In Re Term of Parental Rights as to J.F. ( 2023 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
IN RE TERMINATION OF PARENTAL RIGHTS AS TO
J.F., A.F., A.F., AND L.F.
No. 1 CA-JV 22-0220
FILED 2-23-2023
Appeal from the Superior Court in Maricopa County
No. JD20186
The Honorable Robert Ian Brooks, Judge
AFFIRMED
COUNSEL
Vierling Law Offices, Phoenix
By Thomas A. Vierling
Counsel for Appellant Jeremiah F.
David W. Bell, Attorney at Law, Higley
By David W. Bell
Counsel for Appellant Virginia M.
Arizona Attorney General’s Office, Tucson
By Jennifer R. Blum
Counsel for Appellee Department of Child Safety
Maricopa County Office of the Legal Advocate, Phoenix
By Aimee D. Youngblood
Counsel for Appellees J.F., A.F., A.F., and L.F.
IN RE TERM OF PARENTAL RIGHTS AS TO J.F. et al.
Decision of the Court
MEMORANDUM DECISION
Judge Michael S. Catlett delivered the decision of the Court, in which
Presiding Judge Paul J. McMurdie and Judge Michael J. Brown joined.
CATLETT, Judge:
¶1 Virginia M. (“Mother”) and Jeremiah F. (“Father”) appeal the
juvenile court’s order terminating their parental rights to their three
children, J.F. (born in 2016), A.A.F. (born in 2017), and A.F.F (born in 2019)
(the “children”).1 The court concluded that the Department of Child Safety
(the “Department”) established by clear and convincing evidence that the
children have been in out-of-home placement for fifteen months or longer,
Mother and Father have been unable to remedy the circumstances causing
out-of-home placement, and there is a substantial likelihood that parents
will not be capable of exercising proper and effective parental care and
control in the near future. See A.R.S. § 8-533(B)(8)(c). The court also found
that the Department established by a preponderance of the evidence that
severance is in the children’s best interests. Because reasonable evidence
supports the court’s factual findings and a reasonable factfinder could
conclude that severance is appropriate, we affirm.
1 Mother and Father also have a fourth child, L.F., born in 2021, who is
included in the caption. The juvenile court held a trial on both the motion
for termination of parental rights as to J.F., A.A.F., and A.F.F., and the
Department of Child Safety’s dependency petition as to L.F. The juvenile
court made a dependency finding as to L.F. Mother’s notice of appeal states
that she appeals both the severance of her parental rights and the
dependency finding. Father’s notice of appeal states only that he appeals
the severance of his parental rights. Neither parent makes any argument
on appeal as to the dependency finding. Both parents, therefore, have
waived any challenge to the dependency finding as to L.F., and thus we do
not consider the issue. See Crystal E. v. Dep’t of Child Safety, 241 Ariz. 576,
577–78 ¶¶ 5–6 (App. 2017) (“[W]e adhere to the policy that it is generally
not our role to sua sponte address issues not raised by the appellant.”);
Childress Buick Co. v. O’Connell, 198 Ariz. 454, 459 ¶ 29 (App. 2000) (“[I]ssues
not clearly raised in appellate briefs are deemed waived.”).
2
IN RE TERM OF PARENTAL RIGHTS AS TO J.F. et al.
Decision of the Court
FACTS AND PROCEDURAL BACKGROUND
¶2 Mother and Father are the children’s biological parents. In
December 2019, police responded to an emergency call at the children’s
paternal grandmother’s house. Mother alleged that Father pulled her hair
to get her out of a parked car and closed the car door on her ankle, breaking
it, while the children were in the car. But Mother denied that Father
purposely closed the door on her ankle. The police contacted the
Department.
¶3 When the incident occurred, Father was wearing an ankle
monitor for pre-trial services due to pending criminal charges.2 A few days
later, the superior court issued a bench warrant on the criminal charges
after Father failed to appear for a court hearing, and he was arrested. Father
remained incarcerated from December 2019 until July 31, 2020. In
September 2021, he pled guilty to aggravated assault, and the court placed
him on three years of supervised probation.
¶4 On January 6, 2020, the Department took temporary custody
of the children after maternal grandmother called the Department claiming
Mother had left the children in her care and not returned for three days.
