Nina v. 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
NINA V.,
Appellant,
v.
DEPARTMENT OF CHILD SAFETY, T.R., E.R., G.R.,
Appellees.
No. 1 CA-JV 22-0095
FILED 10-20-2022
Appeal from the Superior Court in Mohave County
No. B8015JD202104007
The Honorable Rick A. Williams, Judge
AFFIRMED
COUNSEL
Your AZ Lawyer, Phoenix
By Robert Ian Casey
Counsel for Appellant
Arizona Attorney General's Office, Tucson
By Michelle R. Nimmo
Co-Counsel for Appellee Department of Child Safety
The Huff Law Firm, PLLC, Tucson
By Daniel R. Huff, Laura J. Huff
Co-Counsel for Appellee Department of Child Safety
NINA V. v. DCS, et al.
Decision of the Court
MEMORANDUM DECISION
Judge James B. Morse Jr. delivered the decision of the Court, in which
Presiding Judge Jennifer M. Perkins and Judge Michael J. Brown joined.
M O R S E, Judge:
¶1 Nina V. ("Mother") appeals the termination of her parental
rights to her three children. For the following reasons, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 Mother has three children, T.R. born in 2005, E.R. born in 2011,
and G.R. born in 2021. The children's father is not a party to this appeal.
¶3 In 2015 and 2017, the Department of Child Safety ("DCS")
received and investigated reports that Mother neglected the children. In
2019, DCS again investigated Mother and found Mother's home in
hazardous conditions due to rat urine and feces. Police later searched
Mother's home and found three pipes containing methamphetamine
residue. According to DCS reports, the methamphetamine pipes were
"accessible to the children." Despite DCS efforts, Mother refused to engage
in services.
¶4 In February 2021, days before G.R.'s birth, Mother tested
positive for THC and amphetamines. After G.R.'s birth, DCS received a
hotline report alleging G.R. was born substance-exposed to amphetamines
and THC. DCS conducted a home-check and again found Mother's home
in hazardous conditions due to rat feces. The court ordered the children
into temporary out-of-home care.
¶5 DCS filed a dependency petition alleging Mother neglected to
provide a safe home and proper parental care due to substance abuse. The
superior court adjudicated the children dependent and ordered them to
remain in out-of-home care.
¶6 During dependency, Mother completed parenting classes and
an "Alcohol and Other Drugs Course." She also participated in visits with
the children, provided groceries for T.R. and E.R.'s placement, and
provided diapers, wipes, and clothes for G.R.'s placement. However,
Mother failed to engage in mental and behavioral-health services,
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Decision of the Court
substance-abuse counseling, and urinalysis testing. Mother refused to
submit to urinalysis testing because it was not court ordered, and did not
acknowledge the dangers posed by the home's hazardous conditions. The
court told Mother that it considered failure to participate in drug testing a
"red flag."
¶7 At the initial permanency hearing on July 15, 2021, DCS
requested a 60-day supplemental permanency hearing to give Mother more
time to engage in services. The court set the hearing for September 2021 but
advised Mother that she would not get the "children back" unless she
completed drug testing.
¶8 When Mother finally submitted to a hair follicle test in August
2021, she tested positive for methamphetamine and amphetamines. The
test indicated Mother regularly used methamphetamine. Because Mother
tested, DCS again requested a 60-day continuance at the September
hearing. The court set the hearing for October 2021 but was
"underwhelmed" by Mother's efforts and discussed changing the case plan.
At the October hearing, the court concluded reunification would not be
possible and changed the case plan to "severance and adoption" because
Mother refused to provide continued evidence of sobriety.
