Yessica R., Efrain R. v. Dcs

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
YESSICA R., EFRAIN R., Appellants,
v.
DEPARTMENT OF CHILD SAFETY, K.R., S.R., T.R., Appellees.
No. 1 CA-JV 19-0185
FILED 1-16-2020
Appeal from the Superior Court in Maricopa County
No. JD33687
The Honorable Jo Lynn Gentry, Judge
AFFIRMED
COUNSEL
Denise L. Carrol, Esq, Scottsdale
By Denise L. Carroll
Counsel for Appellant Yessica R.
The Stavris Law Firm, P.L.L.C., Scottsdale
By Alison Stavris
Counsel for Appellant Efrain R.
Arizona Attorney General’s Office, Phoenix
By Sandra L. Nahigian
Counsel for Appellee Department of Child Safety
YESSICA R., EFRAIN R. v. DCS, et al.
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Kenton D. Jones delivered the decision of the Court, in
which Judge James B. Morse Jr. and Judge Diane M. Johnsen joined.
J O N E S, Judge:
¶1 Yessica R. (Mother) and Efrain R. (Father) appeal from the
juvenile court’s orders terminating parental rights to K.R., S.R., and T.R.
(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 that termination was in the Children’s best interests by
a preponderance of the evidence. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 In January 2017, DCS received a report that Mother was
leaving the Children, then ages eleven, eight, and four, home alone
overnight several times per week in unsanitary conditions and without
sufficient food.2 Upon investigation, DCS learned Mother was not ensuring
the Children attended school regularly or addressing their medical needs.
Mother also admitted a history of cutting herself and substance abuse. She
reported ongoing methadone treatment and was observed with recent cuts
on her arms. Meanwhile, Father was approximately halfway through a
five-year prison term.
¶3 DCS removed the Children from Mother’s care and filed a
petition alleging they were dependent upon the ground of neglect. Mother
was referred for a psychological consult, substance abuse testing and
treatment, parent aide services, individual counseling, and visitation. A
psychologist expressed concern regarding Mother’s mental health but
recommended a comprehensive psychological evaluation after DCS
1 Father is not the biological parent of T.R. T.R.’s father is not a party
to this appeal.
2 “[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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YESSICA R., EFRAIN R. v. DCS, et al.
Decision of the Court
confirmed her compliance with methadone treatment. Father was
encouraged to participate in any self-improvement services and parenting
classes offered at the prison. The juvenile court adjudicated the Children
dependent as to both parents and adopted a case plan of family
reunification.
¶4 Mother initially engaged in parent aide services and
individual counseling. Although Mother made some progress toward her
goals, the parent aide expressed concern in June 2017 regarding Mother’s
communication with the Children, noting she “need[ed] . . . to work on . . .
not engaging in any conversations with her children that cause them stress,
fear or any trauma.” Mother did not complete her mental health objectives
or satisfactorily demonstrate hands-on parenting skills or the ability to
remain mentally present at visitation, and eventually closed out of the
service unsuccessfully in October 2017. She was later re-referred for
services but did not even attend the scheduled intake appointment.
¶5 Mother was evaluated for individual therapy in February
2017 and told that the recommended therapy, Dialectical Behavior Therapy
(DBT),3 would be ineffective while she was using methadone. Mother said
she would work with a medical provider to change her medication but did
not do so. She was placed in a different program but only attended half of
the sessions and observed to be “unreceptive to suggestions for change.”
When she was re-referred for continued counseling in September, Mother
chose not to re-engage.
¶6 Between March and May 2017, Mother missed seven of ten
scheduled urinalysis tests, and the service was closed for noncompliance.
After being re-referred in August, Mother participated in three scheduled
tests, then stopped testing altogether in October. Mother did not test
positive for any substances but declined to participate in a substance abuse
assessment or treatment.
¶7 In September 2017, DCS received records indicating Mother
was compliant with her methadone treatment. Although Mother had not
tested positive for any substances, the tests at the methadone clinic were
not supervised to ensure accuracy. Mother was thereafter referred for a
comprehensive psychological evaluation.
3 DBT is used to teach coping skills and emotional regulation to
individuals with personality disorders.
