Opinion
No. 1 CA-JV 14-0021
06-26-2014
YESSICA M., Appellant, v. ARIZONA DEPARTMENT OF CHILD SAFETY, J.M., D.M., J.M., M.M., Appellees.
Denise L. Carroll, Esq., Scottsdale By Denise L. Carroll Counsel for Appellant Arizona Attorney General's Office, Phoenix By Michael Valenzuela Counsel for Appellee Arizona Department of Child Safety
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
Appeal from the Superior Court in Maricopa County
No. JD21150
The Honorable Joan M. Sinclair, Judge
AFFIRMED
COUNSEL
Denise L. Carroll, Esq., Scottsdale
By Denise L. Carroll
Counsel for Appellant
Arizona Attorney General's Office, Phoenix
By Michael Valenzuela
Counsel for Appellee Arizona Department of Child Safety
MEMORANDUM DECISION
Judge Donn Kessler delivered the decision of the Court, in which Presiding Judge Kenton D. Jones and Judge Margaret H. Downie joined. KESSLER, Judge:
¶1 Yessica M. ("Mother") appeals the juvenile court's order terminating her parental rights to her children. For the following reasons, we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 Mother and Jermaine M. ("Father") are the biological parents of J.M., born July 2007, D.M., born May 2008, J.M., born March 2010, and M.M., born April 2012 (collectively "the Children"). Prior to his relationship with Mother, Father had two children die under questionable circumstances and was convicted of a sexual offense involving a minor. Mother and Father also have a history of domestic violence.
Father's parental rights were also terminated but are not at issue in this appeal.
¶3 In November 2011, at the insistence of the paternal grandmother, Mother called the Arizona Department of Child Safety ("ADCS") after observing bruises on J.M.'s cheek and chest. When questioned, the Children indicated Father had hit J.M., but Father denied causing the injuries. Because Mother and Father were unable to produce adequate safety monitors during the investigation, ADCS took the Children into temporary custody.
For simplicity, we will refer to ADCS as the party during the litigation rather than the former Arizona Department of Economic Security and Child Protective Services.
This is our best understanding of the record. The record specifically states the following:
It was initially decided that an out-of-home safety plan was most appropriate for the children until the investigation was complete, however, [Mother] and [Father] were unable to produce safety monitors that meet the criteria of [ADCS].
As a result of the issues presented and the ongoing police investigation, temporary custody was taken of [the children]
¶4 In December 2011, ADCS filed a dependency petition alleging Mother was unable to parent J.M., D.M., and J.M. based on physical abuse, failure to protect the children from physical abuse, and domestic violence. A supplemental petition was later filed to include M.M. The juvenile court found the Children to be dependent and set the case plan to family reunification concurrent with severance and adoption.
¶5 Under that case plan, Mother participated in psychological evaluations, domestic violence counseling, couples counseling, individual counseling, and parent aide services. Mother's visits with the Children were positive, and she was described as being loving, closely bonded, and able to meet their needs. ADCS, however, noted Mother was not honest during many of her services and denied any relationship problems or domestic violence with Father. As a result, ADCS worried Mother was not benefiting from the services and could not be trusted to properly report future abuse.
¶6 Mother continued her relationship with Father. Although Mother filed for divorce in April 2012, she soon reunited with Father and the dissolution petition was dismissed for failure to prosecute. Mother claimed she filed for divorce only because ADCS told her to do so. In addition, in February 2013, Mother left Father after a physical altercation. Following the incident, Mother attempted to reinstate the divorce petition, but her motion was denied. The couple reconciled two weeks later.
¶7 At a March 2013 Foster Care Review Board ("the Board") meeting, Mother stated she and Father were appropriate parents, did not physically abuse the Children, and were able to keep the Children safe. The Board found Mother had not made necessary behavioral changes, she continued to deny any occurrence of domestic violence, and she was dishonest with the service providers and the ADCS case manager. Based on the recommendations of the Board and ADCS, the juvenile court changed the case plan goal to severance and adoption. ADCS then moved to terminate the parent-child relationship based on out-of-home placement for a cumulative total period of fifteen months or longer. See Ariz. Rev. Stat. ("A.R.S.") § 8-533(B)(8)(c) (2014).
We cite the current version of the applicable statute when no revisions material to this decision have since occurred.
¶8 Mother filed a second divorce petition in June 2013. According to James Thal, a psychologist ADCS hired to evaluate Mother's ability to parent the Children, it was unclear whether she filed for divorce because she recognized she was in an unhealthy relationship or felt she was faced with choosing between Father and the Children. Although Thal acknowledged Mother clearly loves the Children, he expressed concern that she remained with Father "for a year and half while her [C]hildren were in foster care, despite ongoing marital conflicts and despite knowing of his troubling past."
¶9 Father moved to Florida and the divorce was finalized in October. Mother admitted that, to help her case, she told Father to move out of the state and she would consider reuniting with him once ADCS returned the Children. However, she testified she had lied about reuniting with him; she just wanted to "get him out of the picture," and she "had to do whatever [she] needed to do to protect [the Children] and to make sure [she did not] lose them." Given that, she also testified she understood how difficult it would be for the court to find her credible.
