Gloria M. v. Dcs ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
GLORIA M., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, C.H., A.H., Appellees.
No. 1 CA-JV 18-0056
FILED 6-19-2018
Appeal from the Superior Court in Maricopa County
No. JD 529951
The Honorable Karen L. O’Connor, Judge
AFFIRMED
COUNSEL
The Stavris Law Firm, PLLC, Scottsdale
By Christopher Stavris
Counsel for Appellant
Arizona Attorney General’s Office, Mesa
By Ashlee N. Hoffmann
Counsel for Appellee Department of Child Safety
GLORIA M. v. DCS, et al.
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Maria Elena Cruz delivered the decision of the Court, in
which Judge Jennifer B. Campbell and Judge James P. Beene joined.
C R U Z, Presiding Judge:
¶1 Gloria M. (“Mother”) appeals the superior court’s order
terminating her parental rights to her children, C.H. and A.H. (collectively,
the “Children”). For the following reasons, we affirm.
FACTUAL AND PROCEDURAL HISTORY1
¶2 In April 2016, the Department of Child Safety (“DCS”)
removed the Children from the custody of their father due to his
incarceration and criminal investigation.2 At the time, Mother’s
whereabouts were unknown. The Children were initially placed with their
paternal grandparents and later placed with a paternal aunt.
¶3 DCS filed a dependency petition and the court found the
Children dependent as to Mother due to abandonment, neglect, and
substance abuse. Six months later, DCS moved to terminate Mother’s
parental rights to the Children on the grounds of abandonment.
Approximately a month thereafter, Mother contacted DCS to inquire about
contact with the Children. Because Mother was living out-of-state at the
time, DCS scheduled weekly telephone contact between Mother and the
Children.
¶4 In March 2017, DCS contacted Mother to set up services for
her out-of-state and provided a service letter offering random urinalysis,
substance abuse treatment, psychological consultation, and parenting
1 We view the facts in the light most favorable to affirming the
superior court’s findings, Michael J. v. Dep’t of Econ. Sec., 196 Ariz. 246, 250,
¶ 20 (2000), and will not reweigh conflicting evidence, Jennifer S. v. Dep’t of
Child Safety, 240 Ariz. 282, 287, ¶ 16 (App. 2016).
2 The superior court also terminated Father’s paternal rights to the
Children. Father is not a party to this appeal.
2
GLORIA M. v. DCS, et al.
Decision of the Court
classes. Mother informed DCS she was already receiving services because
she was on probation for driving under the influence. DCS informed her
she was to provide a release of information form that would enable DCS to
verify Mother was receiving services, but Mother did not complete the
release until September 2017 despite receiving multiple requests to do so.
When DCS contacted Mother’s probation officer and received records
concerning Mother’s probation, the records indicated Mother was not
involved in the required services. DCS then requested that Mother be
tested for substances via urinalysis, and the test results were positive for
alcohol and opiates.
¶5 Mother violated her probation in September 2017 and was
arrested. When she was arrested, another of her children was taken into
custody because methamphetamine pipes were found in Mother’s home
within that child’s reach. The other state’s child protection agency offered
Mother substance abuse treatment, random urinalysis, a psychological
evaluation, and individual counseling. DCS’ communications with the out-
of-state agency later revealed that Mother was noncompliant with the
offered services.
¶6 In October 2017, weekly telephone contact between Mother
and the Children ceased at the Children’s request. The same month, DCS
amended the termination petition to allege the Children had been in an out-
of-home placement for fifteen months or longer pursuant to court order.
¶7 After a two-day termination hearing, the superior court
granted DCS’ petition to terminate, finding DCS had proven both statutory
grounds for termination. As to abandonment, the court found in part that
Mother’s last in-person contact with the Children was three years before the
hearing; Mother did nothing to assert her parental rights while the Children
were with Father from 2013 to 2016; and Mother provided the Children no
financial support, gifts, cards, or letters before or during the pendency of
the case. With regards to fifteen months’ time in care, the court found in
part that the Children had been in care for fifteen months or longer; DCS
made diligent efforts to provide appropriate reunification services; Mother
had the opportunity to engage in services but did not do so; and that, given
Mother’s lack of participation in reunification services, her then-current
incarceration, and a pending out-of-state dependency case, there was a
substantial likelihood Mother would not be capable of exercising proper
and effective parental care and control in the near future.
¶8 The superior court also found DCS had proven termination of
Mother’s parental rights was in the Children’s best interests. It found in
3
GLORIA M. v. DCS, et al.
Decision of the Court
part that Mother was incarcerated; the Children had been in the paternal
aunt’s home for over a year; termination would further the plan of adoption
and provide the Children with a safe and permanent home; the paternal
aunt was an adoptive placement; and, if the paternal aunt was unable to
adopt, the Children were adoptable.
¶9 Mother timely appealed. We have jurisdiction pursuant to
Article 6, Section 9, of the Arizona Constitution and Arizona Revised
Statutes (“A.R.S.”) sections 8-235(A), 12-120.21(A), and 12-2101(A)(1).
DISCUSSION
¶10 Mother argues the superior court erred by finding DCS
proved the grounds for abandonment and fifteen months’ time in care.
