Brittany M. v. Dcs ( 2022 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
BRITTANY M., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, A.R., K.R., D.J., A.J., A.J., Appellees.
No. 1 CA-JV 21-0367
FILED 9-13-2022
Appeal from the Superior Court in Maricopa County
Nos. JD 39041
JS 20449
The Honorable Julie Ann Mata, Judge
AFFIRMED
COUNSEL
David W. Bell, Attorney at Law, Mesa
By David W. Bell
Counsel for Appellant
Arizona Attorney General’s Office, Tucson
By Jennifer R. Blum
Counsel for Appellee, Department of Child Safety
BRITTANY M. v. DCS, et al.
Decision of the Court
MEMORANDUM DECISION
Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Jennifer M. Perkins and Judge James B. Morse Jr. joined.
B R O W N, Judge:
¶1 Brittany M. (“Mother”) appeals the juvenile court’s order
terminating Mother’s parental rights to her five children. For the following
reasons, we affirm.
BACKGROUND
¶2 Mother is the biological parent of A.R. (born in 2015), K.R.
(born in 2017), D.J. (born in 2018), and twins A.J. and A.C.J. (born in
November 2019). Roy R. is the biological father of A.R. and K.R. Dontae J.
(“Father”) is the biological father of D.J., and the alleged father of the twins.
Neither Roy R. nor Father are parties to this appeal.
¶3 On February 6, 2020, A.C.J. was admitted to the pediatric
intensive care unit (“PICU”). She had several rib fractures in the healing
stage, a laceration to her liver, subdural hemorrhage, and severe
dehydration. A.J. was admitted to the PICU the next day with similar
injuries and a skull fracture. A hospital physician believed the twins were
severely malnourished because their weight was in the 1st percentile for
their age group. Also, a medical examination of D.J. revealed that he had
several rib injuries and a scar on his face.
¶4 Mother had been in California for several days before the
twins’ admission to the PICU. She said she arrived home early in the
evening of February 3 but did not see the twins until the next morning.
Although she noticed that A.C.J. seemed ill, she did not seek medical care
until February 6, in part because she could not yet qualify for health
insurance through the Arizona Health Care Cost Containment System
because she had not lived in Arizona long enough.
¶5 The doctor who examined the twins and D.J. suspected the
children suffered from inflicted trauma or abuse and reported the family to
the Department of Child Safety (“DCS”) and law enforcement. Soon
thereafter, Father was arrested and charged with six counts of felony child
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Decision of the Court
abuse. DCS took the children into temporary custody on February 7, 2020.
All the children were placed in foster care.
¶6 DCS petitioned for dependency, alleging the children were
dependent due to Mother’s abuse, including failure to protect from abuse,
and neglect. DCS then promptly petitioned to terminate Mother’s parental
rights, alleging she willfully abused or failed to protect her children.
Several months later, DCS filed an amended petition, alleging that Mother
neglected the children. The court approved the case plan of severance and
adoption.
¶7 Due to the severity of the children’s injuries, at the outset of
the dependency DCS moved to suspend visitation, and the juvenile court
granted the request. Mother filed a motion for reconsideration and
requested supervised visitation. The court granted the motion, and starting
in April 2020, the court allowed Mother to have virtual visitation with the
children and by September she resumed in-person visitation with the three
older children. Mother’s contact with the twins was limited to virtual
contact because they were “medically fragile” and due to ongoing concerns
that they could be adversely affected by the COVID-19 pandemic. As a
result of the February incident, A.C.J. underwent several surgeries to
address the liquid in her brain and brain swelling, and to insert a feeding
tube. She was also diagnosed as blind. A.J. received physical therapy,
occupational therapy, and feeding therapy, and her doctors expressed
concern that she had a developmental delay as well.
¶8 After in-person visits resumed with the three older children,
they exhibited aggressive behaviors, including biting and self-harm. DCS
again moved to suspend visitation, asserting, among other things, that
continued visitation would endanger the children’s well-being. DCS relied
in part on a unit psychologist’s report and the children’s trauma therapist’s
recommendation stating their concerns about visitation. The court granted
the motion in October 2020, and Mother unsuccessfully sought
reconsideration of the court’s decision in July 2021.
¶9 A combined dependency and termination hearing took place
over five days between May and November 2021. The juvenile court heard
testimony from two DCS case managers, the doctor who examined the
twins and D.J. at the hospital, a Phoenix police detective, Mother’s
counselor, Mother’s psychologist, and Mother. The court found that DCS
proved both termination grounds and determined it was in the children’s
best interests to terminate Mother’s parental rights. Mother appealed and
we have jurisdiction under A.R.S. § 8-235(A).
