Michael D., Turquoise P. v. Dcs, N.P. ( 2022 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
MICHAEL D., TURQUOISE P., Appellants,
v.
DEPARTMENT OF CHILD SAFETY, N.P., Appellees.
No. 1 CA-JV 22-0015
FILED 7-28-2022
Appeal from the Superior Court in Maricopa County
No. JD34221, JS519775
The Honorable Robert I. Brooks, Judge
AFFIRMED
COUNSEL
Maricopa County Legal Defender’s Office, Phoenix
By Jamie R. Heller
Counsel for Appellant, Father
John L. Popilek, Scottsdale
Counsel for Appellant, Mother
Arizona Attorney General’s Office, Tucson
By Autumn L. Spritzer
Counsel for Appellees, Department of Child Safety
MICHAEL D., TURQUOISE P. v. DCS, N.P.
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Jennifer B. Campbell delivered the decision of the Court,
in which Judge Randall M. Howe and Judge James B. Morse Jr. joined.
C A M P B E L L, Judge:
¶1 Turquoise P. (Mother) and Michael D. (Father) appeal the
juvenile court’s order terminating their parental rights to their daughter,
Amy, on the grounds of abandonment and prior removal, respectively.1 See
A.R.S. § 8-533(B)(1), (11). Mother challenges the sufficiency of the evidence
to support the court’s finding on the abandonment ground, the
reunification services provided to her, and court’s denial of her motions for
continuance. Father challenges the applicability of the prior removal
ground and the sufficiency of the evidence to support it. And both Mother
and Father challenge the court’s finding that termination was in Amy’s best
interests. Because the record and law support the court’s rulings, we affirm.
BACKGROUND
¶2 When Amy was born in April 2017, the Department of Child
Safety (DCS) took her into custody, petitioned for dependency, and placed
her with a foster family. Father appeared in the proceedings five months
later and established paternity soon after.
¶3 The juvenile court adjudicated Amy dependent after Mother
and Father pled no contest to the allegations. DCS then offered the parents
substance-abuse testing and treatment, psychological evaluations,
counseling and domestic-violence services, parenting classes, and
visitation. Father participated in services, so DCS provided him with a
family-reunification team. The court returned Amy to Father’s custody and,
in September 2019, eventually dismissed the dependency. Once Amy was
returned to Father, her foster family moved to another state.
¶4 Within months, Father lost his job and sent Amy to live with
her paternal great aunt (Aunt). Father maintained contact with Amy and
provided her some support and necessities. Mother did not maintain
contact with Amy or send her any cards, letters, gifts, or support.
1 We use a pseudonym to protect the identity of the minor child.
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¶5 In November 2020, Aunt petitioned for a dependency. DCS
joined as a co-petitioner, and the juvenile court eventually adjudicated Amy
dependent after Mother and Father pled no contest. The court set the case
plan as severance and adoption and relieved DCS from providing
reunification services.
¶6 Father told DCS that he could not meet Amy’s basic needs and
wanted Aunt to adopt her. Aunt petitioned to terminate the parents’ rights
to Amy based on the grounds of abandonment, neglect, and Amy’s prior
removal. See A.R.S. § 8-533(B)(1), (2), (11). Afterwards, the juvenile court
ordered DCS to provide Mother with a psychological evaluation, visitation,
and transportation assistance, which DCS did.
¶7 Mother completed psychological evaluations with three
providers who diagnosed her with various cognitive deficits; the providers
agreed Mother’s disability did not bar her from parenting Amy. DCS
provided Mother with taxi service between Tucson and Phoenix, and she
participated in most of the visits for the first few months of the dependency.
She then refused almost all the visits during the next two months.
Meanwhile, Father continued to visit Amy regularly at Aunt’s home. Just
before the termination hearing began, DCS referred Mother for the Family
Connections program and referred Father to a parent aide, after he asked
to participate in services.
¶8 The juvenile court held a two-day termination hearing
beginning in September 2021 and ending in January 2022. Before the final
day, DCS moved Amy to her maternal grandparents’ home, under exigent
circumstance, after receiving a serious allegation involving Aunt. When
Amy’s former foster family learned of the disruption, they returned to
Arizona, intervened in the dependency, and moved for custody. Because
the foster family was living with a relative and did not yet have a home in
Arizona, they asked DCS to complete a home study on the relative. That
home study was still pending when the termination hearing concluded. The
court ultimately terminated Mother’s parental rights under the
abandonment ground and Father’s rights under the prior removal ground,
finding the remaining grounds unproven. A.R.S. § 8-533(B)(1), (11). The
parents timely appealed.