The Department placed the children in a licensed foster care home. Two
days later, the Department filed a dependency petition for the children. As
to Mother, the Department alleged she was unwilling or unable to provide
proper and effective parental care and control due to domestic violence,
lack of a safe and stable home environment, and inability to provide for the
children’s basic needs. As to Father, the Department alleged he was
unwilling or unable to provide proper and effective parental care and
control due to domestic violence, inability to provide for the children’s basic
needs, and incarceration. The Department reported that J.F. and A.A.F. had
special needs requiring services due to developmental delays and rotten
teeth.
¶5 The Department referred Mother and Father for reunification
services, including parenting classes, parent-aide services, case-aide
services, domestic violence counseling, supervised visits only (SVO),
2In September 2018, Father stabbed his sister’s ex-boyfriend in the neck and
abdomen, because the boyfriend had allegedly raped his daughter (not
subject to this case) and his niece. Father was charged with attempt to
commit second degree murder and two counts of aggravated assault.
3
IN RE TERM OF PARENTAL RIGHTS AS TO J.F. et al.
Decision of the Court
substance use testing, transportation services, and psychological services
for Mother.
¶6 Paternal grandmother filed a motion to intervene in February
2020, and after an evidentiary hearing, the juvenile court granted her
physical custody of A.F.F., and eventually transitioned A.A.F. and J.F. to
her care as well. Both parents entered no-contest pleas to the dependency
allegations, and in April 2020, the Department found the children
dependent as to both parents.
¶7 After Father’s release from jail in August 2020, Mother began
living with him, and they had supervised visits with the children together.
In February and March 2021, both parents filed motions for the children’s
return to their physical custody. Ariz. R. P. Juv. Ct. 59 (current version at
Rule 342). In April, the juvenile court conducted a two-day hearing.
Between day one and day two of the hearing, another domestic violence
incident occurred. After an argument, Father called the police to report that
Mother left the house and drove while intoxicated. Father also alleged that
Mother attempted to run him over with her car. Mother denied that she
had been drinking and stated that after she returned home, Father grabbed
her purse and threw it on the carport to prevent her from leaving. Mother
used a ladder to retrieve her purse, despite being pregnant with the parent’s
fourth child, L.F., and she denied attempting to run Father over. The police
report stated that Mother was not intoxicated and that “[Father’s]
allegations and his recollections of events kept changing, didn’t make sense
or were unfounded.” Subsequently, the parents no longer participated in
visits together.
¶8 The juvenile court denied both parents’ motions, finding that
the parents’ “ongoing domestic violence, as well as the minimization of that
ongoing domestic violence, places their children at a substantial risk of
physical, mental, and emotional harm.” The court concluded that the
parents “minimized this violent history demonstrating that the parents
have not made the behavioral changes necessary for the children to safely
reside with them.”
¶9 Mother later reported that she no longer resided with Father
nor maintained a relationship with him, and in August 2021 she obtained
her own apartment. The Department told Mother that a safety plan needed
to be created for L.F. to return home after his birth, and that Father could
not know Mother’s new address; however, the Department later learned
that Father did know her new address. Mother gave birth to L.F. on August
1, and Father drove Mother to the hospital and stayed for L.F.’s birth. The
4
IN RE TERM OF PARENTAL RIGHTS AS TO J.F. et al.
Decision of the Court
Department immediately placed L.F. in paternal grandmother’s physical
custody.
¶10 On August 18, 2021, the Department filed a dependency
petition for L.F., alleging both parents were unwilling or unable to provide
L.F. with proper and effective parental care and control due to domestic
violence and an inappropriate home environment, as well as substance
abuse for Mother. Both parents denied the allegations in the dependency
petition.
¶11 In September 2022, the Department moved to terminate
Mother’s and Father’s parental rights of the three other children based on
fifteen months’ time-in-care. A.R.S. § 8-533(B)(8)(c). The juvenile court
conducted a five-day hearing over several months on both the motion for
termination as to the three children and the dependency petition as to L.F.
The court heard testimony from Mother, Father, several professionals who
have assisted the parents, and two of Father’s uncles.