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Decision of the Court
DISCUSSION
¶10 Before the juvenile court can terminate parental rights, DCS
must prove (1) by clear and convincing evidence at least one statutory
ground in A.R.S. § 8-533 and (2) by a preponderance of the evidence that
termination is in the child’s best interests. Jennifer S. v. Dep’t of Child Safety,
240 Ariz. 282, 286, ¶ 15 (App. 2016). “We review the court’s termination
decision for an abuse of discretion and will affirm unless no reasonable
evidence supports the court’s findings.” Jessie D. v. Dep’t of Child Safety, 251
Ariz. 574, 579, ¶ 10 (2021). 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. v. Ariz. Dep’t of Econ. Sec., 203
Ariz. 278, 280, ¶ 4 (App. 2002).
¶11 Once the court finds that DCS met its burden of proof, it must
“make specific findings of fact in support of termination of parental rights.”
Ariz. R.P. Juv. Ct. Rule 353(h)(1)(A). At least one finding is required to
support each conclusion of law in the court’s termination order. Ruben M.
v. Ariz. Dep’t of Econ. Sec., 230 Ariz. 236, 240, ¶ 22 (App. 2012). The primary
purpose for this requirement “is to allow the appellate court to determine
exactly which issues were decided and whether the lower court correctly
applied the law.” Id. ¶ 24. As such, “findings of fact and conclusions of law
should be sufficiently specific to enable the appellate court to provide
effective review,” and “must include all of the ultimate facts―that is, those
necessary to resolve the disputed issues.” Id. at 241, ¶ 25 (quotation and
citation omitted). Although minimally compliant with the requirement to
make specific findings, the juvenile court’s order in this case does not
include credibility determinations, resolutions of conflicting evidence, or
findings that show what evidence the court found sufficiently compelling
to satisfy the clear and convincing standard of proof for either termination
ground. The better practice is to include such matters to properly inform
the parties of the court’s reasoning and ensure effective appellate review.
A. Reasonable Efforts
¶12 Mother argues that DCS did not meet its burden to provide
her with the time and the opportunity to engage in reunification services.
The duty to make a reasonable effort to provide reunification services may
be statutory, see A.R.S. § 8-533(B)(8), (D), or constitutional, see Jessie D., 251
Ariz. at 581, ¶ 18 (recognizing a constitutional obligation to provide
reunification services to incarcerated parents). The grounds for termination
outlined in § 8-533(B)(2), however, contain no express language requiring
DCS to make reasonable efforts to provide reunification services before
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Decision of the Court
termination. And to our knowledge, no Arizona appellate court has held
that DCS is required to provide reunification services when termination is
sought for abuse or neglect grounds. Cf. Bobby G. v. Ariz. Dep’t of Econ. Sec.,
219 Ariz. 506, 510, ¶ 11 (App. 2008) (recognizing that “neither § 8-533 nor
federal law requires that a parent be provided reunification services before
the court may terminate the parent’s rights on the ground of
abandonment”). Even assuming Mother was entitled to reunification
services under § 8-533(B)(2), the record shows DCS met its burden here.
¶13 DCS must provide services and allow the parent opportunity
to engage before requesting termination of a parent’s rights. Mary Ellen C.
v. Ariz. Dep’t of Econ. Sec., 193 Ariz., 185, 192, ¶ 37 (App. 1999). DCS is not
required, however, to wait indefinitely for a parent to engage in services,
nor is it required to provide services if doing so would be futile. Christina
G. v. Ariz. Dep’t of Econ. Sec., 227 Ariz. 231, 235, ¶ 15 (App. 2011); Maricopa
Cnty. Juv. Action No. JS-501568, 177 Ariz. 571, 577 (App. 1994).
¶14 An exception to the duty to provide services exists if “the
court finds by clear and convincing evidence” that aggravating
circumstances are present. A.R.S. § 8-846(D)(1). As relevant here, DCS
alleged the following aggravating circumstances under § 8-846(D)(1)(d):
that Mother “knew or reasonably should have known that another person
committed an act that constitutes a dangerous crime against children as
defined in A.R.S. § 13-705 or caused a child to suffer serious physical injury
or emotional injury.” The juvenile court, however, did not explicitly find
that aggravating circumstances existed to relieve DCS from its duty to
provide services to Mother. Regardless, reasonable evidence shows that
DCS made diligent efforts to provide reunification services.
