Mary Jean M. v. Dcs, E.L. ( 2018 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
MARY JEAN M., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, E.L., Appellees.
No. 1 CA-JV 18-0055
FILED 9-11-2018
Appeal from the Superior Court in Mohave County
No. B8015JD201604027
The Honorable Rick A. Williams, Judge
AFFIRMED
COUNSEL
The Stavris Law Firm, PLLC, Scottsdale
By Alison Stavris
Counsel for Appellant
Arizona Attorney General’s Office, Mesa
By Lauren J. Lowe
Counsel for Appellee, Department of Child Safety
MARY JEAN M. v. DCS, E.L.
Decision of the Court
MEMORANDUM DECISION
Judge Randall M. Howe delivered the decision of the Court, in which
Presiding Judge Jon W. Thompson and Judge James B. Morse Jr. joined.
H O W E, Judge:
¶1 Mary Jean M. (“Mother”) appeals from the trial court’s order
terminating her parental rights to her son, E.L., on the ground of 15 months’
time in an out-of-home placement. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Mother is the natural parent of M.L., born in May 2001, and
E.L., born in May 2003. She lived with the children in or near Arizona for
several years, while Donald L. (“Father”) lived in another state.1 Mother has
a considerable medical history and has survived 11 strokes. Those strokes
left her severely physically impaired; she could not prepare food, feed
herself, hold utensils, speak clearly, or bathe on her own. Hence, she could
not meet her own or the children’s daily needs. Accordingly, at young ages,
the children became her primary caretakers. E.L. unstintingly took on this
caregiving role, doing most everything for Mother and often skipping
school to care for her. Mother’s only source of income came from child
support, and she could not provide the children with a stable home. Just
before the current dependency, they were living in various hotels and
shelters.
¶3 In March 2016, while trying to light a cigarette, Mother
burned herself severely. Upon her hospitalization for the burns, the
Department of Child Safety took custody of the children because they had
no legal caregiver supervising them. After her release from the hospital,
Mother moved in with her sister in Pennsylvania who became her full-time
caregiver.
¶4 Because of Mother’s severe and seemingly static functional
limitations, the Department asked her for medical documentation
1 The juvenile court terminated Father’s parental rights, and he is not
a party to this appeal. M.L. is in an independent-living program and is also
not a party to this appeal.
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explaining whether she could participate in services and whether services
could restore her ability to parent the children. The Department never
received this information and therefore only provided Mother with case-
management services, team decision-making meetings, and visitation. The
Department also believed that Mother had mental-health issues; it therefore
asked her to enroll in behavioral-health services and to take a psychological
evaluation if she could. Mother never did so, but she participated in regular
telephonic visits with E.L. E.L. struggled with visits because, according to
him, Mother was very difficult to understand on the phone due to her
medical condition. He also expressed that he could not “handle” the calls
when Mother would share the difficulties that she was going through, but
he did not wish to stop talking to Mother altogether.
¶5 Meanwhile, by March 2017, Father had engaged in the case
plan and the court returned the children to his custody. The next month,
Mother visited E.L. once in person. Shortly after that, E.L. disclosed to
Father that he had been sexually abused for several years by a family friend.
E.L. also disclosed that he cared for the alleged perpetrator who had
introduced E.L. to methamphetamine. The Department notified police, and
they arrested the alleged perpetrator. Over the next few months, E.L.
suffered from methamphetamine withdrawal and his mental health
declined. In June, Father took him to the emergency room. E.L. required
hospitalization, and the next day the Department took custody of him
because Father refused to care for him any longer.
¶6 Upon E.L.’s release from the hospital, the Department placed
him with a foster family while it arranged inpatient psychiatric care and
other intensive support services for him. In October 2017, the Department
moved to terminate Mother’s parental rights on the 15 months’ time in an
out-of-home placement ground. Two months later, just before his support
services began, E.L. ran away and remained missing for four months.
¶7 In January 2018, the court held a contested termination
hearing. At the hearing, Mother’s counsel conceded that “reunification is
[not] possible with Mother. . . . [Her] medical condition is such that it
continues to deteriorate. She’s . . . been at the point for an extended period
of time now where she’s unable to parent.” Likewise, the case manager
testified that “Mom herself, needs someone to care for her. So, therefore,
she’s not able to care for anyone else[.]” She also testified that having been
Mother’s caregiver for much of his childhood, E.L. expressed a strong sense
of guilt and responsibility towards her. She further testified that E.L.
recognized that these feelings inhibited him from addressing his own
extensive special needs. The case manager explained that without
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MARY JEAN M. v. DCS, E.L.
