425 P.3d 1089 (Ariz. 2018), CV-17-0363-PR, Alma S. v. Department of Child Safety

Docket Nº:CV-17-0363-PR
Citation:425 P.3d 1089, 245 Ariz. 146
Opinion Judge:JUSTICE LOPEZ
Party Name:ALMA S., Appellant, v. DEPARTMENT OF CHILD SAFETY, J.R., I.R., Appellees.
Attorney:H. Clark Jones (argued), Law Office of H. Clark Jones, LLC, Mesa, Attorney for Alma S. Mark Brnovich, Arizona Attorney General, Dominic E. Draye, Solicitor General, Nicholas Chapman-Hushek (argued), Toni M. Valadez, Assistant Attorneys General, Mesa, Attorneys for Department of Child Safety
Judge Panel:JUSTICE LOPEZ authored the opinion of the Court, in which CHIEF JUSTICE BALES, VICE CHIEF JUSTICE BRUTINEL, and JUSTICES PELANDER, TIMMER, and GOULD joined. JUSTICE BOLICK concurred in the result. JUSTICE BOLICK, Concurring in the Result
Case Date:September 14, 2018
Court:Supreme Court of Arizona
 
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Page 1089

425 P.3d 1089 (Ariz. 2018)

245 Ariz. 146

ALMA S., Appellant,

v.

DEPARTMENT OF CHILD SAFETY, J.R., I.R., Appellees.

No. CV-17-0363-PR

Supreme Court of Arizona

September 14, 2018

Page 1090

[Copyrighted Material Omitted]

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Appeal from the Superior Court in Maricopa County, The Honorable Cari A. Harrison, Judge, Nos. JS18287, JD30481. AFFIRMED

Opinion of the Court of Appeals, Division One, 244 Ariz. 152, 418 P.3d 925 (App. 2017). VACATED

H. Clark Jones (argued), Law Office of H. Clark Jones, LLC, Mesa, Attorney for Alma S.

Mark Brnovich, Arizona Attorney General, Dominic E. Draye, Solicitor General, Nicholas Chapman-Hushek (argued), Toni M. Valadez, Assistant Attorneys General, Mesa, Attorneys for Department of Child Safety

JUSTICE LOPEZ authored the opinion of the Court, in which CHIEF JUSTICE BALES, VICE CHIEF JUSTICE BRUTINEL, and JUSTICES PELANDER, TIMMER, and GOULD joined. JUSTICE BOLICK concurred in the result.

OPINION

JUSTICE LOPEZ

[¶ 1] This case concerns the inquiry juvenile courts must make to determine whether parental severance is in the "best interests of the child" for purposes of A.R.S. § 8-533(B). We hold that courts 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.

I. BACKGROUND

[¶ 2] Alma S. ("Mother") was involved in a relationship with Esdras R. ("Father"). I.R. is the biological child of Mother and Father, and J.R. is Mother’s biological child but not Father’s. J.R.’s father abused Mother during their previous relationship. Father also routinely abused Mother and both children. Father, in May 2015, severely beat two-month-old I.R. while Mother was at work. When Mother returned, she failed to take I.R. to the hospital even though Father was absent for several hours. Without Father’s knowledge, I.R. was finally taken to the hospital the next day by Mother’s sister and cousin. 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 two-year-old J.R.

[¶ 3] The Department of Child Safety ("DCS") subsequently removed both children from Mother’s home, and the children were determined to be dependent. Over the next eighteen months, DCS provided Mother and Father with an array of services, including a parent aide, drug testing, and a psychological evaluation. Mother’s drug testing was discontinued after she passed consecutive tests. However, the psychologist who conducted Mother’s evaluation diagnosed her with mood and personality disorders, and multiple substance abuse disorders in self-reported remission. He noted Mother’s "poor judgment" in choosing abusive romantic partners and entrusting her children to someone "significantly unfit" to care for them. He concluded that Mother was unable to protect herself or the children from abuse, that she lacked insight into the dangers posed by abusive

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partners, that "[m]aintaining a relationship, even when destructive, becomes more important than the safety of [her] children," and that her future parenting prospects were "poor at best." Mother’s DCS case manager agreed, concluding that Mother was unable to protect the children.

