Alma S. v. Dep't of Child Safety

• Decision Date: 14 September 2018
• Docket Number: No. CV-17-0363-PR,CV-17-0363-PR
• Citation: 425 P.3d 1089
• Parties: ALMA S., Appellant, v. DEPARTMENT OF CHILD SAFETY, J.R., I.R., Appellees.
• Court: Arizona Supreme Court

425 P.3d 1089

ALMA S., Appellant,

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

No. CV-17-0363-PR

Supreme Court of Arizona.

Filed September 14, 2018

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.

JUSTICE LOPEZ, opinion of the Court:

¶ 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 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 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 § 8-533(B) are proxies for parental unfitness because they demonstrate a parent’s inability "to properly parent his/her child." See Roberto F., at 54 ¶ 42, 301 P.3d at 220. They address the most serious instances of parental abuse, neglect, or incapacity. See § 8-533(B)(1) (abandonment of the child); § 8-533(B)(2) (neglect or willful abuse of the child); § 8-533(B)(3) (parent not capable of "discharg[ing] parental responsibilities" due to mental illness or chronic substance abuse); § 8-533(B)(4) (parent convicted of a felony that is demonstrative of unfitness); § 8-533(B)(8) (failure of a parent to "remedy the circumstances that cause [a] child to be in an out-of-home placement"); § 8-533(B)(9) (identity and location of parent is unknown despite three months of "diligent efforts" to find parent); § 8-533(B)(10) (parental rights to another child terminated within the preceding two years and the parent is "currently unable to discharge parental responsibilities due to the same cause"); § 8-533(B)(11) (failure of a parent to discharge parental responsibilities after child removed for second time within 18 months to out-of-home placement).

¶ 11 Section 8-533(B) also lists three other grounds for termination that are facially procedural and thus potentially not indicative of unfitness. These grounds address situations in which a parent has voluntarily relinquished her parental rights or waived her right to contest severance, and hence a finding of parental unfitness is not required. See § 8-533(B)(5) (a "potential father fail[s] to file a paternity action" after receiving notice under A.R.S. § 8-106(G) ); § 8-533(B)(6) (a "putative father fail[s] to file a notice of claim of paternity as prescribed in § 8-106.01"); § 8-533(B)(7) ("[T]he parents have relinquished their rights to a child to an agency or have consented to the adoption."). Thus, all eleven statutory grounds in § 8-533(B) either constitute a finding of parental unfitness or operate only when a parent fails to properly contest the severance.

III. THE...