Davonna T. 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
DAVONNA T., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, D.H., O.H., Appellees.
No. 1 CA-JV 22-0036
FILED 6-21-2022
Appeal from the Superior Court in Maricopa County
No. JD 40381
The Honorable Robert I. Brooks, Judge
AFFIRMED
COUNSEL
John L. Popilek, PC, Scottsdale
Counsel for Appellant
Arizona Attorney General’s Office, Tucson
By Autumn Spritzer
Counsel for Appellee, Department of Child Safety
DAVONNA T. v. DCS, et al.
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Jennifer B. Campbell delivered the decision of the Court,
in which Judge Randall M. Howe and Judge James B. Morse Jr. joined.
C A M P B E L L, Judge:
¶1 Davonna T. (Mother) appeals the superior court’s order
terminating parental rights to her children, Devyn and Oakley.1 Finding no
error, we affirm.
BACKGROUND
¶2 In December 2020, Devyn and Oakley were playing at their
maternal grandparent’s home when Devyn disclosed that Mother’s
boyfriend put tape around the boys’ genitals. The Department of Child
Safety (DCS) received an anonymous tip about the incident, and DCS
contacted Maricopa County Sheriff’s Office (MCSO) to investigate. Both
children were examined and neither suffered any injuries from the
placement or removal of the tape. Mother reported that her boyfriend taped
her sons’ genitals because the brothers “were orally stimulating each other”
and that this had occurred approximately five times. MCSO determined
that there was no evidence that a crime occurred.
¶3 The following month, DCS filed a Dependency Petition and
Petition for Paternity and/or Child Support (Out-Of-Home) requesting
temporary custody of the children. DCS alleged that the children were
dependent because of Mother’s abuse and/or neglect, because she failed to
protect them from harm and struggled to provide proper care and
supervision. The children were placed with their maternal aunt and uncle.
Mother was allowed to visit the children under the aunt or uncle’s
supervision. Mother visited the children infrequently.
¶4 In April 2021 the superior court found the children dependent
regarding Mother. Later that month, Mother showed up at the aunt’s
church unexpectedly and began talking to Oakley. The aunt left the church
service with Oakley and Devyn. Mother followed and attempted to grab
both children. She yelled that the aunt was trying to “steal” her children.
The aunt then filed an order of protection, which prohibited Mother from
1 We use pseudonyms to protect the children’s identity.
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DAVONNA T. v. DCS, et al.
Decision of the Court
having contact with the aunt only. As a result of the order of protection, the
aunt could not supervise visits between Mother and the children. DCS
assigned a service provider to allow Mother to participate in supervised
visitation, but this service was cancelled due to Mother’s lack of contact.
¶5 Following the April incident, Mother did not communicate
with DCS, nor did she participate in the services offered.2 In September, the
superior court changed the case plan from reunification to severance and
adoption. DCS then moved to terminate the parent-child relationship,
alleging that Mother abandoned her children, mother failed to maintain a
normal parent-child relationship, and the children had been in out of home
placement for a period of nine months or longer.
¶6 In February 2022 the court held a severance hearing where a
DCS case manager and Mother testified. The court found two statutory
grounds for termination under A.R.S. § 8-533(B): abandonment (§ 8-
533(B)(1)) and out of home placement for a period of nine months or longer
(§ 8-533(B)(8)(a)). The court also found that maintaining the parent-child
relationship would be detrimental to the children and termination was in
their best interests. Mother timely appealed.
DISCUSSION
¶7 We review a termination order “for an abuse of discretion and
will affirm unless no reasonable evidence supports the court’s findings.”
Jessie D. v. Dept’ of Child Safety, 251 Ariz. 574, 579, ¶ 10 (2021). We review
legal issues de novo. Id. “We view the facts in the light most favorable to
upholding the [superior] court’s order.” Ariz. Dept’ of Econ Sec. v. Matthew
L., 223 Ariz. 547, 549, ¶ 7 (App. 2010).
¶8 Before the superior court can terminate a parent’s rights, it
“must find by clear and convincing evidence that a statutory ground for
termination exists and that the agency responsible for the care of the child
has made a diligent effort to provide appropriate reunification services.”
Marina P. v. Ariz. Dep’t of Econ. Sec., 214 Ariz. 326, 329, ¶ 18 (App. 2007)
(quotation and citation omitted). The court must also find that termination
is in the child’s best interests by a preponderance of the evidence. Id.; see
also § 8-533(B). Section 8-533(B)(8)(a) establishes a statutory ground for
termination when “t]he child has been in an out-of-home placement for a
2 Of the services offered, Mother participated in drug testing to the extent
that she called in to the testing facility infrequently and participated in a
single drug test.
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DAVONNA T. v. DCS, et al.
Decision of the Court
cumulative total period of nine months or longer . . . and the parent has
substantially neglected or wilfully refused to remedy the circumstances”
causing the out-of-home placement. In determining whether DCS met its
burden, the court must “consider the availability of reunification services
to the parent and the participation of the parent in these services.” A.R.S.
§ 8-533(D).
¶9 Mother argues that DCS did not meet its statutory and
constitutional obligation to provide her with reunification services,
specifically services to assist with housing and financial security. She
contends that DCS was aware of other services that could have helped,
including Family Connections and Nurturing Parenting, and breached its
duty by failing to provide these services. But the DCS case manager
explained that these programs were not available to Mother at the time DCS
had contact with her. Moreover, DCS provided Mother access to a wide
array of services, including referrals for psychological evaluations,
parenting services and a parent aide, and substance abuse and treatment
services. Reasonable evidence supports the court’s finding that the services
offered and provided to Mother by DCS were adequate.
¶10 Mother also argues that she was working towards rectifying
the circumstances underlying the out-of-home placement. She contends
that she actively participated in services and communicated with DCS. Each
of the services provided by DCS, however, were terminated due to
Mother’s lack of participation and communication. The DCS case manager
also testified that she attempted to communicate with Mother through
email and phone and did not receive a timely response or a response at all.
DCS also made attempts to meet Mother in person to explain the services
available to her and provided transportation for Mother to participate in
services. Nevertheless, Mother continued to not attend her appointments
for services. The superior court’s finding that Mother failed to remedy the
circumstances underlying the out-of-home placement is supported in the
record.
¶11 The superior court considered whether to allow Mother more
time to participate in services but found that doing so would keep the
children in an “indeterminate position.” The court found that maintaining
the parent-child relationship would be detrimental to the children because
it would stall their progress and cause additional trauma. The children had
been under DCS care for over a year at the time of the termination hearing
and were doing well with their aunt and uncle, who wanted to adopt them.
The record supports the court’s finding that terminating Mother’s parental
rights was in the children’s best interests.
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DAVONNA T. v. DCS, et al.
Decision of the Court
CONCLUSION
¶12 We affirm the superior court’s order terminating Mother’s
parental rights.
AMY M. WOOD • Clerk of the Court
FILED: AA
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