Raquel C. 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
RAQUEL C., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, A.C., J.A., Appellees.
No. 1 CA-JV 18-0168
FILED 12-6-2018
Appeal from the Superior Court in Maricopa County
No. JD529380
The Honorable Arthur T. Anderson, Judge
AFFIRMED
COUNSEL
Vierling Law Offices, Phoenix
By Thomas A. Vierling
Counsel for Appellant
Arizona Attorney General’s Office, Tucson
By Michelle R. Nimmo
Counsel for Appellee Department of Child Safety
RAQUEL C. v. DCS, et al.
Decision of the Court
MEMORANDUM DECISION
Chief Judge Samuel A. Thumma delivered the decision of the Court, in
which Presiding Judge James P. Beene and Judge Michael J. Brown joined.
T H U M M A, Chief Judge:
¶1 Raquel C. (Mother) challenges the superior court’s orders (1)
terminating her parental rights to her biological child J.A. and (2) granting
a guardianship for her biological child A.C. Mother argues the court erred
in finding that such action was in the best interests of the children. Because
Mother has shown no reversible error, the orders are affirmed.
FACTS AND PROCEDURAL HISTORY
¶2 In October 2015, the Department of Child Safety (DCS) took
into care A.C. (born in 2002) and J.A. (born in 2010). DCS’ dependency
petition alleged Mother1 had neglected the children and was unable to
parent based on substance abuse, including methamphetamine use. The
children were found dependent as to Mother in November 2015 and the
court adopted a family reunification case plan. Although DCS provided
Mother various services, her participation was sporadic, and she had no
contact with the children for extended periods of time. As a result, in
September 2016, the superior court granted DCS’ request to change the case
plan to severance and adoption (for J.A.) and guardianship (for A.C.). As
amended, DCS’ motion to terminate (for J.A.) alleged abandonment,
substance abuse, and nine- and fifteen-months time-in-care. DCS’ motion
for appointment of permanent guardianship (for A.C.) sought placement
with her paternal great aunt. Both motions alleged such relief was in the
best interests of the children.
¶3 The superior court held a two-day adjudication on both
motions in February 2018, where DCS called as its sole witness a case
specialist. By the time of trial, both children had been in an out-of-home
placement pursuant to court order for more than fifteen months. Mother
had no authorized contact with the children between October 2015 and
April 2017, although she had some contact in March 2016 “in violation of
1 The father of A.C. died before the filing of the dependency. The father of
J.A. had his parental rights terminated and is not a party to this appeal.
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RAQUEL C. v. DCS, et al.
Decision of the Court
the safety plan.” During this time, Mother was not in contact with DCS and
she apparently “was also incarcerated during part of that time.” When
Mother did have contact with DCS, she failed to consistently participate in
services provided to her and tested positive for methamphetamine on
various occasions.
¶4 While in care, both children have been placed with A.C.’s
paternal great aunt. The case specialist testified the placement is a fit and
proper person to serve as guardian, is willing to serve as guardian for A.C.
and is willing to adopt J.A. Trial evidence indicated termination of Mother’s
parental rights to J.A. was in the child’s best interests because it would
provide “a strictly permanent option for him to be in a safe and stable home
until at least the age of 18.” A.C. was “okay with being in a guardianship
with the prospective guardian,” if she could not return to Mother. Trial
evidence indicated a guardianship was in A.C.’s best interests because she
“needs permanency, a stable family environment, someone who is able to
parent her safely, and be there . . . for all of her needs,” and the potential
guardian “has demonstrated the ability and willingness to do that,” and
Mother has not.
¶5 DCS did not call Mother as a witness and, after DCS rested,
Mother elected not to testify. Mother called a medical review officer, who
testified about Mother’s drug testing history from April 2017 through
January 2018. Mother also called a DCS case aide, who observed Mother’s
visits with the children starting in November 2017. The children’s
grandfather also testified and expressed concerns about J.A.’s placement.
¶6 After closing arguments and taking the matter under
advisement, the superior court granted DCS’s motions for termination
(abandonment and fifteen-months time-in-care only) and guardianship,
and found doing so was in the best interests of the children. This court has
jurisdiction over Mother’s timely appeal pursuant to Article 6, Section 9, of
the Arizona Constitution and Arizona Revised Statutes (A.R.S.) sections 8-
235(A), 12-2101(A) and 12-120.21(A) and Ariz. R.P. Juv. Ct. 103-04 (2018).2
2Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.
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RAQUEL C. v. DCS, et al.