¶12 Based on Mother’s testimony, the juvenile court concluded
that Mother “continues to lack insight into the nature of the domestic
violence, its effects on her, and its effects on her children.” The juvenile
court found that “Mother was not intentionally attempting to mislead the
Court, but that her testimony demonstrated an inability or unwillingness to
acknowledge the severity and history of domestic violence, even when
confronted with her own prior statements.” The juvenile court concluded
that Mother’s continued minimization of domestic violence “puts the
children at a substantial risk of harm.”
¶13 Based on Father’s testimony, which the juvenile court
characterized as “entirely incredible” and demonstrating Father’s
controlling tendencies, Father showed “an inability to recognize the
children’s needs or a disregard for those needs.” “Father refused to make
any acknowledgment of his own role or responsibility, demonstrating a
severe lack of insight.” In the juvenile court’s eyes, “Father insinuated that,
but for the Court’s encouragement that the parents not live together,
Mother and Father would still live together.”
¶14 The juvenile court credited some of the professionals’
testimony about the parents’ relationship. The Department’s case manager
testified that “Mother would make justifications on behalf of Father,” which
the juvenile court found “credible and insightful.” The juvenile court heard
testimony about Mother continuing to attend a six-person church with
Father and gave the case manager’s opinion about the risks posed by doing
5
IN RE TERM OF PARENTAL RIGHTS AS TO J.F. et al.
Decision of the Court
so “significant weight.” The juvenile court also heard testimony from
Mother’s therapist about the progress Mother had made in therapy, but the
juvenile court found that Mother’s self-reports to the therapist “were
significantly deficient about the nature and extent of her ongoing
relationship with Father, as well as the nature and extent of their prior
domestic violence history.”
¶15 Finally, the juvenile court considered testimony from two of
Father’s uncles. The first “candidly acknowledged that it was his opinion
that the parents were in a relationship, that Mother and Father would
parent together, and that . . . there had been no domestic violence in two
years.” While the other uncle “did not entirely state that Mother and Father
were in a relationship,” the juvenile court inferred “from some of his
answers that he believed that they either were or would be if possible.”
¶16 Based on the testimony and evidence, the juvenile court
terminated Mother’s and Father’s parental rights to J.F., A.A.F., and A.F.F.,
and made a dependency finding for L.F. Mother and Father timely
appealed from the juvenile court’s order. We have jurisdiction under A.R.S.
§ 8-235(A).
DISCUSSION
¶17 Mother and Father contend that the Department failed to
present sufficient evidence to support the termination of their parental
rights. “Parents have a fundamental right to raise their children as they see
fit, but that right is not without limitation.” Minh T. v. Ariz. Dep’t of Econ.
Sec., 202 Ariz. 76, 79 ¶ 14 (App. 2001). To terminate a parent’s rights, the
juvenile court must find by clear and convincing evidence at least one of
the grounds in A.R.S. § 8-533(B) and must find by a preponderance of the
evidence that severance is in the child’s best interests. Kent K. v. Bobby M.,
210 Ariz. 279, 288 ¶¶ 41–42 (2005); Michael J. v. Ariz. Dep’t of Econ. Sec., 196
Ariz. 246, 249 ¶ 12 (2000). The juvenile court “must consider the totality of
the circumstances existing at the time of the severance determination,
including the child’s adoptability and the parent’s rehabilitation.” Alma S.
v. Dep’t of Child Safety, 245 Ariz. 146, 148 ¶ 1 (2014).
¶18 We “will affirm a severance order unless it is clearly
erroneous.” Id. at 151 ¶ 18; Demetrius L. v. Joshlynn F., 239 Ariz. 1, 2 ¶ 3
(2016). In determining on appeal whether the Department satisfied its
burden of proof, we will affirm unless we conclude as a matter of law that
no reasonable fact-finder could have found that burden was sustained. See
Denise R. v. Ariz. Dep’t of Econ. Sec., 221 Ariz. 92, 95 ¶ 10 (App. 2009). We
6
IN RE TERM OF PARENTAL RIGHTS AS TO J.F. et al.
Decision of the Court
recognize the juvenile court is in the best position to assess the credibility
of witnesses, weigh the evidence, and resolve disputed facts. Jordan C. v.