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YESSICA R., EFRAIN R. v. DCS, et al.
Decision of the Court
¶8 At the January 2018 evaluation, Mother disclosed a history of
depression. She stated she began cutting herself around age fourteen before
becoming addicted to pain medication and seeking treatment at the
methadone clinic, where she had been a patient for the past four years. The
psychologist diagnosed Mother with major depressive disorder, post-
traumatic stress disorder, other specified personality disorder, and opioid
use disorder. The psychologist reported that, together, these conditions
affected Mother’s impulse control, emotional regulation, and interpersonal
functioning. The psychologist opined that a child in Mother’s care
remained at risk for neglect and abuse.
¶9 The psychologist recommended Mother participate in a
substance abuse assessment and treatment, domestic violence classes, and
individual therapy, which “may” include DBT “to help with her cutting.”
She also suggested DCS “may want to . . . explore[]” psychiatric services to
determine if medication would be appropriate. Finally, the psychologist
found Mother’s prognosis to become a minimally adequate parent was
“dependent on [the] success of the current and proposed interventions” but
concluded that progress could take months or years.
¶10 Despite this evaluation, Mother’s participation in services did
not improve. Instead, she tested positive for opiates in early 2018. She did
not re-engage in substance abuse testing after a third referral in February
2018, or a fourth in August. She did attend a substance abuse assessment
in August 2018, after which she was diagnosed with a mild opioid disorder
based upon her extended methadone use. Mother was referred for
standard outpatient substance abuse treatment but did not follow up for
treatment for several weeks. And although Mother denied any recent
history of cutting, she continued to cut herself, once so severely that she
required emergency medical care and stitches.
¶11 By August 2018, DCS reported that Mother failed to
acknowledge her mental health and substance abuse issues, had not
consistently engaged in services, and had not made any progress toward
her treatment goals. In November, the juvenile court changed the case plan
to severance and adoption.
¶12 Meanwhile, though supervised visits with the Children were
available, Mother attended only sporadically, sometimes as infrequently as
once per month. The older children expressed concern about returning to
Mother’s care, especially after Mother told K.R. she would again rely on
K.R. to babysit her younger siblings if reunification were successful.
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YESSICA R., EFRAIN R. v. DCS, et al.
Decision of the Court
Mother then failed to attend a scheduled psychiatric evaluation in January
2019.
¶13 By the time of the March 2019 contested hearing, Mother had
completed standard outpatient substance abuse treatment, begun a
parenting class, was employed, and had an appropriate home. She testified
that working nights would allow her time to take care of the Children but
acknowledged that, on her then-current schedule of working nights, she
frequently slept through daytime visits and appointments. She admitted a
long history of substance abuse and current involvement in methadone
treatment but denied any current substance abuse, denied requiring any
ongoing substance abuse treatment, and denied experiencing any mental
health issues beyond depression caused by the removal of the Children.
¶14 The psychologist who evaluated Mother testified that
Mother’s diagnoses affect her impulse control, emotional regulation, and
interpersonal functioning. She expressed concern that Mother minimized
her role in causing the Children to be removed from her care and had
become addicted to methadone during her six-plus years of treatment,
further complicating her attempts to become an adequate parent. The
psychologist also opined that Mother’s depression and mental health issues
predated the Children’s removal and were not caused by her involvement
with DCS.
¶15 The DCS case manager recognized that Mother had
participated in some services but testified Mother had not completed a
parenting program or otherwise demonstrated she could put the Children’s
needs ahead of her own. Meanwhile, the Children were thriving in the care
of their maternal grandparents, who were meeting the Children’s needs
and willing to adopt. The case manager testified that termination of
parental rights would benefit the Children by providing them with the
opportunity for permanency and consistency, together, in a safe, stable
home they had known all their lives. Conversely, she testified that
maintaining parental rights would deprive the Children of permanency.
¶16 DCS also presented evidence that Father had been convicted
of two counts of felony aggravated assault and sentenced to a five-year term
of imprisonment that began in November 2014. Father testified he had not
seen the Children since a 2017 prison visit and did not anticipate being
released until October 2019. The parents and DCS presented conflicting
testimony regarding whether, when, and how frequently Father contacted
the Children.
