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Melissa S. v. Arizona Department of Economic Security

Court of Appeals of Arizona, Second Division, Department A

October 8, 2013

MELISSA S., Appellant,

Not for Publication Rule 28, Rules of Civil Appellate Procedure

APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY Cause No. 195301 Honorable Karen S. Adam, Judge.

The Hopkins Law Office, P.C. By Cedric Martin Hopkins Tucson Attorney for Appellant.

Thomas C. Horne, Arizona Attorney General By Laura J. Huff Tucson Attorneys for Appellee Arizona Department of Economic Security.


JOSEPH W. HOWARD, Chief Judge.

¶1 Appellant Melissa S. appeals from the juvenile court's March 2013 order terminating her parental rights to her four-year-old son B. Melissa does not challenge the court's finding of a statutory ground for termination under A.R.S. § 8-533(B)(8)(c), [1] but maintains there was insufficient evidence to support the court's finding that termination of her parental rights was in B.'s best interests. Because we conclude the court's resolution of this issue was supported by legally sufficient evidence, we affirm the termination order.

2 To terminate parental rights pursuant to A.R.S. § 8-533(B), a juvenile court must find the existence of at least one of the statutory grounds for termination and "shall also consider the best interests of the child." Although statutory grounds for termination must be proven by clear and convincing evidence, only a preponderance of the evidence is required to establish that severance will serve the child's best interests. See A.R.S. §§ 8-533(B), 8-537(B); Kent K. v. Bobby M., 210 Ariz. 279, ¶ 41, 110 P.3d 1013, 1022 (2005). We will affirm an order terminating parental rights unless we must say as a matter of law that no reasonable person could find the essential elements proven by the applicable evidentiary standard. Denise R. v. Ariz. Dep't of Econ. Sec, 221 Ariz. 92, ¶¶ 9-10, 210 P.3d 1263, 1265-66 (App. 2009). We view the evidence in the light most favorable to upholding the court's order. Id. ¶ 10.

¶3 Child Protective Services (CPS), a division of the Arizona Department of Economic Security (ADES), first became involved with this family in December 2009, when it received a report alleging Melissa and her ex-husband J.[2] had neglected to follow medical directives for B.'s older brother R., who was diagnosed with hypoglycemia shortly after his birth in October 2007. According to the report and the investigation that followed, R. had been taken to the hospital multiple times after suffering seizures or seizure-like activity resulting from his parents' failure to administer prescribed medication as required.

¶4 In January 2010, CPS received another report from medical staff expressing concern that Melissa "may not be capable of understanding the importance of [R.]'s medical regimen" or dietary restrictions. That same month, CPS received a report alleging fourteen-month-old B. also had suffered from medical neglect, after Melissa and J. had taken him to a hospital emergency room and he was found to be in acute renal failure. B. remained hospitalized for six months, ultimately receiving a kidney transplant at the end of June. Medical staff expressed concern about the parents' infrequent visits and minimal participation in B.'s treatment; his attending physician opined it would be "unsafe and life threatening" to release B. to their care. R.'s physician had expressed similar concerns about Melissa's apparent inability "to prevent significant hypoglycemia" after R. had suffered two seizures at the end of May, and Melissa and J. had agreed to place R. with J.'s parents during further investigation by CPS.

¶5 In July 2010, CPS assumed temporary legal custody of B. and R., and ADES filed a petition in which it alleged both were dependent children. Initially, B. had been placed in a foster home for medically fragile children, but his foster parents reported "his needs were found too significant for them to handle, " and he was transferred to a group home managed by the Arizona Department of Developmental Disabilities (DDD) in Maricopa County.

6Melissa and J. admitted the allegations in an amended dependency petition, and both participated in extensive reunification services provided by CPS. At a permanency hearing in August 2012, the juvenile court ordered that R. be placed with J., finding there was a substantial likelihood of reunification between the older boy and his father. But the court found B.'s "health and safety would be at risk if he was returned to either parent, " changed the case plan goal for B. to severance and adoption, and directed ADES to file a motion to terminate parental rights. J. did not contest ADES's motion.