Ariz. Dep’t of Econ. Sec., 223 Ariz. 86, 93 ¶ 18 (App. 2009). We, therefore,
view the evidence in the light most favorable to sustaining the court’s ruling
and will not disturb a factual finding unless there is no reasonable evidence
to support it. Adrian E. v. Dep’t of Child Safety, 239 Ariz. 240, 241 ¶ 2 (App.
2016); Mary Lou C. v. Ariz. Dep’t of Econ. Sec., 207 Ariz. 43, 47 ¶ 8 (App. 2004).
A. Fifteen-Months’ Out-of-Home Placement.
¶19 Mother and Father argue that the juvenile court erred when it
terminated their parental rights under the fifteen-months’ time-in-care
ground. A.R.S. § 8-533(B)(8)(c). Severance under this ground required clear
and convincing evidence that the children had been in an out-of-home
placement for a cumulative total period of fifteen months or longer; the
Department made a diligent effort to provide the parents appropriate
reunification services; the parents had been unable to remedy the
circumstances that caused the children to be in an out-of-home placement;
and there is a substantial likelihood that the parents will not be capable of
exercising proper and effective parental care and control in the near future.
A.R.S. § 8-533(B)(8)(c).
¶20 Because the dependency action began in January 2020, when
the Department took temporary custody of the children, and the severance
of parental rights occurred in September 2022, the children have been in an
out-of-home placement for more than fifteen months.
1. Diligent Reunification Efforts.
¶21 Mother and Father both contend that the Department did not
make diligent reunification efforts. The juvenile court must “consider the
totality of the circumstances when determining whether [the Department]
has made diligent efforts.” Donald W. v. Dep’t of Child Safety, 247 Ariz. 9, 23
¶ 49 (App. 2019). “[A] diligent effort requires—at the least—[the
Department] to identify the conditions causing the child’s out-of-home
placement, provide services that have a reasonable prospect of success to
remedy the circumstances as they arise throughout the time-in-care period,
maintain consistent contact with the parent, and make reasonable efforts to
assist the parent in areas where compliance proves difficult.” Id. at 23 ¶ 50
(citation omitted). Father also contends that the juvenile court failed to
consider the “totality of the circumstances” required by Donald W.
¶22 Regarding the Department’s diligent reunification efforts, the
juvenile court found that “the Department provided Mother and Father
7
IN RE TERM OF PARENTAL RIGHTS AS TO J.F. et al.
Decision of the Court
with an array of services that were tailored to the reasons why the children
were in an out-of-home placement.” As to the impact of those services on
Father, the juvenile court explained that “Father did not successfully
complete many services, and his various service provide[r] notes reflect
ongoing diminished capacities.” As to Mother, “despite her ability to
complete services, she has not been able to fully recognize the substantial
risk of harm her relationship with the Father places the children in.” The
juvenile court concluded that additional services would be “futile” because
of the length of time Mother had received domestic violence services and
“yet still remains severely diminished in her recognition.”
¶23 The Department contends that Mother and Father have
waived their diligent efforts arguments because a parent must object to the
adequacy of services before the severance hearing. When the juvenile court
record shows that the Department ordered specific services according to a
case plan, and the juvenile court finds during implementation of the plan
that the Department made reasonable efforts to provide those services, a
parent who does not contemporaneously object cannot later challenge that
finding on appeal. See Shawanee S. v. Ariz. Dep’t of Econ. Sec., 234 Ariz. 174,
178–79 ¶ 16 (App. 2014); Bennigno R. v. Ariz. Dep’t of Econ. Sec., 233 Ariz.
345, 349 ¶ 19 (App. 2013).
¶24 Here, the juvenile court held seven separate report and
review hearings, in June 2020, August 2020, November 2020, February 2021,
August 2021, September 2021, and January 2022. Each minute entry
contained findings that the Department made reasonable efforts. See
Shawanee S., 234 Ariz. at 179 ¶ 17. The Department submitted progress
reports for each hearing, describing the services provided to each parent
and their progress towards the case plan goals. Id. Additionally, the
juvenile court issued orders in August 2020, December 2020, March 2021,
August 2021, November 2021, and January 2022. Each listed the services
provided and found that the Department made reasonable efforts. Neither
Mother nor Father objected to the juvenile court’s diligent effort findings.
We, therefore, conclude that Mother and Father waived the ability to
challenge the juvenile court’s finding that the Department made diligent
reunification efforts. See id.; Bennigno R., 233 Ariz. at 349 ¶ 19.
