Luis T., Angelica T. v. Dcs ( 2014 )

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
LUIS T., ANGELICA T., Appellants,
v.
DEPARTMENT OF CHILD SAFETY, J.T., Y.T., M.T, Appellees.
No. 1 CA-JV 14-0115
FILED 11-04-2014
Appeal from the Superior Court in Maricopa County
No. JD16462
The Honorable Cari A. Harrison, Judge
AFFIRMED
COUNSEL
David W. Bell, Attorney at Law, Mesa
By David W. Bell
Counsel for Appellant Luis T.
Denise L. Carroll, Esq., Scottsdale
By Denise L. Carroll
Counsel for Appellant Angelica T.
Arizona Attorney General’s Office, Phoenix
By Michael Valenzuela
Counsel for Appellee Department of Child Safety
LUIS T., ANGELICA T. v. DCS, et al.
Decision of the Court
MEMORANDUM DECISION
Judge Kent E. Cattani delivered the decision of the Court, in which
Presiding Judge Jon W. Thompson and Judge Donn Kessler joined.
C A T T A N I, Judge:
¶1 Luis T. (“Father”) and Angelica T. (“Mother”) appeal from
the superior court’s order terminating their parental rights as to J.T., Y.T.,
and M.T. For reasons that follow, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 Father and Mother are the biological parents of J.T. (born
May 2007), Y.T. (born July 2003), and M.T. (born May 2011). Father and
Mother also have several older children, including M. (who is no longer
subject to the dependency) and I. (who is now an adult).
¶3 In May 2011, the Department of Child Safety (“DCS”)
initiated in-home family preservation services for Mother after being
alerted to safety concerns for the children when in Mother’s care. Two
months later, Father was arrested for assaulting Mother, and DCS learned
the children had been exposed to domestic violence between the parents
on multiple occasions. Mother then tested positive for methamphetamine
in October. DCS removed the children from the home on October 26,
2011, due to concerns of substance abuse, domestic violence, and neglect.
¶4 DCS offered Mother family preservation services, drug
testing and treatment, parent-aide services with visitation, individual
counseling, psychological evaluations, and a best interests assessment,
and Mother participated in all services offered. Mother completed the
drug treatment program and consistently tested negative for drugs,
successfully remedying the substance abuse concern.
¶5 In early 2012, after Mother had successfully completed
certain reunification services, M.T. and Y.T. were returned to her care.
Just six weeks later, DCS again removed the children after receiving a
report that M.T. had arrived at daycare with inch-long scratches on her
arm in the shape of the letters “D-I-E.” Mother had no explanation for
M.T.’s injury, but suggested the daycare was to blame; the superior court
found this explanation implausible.
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Decision of the Court
¶6 Mother participated in parent-aide services with visitation
for almost three years. Despite her long-term participation, her
interactions with the children continued to cause concern. Her lack of
explanation for M.T.’s injury suggested at least a lack of adequate
supervision. On another occasion, Mother failed to observe M.T. as the
child nearly wandered into a lane of traffic. Mother also left a sword
accessible to the children during a visit, and J.T. grabbed it; Mother yelled
for M. to take it away from his younger sibling. The parent-aide notes
show that Mother would “parent from the couch by yelling or screaming,”
often relying on Y.T. to care for the younger children during visits.
¶7 Mother’s relationship with the older children I. and M.
suggested Mother would continue to have trouble parenting the younger
children as they grew older. When I. and M. were returned to Mother’s
care as teenagers, she failed to enroll either child in high school. Mother
initially asserted that M. was enrolled in school but later claimed she was
home-schooling M., although she never informed DCS or any education
agency and did not create a curriculum for his studies. Mother frequently
lost track of M.; when asked where M. was, Mother told the younger
children either that he was probably hanging out with friends or that she
did not know where he was. The parent aide observed that Mother failed
to supervise M. during visits while he played too roughly with the
younger children, even with the infant M.T.
¶8 Mother’s psychological evaluation raised concerns about her
ability to provide a safe home for the children. Mother did not offer an
explanation for why many of her children showed serious behavioral
problems, some resulting in juvenile detention and later incarceration.
She showed little insight, offering a superficial or artificially positive self-
assessment and tending to blame others rather than accepting personal
responsibility. Mother’s reaction to 18-year-old I.’s assault on his
pregnant 15-year-old girlfriend—blaming the girlfriend for angering I.
and causing the beating—showed Mother’s tendency to deflect
responsibility, and also called into question her ability to put into effect
the domestic violence counseling she completed.
