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Alma S. v. Department of Child Safety

Court of Appeals of Arizona, First Division

November 14, 2017

ALMA S., Appellant,

         Appeal from the Superior Court in Maricopa County No. JS18287 and JD30481 The Honorable Cari A. Harrison, Judge VACATED AND REMANDED.

          Law Office of H. Clark Jones, LLC, Clark Jones Counsel for Appellant

          Arizona Attorney General's Office, Laura J. Huff Counsel for Appellee Department of Child Safety

          Acting Presiding Judge Peter B. Swann delivered the opinion of the court, in which Judge Michael J. Brown and Judge Patricia A. Orozco [1] joined.


          Peter B. Swann, Judge

         ¶1 Alma S. ("Mother") appeals from the severance of her parental rights to I.R. and J.R. We conclude that the record supporting the court's best-interests determination is insubstantial. We therefore vacate the severance order and remand for further proceedings.


         ¶2 I.R. is the biological child of Mother and Esdras R. ("Father"), and J.R. is Mother's biological child from a previous relationship.[2]

         ¶3 It is undisputed that Mother was away at work and I.R. was in Father's care on May 7, 2015. That day, Father sent Mother a Facebook message that I.R. had scratched his face while rolling around. That night, after Mother discovered the severity of I.R.'s injuries, Mother and Father argued because Father would not allow Mother to take I.R. to the hospital. Father then left the house for a few hours, but Mother failed to take I.R. to the hospital while he was away. The next morning, Mother asked her sister and cousin to take I.R. to the hospital while she was at work. Her sister asked Father if she could take I.R. to Chuck E. Cheese. Father agreed. Mother's sister and cousin then took I.R. to the hospital.

         ¶4 Hospital staff determined that I.R. had a healing rib fracture, a right-tibia fracture, a possible left-femur fracture (ultimately ruled out), and multiple bruises. The staff also observed bruises on J.R. They contacted the Department of Child Safety (the "Department") because they suspected abuse. Police found that though Father had a criminal history, there were no police or criminal records involving Mother.

          ¶5 The Department provided services to Mother and Father, and in early 2016 the parenting plan changed from reunification to severance and adoption. Mother complied with or successfully completed all services provided by the Department throughout this case, but in June 2016, Mother and Father were providing conflicting information about whether they were still dating. In July 2016 - fourteen months after I.R.'s hospital admission - Mother completed a psychological evaluation, which diagnosed her with multiple drug dependency and personality disorders and concluded her prospects to successfully parent the children were "poor at best" and would continue to be so for "a prolonged and indeterminate period of time." Ordinarily, we would afford great deference to the juvenile court's review of such an evaluation. But the record here reveals that the evaluation was untethered to the evidence.

         ¶6 In November 2016, the court held a two-day evidentiary hearing concerning severance of Mother's and Father's parental rights. Father did not appear and communicated through counsel that he did not contest the severance. The court severed Father's rights to I.R. and E.C. (a child from his previous relationship) in absentia and heard testimony on severing Mother's rights. Father's severance is not at issue in this appeal.

         ¶7 During her testimony, Mother asserted her Fifth Amendment right to remain silent in response to questions related to her failure to bring I.R. to the hospital immediately, awareness of I.R.'s injuries, and Father's history of domestic violence. From her silence, the juvenile court drew negative inferences that she was aware Father caused I.R.'s injuries but did not report them and that she was aware of Father's domestic-violence history. The Department introduced the psychological evaluation and had the evaluator testify. The juvenile court found clear and convincing evidence that Mother knew or reasonably should have known that Father abused I.R. and that she failed to protect I.R. See A.R.S. § 8-533(B)(2); Linda V. v. Ariz. Dep't of Econ. Sec, 211 Ariz. 76, 79, ¶ 14 (App. 2005) (holding that it is not necessary that the child be abused only that a child be abused). The court also found that severance was in the children's best interests and severed her rights. Mother appeals, challenging only the best-interests finding.


         ¶8 We review severance orders for abuse of discretion, viewing the facts in the light most favorable to sustaining the juvenile court's findings. Xavier R. v. Joseph R., 230 Ariz. 96, 99-100, ¶¶ 9, 11 (App. 2012). "We will not disturb the juvenile court's order severing parental rights unless its factual findings are clearly erroneous, that is, unless there is no reasonable evidence to support them." Audra T. v. Ariz. Dept of Econ. Sec, 194 Ariz. 376, 377, ¶ 2 (App. 1998). We review questions of law de novo and are not bound by findings that combine both facts and law. Wilmot v. Wilmot, 203 Ariz. 565, 568, ¶ 10 (2002).

         ¶9 We will not reweigh evidence, because the juvenile court is best positioned to "observe the parties, judge the credibility of witnesses, and resolve disputed facts." Jordan C. v. Ariz. Dept of Econ. Sec, 223 Ariz. 86, 93, ¶ 18 (App. 2009). But our review for "abuse of discretion" does not mean we look for culpable "abuse" by the court or imply that trial courts have an equal level of discretion in all situations. City of Phoenix v. Geyler, 144 Ariz. 323, 329 (1985). "Abuse" of discretion occurs when a trial court's ruling is "clearly untenable, legally incorrect, or amount[s] to a denial of justice." Id. (citation omitted). When the court's decision is based on a faulty application of law or factual findings not logically supported by the evidence, we may afford a remedy on appeal under the abuse of discretion standard. Id.


         ¶10 The purpose of the state's initial involvement is not to sever parents' constitutionally protected rights to the care, custody, and association with their children, but to ensure that children are healthy and safe and to rectify the circumstances that led to the need for intervention. See Stanley v. Illinois, 405 U.S. 645, 651 (1972); A.R.S. §§ 8-451, -457; Mary Lou C. v. Ariz. Dept of Econ. Sec, 207 Ariz. 43, 49, ¶ 15 (App. 2004); Mary Ellen C. v. Ariz. Dept of Econ. Sec, 193 Ariz. 185, 192, ¶¶ 32-34 (App. 1999). "The combined effect of the fundamental character of a parent's right to his [or her] child and the severity and permanence of termination dictates that the court sever the parent-child relationship only in the most extraordinary circumstances" and "only when concerted effort to preserve the relationship fails" or would be futile. Mary Ellen C, 193 Ariz. at 192, ¶¶ 32, 34 (emphases added).

         ¶11 Parents must be given a fundamentally fair opportunity to rectify parenting problems before their parental rights may be terminated. See Mary Lou C, 207 Ariz. at 49, ¶ 15; Mary Ellen C, 193 Ariz. at 192, ¶¶ 32-34. Indeed, "[t]he extent to which procedural due process must be afforded the recipient is influenced by the extent to which he may be 'condemned to suffer grievous loss.'" Goldberg v. Kelly, 397 U.S. 254, 262-63 (1970) (citation omitted). As the United States Supreme Court held in Santosky v. Kramer:

The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State. Even when blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life. If anything, persons faced with forced dissolution of their parental rights have a more critical need for procedural protections than do those resisting state intervention into ...

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