Maria D. v. Dcs ( 2019 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
MARIA D., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, B.M., M.M., J.M., C.M., Appellees.
No. 1 CA-JV 18-0310
FILED 3-19-2019
Appeal from the Superior Court in Maricopa County
No. JD32120
The Honorable Joseph C. Kreamer, Judge
AFFIRMED
COUNSEL
Denise L. Carroll Esq., Scottsdale
By Denise L. Carroll
Counsel for Appellant
Arizona Attorney General’s Office, Phoenix
By Sandra L. Nahigian
Counsel for Appellee, Department of Child Safety
MARIA D. v. DCS, et al.
Decision of the Court
MEMORANDUM DECISION
Judge Jennifer B. Campbell delivered the decision of the Court, in which
Presiding Judge Paul J. McMurdie and Judge Randall M. Howe joined.
C A M P B E L L, Judge:
¶1 Maria D. (“Mother”) appeals the juvenile court’s order
terminating her parental rights to her four children. For the following
reasons, we affirm.
BACKGROUND
¶2 Mother has four children: B.M., born in October 2004, M.M.,
born in July 2006, J.M., born in December 2008, and C.M., born in March
2012.1 In February 2016, police discovered that the youngest child’s father
was dealing methamphetamine, crack, heroin, and marijuana from the
family’s home. The drugs were within reach of the children. The home was
unkempt: dirty clothes, clutter, and rotting food abounded. The children’s
beds were filthy and the walls had holes and graffiti. The case worker
reported she saw cockroaches and a rat inside the home. The Department
of Child Safety (“DCS”) took custody of the children and filed a
dependency petition. In the ensuing investigation, DCS learned that Mother
and the youngest child’s father had a history of committing acts of domestic
violence in front of the children. Mother also submitted to a drug test that
returned positive for cocaine.
¶3 One month later, the court found the children dependent and
set a case plan of family reunification as to Mother. DCS referred Mother
for substance-abuse testing, a psychological evaluation, a parent aide, and
provided her with information on applying for housing assistance. DCS
also required Mother to self-refer to domestic-violence counseling but
agreed they would provide a referral if she was unable to obtain her own
provider.
¶4 Mother consistently tested negative for substances but missed
several tests through November 2017. Her ensuing engagement with drug
testing improved and she continued to test negative. Mother completed a
1 The children’s fathers are not parties to this appeal.
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Decision of the Court
psychological evaluation. The psychologist concluded that Mother’s
prognosis for parenting the children in the future was poor because she
struggled with “neglectful, self-centered, and avoidant behavior.” The
psychologist expressed concern about Mother’s “lack of stable housing and
employment, and a tendency . . . to depend on others for food and shelter.”
She was also concerned that Mother lacked the ability to meet her children’s
special needs and recommended Mother participate in counseling and a
bonding assessment. She recommended Mother continue with substance-
abuse testing and parent-aide services and “demonstrate financial and
residential stability.”
¶5 Mother did not successfully complete her first parent-aide
service because of her infrequent attendance, and when she did attend, she
did not demonstrate appropriate engagement in services. Meanwhile, the
children displayed problematic behaviors from their exposure to domestic
violence, including aggressiveness, fighting, and bullying. Additionally,
one of the middle children began displaying sexualized behaviors and
required specialized help in school.
¶6 Mother continued to struggle to develop protective instincts
and parenting skills. Mother completed a bonding assessment, in which the
therapist found that, although Mother possessed some sort of a bond with
the three boys, she appeared disconnected, especially with her daughter,
B.M. The therapist noted that Mother displayed little affection towards the
children and, at times, “seemed more interested in playing with the toys
than engaging with her children.” The therapist concluded Mother would
have difficulty managing all the children at the same time, which would be
even more difficult given her children with special needs.
¶7 DCS referred Mother for individual and family counseling
and a second parent aide. The parent aide expressed similar concerns:
Mother often failed to redirect the children, had unapproved people at
visits, and inconsistently attended her one-on-one sessions. Mother also
continued to deny that her child had displayed sexualized behaviors,
though she received reports of the issue on numerous occasions. Mother
allowed her boyfriend to buy one of the children a cell phone even though
DCS had not approved him to have contact with the child, illustrating her
inability to protect the child. Ultimately, Mother failed to successfully
complete the second parent-aide service because she did not make the
required behavioral changes. She did not complete family counseling
either. Mother also struggled to find stable employment and appropriate
housing for the children. It was not until about March 2017 that she
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Decision of the Court
obtained arguably appropriate housing for the four children—a shared
two-bedroom apartment.
