Juana C. v. Dcs, J.C.

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
JUANA C., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, J.C., Appellee.
No. 1 CA-JV 18-0317
FILED 2-21-2019
Appeal from the Superior Court in Maricopa County
No. JD20142
The Honorable Sara J. Agne, Judge
AFFIRMED
COUNSEL
Law Office of H. Clark Jones, L.L.C., Mesa
By H. Clark Jones
Counsel for Plaintiff/Appellant
Arizona Attorney General’s Office, Tucson
By Cathleen E. Fuller
Counsel for Appellee Department of Child Safety
JUANA C. v. DCS, J.C.
Decision of the Court
MEMORANDUM DECISION
Judge Kenton D. Jones delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Chief Judge Samuel A.
Thumma joined.
J O N E S, Judge:
¶1 Juana C. (Mother) appeals the juvenile court’s order
terminating her parental rights to J.C. (Child), arguing the Department of
Child Safety (DCS) failed to prove by clear and convincing evidence that it
made diligent efforts to provide appropriate reunification services and
failed to prove termination was in Child’s best interests by a preponderance
of the evidence. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Child was born with a rare genetic condition characterized by
developmental delays, facial anomalies, and abnormal muscle tone.1 At
four years old, Child cannot walk, bathe, or feed himself unassisted, and is
largely nonverbal. Child receives occupational and physical therapy, takes
speech and feeding classes, and requires special equipment to help with
mobility and the strengthening of his back and legs.
¶3 In April 2015, Mother left then-one-year-old Child at home
alone while she walked a half-mile with three-year-old A.S. to pick up six-
year-old B.S. and seven-year-old H.S. (collectively, the Siblings) from their
school. When Mother returned home, she was arrested on an outstanding
warrant for failing to appear for court on charges of child abuse against B.S.
Mother was released the next day and ordered not to have any contact with
minors. DCS removed all four children from Mother’s care and filed a
petition alleging they were dependent as to Mother on the grounds of
1 “[W]e view the evidence and reasonable inferences to be drawn from
it in the light most favorable to sustaining the court’s decision.” Jordan C.
v. Ariz. Dep’t of Econ. Sec., 223 Ariz. 86, 93, ¶ 18 (App. 2009) (citing Jesus M.
v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 282, ¶ 13 (App. 2002)).
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JUANA C. v. DCS, J.C.
Decision of the Court
neglect.2 The children were adjudicated dependent as to Mother in October
2015, and the juvenile court adopted a case plan of family reunification with
a concurrent case plan for Child of severance and adoption.
¶4 Mother was released from jail in February 2016 and, after
being deported, immediately returned to the United States on a work
permit. In June 2016, DCS referred Mother for parent aide services,
supervised visitation, parenting classes, a psychological evaluation, and
domestic violence counseling. She was also provided a nutritional coach
and parent partner, given information regarding community resources, and
offered transportation assistance as needed. She engaged in services,
obtained full-time employment, and secured appropriate housing.
¶5 The Siblings returned to Mother’s care full-time in July 2017,
but Mother’s visits with Child remained supervised as she struggled to
understand his diagnoses, prognosis, and special needs nearly two years
after his removal from her care. In August, DCS provided an additional
parent aide to work one-on-one with Mother to help her better understand
Child’s needs and arranged transportation for Mother to attend Child’s
therapeutic services each week as an opportunity to learn about his
physical, educational, and occupational needs. Mother attended only a few
appointments, and when DCS offered to facilitate additional contact and
visits through an approved safety monitor, Mother declined.
¶6 Around this same time, Mother completed a developmental
assessment, which reflected borderline intellectual functioning with a
guarded prognosis of improvement. As a result, Mother “literally . . .
cannot understand and comprehend [Child’s] difficulties.” Thus, the
psychologist expressed concern regarding Mother’s ability to understand
and incorporate the skills needed to safely parent a special needs child and
noted that Child would be at risk for neglect if she failed to do so. DCS
referred Mother for additional counseling, at the psychologist’s
recommendation, to address her history of past trauma and learn more
about Child’s needs.
