Michelle H. v. Dcs, J.S. ( 2016 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
MICHELLE H., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, J.S., /Appellees.
No. 1 CA-JV 15-0417
FILED 6-16-2016
Appeal from the Superior Court in Maricopa County
No. JD511179
The Honorable Karen L. O’Connor, Judge
AFFIRMED
COUNSEL
The Stavris Law Office, PLLC, Scottsdale
By Christopher Stavris
Counsel for Appellant
Arizona Attorney General’s Office, Phoenix
By Daniel R. Huff
Counsel for Appellee Department of Child Safety
MICHELLE H. v. DCS, J.S.
Decision of the Court
MEMORANDUM DECISION
Chief Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge Maurice Portley joined.
B R O W N, Chief Judge:
¶1 Michelle H. (“Mother”) appeals the juvenile court’s order
terminating her parental rights to her daughter, J.S., challenging the
sufficiency of the evidence. Because reasonable evidence supports the
court’s order, we affirm.
BACKGROUND
¶2 Mother and Davion S. (“Father”) are the biological parents of
the child, who was born in 2013. Father’s parental rights have also been
terminated; however, he is not a party to this appeal.
¶3 In April 2013, the Department of Child Safety (“DCS”)
received a report that the child (three months old at the time) and her two-
year-old cousin M.H, were living with Mother and Father and the child’s
maternal grandparents, in a “filthy” motel room where family members
abused drugs and engaged in domestic violence. As part of its subsequent
investigation, DCS required Mother and the grandparents to submit to
urinalysis testing. After the grandparents tested positive for
methamphetamine, DCS informed Mother that she needed to find a
different place to live with the child (apart from the maternal
grandparents), but Mother did not do so.
¶4 In June 2013, the child sustained a skull fracture, requiring
emergency treatment, that neither parent could explain. DCS took
temporary custody of the child, but several days later returned the child to
Mother under a safety plan that required Mother to secure safe housing that
DCS later extended. Mother, however, failed to move away from the
harmful environment, contending that she did not believe her parents were
using methamphetamine.
¶5 In July 2013, DCS took the child into care and informed
Mother that to facilitate reunification she would be expected to (1)
demonstrate an understanding of the harm that substance abusers cause
and the impact they can have on the child, (2) show she could choose
2
MICHELLE H. v. DCS, J.S.
Decision of the Court
appropriate caregivers and maintain a safe and substance-free home, and
(3) financially care for herself and provide the child with basic necessities.
¶6 DCS filed a dependency petition, alleging that (1) Mother had
neglected the child by failing to provide a safe and stable home
environment and (2) Mother failed to protect her child and, as a result, the
child suffered an unexplained skull fracture. In December 2013, the child
was found dependent as to Mother; the court adopted a case plan of family
reunification with a concurrent plan of severance and adoption, and the
court ordered DCS to provide, and Mother to participate in, the following
services: parent aide, parenting classes, a psychological consult and
evaluation, and visitation.
¶7 In October 2013, Mother participated in a psychological
evaluation with Dr. Jessica Leclerc, who concluded that although Mother
was not suffering from mental illness or mental retardation, she would
benefit from individual therapy to “address the development of coping
skills, a more secure personality, and learn how lack of coping skills and an
anxious/timid personality could negatively impact her relationship with
her daughter and others.” Dr. Leclerc also found that Mother would “need
to develop insight into how her parents are contributing to an unsafe
environment for [the child]” and “she displays very little insight into how
her decisions have negatively impacted [the child].”
¶8 Mother’s progress was limited. By July 2014, at the request of
DCS, the court changed the case plan to severance and adoption over the
parents’ objection. DCS moved to terminate based on six and nine months’
time-in-care under Arizona Revised Statutes (“A.R.S.”) sections 8-
533(B)(8)(a) & (b).
¶9 In March 2015, after Mother showed some progress as a result
of services, the juvenile court granted DCS’s request to withdraw the
termination motion. Mother’s progress, however, proved to be temporary,
and in August 2015, DCS filed an amended termination motion, which
added fifteen months’ time-in-care as a third ground for severance. See
A.R.S. § 8-533(B)(8)(c).
¶10 At the November 2015 termination adjudication, DCS case
manager Victoria Palko testified that the child had been in an out-of-home
placement for two years, and acknowledged that Mother participated in
some of the services offered, including completion of a parenting course.
