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S.K. v. Dep't of Child Safety

ARIZONA COURT OF APPEALS DIVISION ONE
Jun 2, 2015
No. 1 CA-JV 14-0221 (Ariz. Ct. App. Jun. 2, 2015)

Opinion

No. 1 CA-JV 14-0221

06-02-2015

S.K., Appellant, v. DEPARTMENT OF CHILD SAFETY, K.K., K.K., F.K., Appellees.

COUNSEL David W. Bell, Attorney at Law, Mesa By David W. Bell Counsel for Appellant Arizona Attorney General's Office, Phoenix By Amanda Adams Counsel for Appellee


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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. JD507222
No. JS517148
The Honorable James P. Beene, Judge

AFFIRMED

COUNSEL David W. Bell, Attorney at Law, Mesa
By David W. Bell
Counsel for Appellant
Arizona Attorney General's Office, Phoenix
By Amanda Adams
Counsel for Appellee

MEMORANDUM DECISION

Judge Jon W. Thompson delivered the decision of the Court, in which Presiding Judge Andrew W. Gould and Judge Maurice Portley joined. THOMPSON, Judge:

¶1 S.K. appeals from the juvenile court's order terminating Monica H.'s (Mother's) parental rights. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

We review the evidence and draw all reasonable inferences in the light most favorable to upholding the juvenile court's factual findings. Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, 282, ¶ 13, 53 P.3d 203, 207 (App. 2002).

¶2 S.K. was born in May 2002 and is the biological son of Mother and Kenneth K. (Father). In September 2008, DCS filed a dependency petition based on Mother's mental illness and Father's incarceration. The court found S.K. dependent and placed him in foster care. After Mother successfully completed services, the juvenile court dismissed the dependency petition. In January 2011, S.K. was again placed in foster care and found to be dependent based on Mother's drug use, her lack of stable housing, her refusal to take prescribed medication to treat her chronic depression, and Father's incarceration. One year later, DCS transitioned S.K. to Mother's physical custody after she successfully completed services, demonstrated nine months' sobriety through negative drug testing, and secured employment. The juvenile court thereafter dismissed the dependency petition.

¶3 In October 2013, DCS took S.K. into temporary custody after receiving reports that Mother had relapsed. DCS then filed a third dependency petition, alleging that Mother was unable to parent S.K. due to substance abuse, mental health issues, neglect, and prior dependencies; and that Father was unable to parent due to abandonment and prior dependencies. The juvenile court found S.K. dependent as to father, and after a contested dependency hearing, also found S.K. dependent as to Mother. S.K. was placed in foster care, and later transitioned to the physical custody of a group home.

¶4 DCS began providing numerous rehabilitative services to Mother, including: substance abuse treatment and testing; psychological consultation; counseling; parenting classes; and supervised visitation. In the following months, Mother had several positive drug tests and admitted that she repeatedly used methamphetamine and marijuana, experienced depression and suicidal ideations, and was having difficulty remaining clean. DCS referred Mother to an intensive outpatient program, which Mother attended sporadically. In February 2014, Mother participated in an inpatient substance abuse program, but left the program after nine days. Thereafter, Mother refused all additional substance abuse treatment services.

¶5 DCS subsequently filed a motion to terminate the parental rights of Mother and Father based on Mother's history of chronic abuse of drugs; Father's abandonment; and the out of home placement occurring within eighteen months of S.K.'s return to Mother's legal custody. See Ariz. Rev. Stat. (A.R.S.) § 8-533(B) (1), (3) and (11) (Supp. 2014). DCS also alleged that termination was in S.K.'s best interest. After a contested severance hearing, the juvenile court found that CDS had established the grounds for severance, and that termination was in the best interest of S.K. Accordingly, the juvenile court terminated Mother's and Father's parental rights to S.K.

¶6 Mother timely appealed. We have jurisdiction pursuant to A.R.S. §§ 8-235 (Supp. 2014), and 12-2101(A)(2) (Supp. 2013).

DISCUSSION

¶7 The juvenile court may terminate the parent-child relationship only upon finding that clear and convincing evidence demonstrates at least one statutory ground for severance and that a preponderance of the evidence shows severance is in the child's best interests. A.R.S. § 8-533(B); Kent K. v. Bobby M, 210 Ariz. 279, 284, ¶ 22, 110 P.3d 1013, 1018 (2005). On appeal, S.K. does not assert the juvenile court erred in finding that termination was appropriate under A.R.S. § 8-533(B)(3) and (11), but argues only that the court erred in finding that termination of Mother's parental rights was in S.K.'s best interest.