¶9 Mother indicated to the psychologist that she was satisfied
with the way she parented her children, even though parent-aide reports
noted concerns that Mother failed to adequately supervise the children (in
particular leaving M.T. in dangerous circumstances). The psychologist
suggested that Mother’s lack of insight created a concern that, if J.T., Y.T.,
and M.T. were returned to Mother’s care, they would be left unprotected
and unsupervised and would follow in their older siblings’ footsteps. The
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Decision of the Court
psychologist opined that DCS had offered appropriate services, but that
Mother had nevertheless been unable to correct the parenting concerns.
¶10 The best interests assessment suggested that the children
would benefit from severance. The psychologist who conducted the
assessment noted that the children had some level of attachment to
Mother, but that it was an anxious attachment rather than a normal or
healthy one. The psychologist concluded that Mother’s relationship with
her children was “more as a peer than as a parent,” and with Y.T. in
particular had created an unhealthy role-reversal. Y.T. had adopted a
parental role with the younger children, and even sought to protect and
care for Mother, which the psychologist noted could deprive Y.T. of
necessary stages of childhood development. In light of Y.T.’s unhealthy
bond with Mother, the psychologist opined that severance was in Y.T.’s
best interests, and that Y.T. would benefit from individual therapy to
address her issues with Mother. The psychologist also expressed a
concern that because of Mother’s lack of supervision and her inability to
nurture the children, Mother would be unable to handle J.T.’s ADHD and
that M.T. would be at risk if they were returned to Mother’s care. The
psychologist thus concluded that severance would be in the children’s
best interests.
¶11 Father has been in custody since November 15, 2011, 20 days
after the children were removed, when he was arrested for burglary, and
has since been convicted of burglary and related counts and sentenced to
a 14-year term of imprisonment, with an anticipated release in 2025.
Although Father was aware at the time that the children had been
removed from Mother’s care, he did not contact DCS prior to his arrest.
DCS later located Father in jail and provided him with his case manager’s
name and with information on how to contact DCS.
¶12 Over the course of the dependency, Father never provided
gifts or support for the children. He sent letters or drawings to the
children only “a couple times.” Father did not see the children after their
removal, nor did he request visitation through DCS or through the court.
Father testified that he had talked to the children on the phone by calling
Mother during her visitation. Although Father claimed to have had
telephonic contact once or twice weekly for a few months in 2013, parent-
aide notes reflect that Father called only twice.
¶13 In October 2013, DCS moved to terminate both Mother’s and
Father’s parental rights to J.T., Y.T., and M.T., alleging grounds of 15
months’ time in care and mental illness as to Mother and abandonment
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Decision of the Court
and 15 months’ time in care as to Father. After a two-day evidentiary
hearing, the superior court found that DCS had established grounds for
severance and that severance of each parent’s rights would be in the
children’s best interests and, accordingly, terminated Mother’s and
Father’s parental rights to all three children.
¶14 Both Mother and Father timely appealed from the court’s
severance order. We have jurisdiction under Arizona Revised Statutes
(“A.R.S.”) § 8-235.1
DISCUSSION
¶15 The superior court may terminate the parent–child
relationship if clear and convincing evidence establishes at least one
statutory ground for severance and if a preponderance of the evidence
shows severance to be in the child’s best interests. A.R.S. § 8-533(B); Kent
K. v. Bobby M., 210 Ariz. 279, 284, ¶ 22, 110 P.3d 1013, 1018 (2005). We
review the superior court’s severance ruling for an abuse of discretion,
accepting the court’s factual findings unless clearly erroneous and
viewing the evidence in the light most favorable to sustaining the court’s
findings. Mary Lou C. v. Ariz. Dep’t of Econ. Sec., 207 Ariz. 43, 47, ¶ 8, 83
P.3d 43, 47 (App. 2004); Manuel M. v. Ariz. Dep’t of Econ. Sec., 218 Ariz. 205,
207, ¶ 2, 181 P.3d 1126, 1128 (App. 2008). We similarly defer to the
superior court’s credibility judgments. Jesus M. v. Ariz. Dep’t of Econ. Sec.,
203 Ariz. 278, 280, ¶ 4, 53 P.3d 203, 205 (App. 2002).
I. Termination of Mother’s Parental Rights.
¶16 First, Mother argues that the superior court violated her
right to due process by denying her request to call M. as a witness. She
also argues that the court erred by restricting her cross-examination of
other witnesses regarding M. We review the superior court’s evidentiary
rulings for an abuse of discretion. Kimu P. v. Ariz. Dep’t of Econ. Sec., 218
Ariz. 39, 42, ¶ 11, 178 P.3d 511, 514 (App. 2008). We review de novo
constitutional claims and other issues of law. See State v. McGill, 213 Ariz.
