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Desiree S. v. Department of Child Safety

Court of Appeals of Arizona, First Division

September 9, 2014

DESIREE S., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, [1] R.S., Appellees.

Appeal from the Superior Court in Maricopa County No. JD18982 The Honorable Daniel G. Martin, Judge

David W. Bell, Attorney at Law, Mesa By David W. Bell Counsel for Appellant

Arizona Attorney General's Office, Phoenix By Michael F. Valenzuela Counsel for Appellee Department of Child Safety

Presiding Judge Maurice Portley delivered the Opinion of the Court, in which Judge Michael J. Brown and Chief Judge Diane M. Johnsen joined.

OPINION

PORTLEY, Judge

¶1 Desiree S. ("Mother") challenges the order terminating her parental rights to her child, R.S., who was born in 2002. She argues that there was insufficient evidence to support termination based on fifteen months in out-of-home placement. We agree and reverse the termination order.

FACTS[2] AND PROCEDURAL HISTORY

¶2 Mother and Richard M. ("Father") are the biological parents of R.S. Father was absent from the child's life and R.S. lived with Mother, her husband ("Husband"), and their four younger children.

¶3 The Department filed an in-home dependency petition against Mother and Husband alleging Husband had abused the children and Mother failed to protect them. The children were found dependent, the couple completed services, and the dependency was dismissed in March 2011.

¶4 Shortly thereafter, the Department received a new report that Mother disciplined her seven-year-old daughter by hitting her in the face, and Husband abused R.S. by spanking him with a belt. The children were removed from the home and R.S. was subsequently placed with his maternal grandmother. The Department filed a dependency petition and the juvenile court found the children dependent and ordered a case plan of family reunification.

¶5 Two years later, the juvenile court granted the Department's request to change R.S.'s case plan to severance and adoption. The Department subsequently filed a motion to terminate Mother's parental rights, alleging that R.S. had been in an out-of-home placement for fifteen months or more.[3]

¶6 When Mother failed to appear at a scheduled status conference, the family court commenced the termination hearing. See Ariz. Rev. Stat. § 8-537(c) (West 2014). The case manager testified, was cross-examined, and the court subsequently signed findings of fact and conclusions of law and terminated Mother's parental rights to R.S. Mother now appeals.[4]

DISCUSSION

¶7 A parent's parental rights can be terminated if the juvenile court finds that the Department has proven a statutory basis for termination by clear and convincing evidence, Michael J. v. Arizona Department of Economic Security, 196 Ariz. 246, 249, ¶ 12, 995 P.2d 682, 685 (2000), and there is proof by a preponderance of the evidence that termination is in the child's best interest. Kent K. v. Bobby M., 210 Ariz. 279, 288, ¶ 41, 110 P.3d 1013, 1022 (2005). We will affirm the ruling terminating parental rights unless clearly erroneous. Jesus M. v. Ariz. Dep't of Econ. Sec, 203 Ariz. 278, 280, ¶ 4, 53 P.3d 203, 205 (App. 2002). A ruling is clearly erroneous if unsupported by substantial evidence. Lashonda M. v. Ariz. Dep't of Econ. Sec, 210 Ariz. 77, 81, ¶ 13, 107 P.3d 923, 927 (App. 2005) (citing Mealey ...


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