Because we conclude sufficient evidence supports the ground of
abandonment, we do not address Mother’s arguments regarding the
ground of fifteen months’ time in care. Jesus M. v. Ariz. Dep’t of Econ. Sec.,
203 Ariz. 278, 280, ¶ 3 (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.”).
¶11 The superior court may terminate parental rights if DCS
proves a statutory ground set out in A.R.S. § 8-533(B) by clear and
convincing evidence, Michael J. v. Dep’t of Econ. Sec., 196 Ariz. 246, 249, ¶ 12
(2000), and that termination is in the children’s best interests by a
preponderance of the evidence, see Kent K. v. Bobby M., 210 Ariz. 279, 288,
¶ 41 (2005). Because the superior court “is in the best position to weigh the
evidence, observe the parties, judge the credibility of witnesses, and resolve
disputed facts,” this court will affirm an order terminating parental rights
so long as it is supported by reasonable evidence. Jordan C. v. Ariz. Dep’t of
Econ. Sec., 223 Ariz. 86, 93, ¶ 18 (App. 2009).
I. Grounds for Termination
¶12 Mother argues insufficient evidence supports the superior
court’s abandonment finding. She asserts Father interfered with her ability
to communicate with the Children.
¶13 Section 8-533(B)(1) provides that the superior court can
terminate a parent-child relationship if the parent has abandoned the child.
“Abandonment” means “the failure of a parent to provide reasonable
support and to maintain regular contact with the child, including providing
normal supervision.” A.R.S. § 8-531(1). It “includes a judicial finding that
4
GLORIA M. v. DCS, et al.
Decision of the Court
a parent has made only minimal efforts to support and communicate with
the child,” id., and it is measured by a parent’s conduct, rather than their
intent, Michael J., 196 Ariz. at 249, ¶ 18. “Failure to maintain a normal
parental relationship with the child without just cause for a period of six
months constitutes prima facie evidence of abandonment.” A.R.S. § 8-
531(1). When circumstances prevent the parent from exercising traditional
methods of bonding with their child, the parent “must act persistently to
establish the relationship however possible and must vigorously assert
[their] legal rights to the extent necessary.” In re Pima Cty. Juvenile Severance
Action No. S-114487, 179 Ariz. 86, 97 (1994).
¶14 Sufficient evidence supports the superior court’s
abandonment finding. When DCS took the Children into custody, Mother
had not had in-person contact with the Children for approximately four-
and-a-half years. Although Mother argues that Father interfered with her
ability to see the children, citing Calvin B. v. Brittany B., 232 Ariz. 292 (App.
2013) and Jose M. v. Eleanor J., S.M., 234 Ariz. 13 (App. 2014), both cases are
distinguishable. In Calvin B., the court found that the parent seeking contact
with the child “vigorously assert[ed] his legal rights” to see his child,
including requesting visits via phone call and text message, requesting
temporary orders to obtain parenting time, offering to take a drug test and
to have his visitation supervised, and petitioning for contempt and to
enforce parenting time against Mother. 232 Ariz. at 295, 298, ¶¶ 8-11, 27-
29. Similarly, in Jose M., the parent seeking contact with the child, despite
“not play[ing] a significant role in the [child’s] life,” participated in some
visitation and initiated a proceeding prior to the filing of the termination
petition to establish parenting time. 234 Ariz. at 15, 17, ¶¶ 3-5, 18-19.
¶15 Here, Mother had no contact with the Children for
approximately four years before communicating with DCS in February
2017, one month after the filing of the termination petition. She also did not
initiate family court proceedings with respect to establishing visitation with
the Children. Although Mother argues she made numerous attempts to
have contact with the Children while she was out-of-state, emails between
Father and Mother from 2013 to 2015 demonstrate that Father responded to
Mother’s emails with photos, information about the Children, and a
“promise to give [Mother] a chance to be a good coparent.” The emails also
demonstrate that Father provided Mother with information that would
enable her to send the Children financial support and letters, but Mother
declined to do so. Finally, the case manager testified that since DCS opened
the case, Mother had not provided financial support, cards, gifts, or letters
to the Children during the pendency of the case. Calvin B. and Jose M. are
5
GLORIA M. v. DCS, et al.
Decision of the Court
accordingly distinguishable and do not support Mother’s arguments.
Sufficient evidence supports the court’s finding of abandonment.
II. Best Interests
¶16 When considering best interests, the superior 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.” Kent K.,
210 Ariz. at 286, ¶ 35. “Of foremost concern in that regard is ‘protect[ing] a
child’s interest in stability and security.’” Demetrius L. v. Joshlynn F., 239
Ariz. 1, 4, ¶ 15 (2016) (citing Kent K., 210 Ariz. at 286, ¶ 34). That removal
may be in the child’s best interest “may be established by either showing
an affirmative benefit to the child by removal or a detriment to the child by
continuing the relationship.” Jesus M., 203 Ariz. at 282, ¶ 14. “When 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 . . . is in the child’s best interests.”
Demetrius L., 239 Ariz. at 4, ¶ 12. We cannot “assume that [the] child will
benefit from a termination simply because he has been abandoned.” Id. at
¶ 14.
¶17 Sufficient evidence also supports the superior court’s best-
interests finding. The DCS case manager testified that termination was in
the Children’s best interests because adoption would provide the Children
stability, permanency, and a safe environment that was free of substances.
She said the Children had been placed with the paternal aunt for over a
year, the placement was providing the Children with structure and
stability, and both Children had improved behaviorally since living with
the aunt. She also opined that the Children would suffer severe detriment
if they were removed from the placement because of their bond with the
placement and the danger of regression if the Children were removed.
Finally, she stated that if the paternal aunt were unable to adopt, the
Children were adoptable. This evidence is sufficient to support the superior
court’s best-interests finding.
6
GLORIA M. v. DCS, et al.
Decision of the Court
CONCLUSION
¶18 For the foregoing reasons, we affirm the superior court’s
order terminating the parent-child relationship between Mother and the
Children.
AMY M. WOOD • Clerk of the Court
FILED: AA
7