Dominique M. v. Dcs ( 2015 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
DOMINIQUE M, Appellant,
v.
DEPARTMENT OF CHILD SAFETY, J.M., A.M., Appellees.
No. 1 CA-JV 15-0032
FILED 10-15-15
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.
Decision of the Court
MEMORANDUM DECISION
Judge Lawrence F. Winthrop delivered the decision 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
terminating 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 interest. 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—
such as substance rehabilitation services, parental aide services, mental
health treatment and counseling, and transportation—geared toward
reunification. 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. As for her mental health, 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.
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DOMINIQUE M. v. DCS, et al.
Decision of the Court
¶4 In September 2013, the Children’s guardian ad litem moved
to sever the parental relationship between Mother1 and the Children on the
grounds of willful abuse, mental illness, chronic abuse of dangerous drugs,
prior termination of parental rights for the same cause,2 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
interest of the Children. See Ariz. Rev. Stat. (“A.R.S.”) § 8-533(B)(2), (3),
(8)(b)–(c), (10).3 After a bench trial, 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 interest.
¶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
termination of her parental rights was in the Children’s best interest. On
appeal, we do not reweigh evidence and will affirm the juvenile court’s fact
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)). Throughout her appeal, Mother stresses
the fundamental nature of parental rights and argues, because of that, this
court should “bend over backwards” to not sever those rights. We disagree.
Although fundamental, parental rights are not inviolate; a court may still
1 The guardian ad litem also asked to terminate the Children’s fathers’
parental rights in the motion. The fathers have separately appealed the
juvenile court’s rulings.
2 Mother’s rights to her two other children were previously
terminated in a separate proceeding less than two years ago.
3 We cite the current version of the applicable statutes unless revisions
material to this decision have occurred since the events in question.
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DOMINIQUE M. v. DCS, et al.
Decision of the Court
sever those rights if it finds clear and convincing evidence of one of the
statutory grounds for severance, and finds by a preponderance of the
evidence that severance is in the best interest 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. Mother does not contest the juvenile court’s findings on the
statutory grounds and, thus, has waived any argument on those grounds
in this appeal. See Childress Buick Co. v. O’Connell, 198 Ariz. 454, 459, ¶ 29,
11 P.3d 413, 418 (App. 2000) (stating that issues not raised in appellate briefs
are deemed waived).
¶8 In proving severance is in the Children’s best interest, DCS
must show either that severance affirmatively benefits the Children because
they are adoptable or more stable in an existing placement, or eliminates a
threat or detriment to the children if the relationship between the parent
and the children were allowed to continue. 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 J.M. was
happy, clean, and well-loved under her care; that she had regularly visited
the Children and brought food, clothing, money, and gifts with her to the
visits; and that DCS lacked an 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 finding that severance was in the best interest of the Children. The
juvenile court expressly found DCS had met its burden of proving best
interest. In particular, the 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 and,
thus, permanency could be provided. 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 threats and detriments in continuation of the relationship. 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. would
be detrimental to him because DCS currently does not have an adoptive
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DOMINIQUE M. v. DCS, et al.
Decision of the Court
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 enough of an objective benefit to legally support the
“best interest” prong of the severance statute. See Maricopa Cty. Juv. Action
No. JS-501904, 180 Ariz. 348, 352, 884 P.2d 234, 238 (App. 1994) (stating the
government did not need to show an adoption plan existed, but did need
to show the child is adoptable). Moreover, even without an adoptive
placement waiting, the evidence in the record demonstrates the Children’s
needs are being met in their current placements, which also supports the
juvenile court’s best interest finding. See Audra T. v. Ariz. Dep’t of Econ. Sec.,
194 Ariz. 376, 377, ¶ 5, 982 P.2d 1290, 1291 (App. 1998). In addition, Mother
did not contest any of the statutory grounds for severance. The presence of
the conceded statutory grounds for severance may also 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). 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 interest.
¶12 Lastly, 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 interest. The existence and effect of a bonded relationship may actually
be a detriment to the Children’s ability to protect themselves from
continuing neglect or abuse. See In re Rafael S., 9 A.3d 417, 423 (Conn. App.
Ct. 2010); In re T.S.M., 71 A.3d 251, 269 (Pa. 2013). Even in the face of a
bonded relationship, courts are required to evaluate the totality of
circumstances and determine whether severance is in the best interest of the
children. In re Rafael S., 9 A.3d at 423. As concluded above, reasonable
evidence in the record supports the trial court’s finding of best interest.
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DOMINIQUE M. v. DCS, et al.
Decision of the Court
CONCLUSION
¶13 For the foregoing reasons, we affirm the juvenile court’s order
terminating Mother’s parental rights.
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