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YESSICA R., EFRAIN R. v. DCS, et al.
Decision of the Court
¶17 After taking the matter under advisement, the juvenile court
found clear and convincing evidence that termination of Mother’s parental
rights was warranted given her failure to remedy the circumstances causing
the Children to be in out-of-home care for longer than the statutory periods,
see Ariz. Rev. Stat. (A.R.S.) § 8-533(B)(8)(a), (c),4 and that termination of
Father’s parental rights was warranted on the grounds of abandonment and
lengthy incarceration, see A.R.S. § 8-533(B)(1), (4). The court also found that
severance of both parents’ rights was in the Children’s best interests, and
entered an order terminating Mother’s and Father’s parental rights. Mother
and Father timely appealed, and we have jurisdiction pursuant to A.R.S.
§§ 12-120.21(A)(1), -2101(A)(1), and Arizona Rule of Procedure for the
Juvenile Court 103(A).
DISCUSSION
I. DCS Proved the Statutory Grounds for Severance of Mother’s
Parental Rights by Clear and Convincing Evidence.
¶18 A parent’s rights may be terminated if the juvenile court finds
clear and convincing evidence that DCS:
has made a diligent effort to provide appropriate
reunification services . . . [t]he child has been in an out-of-
home placement for a cumulative total period of nine months
or longer . . . and the parent has substantially neglected or
wil[l]fully refused to remedy the circumstances that cause the
child to be in an out-of-home placement.
A.R.S. § 8-533(B)(8)(a); see also Kent K. v. Bobby M., 210 Ariz. 279, 288, ¶ 42
(2005). We do not reweigh evidence on appeal; the juvenile court “is in the
best position to weigh the evidence, observe the parties, judge the
credibility of witnesses, and make appropriate findings.” Jesus M., 203 Ariz.
at 280, ¶ 4 (citing Pima Cty. Dependency Action No. 93511, 154 Ariz. 543, 546
(App. 1987)). Accordingly, we review the court’s findings for clear error,
Donald W., Sr. v. Ariz. Dep’t of Econ. Sec., 215 Ariz. 199, 204, ¶ 14 (App. 2007)
(citing Anonymous v. Anonymous, 25 Ariz. App. 10, 12 (1975)), and will
reverse only 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. v. Ariz. Dep’t
4 Absent material changes from the relevant date, we cite the current
version of rules and statutes.
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YESSICA R., EFRAIN R. v. DCS, et al.
Decision of the Court
of Econ. Sec., 207 Ariz. 43, 47, ¶ 8 (App. 2004), and Denise R. v. Ariz. Dep’t of
Econ. Sec., 221 Ariz. 92, 94-95, ¶¶ 9-10 (App. 2009)).
A. Diligent Efforts
¶19 Before parental rights may be terminated based on a child’s
time in an out-of-home placement, DCS must prove it made diligent
reunification efforts. A.R.S. § 8-533(B)(8). Mother argues the juvenile court
erred in finding diligent efforts, asserting DCS “failed to timely offer critical
services that would have allowed Mother to reunify with her children.”
Mother does not identify what services she asserts were inadequate, nor
does she explain how she would have benefitted from additional services,
particularly given her general lack of commitment to the services that were
in place. And, although her citations to the record suggest Mother is
dissatisfied with the timeliness of DCS’s referral for a psychiatric
evaluation, she also claims that the evaluation was unnecessary. See
Maricopa Cty. Juv. Action No. JS-501904, 180 Ariz. 348, 353 (App. 1994)
(recognizing that DCS is not required to provide “every conceivable
service”) (citing Maricopa Cty. Juv. Action No. JS-5209 & No. JS-4963, 143
Ariz. 178, 189 (App. 1984)). Under these circumstances, Mother fails to
prove error.
B. Failure to Remedy Circumstances
¶20 Mother does not dispute the length of time the Children were
in out-of-home care but argues DCS did not prove by clear and convincing
evidence that she had substantially neglected or willfully refused to remedy
the circumstances causing the out-of-home placement. To support her
argument, Mother points to evidence that she had graduated from standard
outpatient substance abuse treatment and secured appropriate
employment and housing.
