Christina B. v. Dcs, A.J. ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
CHRISTINA B., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, A.J., Appellees.
No. 1 CA-JV 21-0169
FILED 11-18-2021
Appeal from the Superior Court in Maricopa County
No. JD38751
The Honorable David O. Cunanan, Judge
AFFIRMED
COUNSEL
Czop Law Firm, PLLC, Higley
By Steven Czop
Counsel for Appellant
Arizona Attorney General’s Office, Tucson
By Jennifer R. Blum
Counsel for Appellee Department of Child Safety
CHRISTINA B. v. DCS, A.J.
Decision of the Court
MEMORANDUM DECISION
Judge Samuel A. Thumma delivered the decision of the Court, in which
Presiding Judge Jennifer B. Campbell and Judge Maurice Portley joined.1
T H U M M A, Judge:
¶1 Christina B. (Mother) challenges the superior court’s order
terminating her parental rights to her daughter A.J. Because Mother has
shown no error, the order is affirmed.
FACTS AND PROCEDURAL HISTORY
¶2 Mother is subject to a guardianship with the Maricopa
County Public Fiduciary following abuse she suffered as a child. The
Department of Child Services (DCS) took A.J. into care shortly after birth in
November 2019. DCS’ dependency petition alleged that A.J. was dependent
given Mother’s untreated mental health issues (including self-harm
attempts while pregnant) and neglect. In early February 2020, the court
found A.J. dependent as to Mother after a “paper trial,” adopting a family
reunification case plan.2
¶3 DCS offered Mother various services including a
psychological evaluation, case-aide supervised visits, parent-aide services,
counseling and transportation. Mother also self-referred for mental health
treatment, counseling and medication management through Community
Bridges, Inc. (CBI). In addition, Mother was offered independent living
skills, vocational training and food assistance. Mother, however, did not
consistently or successfully engage or participate in services.
1 The Honorable Maurice Portley, Retired Judge of the Court of Appeals,
Division One, has been authorized to sit in this matter pursuant to Article
6, Section 3, of the Arizona Constitution.
2The court also found A.J. dependent as to Father at this same hearing.
Although Father’s parental rights to A.J. later were terminated, he is not a
party to this appeal.
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CHRISTINA B. v. DCS, A.J.
Decision of the Court
¶4 Although Mother initially participated in visits, by February
2020, she struggled to attend, saying that her job prevented her from doing
so. When DCS offered weekend visits, Mother did not participate and also
did not attend parent-aide sessions. Supervised visits were closed out in
March 2020 for lack of participation.
¶5 Mother did not participate in mental-health services for
months. In April 2020, an evaluation by a psychologist diagnosed Mother
with depressive and trauma-and-stressor related disorders and borderline
intellectual functioning. The evaluation added that Mother’s prognosis for
safely parenting in the foreseeable future was poor given her lack of
participation in services. Mother later testified that she was being
medicated for depression and bipolar issues. As late as April 2021,
however, a DCS caseworker raised doubts that Mother was taking her
medications as prescribed, noting past concerns that Mother “struggled to
pick up her prescriptions in order to take them as prescribed.”
¶6 Father also impeded Mother’s progress. The April 2020
psychological evaluation noted Father was limiting Mother’s ability to
participate in services and was “controlling.” Testimony in February 2021,
repeated concerns that Father “demonstrates a level of power and control
over” Mother “that impacts her ability to safely parent.” Other reports of
Father’s aggressive behavior emerged.
¶7 Although Mother agreed to separate services to diminish
Father’s influence, she then failed to participate. As a result, a parent-aide
referral was closed unsuccessfully in July 2020. After another referral that
same month, Mother attended a few skill sessions and inconsistently
attended visitation. In October 2020, CBI reported that Mother was
inconsistent in engaging in mental-health treatment. Mother also did not
meet with her caseworker or others to find housing and she declined
domestic violence resources.
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CHRISTINA B. v. DCS, A.J.
Decision of the Court
¶8 At DCS’ request, in November 2020, the court changed the
case plan to severance and adoption. DCS’ motion for termination, filed
later that month, alleged six- and nine-months time-in-care and that
termination of parental rights would be in A.J.’s best interests. See Ariz. Rev.
Stat. (A.R.S.) §§ 8-533(B)(8)(a) & (b) (2021).3
¶9 The court held a severance adjudication in February and April
2021 and granted the motion to terminate, finding DCS had proven both
statutory grounds and that severance was in A.J.’s best interests. The court
noted that “Mother has tried on and off for periods of time, but she
eventually” stops participating “or she goes to Father or she goes into a
different path,” adding that her participation “is a cycle that repeats itself.”
This court has jurisdiction over Mother’s timely appeal from that ruling
pursuant to Article 6, Section 9, of the Arizona Constitution, A.R.S. §§ 8-
235(A), 12-2101(A) and 12-120.21(A) and Ariz. R.P. Juv. Ct. 103–04.
DISCUSSION
¶10 As applicable here, to terminate parental rights, a court must
find by clear and convincing evidence that at least one statutory ground 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).
3 Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated. The motion
erroneously cited A.R.S. § 8-533(B)(8)(b) for the nine-month time-in-care
ground as to Mother, an error also reflected in the findings of fact. The
substantive allegations and findings, however, correspond to (B)(8)(a) and
the parties proceeded to trial without objection on both nine- and six-month
time-in-care grounds.
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CHRISTINA B. v. DCS, A.J.
