Cherlle S. v. Dcs ( 2015 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
CHERLLE S., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, Z.M., M.M., Appellees.
No. 1 CA-JV 14-0326
FILED 6-2-2015
Appeal from the Superior Court in Maricopa County
No. JD 28030
The Honorable Connie Contes, Judge
AFFIRMED
COUNSEL
Maricopa County Public Advocate, Mesa
By David C. Lieb
Counsel for Appellant
Arizona Attorney General’s Office, Phoenix
By Nicholas Chapman-Hushek
Counsel for Appellee Department of Child Safety
CHERLLE S. v. DCS, et al.
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Margaret H. Downie delivered the decision of the Court,
in which Judge Kenton D. Jones and Judge Jon W. Thompson joined.
D O W N I E, Judge:
¶1 Cherlle S. (“Mother”) appeals an order terminating her
parental rights to sons Z.M. and M.M. (collectively, “the children”). For
the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY1
¶2 In late February 2014, the children’s grandparents picked the
children up for a weekend visit, at which time Mother admitted to having
used methamphetamine. Later that weekend, the grandparents attempted
to call Mother 11 times to no avail. When it was time to return the
children, the grandparents refused, stating Mother did not provide a
suitable living environment. In March 2014, DCS became involved and
took custody of the children. DCS eventually placed them with their great
grandparents and filed a dependency petition. In May 2014, the court
found the children dependent. DCS offered Mother numerous services,
including counseling, substance abuse testing and treatment, parent aide
services, and transportation assistance.
¶3 Mother did not engage in most services, and in September
2014, the children’s Guardian Ad Litem moved to terminate her parental
rights. The grounds alleged were abandonment under Arizona Revised
Statutes (“A.R.S.”) section 8-533(B)(1) and inability to discharge parental
responsibilities due to chronic substance abuse under A.R.S. § 8-533(B)(3).
Mother did not appear for the initial termination hearing, and the court
found that she had notice of the proceeding and lacked good cause for her
absence. The court granted DCS’s request to substitute as the movant,
deemed the severance motion allegations against Mother admitted due to
1 On appeal, “[w]e view the facts in the light most favorable to
upholding the juvenile court’s order.” Ariz. Dep’t of Econ. Sec. v. Matthew
L., 223 Ariz. 547, 549, ¶ 7, 225 P.3d 604, 606 (App. 2010).
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CHERLLE S. v. DCS, et al.
Decision of the Court
her failure to appear, and proceeded with the hearing — admitting
evidence and hearing testimony from the DCS case manager.
¶4 The court terminated Mother’s parental rights on the
grounds alleged and also found that termination was in the children’s best
interests. A few days later, Mother filed a motion to set aside, asserting
she had good cause for failing to appear; Mother also filed a notice of
appeal. The superior court did not rule on Mother’s motion to set aside.
We have jurisdiction over Mother’s timely appeal pursuant to A.R.S. §§
8-235(A), 12-120.21(A)(1), -2101(A)(1).2
DISCUSSION
I. Statutory Grounds
¶5 Mother argues the superior court failed to find that DCS
“had met its burden by clear and convincing evidence, nor any other
standard, on either alleged ground for termination.” The record does not
support this contention.
¶6 The superior court is required to make “specific findings of
fact in support of the termination of parental rights.” Ariz. R. Juv. P.
66(F)(2)(a); see also A.R.S. § 8-538(A). Here, the court stated in its ruling:
“THE COURT FINDS that [DCS] has proven the following by clear and
convincing evidence: . . . As to the mother . . . abandonment, which
constitutes grounds for termination pursuant to A.R.S. §§ 8-533(B)(1),
8-531(1), and 8-201(1) . . . [and] a history of chronic abuse of dangerous
drugs . . . pursuant to A.R.S. § 8-533(B)(3).” The court articulated its
abandonment findings as follows:
The mother . . . [has] . . . abandoned the children and . . . has
failed to maintain a normal parental relationship with the
children, without just cause, by failing to provide reasonable
support, to maintain regular contact with the children,
and/or to provide normal supervision.
2 Mother does not challenge the determination that she received
adequate notice of the hearing and lacked good cause for failing to appear,
so we do not address those issues. MT Builders, L.L.C. v. Fisher Roofing
Inc., 219 Ariz. 297, 304 n.7, ¶ 19, 197 P.3d 758, 765 n.7 (App. 2008)
(arguments not developed on appeal are deemed waived).
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CHERLLE S. v. DCS, et al.
Decision of the Court
The Court makes a specific judicial finding that any contact
that [Mother] has had through the placement is not sufficient
to establish a normal parental relationship, particularly
when neither parent has appeared for court hearings since
5/19/2014 or participated in the services being offered by
[DCS] or observation of Dependency Treatment Court.
¶7 To the extent Mother suggests these findings lack sufficient
detail, she has waived such a claim. “We generally do not consider
objections raised for the first time on appeal. This is particularly so as it
relates to the alleged lack of detail in the juvenile court’s findings.”