¶25 Notwithstanding waiver, we have reviewed the record and
conclude that it contains sufficient evidence supporting the juvenile court’s
factual findings and its conclusion that the Department made reasonable
efforts to provide Mother and Father appropriate reunification services,
and any additional services would be futile. See Bennigno R., 233 Ariz. at
350 ¶ 20. Although Father argued at the termination hearing that he should
8
IN RE TERM OF PARENTAL RIGHTS AS TO J.F. et al.
Decision of the Court
have received a psychological evaluation, he never requested this
additional service before the hearing. See Bennigno R., 233 Ariz. at 349 ¶ 19.
Nevertheless, the Department is not “required to provide every conceivable
service.” See Maricopa Cnty. Juv. Action No. JS-501904, 180 Ariz. 348, 352
(App. 1994) (citations omitted).
2. Inability to Remedy the Circumstances.
¶26 Mother and Father both contend that the Department failed
to prove that they were unable to remedy the circumstances causing the
children to be in an out-of-home placement. Failure of a parent to “remedy
the circumstances that cause [a] child to be in an out-of-home placement”
is a proxy for parental unfitness because it demonstrates the parent’s
inability “to properly parent his/her child.” Alma S., 245 Ariz. at 150 ¶ 10
(citation omitted). The “circumstances” causing the child to be in an out-
of-home placement must be “existing at the time of the severance.” Marina
P. v. Ariz. Dep’t of Econ. Sec., 214 Ariz. 326, 330 ¶ 22 (App. 2007).
¶27 The juvenile court concluded that neither Mother nor Father
had remedied the circumstances causing the out-of-home placement.
Father “failed to recognize his children’s needs or has been unwilling to
address them,” did not “see his children’s special needs as serious or as
requiring special attention,” and “entirely minimized the domestic
violence,” all of which “places the children at a substantial risk of harm.”
The court also found that Father was “unwilling to listen to any advice or
guidance.” Father argues that he has completed or substantially completed
services designed to rectify the circumstances that brought the children into
the Department’s care.
¶28 The record sufficiently supports the court’s findings that
Father did not fully engage in services and cannot recognize his children’s
needs. Father did not complete parent-aide services and closed out of
Nurturing Parenting for nonengagement. During visits, Father exhibited
anger towards the Department’s staff, lack of control over the children’s
behaviors, and the Department cited numerous safety concerns at Father’s
home. Father did not listen to advice, as he agreed that he told the children
not to listen to the case aide during a supervised visit. After the Department
requested Father have visits at their office due to safety concerns, Father
canceled visits. Although Father completed domestic violence, anger
management, and parenting sessions, he testified that he completed a lot of
the online sessions while working.
9
IN RE TERM OF PARENTAL RIGHTS AS TO J.F. et al.
Decision of the Court
¶29 Father’s testimony also supports the court’s finding that he
continues to have contact with Mother and minimizes the role of domestic
violence. Father testified that the children are in the Department’s care only
because of maternal grandmother’s behavior. When asked if he recalled the
Department telling him that domestic violence is a concern, he stated, “no.”
Father also testified that if he could make the decision, he would want to
raise the children with Mother. Father has not filed for divorce and stated
he intends to remain married. When asked if the case were dismissed and
the children returned whether he would live with Mother, Father stated, “if
it’s okay with the courts.” Father continues to see Mother at small
gatherings four times per week. Although Father stated that he is not in a
relationship with Mother, the court found uncle’s testimony that the
parents are still in a relationship to be credible.
¶30 As to Mother, the juvenile court found that while Mother “is
now able to recognize the needs of her children and can appropriately care
for them,” she “is either unwilling or unable to acknowledge the nature,
history and extent of both the domestic violence between herself and
Father, and the . . . control and power that Father still exerts over her.” The
juvenile court concluded that “but for the [c]ourt’s and Department’s
involvement, Mother would remain in a physical and ongoing relationship
with the Father.” The juvenile court believed that the ongoing relationship
between Mother and Father continued to “place[] the children at a
substantial risk of harm.” Mother contends that her only relationship with
Father is that she attends small gatherings with him, and since April 2021
there have been no domestic violence incidents.
