Brionna J. v. Dep't of Child Safety

• Jurisdiction: Arizona,United States
• Court: Arizona Supreme Court
• Writing for the Court: JUSTICE BEENE, Opinion of the Court
• Citation: Brionna J. v. Dep't of Child Safety, 255 Ariz. 471, 533 P.3d 202 (Ariz. 2023)
• Docket Number: CV-22-0158-PR
• Decision Date: 08 August 2023
• Parties: BRIONNA J., Appellant, v. DEPARTMENT OF CHILD SAFETY, A.V., Appellees.
• topic: Civil Rights,Family Law,Civil Procedure

255 Ariz. 471

533 P.3d 202

BRIONNA J., Appellant,

v.DEPARTMENT OF CHILD SAFETY, A.V., Appellees.

No. CV-22-0158-PR

Supreme Court of Arizona.

Filed August 8, 2023

Kristin K. Mayes, Arizona Attorney General, Drew C. Ensign, Section Chief Civil Appeals, Amanda Adams (argued), Assistant Attorney General, Toni M. Valadez, Senior Appellate Counsel, Mesa, Attorneys for Department of Child Safety

Edward D. Johnson (argued), Law Office of Ed Johnson, PLLC, Peoria, Attorney for Brionna J.

David J. Euchner (argued), Pima County Public Defender's Office, Tucson, Jamie R. Heller, Maricopa County Legal Defender's Office, Phoenix, Attorneys for Amici Curiae Pima County Public Defender's Office and Maricopa County Legal Defender's Office

JUSTICE BEENE authored the Opinion of the Court, in which CHIEF JUSTICE BRUTINEL, VICE CHIEF JUSTICE TIMMER and JUSTICES LOPEZ, MONTGOMERY, and KING joined. JUSTICE BOLICK concurred in the result.

JUSTICE BEENE, Opinion of the Court:

¶1 The juvenile court may terminate a parent's rights if it finds by clear and convincing evidence that at least one of the statutory factors for termination exists and finds by a preponderance of the evidence that termination is in the child's best interests. A.R.S. § 8-533(B) ; Jessie D. v. Dep't of Child Safety , 251 Ariz. 574, 582–83 ¶ 26, 495 P.3d 914, 922–23 (2021). Section 8-533(B)(8)(c) allows the court to terminate a parent's rights if: (1) "[t]he child has been in an out-of-home placement for a cumulative total period of fifteen months or longer pursuant to court order or voluntary placement," (2) "the parent has been unable to remedy the circumstances that cause the child to be in an out-of-home placement," and (3) "there is a substantial likelihood that the parent will not be capable of exercising proper and effective parental care and control in the near future."

¶2 In this case, we consider whether the court of appeals misapplied § 8-533(B)(8)(c), exceeded the proper scope of review by independently assessing evidence presented to the juvenile court, employed an incorrect standard of review, and erroneously implied that it could dismiss the dependency finding in an appeal challenging a termination order. For the following reasons, we hold that the court of appeals erred in all these respects and ultimately erred by vacating the juvenile court's judgment terminating parental rights.

¶3 We previously issued a decision order vacating the court of appeals’ opinion and affirming the juvenile court's order. We now explain the reasoning for our decision.

BACKGROUND

¶4 Brionna J. ("Mother") gave birth to A.V. in November 2005. From 2006 to 2013, Mother was reported numerous times to the Department of Child Safety ("DCS") for various acts of neglect and abuse regarding A.V. In November 2016, the best interests attorney for A.V. filed a dependency petition alleging that A.V. was dependent as to Mother because Mother had untreated mental health issues, a history of substance abuse and domestic violence, multiple arrests and convictions, and was reported numerous times to the child protection authorities in Georgia and Arizona.

¶5 Mother initially contested the dependency petition. When she failed to appear at the hearing, the juvenile court proceeded in her absence and found A.V. dependent based on the petition's allegations and the facts contained in DCS's reports.

¶6 During the resulting four-year dependency, DCS offered Mother numerous reunification services. These services included, among others, anger management counseling, dialectical behavioral therapy ("DBT"), a bonding and best interest assessment, parent-aide services, and supervised visitation. Mother's participation in these services was markedly inconsistent.

¶7 In conjunction with these services, Mother participated in multiple psychological evaluations. During Mother's first evaluation, when A.V. was eleven years old, A.V. disclosed that she feared being hurt by Mother when Mother was angry. Although the psychologist did not make any mental health diagnoses, he suspected that Mother physically and psychologically abused her daughter. Mother, however, was recommended to participate in services to increase her "frustration tolerance and ability to manage daily stressors."