¶7 Even with these additional services and regular discussions
with DCS and Child’s medical and care providers, Mother continued to
misstate Child’s diagnosis, question “what is wrong with [Child],” and ask
when she could expect him to “be normal.” In October 2017, the juvenile
2 DCS also alleged the children were dependent as to their fathers,
whose parental rights were terminated in March 2017 and August 2018.
Neither these fathers, nor the Siblings, are parties to this appeal.
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JUANA C. v. DCS, J.C.
Decision of the Court
court granted DCS’s request to change the case plan for Child to severance
and adoption. DCS immediately moved to terminate Mother’s parental
rights based upon her failure to remedy the circumstances causing Child to
be in an out-of-home placement for fifteen months. Shortly thereafter, the
parent aide confirmed Mother had yet to demonstrate she could safely and
consistently care for and supervise Child and closed the service as
unsuccessful.
¶8 DCS submitted a third referral for parent aide services in early
2018. Mother was assigned two parent aides to provide guidance during
visits and two to teach parenting skills, along with a Spanish interpreter.
The aides incorporated Child’s physical, occupational, and speech
therapies into Mother’s routine to help her better understand his needs.
Mother participated in the sessions but did not ask questions. She did not
retain information from day to day and had to be prompted to change
Child’s diaper during the visit.
¶9 At the contested severance hearing in June 2018, the DCS
caseworker expressed continued concern regarding Mother’s inability to
recognize and meet Child’s special needs and failure to fully engage in his
care by attending his appointments and therapies or educating herself on
his conditions. A parent aide testified she knew of Mother’s cognitive
difficulties, and repeated directions and slowed her pace to accommodate
Mother’s level of functioning. Based upon her observations however, the
aide agreed Mother had not made any progress toward understanding
Child’s medical and emotional needs or developing the necessary skills to
independently meet them. The psychologist opined that, in light of
Mother’s borderline intellectual functioning, she “would need an extensive
amount of time and lots of supports . . . [d]efinitely more than a year” to
properly parent Child, who had already been in out-of-home care for more
than three years and, in the meantime, remained at risk for neglect.
¶10 Mother testified she loved Child and was willing to learn how
to care for him. The DCS caseworker confirmed the placement was meeting
Child’s needs, was willing and able to adopt Child, and that Child was
otherwise adoptable.
¶11 After taking the matter under advisement, the juvenile court
found DCS had proved by clear and convincing evidence that it had made
diligent efforts to provide appropriate reunification services but
termination of Mother’s parental rights was warranted because she had
been unable to remedy the circumstances causing Child to be in an out-of-
home placement for longer than fifteen months. See Ariz. Rev. Stat. (A.R.S.)
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JUANA C. v. DCS, J.C.
Decision of the Court
§ 8-533(B)(8)(c).3 The court also found severance was in Child’s best
interests and entered an order terminating Mother’s parental rights.
Mother 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
¶12 A parent’s rights may be terminated if the juvenile court finds
by clear and convincing evidence that: (1) the child has been in out-of-home
care for fifteen months or longer; (2) DCS has made diligent efforts to
provide appropriate reunification services to the parent; (3) “[t]he parent
has been unable to remedy the circumstances that cause the child to be in
an 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 in the near future.” A.R.S. § 8-533(B)(8)(c); Jordan C., 223
Ariz. at 93, ¶ 17. The court must also find by a preponderance of the
evidence that termination of the parent-child relationship is in the child’s
best interests. Ariz. R.P. Juv. Ct. 66(C); Alma S. v. DCS, 245 Ariz. 146, 149-
50, ¶ 8 (2018) (citing Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 22 (2005)). We
will affirm a termination order “unless there is no reasonable evidence to
support” the court’s factual findings. Audra T. v. Ariz. Dep’t of Econ. Sec.,
194 Ariz. 376, 377, ¶ 2 (App. 1998) (citing Maricopa Cty. Juv. Action No. JS-
4374, 137 Ariz. 19, 21 (App. 1983), and Maricopa Cty. Juv. Action No. JS-378,
21 Ariz. App. 202, 204 (1974)).
I. DCS Made Diligent Efforts to Provide Mother with Appropriate
Reunification Services.