Decision of the Court
DISCUSSION
¶7 As applicable here, to terminate parental rights, a court must
find by clear and convincing evidence that at least one statutory ground
articulated in A.R.S. §8-533(B) has been proven and must find by a
preponderance of the evidence that termination is in the best interests of the
child. See Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 249 ¶ 12 (2000);
Kent K. v. Bobby M., 210 Ariz. 279, 284 ¶ 22 (2005). Also, as applicable here,
to grant a Title 8 guardianship, a court must find by clear and convincing
evidence specified criteria and that the guardianship is in the child’s best
interest. A.R.S. §§ 8-871(A), 8-872(G). 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 as long as it is supported by reasonable
evidence.” Ariz. Dep’t of Econ. Sec. v. Oscar O., 209 Ariz. 332, 334 ¶ 4 (2004).
¶8 Mother does not challenge the superior court’s findings
regarding DCS proving statutory grounds for termination (for J.A.) or that
DCS proved the specified criteria alleged for a guardianship (for A.C.), and
the trial record fully supports those findings. Instead, Mother challenges
the findings that granting severance and a guardianship was in the best
interests of the children.
¶9 When a statutory ground for termination has been proven,
“the focus shifts to the interests of the child as distinct from those of the
parent,” Kent K., 210 Ariz. at 285 ¶ 31, and “’[t]he child’s interest in stability
and security’ must be the court’s primary concern.” Alma S. v. Dep’t of Child
Safety, 245 Ariz. 146, 150 ¶ 12 (2018) (citation omitted).3 “To establish that
severance of a parent’s rights would be in a child’s best interests, ‘the court
must find either that the child will benefit from termination of the
relationship or that the child would be harmed by continuation of the
parental relationship.’” Mario G. v. Ariz. Dep’t of Econ. Sec., 227 Ariz. 282,
288 ¶ 26 (App. 2011) (citation omitted). Although a guardianship involves
somewhat different inquiries, a similar best interests analysis applies. Cf.
Jennifer B. v. Ariz. Dep’t of Econ Sec., 189 Ariz. 553, 557 (App. 1997)
(analogizing best interests requirement in revocation of guardianship to
standard used in severance); accord Alexander M. v. Abrams, 235 Ariz. 104,
3Mother’s opening brief on appeal relied heavily on Alma S. v. Dep’t of Child
Safety, 244 Ariz. 152 (App. 2017), which was later vacated by the Arizona
Supreme Court. Alma S., 245 Ariz. at 152 ¶ 23. This court allowed
supplemental briefing on appeal addressing the impact of the Arizona
Supreme Court’s opinion in Alma S., which the court has considered.
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RAQUEL C. v. DCS, et al.
Decision of the Court
107 ¶ 16 (2014) (“Although the standard is phrased differently in various
statutes and rules, the court is required, at each step, to determine that its
orders serve the child’s best interests.”).
¶10 Mother argues the superior court erred in finding best
interests because she has a positive bond with the children, they love each
other and she “just needs more time to turn her life around and regain
custody of the children.” The children, however, have been in care since
October 2015. Indeed, by the time of the superior court’s May 2018 ruling,
the children had been in care for more than two and a half years. Mother
has not shown that the court abused its discretion in rejecting any claim that
the orders were not in the best interests of the children because she needed
more time.
¶11 Noting that Mother had recently engaged and completed
some services, the superior court added that such conduct was “too late to
demonstrate a drug free lifestyle,” further finding that she “has returned to
a relationship that has a domestic violence and drug use past” and she
could not provide a stable home for the children. These findings, which are
fully supported by the trial evidence, show denying the motions would
have resulted in significant uncertainty and risk to the children, with
resulting harm. Mother has not shown that, in granting the motions to
prevent that harm, the court abused its discretion. See Mario G., 227 Ariz. at
288 ¶ 26.
¶12 The superior court also focused on the benefit to the children
in granting the motions. The court found the children were in a safe and
stable familial placement, which was meeting their needs, and were placed
together. Again, these findings are fully supported by the trial record and
provide a proper basis for the best interests finding. See Mario G., 227 Ariz.
at 288 ¶ 26. Finally, although Mother appears to argue the evidence
regarding best interests should have been weighed differently, this court
does not reweigh the evidence on appeal. See Jesus M. v. Ariz. Dep’t of Econ.
Sec., 203 Ariz. 278, 282 ¶ 12 (App. 2002) (citing cases).
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RAQUEL C. v. DCS, et al.
Decision of the Court
CONCLUSION
¶13 Because Mother has shown no error, the superior court’s
orders terminating her parental rights to J.A. and granting a Title 8
guardianship for A.C. are affirmed.
AMY M. WOOD • Clerk of the Court
FILED: AA
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