147, 157–58, ¶ 45, 140 P.3d 930, 940–41 (2006); Dep’t of Child Safety v. Beene,
235 Ariz. 300, 304, ¶ 8, 332 P.3d 47, 51 (App. 2014).
¶17 On the first day of the severance hearing, Mother requested
permission to call M. and two other people as witnesses. The court denied
1 Absent material revisions after the relevant date, we cite a statute’s
current version.
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Decision of the Court
the request because the proposed witnesses had not been timely disclosed.
As to M. specifically, the court also noted he was a juvenile who had
previously been subject to the dependency, and found it would not be in
M.’s best interests to testify.
¶18 Although Mother asserts that information regarding M. was
“key” to the severance ruling, as outlined above, discussion of M. was
collateral to direct evidence of Mother’s relationship with and parenting of
the younger children. Moreover, discussion of M. focused not on M.’s
statements, but on Mother’s actions in parenting him (for example, her
failure to enroll him in high school), about which Mother and other
witnesses were competent to testify. To the extent one witness mentioned
a single hearsay statement from M.—a note that M. once described himself
as a pimp in front of the younger children—Mother has not met her
burden to show that admission of that single statement, particularly in the
context of the evidence unrelated to M. outlined above, rendered the
proceeding unfair. See Beene, 235 Ariz. at 304, ¶ 8, 332 P.3d at 51.
¶19 Mother’s argument that the superior court improperly
restricted her cross-examination is similarly unavailing. The court
sustained on grounds of relevancy only one objection to a single question
posed by Mother’s counsel to the case manager: “In [M.’s] case, you’ve
had a lot of testimony about your concerns about your belief [M.]’s not in
school. Is that a reason to have him removed from his mother’s custody?”
The court correctly found that whether there existed grounds to remove
M. from Mother’s care, when M. was no longer subject to the dependency
and was not a subject of the severance motion, was irrelevant to the issue
of terminating Mother’s rights to the younger children. In contrast, and as
the court noted, M.’s situation was relevant in the context of Mother’s
actions, her ability to parent, supervise, and control children as they
become teenagers, and Mother’s counsel in fact elicited substantial
testimony about this from several witnesses. Accordingly, the superior
court did not err in its treatment of evidence related to M.
¶20 Next, Mother disputes the superior court’s finding that
severance was warranted on the ground of 15 months’ time in care. The
superior court may terminate a parent’s rights based on the child’s time in
care under A.R.S. § 8-533(B)(8)(c) if: (1) the child has been in an out-of-
home placement for at least 15 months, (2) “[DCS] has made a diligent
effort to provide appropriate reunification services,” (3) “the parent has
been unable to remedy the circumstances” necessitating the out-of-home
placement, and (4) “there is a substantial likelihood that the parent will
not be capable of exercising proper and effective parental care and control
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in the near future.” The relevant circumstances are those existing at the
time of severance. Jordan C. v. Ariz. Dep’t of Econ. Sec., 223 Ariz. 86, 96
n.14, ¶ 31, 219 P.3d 296, 306 n.14 (App. 2009).
¶21 Mother does not dispute that J.T., Y.T., and M.T. have been
in care for over 15 months or that DCS provided appropriate services.
Instead, she contends that because she made good faith efforts to comply
with the reunification services, the court erred by finding her unable to
remedy the circumstances causing out-of-home placement. Mother’s
argument conflates two distinct grounds for termination: nine months’
and 15 months’ time in care. Severance based on nine months’ time in
care requires proof that a parent has “substantially neglected or willfully
refused to remedy the circumstances” causing out-of-home placement.