Palko also noted that Mother’s supervised visits with her child went well
and she behaved appropriately. She commented that Mother was a “loving
3
MICHELLE H. v. DCS, J.S.
Decision of the Court
parent to her daughter” during her visits. However, Palko explained that
she continued to have the same concerns that existed when the child first
came into DCS’s custody:
[Mother] had the benefit of having therapy for many months
. . . and yet she still could not understand, [as was true] at the
beginning of the case, why it was so detrimental to her child’s
[well-being] that she not live with a person that’s abusing
meth, such as her parents, and yet in July, there was another
case, that’s her sister’s case, where the police department
found [M.H.] to be residing in the care of [Mother] -- with the
grandparents, in the home of [Mother], where [M.H.] was
severely neglected to the point where she was in constant pain
from tooth decay, . . . her tooth nerve being exposed. She had
to go in for oral surgery to remedy that. In addition to that,
[M.H.] has disclosed that she was a victim of sexual
molestation while in the care of these . . . grandparents, and
in the home of [Mother].
¶11 Palko also explained that Mother’s employment the last two
years had been sporadic and she missed many therapy appointments. Nor
did Mother make the behavioral changes the therapist was seeking. Palko
explained further that in June 2015, DCS learned that Mother’s parents had
moved in with her again, and she and her parents were unlawfully
harboring M.H., a ward of the court. Palko testified that Mother’s level of
participation in services since June 2015 was “very disappointing.”
¶12 The juvenile court granted the motion for termination on each
of the three alleged grounds, noting Mother was “entwined in a
dysfunctional family environment that includes drugs and violence.” The
court acknowledged that Mother had tested negative for substances, but
had not demonstrated she can provide financially for her child, maintain
safe and stable housing for her child, exhibit the parenting skills necessary
to properly parent her child, or establish that she has an understanding of
the risks maternal grandparents pose to her child. The court determined
that (1) the child had been in an out-of-home placement for fifteen months
or longer; (2) DCS had made diligent efforts to provide appropriate
reunification services; (3) Mother had been unable to remedy the
circumstances that caused the child to be in out-of-home placement; and (4)
there was a substantial likelihood Mother would not be capable of proper
and effective parental care and control in the near future. The juvenile court
also determined that terminating the parent-child relationship would be in
the child’s interests. This timely appeal followed.
4
MICHELLE H. v. DCS, J.S.
Decision of the Court
DISCUSSION
¶13 To grant a motion to terminate parental rights, the juvenile
court must find at least one statutory ground is supported by clear and
convincing evidence. Linda V. v. Ariz. Dep’t of Econ. Sec., 211 Ariz. 76, 78,
¶ 6 (App. 2005). Additionally, the juvenile court must find by a
preponderance of the evidence that the termination is in the best interests
of the child.1 Mario G. v. Ariz. Dep’t of Econ. Sec., 227 Ariz. 282, 285, ¶ 11
(App. 2011); A.R.S. § 8-533(B). As the trier of fact, the juvenile court “is in
the best position to weigh the evidence, observe the parties, judge the
credibility of the witnesses, and resolve disputed facts.” Ariz. Dep’t of Econ.
Sec. v. Oscar O., 209 Ariz. 332, 334, ¶ 4 (App. 2004). Accordingly, we will
accept the juvenile court’s findings of fact “unless no reasonable evidence
supports those findings.” Jennifer B. v. Ariz. Dep’t of Econ. Sec., 189 Ariz. 553,
555 (App. 1997).
¶14 To prevail on its motion to terminate Mother’s parental rights
under A.R.S. § 8-533(B)(8)(c), DCS was required to show that the child has
been in an out-of-home placement for a cumulative period of at least fifteen
months and that Mother was “unable to remedy the circumstances that
cause[d] the child to be in an out-of-home placement and there is a
substantial likelihood that the parent will not be capable of exercising
proper and effective parental control in the near future.” The
“circumstances” causing the child’s out-of-home placement are “those
circumstances existing at the time of the severance” rather than at the time
of the initial dependency petition. Marina P. v. Ariz. Dep’t of Econ. Sec., 214
Ariz. 326, 330, ¶ 22 (App. 2007). DCS is also required to prove it made a
“diligent effort to provide appropriate reunification services” to justify
termination of the parent-child relationship. Shawanee S. v. Ariz. Dep’t of
Econ. Sec., 234 Ariz. 174, 177, ¶ 12 (App. 2014).