¶21 Because the provision authorizing termination based upon a
child’s time in out-of-home care was adopted to address the growing
number of children lingering in foster care while “parents maintain
parental rights but refuse to assume their parental responsibilities,”
severance on this ground is not limited to those who have completely
neglected to remedy the circumstances or completely failed to participate
in services. Maricopa Cty. Juv. Action No. JS-501568, 177 Ariz. 571, 577 (App.
1994) (quoting Maricopa Cty. Juv. Action No. JS-6520, 157 Ariz. 238, 243 (App.
1988)). Thus, a parent who makes “appreciable, good faith efforts” at
reunification “will not be found to have substantially neglected to remedy
the circumstances that caused [the] out-of-home placement.” Id. at 576.
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YESSICA R., EFRAIN R. v. DCS, et al.
Decision of the Court
However, “a trial court is well within its discretion in finding substantial
neglect” where the parent “expend[s] only minimal effort.” Id.
¶22 The juvenile court here found:
[D]espite mother’s claims and excuses, she has failed to
participate meaningfully in the services offered. While she
did complete some services, such as the psychological
evaluation, she did not follow through with the
recommendations that stemmed from the evaluation. She
was told she could not do the DBT therapy while on
methadone. She said she would taper her use and she was
also given the option of switching to suboxone. She did
neither. She was enrolled in the wellness program as an
alternative and did not make significant progress. She
enrolled in the counseling program but was deemed resistant
and not amenable to the changes that were suggested. She
did not complete this service so a second referral was put in
but mother refused to engage when given this second chance.
These findings are supported by the record and support the court’s
conclusion that severance was warranted under A.R.S. § 8-533(8)(a).
Although Mother did make some progress toward reunification, her
actions were not the “appreciable, good faith efforts” contemplated by
A.R.S. § 8-533(B)(8)(a). See JS-501568, 177 Ariz. at 576. We therefore find no
error.5
II. DCS Proved the Statutory Grounds for Severance of Father’s
Parental Rights by Clear and Convincing Evidence.
¶23 A parent’s rights may be terminated if “the parent is deprived
of civil liberties due to the conviction of a felony . . . if the sentence of that
parent is of such length that the child will be deprived of a normal home
for a period of years.” A.R.S. § 8-533(B)(4). Whether this ground is proved
5 Because clear and convincing evidence supports the termination
order under A.R.S. § 8-533(8)(a), we need not, and do not, consider whether
the other grounds on which the juvenile court ruled are supported by the
record. Jesus M., 203 Ariz. at 280, ¶ 3 (“If clear and convincing evidence
supports any one of the statutory grounds on which the juvenile court
ordered severance, we need not address claims pertaining to the other
grounds.”) (citing Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 251,
¶ 27 (2000), and JS-6520, 157 Ariz. at 242).
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YESSICA R., EFRAIN R. v. DCS, et al.
Decision of the Court
is a fact-specific inquiry requiring examination of “all relevant factors,”
including:
(1) the length and strength of any parent-child
relationship existing when incarceration begins, (2) the
degree to which the parent-child relationship can be
continued and nurtured during the incarceration, (3) the
age of the child and the relationship between the child’s
age and the likelihood that incarceration will deprive the
child of a normal home, (4) the length of the sentence,
(5) the availability of another parent to provide a normal
home life, and (6) the effect of the deprivation of a parental
presence on the child at issue.
Michael J., 196 Ariz. at 251-52, ¶ 29. “[T]here is no threshold level under
each individual factor in Michael J. that either compels, or forbids,
severance.” Ariz. Dep’t of Econ. Sec. v. Rocky J., 234 Ariz. 437, 441, ¶ 17 (App.
2014) (quoting Christy C. v. Ariz. Dep’t of Econ. Sec., 214 Ariz. 445, 450, ¶ 15
(App. 2007)). Accordingly, we defer to the juvenile court’s findings and the
weight that court assigned to the evidence and the factors. Id. at 440, ¶ 12.