A.R.S. § 8-533(B)(8)(a). Because this test focuses on a parent’s efforts, see
Marina P. v. Ariz. Dep’t of Econ. Sec., 214 Ariz. 326, 329, ¶ 20, 152 P.3d 1209,
1212 (App. 2007), good faith efforts to comply with reunification services
weigh heavily against severance on the nine months’ ground. Maricopa
Cnty. Juv. Action No. JS-501568, 177 Ariz. 571, 576, 869 P.2d 1224, 1229
(App. 1994).
¶22 In contrast, the 15 months’ time in care ground (the relevant
basis for termination in this case) focuses not just on a parent’s efforts to
remedy the circumstances necessitating an out-of-home placement, but
rather on a “parent’s success in actually doing so.” Marina P., 214 Ariz. at
329–30, ¶¶ 20–21, 152 P.3d at 1212–13. Here, although Mother
participated in all services offered, and even successfully remedied her
substance abuse issue, she nevertheless was unable to provide adequate
supervision or a safe and appropriate home for J.T., Y.T., and M.T. The
evidence summarized above—including M.T.’s unexplained injury,
exposure of M.T. and J.T. to dangerous situations even during supervised
visitation, and the uncorrected role-reversal with Y.T.—supports the
superior court’s finding that Mother has not been able to acquire the skills
necessary to provide a safe home.
¶23 Moreover, substantial evidence supports the conclusion that
Mother will likely remain unable to exercise appropriate parental care and
control in the near future. Despite three years of parent-aide services,
Mother remained unwilling or unable to modify her parenting style to
provide a safe and constructive environment for the children. When DCS
facilitated supervised visits, Mother continually failed to adequately
supervise the children, instead yelling from the couch or relying on Y.T. to
redirect the younger children. The psychologist suggested a poor
prospect for future improvement given Mother’s tendency to avoid taking
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personal responsibility and her artificially inflated self-assessment, which
left her either unwilling or unable to acquire the necessary parenting
skills.
¶24 The superior court’s finding regarding the 15 months’ time
in care ground for severance is thus supported by the evidence and
establishes a basis for termination of Mother’s parental rights. Because the
court properly found this ground for severance, we need not address the
alternative mental illness ground. See Michael J. v. Ariz. Dep’t of Econ. Sec.,
196 Ariz. 246, 251, ¶ 27, 995 P.2d 682, 687 (2000).
¶25 Finally, Mother argues that, because she is bonded to the
children, the superior court erred by finding severance to be in the
children’s best interests. In considering best interests, the court must
determine “how the child would benefit from a severance or be harmed by
the continuation of the relationship” with the biological parent. Maricopa
Cnty. Juv. Action No. JS-500274, 167 Ariz. 1, 5, 804 P.2d 730, 734 (1990).
Evidence that the child is adoptable or of a current adoptive plan may
support a finding that termination is in the child’s best interests, as may
evidence that the current placement is meeting the child’s needs. Lawrence
R. v. Ariz. Dep’t of Econ. Sec., 217 Ariz. 585, 587, ¶ 8, 177 P.3d 327, 329 (App.
2008); Mary Lou C., 207 Ariz. at 50, ¶ 19, 83 P.3d at 50.
¶26 Mother asserts the evidence showed that she was bonded to
J.T., Y.T., and M.T. and that no evidence showed any detriment to the
children should her parental relationship with them continue. She argues
that the evidence in fact suggested that terminating her parental rights
would harm the children. The psychologist testified, however, that
Mother’s bond to the children was an anxious attachment rather than a
healthy bond. And the evidence showed that severance would benefit
Y.T. by removing the inappropriate role-reversal with Mother, allowing
Y.T. a more normal childhood development. Similarly, severance would
allow the children a stable, well-supervised, and nurturing home, which
Mother had been unable to provide. Additionally, the children’s current
placement is able to meet their needs, including J.T.’s special needs, and
all three children are adoptable. Accordingly, the superior court did not
err by finding severance to be in the children’s best interests, and we
therefore affirm the termination of Mother’s parental rights as to J.T., Y.T.,
and M.T.
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Decision of the Court
II. Termination of Father’s Parental Rights.
¶27 Father argues the superior court erred by finding the
statutory ground of abandonment; he does not dispute the court’s best
interests findings.
¶28 Under A.R.S. § 8-533(B)(1), the superior court is authorized
to terminate a parent’s rights upon a finding “[t]hat the parent has
abandoned the child.” For these purposes, “abandonment” is
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).