DISCUSSION
¶9 A parent’s right to custody and control of his own child, while
fundamental, is not absolute. Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz.
246, 248–49, ¶¶ 11–12 (2000). Severance of a parental relationship may be
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Decision of the Court
warranted where the State proves one statutory ground under A.R.S. § 8-
533 by “clear and convincing evidence.” Id. ¶ 12. “Clear and convincing”
means the grounds for termination are “highly probable or reasonably
certain.” Kent K. v. Bobby M., 210 Ariz. 279, 284–85, ¶ 25 (2005). The court
must also find that severance is in the child’s best interests by a
preponderance of the evidence. Id. at 288, ¶ 41.
¶10 This court “will accept the juvenile court’s findings of fact
unless no reasonable evidence supports those findings, and we will affirm
a severance order unless it is clearly erroneous.” Jesus M. v. Ariz. Dep’t of
Econ. Sec., 203 Ariz. 278, 280, ¶ 4 (App. 2002). This Court does not reweigh
the evidence, but “look[s] only to determine if there is evidence to sustain
the court’s ruling.” Mary Lou C. v. Ariz. Dep’t of Econ. Sec., 207 Ariz. 43, 47,
¶ 8 (App. 2004).
I. Sufficiency of Evidence on Abandonment Ground
¶11 Mother first argues DCS failed to prove she abandoned Amy.
When a parent abandons a child, the juvenile court may terminate her
parental rights. A.R.S. § 8-533(B)(1).
“Abandonment” means the failure of a parent to provide
reasonable support and to maintain regular contact with the
child, including providing normal supervision.
Abandonment includes a judicial finding that a parent has
made only minimal efforts to support and communicate with
the child. Failure to maintain a normal parental relationship
with the child without just cause for a period of six months
constitutes prima facie evidence of abandonment.
A.R.S. § 8-531(1). Abandonment is measured by a parent’s conduct, not by
her subjective intent. Michael J., 196 Ariz. at 249, ¶ 18. At issue is “whether
the parent has taken steps to establish and strengthen the emotional bonds
linking . . . her with the child.” Kenneth B. v. Tina B., 226 Ariz. 33, 37, ¶ 21
(App. 2010).
¶12 Reasonable evidence supports the juvenile court’s finding
that Mother abandoned Amy. Between September 2019 and January 2021,
Mother had no contact with Amy, even though Aunt offered to facilitate
visits. Nor did Mother send Amy any cards, letters, gifts, or support. Once
the current dependency began, Mother had no consistent relationship with
Amy. Mother engaged in some visits, provided a small amount of support,
and sent a single birthday gift during the dependency. She, however, also
cancelled visits, ended visits early, and refused several visits. And she
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Decision of the Court
refused to communicate with Aunt to facilitate additional visits or other
contact with Amy during the dependency. Overall, reasonable evidence
supports the court’s finding that Mother abandoned Amy and that her
minimal efforts during this dependency fell short of establishing,
developing, and maintaining a normal parent-child relationship with Amy.
¶13 Mother alternatively argues her abandonment was justified,
claiming Father initially rebuffed her efforts to see Amy. The juvenile court
found credible, however, Father and Aunt’s testimony about their
willingness to allow Mother to visit Amy. See Jesus M., 203 Ariz. at 282, ¶ 12(“The resolution of . . . conflicts in the evidence is uniquely the province of
the juvenile court as the trier of fact; we do not re-weigh the evidence on
review.”). Despite their willingness, Mother took no meaningful actions to
establish a relationship with the child. Indeed, Father asked Mother for
financial assistance soon after he lost his job, while Amy was still in his
custody, but Mother refused to help. And, as Mother acknowledged, she
gave up on trying to contact Father about Amy while Amy was in his
custody after one or two months; she did not file forms with the juvenile
court to pursue visitation; and she did not pay financial support for Amy
to Father or Aunt while Amy lived with them.
¶14 Mother also suggests her abandonment was justified because
Aunt lived in Phoenix, which made visitation difficult, and because her
learning disability prevented her from pursuing contact with Amy through
family court. Neither argument explains how Father or Aunt restricted
Mother from interacting with Amy, cf. Calvin B. v. Brittany B., 232 Ariz. 292,
297, ¶ 22 (App. 2013) (father continuously and actively sought more
involvement with son than mother would allow), and therefore do not
justify her abandonment or explain her minimal efforts to maintain a
relationship with Amy. Regarding the visitation forms, Mother testified she
obtained them and “was having a hard time just going through [them],”
but she never sought help from the court or Community Legal Services. On
this record, Mother has shown no error.
