Martina M. v. Dcs, A.M. ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
MARTINA M., Appellant.
v.
DEPARTMENT OF CHILD SAFETY, A.M., Appellees.
No. 1 CA-JV 18-0146
FILED 10-2-2018
Appeal from the Superior Court in Maricopa County
No. JD538024
The Honorable David J. Palmer, Judge
AFFIRMED
COUNSEL
Denise L. Carroll, Scottsdale
Counsel for Appellant
Arizona Attorney General’s Office, Phoenix
By Jennifer L. Holder
Counsel for Appellee Department of Child Safety
MARTINA M. v. DCS, A.M.
Decision of the Court
MEMORANDUM DECISION
Judge Jon W. Thompson delivered the decision of the Court, in which
Presiding Judge Jennifer M. Perkins and Judge Lawrence F. Winthrop
joined.
T H O M P S O N, Judge:
¶1 Martina M. (mother) appeals from the trial court’s order
severing her parental rights to her son A.M. For the following reasons, we
affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 A.M. was born in November 2005. In 2013, DCS received a
report that A.M. and his younger siblings J.R. and P.M. 1 were being exposed
to their father’s methamphetamine use at home. DCS did not remove the
children but filed a petition for an in-home dependency and put services
into place. DCS established a safety plan for the children, including the
condition that mother not allow father and her uncle in the home.2
Subsequently, in early 2014, DCS visited mother’s home and found the
uncle there. DCS removed the children from mother’s home, and A.M. was
placed in a group home. The juvenile court found the children dependent
in 2014 and set reunification as the case plan.
¶3 Mother’s participation in services and visitation was
inconsistent over the course of the dependency. In December 2015, DCS
filed a motion to terminate mother and father’s parental rights to the
children. 3 After a contested severance hearing, the trial court denied the
severance motion as to mother in September 2016, finding that DCS had
failed to make sufficient reasonable efforts to preserve the family. The court
1 The juvenile court additionally severed mother’s parental rights to J.R.
and P.M. but mother’s appeal only concerns A.M. In July 2018 we granted
the state’s motion to dismiss J.R. and P.M. from this appeal.
2 The uncle allegedly sexually abused P.M.
3 The juvenile court severed father’s parental rights in 2016; he is not a
party to this appeal.
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MARTINA M. v. DCS, A.M.
Decision of the Court
ordered DCS to provide mother with services specifically targeted to
address her mental health issues. Over the next year, mother was provided
with supervised visitation, but she did not attend consistently. She was
referred to Ph.D. level counseling in November 2016, and despite having
been provided with transportation, failed to attend four out of eight
sessions and was closed out. DCS referred mother for neuropsychological
and best interests evaluations with Dr. Robert Mastikian, which were
completed in March 2017. Dr. Mastikian diagnosed mother with a severe
neurodevelopmental disorder and cognitive deficits, which together, he
believed would place any child in mother’s unsupervised care at risk of
abuse or neglect. DCS referred mother to the Family Involvement Center
in November 2016 for help with housing, parenting skills, and other
services, but mother made “not much, if any, progress . . . due to . . . always
appearing in ‘crisis mode.’”
¶4 In September 2017, DCS filed a second motion to terminate
mother’s parental rights. After a contested severance hearing, the trial court
severed mother’s parental rights to the children pursuant to Arizona
Revised Statutes (A.R.S.) §§ 8-533(B)(3) (2018) (mental illness or mental
deficiency) and -533(B)(8)(c) (fifteen months’ time in care). Mother timely
appealed. (I. 124). 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
¶5 Mother raises one issue on appeal: whether the trial court
erred when it found that severance of her parental rights was in A.M.’s best
interests. She argues that the court should have denied the severance as to
A.M. and changed A.M.’s case plan from severance and adoption to APPLA
(alternative permanent placement living arrangement). She does not
contest the trial court’s findings that she was unable to discharge her
parental responsibilities due to mental illness or deficiency, that reasonable
grounds existed to believe the condition would continue for a prolonged,
indeterminate period, or that A.M. had been in an out-of-home placement
for more than fifteen months and mother substantially neglected or
willfully refused to remedy the circumstances causing him to be in the out-
of-home placement.
¶6 “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
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MARTINA M. v. DCS, A.M.
Decision of the Court
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
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).
¶7 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. Juvenile 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).
¶8 Mother argues that severance was not in A.M.’s best interests
because he has a close bond with her and with his siblings, because there
was no proof DCS would be able to find a permanent placement for A.M.
who had been difficult to place, and that DCS failed to establish that A.M.
would benefit from a severance or be harmed by a continued relationship
with her. The evidence established that A.M. is adoptable and that his case
manager was working with an adoptions recruiter who was diligently
working to find a permanent placement for A.M. The case manager
testified that if A.M.’s case plan was changed to something other than
severance and adoption (such as Long-Term Foster Care or APPLA), DCS
would not continue to seek an adoptive placement for A.M. Although the
record is clear that mother has a bond with A.M., 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. See
Bennigno R. v. Ariz. Dep't of Econ. Sec., 233 Ariz. 345, 351, ¶ 30 (App. 2013).
Moreover, Dr. Mastikian’s opinion that a child would be at risk of harm in
mother’s unsupervised care supports the trial court’s conclusion that
maintaining the parent-child relationship would be detrimental to A.M.,
who the trial court believed was “in dire need of permanency” after having
been in care for over four years. Reasonable evidence in the record supports
the court’s best interests finding.
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MARTINA M. v. DCS, A.M.
Decision of the Court
CONCLUSION
¶9 For the foregoing reasons, we affirm the trial court’s order
severing mother’s parental rights to A.M.
AMY M. WOOD • Clerk of the Court
FILED: AA
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