Opinion
No. 2 CA-JV 2014-0080
11-12-2014
JOSEPHINE D., Appellant, v. DEPARTMENT OF CHILD SAFETY AND H.D., Appellees.
COUNSEL Arizona Children's Law, LLC, Tucson By Patrick Lacroix Counsel for Appellant Thomas C. Horne, Arizona Attorney General By Cathleen E. Fuller, Assistant Attorney General, Tucson Counsel for Appellee Department of Child Safety Thea M. Gilbert, Tucson Counsel for Appellee H.D.
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Civ. App. P. 28(c); Ariz. R. P. Juv. Ct. 103(G).
Appeal from the Superior Court in Pima County
Nos. JD143762 and S205032
The Honorable K. C. Stanford, Judge
AFFIRMED
COUNSEL Arizona Children's Law, LLC, Tucson
By Patrick Lacroix
Counsel for Appellant
Thomas C. Horne, Arizona Attorney General
By Cathleen E. Fuller, Assistant Attorney General, Tucson
Counsel for Appellee Department of Child Safety
Thea M. Gilbert, Tucson
Counsel for Appellee H.D.
MEMORANDUM DECISION
Judge Vásquez authored the decision of the Court, in which Presiding Judge Kelly and Judge Howard concurred. VÁSQUEZ, Judge:
¶1 Josephine D. appeals from the juvenile court's July 2014 order terminating her parental rights to H.D., born in February 2013, on the grounds of neglect, mental illness or history of chronic drug abuse, and termination of her parental rights to another child. See A.R.S. § 8-533(B)(2), (3), (10). On appeal, Josephine maintains there was insufficient evidence to prove the statutory grounds for termination, the Department of Child Safety (DCS) did not provide reasonable reunification services, Josephine's voluntary relinquishment of another child did not constitute a termination under § 8-533(B)(10), and termination was not in H.D.'s best interests. For the reasons set forth below, we affirm.
The juvenile court also terminated the parental rights of H.D.'s father, who is not a party to this appeal.
The Department of Child Safety is substituted for the Arizona Department of Economic Security in this decision. See 2014 Ariz. Sess. Laws 2d Spec. Sess., ch. 1, § 20.
¶2 To terminate a parent's rights, the juvenile court must find that at least one statutory ground for termination exists and that severance of a parent's rights is in the child's best interests. § 8- 533(B). The existence of a statutory ground for termination must be proved by clear and convincing evidence, and a preponderance of the evidence is required to establish that severance will serve the child's best interests. Kent K. v. Bobby M., 210 Ariz. 279, ¶¶ 16, 41, 110 P.3d 1013, 1017, 1022 (2005). We will affirm the court's order terminating a parent's rights unless we can conclude as a matter of law that no reasonable person could find the essential elements proven by the evidentiary standard. See Denise R. v. Ariz. Dep't of Econ. Sec., 221 Ariz. 92, ¶¶ 6, 9-10, 210 P.3d 1263, 1265-66 (App. 2009). On review, we consider the evidence in the light most favorable to upholding the order. Id. ¶ 10.
¶3 In September 2012, the juvenile court terminated the parents' rights to one of H.D.'s siblings, after the parents relinquished those rights pursuant to § 8-533(B)(7). The parents had a lengthy history of domestic violence, including an incident when Josephine was pregnant with H.D. and again when she was three months old, and drug abuse and mental health issues, including Josephine's diagnosis of post-traumatic stress disorder (PTSD). Josephine tested positive for marijuana during her pregnancy with H.D. and reported that, in May 2013, when H.D. was three months old, she had relapsed and had used crystal methamphetamine and cocaine and that both parents had been using "Spice/K2 because they knew [it] would not show up in a basic drug screen."
The parents' rights to two older siblings were severed in 2008 and 2009. Josephine gave birth to the couple's fifth child in January 2014; that child's dependency proceeding was ongoing when the juvenile court issued the order terminating the parents' rights to H.D. in July 2014.
¶4 H.D. was removed from the parents' custody in May 2013, following a domestic violence incident during which police discovered Josephine intoxicated and "running out of the home brandishing a knife in the air" while H.D. was asleep inside. DCS filed a dependency petition in May 2013. While that petition was pending, H.D. filed a petition for termination of the parent-child relationship; H.D. was adjudicated dependent in July 2013, and the juvenile court established a concurrent case plan goal of reunification and severance and adoption.
¶5 With respect to Josephine, H.D.'s petition for termination alleged grounds based on neglect of H.D., mental illness and history of chronic drug abuse, and the termination of Josephine's parental rights to another child in September 2012. See § 8-533(B)(2), (3), (10). After an eight-day, contested severance hearing, the juvenile court granted H.D.'s petition and terminated the parents' rights on all three grounds.
¶6 In its ruling, the juvenile court provided a detailed summary of the family's history from 2007 to 2014, identified the alleged statutory grounds for termination, and summarized the evidence establishing the elements of each ground. The court found that despite having received services for mental health, substance abuse, and domestic violence issues since 2007, the parents had "repeatedly relapsed into domestic violence and substance abuse," rendering their relationship "volatile and explosive" and exposing H.D. to "significant risk of harm and instability." Noting DCS had "made concerted and diligent efforts to provide appropriate rehabilitative and reunification services," from which the parents had been unable to benefit, the court made additional factual findings and concluded a preponderance of the evidence established termination was in H.D.'s best interests.
