Ronda J. v. Dcs ( 2015 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
RONDA J., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, A.M., K.J., A.M., Appellees.
No. 1 CA-JV 15-0253
FILED 12-22-2015
Appeal from the Superior Court in Maricopa County
No. JD 38003
The Honorable Bradley H. Astrowsky, Judge
AFFIRMED
COUNSEL
Czop Law Firm, P.L.L.C., Higley
By Steven Czop
Counsel for Appellant
Arizona Attorney General’s Office, Phoenix
By JoAnn Falgout
Counsel for Appellee Department of Child Safety
RONDA J. v. DCS, et al.
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Margaret H. Downie delivered the decision of the Court,
in which Judge Patricia A. Orozco and Judge Maurice Portley joined.
D O W N I E, Judge:
¶1 Ronda J. (“Mother”) appeals from an order terminating her
parental rights. For the reasons that follow, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Mother was convicted of child abuse involving her eldest
son, K.J., in 2006.1 Mother violated her terms of probation and was
sentenced to a one-year prison term; the child abuse conviction was
designated a felony.
¶3 On October 16, 2013, the Department of Child Safety
(“DCS”) received a report that Mother’s newborn daughter had been
hospitalized due to non-accidental injuries.2 (K.J. later admitted causing
the injuries.) The same day, Mother assaulted her 68-year-old mother,
whom she held down, hit, and choked. DCS took custody of the children.
Mother subsequently pled guilty to vulnerable adult abuse, a class four
felony and domestic violence offense. She was sentenced in March 2014 to
2.5 years in prison.
¶4 At a March 26, 2014 juvenile court hearing, Mother asked the
court to order that the children visit her in prison. The court directed DCS
to consult with the youngest child’s doctor about such visits, and DCS also
agreed to consult a psychologist regarding a different child’s visits. The
minute entry from that hearing states, in pertinent part:
IT IS ORDERED allowing the mother to have visitation with
the children at the Arizona Department of Corrections if the
1 Mother has four children, three of whom remain in DCS care. K.J.
was dismissed as a party when he turned 18 in 2014.
2 The Arizona Department of Economic Security originated this
action but was later replaced by the Department of Child Safety. See S.B.
1001, 51st Leg., 2d Spec. Sess. (Ariz. 2014).
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RONDA J. v. DCS, et al.
Decision of the Court
children can be safely transported and if [A.M.]’s
pediatrician indicates that is alright for her to visit as well.
The Department shall make arrangements for the children to
be transported to the visits.
¶5 At a hearing on August 26, 2014, the court changed the case
plan to severance and adoption. Counsel for Mother advised the court
that visits with the children had not yet occurred. The children’s guardian
ad litem objected to any prison visits, but the court ordered DCS to “have a
psychological consult regarding whether the children would be harmed
visiting the mother in prison.”
¶6 DCS subsequently moved to terminate Mother’s parental
rights, and a severance trial occurred in May 2015. Mother remained
incarcerated at the time of the trial.
¶7 The court issued a ruling terminating Mother’s parental
rights on the ground of willful abuse of a child under Arizona Revised
Statutes (“A.R.S.”) section 8-533(B)(2).3 Mother timely appealed. 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 108(B).
DISCUSSION
¶8 Mother argues the severance order must be reversed
because: (1) DCS did not make reasonable efforts at reunification; and (2)
an insufficient nexus exists between her child abuse conviction and the
risk of future abuse. We will affirm an order terminating parental rights
unless the juvenile court’s findings are clearly erroneous, meaning the
record lacks any reasonable evidence to support them. See Minh T. v. Ariz.
Dep’t of Econ. Sec., 202 Ariz. 76, 78–79, ¶ 9 (App. 2001).
I. Reunification Efforts
¶9 The only specific contention Mother raises about
reunification services is that DCS “could have done a more diligent effort
in providing visitation with the children to see how Mother interacted
with [them].” For purposes of our analysis, we assume, without deciding,
3 DCS also alleged the length of Mother’s prison sentence as a basis
for termination under A.R.S. § 8-533(B)(4), but the court concluded DCS
failed to prove that ground.
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Decision of the Court
that DCS must make reasonable efforts at reunification where, as here,
termination is grounded on willful abuse of another child.
¶10 Mother received three prison visits with the children, though
the first visit did not occur until April 2015. The record reflects that DCS
pursued visitation earlier, submitting requests for monthly supervised
prison visits in June 2014. DCS explained that some of the delay stemmed
from prison-imposed limitations, communication difficulties with
corrections officials, and a lack of providers or family members willing to
transport and supervise the children.
