Breyana M. v. Dcs, J.V. ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
BREYANA M., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, J.V., Appellees.
No. 1 CA-JV 18-0005
FILED 7-3-2018
Appeal from the Superior Court in Maricopa County
No. JD530108
The Honorable Jennifer E. Green, Judge
AFFIRMED
COUNSEL
Maricopa County Legal Defender’s Office, Phoenix
By Kathryn E. Harris
Counsel for Appellant
Arizona Attorney General’s Office, Mesa
By Ashlee N. Hoffmann
Counsel for Appellee Department of Child Safety
BREYANA M. v. DCS, J.V.
Decision of the Court
MEMORANDUM DECISION
Judge Jon W. Thompson delivered the decision of the Court, in which
Presiding Judge Kenton D. Jones and Judge Michael J. Brown joined.
T H O M P S O N, Judge:
¶1 Breyana M. (mother) appeals from the trial court’s decision
severing her parental rights to her son, J.V. 1 For the following reasons, we
affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 Mother, herself a dependent child, was sixteen years old
when she gave birth to J.V. in December 2015. In July 2016, mother ran
away from the group home where she and J.V. were living and dropped
seven-month old J.V. off with his father and paternal great-grandmother,
promising to return the next day. When mother failed to return for J.V.,
J.V.’s paternal relatives called the Department of Child Safety (DCS)
because they were unable to care for him. DCS placed J.V. with his maternal
great-grandmother and filed a dependency petition. The juvenile court
found that J.V. was a dependent child as to mother in November 2016. DCS
put services into place. In August 2016, mother completed a hair follicle
test that came back negative.
¶3 In mid-September 2016, DCS placed J.V. and mother in the
same foster home. They remained in the foster home until November 2016,
when DCS placed mother and J.V. in a group home together. In December
2016, mother ran away with J.V., despite having been warned that if she
were to do so it would be considered kidnapping because J.V. was in the
physical custody of his placement. DCS found mother and J.V. at a mall in
early December 2016, placed J.V. back with his maternal great-
grandmother, and placed mother back in the group home.
¶4 Later that month, mother again ran away from the group
home. She remained missing until late January 2016 when she contacted
her DCS case manager and was placed in a shelter. Shortly thereafter,
1 The juvenile court terminated J.V.’s father’s parental rights in December
2017; he is not a party in this appeal.
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BREYANA M. v. DCS, J.V.
Decision of the Court
mother ran away from the shelter and remained missing until late April
2017 when she contacted DCS seeking to re-engage in J.V.’s case plan. By
then mother had turned eighteen.
¶5 During the time mother was missing, a psychological
assessment that had been scheduled for her was closed out due to mother’s
lack of contact with DCS. A parent aide referral was also closed out due to
lack of contact. Mother did not see J.V. from December 2016 to May 2017
because of her runaway status.
¶6 In May 2017, DCS caseworkers met with mother to discuss
J.V.’s case plan. DCS asked mother to reengage in mental health services
and take a psychological evaluation, asked her to resume visitation with
J.V., and asked her to maintain stable housing and employment. Because
mother admitted to using marijuana, DCS also asked her to start urinalysis
testing. Mother tested positive for THC in May 2017 and twice tested
positive for opiates in July 2017. 2 She missed eight tests from May 2017 to
October 2017 and was closed out of testing at TERROS due to lack of
contact. After she was closed out of substance abuse testing at TERROS,
DCS asked mother to test at TASC but she failed to do so.
¶7 Mother attended group counseling sessions designed to
address substance abuse and coping skills at TERROS beginning in May
2017. She missed three sessions in May and June 2017 and stopped
attending sessions altogether in August 2017. In October 2017, TERROS
closed mother out due to lack of contact.
¶8 Due to negative behaviors J.V. exhibited during visits with
mother, DCS set up an intake appointment for therapeutic visitation for
mother in June 2017. Mother missed her scheduled appointment and two
more rescheduled appointment. Mother eventually completed an intake
appointment. After completing two therapeutic visitation sessions with
J.V., in late August 2017 mother informed DCS that she would be unable to
attend therapeutic visitation for two weeks due to her new job. Therapeutic
visits resumed in October 2017. Mother’s last therapeutic visit with J.V.
occurred in late November 2017.
¶9 In July 2017, DCS filed a severance motion alleging that J.V.
had been in an out-of-home placement for nine months or longer pursuant
2 Mother had a prescription for opiates which she provided to TERROS
and DCS.
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BREYANA M. v. DCS, J.V.
Decision of the Court
to Arizona Revised Statutes (A.R.S.) § 8-533(B)(8)(a) (2018). 3 Mother
completed a psychological evaluation in August 2017. The evaluator
recommended that mother continue substance abuse treatment until
successfully completing it and that she maintain independent, stable
housing and employment for a minimum of twelve months before having
J.V. returned to her.
¶10 After a contested severance hearing in December 2017, the
juvenile court severed mother’s parental rights to J.V. Mother timely
appealed. We have jurisdiction pursuant to A.R.S. §§ 8-235(A) (2018), 12-
120.21(A)(1) (2018), and 12-2101(A)(1) (2018).
DISCUSSION
¶11 On appeal, mother argues that insufficient evidence
supported the juvenile court’s findings that she failed to engage in services
and that severance was in J.V.’s bests interests, and that the juvenile court
erred by sua sponte terminating her parental rights pursuant to A.R.S. § 8-
533(B)(2). 4
¶12 “We will not disturb the juvenile court’s order severing
parental rights unless its factual findings are clearly erroneous, that is,
unless there is no reasonable evidence to support them.” Audra T. v. Ariz.