Decision of the Court
termination of Mother’s parental rights, E.L. would likely remain in foster
care for three-and-a-half more years—until he turned 18—denying him any
chance at progressing towards permanency. Next, the case manager
testified that as soon as the Department located him, she was committed to
doing “whatever we need to do to help him.” The case manager anticipated
placing E.L. in a facility that could holistically address his mental-health,
sexual-abuse, and methamphetamine-addiction issues. She testified that
the Department was already working on facilitating those intensive
support services “so that once he is found we will be able to . . . help him.”
¶8 Also during the hearing, Mother’s counsel indicated that she
had disclosed some medical information to the State, but the case manager
testified that the Department did not receive it. Nevertheless, at the hearing,
Mother conceded that her impairments were degenerative and that she
could not parent E.L. The court found that continuing the parent-child
relationship would harm E.L. because “it would delay permanency, leaving
[him] to linger in [foster] care for an indeterminate period since [he] doe[s]
not have parents who are able to care for him.” The court later terminated
Mother’s parental rights on the ground alleged. Mother timely appealed.
Two months after Mother initiated this appeal, the Department located E.L.
DISCUSSION
¶9 Mother argues that the court erred by terminating her
parental rights on the 15 months’ time in an out-of-home placement
ground. She also contends that insufficient evidence supports the court’s
finding that terminating her parental rights was in E.L.’s best interests. The
court did not abuse its discretion in terminating Mother’s parental rights
because (1) Mother failed to challenge the Department’s provisions of
services, thereby waiving that argument on appeal; (2) sufficient evidence
showed that Mother was incapable of exercising proper parental care and
control in the near future; and (3) termination was in E.L.’s best interests.
¶10 A juvenile court’s termination order is reviewed for an abuse
of discretion. E.R. v. Dep’t of Child Safety, 237 Ariz. 56, 58 ¶ 9 (App. 2015).
“The juvenile court, as the trier of fact in a termination proceeding, is in the
best position to weigh the evidence, observe the parties, judge the
credibility of witnesses, and make appropriate findings.” Jesus M. v. Ariz.
Dep’t of Econ. Sec., 203 Ariz. 278, 280 ¶ 4 (App. 2002). This Court will accept
the juvenile court’s factual findings unless no reasonable evidence supports
them and will affirm a termination order unless it is clearly erroneous.
Bobby G. v. Ariz. Dep’t of Econ. Sec., 219 Ariz. 506, 508 ¶ 1 (App. 2008).
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¶11 To terminate parental rights, the juvenile court must find by
clear and convincing evidence that at least one of the statutory grounds for
termination exists and by a preponderance of the evidence that termination
is in the child’s best interests. Jennifer S. v. Dep’t of Child Safety, 240 Ariz. 282,
286 ¶ 15 (App. 2016). As pertinent here, the juvenile court may terminate
parental rights when (1) the Department made a diligent effort to provide
appropriate reunification services, (2) the child has been in an out-of-home
placement for a cumulative total period of 15 months or longer pursuant to
court order, (3) the parent has been unable to remedy the circumstances that
caused the child to be in an out-of-home placement, and (4) a substantial
likelihood exists that the parent will be incapable of exercising proper and
effective parental care and control in the near future. A.R.S. § 8–533(B)(8)(c).
A parent’s failure “to raise a timely objection if [she] believes services are
inadequate” may waive such a claim on appeal. Shawanee S. v. Ariz. Dep’t of
Econ. Sec., 234 Ariz. 174, 178 ¶ 13 (App. 2014).
1. Statutory Ground for Termination
¶12 Here, Mother did not raise any issues with services (or the
lack thereof) at any time during the dependency proceedings or at the
termination hearing. The case manager testified that although Mother had
trouble speaking clearly, her attorney kept in regular contact with the
Department for her. Mother therefore could have voiced any concerns
about services through her counsel at the numerous dependency hearings
that spanned almost two years; yet, she raised no issues. Nor did she
request any additional services from the case manager. She also failed to
ensure that the Department had received her medical documentation.
Without it, the case manager could not assess what, if any, services would
be appropriate for her given her severe functional limitations.2 Finally,
Mother did not raise any issues with services at the termination hearing
2 We note that the court never relieved the Department from its duty
to provide services to Mother, and the Department did not seek a futility
finding from the court at any time during the case. Nor did Mother “ask the
. . . court to conduct a hearing to determine whether [the Department] could
suspend services or refrain from providing them[.]” See Christina G. v. Ariz.