Christy C. v. Ariz. Dep't of Econ. Sec., 214 Ariz. 445, 452, ¶ 21, 153 P.3d 1074,
1081 (App. 2007). But even if we declined to apply the doctrine of waiver,
we would review Mother’s challenge for fundamental error only. See
Monica C. v. Ariz. Dep’t of Econ. Sec., 211 Ariz. 89, 94, ¶ 22, 118 P.3d 37, 42
(App. 2005) (failure to object in trial court triggers fundamental error
review on appeal). To prevail under this standard of review, a parent
must show: (1) error, (2) the error was fundamental, and (3) resulting
prejudice. State v. Henderson, 210 Ariz. 561, 567, ¶ 20, 115 P.3d 601, 607
(2005).
¶8 No error exists on this record, let alone fundamental error.
A court may terminate parental rights if it finds one of the statutory
grounds for severance by clear and convincing evidence. A.R.S. §§
8-533(B), -537(B). Termination based on abandonment requires the court
to find that a parent has failed to provide reasonable support and
maintain regular contact with a child, including providing normal
supervision. A.R.S. § 8-531(1). Abandonment includes a finding that a
parent has made only minimal efforts to support and communicate with
the child, and failure to maintain a normal parental relationship with a
child without just cause for six months constitutes prima facie evidence of
abandonment. Id.
¶9 The superior court’s findings regarding abandonment align
with statutory requirements. When the legal issues in a case are
complicated, greater detail in factual findings may be necessary, but
when, as here, the grounds for termination are “simple and
straightforward,” more summary findings are sufficient. See Ruben M. v.
Ariz. Dep’t of Econ. Sec., 230 Ariz. 236, 241, ¶¶ 26-27, 282 P.3d 437, 442
(App. 2012); Christy C., 214 Ariz. at 451-52, ¶ 19, 153 P.3d at 1080-81
(affirming superior court’s findings when supported by reasonable
evidence, “whether or not each supportive fact is specifically called out”).
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CHERLLE S. v. DCS, et al.
Decision of the Court
¶10 Furthermore, evidence supports the superior court’s
findings. See Audra T. v. Ariz. Dep’t of Econ. Sec., 194 Ariz. 376, 377, ¶ 2,
982 P.2d 1290, 1291 (App. 1998) (appellate court will not disturb superior
court’s ruling unless no reasonable evidence supports it). Testimony by
the DCS case manager and exhibits admitted at the hearing established
that the children had been in DCS care for close to 9 months. Mother did
not have regular contact with them or maintain contact with DCS
throughout the case, she had not appeared for a hearing regarding the
children for six months, and she failed to consistently participate in
services. Mother also submitted drug tests that were positive for
amphetamines, methamphetamine, and THC.
¶11 The superior court did not err in finding the statutory
ground of abandonment by clear and convincing evidence. We therefore
need not discuss the additional ground for severance found by the court.
See Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 280, ¶ 3, 53 P.3d 203,
205 (App. 2002) (“If clear and convincing evidence supports any one of the
statutory grounds on which the juvenile court ordered severance, we need
not address claims pertaining to the other grounds.”).
II. Best Interests
¶12 Mother also argues “the court failed to make any findings of
fact to support its conclusion of law regarding the best interests of the
children.” The superior court’s best interests finding is admittedly
cursory, stating only that DCS “has also proven by a preponderance of the
evidence that termination is in the best interests of each and both
children.” Again, however, Mother did not object below, leaving us to
consider only fundamental error. Monica C., 211 Ariz. at 94, ¶ 22, 118 P.3d
at 42. And even assuming the superior court’s ruling was insufficiently
detailed, Mother has not demonstrated resulting prejudice because the
evidence supports the court’s best interests conclusion. See Christy C., 214
Ariz. at 451-52, ¶ 19, 153 P.3d at 1080-81.
¶13 Before terminating parental rights, the court must find by a
preponderance of the evidence that termination is in the child’s best
interest. See A.R.S. § 8-533(B); Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 22,
110 P.3d 1013, 1018 (2005). Credible evidence that the child would benefit
from the severance or be harmed by continuation of the parent-child
relationship is sufficient. See Lawrence R. v. Ariz. Dep’t of Econ. Sec., 217
Ariz. 585, 587, ¶ 8, 177 P.3d 327, 329 (App. 2008). A court may consider
the stability and permanency adoption can afford a child. Jose M. v.
Eleanor J., 234 Ariz. 13, 17-18, ¶ 23, 316 P.3d 602, 606-07 (App. 2014).
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CHERLLE S. v. DCS, et al.
Decision of the Court
Evidence of an adoption plan, a child’s adoptability, or an existing
placement meeting the child’s needs supports a finding that he or she
would benefit from severance. Audra T., 194 Ariz. at 377, ¶ 5, 982 P.2d at
1291; Maricopa Cnty. Juv. Action No. JS-501904, 180 Ariz. 348, 352, 884 P.2d
234, 238 (App. 1994).
¶14 The DCS case manager testified that the children are young
and adoptable. They are in a placement that is meeting their needs, and
DCS is actively seeking an adoptive home. Additionally, the evidence
amply established that Mother is incapable of providing a safe, stable,
drug-free lifestyle that meets the children’s needs. As such, reasonable
evidence supports the superior court’s best interests finding.
CONCLUSION
¶15 We affirm the termination of Mother’s parental rights.
:ama
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