¶9 After the subsequent termination hearing in early 2022, the
court found DCS made reasonable efforts to provide Mother with
rehabilitative services, and had made those services available for nearly a
year. The court also found clear and convincing evidence that Mother has
a substance-abuse disorder based on evidence of alcohol, THC, and
methamphetamine use for several years. The court noted Mother refused
to acknowledge that substance abuse could hinder her ability to discharge
parental responsibilities and the risk that her drug use posed to the
children, and found Mother's condition would continue for a prolonged
time because she refused to cooperate in services and to submit to periodic
urinalysis. The court also found, by clear and convincing evidence, Mother
neglected the children by failing to provide a safe home. Thus, the court
found DCS had proved the nine-month time-in-care ground for termination
under A.R.S. § 8-533(B)(8)(a).
¶10 As to best interests, the court found the children were
adoptable because the out-of-home placement was "the least restrictive
environment" and the children's aunt was a "potential adoptive placement."
If the children's aunt was unable to adopt the children, DCS would find an
"alternative placement." The court also considered Mother's refusal to
engage in services and submit to drug testing. The court had "no
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Decision of the Court
confidence" Mother would "improve [her] engagement in the future," so it
was likely the children's circumstances would not change. The court
reasoned that without termination the children would be in DCS's care "in
perpetuity," but termination would allow the children to "be adopted, have
safety, love and security so they can grow and thrive." The court recognized
that T.R. opposed termination and adoption and wanted to maintain her
birth certificate and family ties, but also noted that T.R. did not want to
reunify with Mother. Despite T.R.'s wishes, the court found termination
was in T.R.'s best interests and concluded delaying permanency was
contrary to the children's best interests.
¶11 Mother timely appealed. We have jurisdiction under A.R.S.
§§ 8-235(A), 12-120.21(A)(1), -2101(A)(1).
DISCUSSION
¶12 Parents have a fundamental right to the custody and control
of their children, but that right is not absolute. Michael J. v. Ariz. Dep't of
Econ. Sec., 196 Ariz. 246, 248-49, ¶¶ 11-12 (2000). To terminate parental
rights courts must (1) find by clear and convincing evidence a statutory
ground under A.R.S. § 8-533 and (2) determine by a preponderance of the
evidence that termination is in the child's best interests. Id. at 249, ¶ 12 (clear
and convincing evidence); Kent K. v. Bobby M., 210 Ariz. 279, 288, ¶ 41 (2005)
(preponderance of the evidence); see A.R.S. § 8-533(B) (requiring at least one
statutory ground and a best-interests finding). Because the trial court "is in
the best position to weigh the evidence, observe the parties, judge the
credibility of witnesses, and resolve disputed facts," Ariz. Dep't of Econ. Sec.
v. Oscar O., 209 Ariz. 332, 334, ¶ 4 (App. 2004), we accept the court's
"findings of fact if reasonable evidence and inferences support them," and
will affirm the termination order "unless it is clearly erroneous," Demetrius
L. v. Joshlynn F., 239 Ariz. 1, 3, ¶ 9 (2016).
¶13 Mother does not challenge the court's statutory grounds for
termination. Mother only challenges the court's best-interests finding.
¶14 When determining whether termination is in the child's best
interests, "courts must consider the totality of the circumstances existing at
the time of the severance determination, including the child's adoptability
and the parent's rehabilitation." Alma S. v. Dep't of Child Safety, 245 Ariz.
146, 148, ¶ 1 (2018). Moreover, a court's "primary concern" is the "child's
interest in stability and security." Id. at 150, ¶ 12 (quoting Demetrius L., 239
Ariz. at 4, ¶ 15). "[T]ermination is in the child's best interests if either: (1)
the child will benefit from severance; or (2) the child will be harmed if
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severance is denied." Id. at ¶ 13. Although best interests focuses on the
child, the court may consider the parent's efforts and statutory grounds. See
id. at ¶ 15 (considering a parent's rehabilitation efforts); Dominique M. v.
Dep't of Child Safety, 240 Ariz. 96, 98, ¶ 11 (App. 2016) (considering how the
continued presence of a statutory ground may negatively affect a child).
¶15 Courts need not "list every fact upon which [their] findings are
based" as it would impose an "undue burden and inappropriate task" on
courts. Christy C. v. Ariz. Dep't of Econ. Sec., 214 Ariz. 445, 452, ¶ 19 (App.