II. Mother’s Reunification Services
¶15 Mother next argues DCS failed to provide parenting skill
sessions, which she suggests were constitutionally mandated. Considering
this case’s facts, we disagree. When a “biological mother . . . forms no
custodial, personal, or financial relationship with the child, under
circumstances that meet the statutory ground of abandonment[,] . . . [t]he
parent-child relationship is . . . devoid of the ‘full commitment to the
responsibilities of parenthood’ that warrants substantial protection of the
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MICHAEL D., TURQUOISE P. v. DCS, N.P.
Decision of the Court
parental interests under the due process clause.” Toni W. v. Ariz. Dep’t of
Econ. Sec., 196 Ariz. 61, 66, ¶ 14 (App. 1999) (quoting Lehr v. Robertson, 463
U.S. 248, 261 (1983)).
¶16 Here, Mother had never parented Amy, who was removed at
birth. Amy was not returned to her care over the next four years, and, when
Aunt petitioned for a dependency, it had been over a year since Mother had
taken any actions to parent Amy or establish a relationship with the child.
Thus, Mother lacked an existing parent-child relationship, and DCS was not
constitutionally required to provide her reunification services before
seeking to terminate her rights due to abandonment.
III. Denial of Mother’s Motions for Continuance
¶17 Mother next argues the juvenile court abused its discretion by
denying her continuance motions, which would have allowed her more
time to engage in parenting skill sessions. This Court “review[s] the grant
or denial of a motion to continue for an abuse of discretion.” Sandretto v.
Payson Healthcare Mgmt. Sys., 234 Ariz. 351, 361, ¶ 38 (App. 2014).
¶18 Mother’s argument is unpersuasive because DCS was not
required to provide her with services, so the juvenile court’s denial did not
deprive her of a fair opportunity to present her case. Indeed, the court
found that the “central issue . . . [was] not whether Mother has been able to
engage in any parent skill building, but whether Mother has developed,
established, and maintained a normal parent-child relationship.” Mother
had visitation available during the dependency, and the court found that
evidence sufficient to judge her relationship with Amy. Additionally, DCS
asked Mother to seek out parenting classes in the community, but she did
not do so.
IV. Applicability of Prior-Removal Ground
¶19 Father argues Amy was not removed from his legal custody
as required by A.R.S. § 8-533(B)(11)(c). The juvenile court may terminate the
parent-child relationship when all the following are proven by clear and
convincing evidence:
(a) The child was cared for in an out-of-home placement
pursuant to a court order.
(b) The agency responsible for the care of the child made diligent
efforts to provide appropriate reunification services.
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MICHAEL D., TURQUOISE P. v. DCS, N.P.
Decision of the Court
(c) The child, pursuant to court order, was returned to the legal
custody of the parent from whom the child had been
removed.
(d) Within eighteen months after the child was returned,
pursuant to court order, the child was removed from that
parent’s legal custody, the child is being cared for in an out-
of-home placement under the supervision of the juvenile
court, the division or a licensed child welfare agency and the
parent is currently unable to discharge parental
responsibilities.
A.R.S. § 8-533(B)(11). Legal custody is defined as
(a) The right to have physical possession of the child.
(b) The right and the duty to protect, train and discipline the child.
(c) The responsibility to provide the child with adequate food, clothing,
shelter, education and medical care . . . .
A.R.S. § 8-531(5).
¶20 Father argues Amy was not removed from his custody in the
first dependency because he “had not yet established paternity and had no
legal rights as to [Amy]” when DCS filed the initial dependency petition. In
this manner, he urges this Court to interpret A.R.S. § 8-533(B)(11) as
inapplicable to fathers who have not established paternity at the time the
dependency petition is filed.
¶21 But the court removed Amy from Father’s legal custody after
he established paternity, satisfying A.R.S. § 8-533(B)(11)’s requirements.
DCS petitioned for the initial dependency in April 2017, and Father
established paternity to Amy through genetic testing about eight months
later. When Father established paternity, his rights, including the “right to
have physical possession of” and duties to Amy vested. See A.R.S. §§ 8-
531(5), -531(10) (defining “parent” as “the natural or adoptive mother or
father of a child”), 25-401 (defining “legal parent” as “a biological or
adoptive parent whose parental rights have not been terminated,”
excluding “a person whose paternity has not been established pursuant to
[A.R.S. §§] 25-812 or 25-814”), 25-814(A)(2) (“A man is presumed to be the
father of the child if . . . [g]enetic testing affirms at least a ninety-five per
cent probability of paternity”).