[¶ 4] In December 2015, DCS moved to terminate Mother’s parental rights to both children on the ground that she was unable to protect them from abuse. See § 8-533(B)(2). Following a two-day evidentiary hearing in November 2016, the juvenile court severed Mother’s parental rights. It inferred that Mother was aware that Father caused I.R.’s injuries and did not report them or seek medical care. It also noted that although Mother claimed to have ended her relationship with Father, he had stated otherwise to his therapist. The court then determined that severance was in the best interests of the children because their current out-of-home placements were meeting their needs, the children were in an adoptive placement, and both children would be "considered adoptable if the current placement was not able to complete the adoption for any reason." Mother appealed, challenging only the juvenile court’s best-interests finding.

[¶ 5] The court of appeals vacated the juvenile court’s order, holding that "the record supporting the court’s best-interests determination is insubstantial." Alma S. v. Dep’t of Child Safety, 244 Ariz. 152, 155 ¶ 1, 418 P.3d 925, 928 (App. 2017). To terminate Mother’s parental rights, the court reasoned, DCS "must show that there is a substantial likelihood that the parent will not be capable of parenting effectively in the near future, not that someone with better parenting skills may be able to care for the child." Id. at 162 ¶ 36, 418 P.3d at 935 (citing Roberto F. v. Ariz. Dep’t of Econ. Sec., 232 Ariz. 45, 53 ¶ 38 n.11, 301 P.3d 211, 219 (App. 2013) ). According to the court of appeals, when parent-aide services demonstrate "a parent’s ability to parent the children," the parent and children have a bond, and the parent’s living situation is "safe and stable," "the children’s adoptability, household stability, and the ability of their current placements to meet their needs are subordinate to the fundamental rights of the parent in determining best interests, unless severance removes a detriment caused by the parental relationship." Id. ¶ 38. Throughout its opinion, the court stressed the importance of a parent’s constitutional right to raise her children. See, e.g., id. at 157 ¶ 11, 158 ¶ 20, 163 ¶ 39, 418 P.3d at 930, 931, 936.

[¶ 6] The court of appeals conducted a detailed analysis of the evidence presented to the juvenile court. In reaching its holding, the court rejected the juvenile court’s finding that Mother and Father were still in a relationship, id. at 158 ¶¶ 16-17, 160 ¶ 27, 418 P.3d at 931, 933, and disagreed with the DCS case manager and the psychologist’s conclusion that Mother lacked the ability to protect the children from abuse, id. at 158 ¶¶ 19-20, 160 ¶¶ 25-27, 418 P.3d at 931, 933. Despite the court’s acknowledgement that the only issue on appeal was the juvenile court’s best-interests determination, id. at 156 ¶ 7, 418 P.3d at 929, it found that "it cannot be inferred from this record that Mother is an unfit parent," id. at 160 ¶ 24, 418 P.3d at 933 (emphasis added).

[¶ 7] We granted review to clarify the appropriate inquiry for a best-interests analysis under § 8-533(B)— an issue of statewide importance. We have jurisdiction under article 6, section 5(3) of the Arizona Constitution and A.R.S. § 12-120.24.

II. THE TWO-STEP SEVERANCE INQUIRY

[¶ 8] Section 8-533(B) sets forth the grounds that "justify the termination of the parent-child relationship," and states that "the court shall also consider the best interests of the child" in deciding whether to terminate parental rights. We have interpreted § 8-533(B) as entailing a two-step inquiry. See Demetrius L. v. Joshlynn F., 239 Ariz. 1, 4 ¶ 15, 365 P.3d 353, 356 (2016). First, the juvenile court must find by clear and convincing evidence that a statutory ground for termination exists. Kent K. v. Bobby M., 210 Ariz. 279, 286 ¶ 35, 110 P.3d 1013, 1020 (2005); see also A.R.S. § 8-537(B) ("The court’s findings with respect to grounds for termination shall be based upon clear and convincing evidence...."). Second, the court

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must determine by a preponderance of the evidence that severance is in the child’s best interests. Kent K., 210 Ariz. at 284 ¶ 22, 285-86 ¶ 31, 110 P.3d at 1018, 1019-20.

[¶ 9] In Kent K., we implicitly equated the substantive grounds for termination listed in § 8-533(B) with parental unfitness. Id. at 285-86 ¶¶ 31-32, 110 P.3d at 1019-20. We now explicitly reiterate that conclusion, which ensures compliance with the due process requirement that a court find, by clear and convincing evidence, parental unfitness when a severance is contested. See

Santosky v. Kramer, 455 U.S. 745, 769, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); Kent K., 210 Ariz. at 285 ¶ 28, 110 P.3d at 1019. If a statutory ground were not synonymous with unfitness, a contested severance based on such ground would be constitutionally infirm.

[¶ 10] Eight of the eleven statutory grounds in...

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