Cassie F. v. Dep't of Child Safety

CASSIE F., WARREN M., Appellants, v. DEPARTMENT OF CHILD SAFETY,S.C., T.C., D.M., Z.M., Appellees.

No. 1 CA-JV 19-0174

ARIZONA COURT OF APPEALS DIVISION ONE

September 10, 2020

NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

Appeal from the Superior Court in Mohave County

No. B8015JD201704063

The Honorable Rick A. Williams, Judge

AFFIRMED

COUNSEL

Harris & Winger, PC, Flagstaff

By Chad Joshua Winger

Counsel for Appellant Cassie F.

The Stavris Law Firm, PLLC, Scottsdale

By Alison Stavris

Counsel for Appellant Warren M.

Arizona Attorney's General Office, Tucson

By Dawn Rachelle Williams

Counsel for Appellee

MEMORANDUM DECISION

Presiding Judge James B. Morse Jr. delivered the decision of the Court, in which Judge Maria Elena Cruz and Judge Paul J. McMurdie joined.

MORSE, Judge:

¶1 Cassie F. ("Mother") and Warren M. ("Father") appeal the termination of their parental rights to their children. We affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 "We view the facts in the light most favorable to upholding the juvenile court's order." Ariz. Dep't of Econ. Sec. v. Matthew L., 223 Ariz. 547, 549, ¶ 7 (App. 2010) (citation omitted).

¶3 This case involves X.M. and D.M., the children of Mother and Father, and S.C. and T.C., the children of Mother and Michael C. In 2012, the Maine Office of Child and Family Services ("OCFS") investigated allegations that Michael C. and Mother had abused or neglected S.C. and T.C., and the two children were taken into the custody of the Maine Department of Health and Human Services. Ultimately, Michael C.'s parental rights were terminated after it was determined he sexually abused S.C. Mother's parental rights were not terminated, but OCFS found that she had severely neglected T.C. and emotionally abused S.C. After OCFS's case, Mother was reunited with S.C. and T.C. Though Father's rights were not at issue in the Maine investigation, OCFS noted that he also emotionally and physically abused S.C.

¶4 After S.C. and T.C. were reunited with Mother, the family moved to Arizona. In November 2017, the Mohave County Sheriff's Office investigated a report that S.C. had been physically abused. An Arizona Department of Child Safety ("DCS") safety specialist informed the Sheriff's Office that S.C. had stated that Father hit her and T.C. with a large metal spatula. S.C. also stated that Father would strike her on the back of the head to discipline her. When law enforcement officials investigated the family's home, a camper located within a local park, Father denied that the family owned a metal spatula and Mother denied knowledge of any abuse. However, law enforcement located the spatula just where S.C. said it would be. DCS began its investigation, and the children were found dependentand removed from Mother and Father's home on March 8, 2018. When the children were removed, X.M. and D.M.'s diapers were "saturated," and both children had rashes consistent with wearing soiled diapers for a prolonged period.

¶5 In its investigation, DCS discovered that S.C. had slept in a tent near the camper for seven to eight months, during which she was exposed to extreme heat without any immediate access to water. Neighbors saw S.C. wandering around the campground unsupervised, asking for food and water. Coyotes were known to roam the campground at night, but S.C. could not use the restroom in the camper and was forced to walk, unsupervised, half a block away to use a "Porta Potty."

¶6 Further investigation revealed that all four children were underfed and the family's camper was very small and lacked electricity and running water. The camper's air conditioner did not work and Father had expressed concerns that "the floor [was] weak" and someone could fall through. At the campground, the children were often left unsupervised outside for "extended periods" so that Mother and Father could sleep.

¶7 D.M. is developmentally delayed. During the children's dependency, Mother and Father resisted DCS's request that he be referred to an Arizona Early Intervention program to assist his development. This prompted DCS to file a motion to suspend the parents' special-education rights, which the juvenile court granted. In so ruling, the juvenile court found that the parents' refusal to allow D.M. access to special education was unreasonable and contrary to D.M.'s best interests.

¶8 On November 16, 2018, DCS moved to terminate Mother's and Father's parental rights based on abuse and neglect. Roughly one week before trial, Mother and Father informed DCS that they sold their camper and moved into a hotel that would provide more appropriate shelter for the children.

¶9 After a one-day trial, the juvenile court found that DCS had proven the statutory grounds and termination was in the children's best interests, and granted DCS's petition to terminate Mother's and Father's parent-child relationship with the children. Mother and Father timely appealed, and we have jurisdiction under A.R.S. §§ 8-235(A), 12-120.21(A)(1), and -2101(A)(1).