We will affirm “unless, as a matter of law, no reasonable evidence supports
those findings,” id. (citing Denise R., 221 Ariz. at 95, ¶ 10), bearing in mind
that the focus is “on the child’s needs during the [parent’s] incarceration,”
Jeffrey P. v. DCS, 239 Ariz. 212, 215, ¶ 14 (App. 2016).
¶24 In arguing DCS failed to prove his incarceration deprived the
Children of a normal home for a period of years, Father relies primarily
upon evidence that he has maintained a relationship with them, via
telephone, throughout the proceedings. If true, this evidence would weigh
in favor of maintaining parental rights, but it neither compels nor precludes
severance. Rocky J., 234 Ariz. at 440, ¶ 12 (quoting Christy C., 214 Ariz. at
450, ¶ 15). The juvenile court did not find the contact between Father and
the Children sufficiently persuasive to overcome other factors, including
that: Father “could have been more active in working to maintain a
relationship with the children but he has not”; Father had been incarcerated
for several years of the Children’s relatively short lives and had yet to
complete his sentence; Father had not provided the Children a normal
home since he was incarcerated and would be unable to do so for at least
another year; and the Children had suffered from the lack of permanency
occasioned by the absence of their parents. We defer to that evaluation,
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YESSICA R., EFRAIN R. v. DCS, et al.
Decision of the Court
which is both well-reasoned and supported by the record. Father fails to
prove error.6
III. DCS Proved Severance was in the Children’s Best Interests.
¶25 Mother argues DCS failed to prove severance was in the
Children’s best interests because she shares a bond with them. Father
separately argues the finding is error because he shares a bond with the
Children and because there is no evidence their day-to-day lives would
change if he maintained his parental rights. We review the best-interests
finding for an abuse of discretion. See Titus S., 244 Ariz. at 369, ¶ 15 (citing
Mary Lou C., 207 Ariz. at 47, ¶ 8).
¶26 The existence of a bond between the parent and child,
“although a factor to consider, is not dispositive in addressing best
interests.” Dominique M. v. DCS, 240 Ariz. 96, 98-99, ¶ 12 (App. 2016) (citing
Bennigno R. v. Ariz. Dep’t of Econ. Sec., 233 Ariz. 345, 351, ¶ 30 (App. 2013)).
Likewise, “[t]hat severance would not necessarily change any day-to-day
aspect of the current living arrangement does not preclude a best-interests
finding” in favor of termination. Demetrius L. v. Joshlynn F., 239 Ariz. 1, 5,
¶ 19 (2016) (quotation omitted). Instead, the juvenile court must consider
all relevant facts and determine, upon a case-by-case basis, whether a
preponderance of the evidence supports a finding 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., 239 Ariz. at
4, ¶ 16.
¶27 The benefit to a child, particularly where he has been out of
the parents’ care for a lengthy period, 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 JS-6520, 157 Ariz. at 243, and citing James S.
v. Ariz. Dep’t of Econ. Sec., 193 Ariz. 351, 356, ¶ 18 (App. 1998)) (emphasis
omitted). “At this stage, 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
6 Because we affirm the termination of Father’s parental rights based
upon his lengthy incarceration, we do not address his argument that DCS
failed to prove abandonment by clear and convincing evidence. See supra
n.5.
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YESSICA R., EFRAIN R. v. DCS, et al.
Decision of the Court
the unfit parent in maintaining parental rights.” Kent K., 210 Ariz. at 287,
¶ 37.
¶28 The juvenile court here found the Children had been in an
out-of-home placement for more than two years without Mother’s or
Father’s care or guidance, and neither parent was close to reunification.
Moreover, the Children were adoptable, thriving in an adoptive placement
with their maternal grandfather, and would benefit from the opportunity
to be adopted into a permanent, stable, and safe home. The court’s finding
that severance was in the Children’s best interests is supported by the
record, and we find no abuse of discretion. See Alma S. v. DCS, 245 Ariz.
146, 152, ¶ 21 (2018) (affirming the best-interests finding where the record
showed “[the] children were excelling in their out-of-home placements, the
foster parents were planning to adopt the children, . . . the children [we]re
otherwise adoptable . . . [and] [the parent] was still inclined to endanger the
children despite her rehabilitative progress”).
CONCLUSION
¶29 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
11