¶31 Given the deferential standard of appellate review, the record
supports the juvenile court’s findings that Mother fails to recognize the role
of domestic violence in her relationship with Father, which places the
children at substantial risk of harm. See Jordan C., 223 Ariz. at 93 ¶ 18. When
initially asked about the December 2019 incident, Mother called it “a little
disagreement.” Later, when asked if Mother and Father had incidents of
physical violence before December 2019, Mother testified there were none
that she remembers. But Mother then agreed during her testimony that the
parents had other domestic violence incidents before December 2019
involving physical violence. Mother also acknowledged that she had been
made aware domestic violence was a concern for the children’s return when
the Department took temporary custody of the children but continued to
live with Father until April 2021.
¶32 Mother filed an order of protection against Father in October
2021 but testified that she did not obtain it out of fear but rather to show the
10
IN RE TERM OF PARENTAL RIGHTS AS TO J.F. et al.
Decision of the Court
Department she could keep her son safe; however, she allowed the order to
lapse. The case manager testified that Mother only filed the order because
she thought that’s what the Department wanted. Mother testified that
during a team decision-making meeting to discuss safety planning in
preparation for L.F.’s birth, she told the Department that she would not
disclose her new address to Father when in fact, Father already knew the
address. The case manager testified that Mother’s disclosure of the address
concerned the Department due to the cycle of abuse and “if Mother is still
actively participating in that cycle, then again, that could affect the
children.” The juvenile court found it “credible and insightful” that when
Mother discussed safety planning with the case manager, Mother stated, “if
that’s what [the Department] wants, that’s what I’ll do.”
¶33 Although Mother testified that she is not in a relationship
with Father, she continues to see Father at small gatherings four times per
week. The case manager testified that Mother had not protected herself
from Father by actively minimizing Father’s erratic behaviors and anger;
the court gave this portion of her testimony significant weight. The juvenile
court found that Mother’s choice to spend ten hours per week in close
personal contact with Father demonstrated a lack of understanding of
Father’s control over her. Additionally, contact has occurred between the
parents when Father has been over to Mother’s address (albeit not inside)
several times to deliver furniture. Mother also stated she has been to
Father’s house once or twice since she moved out. Father also drove Mother
to the hospital for L.F.’s birth.
¶34 Mother also testified that she has divorce papers and thinks
they were filed, but she has not been sure of the process to finalize them.
The juvenile court did not find Mother’s testimony that finalizing the
divorce was too difficult to be credible; instead, the court inferred that
“Mother did not do so because of the control Father exerts over her and
interprets it as evidence that Mother will return to Father as soon as the
[c]ourt and Department are not involved.” Again, Father’s uncle, who
routinely interacts with Mother and Father, testified that he believes Mother
and Father are still in a relationship because they’re husband and wife.
¶35 Because reasonable evidence supports the juvenile court’s
factual findings, we cannot set them aside on appeal. See Jordan C., 223 Ariz.
at 93 ¶ 18. We also cannot say, based on the record evidence, that no
reasonable factfinder could conclude that Mother and Father have been
unable to remedy the circumstances that caused the children to be in an out-
of-home placement. See Denise R., 221 Ariz. at 95 ¶ 10.
11
IN RE TERM OF PARENTAL RIGHTS AS TO J.F. et al.
Decision of the Court
3. Ability to Parent in the Near Future.
¶36 Mother and Father both contend that the Department failed
to prove that they would not be capable of exercising proper and effective
parental care and control in the near future.
¶37 As to Father, the court found that despite the matter
continuing for “almost two-and-a-half years,” Father’s minimization and
inability to recognize the danger domestic violence poses to the children
prevents him from being able to parent in the near future. Father argues
that the juvenile court failed to give sufficient weight to the fact an incident
of domestic violence has not been reported in the last fifteen months and
that passage of time cannot be sufficient for severance. Although no
domestic violence incident has occurred in the last fifteen months, Father’s
testimony supports the juvenile court’s concern that without the court’s
intervention, Father would live with Mother and the children again.
Father’s minimization of domestic violence, even after two-and-a-half years
of services that included domestic violence classes, prevents him from
being able to parent in the near future.
