Adrienne D. 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
ADRIENNE D., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, T.D., K.D., A.D., Appellees.
No. 1 CA-JV 21-0314
FILED 6-14-2022
Appeal from the Superior Court in Maricopa County
No. JD32093
The Honorable David O. Cunanan, Judge
AFFIRMED
COUNSEL
John L. Popilek PC, Scottsdale
By John L. Popilek
Counsel for Appellant
Arizona Attorney General’s Office, Tucson
By James William Rappaport
Counsel for Appellees
ADRIENNE D. v. DCS, et al.
Decision of the Court
MEMORANDUM DECISION
Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Maria Elena Cruz and Judge Samuel A. Thumma joined.
B R O W N, Judge:
¶1 Adrienne D. (“Mother”) appeals the juvenile court’s order
terminating her parental rights to her children T.D., born in 2013, K.D., born
in 2016, and A.D., born in 2017. Because reasonable evidence supports the
court’s order, we affirm.
BACKGROUND
¶2 In 2016, the Department of Child Safety (“DCS”) received a
report that both Mother and K.D. tested positive for marijuana when K.D.
was born. Upon further investigation, DCS discovered that Mother also
lacked stable housing and that she hit then two-year-old T.D. with a paddle
as a form of discipline. DCS removed T.D. and K.D. from the home and
filed a dependency petition. After Mother completed services, the court
returned the children to her care and dismissed the dependency.
¶3 Mother gave birth to A.D. in 2017. Three years later, DCS
investigated a new report that Mother had abused K.D. The investigator
visited Mother’s home twice, but Mother would not allow the investigator
to see K.D. DCS returned to the home with police and observed four-year-
old K.D. with bruising around her eyes, a burn on the right side of her face,
significant swelling to her head, and lacerations on her legs. Police
interviewed Mother, who told them she caused K.D.’s leg injuries by
beating her with a switch. Mother also admitted to hitting the children with
a belt. When asked about the burn, Mother explained that she accidentally
burned K.D. with hot water when styling K.D.’s hair, and that the injury
worsened due to a sunburn on the same area. Mother denied causing K.D.’s
black eye, explaining that “[a]ll of her kids fall and hurt themselves.”
¶4 Doctors treated K.D. at a hospital and received information
that Mother regularly “whoops” all the children with a belt but that K.D.
was hit the most. The hospital staff also learned that K.D.’s head was
swollen because K.D. “kept crying . . . so [Mother] kept hitting her.”
Subsequent reports from similar sources indicated that Mother “whoops”
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ADRIENNE D. v. DCS, et al.
Decision of the Court
K.D. “all the time” and beats K.D. and T.D. with her hand, a belt, and a
switch.
¶5 Meanwhile, police interviewed individuals acquainted with
Mother. A neighbor reported that Mother “took her whole hand and
smacked” K.D.’s face “with all of her power, e[v]ery bit of strength she
had,” and on other occasions, threatened to light K.D. on fire with lighter
fluid and throw her out of a car. Mother also threatened to “slice [the
children’s] throats.” Another acquaintance had seen K.D. with burns and
bruising “on her chest all the way up to her face” and bruising and swelling
on both her eyes. She saw Mother threaten to “rough [K.D.] up” and force
the child to sit in a corner from “morning until night” with no restroom
breaks. This acquaintance also reported that Mother did not refer to K.D.
by name, but instead called her demeaning names, such as “the reject” and
“short bus.” On one occasion, Mother stated “If I wanna beat my kids to
death I can. They’re mine.”
¶6 Police also reviewed text messages Mother had sent from her
phone, including a message that stated, “I ain’t the only person in the world
that beat the[ir] kids ass.” Mother admitted “that she has a problem and
acts extreme” and that she “has beat [K.D.] and left welps” on her butt, legs,
and arms. She further acknowledged that she “might back hand her upside
the head” and that she “hurt[s] her sometimes.” DCS took custody of the
children and petitioned for a dependency.
¶7 After Mother pled no contest to the petition, the juvenile court
adjudicated the children dependent and adopted a case plan of family
reunification concurrent with severance and adoption. DCS provided
Mother with referrals for a psychological evaluation and a parent aide with
visitation. Mother’s evaluating psychologist gave a very guarded
prognosis of her future ability to parent the children. The psychologist
recommended that Mother engage in therapy with a doctorate-level
therapist and successfully complete the parent-aide service. Mother,
however, did not complete the parent-aide service successfully because she
did not meet the parenting goals of being resilient, tolerant, or supportive
of the children, or the goal of expressing love and empathy for the children.
And although DCS tried to refer Mother for individual counseling, she
declined it. Nonetheless, she completed some parenting classes.
¶8 Given Mother’s lack of progress, DCS moved to terminate
Mother’s parental rights based on abuse. A.R.S. § 8-533(B)(2). After a two-
day hearing, the juvenile court granted the motion. Mother timely
appealed, and we have jurisdiction pursuant to A.R.S. § 8-235(A).
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ADRIENNE D. v. DCS, et al.
Decision of the Court
DISCUSSION
¶9 To terminate parental rights, a court must find (1) by clear and
convincing evidence that at least one statutory ground in A.R.S. § 8-533 has
been proven, 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 view the facts in the light most favorable to
sustaining the court’s order, Christy C. v. Ariz. Dep’t of Econ. Sec., 214 Ariz.
