Salynda H., Paul T. v. Dcs ( 2020 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
SALYNDA H., PAUL T., Appellants,
v.
DEPARTMENT OF CHILD SAFETY, C.H., M.T., P.T., Appellees.
No. 1 CA-JV 19-0234
FILED 3-17-2020
Appeal from the Superior Court in Mohave County
No. B8015JD201804062
The Honorable Rick A. Williams, Judge
AFFIRMED
COUNSEL
Harris & Winger, P.C., Flagstaff
By Chad Joshua Winger
Counsel for Appellant Salynda H.
The Stavris Law Firm, P.L.L.C., Scottsdale
By Alison Stavris
Counsel for Appellant Paul T.
Arizona Attorney General’s Office, Mesa
By Thomas Jose
Counsel for Appellee Department of Child Safety
SALYNDA H., PAUL T. v. DCS
Decision of the Court
MEMORANDUM DECISION
Judge Kenton D. Jones delivered the decision of the Court, in which
Presiding Judge Michael J. Brown and Judge D. Steven Williams joined.
J O N E S, Judge:
¶1 Salynda H. (Mother) and Paul T. (Father) appeal from the
juvenile court’s order terminating their parental rights to C.H., M.T., and
P.T. (the Children),1 arguing the Department of Child Safety (DCS) failed to
prove the statutory grounds for severance by clear and convincing evidence
and failed to prove by a preponderance of the evidence that termination
would serve the Children’s best interests. For the following reasons, we
affirm.
FACTS AND PROCEDURAL HISTORY
¶2 In June 2018, DCS received a report that the parents had not
sought timely medical care for twelve-year-old C.H. after she attempted
suicide.2 DCS removed C.H. and her eight-month- and three-year-old
siblings from Mother’s and Father’s care after observing the Children
“riddled with lice” in a filthy home shared with ten other people and
reviewing the parents’ extensive history of substance abuse, untreated
mental health concerns, and general failure to care for the Children, as
documented through prior DCS investigations. DCS then filed a petition
alleging the Children were dependent as to both parents on the grounds of
neglect, substance abuse, and mental health. Father did not contest the
allegations of the petition, and Mother did not appear for the initial
dependency hearing. The juvenile court adjudicated the Children
dependent as to both parents in July and August 2018.
1 Father is not the biological parent of C.H. C.H.’s father is not a party
to this appeal.
2 We view the evidence in the light most favorable to upholding the
juvenile court’s order terminating parental rights. Yvonne L. v. Ariz. Dep’t
of Econ. Sec., 227 Ariz. 415, 422, ¶ 27 (App. 2011) (citing Maricopa Cty. Juv.
Action No. JD-5312, 178 Ariz. 372, 376 (App. 1994)).
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Decision of the Court
¶3 Meanwhile, Mother presented for a mental health assessment
“laughing uncontrollably” and “making various erratic statements.” The
clinician diagnosed Mother with unspecified persistent mood disorder and
recommended Mother participate in a nursing assessment, a psychiatric
evaluation, medication management, and group counseling. Mother
missed a scheduled psychiatric evaluation in July 2018, and the clinic was
unable to contact her to reschedule. DCS later learned the parents had left
Arizona rather than engage in services.
¶4 Mother contacted the behavioral health clinic in August 2018
to request medication but did not present for a nursing assessment until
October. The clinician documented concerns regarding Mother’s mental
functioning and the depression, anxiety, and obsessive-compulsive
behaviors she reported. It was again recommended that Mother participate
in a psychiatric evaluation, as well as psychoeducation and individual and
group therapy. DCS was unable to proceed with psychiatric services until
Mother established some period of sobriety.
¶5 Father presented for a mental health assessment in September
2018. The clinician diagnosed Father with an unspecified mood disorder
and recommended he participate in a nursing assessment, psychiatric
evaluation, and group counseling. At a psychological consult in October,
the clinician documented concerns regarding Father’s aggressive and
controlling behavior. He recommended Father be assessed for anti-social
personality disorder and potential for future drug abuse and domestic
violence relationships.