Dep’t of Econ. Sec., 194 Ariz. 376, 377, ¶ 2 (App. 1998) (citations omitted). We
view the facts in the light most favorable to sustaining the juvenile court’s
ruling. Lashonda M. v. Ariz. Dep’t of Econ. Sec., 210 Ariz. 77, 82, ¶ 13 (App.
2005). We do not reweigh the evidence, because “[t]he 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) (citation omitted). The juvenile court may terminate a
parent-child relationship if DCS proves by clear and convincing evidence
at least one of the statutory grounds set forth in A.R.S. § 8-533(B). Michael
3 We cite to the current version of any statute unless the statute was
amended after the pertinent events and such amendment would affect the
result of this appeal.
4 The state concedes that the court erred by terminating mother’s parental
rights on the neglect ground because DCS never alleged or argued that
ground for severance. (OB at 5). We need only find that reasonable
evidence supports the nine months’ time in care ground in order to affirm,
however.
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BREYANA M. v. DCS, J.V.
Decision of the Court
J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 249, ¶ 12 (2000). The court must
also find by a preponderance of the evidence that severance is in the child’s
best interests. Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 22 (2005).
A. Nine Months’ Out-of-Home Placement
¶13 Under A.R.S. § 8-533(B)(8)(a), the juvenile court may
terminate a parent-child relationship if DCS “made a diligent effort to
provide appropriate reunification services,” the child was in an out-of-
home placement for nine months or longer, and the parent substantially
neglected or willfully refused to remedy the circumstances that caused the
child to remain out of the home. DCS “is not required to provide every
conceivable service or to ensure that a parent participates in each service it
offers.” Maricopa Cty. Juv. Action No. JS-501904, 180 Ariz. 348, 353 (App.
1994). DCS fulfills its statutory mandate to diligently provide appropriate
reunification services when it “provide[s] [a parent] with the time and
opportunity to participate in programs designed to help [the parent]
become an effective parent.” Id. “To ‘substantially [neglect] or willfully
[refuse] to remedy a circumstance,’ a parent must be aware that [DCS]
alleges that the circumstance exists and is one that, if it continues to exist at
severance, may result in the termination of [the parent’s] parental rights.”
Marina P. v. Ariz. Dep’t of Econ. Sec., 214 Ariz. 326, 332, ¶ 35 (App. 2007)
(citation omitted).
¶14 At the time DCS filed its severance motion in July 2017, J.V.
had been in an out-of-home placement for approximately one year, and by
the time of trial he had been in care for approximately seventeen months.
Throughout the dependency, DCS requested mother to find and maintain
stable, independent housing and employment. Although mother had a job
at the time of trial, she had only been employed by her new employer for
about a month and had held six different jobs, none for a long period,
during the dependency. Additionally, mother was not able to secure her
own residence. She had lived in three different places since turning
eighteen, and was temporarily living with her mother at the time of trial.
¶15 DCS also asked mother to demonstrate her sobriety by
participating in substance abuse testing, and to attend counseling sessions
at TERROS. Mother tested positive for THC in May 2017 and missed eight
tests before TERROS, the agency providing the testing, closed her out for
non-compliance. After she was closed out at TERROS, DCS asked mother
to test at TASC but she did not do so. Nor did mother follow through with
group counseling at TERROS.
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BREYANA M. v. DCS, J.V.
Decision of the Court
¶16 Based upon all of the evidence, the juvenile court concluded
that J.V. had been cared for in an out-of-home placement for more than nine
months and that mother substantially neglected or willfully refused to
remedy the circumstances causing J.V. to remain in care. The evidence was
sufficient to support the severance order under A.R.S. § 8-533(8)(a). While
mother made some efforts to comply with the case plan, those efforts were
“too little, too late.” See Maricopa Cty. Juv. Action No. JS-501568, 177 Ariz.
571, 577 (App. 1994).
B. Best Interests
¶17 Mother argues that reasonable evidence does not support the
juvenile court’s finding that severance was in J.V.’s best interests. (OB at
19). Severance is in a child’s best interests if he or she would benefit from
severance or be harmed by continuation of the parent-child relationship.
Maricopa Cty. Juv. Action No. JS–500274, 167 Ariz. 1, 5 (1990). Relevant
factors include whether the child’s existing placement is meeting the child’s
needs, whether the child is adoptable, and whether an adoptive placement
is immediately available. Raymond F. v. Ariz. Dep’t of Econ. Sec., 224 Ariz.
373, 379, ¶ 30 (App. 2010).
¶18 The evidence established that J.V. is adoptable, that his
relative placement was willing to adopt him, and that he was in need of
stability. Mother testified that she could not parent J.V. on her own.
Although the record is clear that mother has a bond with J.V., the existence
and effect of a bonded relationship between a biological parent and a child,
although a factor to consider, is not dispositive in addressing best interests.
Bennigno R. v. Ariz. Dep't of Econ. Sec., 233 Ariz. 345, 351, ¶ 30 (App. 2013).
Even in the face of such a bond, the juvenile court is required to evaluate
the totality of circumstances and determine whether severance is in the best
interests of the child. Id. at 351–52, ¶¶ 30-31. Here, the court did consider
the totality of the circumstances and reasonable evidence in the record
supports the court's best interests finding.
¶19 Because we affirm the court’s order granting severance on the
basis of nine months in an out-of-home placement, we need not address
mother’s argument concerning A.R.S. § 8-533(B)(2). See footnote 4, supraparagraph 11.
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BREYANA M. v. DCS, J.V.
Decision of the Court
CONCLUSION
¶20 For the foregoing reasons, the juvenile court’s severance order
is affirmed.
AMY M. WOOD • Clerk of the Court
FILED: AA
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