Tasha R. v. Dcs ( 2021 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
TASHA R., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, T.S., I.F., M.F., E.F., Appellees.
No. 1 CA-JV 20-0298
FILED 4-8-2021
Appeal from the Superior Court in Maricopa County
No. JD35179
The Honorable Robert Ian Brooks, Judge
AFFIRMED
COUNSEL
Denise L. Carroll, Scottsdale
Counsel for Appellant
Arizona Attorney General’s Office, Phoenix
By Sandra L. Nahigian
Counsel for Appellee Department of Child Safety
TASHA R. v. DCS et al.
Decision of the Court
MEMORANDUM DECISION
Judge Samuel A. Thumma delivered the decision of the Court, in which
Presiding Judge Kent E. Cattani and Judge Brian Y. Furuya joined.
T H U M M A, Judge:
¶1 Tasha R. (Mother) appeals from an order terminating the
parent-child relationships with her children T.S., I.F., M.F. and E.F. Because
Mother has shown no error, the order is affirmed.
FACTS AND PROCEDURAL HISTORY
¶2 Mother and Gerald F. (Father, who is not a party to this
appeal) are the biological parents of I.F., born in 2017, M.F., born in 2018,
and E.F., born in 2019. Mother is also the biological parent of T.S., born in
2012.
¶3 In December 2017, Phoenix police officers investigated a
report at Mother and Father’s apartment and found Mother apparently
under the influence. Mother had left T.S. and I.F. with the neighbor and had
no baby formula for five-month-old I.F. The Department of Child Safety
(DCS) took the children into custody and petitioned for dependency. The
court found the children dependent as to Mother and adopted a case plan
of family reunification.
¶4 In August 2018, while Mother was pregnant with M.F., I.F.
and T.S. were returned to Mother and Father’s physical custody, as the
parents were “doing very well and [had] completed almost all of their
services.” The court then dismissed the dependency in December 2018.
¶5 Months later, DCS received reports that Mother and Father
were using methamphetamine and were not properly caring for or
supervising the children. DCS again took custody of the children and
petitioned for dependency in June 2019 as to T.S., I.F. and M.F. Mother, who
was pregnant with E.F. at the time, tested positive for methamphetamine.
DCS offered Mother various services, including drug testing, substance-
abuse assessment and treatment through TERROS, a case aide and parent
aide, individual counseling, a psychological consultation and
transportation.
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TASHA R. v. DCS et al.
Decision of the Court
¶6 After the court changed the case plan to severance and
adoption in September 2019, DCS moved to terminate Mother’s parental
rights on the grounds of chronic and ongoing substance abuse, A.R.S.
§ 8-533(B)(3) (2021),1 and as to T.S. and I.F., prior removal within 18 months,
A.R.S. § 8-533(B)(11). In October 2019, DCS petitioned for dependency as to
then-newborn E.F.
¶7 The court held a one-day contested severance adjudication in
January 2020. While the court found “grounds for severance had been
established,” it did not find severance to be in the children’s best interests.
The court found that T.S. was in a very fragile emotional state, and there
was a lack of permanency for her and her three siblings. The court added,
however, that “parents should take no comfort from this ruling. They are a
long way from reunification, and the lack of permanency option at this
point is the only thing that saves them — for now.”
¶8 At the time of the hearing, I.F., M.F., and E.F. were placed
with paternal cousins, a nonadoptive placement. After the hearing, M.F.
and I.F. were placed with their paternal grandmother, and E.F. was placed
with paternal second cousins. These were adoptive placements. T.S. had a
different placement history, given her needs. In May 2020, T.S. was placed
with other paternal relatives, who understood her needs and medication
regimen and had expressed an interest in adopting her.
¶9 After the first severance trial, Mother relapsed and used
methamphetamine often in the first part of 2020. She admitted herself into
a residential substance-abuse program in April 2020 but did not participate
in services with TERROS or submit to urinalysis testing. In April 2020, the
child safety specialist reported that “[t]he situation is starting to spiral out
of control. [Mother] has been involuntarily hospitalized, due to her
untreated mental health. [Mother] has no income with which to provide for
the basic needs of the children. There is no adult in the home that can keep
the children safe.”
¶10 In May 2020, the court affirmed the case plan of severance and
adoption. DCS then moved to terminate the parent-child relationship
between Mother and all four children on the grounds of chronic substance
abuse, A.R.S. § 8-533(B)(3), six months’ time-in-care as to M.F. and E.F.,
A.R.S. § 8-533(B)(8)(b), nine months’ time-in-care as to T.S., I.F., and M.F.,
1Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.
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TASHA R. v. DCS et al.
Decision of the Court
A.R.S. § 8-533(B)(8)(a), fifteen months’ time-in-care as to T.S. and I.F., A.R.S.
§ 8-533(B)(8)(c) and prior removal as to T.S. and I.F., A.R.S. § 8-533(B)(11).
¶11 Mother re-engaged in substance abuse testing in mid-2020,
participating a few times but not regularly. While Mother struggled to
engage with other services, the child safety specialist recommended “the
case plan of Severance and Adoption be affirmed due to parents[’]
behaviors and lack of engagement.”