¶8 To establish that termination is in a child's best interests, the record must contain proof that the child either would benefit from the severance or be harmed if the parental relationship continues. Mary Lou C. v. Ariz. Dep't of Econ. Sec., 207 Ariz. 43, 50, ¶ 19, 83 P.3d 43, 50 (App. 2004). Termination of the parent-child relationship is in the child's best interests if the child would be harmed if the relationship continues or would benefit from termination. Id. Relevant factors to the best interest determination include whether: "1) an adoptive placement is immediately available; 2) the existing placement is meeting the needs of the child; and 3) the [child is] adoptable." Raymond F. v. Ariz. Dep't of Econ. Sec., 224 Ariz. 373, 379, ¶ 30, 231 P.3d 377, 383 (App. 2010) (internal citations omitted).

¶9 The record provides ample evidence that S.K. would benefit from termination of Mother's parental rights and that he could be further harmed by continuation of the parent-child relationship. Mother admitted at the severance hearing that she had a ten year history of drug use; she last used methamphetamine four days prior to the hearing; she had unresolved depression and post-traumatic stress disorders; she was unemployed and homeless; and she was unable to safely parent S.K. at the time.

¶10 Additionally, the CDS case manager testified that S.K. has been in foster care for approximately four of the last six years; S.K. was adoptable; CDS was in the process of placing S.K. with a foster family; and severance would allow S.K. to have a permanent, safe, stable, drug-free environment and home. Although an adoptive placement was not immediately available, the record contains evidence that S.K. was doing well in the current placement and that the current placement "provide[d] the stability and safe environment [S.K.] wouldn't have at home." See Mary Lou C., 207 Ariz. at 50, ¶ 19, 83 P.3d at 50 (evidence child adoptable and current placement meeting child's needs sufficient to find termination in child's best interest); In re Maricopa County Juv. Action No. JS-501904, 180 Ariz. 348, 352, 884 P.2d 234, 238 (App. 1994) ("[CDS] need not show that it has a specific adoption plan before terminating a parent's rights; [CDS] must show that the children are adoptable.").

¶11 S.K. relies on A.R.S. § 8-106(A)(3) to argue that the court erroneously determined that he was adoptable because "the record suggests that S.K. will not provide consent" to an adoption. While it is true that a child twelve or over must consent in an open court to an adoption, A.R.S. § 8-106(A)(3) applies, by its own language, to adoption matters. See A.R.S. § 8-106(A) (listing the consent requirements for the court to grant an adoption of a child). Because this appeal involves a severance, and not an adoption, § 8-106(A)(3) does not apply here.

Although there was evidence in the record that S.K. did not want Mother's parental rights terminated, the record does not support the assertion that S.K. would not consent to an adoption.
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¶12 To the extent that S.K. argues that the juvenile court should have placed greater weight on the wishes of S.K. to remain in the legal custody of Mother, we find this argument unavailing. A child's wishes may not reflect his or her best interests. Cf. Michaell v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, 248, ¶ 11, 995 P.2d 682, 684 (2000) ("Severance of parental rights necessarily involves the consideration of fundamental, often competing, interests of parent and child."). It was for the juvenile court to determine, in the exercise of its discretion, how much weight, if any, to give to S.K.'s statements to others about his wishes. See Jesus M., 203 Ariz. at 280, ¶ 4, 53 P.3d at 205 (stating that in termination proceedings, the juvenile court "is in the best position to weigh the evidence, observe the parties, judge the credibility of witnesses, and make appropriate findings"). On this record, which contains sufficient evidence to support the court's finding that termination of Mother's parental rights was in S.K.'s best interest, we cannot conclude the court abused its discretion simply because the outcome was inconsistent with what S.K. purportedly wanted.

¶13 We further note that the presence of a statutory ground for termination will generally "have a negative effect on [a child]," thus supporting a court's best-interests finding. In re Maricopa County Juv. Action No. JS-6831, 155 Ariz. 556, 559, 748 P.2d 785, 788 (App. 1988). Specifically, here, by finding a termination was warranted under § 8-533(B)(3) and (11), the juvenile court necessarily found that "[c]ontinuing Mother's parental rights to [S.K.] would only place [S.K.] in the tenuous and unstable position of having to wait to determine if Mother would be able to properly address her profound substance abuse and mental health issues." Accordingly, based on the preponderance of evidence, the juvenile court reasonably concluded that terminating Mother's parental rights was in the best interest of S.K., and we will not disturb that finding on appeal.

CONCLUSION

¶14 For the reasons stated, the juvenile court's order terminating Mother's parental rights to S.K. is affirmed.


Summaries of

S.K. v. Dep't of Child Safety

ARIZONA COURT OF APPEALS DIVISION ONE
Jun 2, 2015
No. 1 CA-JV 14-0221 (Ariz. Ct. App. Jun. 2, 2015)
Case details for

S.K. v. Dep't of Child Safety

Case Details

Full title:S.K., Appellant, v. DEPARTMENT OF CHILD SAFETY, K.K., K.K., F.K.…

Court:ARIZONA COURT OF APPEALS DIVISION ONE

Date published: Jun 2, 2015

Citations

No. 1 CA-JV 14-0221 (Ariz. Ct. App. Jun. 2, 2015)