¶15 Mother does not challenge the juvenile court’s findings that
the child has been in out-of-home placement for longer than fifteen months
or that DCS made diligent reunification efforts. Rather, Mother argues that
by finding employment, stable housing, maintaining negative urinalysis
testing, completing a parenting class, demonstrating appropriate parenting
during her parent aid sessions, and seeking additional referrals from her
case manager for therapy sessions, DCS failed to provide sufficient
1 Mother does not contest the juvenile court’s finding that termination
of her parental rights was in the child’s best interests.
5
MICHELLE H. v. DCS, J.S.
Decision of the Court
evidence to support termination based on the fifteen-month time-in-care
ground.
¶16 Despite Mother’s assertions that she recently obtained
employment at a telemarketing company and was attempting to secure
low-income housing, documentation relating to such efforts was not
presented to the court. As to housing, Palko stated that to the best of her
knowledge, Mother continued to reside with Father, which was a
significant concern for DCS given Father’s lack of participation and
progress in this case. Further, recent domestic violence between Mother
and Father raised new concerns about their relationship and Mother’s
ability to successfully parent her child in a safe, healthy, and stable
environment.
¶17 Regarding individual therapy, Mother attended many
sessions. However, DCS’s most recent progress report states that Mother
was assigned a therapist by DCS on March 6, 2014 and missed four
appointments in 2014 and six appointments in 2015. More importantly,
Palko testified that the last therapist could not close Mother out successfully
because she did not feel that Mother had made the necessary behavioral
changes.
¶18 Mother contends that her low reading level contributed to her
inability to complete her parent aid assignments and caused her to close out
unsuccessfully in her parent aid and therapy services. Mother, however,
testified that she was able to understand the things that people have asked
her to read, including the information contained in the court forms.
¶19 Additionally, even though Mother demonstrated her
willingness and ability to engage in reunification services, Mother’s poor
choices erected more barriers to reunification. DCS presented evidence that
Mother and her parents admitted to police that they were knowingly
harboring M.H., Mother’s niece, that had been reported as missing by DCS
in 2014. Mother told police that M.H. had “rotting teeth that are really bad
and that she often took Orajel for the pain.” Palko confirmed that M.H. was
found to be severely neglected and in constant pain from tooth decay with
“her tooth nerve being exposed.” Palko testified further that Mother
continues to reside with her parents, notwithstanding that DCS had
repeatedly informed Mother of the need to have her own housing, without
the negative influence of her parents. Further, Palko stated that after
twenty-nine months of DCS offering services to her, including therapy for
several months, Mother was unable to understand why it was detrimental
for her child to live with her parents, who were abusing illegal substances.
6
MICHELLE H. v. DCS, J.S.
Decision of the Court
Palko also testified that DCS had concerns about Mother’s inability to
protect the child from physical abuse, neglect, and sexual abuse, as well as
Mother’s inability to provide financially for the child.
¶20 Mother made significant efforts to comply with the
reunification goals DCS established in this case and completed some of the
services provided. However, despite these efforts, the record reflects that
Mother failed to remedy the circumstances that led to removal of the child
from her care. Specifically, the juvenile court found that Mother had not
demonstrated “the behavioral changes needed to provide the child with a
safe, healthy, and stable environment.” Although Mother presented
evidence to the contrary, the juvenile court’s duty is to resolve conflicts in
the evidence, and we do “not to re-weigh the evidence on review.” See Jesus
M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 282, ¶ 12 (App. 2002). Sufficient
evidence supports the juvenile court’s finding that termination of Mother’s
parental rights was proper because she would not be able to exercise proper
and effective parental control in the near future. Accordingly, the court did
not err in granting DCS’s amended motion for termination based on fifteen
months’ out-of-home placement.2
CONCLUSION
¶21 We affirm the juvenile court’s order terminating Mother’s
parental rights to the child.
:AA
2 Because we affirm the juvenile court’s order based on the fifteen-
month ground, we need not address the other grounds asserted in the
motion for termination.
7