2007). We view "the record in the light most favorable to upholding the
court's best-interests finding." Alma S., 245 Ariz. at 152, ¶ 21. We do not
reweigh factual or credibility determinations. See Oscar O., 209 Ariz. at
336, ¶ 14 ("Our task for factual findings is solely to confirm that there is
some reasonable evidence in the record to sustain them.").
¶16 Mother argues the court erred in finding termination was in
the children’s best-interests because the court failed to consider alternatives
to adoption, the children's bond to family, and the effect on the children
rather than Mother's efforts. Mother also argues insufficient evidence
supports the court's best-interests finding. We disagree.
I. Adoptability.
¶17 Mother argues the court erred in considering termination and
adoption because T.R. did not want to be adopted. Mother also suggests
that DCS failed to explore other options, such as guardianship for T.R.
Though T.R. neither wanted to be adopted nor believed termination was in
her best interests, she did not want to reunify with Mother. The court
recognized that "termination may be contrary to [T.R.'s] wishes but it is not
contrary to her best interest." The court considered T.R.'s desire to
"maintain a connection" with Mother and that T.R. did not want her birth
certificate to change. But the court noted the children's aunt was a potential
adoptive placement and concluded that termination was still in T.R.'s best
interests. See Demetrius L., 239 Ariz. at 4, ¶ 12 ("When a current placement
meets the child's needs and the child's prospective adoption is otherwise
legally possible and likely, a juvenile court may find that termination of
parental rights . . . is in the child's best interests.").
¶18 Also, the record showed the children were doing well in their
aunt's care, and the aunt has provided care for T.R. and E.R. in the past. The
court could choose to weigh the opportunity for adoption, permanency,
and stability provided by termination, over T.R.'s desires or the
impermanency provided by a guardianship. Alma S., 245 Ariz. at 150, ¶ 12
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(emphasizing "stability and security" are a court's "primary concern").
Reasonable evidence in the record supports the children's adoptability and
we find no error in how the court weighed the factors.
II. Rehabilitation Efforts.
¶19 We reject Mother's argument that the best-interests finding
improperly focuses on Mother's lack of rehabilitation rather than the
children. See Alma S., 245 Ariz. at 148, ¶ 1 (holding "courts must consider
the totality of the circumstances" including a parent's rehabilitation in
making a best-interests finding). The court heard and considered evidence
that Mother's substance abuse and lack of engagement would negatively
impact the children by delaying permanency. See Dominique M., 240 Ariz.
at 98, ¶ 11 (considering how the continued presence of a statutory ground
may negatively affect a child).
¶20 We also reject Mother's argument that the court failed to
consider family bonds and discounted Mother's interactions during visits.
The court considered Mother's participation in visits and acknowledged
that T.R. wanted to "maintain a connection" with Mother, but also
highlighted Mother's refusal "to provide evidence of sobriety." The court
"considered and weighed all" the evidence, including testimony from a DCS
worker and DCS reports that visits went well, but found termination was
in the children's best interests. We do not reweigh the evidence considered
by the trial court. Oscar O., 209 Ariz. at 336, ¶ 14.
¶21 Reasonable evidence supports the court's finding that DCS
established, by a preponderance of the evidence, that the children were
adoptable and Mother's rehabilitation efforts were inadequate. Thus, the
court did not clearly err in finding that termination was in the children's
best interests. See Jordan C. v. Ariz. Dep't of Econ. Sec., 223 Ariz. 86, 93, ¶ 18
(App. 2009) (affirming a termination order if it is supported by reasonable
evidence in the record); Mary Lou C. v. Ariz. Dep't of Econ. Sec., 207 Ariz. 43,
47, ¶ 8 (App. 2004) (noting a court's findings of fact are clearly erroneous
when there is "no reasonable evidence to support them").
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Decision of the Court
CONCLUSION
¶22 We affirm the superior court's termination order.
AMY M. WOOD • Clerk of the Court
FILED: AA
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