¶8 In March 2018, the court changed the case plan to severance
and adoption, and DCS moved to terminate Mother’s parental rights under
the fifteen-month out-of-home placement ground. The court granted the
termination motion after holding a contested termination hearing over two
days in July. Mother timely appealed the order.
DISCUSSION
I. Termination Ground
¶9 Mother challenges two of the juvenile court’s findings under
the fifteen-month out-of-home placement ground, arguing the evidence
suggests she was able to remedy the circumstances that brought her
children into care and that DCS failed to prove there is a substantial
likelihood she will not be capable of exercising proper and effective
parental care and control in the near future.
¶10 We will affirm the juvenile court’s termination order “unless
no reasonable evidence supports its factual findings.” Jennifer S. v. Dep’t of
Child Safety, 240 Ariz. 282, 287, ¶ 16 (App. 2016). The juvenile court is the
trier of fact; this court will not reweigh the evidence and we view the
evidence and reasonable inferences drawn from it in the light most
favorable to sustaining the juvenile court’s decision. Jordan C. v. Ariz. Dep’t
of Econ. Sec., 223 Ariz. 86, 93, ¶ 18 (App. 2009). To terminate a parent’s
parental rights, the juvenile court must find at least one statutory ground
under Arizona Revised Statutes (“A.R.S.”) section 8-533 by clear and
convincing evidence, A.R.S. § 8-537(B), and find by a preponderance of
evidence that termination is in a child’s best interests, Kent K. v. Bobby M.,
210 Ariz. 279, 288, ¶ 41 (2005).
¶11 The court may terminate parental rights if (1) DCS 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
fifteen 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) there is a substantial likelihood that the parent
will not be capable of exercising effective parental care and control in the
near future. A.R.S. § 8-533(B)(8), (B)(8)(c). “Circumstances” means “those
circumstances existing at the time of the severance that prevent a parent
from being able to appropriately provide for his or her child[ren].” Marina
P. v. Ariz. Dep’t of Econ. Sec., 214 Ariz. 326, 330 (2007) (citation omitted).
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Decision of the Court
¶12 Mother first challenges the court’s finding that she was unable
to remedy the circumstances that caused the out-of-home placement,
arguing she participated in services to develop necessary skills to care for
her children and ensure their safety. However, Mother did not successfully
complete either parent-aide referral; the closure report of the first referral
noted that Mother “does not understand the concept of safety.” Mother
admitted to engaging in domestic violence with the youngest child’s father
and the children disclosed that they saw him physically and verbally abuse
her. Mother acknowledged she needed to address the effects of domestic
violence through services, but failed to do so. The failure to complete
services illustrates Mother’s failure to internalize the damage caused by
domestic violence, develop protective parenting skills, and appreciate the
need to make necessary behavioral changes.
¶13 The juvenile court had “significant concerns regarding
whether Mother now has or ever will have true insight into the impact
domestic violence has had on her children.” The children repeatedly
expressed that when Mother allows a male into her life, they feel anxious
and fearful because they have experienced and witnessed domestic
violence in the past. Two of the children revealed they were having
nightmares about Mother’s boyfriend hurting her and themselves.
Although the case manager relayed the children’s fears to Mother, she
continued to allow her boyfriend to transport her to and from visits. Mother
was dismissive of her children’s fears: she testified she did not understand
why the children were afraid of him because they “don’t know him.”
Accordingly, the case manager testified that Mother lacked insight into the
necessity of protecting her children.
¶14 Mother was unable to obtain housing that would
accommodate her children and their special needs by the severance
hearing. Although she obtained a two-bedroom apartment, she shared the
space with her adult daughter and her grandchild and conceded that the
apartment was not appropriate for seven people. The court ultimately
found Mother failed to remedy the circumstances that caused the out-of-
home placement and sufficient evidence supports this finding.