¶6 Mother and Father began attending a substance abuse course
and a parenting class in October 2018. Neither parent engaged in any
meaningful way in substance abuse testing, domestic violence counseling,
or the recommended mental health services. By November, the parents had
changed residences five times, and Mother lacked any legal source of
income. Nor had the parents gained any insight into their circumstance or
made any behavioral changes suggesting either was prepared to care for
the Children. They attended visits unprepared to feed or care for the
Children, were verbally abusive to the parent aide, and frequently cancelled
or asked to end visits early.
¶7 Despite testing positive for marijuana and methamphetamine
in November 2018, Mother and Father denied any history of substance
abuse. When presented with evidence that two of the Children had been
born substance-exposed and Father had a lengthy drug-related criminal
history, Mother blamed faulty drug test results and Father clarified he was
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Decision of the Court
not currently abusing substances. They both later admitted actively and
regularly using marijuana. Mother also denied a history of mental illness,
blaming an undocumented brain aneurysm for her erratic behavior.
¶8 Noting the parents’ lack of consistency, cooperation, and
contact with DCS, the juvenile court changed the case plan to severance and
adoption in December 2018. DCS immediately moved to terminate
Mother’s and Father’s parental rights to the Children on the grounds of
neglect, mental illness, and substance abuse, and to P.T. based upon the
length of time in out-of-home care. Meanwhile, C.H. elaborated on the
parents’ drug activity and reported multiple instances of physical abuse
perpetrated by Father against the Children and other relatives. C.H.
declined to participate in visits, and visits with M.T. and P.T. were
suspended when the Children began acting out physically and emotionally
afterward.
¶9 By the time of trial in May 2019, Mother and Father had
completed substance abuse treatment and a parenting class. But the parents
had submitted only three or four drug tests in the year that had passed since
the Children’s removal and recently tested positive for marijuana.
Moreover, DCS had been unable to contact them at their most recently
reported address, and a potential adoptive placement withdrew her request
for consideration after Father threatened her. Additionally, Mother had
three active warrants for her arrest relating to criminal charges of disorderly
conduct, trespass, and shoplifting.
¶10 The DCS case manager testified the parents were “going
through the motions,” but had not made behavioral changes necessary to
demonstrate their ability to parent the Children. For example, the parents
participated in substance abuse treatment but continued to deny any
substance abuse history and continued to abuse substances. Given their
lack of insight and lackluster participation, the case manager opined that
Mother’s and Father’s substance abuse was likely to continue for a
prolonged indeterminate period.
¶11 The DCS case manager also testified that termination of
Mother’s and Father’s parental rights would serve the Children’s best
interests. She testified the Children were adoptable, DCS had identified
two relative adoptive placements, and adoption would give the Children
an opportunity for permanency, together, in a safe, stable home free from
substance abuse and neglect. Additionally, C.H. wished to be adopted into
a home where she was not responsible for caring for her younger siblings.
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¶12 Mother and Father testified regarding their participation in
services. Mother self-reported ninety days of sobriety and stated she was
ready to parent the Children.
¶13 After taking the matter under advisement, the juvenile court
entered an order finding DCS proved by clear and convincing evidence that
it had made diligent efforts to reunify the family but termination of both
parents’ parental rights to the Children was warranted because Mother and
Father had neglected the Children and were unable to discharge parental
responsibilities because of substance abuse. See Ariz. Rev. Stat. (A.R.S.) § 8-
533(B)(2), (3).3 The court also found termination of Mother’s parental rights
to the Children was warranted because she was unable to discharge
parental responsibilities because of mental illness, see A.R.S. § 8-533(B)(3),
and termination of both parents’ parental rights to P.T. was warranted
because they had substantially neglected or willfully refused to remedy the
circumstances causing him to be in out-of-home care for longer than six
months, see A.R.S. § 8-533(B)(8)(b). The court found that severance of both
parents’ rights served the Children’s best interests, and entered an order
terminating Mother’s and Father’s parental rights. Both parents timely
appealed, and we have jurisdiction pursuant to 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
I. Statutory Grounds for Severance
¶14 In certain circumstances, the juvenile court must find, by clear
and convincing evidence, that DCS made diligent efforts to provide
reunification services to parents prior to terminating parental rights.4 See,
e.g., A.R.S. § 8-533(B)(8) (requiring diligent reunification efforts when
termination is based upon the child’s length of time in out-of-home care);
Mary Lou C. v. Ariz. Dep’t of Econ. Sec., 207 Ariz. 43, 49, ¶¶ 14-15 (App. 2004)
(requiring diligent reunification efforts when termination is based upon the
3 Absent material changes from the relevant date, we cite the current
version of rules and statutes.
