Melina B. v. ADES, et al

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE MELINA B., ) ) Appellant, ) ) v. ) ) ARIZONA DEPARTMENT OF ECONOMIC ) SECURITY, ZIRA P., SERRENA P., ) RUSSELL P., CHLOE P., ) ) Appellees. ) ) __________________________________) DIVISION ONE FILED: 01/13/2011 RUTH WILLINGHAM, ACTING CLERK BY: GH No. 1 CA-JV 10-0161 DEPARTMENT C MEMORANDUM DECISION (Not for Publication 103(G) Ariz. R. P. Juv. Ct.; Rule 28 ARCAP) Appeal from the Superior Court in Maricopa County Cause No. No. JD17348 The Honorable Roger E. Brodman, Judge AFFIRMED The Stavris Law Firm P.L.L.C. By Alison Stavris Attorney for Appellant Scottsdale Thomas Horne, Arizona Attorney General By Eric Devany, Assistant Attorney General Attorneys for Appellee Arizona Department of Economic Security Mesa D O W N I E, Judge ¶1 Melina B. ( Mother ) appeals from an order terminating her parental rights. 1 For the following reasons, we affirm. FACTS AND PROCEDURAL HISTORY ¶2 Mother is the biological parent of Z., S., R., and C. (the Children ), born December 22, 2001, September 11, 2004, November 10, 2005, and June 2, 2007, respectively. Mother also has a son, M., born August 22, 1995. ¶3 On watching a evening. January movie and 18, 2008, trying to Mother sleep was in before She heard three-year-old S. scream. the bedroom working that When she asked what happened, the Children responded that nothing was wrong; Mother went back to sleep, expecting Father to check on the Children. When the movie ended, Mother turned on the lights and saw blood on S. s legs; she called 911. ¶4 Emergency responders found that S. was bleeding from her vagina. where She was transported by ambulance to the hospital emergency surgery was performed. 2 A forensic nurse 1 Russell P. ( Father ) did not contest Arizona Department of Economic Security s ( ADES ) motion to sever his parental rights, and he is not a party to this appeal. 2 S. suffered a second degree laceration of the posterior fourchette and a first degree laceration of her labia minora. Additionally, there was a complete tear to the hymen, which was not repaired during surgery; it is unknown whether S. suffered permanent damage to her reproductive system. 2 examined S. and concluded her injuries were caused by a sexual assault. 3 ¶5 S. was taken into custody by Child Protective Services ( CPS ). CPS also removed the other children from the home. 4 Soon thereafter, CPS returned the Children to Mother on the condition that she prevent further contact between the Children and Father or M. Father stayed with his parents, and M. stayed with Mother s parents. ¶6 Detective Jones interviewed Mother. claimed she did not know who assaulted S. Initially, Mother With Mother s consent, a truth verification examination was conducted, which indicated Mother was deceptive about her daughter s injuries. When confronted with the test results, Mother initially said she did not remember how S. was injured, but eventually stated she had stabbed S. in her vagina with a screwdriver. Mother was taken into custody and charged with sexual conduct with a minor. 3 A forensic pediatric doctor opined that S. s injury was a horrible, painful, forceful, penetrating injury, that was consistent with an object being forcefully inserted. 4 When police entered the home on the date of the assault, they found the house was fairly bare, with very little furniture and that it smelled of rotten food and diapers. The floors were sticky and covered with food droppings. The master bedroom contained two mattresses (without bed frames or box springs) surrounded by used diapers. The children were later found to be in need of dental care: S. s front four or five teeth were missing due to decay and rot, and R. needed $2500 in restorative dental care. The Children were not current on their vaccinations. 3 ¶7 The remained Children with his were placed with a grandparents. CPS maternal later aunt; learned M. of unacceptable conditions in the aunt s home (including no running water and maternal fire/safety uncle s hazards) home. and After moved a relinquished custody of the Children. few the children months, the to a uncle S. and Z. were placed together in a foster home, and C. and R. were placed together in a separate foster home. ¶8 In January 2009, the police learned that M. had told a classmate he raped his sister with a screwdriver and his mother was in jail paying for it. Additionally, Detective Jones was informed that Z. had disclosed to a social worker that M. had sex with her and S. and made [S.] bleed. 5 Detective Jones reviewed recorded phone calls placed to Mother in jail. In one call, Mother said, everyone knows who did it and [Z.] and [S.] already said who it was. Mother was released from jail, and M. was placed in a group home. ¶9 Mother began participating in services, including random drug tests, a psychological evaluation, and parent aide services. 