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MICHAEL D., TURQUOISE P. v. DCS, N.P.
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¶22 Although Father’s parental rights vested, he was not able to
exercise them because Amy was already in the physical custody of her
foster family. Nonetheless, that same day, the juvenile court adjudicated
Amy dependent as to Father after he pled no contest to the dependency
petition’s allegations. The court therefore immediately curtailed Father’s
rights, effectively removing Amy from his custody, and ordered the child
“committed to the care, custody and control of” DCS. Father’s argument is
unpersuasive.
V. Sufficiency of Evidence for Prior Removal Ground
¶23 Alternatively, Father argues no reasonable evidence supports
the court’s finding that he was currently unable to discharge parental
responsibilities as required under A.R.S. § 8-533(B)(11)(d). This court has
explained:
The term ‘parental responsibilities’ is capable of being
understood by persons of ordinary intelligence as referring to
those duties or obligations which a parent has with regard to
his child. . . . The term is not intended to encompass any
exclusive set of factors but rather to establish a standard
which permits a trial judge flexibility in considering the
unique circumstances of each termination case before
determining the parent’s ability to discharge his or her
parental responsibilities.
Maricopa Cnty. Juv. Action No. JS-5894, 145 Ariz. 405, 408–09 (App. 1985)
(internal citation and quotation omitted).
¶24 Reasonable evidence supports the court’s finding that Father
was currently unable to discharge his parental responsibilities. A month
after the court dismissed the first dependency, Father recognized that he
could not meet Amy’s needs and sent her to live with Aunt. Although he
visited Amy and provided some support over the next 14 months, he never
indicated to Aunt that he could parent Amy full time, asked for her return,
or otherwise pursued custody of her. Indeed, when Aunt petitioned for a
dependency, Father told DCS he still could not meet Amy’s basic needs
because, by his own admission, “his bank account [was] overdrawn, he
[did] not have food in [the] refrigerator, and he [was] not disciplined
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Decision of the Court
enough to care for a child.” At that time, he agreed with termination of his
parental rights and told DCS he wanted Aunt to adopt her.2
¶25 Father then maintained that position through the first day of
the termination hearing, vacillating only a few times. Nevertheless, based
on his position, he chose not to participate in reunification services until
several months into the dependency and had only just begun working with
a parent aide by the start of the termination hearing. It was not until the
termination hearing’s final day, after Amy was removed from Aunt’s care,
that Father argued the child should be returned to him.
¶26 Commendably, Father made several improvements in his life
and testified he was willing to engage fully in reunification services. But a
last-minute willingness to engage fully does not rectify Father’s
acknowledged and long-standing inability to be Amy’s primary caregiver.
Maricopa Cnty. Juv. Action No. JS-501568, 177 Ariz. 571, 577 (App. 1994)
(“Leaving the window of opportunity for remediation open indefinitely is
not necessary, nor [is it] in the child’s or the parent’s best interests.”).
¶27 Although Father was willing to commit to reunification by the
final day of trial, he never indicated through testimony or evidence that he
was currently prepared to be Amy’s primary caregiver. Instead, he testified
that having Amy placed with him was a “long-term goal” and that in the
meantime, he wanted her placed with a foster family. Similarly, on the first
day of trial, he had testified that placing Amy with Aunt “was the initial
plan” to allow him to “get on [his] feet,” but he never did, and “it ended up
two years [went] by.” See Michael J., 196 Ariz. at 251, ¶ 25 (“The burden to
act as a parent rests with the parent, who should assert his legal rights at
the first and every opportunity”); see also Raymond F. v. Ariz. Dep’t of Econ.
Sec., 224 Ariz. 373, 378, ¶ 25 (App. 2010) (“[C]hildren should not be forced
to wait for their parent to grow up.” (quotation omitted)). On this record,
we find no error.
2 Although Father agreed in theory with termination of his parental
rights, he contested the termination motion. Father’s main concern was
whether Amy would be returned to Mother, who he believed was unfit to
parent her. Essentially, Father asked the court to grant or deny the
severance as to both parents. If the court denied severance, he wanted the
opportunity to challenge any future placement with Mother.