4 Mother argues the U.S. Constitution requires a diligent-efforts
finding before parental rights may be terminated on any of the grounds
enumerated within A.R.S. § 8-533(B). Because we find the parents waived
their challenge to the juvenile court’s finding of diligent efforts, we need
not and do not address this broader proposition.
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parent’s chronic substance abuse). Mother and Father argue insufficient
evidence supports the court’s diligent-efforts finding here.
¶15 However, if a parent does not believe the reunification efforts
are appropriate, it is “incumbent on [the parent] to promptly bring those
concerns to the attention of the juvenile court, thereby giving that court a
reasonable opportunity to address the matter.” Shawanee S. v. Ariz. Dep’t of
Econ. Sec., 234 Ariz. 174, 179, ¶ 18 (App. 2014). “[A] parent who does not
object in the juvenile court is precluded from challenging that finding on
appeal.” Id. at ¶ 16 (citations omitted). The rationale for this rule is sound:
It serves no one to wait to bring such concerns to light for the
first time on appeal, when months have passed since the
severance order was entered. Instead, a parent’s failure to
assert legitimate complaints in the juvenile court about the
adequacy of services needlessly injects uncertainty and
potential delay into the proceedings, when important rights
and interests are at stake and timeliness is critical.
Id. at 178-79, ¶ 16; see also Trantor v. Fredrikson, 179 Ariz. 299, 300 (1994)
(“[A]bsent extraordinary circumstances, errors not raised in the trial court
cannot be raised on appeal” because “a trial court and opposing counsel
should be afforded the opportunity to correct any asserted defects before
error [is] raised on appeal.”) (citing Van Dever v. Sears, Roebuck & Co., 129
Ariz. 150, 151-52 (1981), and United States v. Globe Corp., 113 Ariz. 44, 51
(1976)). Such an objection may be raised during any number of proceedings
before the juvenile court, including at a dependency hearing, periodic
review hearings, the permanency planning hearing, and even the
termination hearing. Shawanee S., 234 Ariz. at 178, ¶ 14.
¶16 On appeal, Father argues DCS should have done more to
locate the parents when they moved out-of-state, and both Mother and
Father suggest DCS should have re-referred them for parenting classes and
drug testing. But neither parent challenged the adequacy of the services
provided by DCS in the juvenile court.5 Indeed, both Mother and Father
testified at trial that they had participated in or were completing those very
5 At the termination hearing, Mother’s counsel suggested DCS acted
inappropriately when it moved to suspend visitation and failed to request
and/or produce records from organizations where Mother and Father
claimed to be receiving services. These are not challenges to reunification
services, and, regardless, Mother does not re-advance these arguments on
appeal.
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services; Mother further suggested that additional services were
unnecessary because she believed she was already ready and able to parent
the Children.
