Stacy R. v. Dcs ( 2021 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
STACY R.,
Appellant,
v.
DEPARTMENT OF CHILD SAFETY, L.M., I.M., D.M.,
Appellees.
No. 1 CA-JV 21-0179
FILED 10-21-2021
Appeal from the Superior Court in Maricopa County
No. JD22115
The Honorable David O. Cunanan, Judge
AFFIRMED
COUNSEL
David W. Bell Attorney at Law, Mesa
By David W. Bell
Counsel for Appellant
Arizona Attorney General’s Office, Tucson
By Jennifer R. Blum
Counsel for Appellee, Department of Child Safety
STACY R. v. DCS, et al.
Decision of the Court
MEMORANDUM DECISION
Presiding Judge D. Steven Williams delivered the decision of the Court, in
which Judge David B. Gass and Judge James B. Morse Jr. joined.
W I L L I A M S, Judge:
¶1 Stacy R. (“Mother”) appeals the superior court’s order
terminating her parental rights to her children. For the following reasons,
we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 Mother and Stephan M. (“Father”)1 have three children, L.M.,
I.M., and D.M., all born between 2010 and 2013.
¶3 In 2012, the Arizona Department of Child Safety (“DCS”)
initiated a dependency action based upon reports of domestic violence,
Mother’s substance abuse, and untreated mental health, as well as her
failure to supervise her infant and toddler. To her credit, Mother engaged
in a variety of services, and the superior court dismissed the dependency
the following year at DCS’s request.
¶4 In December 2018, DCS again petitioned for a dependency
after new reports surfaced that Mother used inappropriate discipline
techniques, such as making the children hold rocks over their heads,
locking a child (without clothes) outside, abusing prescription pain
medication, having untreated mental-health issues, having a child shoplift
alcohol for her, and having inappropriate sleeping arrangements for the
children. DCS removed the children and placed them with their paternal
grandmother (“Grandmother”).
¶5 Once removed, Grandmother sought medical treatment for
two of the children including treatment for strep throat, an ear infection,
and updated immunizations for one child, and treatment for a yeast
infection for another. The children described domestic violence between
Mother and her boyfriend and corroborated that Mother made them hold
things over their heads, left D.M. unclothed outside, and that Mother’s
1Father’s parental rights were also terminated, but he is not a party to this
appeal.
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STACY R. v. DCS, et al.
Decision of the Court
boyfriend “hit them with a belt.” L.M. also reported Mother had her hide a
bottle under her shirt as they walked out of a store - but they were caught,
put the bottle down, and ran.
¶6 Mother ultimately did not contest the dependency. In March
2019, the superior court set a case plan of family reunification and ordered
DCS to provide Mother a variety of services, including a psychological
evaluation, domestic violence counseling, substance abuse testing and
treatment, a parent-aide, and transportation as needed and requested.
Mother engaged in some services, with varied success.
¶7 In January 2021, DCS moved to terminate Mother’s parental
rights based upon the children’s placement out-of-home for more than
fifteen months and Mother’s failure to remedy the circumstances that
caused the children to be placed out-of-home. DCS alleged a substantial
likelihood existed Mother would be incapable of exercising proper and
effective parental care and control of the children in the near future and that
termination of Mother’s parental rights was in the children’s best interests.
¶8 At the termination trial in April, the DCS case worker testified
DCS provided Mother with all services it was ordered to provide. The case
worker testified that, though Mother attended most of her visitations with
the children, she was constantly on her phone, left early, and either did not
bring enough food or would force the children to overeat, at times making
them sick. The case worker also testified that on two occasions during
visitation, once at a DCS office and once at the mall, Mother asked the
children to steal items.
¶9 The case worker further testified Mother only completed
seventy-five percent of her substance abuse tests, and there were problems
with the collections in most of those tests. Mother also tested positive for
alcohol at least four times. Regarding the parent-aide services, two
parent-aides closed out Mother unsuccessfully. With the first parent-aide,
Mother only completed nine out of the twenty-four scheduled skill sessions
and did not show any enhancement of her diminished parental capacities.
Later, however, with the second parent-aide, Mother enhanced two of five
diminished capacities, but at the closure of services Mother “was still
refusing to claim responsibility for anything.” Last, the case worker testified
that Mother failed to provide DCS with a current address and refused to
take medication for her mental health diagnoses.
¶10 Mother countered that the issues with the first parent-aide
were due to the aide having a “personal vendetta” against her. Mother
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STACY R. v. DCS, et al.