¶13 Mother does not dispute the time Child has been in out-of-
home care or the juvenile court’s finding that she is presently unable to care
for him; she argues only that the court erred in finding clear and convincing
evidence that DCS made diligent efforts to provide her with rehabilitative
services and that continuing such efforts would have been futile. DCS
makes diligent efforts when it provides a parent with “the time and
opportunity to participate in programs designed to help her become an
effective parent.” Maricopa Cty. Juv. Action No. JS-501904, 180 Ariz. 348, 353
(App. 1994). DCS is not, however, required to provide “every conceivable
3 Absent material changes from the relevant date, we cite the current
version of rules and statutes.
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JUANA C. v. DCS, J.C.
Decision of the Court
service,” or ensure a parent’s participation or successful completion of the
services. Id.
¶14 Mother argues the parent aide services were inadequate
because the assigned parent aides did not have any specific skills or training
in assisting parents with cognitive delays and employed a “hands-off
approach” that was inappropriate for her needs. But we do not reweigh
evidence on appeal; as the trier of fact, the juvenile court “is in the best
position to weigh the evidence, observe the parties, judge the credibility of
witnesses, and resolve disputed facts.” Ariz. Dep’t of Econ. Sec. v. Oscar O.,
209 Ariz. 332, 334, ¶ 4 (App. 2004) (citing Jesus M., 203 Ariz. at 280, ¶ 4). The
court here specifically considered Mother’s arguments regarding
purported deficiencies in the parent aide service but nonetheless found
DCS had been diligent in providing Mother with the best available parent
aide services. We will not second-guess the court’s assessment of the
circumstances. Reasonable evidence supports its conclusion that DCS
made diligent efforts to provide reunification services, and we find no error.
II. Termination of Mother’s Parental Rights is in Child’s Best
Interests.
¶15 Mother argues the juvenile court abused its discretion in
finding termination of her parental rights was in Child’s best interests.
Mother argues Child would neither benefit from severance nor suffer from
continuing the relationship with her because she loves Child and is willing
to care for him “if she were taught the skills necessary to help [him].”
¶16 The existence of a bond with the parent, “although a factor to
consider, is not dispositive in addressing best interests.” Dominique M. v.
DCS, 240 Ariz. 96, 98, ¶ 12 (App. 2016) (citing Bennigno R. v. Ariz. Dep’t of
Econ. Sec., 233 Ariz. 345, 351, ¶ 30 (App. 2013)). Rather, the juvenile court
must consider all relevant facts and determine, on a case-by-case basis,
whether a preponderance of the evidence supports a finding that the child
“would derive an affirmative benefit from termination or incur a detriment
by continuing in the relationship.” Oscar O., 209 Ariz. at 334, ¶ 6 (citations
omitted); accord Demetrius L. v. Joshlynn F., 239 Ariz. 1, 4, ¶ 16 (2016). The
benefit to the child, particularly when severance is sought based upon the
length of time in an out-of-home placement, is the opportunity for
permanency in lieu of remaining indefinitely in a situation where “parents
maintain parental rights but refuse to assume parental responsibilities.”
Oscar O., 209 Ariz. at 337, ¶ 16 (quoting Maricopa Cty. Juv. Action No. JS-
6520, 157 Ariz. 238, 243 (App. 1988)). The court may also consider whether
the presence of a statutory ground for severance will have a negative effect
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Decision of the Court
upon the child. Bennigno R., 233 Ariz. at 350, ¶ 23 (quoting Maricopa Cty.
Juv. Action No. JS-6831, 155 Ariz. 556, 559 (App. 1988)).
¶17 The juvenile court here found Child had been in out-of-home
care for more than three years. Despite this lengthy period, Mother had
“not yet learned enough about his condition to meet his daily needs,” and
in fact was unable to understand his condition and needs, thus subjecting
him to a risk of neglect if he were returned to her care. The court noted it
was not in Child’s best interests to leave the window of opportunity for
remediation open indefinitely, and, “unfortunately, the time allowable for
Mother’s learning . . . has passed.” Meanwhile, Child was adoptable and
in an adoptive placement willing and able to meet his special needs. The
record supports these findings and provides an adequate basis for the
court’s resolution of the evidence in favor of Child’s interest in safety and
permanence. Accordingly, we find no abuse of discretion.
CONCLUSION
¶18 The juvenile court’s order terminating Mother’s parental
rights to Child is affirmed.
AMY M. WOOD • Clerk of the Court
FILED: AA
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