¶15 DCS offered various services to Mother, including a parent-
aide referral, facilitated visitation, drug testing, substance abuse assessment
and treatment, case management, psychological evaluation, and
counseling. Despite DCS’s referral for a parent aide, Mother did not
“recognize her failure to protect the children from physical abuse” and
failed to improve her “caregiver protective capacities.” Mother resumed
in-person supervised visits with the three older children in September 2020.
During these visits, the parent aide was concerned that Mother was not able
to manage the children. For example, the parent aide reported that Mother
failed to redirect the children when they became upset during the visit.
When D.J. left the room during the visit, Mother did not follow him, and
the parent aide had to get him and explain to Mother that it was not safe for
D.J. to be outside alone. Mother also asked to end one visit early when K.R.
told her he was mad.
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Decision of the Court
¶16 The evidence also shows that the three older children
experienced aggressive behaviors after in-person visits resumed. For
instance, K.R. became “extremely violent, bit[] teachers . . . and peers,
attempt[ed] to run out of a building, and [had] wetting accidents on day of
visits.” The trauma therapist explained that K.R.’s behaviors “appear to
have increased around the time in person visits started” and “appear to be
trauma responses.” D.J. also exhibited “regressive behaviors that had
significantly reduced previously,” including biting his peers, hitting his
brother, and “being clingy and violent during his outbursts.” The record
also shows that A.R. was more argumentative at home, lied, and was mean
to her brother following in-person visits. Visits were suspended a second
time in October 2020.
¶17 Mother argues that DCS should have provided her with
modified visitation services. She contends that although she wanted
visitation with the children, it took several months to implement the
service. We recognize that visitation “is perhaps the most basic and
essential” service because visitation allows the parent “to show that the
child is no longer dependent” and could properly be returned to the
parent’s care. Michael M. v. Ariz. Dep’t of Econ. Sec., 202 Ariz. 198, 200, ¶ 9
(App. 2002). Visitation may be restricted or suspended only if it “endangers
the child.” Id. at 201, ¶ 11.
¶18 The juvenile court initially suspended visitation due to the
severity of the children’s injuries, but Mother was permitted to engage in
virtual visits with all children as soon as April 1, 2020, less than a month
after the court suspended visitation. By September 2020, Mother was able
to participate in in-person visitation with the three older children, but this
was later suspended in October 2020 at the recommendation of the
children’s trauma therapist and a unit psychologist, due to the older
children’s aggressive and regressive behaviors. Mother did not have in-
person visits after October 2020, and the record is unclear as to whether
Mother had virtual visits with the three older children.
¶19 Although the juvenile court stated that Mother’s virtual visits
with the twins were suspended, nothing in the record shows that Mother’s
virtual visits with the twins were suspended at any point during the
proceedings. According to a DCS report to the juvenile court dated April
21, 2021, Mother received two hours of virtual visits with the twins each
week and had attended “all of her visitations with the children.” Mother
testified that her last virtual visit with the twins was in April 2021, but she
has not identified any evidence in the record showing why no visits with
the twins occurred between that date and when the termination hearing
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was completed in November. On this record, Mother has shown no abuse
of discretion.
¶20 Mother also asserts she was not invited to participate in
earlier child and family team (“CFT”) meetings. But Mother does not allege
the specific dates for the CFT meetings to which she was not invited. Both
a DCS caseworker and Mother testified that she did attend CFT meetings.
Mother explained that some meetings conflicted with her work schedule.
And although the most recent email for the latest CFT meeting may have
contained the wrong date or time, Mother testified that she received “the
wrong date and time to call in” because her time settings were incorrect and
were “off by about an hour.”
¶21 Mother also challenges DCS’s reports as inaccurate and
unfair, and argues that DCS did not act in good faith in providing services.
She contends that when her counselor requested a team meeting to address
Mother’s concerns, “she was ignored.” Mother, however, does not provide
record support for these contentions. Nor has she explained what was
inaccurate about the reports. As far as the record reveals, Mother did not
object to admitting the DCS reports at trial. Thus, reasonable evidence
supports the court’s finding that DCS made reasonable efforts to reunify
Mother with her children. Jordan C. v. Ariz. Dep’t of Econ. Sec., 223 Ariz. 86,
93, ¶ 18 (App. 2009) (viewing the evidence and reasonable inferences
therefrom “in the light most favorable to sustaining the court’s decision”).