Decision of the Court
testified she had been on medication for the past month-and-a-half, but
provided no documentation to support her testimony, and said the reason
for her positive alcohol tests was that she took Nyquil. Regarding housing,
Mother conceded she had moved four times over the last year but said she
had secured housing for the past three months. Mother denied failing to
update DCS each time she moved. Mother also denied drinking alcohol,
being in a domestic-violence relationship with anyone except Father (years
earlier), being in a relationship with anyone over the past three years, and
asking her children to steal during the visits.
¶11 Using a DCS prepared order, the superior court found Mother
was “not a credible witness.” The court also found, in part, that Mother had
“diminished parental capacities” at the close of both parent-aide services;
had failed to make “the behavioral changes to reunify with her children”;
had “struggled to consistently participate in urinalysis testing”; and had no
“stable housing for the children to return to.” The court terminated
Mother’s parental rights based upon the fifteen months in an out-of-home
placement ground, under A.R.S. § 8-533(B)(8)(c), and in the children’s best
interests.
¶12 Mother timely appealed. We have jurisdiction under Article
6, Section 9, of the Arizona Constitution, A.R.S. §§ 8-235(A), 12-120.21(A)(1),
-2101(A)(1), and Arizona Rule of Procedure for the Juvenile Court 103(A).
DISCUSSION
¶13 Parental rights are fundamental, but not absolute. Dominique
M. v. Dep’t of Child Safety, 240 Ariz. 96, 97, ¶ 7 (App. 2016). A court may
terminate a parent’s right in the care, custody, and management of their
children “if it finds clear and convincing evidence of one of the statutory
grounds for severance, and also finds by a preponderance of the evidence
that severance is in the best interests of the children.” Id. at 98, ¶ 7.
¶14 We review a termination order for abuse of discretion,
accepting the court’s factual findings unless clearly erroneous, Mary Lou C.
v. Ariz. Dep’t of Econ. Sec., 207 Ariz. 43, 47, ¶ 8 (App. 2004), and view the
evidence in the light most favorable to sustaining the court’s ruling, Manuel
M. v. Ariz. Dep’t of Econ. Sec., 218 Ariz. 205, 207, ¶ 2 (App. 2008). 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,” we
will affirm an order terminating parental rights if reasonable evidence
supports the order. Jordan C. v. Ariz. Dep’t of Econ. Sec., 223 Ariz. 86, 93, ¶ 18
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STACY R. v. DCS, et al.
Decision of the Court
(App. 2009) (quoting Ariz. Dep’t of Econ. Sec. v. Oscar O., 209 Ariz. 332, 334,
¶ 4 (App. 2004)).
¶15 Fifteen months in an out-of-home placement is one statutory
ground authorizing termination. A.R.S. § 8-533(B)(8)(c). The superior court
may terminate a parent-child relationship under that ground if:
The child has been in an out-of-home placement for a
cumulative total period of fifteen months or longer pursuant
to court order or voluntary placement pursuant to [A.R.S.]
§ 8-806, the parent has been unable to remedy the
circumstances that cause 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
care and control in the near future.
¶16 Mother only challenges the court’s finding that a substantial
likelihood exists she will not be capable of exercising proper and effective
parental care and control of the children in the near future. Mother does not
challenge the court’s other statutory findings or that termination of the
parent-child relationship was in the children’s best interests. Accordingly,
she has waived those arguments. See ARCAP 13(a) (requiring appellant’s
brief contain a statement of issues for review, supporting legal authority,
references to the record, and reasons for each contention); Crystal E. v. Dep’t
of Child Safety, 241 Ariz. 576, 578, ¶ 6 (App. 2017) (“[W]e adhere to the policy
that it is generally not our role to sua sponte address issues not raised by the
appellant.”); Christina G. v. Ariz. Dep’t of Econ. Sec., 227 Ariz. 231, 234, ¶ 14
n.6 (App. 2011) (recognizing the failure to develop an argument on appeal
usually results in abandonment and waiver of the issue).
¶17 Reasonable evidence shows that Mother’s housing changed
four times in the year leading up to the termination trial, including just
three days before trial. Mother’s stable housing was one of the concerns
from the outset. Evidence also shows Mother failed to improve many of her
diminished parenting capacities after two years of parent-aide services.
Although conflicting evidence also existed, reasonable evidence established
past domestic violence by Mother’s boyfriend, that Mother continued in
that relationship, and that the children had a fear of returning to Mother
because of her boyfriend. And reasonable evidence also showed that
Mother continued to have some substance-abuse issues. For these reasons,
the court was within its discretion to find a substantial likelihood Mother
would not be capable of providing proper and effective parental care and
control in the near future. Mother has shown no error.
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STACY R. v. DCS, et al.
Decision of the Court
CONCLUSION
¶18 For the foregoing reasons, we affirm the superior court’s
order terminating Mother’s parental rights to the children.
AMY M. WOOD • Clerk of the Court
FILED: JT
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