¶38 Father also argues that this case is similar to Brionna J. v. Dep’t
of Child Safety, 1 CA-JV 21-0039 (Ariz. App. May 24, 2022). Since Father’s
opening brief, the Arizona Supreme Court vacated Brionna J. and
announced that a written opinion explaining the Court’s reasons for doing
so will follow. Brionna J. v. Dept of Child Safety/A.V., CV-22-0158-PR (Ariz.
Jan. 11, 2023).
¶39 As to Mother, the court found that she also cannot recognize
the danger of the parents’ relationship. Mother argues that the juvenile
court unfairly minimized Mother’s progress, demonstrated by her
completion of services. The juvenile court fully acknowledged that
“Mother has made significant progress in recognizing that the children do
have both basic and special needs that she had previously failed to
recognize.” But the court, nonetheless, found that “her ongoing
relationship with Father continues to pose a substantial risk of harm and
Mother has only minimally improved here. She has made some outward
steps, such as obtaining her own housing, but the remainder of her actions
demonstrate her intent to remain in this dangerous relationship.” Likewise,
the case manager testified that although Mother engaged in services, she
has not made the behavioral changes necessary to reunify with the children.
¶40 We also acknowledge that Mother has progressed by
completing required services and obtaining her own housing. The juvenile
12
IN RE TERM OF PARENTAL RIGHTS AS TO J.F. et al.
Decision of the Court
court found, however, that “Mother has only minimally improved here”
specifically regarding her ongoing relationship with Father. Much of that
conclusion was based on factual inferences and credibility determinations
stemming from live testimony. As an appellate court, we cannot reweigh
those inferences and determinations. Jordan C., 223 Ariz. at 93 ¶ 18. The
record sufficiently supports the juvenile court’s conclusion that Mother’s
continued minimization of domestic violence and contact with Father
would put the children at risk of substantial harm, and therefore Mother
will not be able to parent the children in the near future.
B. Best Interests.
¶41 Only Father challenges the court’s best interests finding,
asserting the Department failed to prove that termination of his parental
rights would be in the children’s best interests. Kent K., 210 Ariz. at 288 ¶
42.
¶42 Once a parent is found unfit, “the interests of the parent and
child diverge because the court has already found the existence of one of
the statutory grounds for termination by clear and convincing evidence.”
Demetrius L., 239 Ariz. at 4 ¶ 15. Severance is in the children’s best interests
if the Department proves by a preponderance of the evidence that “(1) the
child will benefit from severance; or (2) the child will be harmed if
severance is denied.” Alma S., 245 Ariz. at 150 ¶ 13; Kent K., 210 Ariz. at 288
¶¶ 41–42. “It is well established in state-initiated cases that the child’s
prospective adoption is a benefit that can support a best-interests finding.”
Demetrius L., 239 Ariz. at 4 ¶ 16.
¶43 The juvenile court found that termination would be in the
children’s best interests, partly because paternal grandmother “is willing to
adopt the children and provide them with permanency.” While Father does
not challenge the children’s adoptability, he argues that the court did not
give sufficient weight to Father’s reunification efforts or “to the fact that the
children and Father have a number of years to have a normal relationship
together.” To the contrary, the juvenile court considered those factors,
stating “[t]he court has considered the totality of the circumstances,
including both parents’ efforts toward reunification, the parent-child bond,
and fitness to parent.”
¶44 And while the juvenile court should consider the parent’s
rehabilitation efforts, it should not subordinate the children’s interests to
the unfit parent’s interests. Alma S., 245 Ariz. at 151 ¶ 15. The juvenile court
found that paternal grandmother can meet the children’s needs, whereas
13
IN RE TERM OF PARENTAL RIGHTS AS TO J.F. et al.
Decision of the Court
“Father still does not recognize his children’s needs.” Additionally,
adoption provides the children permanency and stability in their
relationship with paternal grandmother, after the dependency case has
been pending for about three years. See Demetrius L., 239 Ariz. at 5 ¶ 20.
Therefore, the termination of Father’s parental rights weighs in the
children’s best interests to provide them with a safe and stable home life.
See id. at 4 ¶ 15.
CONCLUSION
¶45 We affirm the juvenile court’s judgment terminating Mother’s
and Father’s parental rights.
AMY M. WOOD • Clerk of the Court
FILED: AA
14