DISCUSSION

¶10 Father argues that DCS did not prove the statutory grounds justifying termination. Separately, Mother argues that: (i) the juvenile court's factual findings were legally insufficient to establish neglect of the children; (ii) the juvenile court's factual findings were insufficient to establish abuse of T.C., D.M, or X.M.; (iii) A.R.S. § 8-533(B)(2) was unconstitutional as applied; and (iv) DCS was obligated to offer reunification services that were not provided. Both parents also challenge the juvenile court's best-interests finding, with Father asserting that the court erred factually and Mother arguing the court erred as a matter of law. We begin with the arguments related to the statutory grounds for termination.

I. Statutory Grounds.

¶11 To terminate a parent-child relationship, the juvenile court must find that clear and convincing evidence supports one of the statutory grounds for severance. Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 22 (2005); A.R.S. § 8-533(B). We review a trial court's termination order for an abuse of discretion. Mary Lou C. v. Ariz. Dep't of Econ. Sec., 207 Ariz. 43, 47, ¶ 8 (App. 2004). We accept the court's findings of fact unless no reasonable evidence supports them. Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, 280, ¶ 4 (App. 2002).

¶12 Termination of a parent-child relationship is justified when a parent "has neglected or wilfully abused a child." A.R.S. § 8-533(B)(2). The juvenile court found that DCS proved Father willfully abused a child, Mother failed to protect the children from abuse, and that both parents neglected all four children. Mother and Father challenge these findings. We first address the statutory ground of neglect.

¶13 The juvenile court found that severance was justified because Mother and Father neglected their children. "Neglect" is defined as "[t]he inability or unwillingness of a parent . . . to provide [their] child with supervision, food, clothing, shelter or medical care if that inability or unwillingness causes unreasonable risk of harm to the child's health or welfare . . . ." A.R.S. § 8-201(25).

A. Father's Alleged Neglect.

¶14 Father argues the juvenile court erred because the evidence was insufficient to show he was unable or unwilling to provide necessities to the children. As support, he points to his completion of a parenting plan,his anger management and domestic violence counseling, and his efforts to find appropriate housing before the termination of his parental rights. But these efforts do not negate the evidence relied on by the juvenile court. Father does not dispute that, despite DCS informing him of housing programs, the children were forced to remain in unsafe housing for over half a year. Further, Father failed to provide his children with sufficient food. Father essentially argues that past neglect is irrelevant because he is now willing and able to care for his children, citing Jade K. v. Loraine K., 240 Ariz. 414, 417, ¶ 12 (App. 2016). However, Jade K. does not support Father's position.

¶15 In Jade K., a parent allowed their child to play outside unsupervised and the child ingested mushrooms that caused her to become ill. Id. at 415, ¶ 3. On appeal, the question was whether the parent's inability or unwillingness caused the child's lack of supervision. Id. at 417-18, ¶¶ 12, 16. Nothing in Jade K. suggests that the parent's ability or willingness at the time of the termination hearing is relevant. This is consistent with A.R.S. § 8-533(B)(2), which states that termination is justified if a parent "has neglected" a child. The past-tense verb "neglected" shows that it is a previous unwillingness or inability to provide for a child that justifies termination, not current circumstances. See Jason R. v. Dep't of Child Safety, 2 CA-JV 2018-0046, 2018 WL 2966878, *2, ¶ 9 (Ariz. App. 2018) ("As we determined in Jade K. v. Loraine K., past neglect may serve as a basis for termination . . . .").

¶16 As with Jade K., the question before us is whether reasonable evidence supports the juvenile court's conclusion that Father's failure to provide sufficient food and safe shelter to his children was caused by his inability or neglect, rendering him unfit to be a parent. See Jade K., 240 Ariz. at 417, ¶ 12. We find that the record, see supra ¶¶ 3-7, 14, amply supports the juvenile court's conclusion, and affirm its finding that DCS proved the statutory ground of neglect as to Father.

B. Mother's Alleged Neglect.

¶17 Mother argues that the juvenile court's factual findings are legally insufficient for the statutory ground of neglect. Mother does not argue that "insufficient evidence supports the juvenile court's specific findings of fact," but argues those findings are insufficient to justify termination as a matter of law. Mother additionally claims that no evidence was presented to support a finding that there was an unreasonable risk of harm...