445, 449, ¶ 12 (App. 2007), and we will affirm so long as reasonable evidence
supports the order, Jordan C. v. Ariz. Dep’t of Econ. Sec., 223 Ariz. 86, 93, ¶ 18
(App. 2009). “The juvenile court, as the trier of fact in a termination
proceeding, 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).
¶10 To sustain its burden here, DCS was required to prove that
Mother “wilfully abused” K.D., see § 8-533(B), and there was a risk of harm
to T.D. and A.D. if they remained in Mother’s care. Sandra R. v. Dep’t of
Child Safety, 248 Ariz. 224, 229, ¶ 24 (2020) (“[A] juvenile court may
terminate a parent’s rights to non-abused children under § 8-533(B)(2) only
if the extrapolation of unfitness—the risk of harm to such children—is
proven by clear and convincing evidence.”). Abuse means “the infliction
or allowing of physical injury.” A.R.S. § 8-201(2).
¶11 Mother first contends that DCS failed to prove she abused
K.D. by clear and convincing evidence because the evidence presented
“was almost entirely circumstantial” with “innocent and non-abusive
explanations.” But “[t]he probative value of evidence is not reduced simply
because it is circumstantial.” State v. Blevins, 128 Ariz. 64, 67 (App. 1981).
Moreover, “resolution of . . . conflicts in the evidence is uniquely the
province of the juvenile court as the trier of fact; we do not re-weigh the
evidence on review.” Jesus M., 203 Ariz. at 282, ¶ 12.
¶12 Reasonable evidence supports the juvenile court’s finding
that Mother willfully abused K.D. Police officers, DCS, and hospital staff
observed K.D.’s extensive physical injuries. Mother admitted she caused
the marks on K.D.’s legs by repeatedly beating her with a switch. Other
reports confirmed that Mother regularly abuses K.D., and that Mother
caused K.D.’s bruising and head swelling by repeatedly hitting her. These
disclosures are also consistent with Mother’s own admissions and
observations made by her acquaintances.
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ADRIENNE D. v. DCS, et al.
Decision of the Court
¶13 Next, Mother argues DCS presented no evidence that T.D.
and A.D. were at a risk of harm in her care. On the contrary, the evidence
shows that Mother’s abuse and threats had been ongoing and were not just
directed at K.D. Mother admitted in her first dependency that she would
hit T.D. with a paddle as a form of discipline. In the current dependency,
hospital staff learned that Mother “whoops” T.D. and A.D. with a belt. And
a forensic interview revealed that Mother “whoop[s]” T.D. with her hand,
a belt, and a switch. Moreover, Mother threatened to kill or beat all of the
children, not just K.D. Additionally, acquaintances reported that Mother
isolates the children by “never let[ting] them out of the house” and that she
tells the children they will be taken away and hurt if they divulge the abuse.
Mother’s abuse of K.D. itself also placed seven-year-old T.D. and three-
year-old A.D. at a risk of harm in her care. At their young ages, they were
still very dependent on their caregiver to meet their needs and protect them,
making them vulnerable to Mother’s threats and abuse. Reasonable
evidence supports a finding that T.D. and A.D. were at a risk of harm in
Mother’s care.
¶14 Finally, Mother asserts that DCS failed to provide diligent
reunification services. Specifically, she contends that DCS should have
provided another parent-aide referral. However, Mother has not shown
where in the record she requested a second parent aide or objected to the
juvenile court’s finding that DCS was providing adequate services. Thus,
she has waived this issue on appeal. See Shawanee S. v. Ariz. Dep’t of Econ.
Sec., 234 Ariz. 174, 178, ¶ 16 (App. 2014) (parents must voice their concerns
about services to the juvenile court in a timely manner); In re Kyle M., 200
Ariz. 447, 448, ¶ 2 (App. 2001) (even constitutional arguments can be
waived if not presented to the juvenile court). Regardless, reunification
services are not statutorily required when terminating parental rights for
abuse, see § 8-533(B)(2), and no Arizona court has held that DCS is
constitutionally required to do so. Nonetheless, assuming the issue has not
been waived, and that DCS was required to provide reunification services
to Mother, we find DCS made reasonable efforts.
¶15 Mother contends that DCS “abruptly terminate[d] the
[parent-aide] service,” and should have provided another parent-aide
referral. But DCS is only required to “undertake measures with a
reasonable prospect of success.” Jordan C., 223 Ariz. at 94, ¶ 20. Although
Mother takes issue with being assigned a new parent aide a few weeks
before the service ended, she concedes to receiving the full six-month
program. And she was closed out unsuccessfully because she failed to
improve caregiving capacities pertaining to the children’s physical and
emotional wellbeing. The parent aide reported to DCS that these capacities
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ADRIENNE D. v. DCS, et al.
Decision of the Court
“would be better addressed in an individual counseling setting, versus a
parent[-]aide setting,” and Mother’s evaluating psychologist likewise
opined that until the reasons underlying Mother’s abuse of K.D. are
“explored in therapy and understood, it is likely these conditions will
continue for a prolonged period of time and result in a poor parent-child
relationship.” DCS offered Mother individual counseling on a few
occasions, but she refused it. Thus, we cannot say that DCS’s decision to
offer individual counseling instead of a second parent aide was
unreasonable. See Pima Cnty. Severance Action No. S-2397, 161 Ariz. 574, 577
(App. 1989) (DCS is not required to provide duplicative services); Mary
Ellen C. v. Dep’t of Econ. Sec., 193 Ariz. 185, 186-87, ¶ 1 (App. 1999) (DCS is
not required to provide futile services).
CONCLUSION
¶16 For the foregoing reasons, we affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
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