¶7 After a contested termination adjudication hearing, the juvenile court found ADES had proven the time-in-care ground alleged, stating in its under-advisement order,

Although compliant with all tasks and services, [Melissa] has not benefitted to the level necessary to have unsupervised visitation with B[.], much less to be re-unified with him. There continue to be serious and significant concerns about the depth of her understanding of B[.]'s medical, emotional, and behavioral issues. If not strictly monitored, B[.] would be at significant risk to his health and safety while in his mother's care.

With respect to best interests, the court found B. "[was] thriving in his group home" and cited testimony that B.'s significant medical issues would not affect his adoptability and that "adoption efforts are greatly enhanced when a child is legally free." The court noted CPS had "just received a positive home-study" for B.'s placement with a former group home aide who "is highly skilled, understands his complex medical history, . . . provides loving, nurturing, and stable care for him" and "wishes to be a permanent placement."

¶8 On appeal, Melissa argues the juvenile court's findings in support of its best-interests determination are not supported by reasonable evidence in the record. Specifically, she points out testimony at the termination hearing established a home study had not yet been completed for the former aide identified in the court's order, and two previous home studies had been postponed at the aide's request. Citing B.'s continued placement in the DDD group home, Melissa also maintains B. "has proven to be a child who is not adoptable."

¶9 To establish that terminating Melissa's parental rights was in the child's best interests, ADES was required to show the child "would derive an affirmative benefit from termination or incur a detriment by continuing in the relationship." Ariz. Dep't of Econ. Sec. v. Oscar O., 209 Ariz. 334, ¶ 6, 100 P.3d 943, 945 (App. 2004). Although the record reflects a home study for B.'s former aide remained pending during the termination hearing, the juvenile court's finding that CPS recently had received a "positive home study" for this placement does not appear critical to its determination of best interests.[3] Melissa may disagree with the opinions offered by B.'s CPS case manager and a CPS adoption oversight worker—that B. is an adoptable child, despite his special medical needs—but their testimony constitutes reasonable evidence sufficient to support the court's ruling that termination of Melissa's parental rights is in B.'s best interests. See Mary Lou C. v. Ariz. Dep 't of Econ. Sec, 207 Ariz. 43, ¶ 19, 83 P.3d 43, 50 (App. 2004) (evidence child adoptable and current placement meeting child's needs sufficient to find termination in child's best interest).

10 Moreover, Melissa does not dispute the juvenile court's determination that she currently is unable to meet B.'s needs and is unlikely to be able to do so in the near future. A "best interests inquiry focuses primarily upon the interests of the child, as distinct from those of the parent." Kent K., 210 Ariz. 279, ¶ 37, 110 P.3d at 1021. And we have recognized every child has an interest in permanency and stability. See, e.g., Oscar O., 209 Ariz. 332, ¶ 16, 100 P.3d at 948. The court properly considered evidence that adoption efforts "are greatly enhanced when a child is legally free" for adoption, particularly when the child has special needs, as B. does. See In re Maricopa Cnty. Juv. Action No. JS-501904, 180 Ariz. 348, 352, 884 P.2d 234, 238 (App. 1994) (child may benefit from being "legally free to be adopted" without adoptive plan in place); In re Maricopa Cnty. Juv. Action No. JS-8441, 175 Ariz. 463, 469, 857 P.2d 1317, 1323 (App. 1993) ("The benefit of severance to the child is that which the legislature intended: freedom to be adopted into a stable and nurturing home."), abrogated on other grounds by Kent K., 210 Ariz. 279, ¶¶ 12, 22, 110 P.3d at 1016, 1018. The court's ruling that termination was in B.'s best interests was supported by reasonable evidence, and we will not disturb it. See Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, ¶ 12, 53 P.3d 203, 207 (App. 2002) (appellate court does not reweigh evidence on review).

¶11 For the foregoing reasons, we affirm the juvenile court's termination order.


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