable living situation, then the children’s adoptability, household stability,
and the ability of their current placements to meet their needs are
subordinate to the fundamental rights of the parent in determining best
interests, unless severance removes a detriment caused by the parental
relationship.” Alma S., 244 Ariz. at 162 ¶ 38. In other words, if a parent has
rehabilitated, the parent’s rights generally remain paramount. See, e.g.,
Reno v. Flores, 507 U.S. 292, 304 (1993) (“’[T]he best interests of the child’ is
not the legal standard that governs parents’ or guardians’ exercise of their
custody: So long as certain minimum requirements of child care are met,
the interests of the child may be subordinated . . . to the interests of the
parents or guardians themselves.”).
¶38 Mother has not argued that the statutes violate the
Constitution on their face or as applied. Because the juvenile court
considered the state’s rehabilitation efforts and determined that the
children remain at risk if reunited with Mother, and because we review that
decision only for abuse of discretion, I join my colleagues in affirming the
termination. However, the framework for terminating parental rights
articulated by the Court here does not provide the “fundamentally fair
procedures” that the Constitution requires.
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ALMA S. V. DEPARTMENT OF CHILD SAFETY
JUSTICE BOLICK, Concurring in the Result
¶39 For many if not most people who are fortunate enough to be
parents, the loss of their children is far graver than any possible loss of
liberty. It may very well be that the vast majority of parents against whom
DCS files termination proceedings deserve ultimately to lose their children.
But the framework set forth by the Court today and in other recent
decisions allows for the very real possibility that parents who have
rehabilitated themselves, who have followed our cumbersome rules to the
best of their ability, who have retained a strong familial bond, and who
have manifested the ability to parent, will nonetheless lose their children
irrevocably. That is not only constitutionally impermissible but intolerable
in a free society.
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