¶10 After a four-day hearing the juvenile court severed Mother's parental rights. The court explained that, although Mother loves the Children and had obtained a job, car, apartment, and a divorce, Mother was not credible as to her ability to protect the Children from Father. Mother timely appealed. We have jurisdiction pursuant to A.R.S. §§ 8-235(A) (2014), 12-120.21(A)(1) (2003), and -2101(A)(1) (Supp. 2013).
DISCUSSION
¶11 A parent's right to custody and control of his or her own child is fundamental, Santosky v. Kramer, 455 U.S. 745, 753 (1982), but not absolute, Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, 248, ¶¶ 11-12, 995 P.2d 682, 684 (2000). To justify the severance of a parental relationship, one of the statutory grounds provided in A.R.S. § 8-533(B) must be found by clear and convincing evidence. Michael J., 196 Ariz. at 249, ¶ 12, 995 P.2d at 685. In addition, the court must find by a preponderance of the evidence that severance of the relationship is in the child's best interest. Kent K. v. Bobby M., 210 Ariz. 279, 288, ¶ 41, 110 P.3d 1013, 1022 (2005). Because the juvenile court is in the best position to weigh evidence and judge credibility, "we will accept the juvenile court's findings of fact unless no reasonable evidence supports those findings, and we will affirm a severance order unless it is clearly erroneous." Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, 280, ¶ 4, 53 P.3d 203, 205 (App. 2002). We do not reweigh the evidence, but "look only to determine if there is evidence to sustain the court's ruling." Mary Lou C. v. Ariz. Dep't of Econ. Sec., 207 Ariz. 43, 47, ¶ 8, 83 P.3d 43, 47 (App. 2004). I. Sufficiency of the Evidence
¶12 Mother argues there is insufficient evidence to support the juvenile court's ruling terminating her parental rights based on fifteen months' out-of-home placement. Section 8-533 provides:
B. Evidence sufficient to justify the termination of the parent-child relationship shall include any one of the following, and in considering any of the following grounds, the court shall also consider the best interests of the child:Mother argues ADCS failed to prove she was unable to remedy the circumstances that caused the Children to be dependent or she would be unable to exercise proper parental care in the future.
. . .
8. That the child is being cared for in an out-of-home placement under the supervision of the juvenile court, the division or a licensed child welfare agency, that the agency responsible for the care of the child has made a diligent effort to provide appropriate reunification services and that one of the following circumstances exists:
. . .
(c) The child has been in an out-of-home placement for a cumulative total period of fifteen months or longer pursuant to court order or voluntary placement pursuant to § 8-806, the parent has been unable to remedy the circumstances that cause the child to be in an out-of-home placement and 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.
¶13 We disagree with Mother. At the time of the severance hearing, the Children had been in an out-of-home placement for over twenty-one months. To be reunited with the Children, Mother was required to complete services, follow the recommendations of her psychological evaluation, demonstrate behavioral change, and safely parent the Children without the help and support of Father. Although Mother had actively participated in the case plan for reunification by completing various services, ADCS presented evidence that Mother was dishonest with the service providers, continued to be at risk for domestic violence, and failed to put the needs of the Children before her own by continuing the abusive relationship with Father. As opined by Dr. Thal, "[Mother's] determination to protect her children [was] marginal and [was] clearly secondary to her need to preserve her relationship with a man who may present a significant threat to her children."
¶14 Furthermore, although Mother presented evidence she had divorced Father and would remain separated from him, the juvenile court found "Mother's testimony [was] not credible." See Jesus M., 203 Ariz. at 280, ¶ 4, 53 P.3d at 205 ("The juvenile court, as the trier of fact in a termination proceeding, is in the best position to weigh the evidence, observe the parties, judge the credibility of witnesses, and make appropriate findings."). Based on the record, the juvenile court was provided sufficient evidence to support its findings that Mother was unable to remedy the circumstances causing the Children to remain in out-of-home placement and would be unable to exercise proper care and control in the foreseeable future. II. Best Interests
Mother relies on Maricopa County Juvenile Action No. JS-501568, 177 Ariz. 571, 576, 869 P.2d 1224, 1229 (App. 1994), to argue severance is improper based on her appreciable, good-faith efforts to comply with the remedial programs provided by ADCS. That case, however, involved parental severance under A.R.S. § 8-533(B)(8)(a), which requires finding "the parent has substantially neglected or willfully refused to remedy the circumstances that cause the child to be in an out-of-home placement." Section 8-533(B)(8)(c), on the other hand, requires only that Mother has been "unable to remedy the circumstances" causing removal, regardless of whether that inability was willful or the result of failed good-faith efforts.
