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Samantha S. v. Arizona Department of Economic Security, D.S.

Court of Appeals of Arizona, First Division, Department C

June 25, 2013

SAMANTHA S., ADRIAN S., Appellants,

Not for Publication -Rule 28, Arizona Rules of Civil Appellate Procedure

Appeal from the Superior Court in Yavapai County Cause No. P1300JD201000072 The Honorable David L. Mackey, Judge

Law Offices of Florence M. Bruemmer, P.C. Florence M. Bruemmer Attorneys for Appellant Samantha S.

Robert D. Rosanelli Attorney for Appellant Adrian S.

Thomas C. Horne, Attorney General Eric Devany, Assistant Attorney General Attorneys for Appellee Arizona Department of Economic Security.



¶1 Samantha S. and Adrian S. appeal the superior court's order terminating their parental rights to their daughter, "Child."[1] We affirm.


¶2 Child was born in January 2008. In September 2009, Father was incarcerated after pleading guilty to charges of child abuse, possession of marijuana and disorderly conduct. By late 2010, Father remained incarcerated, and Mother would leave Child with Father's mother ("Grandmother") for two to three weeks a month. In November 2010, Grandmother reported to police that, based on statements by Child, she believed Mother's live-in boyfriend, Pete, had sexually molested Child.

¶3 At first, Mother did not believe that Pete had abused Child but agreed to separate from him and have Child placed outside the home for 30 days. Although Mother claimed she was separated from Pete, she acknowledged that she continued to live in his home and was driving his car.

¶4 The Department of Economic Security ("Department") filed a petition alleging Child was dependent as to both parents due to neglect. The superior court found Child dependent as to Mother based on her failure to protect Child from sexual abuse, noting that Mother's continuing association with Pete gave the court "concern[] that [Mother] will continue to allow contact between [Pete] and the child." The superior court also found that Mother had neglected Child because Mother had used methamphetamine several times during the three months prior to Child's placement and had left Child with relatives for long periods of time without granting them legal authority to provide medical treatment. The superior court found Child was dependent as to Father due to his incarceration.

¶5 Child was placed with a foster family. The foster parents noted that Child presented with sexualized behaviors and used foul language to refer to other people and her toys. Child also feared the sun going down and going to bed; she would scream and cry for someone to "save" her at those times. Child could sleep only about four hours a night. During sleep, she would scream and cry, kick her legs, bend her fingers back to the point her fingers would be sore the next day and push at her crotch area while saying "stop it." After less drastic measures failed, Child was put on medication to reduce her night symptoms and allow her to sleep.

¶6 From the beginning, the Department's permanency plan was to reunify Child with Mother. Mother successfully participated in multiple reunification services, including supervised visitation; however, Mother continued to deny that Pete had sexually abused Child. In the summer of 2011, during a best-interests assessment with licensed psychologist Dr. Glenn Moe, Mother acknowledged that Pete had sexually abused Child. Mother then was allowed unsupervised visits, which eventually were expanded to include overnight visits. In October 2011, a transition plan was developed to return Child to Mother's custody.

¶7 In August 2011, Father was released from prison. The Department expressed concern about "his lengthy criminal history involving drugs, alcohol, child endangerment, and domestic violence" and reports involving Mother's other son concerning "seriously violent and inappropriate behavior." Father was referred for a psychological evaluation and anger management classes. The Department recommended that "[b]ecause [Child] was only a year old when [Father] was incarcerated, a relationship would need to be re-established and rebuilt between the two, therefore the agency would recommend that any initial contact be therapeutic, while under the supervision of [Child]'s therapist." The Department offered a psychological evaluation and reevaluation, individual counseling, substance-abuse treatment, random urinalysis testing, parenting classes, "Social Butterfly, " a chaperone class and supervised visitation. At the initial psychological evaluation, the psychologist recommended Father begin visits with Child and increase them in length once "he is able to develop a positive relationship with her." The psychologist also recommended counseling to deal with communication and conflict resolution, ongoing parent education classes and an anger management class if indications of aggressive or impulsive behaviors emerged.

¶8 Child did not know who her Father was when she came into foster care. About the time the decision was made to transition Child back to Mother, Father began to have visits with Child, supervised by a parent aide. During visits, Father told Child that Child was going to live with him and that he was going to be her family and advised Child not to call her foster parents "mom" and "dad." On one of his first visits with Child, Father told the parent aide, "[Child] just told me . . . that Pete was at Mommy's and she saw them in bed with no pants on." The parent aide did not hear Child make the statements that Father reported. Child Protective Services ("CPS") opened an investigation to ascertain whether Mother had in fact reintroduced Child to her alleged abuser. Child also told her foster parents, her therapist and a CPS unit supervisor that Pete was at Mother's home.

¶9 The CPS investigation concluded that the allegations that Mother re-exposed Child to Pete were substantiated. Child's nightmares and sexualized behaviors increased after the alleged exposure. Her sleep patterns also regressed.

¶10 On February 22, 2012, the superior court granted the Department's request to stop Mother's visitation because she was alleged to have re-exposed Child to Pete. On March 6, 2012, the court held a review and permanency hearing. The Department requested to be relieved from providing reunification services to Mother. At the hearing, the superior court stated that it was granting the Department's request to be relieved of providing services. The subsequent minute entry, however, did not include that order; instead, the minute entry noted the Department's request and stated: "Request the Court set a hearing within 60-90 days." No hearing was set. On August 29, 2012, Mother filed a motion to ...

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