¶29 The abandonment analysis is based on an objective measure
of the parent’s conduct, not the parent’s subjective intent. Michael J., 196
Ariz. at 249–50, ¶ 18, 995 P.2d at 685–86; see also Anonymous v. Anonymous,
25 Ariz. App. 10, 12, 540 P.2d 741, 743 (1975). The key consideration is
whether the parent, under the unique circumstances of the case, “has
provided reasonable support, maintained regular contact, made more
than minimal efforts to support and communicate with the child, and
maintained a normal parental relationship.” Michael J., 196 Ariz. at 249–
50, ¶¶ 18, 20, 995 P.2d at 685–86; A.R.S. § 8-531(1).
¶30 Here, Father agrees that he was aware when J.T., Y.T., and
M.T. were removed by DCS in October 2011. Although Father claims he
never received a service letter from DCS, the case manager testified that
Father was informed of the identity of his case manager and how to
contact DCS, and Father himself referred to the ongoing case manager by
name while testifying. Even after being served with the dependency,
Father did not contact DCS or the court to try to establish visitation or
other means of contact with the children. Father did not send gifts to the
children or provide financial support. His only contacts with the children
during the dependency were two letters or drawings and two phone calls.
The record amply supports the superior court’s finding that these were
only “minimal attempts” to communicate with the children over the two
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and one-half years after removal and, accordingly, that severance was
warranted on grounds of abandonment.
¶31 Citing Calvin B. v. Brittany B., 232 Ariz. 292, 304 P.3d 1115(App. 2013), Father argues that DCS improperly stopped his telephonic
contact with the children in October 2013, thereby interfering with his
communication with the children and artificially creating the
circumstances of abandonment. In Calvin B., we held that “a parent who
has persistently and substantially restricted the other parent’s interaction
with their child may not prove abandonment based on evidence that the
other has had only limited involvement with the child.” Id. at 293–94, ¶ 1,
304 P.3d at 1116–17; see also Michael J., 196 Ariz. at 251, ¶ 25, 995 P.2d at
687 (noting that DCS “may not unduly interfere with” parent–child
relationship and still terminate parental rights based on abandonment)
(citation omitted). There, the mother repeatedly—over the course of
years—blocked the father’s continual, substantial efforts to communicate
with his child despite the roadblocks created by the mother. See Calvin B.,
232 Ariz. at 294–95, 297, ¶¶ 2–8, 22–24, 304 P.3d at 1118–19, 1120
(describing how, in the wake of a dissolution decree allowing father
“liberal visitation” and a later order establishing fixed parenting time,
mother allowed contact for only minutes at a time, then sought two orders
of protection, ignored father’s requests for visits, and contacted police to
prevent visits; father persistently requested visits, and even sought and
received a court order for parenting time, which the mother violated by
refusing contact).
¶32 Father’s minimal efforts in this case are a far cry from the
persistent efforts to establish communication in Calvin B. Here, the only
alleged restriction on Father’s ability to communicate with his children is
his claim that in October 2013, DCS stopped his phone calls through
Mother to the children. We note that neither the parent-aide notes nor
DCS’s progress reports to the court mention any such restriction on
Father’s communication with the children. In any event, Father does not
address his failure to act in the two years between removal and the
alleged restriction, sending only two letters and making at most a few
phone calls. Moreover, after October 2013, Father made no effort to
contact DCS to reestablish communication, either directly or through his
attorney, and he did not ask the court to allow communication during the
two hearings at which he appeared prior to the severance trial. As our
supreme court has noted, although DCS “may not unduly interfere with”
a parent’s efforts to create or maintain a relationship with a dependent
child, “[t]he burden to act as a parent rests with the parent, who should
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assert his legal rights at the first and every opportunity.” Michael J., 196
Ariz. at 251, ¶ 25, 995 P.2d at 687 (citation omitted). Father failed to do so.
¶33 Because Father made only minimal efforts to communicate
with the children, we affirm the superior court’s order severing his
parental rights as to J.T., Y.T., and M.T. on grounds of abandonment.
Because we affirm on this ground, we need not address the alternative
ground of 15 months’ time in care. See Michael J., 196 Ariz. at 251, ¶ 27,
995 P.2d at 687.
CONCLUSION
¶34 For the foregoing reasons, we affirm.
:gsh
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