¶7 Because we conclude the juvenile court did not abuse its discretion by terminating Josephine's parental rights to H.D. based on neglect pursuant to § 8-533(B)(2), and because Josephine has identified no basis for us to disturb the court's correct conclusion that termination of her parental rights is warranted on that ground, we adopt that portion of the court's ruling related to that ground, in addition to adopting the court's detailed and accurate recitation of the relevant factual and procedural history of this case. See Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, ¶¶ 4, 16, 53 P.3d 203, 205, 207-08 (App. 2002), citing State v. Whipple, 177 Ariz. 272, 274, 866 P.2d 1358, 1360 (App. 1993). Accordingly, we need not address Josephine's arguments related to the additional grounds for termination. See Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, ¶ 27, 995 P.2d 682, 687 (2000) (if termination upheld on any one ground, other grounds need not be addressed).
Because the juvenile court's ruling adequately and correctly addressed the statutory ground for neglect, see § 8-533(B)(2), we do not discuss Josephine's argument that the court somehow erred by failing to evaluate neglect under the definition of abuse. Additionally, although DCS is not participating in this appeal, we note that it "concede[d] that there is evidence of neglect" in its written closing argument below.
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¶8 Josephine also argues DCS failed to identify and provide reasonable reunification services to her on the ground of neglect, apparently arguing the juvenile court should not have terminated her parental rights to H.D. until she had the opportunity to participate in services to address her PTSD. However, there is no express requirement in § 8-533(B)(2) that a juvenile court must find DCS diligently provided a parent with reasonable and appropriate reunification services before the court can terminate a parent's rights under that subsection, nor has Josephine provided any support so stating. Cf. Mary Ellen C. v. Ariz. Dep't of Econ. Sec., 193 Ariz. 185, ¶ 31, 971 P.2d 1046, 1052 (App. 1999) (termination based on mental illness pursuant to § 8-533(B)(3) implicitly incorporates obligation to make reasonable efforts to preserve family before severing parent's rights).
¶9 Rather, termination based on neglect is far more analogous to termination based on abandonment pursuant to § 8-533(B)(1). In Toni W. v. Arizona Department of Economic Security, 196 Ariz. 61, ¶¶ 9-11, 993 P.2d 462, 465-66 (App. 1999), we distinguished Mary Ellen C., reasoning there is no statutory requirement, express or implied, that a court must find DCS had diligently provided a parent with reasonable reunification services when termination of the parent's rights is based on abandonment. See also § 8-533(D) ("In considering the grounds for termination prescribed in subsection B, paragraph 8 or 11 of this section, the court shall consider the availability of reunification services to the parent and the participation of the parent in these services."). Had the legislature wanted to engraft this requirement onto subsection (B)(2), or any other subsection, it could have done so. See Schuck & Sons Constr. v. Indus. Comm'n, 213 Ariz. 74, ¶ 26, 138 P.3d 1201, 1207 (App. 2006).
¶10 Moreover, Josephine's therapist testified that he had been unable to address her PTSD issue until she was sufficiently "sober and stable," a goal the juvenile court determined, and the evidence shows, she had not yet attained. To the extent Josephine asks us to reweigh this finding and reach a different conclusion, we will not do so. See Jesus M., 203 Ariz. 278, ¶ 4, 53 P.3d at 205 (appellate court will not reweigh evidence or substitute its judgment for that of juvenile court).
¶11 Josephine also argues the juvenile court's best-interests finding was unsupported in the absence of an adoption plan or evidence H.D. would be harmed by remaining with her, and she suggests termination was premature without giving her time to complete her case-plan tasks, "especially in a case like this where the child has a full sibling that is also a dependent child." The court found that the parents' "long[-]standing pattern of substance abuse, unresolved childhood trauma, serious domestic violence, and irresponsibility . . . pose a substantial and likely risk of relapse into violence and substance abuse during" H.D.'s minority. See Raymond F. v. Ariz. Dep't of Econ. Sec., 224 Ariz. 373, ¶ 31, 231 P.3d 377, 383 (App. 2010) (potential of harm to child relevant to best-interests finding). Noting that then seventeen-month-old H.D. had been in out-of-home care for more than one year, the court concluded she "needs stable, secure, committed, and uninterrupted relationships with the adults who are responsible for her care" and "[a] safe, permanent family setting is necessary for her successful development." The court also determined "[s]he is of an age where adoption is feasible, probable, and most likely to succeed."
¶12 Not only does the record amply support the juvenile court's best-interests finding, but Josephine has failed to establish why the absence of a firm adoption plan or evidence that H.D. would be harmed if she stayed with Josephine shows the court's finding was incorrect. See Ariz. Dep't of Econ. Sec. v. Oscar O., 209 Ariz. 332, ¶ 6, 100 P.3d 943, 945 (App. 2004) (to establish termination is in child's best interests, evidence must show child will derive affirmative benefit from termination or incur detriment by continuing relationship; even absent adoption plan, severance benefits adoptable children by freeing them for adoption), citing In re Maricopa Cnty. Juv. Action No. JS-501904, 180 Ariz. 348, 352, 884 P.2d 234, 238 (App. 1994).
¶13 For the foregoing reasons, we affirm the juvenile court's order terminating Josephine's parental rights to H.D.