Dep’t of Econ. Sec., 227 Ariz. 231, 236–37 ¶¶ 21–25 (App. 2011). Nevertheless,
when the dependency began, Mother admitted that her severe functional
limitations prevented her from parenting the children. Therefore, the
Department’s request that Mother provide medical documentation to
assess what further services were appropriate for her was reasonable under
these unique facts.
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through cross-examination or argument. She has therefore waived her
argument on appeal and we decline to address it further.
¶13 Mother also argues that insufficient evidence supports the
court’s findings that she was unable to remedy the circumstances that
caused E.L. to be in an out-of-home placement and that a substantial
likelihood exists that she will be incapable of exercising proper and effective
parental care and control in the near future. Her argument consists of only
two sentences and she provides no supportive record or legal citations.
Because she failed to develop her argument, it is waived. See ARCAP
13(a)(7)(A) (stating that opening briefs must contain an “[a]ppellant’s
contentions concerning each issue presented for review, with supporting
reasons for each contention, and with citations of legal authorities and
appropriate references to the portions of the record on which the appellate
relies”); see also Childress Buick Co. v. O’Connell, 198 Ariz. 454, 459 ¶ 29 (App.
2000) (stating that “issues not clearly raised in appellate briefs are deemed
waived”); see also State v. Carver, 160 Ariz. 167, 175 (1989) (“In Arizona,
opening briefs must present significant arguments, supported by authority,
setting forth an appellant’s position on the issues raised. Failure to argue a
claim usually constitutes abandonment and waiver of that claim.”).
2. Best Interests
¶14 Mother next argues that insufficient evidence supported the
court’s finding that terminating her parental rights served E.L.’s best
interests. Terminating parental rights is in a child’s best interests if the child
will benefit from the termination or will be harmed if the relationship
continues. Demetrius L. v. Joshlynn F., 239 Ariz. 1, 4 (2016). Relevant factors
in this determination include whether (1) the current placement is meeting
the child’s needs, (2) an adoption plan is in place, and (3) the child is
adoptable. Id. at 3–4 ¶ 12.
¶15 Moreover, “[i]n a best interests inquiry . . . 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. v. Bobby M., 210 Ariz. 279, 286
¶ 35 (2005); see also In re Maricopa Cty. Juv. Action No. JS–6831, 155 Ariz. 556,
559 (App. 1988) (“In most cases, the presence of a statutory ground will
have a negative effect on the children[,]” which supports a best interests
finding.). Once a juvenile court finds that a parent is unfit, the focus shifts
to the child’s interests. Kent K., 210 Ariz. at 285 ¶ 31, 287 ¶ 37. Thus, in
considering best interests, the court must balance the unfit parent’s
“diluted” interest “against the independent and often adverse interests of
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the child in a safe and stable home life.” Id. at 286 ¶ 35. Of foremost concern
in that regard is “protect[ing] a child’s interest in stability and
security.” Id. at ¶ 34.
¶16 The juvenile court found that continuing the parent-child
relationship would harm E.L. because it would delay permanency and
cause him to stay in foster care for an indeterminate period. Reasonable
evidence supports this finding. At the time of the termination hearing, E.L.
had already spent two years in foster care, and Mother’s condition had not
improved. While Mother undoubtedly loves E.L. and shares a bond with
him, nothing disputes that she could not meet his extensive needs at the
time of the termination hearing and would be unable to do so in the near
future. The record shows that throughout the dependency, Mother could
not accomplish basic self-care tasks without a caregiver’s assistance. Her
inability to meet her own needs or E.L.’s did not improve during the
dependency; if anything, her condition declined.
¶17 Mother’s counsel conceded at the termination hearing that
reunification was not possible with Mother because she was unable to
parent due to her medical condition. Likewise, the case manager testified
that Mother needed someone to care for her, and therefore could not care
for anyone else. The case worker also noted that E.L. had expressed a strong
sense of guilt and responsibility towards Mother, which kept him from
addressing his own needs. Furthermore, the case manager testified that
without termination of her parental rights, E.L. would likely remain in
foster care until he became 18 years old, which would deny him any chance
at permanency. As such, sufficient evidence supported the court’s finding
that termination of Mother’s parental rights was in E.L.’s best interests.
CONCLUSION
¶18 For the foregoing reasons, we affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
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