¶8 Approximately a year later, Mother underwent a second psychological evaluation with a different psychologist. The report from this evaluation stated that a child in Mother's care "has been and could be at risk." The psychologist also concluded that it "does not appear that [A.V.] can return home" due to Mother's anger and substance abuse. He observed that Mother may have a "personality disorder with borderline traits" and expressed concern over whether Mother could adequately parent A.V. in the future. Lastly, the report described Mother's inability to see a "need for changes in her behavior" and that she exhibited a level of "treatment motivation [that] is a great deal lower than is typical of individuals being seen in treatment settings."

¶9 Following these evaluations, DCS moved to sever Mother's parental rights under § 8-533(B)(8)(c) in January 2020, and a termination hearing was set for November 2020.

¶10 While awaiting the hearing, Mother underwent a third psychological evaluation with another, new psychologist. This evaluation reached similar conclusions as Mother's previous ones. The psychologist reported that Mother's likelihood to safely parent A.V. in the foreseeable future was "poor based on [her] failing to demonstrate adequate ability to control her emotions and behavior on a consistent basis." Specifically, the psychologist noted that Mother's failure to change her behavior provided reasonable grounds to believe that the conditions that led to A.V.’s out-of-home placement would continue. Additionally, Mother was diagnosed with a personality disorder that included antisocial, borderline, and paranoid features.

¶11 At the termination hearing, the DCS case supervisor testified that because of "Mother's behavior, her refusal to make any changes, the ongoing conflict between her and [A.V.], her ongoing conflict with service providers, [and] her inability to change her anger," A.V. could not be safely returned to Mother's care. The supervisor stated that A.V. was residing in an adoptive placement meeting all her needs, was adoptable, and that A.V., who was then fourteen, supported severance and adoption.

¶12 Mother testified that she had trouble controlling her temper in the past, had hurt A.V. by her actions, had engaged in unnecessarily cruel conversations with A.V., and failed to visit with her daughter for extended periods of time. Mother also admitted that she had not been cooperative throughout the dependency. However, she stated that she was capable of caring for her daughter and that her actions did not justify termination of her parental rights. At the conclusion of the hearing, the juvenile court granted DCS's termination motion.

¶13 The court of appeals vacated the termination order and remanded the case to the juvenile court. Brionna J. v. Dep't of Child Safety , 253 Ariz. 271, 278 ¶ 32, 512 P.3d 1019, 1026 (App. 2022). In its opinion, the court recognized it was not permitted to reweigh the evidence and that it must affirm the juvenile court's "findings if supported by reasonable evidence and inferences." Id. at 276 ¶ 24, 512 P.3d at 1024. However, the court also noted that it "must not affirm a clearly erroneous severance order." Id.

¶14 In discussing the evidence presented at the termination hearing, the court of appeals acknowledged:

reasonable evidence supports the juvenile court's findings that Mother was initially resistant to and minimally participated in services, that she was aggressive and hostile toward providers and sometimes A.V., that she withheld visits, that she disrupted a team decision making meeting, that she and A.V. were not currently having visits due to fighting, and that she had persistent mental health diagnoses and was not amenable to therapy .... The evidence showed that Mother suffers from a long-term personality disorder and often fails to control her temper and act maturely, including when she interacts with or in the presence of A.V. The evidence showed that on multiple occasions, Mother treated A.V. with disrespect, told her hurtful and inappropriate things, spitefully withheld visits, and interacted belligerently with others, sometimes in A.V.’s presence.

Id. at 277 ¶ 28, 512 P.3d at 1025. Although the court found Mother's continuing conduct "concerning" it concluded that "the evidence did not establish that [Mother] was unfit" and that "even accepting all of the juvenile court's findings of fact, we must hold that the state failed to meet its burden to justify severance under § 8-533(B)(8)(c) and that the juvenile court clearly erred." Id. at 277–78 ¶ 28, 512 P.3d at 1025–26.

¶15 The court of appeals then discussed the dependency order, stating that "when the record establishes that a parent is fit, the proper remedy is dismissal of the dependency." Id. at 278 ¶¶ 30–31, 512 P.3d at 1026. However, the court stopped short of dismissing the dependency because the "record does not compel us to conclude that the dependency was baseless ab initio." Id. ¶ 30. Consequently, the court remanded the case to the juvenile court so that it "may evaluate whether continuing government oversight serves A.V.’s best interests." Id. ¶ 31.

¶16 We granted review because this case presents recurring issues of statewide concern. We have jurisdiction pursuant to article 6, section 5(3) of the Arizona Constitution.

DISCUSSION

I.

¶17 The interpretation of § 8-533 presents a question of law, which is reviewed de novo. See Am. C.L. Union of Ariz. v. Dep't of Child Safety , 251 Ariz. 458, 461 ¶ 11, 493 P.3d 885, 888 (2021).

A.

¶18 Parents enjoy a fundamental liberty interest in "the care, custody, and management" of their children. Santosky v. Kramer , 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). However, the...