¶12 The court held a one-day severance adjudication in
September 2020. At the trial, the case manager testified that T.S. was
“improving a lot with her behavior” and all the placements were providing
for the children’s needs, physically, mentally and emotionally. After taking
the matter under advisement, the court granted the motion to terminate.
This court has jurisdiction over Mother’s timely appeal pursuant to Article
6, Section 9 of the Arizona Constitution, A.R.S. §§ 8-235(A), 12-120.21(A)
and 12-2101(A) and Arizona Rules of Procedure for the Juvenile Court 103–
104.
DISCUSSION
¶13 As applicable here, to terminate parental rights, a court must
find by clear and convincing evidence that at least one statutory ground
articulated in A.R.S. § 8-533(B) has been proven and must find by a
preponderance of the evidence that termination is in the best interests of the
child. See Kent K. v. Bobby M., 210 Ariz. 279, 288 ¶ 41 (2005); Michael J. v. Ariz.
Dep’t of Econ. Sec., 196 Ariz. 246, 249 ¶ 12 (2000). Because the superior court
“is in the best position to weigh the evidence, observe the parties, judge the
credibility of witnesses, and resolve disputed facts,” this court will affirm
an order terminating parental rights as long as it is supported by reasonable
evidence. Jordan C. v. Ariz. Dep’t of Econ. Sec., 223 Ariz. 86, 93 ¶ 18 (App.
2009) (citation omitted).
I. The Superior Court Did Not Abuse Its Discretion in Finding
Termination Was in the Children’s Best Interests.
¶14 Mother argues the superior court improperly determined that
termination was in the children’s best interests. The court must determine
by a preponderance of the evidence that severance is in the child’s best
interests. Alma S. v. Dep’t of Child Safety, 245 Ariz. 146, 149–50 ¶ 8 (2018). The
best interests determination “focuses primarily upon the interests of the
child, as distinct from those of the parent.” Kent K., 210 Ariz. at 287 ¶ 37.
“[A] determination of the child’s best interest[s] must include a finding as
to how the child would benefit from a severance or be harmed by the
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TASHA R. v. DCS et al.
Decision of the Court
continuation of the relationship. Maricopa Cnty. Juv. Action No. JS-500274,
167 Ariz. 1, 5 (1990) (emphasis added; citing cases). Best interests may be
based on “the immediate availability of an adoptive placement.” Audra T.
v. Ariz. Dep’t of Econ. Sec., 194 Ariz. 376, 377 ¶ 5 (App. 1998); see also Mary
Lou C. v. Ariz. Dep’t of Econ. Sec., 207 Ariz. 43, 50 ¶ 19 (App. 2004).
¶15 In the first severance trial, the court denied the motion for
severance on best interests grounds, noting a lack of permanency. In the
second trial, the court found that the children’s current placements are the
least restrictive environment required to meet the needs of the children.
Further, each of the current placements showed a willingness to adopt the
children. Mother argues the court failed to address how DCS “rectified the
doubts from the first hearing.” But the only doubts stemmed from the lack
of permanency. The findings from the second trial show the changes in the
children’s placements since the first trial resolved the court’s prior concern
relating to the best interests finding.
¶16 Mother argues DCS failed to meet its burden of proof by
failing to show that the children would not incur a detriment by severing
the parent-child relationship. But DCS need only prove whether the child
“would derive an affirmative benefit from termination or incur a detriment
by continuing in the relationship.” Kimu P. v. Ariz. Dep’t of Econ. Sec., 218
Ariz. 39, 42 ¶ 10 (App. 2008) (emphasis added; citation omitted). The
superior court properly found that DCS proved the affirmative benefit —
that the children had permanent adoptive placements available that were
meeting their needs. Thus, Mother has shown no error.
II. Mother Was Not Deprived of Her Constitutional Rights.
¶17 A parent has a fundamental right to raise their children.
Santosky v. Kramer, 455 U.S. 745, 753 (1982); Francine C. v. Dep’t of Child
Safety, 249 Ariz. 289, 298 ¶ 21 (App. 2020) (citing cases). Still, this right is not
absolute, and a court may sever parental rights so long as the parents are
provided with “fundamentally fair procedures.” Kent K., 210 Ariz. at 284 ¶
24 (citing cases).
¶18 Mother argues that, because DCS filed its second motion for
termination just four months after the first motion was denied, she and her
children were denied their fundamental constitutional rights, and that DCS’
“rush to refile without addressing the concerns of the court in a meaningful
way was fundamentally unfair.” Mother cites no case law, and this court
has found none, that imposes a temporal limitation on when DCS may file
a second motion for termination. A child’s environment is constantly
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TASHA R. v. DCS et al.
Decision of the Court
evolving, and it would go against a child’s best interests to bar re-litigation
of the best interests issue based on new evidence. See Bennigno R. v. Ariz.
Dep’t of Econ. Sec., 233 Ariz. 345, 349 ¶¶ 16–17 (App. 2013). DCS addressed
the court’s concerns about permanency and T.S.’s stability and, on that
different record, the court granted the motion to terminate. Thus, Mother
has not shown her constitutional rights to due process were denied.
CONCLUSION
¶19 The order terminating Mother’s parental rights is affirmed.
AMY M. WOOD • Clerk of the Court
FILED: AA
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