Dominique M. v. Dcs , 240 Ariz. 96 ( 2016 )

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
DOMINIQUE M., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, J.M., A.M., Appellees.
No. 1 CA-JV 15-0032
FILED 7-12-2016
Appeal from the Superior Court in Maricopa County
No. JD18130
The Honorable Daniel G. Martin, Judge
AFFIRMED
COUNSEL
Law Office of Anne M. Williams, P.C., Mesa
By Anne M. Williams
Counsel for Appellant
Arizona Attorney General’s Office, Mesa
By Nicholas Chapman-Hushek
Counsel for Appellee Department of Child Safety
DOMINIQUE M. v. DCS, et al.
Opinion of the Court
OPINION
Judge Lawrence F. Winthrop delivered the opinion of the Court, in which
Presiding Judge Randall M. Howe and Judge Jon W. Thompson joined.
W I N T H R O P, Judge:
¶1 Dominique M. (“Mother”) appeals the juvenile court’s order
severing her parental rights to J.M. and A.M. (collectively “the Children”).
Mother does not contest the finding of statutory grounds for severance, but
contends the juvenile court erred in concluding severance was in the
Children’s best interests. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 J.M. is a male child born in 2010, and A.M. is a female child
born in 2013. Both came into care of the Department of Child Safety
(“DCS”) due to domestic violence, substance abuse, Mother’s mental
illness, and the then-ongoing severance proceedings of Mother’s two other
children. The trial court found J.M. and A.M. dependent as to Mother in
August 2012 and September 2013, respectively.
¶3 DCS offered Mother an array of services and assistance
designed to promote reunification, e.g., substance rehabilitation services,
parental aide services, mental health treatment and counseling, and
transportation. Mother, however, failed to fully comply and remained
unable to discharge her parental responsibilities. She was still engaged in
domestic violence. Mother also did not regularly participate in drug testing
and, when she participated, she did not consistently test negative for illegal
substances. Mother refused to take medication prescribed for her
psychiatric and psychological conditions, instead relying on Benadryl and
marijuana, for which she did not hold a valid medical marijuana card.
¶4 In September 2013, the Children’s guardian ad litem moved to
sever the parental relationship between Mother and the Children on the
grounds of willful abuse, mental illness, chronic abuse of dangerous drugs,
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DOMINIQUE M. v. DCS, et al.
Opinion of the Court
prior severance of parental rights for the same cause,1 cumulative fifteen-
month out-of-home placement, cumulative six-month out-of-home
placement (for A.M. only), and asserted severance would serve the best
interests of the Children. See Ariz. Rev. Stat. (“A.R.S.”) § 8-533(B)(2), (3),
(8)(b)-(c), (10).2 After an adjudication, the juvenile court found DCS had
met its burden of proving the various statutory grounds and that severing
Mother’s parental rights was in the Children’s best interests.3
¶5 Mother timely appealed. We have appellate jurisdiction
pursuant to the Arizona Constitution, Article 6, Section 9; A.R.S. § 8-235(A);
and Rule 103(A) of the Arizona Rules of Procedure for the Juvenile Court.
ANALYSIS
¶6 Mother appeals only the juvenile court’s finding that
severance of her parental rights was in the Children’s best interests. On
appeal, we do not reweigh evidence and will affirm the juvenile court’s
factual findings if supported by reasonable evidence. Denise R. v. Ariz. Dep’t
of Econ. Sec., 221 Ariz. 92, 93-94, ¶ 4, 210 P.3d 1263, 1264-65 (App. 2009); Jesus
M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 282, ¶ 12, 53 P.3d 203, 207 (App.
2002).
¶7 Parental rights in the care, custody, and management of their
children are fundamental, but not absolute. Kent K. v. Bobby M., 210 Ariz.
279, 284, ¶ 24, 110 P.3d 1013, 1018 (2005) (citing Santosky v. Kramer, 455 U.S.
745, 753 (1982); Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 248,
¶¶ 11-12, 995 P.2d 682, 684 (2000)). Although fundamental, parental rights
are not inviolate; a court may still sever those rights if it finds clear and
convincing evidence of one of the statutory grounds for severance, and also
finds by a preponderance of the evidence that severance is in the best
1 Mother’s rights to her two other children were previously severed in
a separate proceeding less than two years ago; the ground asserted in that
instance was cumulative fifteen-month out-of-home placement.
2 We cite the current version of the applicable statutes unless revisions
material to this opinion have occurred since the events in question.
3 On the motion of the guardian ad litem, the juvenile court also
severed the Children’s fathers’ parental rights. This court dismissed the
fathers’ separate appeals after their attorneys avowed they had reviewed
the entire record but found no non-frivolous issue to raise.