Decision of the Court
¶11 Mother does not dispute that A.J. is not yet three years old
and was in care for more than nine months at the time of trial. Nor does she
challenge the adequacy of the services DCS provided. Mother also does not
challenge the best interests finding, which the record supports. Instead,
Mother argues that the court erred in finding, at the time of the trial, that
she had substantially neglected or willfully refused to remedy the
circumstances that caused A.J. to be in care.
¶12 Mother argues that she “participated in every service DCS
requested or offered and she maintained appropriate housing.” The trial
evidence is to the contrary. Although A.J. came into care in November 2019,
Mother concedes she lacked “stable housing,” was inconsistent in her visits
and “struggled with staying consistent with her mental health services”
through “the first half of 2020.” By her own admission, Mother was
homeless during portions of the dependency. And as the trial concluded in
April 2021, she was trying to locate new housing given safety issues
attributed to Father’s family.
¶13 Mother did not consistently engage in mental health services
until January 2021, just a month before trial began. The DCS case worker
testified in February 2021 that Mother had “strongly attempted to engage
in services,” adding, however, that “[h]er engagement has been
inconsistent.” And the record suggests that her participation in services
increased as the trial concluded in April 2021. But her reliance on dicta in
Maricopa Cty. Juv. Action JS-501568, that “appreciable, good faith efforts to
comply with remedial programs” is sufficient does not show error here. 177
Ariz. 571, 576 (App. 1994). JS-501568 affirmed an order terminating the
parental rights of a drug-addicted mother. Id. In doing so, JS-501568
declared that when a parent “disappears for months at a time and makes
only sporadic, aborted attempts to remedy her addiction in that first year,
a trial court is well within its discretion in finding substantial neglect and
terminating parental rights on that basis.” Id. JS-501568 also “agree[d] with
the trial court” that the mother’s “successful efforts at recovery” in the nine
months before trial, “while commendable, were ‘too little, too late’ for
purposes of this severance action.” Id. at 577. To the extent the JS-501568
analysis applies here, it supports the superior court’s conclusion that
Mother’s engagement in services just before and during trial did not suffice
to overcome the court’s contrary conclusion.
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CHRISTINA B. v. DCS, A.J.
Decision of the Court
¶14 Similarly, Mother’s reliance on Marina P. v. Ariz. Dep’t of Econ.
Sec., 214 Ariz. 326 (App. 2007) does not show error. Marina P. involved a
dependency where a mother who was not a legal resident undertook
persistent, significant efforts to reunite with her children. Id. at 327-29 ¶¶ 2-
16. At the time of the severance trial, that mother was compliant with
services and had secured stable housing for her and her children. Id. at 329
¶¶ 15-16. In reversing a finding that the mother substantially neglected or
willfully refused to remedy the circumstances that brought the children into
care, Marina P. catalogued the mother’s persistent efforts to participate in
services. In doing so, the court confirmed that the relevant “circumstances”
are those “‘existing at the time of the severance’ that prevent a parent from
being able to appropriately provide for his or her children.” Id. at 330 ¶ 22
(citation omitted).
¶15 Unlike Marina P., in this case, the superior court properly
found that, at the time of trial, Mother (1) was under-responsive and
inconsistent in her contact with CBI, which provided her mental health
treatment services; (2) was not consistently taking her medications; (3) had
been diagnosed with various unresolved psychological disorders; (4) had a
“poor” prognosis given “her lack of engagement in services;” and (5) was
inconsistent in her visits with A.J. As a result, the court found “Mother has
not made the necessary behavioral changes nor substantively engaged in
services.” On this record, Mother has not shown those findings were in
error. In addition, those findings, which support a conclusion that Mother
had substantially neglected to remedy the circumstances that brought A.J.
into care, support the order granting the motion for termination.
¶16 Mother argues DCS failed to tell her that she needed to end
her relationship with Father in order to reunify, meaning her failure to do
so “cannot be held against” her. Mother has not shown that the superior
court based its decision on her remaining with Father. Even if it did, the
trial record contains evidence that Mother acknowledged concerns about
Father. The trial record shows that DCS told Mother that continuing her
relationship with Father created an impediment to her success in parent-
aide services. The trial record also shows that Father’s actions contributed
to Mother losing her job and having housing issues. This trial evidence
shows Mother was apprised that continuing her relationship with Father
could likely impede her efforts to reunify with A.J.
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CHRISTINA B. v. DCS, A.J.
Decision of the Court
¶17 To be sure, there was conflicting trial evidence. Mother’s
testimony differed -- at times substantially -- from other trial evidence. This
court, however, reviews the evidence in the light most favorable to
upholding the termination order. Manuel M. v. Ariz. Dep’t of Econ. Sec., 218
Ariz. 205, 207 ¶ 2 (App. 2008). And the superior court at trial, not this court
on appeal, weighs conflicting evidence, assesses witness credibility and
resolves disputed facts. See Jordan C., 223 Ariz. at 93 ¶ 18. It is for these
reasons that this court accepts the superior court’s factual findings if
supported by reasonable evidence, and affirms a severance order unless it
is clearly erroneous. Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 280 ¶
4 (App. 2002). Applying these standards, the superior court’s conclusion
that Mother had cycles of instability and of participating in services is
supported by the trial record. Accordingly, Mother has not shown that the
order granting severance based on nine-months time-in-care was error.4
CONCLUSION
¶18 The order terminating Christina B.’s parental rights to A.J. is
affirmed.
AMY M. WOOD • Clerk of the Court
FILED: AA
4 Given this determination, this court need not and expressly does not
address Mother’s arguments challenging the finding that DCS also proved
severance based on six-months time-in-care. See Jesus M. v. Ariz. Dep’t of
Econ. Sec., 203 Ariz. 278, 280 ¶ 3 (App. 2002).
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