¶15 Mother next challenges the court’s finding that there is a
substantial likelihood she will not be capable of exercising proper and
effective parental care and control in the near future. The court found that
though Mother made some improvements—such as accepting
responsibility for exposing her children to domestic violence and drugs—
she “still does not demonstrate the insight necessary to safely parent her
children.” At the time of the severance hearing, Mother had failed to obtain
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Decision of the Court
appropriate housing, refused to acknowledge the impact of domestic
violence on her children and their fears regarding her current boyfriend,
and did not see a need to repair her fractured relationship with her oldest
child—all of which are factors that directly impact her ability to exercise
proper care in the future. The court noted that she had nearly double the
fifteen-month statutory period to address these issues and failed to make
necessary changes to suggest she would be able to exercise proper and
effective parental care in the future.
II. Best Interests
¶16 Lastly, Mother challenges the juvenile court’s best-interest
finding, arguing she has a bond with her children, the visits went well, and
any adoption is uncertain.
¶17 Once the court finds a parent unfit under at least one statutory
ground for termination, “the interests of the parent and child diverge,” and
the court proceeds to balance the unfit parent’s “interest in the care and
custody of his or her child . . . against the independent and often adverse
interests of the child in a safe and stable home life.” Kent K., 210 Ariz. at 286,
¶ 35. “[A] determination of the child’s best interest must include a finding
as to how the child would benefit from a severance or be harmed by the
continuation of the relationship.” Maricopa Cty. Juv. Action No. JS-500274,
167 Ariz. 1, 5 (1990). Courts “must consider the totality of the circumstances
existing at the time of the severance determination, including the child’s
adoptability and the parent’s rehabilitation.” Alma S. v. Dep’t of Child Safety,
245 Ariz. 146, 148, ¶ 1 (2018). Relevant factors in this determination include
whether the current placement is meeting the child’s needs, an adoption
plan is in place, and the child is adoptable. Demetrius L. v. Joshlynn F., 239
Ariz. 1, 3-4, ¶ 12 (2016).
¶18 Mother argues that she shares a bond with the children.
Although a factor to consider, a bond is not dispositive of the best-interests
issue. See Dominique M. v. Dep’t of Child Safety, 240 Ariz. 96, 98-99, ¶ 12 (App.
2016). Here, the court considered Mother’s bond with the children when it
reviewed the bonding assessment, which stated that Mother “loves her
children” but “appears disconnected” with them. Moreover, the record
supports a finding that the children would suffer a detriment if Mother’s
parental rights were not terminated. The children had been in an out-of-
home placement for about twenty-nine months. In that time, Mother had
not shown insight into their special needs or her role as a protective and
nurturing parent. Accordingly, the case manager testified that the children
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Decision of the Court
needed permanency, including a caregiver that met their medical and
behavioral needs and provided a safe and stable housing environment.
¶19 The record also supports the court’s determination that the
children would benefit from severance. The case manager testified that the
children’s current placements met their needs and that they were adoptable
despite their special needs. Additionally, DCS had identified an adoptive
placement for all four children, a family friend of B.M.’s, who knew of the
children’s special needs. The placement lived out of state, and DCS had
initiated an Interstate Compact on the Placement of Children (“ICPC”) to
determine if the home would be appropriate for the children. The case
manager testified that approval of the ICPC was likely to occur in the near
future.
¶20 Citing Titus S. v. Department of Child Safety, 244 Ariz. 365, 370-
71, ¶ 22 (App. 2018), Mother argues that the children’s adoption must be
likely, not just possible to support a best-interests finding and that the
children’s aggressive behaviors and other special needs “could potentially
sabotage” any future placements. Titus S. is distinguishable because the
children in that case consistently withheld their consent to adoption, and
their consent was necessary for adoption. Id. at 370-71, ¶¶ 22-24; see A.R.S.
§ 8-106(A)(3). Here, however, B.M. and M.M., who were older than twelve,
informed the case manager that they would consent to an adoption.
CONCLUSION
¶21 We affirm the juvenile court’s order terminating Mother’s
parental rights.
AMY M. WOOD • Clerk of the Court
FILED: AA
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