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DOMINIQUE M. v. DCS, et al.
Opinion of the Court
interests of the children. See A.R.S. §§ 8-533(B), -537(B); Kent K., 210 Ariz. at
281-82, 288, ¶¶ 7, 41, 110 P.3d at 1015-16, 1022.
¶8 In proving severance is in the children’s best interests, DCS
must show either that severance affirmatively benefits the children (such as
showing they are adoptable or more stable in an existing placement), or
eliminates a detriment to the children if the parent-child relationship is not
severed. Maricopa Cty. Juv. Action No. JS-500274, 167 Ariz. 1, 6-7, 804 P.2d
730, 735-36 (1990); Ariz. Dep’t of Econ. Sec. v. Oscar O., 209 Ariz. 332, 334,
¶ 6, 100 P.3d 943, 945 (App. 2004).
¶9 On appeal, Mother contends DCS failed to show the benefits
of severance, arguing that she and the Children were bonded; that she had
regularly visited the Children during the pendency of the case, and brought
food, clothing, money, and gifts to the visits; and that DCS lacked an
identified adoptive plan for J.M. Even assuming arguendo the record
supports these contentions, Mother is in essence asking us to reweigh the
evidence presented to the juvenile court. We decline to do so.
¶10 Reasonable evidence in the record supports the juvenile
court’s express finding that severance was in the best interests of the
Children. The juvenile court found that A.M.’s prospective adoptive
placement would meet her needs and provide stability, and that J.M. was
adoptable. Severance would make the Children eligible for adoption. At
the same time, the juvenile court found that, if the parental relationship
continued, the Children would remain at significant risk for abuse and
neglect. These findings demonstrate both affirmative benefits from
severance and the elimination of potential detriments if the parent-child
relationship is not severed. See JS-500274, 167 Ariz. at 6, 804 P.2d at 735(recognizing that the existence of an adoptive plan or being freed from an
abusive parent shows a benefit).
¶11 Mother contends severing her relationship with J.M. is not in
his best interests because DCS currently does not have an adoptive plan for
him and he would be “orphaned” after the severance. Mother, however,
does not deny that J.M. is adoptable, and it is well established that
“adoptable” status is a benefit that may, in consideration with other factors,
support the “best interests” finding. See Maricopa Cty. Juv. Action No. JS-
501904, 180 Ariz. 348, 352, 884 P.2d 234, 238 (App. 1994) (stating the
government need not show an adoption plan existed, but instead must
show the child is adoptable). Moreover, even without an identified
adoptive placement waiting, the record shows the Children’s needs were
being met in their current placements, which also supports the juvenile
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DOMINIQUE M. v. DCS, et al.
Opinion of the Court
court’s best interests finding. See Audra T. v. Ariz. Dep’t of Econ. Sec., 194
Ariz. 376, 377, ¶ 5, 982 P.2d 1290, 1291 (App. 1998) (stating one of the factors
favoring severance is that the current placement is meeting the child’s
needs). In addition, Mother does not contest any of the statutory grounds
for severance. Absent severance, the continued presence of the conceded
statutory grounds for severance also may, in certain cases, negatively affect
the children. Bennigno R. v. Ariz. Dep’t of Econ. Sec., 233 Ariz. 345, 350, ¶ 23,
312 P.3d 861, 866 (App. 2013); Maricopa Cty. Juv. Action No. JS-6831, 155 Ariz.
556, 559, 748 P.2d 785, 788 (App. 1988). All of these factors demonstrate the
benefits of severance or the detriment of a continued parental relationship,
and more than adequately support the conclusion that reasonable evidence
supports the trial court’s finding of best interests.
¶12 Finally, Mother repeatedly states she and the Children are
bonded and argues that continuing her relationship with the Children is
critical to maintaining such bond, which would in her opinion be in their
best interests. The existence and effect of a bonded relationship between a
biological parent and a child, although a factor to consider, is not
dispositive in addressing best interests. Bennigno R., 233 Ariz. at 351, ¶ 30,
312 P.3d at 867. Even in the face of such a bond, the juvenile court is
required to evaluate the totality of circumstances and determine whether
severance is in the best interests of the children. Id. at 351-52, ¶ 31, 312 P.3d
at 867-68 (citing cases). Here, the juvenile court did consider the totality of
the circumstances and, as concluded above, reasonable evidence in the
record supports the juvenile court’s finding of best interests.
CONCLUSION
¶13 For the foregoing reasons, we affirm the juvenile court’s order
severing Mother’s parental rights.
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