¶11 Moreover, even assuming DCS should have more diligently
pursued visitation, Mother has not demonstrated that additional visits
would have addressed the problems that led to termination of her
parental rights — specifically, her issues with anger and violence. See
Mary Ellen C. v. Ariz. Dep’t of Econ. Sec., 193 Ariz. 185, 186, ¶ 1 (App. 1999)
(DCS is only obligated to undertake measures with a reasonable
possibility of rehabilitating a parent.). In its severance ruling, the juvenile
court stated:
Despite Mother’s conviction for [abusing K.J.], the time she
spent on probation for same, and the fact that she is
presently serving a prison term for violating her probation
pertaining to this abuse, Mother demonstrated no remorse
and a complete lack of understanding of the wrongfulness of
her abuse. At trial, Mother blamed [K.J.]’s facial injuries to
his “squirming.” Mother’s [sic] through her words and
demeanor at trial, failed to convince this Court that she had
any remorse for abusing [K.J.] or that she believed, even to
the slightest degree, that her behavior was inappropriate.
Add to this act of violence, Mother’s additional act of
violence against a vulnerable adult on October 16, 2013, and
a clear picture is presented of an individual with an anger
problem and a propensity towards violence.
¶12 Mother argues visitation “would have been beneficial in
assessing [her] ability to parent and her temperament.” But a reasonable
trier of fact could conclude that the highly controlled environment of a
prison would not be a reliable predictor of whether Mother’s long-
standing anger and violence issues would place the children at risk if they
were in her care in a non-custodial setting.
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RONDA J. v. DCS, et al.
Decision of the Court
¶13 Contrary to Mother’s suggestion, the juvenile court
implicitly made a reasonable efforts finding. See Mary Lou C. v. Ariz. Dep’t
of Econ. Sec., 207 Ariz. 43, 50, ¶ 17 (App. 2004) (If court fails to expressly
make a necessary finding, we may determine whether the record supports
an implicit finding.). The court noted that it was required to “find that
DCS made reasonable efforts to reunify the family, or that such efforts
would have been futile.” It also observed that “DCS must prove the
statutory ground, [including] the reasonable efforts aspect by clear and
convincing evidence.” The court concluded DCS had proven “each
required element of A.R.S. § 8-533(B)(2) by clear and convincing
evidence.” See Ariz. Dep’t of Econ. Sec. v. Rocky J., 234 Ariz. 437, 441, ¶ 14
(App. 2014) (“juvenile court will be deemed to have made every finding
necessary to support the judgment”).
II. Grounds for Termination
¶14 When a severance order is based on abuse of another child,
“DCS must show a constitutional nexus between the prior abuse and the
risk of future abuse to the child at issue.” Tina T. v. Dep't of Child Safety,
236 Ariz. 295, 299, ¶ 17 (App. 2014). Mother argues there was an
insufficient nexus between her child abuse conviction and the termination
of her parental rights. She further argues the “subsequent conviction for
vulnerable adult abuse is not a sufficient nexus to show that Mother will
be a threat to any child in the future.” We disagree.
¶15 Considered together and in context, Mother’s felony
conviction for child abuse, her more recent felony conviction for
vulnerable adult abuse, and her dismissive attitude toward both matters
provided the necessary nexus. See Tina T., 236 Ariz. at 299–300, ¶¶ 17–18
(if the facts demonstrate “abuse would likely occur again,” termination
based on prior abuse of another child is proper). In its ruling, the juvenile
court explained the ongoing risk of abuse:
The fact that Mother acted in a violent manner against a
vulnerable adult despite her prior conviction for abusing a
vulnerable child demonstrates that any child, or person,
with whom Mother has contact is at great risk of harm and
physical abuse the next time Mother gets upset with that
child or person. Had Mother not committed another violent
offense and demonstrated an understanding of the
wrongfulness of her violent past, the Court may have
reached a different conclusion. Sadly for Mother, this is not
the set of facts before the Court at this time.
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Decision of the Court
¶16 The court also found that Mother expressed “no remorse”
for assaulting her mother and noted her “significant” history with DCS.
The court described the severity of K.J.’s abuse quite differently from
Mother’s more benign portrayal, stating:
Mother’s neighbors reported they heard a child being beaten
inside Mother’s home, as they heard the child’s screams.
Mother admitted to law enforcement that she was
“disciplining” [K.J.], then age 10. Mother further reported to
“whipping his ass” the week prior as well. [K.J.] was
observed with a large bruise and bump on his left eye and
multiple new and old bruises and welts on his upper legs,
lower back, and buttocks.
¶17 The facts that the juvenile court cited and relied upon were
relevant to an assessment of future risk. The termination order is
supported by both reasonable evidence and an appropriate constitutional
nexus.
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Decision of the Court
CONCLUSION
¶18 We affirm the order terminating Mother’s parental rights.
:ama
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