¶15 Mother argues the juvenile court erred in finding severance was in the Children's best interests. "Termination of the parent-child relationship is in the child's best interests if the child would be harmed if the relationship continued or would benefit from the termination." Jose M. v. Eleanor J., 234 Ariz. 13, 17, ¶ 21, 316 P.3d 602, 606 (App. 2014). Factors to be considered include whether an adoptive placement is immediately available, the existing placement is meeting the Children's needs, and the Children are adoptable. See Raymond F. v. Ariz. Dep't of Econ. Sec., 224 Ariz. 373, 379, ¶ 30, 231 P.3d 377, 383 (App. 2010).
¶16 At the termination hearing, ADCS provided evidence the Children are adoptable, termination was appropriate to provide the Children with permanency and stability, and the Children could be at risk for abuse and further exposure to domestic violence if they returned to Mother's care. As a result, the evidence supports the juvenile court's decision that severance was in the Children's best interests. III. Relative Placement
¶17 Mother contends the juvenile court erred in failing to comply with statutory placement preferences by allowing the Children to be open for adoption by non-family members without first considering relative placements. She specifically argues failure to preserve family ties was not in the Children's best interests, and the court should have ordered ADCS to first identify and assess a relative placement before considering severance.
Section 8-514(B) (2014) provides "[t]he department shall place a child in the least restrictive type of placement available, consistent with the needs of the child. The order for placement preference is as follows: (1) With a parent. (2) With a grandparent. (3) In kinship care with another member of the child's extended family, including a person who has a significant relationship with the child. (4) In licensed family foster care. (5) In therapeutic foster care. (6) In a group home. (7) In a residential treatment facility."
--------
¶18 The juvenile court's duty to consider the Children's best interests in a severance proceeding "is separate from and preliminary to its determination of placement after severance." Antonio M. v. Ariz. Dep't of Econ. Sec., 222 Ariz. 369, 370-71, ¶ 2, 214 P.3d 1010, 1011-12 (App. 2009). "To establish that severance is in the best interests of the child, the state is not required to rule out possible placements with biological relatives before considering other placements. Nor does the juvenile court weigh alternative placement possibilities to determine which might be better." Audra T. v. Ariz. Dep't of Econ. Sec., 194 Ariz. 376, 377, ¶ 5, 982 P.2d 1290, 1291 (App. 1998). Moreover, even if placement could be viewed as intertwined with the best interests analysis, there was evidence the relative placements were not in the Children's best interests. This evidence included testimony regarding concerns the relative placement could not adequately protect the Children while the Children were clearly progressing in foster care. IV. Due Process
¶19 Mother argues the juvenile court violated her due process rights to a fair trial by improperly allowing the case manager to testify about out-of-court statements made by Mother's domestic violence counselor. Mother specifically argues the court erred in basing its credibility finding on hearsay testimony. "A trial court has broad discretion in admitting or excluding evidence, and we will not disturb its decision absent a clear abuse of its discretion and resulting prejudice." Lashonda M. v. Ariz. Dep't of Econ. Sec., 210 Ariz. 77, 82-83, ¶ 19, 107 P.3d 923, 928-29 (App. 2005).
¶20 During the termination hearing, the case manager testified Mother was not truthful with the service providers:
I discussed that case with those counselors and they told me that . . . at no time during their counseling did [Mother] express any problems with her own marriage. In fact, she stated that everything was perfectly fine in her marriage. . . . [B]oth parents stated that [Father] did not have previous children and we know that there were two previous infant deaths. There was a [domestic violence] episode in February 2013 where I had to seek out [Mother] to find out about this because I had heard it from somebody else. And I told her there was a police report and she said there was never any police report and I had it in my hand.Mother argues the juvenile court erroneously relied on those statements in severing her rights:
Mother participated in services, but was not honest. She told the domestic violence counselor that everything was fine in her marriage. Both parents denied Father having any other children. Mother denied that any police report existed relative to domestic violence when the case manager had a copy with her.
¶21 Assuming without deciding the juvenile court abused its discretion in allowing the testimony, the evidence was harmless because it was cumulative. See State v. Bass, 198 Ariz. 571, 581, ¶ 40, 12 P.3d 796, 806 (2000) ("Evidence is cumulative, and therefore error is cured only where the tainted evidence supports a fact otherwise established by existing evidence."); State v. Williams, 133 Ariz. 220, 226, 650 P.2d 1202, 1208 (1982) ("We have held that erroneous admission of evidence which was entirely cumulative constituted harmless error."). Other evidence in the record to support the juvenile court's finding that Mother was not credible includes: (1) the ADCS progress reports that contained the same information as the challenged testimony; (2) the Board's findings and recommendations, which note Mother continued to deny any occurrence of domestic violence and was dishonest with the service providers and ADCS case manager; and (3) the psychological evaluations, which explain Mother denied any history of domestic violence and explicitly found her credibility to be an issue. Accordingly, we conclude the admission of the challenged testimony, if erroneous, was harmless error.
CONCLUSION
¶22 Having found there is sufficient evidence to support the juvenile court's findings, we affirm its order to terminate Mother's parental rights to the Children pursuant to A.R.S. § 8-533(B)(8)(c).