B. Abuse or Neglect
¶22 To meet its burden, DCS was required to prove that Mother
abused or neglected the children. Abuse is defined as “serious physical or
emotional injury or situations in which the parent knew or reasonably should
have known that a person was abusing or neglecting a child.” (Emphasis
added). A.R.S. § 8-533(B)(2). Neglect is defined as “[t]he inability or
unwillingness of a parent . . . to provide [a] child with supervision, food,
clothing, shelter or medical care if that inability or unwillingness causes
unreasonable risk of harm to the child’s health or welfare.” A.R.S.
§ 8-201(25)(a); see also E.R. v. Dep’t of Child Safety, 237 Ariz. 56, 59, ¶ 13 (App.
2015). A finding of abuse or neglect is not required for each child in a
proceeding. See Sandra R. v. Dep’t of Child Safety, 248 Ariz. 224, 227, ¶ 13
(2020). However, “to terminate parental rights to children who exhibit no
evidence of neglect or abuse,” the court must find “by clear and convincing
evidence, that there is a risk of harm to those children.” Id. at 228, ¶ 17.
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BRITTANY M. v. DCS, et al.
Decision of the Court
¶23 Mother argues the juvenile court erred when it concluded that
Mother knew or reasonably should have known that Father was physically
abusing the children. She contends that while it was true that three of her
children were abused, she was unable to identify the threat of that abuse
and prevent it from occurring because she was not in Arizona when the
abuse occurred.
¶24 The children’s injuries and abnormal health conditions were
described as “chronic,” meaning they likely occurred before Mother’s trip
to California. The doctor who examined the children testified that A.C.J.
was “critically ill”―she was extremely dehydrated and malnourished, and
suffered from an abdominal injury and injury to her head and ribs. The
doctor explained that A.C.J.’s head CT scan showed chronic blood in the
brain, meaning the blood was likely more than a week old. She also testified
that A.J. and D.J. both had rib injuries that were in various stages of healing.
She explained that rib fractures do not show evidence of healing until
“seven to ten days out at the earliest” and that she believed the rib fractures
were “older than five days.” The evidence supports the juvenile court’s
finding that “[b]ased on the chronic and acute nature of the injuries, [DCS]
has proven that Mother failed to identify threats, and failed to protect the
children from physical abuse.”
¶25 Mother argues there was insufficient evidence for the juvenile
court to conclude that she was aware that Father was abusing the children.
She contends the court discredited her testimony and the testimony of a
Phoenix police detective, psychologist, and Mother’s counselor. Contrary
to Mother’s assertion, the court did not find that she was aware of the abuse.
Instead, the court found that Mother failed to identify threats and protect
the children from abuse. The examining doctor testified that although
Mother might not have known of the children’s precise injuries, she should
have recognized that they were showing symptoms or that something was
wrong. The doctor expressed concern that the children were not brought
in sooner, given that they were in “critically ill condition,” and that “it was
obvious that [A.C.J.] was quite ill.” Mother essentially asks us to reweigh
the evidence, which we will not do. See Jesus M., 203 Ariz. at 282, ¶ 12(noting that the “resolution of . . . conflicts in the evidence is uniquely the
province of the [superior] court.”).
¶26 Mother also contends the juvenile court erred by finding that
she neglected the children. Mother admits that, in hindsight, she should
have taken A.C.J. to the hospital sooner, but contends that her delay was
“understandable” because she had no income or insurance. She contends
that she did not know the twins were injured, and thus did not realize that
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Decision of the Court
“a few days of difficulty with feeding would become an emergency.” But
the court’s ultimate conclusion that Mother neglected the children was not
solely based on Mother’s delay in taking A.C.J. to the hospital. The court
found that Mother could not explain why the children had fractures in
various stages of healing, or what caused A.C.J and A.J. to be severely
dehydrated and malnourished. These findings are supported by the record
and the juvenile court did not err in finding that Mother neglected the
children.
¶27 Mother also argues the court operated from an erroneous
timeline of events in finding that she waited several days before seeking
medical care for A.C.J. But the court did not make a finding about how long
Mother waited before seeking medical care for A.C.J., nor were the court’s
conclusions that DCS met its burden for both grounds of termination solely
based on this timeline.
CONCLUSION
¶28 We affirm the juvenile court’s order terminating Mother’s
parental rights.
AMY M. WOOD • Clerk of the Court
FILED: AA
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