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MICHAEL D., TURQUOISE P. v. DCS, N.P.
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VI. Best-Interests Finding
¶28 Both parents argue insufficient evidence supports the juvenile
court’s finding that termination was in Amy’s best interests. In addition to
finding a statutory ground for termination, the juvenile court must also
determine that termination is in the child’s best interests by a
preponderance of the evidence. Kent K., 210 Ariz. at 288, ¶ 41. 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” with “the independent and often adverse interests of the
child in a safe and stable home life.” Id. 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 Cnty. 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).
¶29 The court may find a child would benefit from termination if
there is an adoption plan, the child is adoptable, id. at 150–51, ¶¶ 13–14, or
if the child “would benefit psychologically from the stability an adoption
would provide.” Maricopa Cnty. Juv. Action No. JS-501904, 180 Ariz. 348, 352
(App. 1994). The court may also find a child will benefit from termination
if an existing placement is meeting the child’s needs and the child’s
prospective adoption is likely. Demetrius L. v. Joshlynn F., 239 Ariz. 1, 4, ¶ 12
(2016). Conversely, the court may find a child would be harmed by the
continuation of the parent-child relationship “where there is clear and
convincing evidence of parental unfitness, which has not been remedied
notwithstanding the provision of services by [DCS] and which
detrimentally affects the child’s well-being.” Pima Cnty. Juv. Action No.
S-2460, 162 Ariz. 156, 158 (App. 1989).
¶30 Here, the juvenile court determined Amy would benefit from
severance, finding she “is adoptable” and “a prospective adoptive” family
was seeking custody of her. The court found that that family had “a prior
and significant relationship” with Amy and that termination would “enable
the child to achieve permanency” after spending “most of her short life in
the legal custody of the State.”
¶31 Mother asserts the juvenile court ignored evidence of her
rehabilitation efforts and points out that Amy was no longer in an adoptive
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home when the termination hearing concluded. These points, however, do
not undermine the court’s findings that Amy was an adoptable child who
needed permanency and that she would likely be placed with an adoptive
family soon. See JS-501904, 180 Ariz. at 352 (DCS “need not show that it has
a specific adoption plan before terminating a parent’s rights”).
¶32 The court heard evidence about Mother’s rehabilitation
efforts but found it did not outweigh other factors in support of severance.
Additionally, the court expressly considered the fact that Amy was placed
in a non-adoptive home, closer in proximity to Mother, which would make
visitation between them easier. The court found these facts did not
outweigh the “emotional strain and distress” Amy displayed after visits or
“the amount of time [Amy] has been in [DCS’s] custody between the two
cases, her young age, the extensive work that would need to be done to
reestablish a safe and healthy relationship, and [Amy’s] need for stability
and permanency.” Reasonable evidence supports the court’s findings, and
we will not reweigh the evidence on appeal. See Mary Lou C., 207 Ariz. at
47, ¶ 8.
¶33 Finally, in her reply brief, Mother takes issue with DCS’s
citation to events that occurred after the termination hearing, arguing
correctly that evidence of Amy’s prospective adoptive family was not
elicited in the termination hearing through testimony or exhibits. This
Court has not considered any records created after the termination hearing.
See John Munic Entrs., Inc. v. Laos, 235 Ariz. 12, 20, ¶ 25 n.5 (App. 2014) (“If
a fact is not in the record, we may not consider it.”). Regardless, Amy’s
prospective adoptive family filed requests to intervene and assume custody
of Amy before the termination hearing. Those documents are part of the
case history and the record on appeal, and they support the court’s findings.
See Ariz. R.P. Juv. Ct. 104(D)(1)(b) (2013) (“The record on appeal . . . shall
[include] . . . a certified copy of all pleadings, orders, and other documents
filed with the clerk of the [juvenile] court.”).
¶34 Father asserts the juvenile court had insufficient evidence of
his relationship with Amy to make a best-interests determination. His
argument is unpersuasive because the court found he had “a normal
parent-child relationship” with Amy. Moreover, it was not Father’s
relationship or bond with Amy that was preventing reunification but his
inability to perform daily parenting duties or be her primary caretaker. As
the court concluded, “[i]t [wa]s not in [Amy’s] best interest to continue this
ongoing state of impermanence with neither parent able to provide for [her]
in the near future.”
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CONCLUSION
¶35 For the foregoing reasons, we affirm the order terminating
Father and Mother’s parental rights.
AMY M. WOOD • Clerk of the Court
FILED: AA
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