¶17 On this record, Mother and Father waived the opportunity to
challenge the diligence of DCS’s reunification efforts by failing to raise the
issue in prior proceedings despite ample opportunity to do so. Because
neither parent otherwise challenges the juvenile court’s findings
supporting termination on the grounds of substance abuse under A.R.S. § 8-
533(B)(3), the determination that DCS proved at least one of the statutory
grounds for severance by clear and convincing evidence is affirmed. See
Crystal E. v. DCS, 241 Ariz. 576, 577, ¶ 5 (App. 2017) (holding a parent’s
failure to challenge termination on a specific statutory ground constitutes
abandonment and waiver of that issue on appeal) (citations omitted).6
II. Best Interests
¶18 Mother and Father argue the juvenile court abused its
discretion in finding termination was in the Children’s best interests. To
establish best interests, it must be shown that a child “would derive an
affirmative benefit from termination or incur a detriment by continuing in
the relationship.” Ariz. Dep’t of Econ. Sec. v. Oscar O., 209 Ariz. 332, 334, ¶ 6
(App. 2004) (citations omitted); accord Demetrius L. v. Joshlynn F., 239 Ariz.
1, 4, ¶ 16 (2016). The inquiry is a fact-specific, case-by-case determination,
in which the court balances “the unfit parent’s ‘diluted’ interest ‘against the
independent and often adverse interests of the child in a safe and stable
home life.’” Demetrius L., 239 Ariz. at 4, ¶¶ 13, 15 (quoting Kent K. v. Bobby
M., 210 Ariz. 279, 286, ¶ 35 (2005)). We review the best-interests finding for
an abuse of discretion and will only reverse if “as a matter of law, no
reasonable fact-finder could have found the evidence satisfied the
applicable burden of proof.” Titus S. v. DCS, 244 Ariz. 365, 369, ¶ 15 (App.
2018) (citing Mary Lou C., 207 Ariz. at 47, ¶ 8, and Denise R. v. Ariz. Dep’t of
Econ. Sec., 221 Ariz. 92, 94-95, ¶¶ 9-10 (App. 2009)).
6 Because we find clear and convincing evidence supports the
termination order based upon Mother’s and Father’s substance abuse, we
need not and do not consider whether the remaining grounds are
supported by the record. Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278,
280, ¶ 3 (App. 2002) (citing Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz.
246, 251, ¶ 27 (2000), and Maricopa Cty. Juv. Action No. JS-6520, 157 Ariz. 238,
242 (App. 1988)).
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Decision of the Court
¶19 Father argues termination was “not the best option,” pointing
to evidence suggesting he was an appropriate parent. Mother joins the
argument. But the juvenile court acknowledged that the parents had
participated in some services and secured housing and employment but
nonetheless balanced the evidence in favor of the Children’s interest in
permanency, after finding:
[The Children] have been in temporary custody for
approximately one year. The parents have not been able to
care for their children. They don’t recognize the [C]hildren’s
need for structure and safety. They do not appreciate [C.H.]’s
need to attend school regularly and, most importantly, they
fail to acknowledge her behavioral and emotional needs. The
parents still do not acknowledge any of their own problems
involving mental illness and substance abuse.
...
Termination of parental rights will make the [C]hildren
available for adoption so they can benefit from a safe, stable
forever home.
¶20 These findings are supported by the record and are sufficient
to justify the juvenile court’s conclusion that termination was in the
Children’s best interests. See Demetrius L., 239 Ariz. at 4-5, ¶ 16 (“It is well
established in state-initiated cases that the child’s prospective adoption is a
benefit that can support a best-interests finding.”) (citing Raymond F. v. Ariz.
Dep’t of Econ. Sec., 224 Ariz. 373, 379, ¶ 30 (App. 2010)); Kent K., 210 Ariz. at
287, ¶ 37 (recognizing “the child’s interest in obtaining a loving, stable
home, or at the very least avoiding a potentially harmful relationship with
a parent, deserves at least as much weight as that accorded the interest of
the unfit parent in maintaining parental rights”); Maricopa Cty. Juv. Action
No. JS-6831, 155 Ariz. 556, 559 (App. 1988) (finding the existence of a
statutory ground for severance that negatively effects a child to be relevant
to the best-interests analysis). On this record, we cannot say the court
abused its discretion.
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Decision of the Court
CONCLUSION
¶21 The juvenile court’s order terminating Mother’s and Father’s
parental rights to the Children is affirmed.
AMY M. WOOD • Clerk of the Court
FILED: AA
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