Aleise H. v. Dcs , 245 Ariz. 569 ( 2018 )

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
ALEISE H., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, A.W., J.H., M.H., Appellees.
No. 1 CA-JV 18-0223
FILED 11-8-2018
Appeal from the Superior Court in Maricopa County
No. JD31087
The Honorable Jo Lynn Gentry, Judge
AFFIRMED
COUNSEL
Maricopa County Public Advocate’s Office, Mesa
By Suzanne Sanchez
Counsel for Appellant
Arizona Attorney General’s Office, Tucson
By Autumn Spritzer
Counsel for Appellee Department of Child Safety
ALEISE H. v. DCS, et al.
Opinion of the Court
OPINION
Chief Judge Samuel A. Thumma delivered the Opinion of the Court, in
which Acting Presiding Judge Maria Elena Cruz and Judge Randall M.
Howe joined.
T H U M M A, Chief Judge:
¶1 Aleise H. (Mother) challenges the superior court’s order
terminating her parental rights to her biological children A.W., J.H. and
M.H. Mother argues the court improperly found termination was in the
children’s best interests and failed to make adequate findings. Because
Mother has shown no reversible error, the order is affirmed.
FACTS AND PROCEDURAL HISTORY
¶2 In August 2015, the Department of Child Safety (DCS) took
A.W. (born in 2006), J.H. (born in 2014) and M.H. (born in 2015) into care.
At that time, Mother and the children lived with Harry H., the father of J.H.
and M.H.;1 Mother and Harry H. had a history of domestic violence. As to
Mother, DCS’ dependency petition alleged neglect and that she was
unwilling or unable to provide proper and effective parental care and
control. The court found the children dependent as to Mother in October
2015 and adopted a case plan of family reunification, with a concurrent case
plan of severance and adoption for J.H. and M.H.
¶3 For a time, Mother engaged in services and was described as
making progress. As a DCS case manager reported, however, in August
2017 Mother said she was going to Oregon “for a family death, or
something like that. And she ended up not coming back.” Ultimately,
Mother returned to Arizona in December 2017, went back to Oregon after a
week or two and then returned to Arizona in early 2018. While in Oregon,
Mother had “minimal” contact with DCS and the children. As a result, the
court changed the case plan to severance and adoption. DCS’ motion sought
1 Harry H.’s parental rights, as well as those of A.W.’s father, were
terminated in 2018, and neither is a party to this appeal.
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ALEISE H. v. DCS, et al.
Opinion of the Court
termination based on abandonment, mental deficiency and 15-months’
time-in-care, also alleging that termination was in the best interests of the
children. See Ariz. Rev. Stat. (A.R.S.) § 8-533(B)(1), (3), (8)(c) (2018).2
¶4 Although Mother appeared at the initial termination hearing,
she did not attend trial, which proceeded in her absence. The court heard
testimony from a DCS case manager and a DCS case specialist and received
exhibits. As relevant here, the case manager testified that termination was
in the children’s best interests, adding that termination and adoption by the
current placement, a maternal aunt, would provide the children
permanency and stability. The case specialist testified that the younger
children had been with the placement their entire lives, the placement was
meeting the children’s needs and termination would provide needed
stability. This same witness testified the children would suffer if parental
rights were not terminated: “[t]hey would continue to be in a place where
permanency was still not set for them. . . [T]hey wouldn’t know where
they’re going to be for the rest of their lives.” The evidence also showed the
children were adoptable even if the current placement was unable to adopt.
¶5 In granting the motion, the court found DCS had shown by
clear and convincing evidence the three statutory grounds alleged. The
court then found DCS proved by a preponderance of the evidence that
termination was in the best interests of the children. The court noted that
“all three children are placed together in a prospective adoptive home. This
home has demonstrated its willingness and ability to meet all of the needs
of the children. Adoption will provide each of these children with the
permanence and stability that they otherwise lack.” Noting the children
had been in care for nearly three years, the court added that “the children
will continue languishing in foster care for an indefinite period of time”
absent termination. The court also found the children were adoptable.
¶6 In written findings of fact and conclusions of law, the court
echoed these findings. As to best interests, the court found termination
would provide the children with permanency
and stability. The children are residing in an
adoptive placement which is meeting all of their
needs. The children are considered adoptable
and another adoptive placement could be
located should the current placement be unable
2Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.
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ALEISE H. v. DCS, et al.
Opinion of the Court
to adopt. Continuation of the parent-child
relationship would be a detriment to the
children because it would delay permanency,
leaving the children to linger in care for an
indeterminate period since the children do not
have parents who are able to care for them.
This court has jurisdiction over Mother’s timely appeal pursuant to Article
6, Section 9, of the Arizona Constitution, A.R.S. §§ 8-235(A), 12-2101(A) and
12-120.21(A) and Ariz. R.P. Juv. Ct. 103-04.
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
children. See Kent K. v. Bobby M., 210 Ariz. 279, 288 ¶ 41 (2005); Michael J. v.
Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 249 ¶ 12 (2000). 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 so long as it is supported
by reasonable evidence. Jordan C. v. Ariz. Dep’t of Econ. Sec., 223 Ariz. 86, 93
¶ 18 (App. 2009).
¶8 Mother does not challenge the superior court’s findings
regarding the statutory grounds for termination, which are supported by
the trial evidence. Rather, she argues the court erred in determining that
termination was in the best interests of the children. Specifically, Mother
asserts the court erred in (1) finding DCS proved either a benefit to the
children by termination or a detriment if termination was not granted and
(2) failing to “set forth case-specific findings of fact to support its best
interests determination.”
I. Mother Has Shown No Error In The Superior Court’s Findings
That The Children Would Benefit From Termination And Be
Harmed If Termination Was Denied.
¶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 “[o]f foremost concern . . . is
protecting a child’s interest in stability and security,” Demetrius L. v.
Joshlynn F., 239 Ariz. 1, 4 ¶ 15 (2016). “[T]ermination is in the child’s best
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ALEISE H. v. DCS, et al.
Opinion of the Court
interests if either: (1) the child will benefit from severance; or (2) the child
will be harmed if severance is denied.” Alma S. v. Dep’t of Child Safety, 245
Ariz. 146, 150 ¶ 13 (2018).3 “It is well established in state-initiated cases that
the child’s prospective adoption is a benefit that can support a best-interests
finding,” Demetrius L., 239 Ariz. at 4 ¶ 16, recognizing the court “must
consider the totality of the circumstances existing at the time of the
severance determination,” Alma S., 245 Ariz. at 150-51 ¶ 13. The record is
viewed in a light most favorable to upholding the best-interests findings,
and findings of fact are to be affirmed “if reasonable evidence and
inferences support them.” Id. at 152 ¶ 21, 151 ¶ 18.
¶10 The superior court found that the children would benefit by
termination because they were placed with a familial, potentially adoptive
placement that was meeting their needs and would provide permanence
and stability they were lacking. The court also properly found that the
children would be harmed if termination was denied, because the children
would remain in care for an indefinite period. Each finding would support
best interests independently, and both are supported by the trial evidence.
Mother has shown no abuse of discretion in the findings that the children
would benefit by termination and be harmed if termination was denied. See,
e.g., id. at 152 ¶ 21; Demetrius L., 239 Ariz. at 6 ¶ 22.
II. Mother Has Waived Any Claim That The Superior Court Did Not
Make Adequate Best Interests Findings.
¶11 Mother asserts that the superior court “did not set forth case-
specific findings of fact to support its best-interests determination” as
required. See A.R.S. § 8-538(A); Ariz. R.P. Juv. Ct. 66(F)(2)(a). Citing Logan
B. v. Dep’t of Child Safety, 244 Ariz. 532 (App. 2018), Mother claims this
asserted failure means “the severance order is invalid.”
¶12 Mother failed to raise this issue with the superior court, which
issued the order she is challenging. As Logan B. recognized, “[g]enerally,
failure to raise an argument in the [superior] court waives the issue on
appeal.” 244 Ariz. at 532 ¶11 (citing Christy C. v. Ariz. Dep’t of Econ. Sec., 214
Ariz. 445, 452 ¶ 21 (App. 2007)). Although ultimately “declin[ing] to find
waiver,” Logan B. noted that “[t]he waiver doctrine is not ‘an unalterable
3 In challenging the best interests findings, Mother’s opening brief on
appeal relied 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 ¶ 21. This court allowed supplemental briefing to address the
Arizona Supreme Court’s opinion in Alma S.
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Opinion of the Court
rule’” and “the decision to find waiver is discretionary.” 244 Ariz. at 532 ¶¶
11, 9 (quoting and citing cases).
¶13 Because the decision to find waiver is discretionary, in the
exercise of that discretion, on the record presented and to prevent avoidable
delay, this court concludes that Mother has waived any claim she may have
had that the superior court did not make adequate best interests findings.
See, e.g., Cecilia A. v. Ariz. Dep’t of Econ. Sec., 229 Ariz. 286, 289 ¶ 11 (App.
2012) (applying waiver to due process argument); Antonio M. v. Ariz. Dep’t
of Econ. Sec., 222 Ariz. 369, 371 ¶ 6 (App. 2009) (when party fails to object in
superior court to “‘alleged lack of detail in the [superior] court’s findings,’
the issue is deemed waived when raised for the first time on appeal”)
(quoting Marco C. v. Sean C., 218 Ariz. 216, 220 n.2 (App. 2008)); Kimu P. v.
Ariz. Dep’t of Econ. Sec., 218 Ariz. 39, 44 n.3 (App. 2008) (applying waiver to
issues relating to “alleged procedural defects” first raised on appeal);
Christy C., 214 Ariz. at 452 ¶¶ 20–21 (applying waiver to issues relating to
alleged insufficiency of findings first raised on appeal).
CONCLUSION
¶14 Because Mother has shown no reversible error, the superior
court’s order terminating her parental rights to A.W., J.H. and M.H. is
affirmed.
AMY M. WOOD • Clerk of the Court
FILED: AA
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