6 A primary objective was for 5 Mother to learn to M. reported that he began having sex with Z. when she was five and admitted numerous instances of sexual conduct with his sisters. He also stated he would watch pornography with his sisters before being sexual with them. 6 All drug test results were negative. 4 establish boundaries and provide appropriate discipline for the Children. CPS encouraged Mother to talk with M. about inappropriate behavior and its impact on the family. his Mother, however, avoided this subject- even after M. reported that he had been accused of sexually assaulting a peer in his group home. mixed When Mother finally did broach the subject, she sent messages: telling M. he needed to himself, while grinning and laughing. keep his hands to Mother had difficulty setting consequences for negative behavior by the Children as well. On one occasion, she sat and watched Z. throw a tantrum because Mother forgot to bring Cheetos to a visit. chair against a wall and knocked over her Z. threw a youngest sister. Staff had to intervene and remove the other children for their protection. ¶10 In December parental rights. 2009, ADES moved to terminate Mother s ADES alleged that Mother willfully abused the Children or failed to protect them from willful abuse and that she was unable to remedy the circumstances that brought the Children into out-of-home placement for fifteen months or longer pursuant to Arizona Revised Statutes 8-533(B)(2) and -533(B)(8)(c). ( A.R.S. ) sections Beginning in April 2010, the juvenile court conducted a six-day severance hearing. ¶11 A human service specialist with the Division of Development Disabilities testified that C. suffers from delays 5 in gross motor skills, oral motor skills and cognition. R. has been diagnosed with a mild to moderate cognitive disorder and exhibits some features of autism. The specialist expressed concern that, because Z. dominates the visits and requires a lot of attention, Mother could not expend the time necessary to properly parent special needs children like C. and R. ¶12 CPS case Children were receiving emotional care in manager Sandi appropriate their foster significant gains testified medical, homes placements wished to adopt them. making Geer and that educational, that their the and current While all of the Children were physically, emotionally and cognitively, Ms. Geer testified they all were affected by the abuse that had occurred in Mother s home, and she described ongoing incidents of sexual acting out by the Children. ¶13 Ms. counseling brought Geer for the explained Mother Children was into to that a goal address care and the of the individual circumstances for responsibility for her actions and inactions. Mother to that take However, M. s sexual assault was never addressed openly and honestly with the Children. Mother failed to communicate to M. that his behaviors were unacceptable and further undermined rehabilitative attempts by telling him to just go through the motions of treatment. Moreover, despite conversations about the need for her daughters to know she believes their reports of abuse and that she is open 6 and willing to discuss what happened, Mother has avoided the subject. Ms. Geer opined that Mother could not safely parent the Children or set appropriate boundaries for the family. ¶14 Dr. Glenn Moe, a licensed psychologist, conducted a bonding assessment and best interest evaluation. He observed R. and C. and found them very responsive to their foster parents, viewing them as nurturance. He a source of determined attention they attachment to their foster parents. had as well formed a as some positive Similarly, when he observed Z. and S. with their foster parents, Dr. Moe found a positive attachment: [T]hey listened to the foster parents [and] accepted guidance from them. ¶15 When Dr. Moe observed Mother with the Children, the visitation became fairly chaotic [and] the children became quite excitable . . . mother did nothing to try to redirect the children or to get some control over the visit. At one point, Z. ordered her mother off the couch, and Mother complied. Dr. Moe opined that Z. was allowed too much control in a situation like that, especially as she talked and ordered her mother about the room. Dr. Moe was forced to intervene at another point, when Z. was bouncing C. on her knees and letting the toddler fall backward. He was concerned about C. snapping her neck, though Mother seemed oblivious to the potential harm. 7 ¶16 Dr. Moe opined that Z., the eldest, had the strongest attachment to Mother, whereas the three youngest children were primarily attached severance and expressed concern to their adoption for about foster all Mother s of parents. the Children. 7 inability gravity of M. s issues and conduct. He to recommended Dr. Moe appreciate the He commended Mother s love for her son, but believed that love could overshadow the need to provide for the safety and well-being of the Children. ¶17 The juvenile court terminated Mother s parental rights pursuant to A.R.S. §§ 8-533(B)(2) and -533(B)(8)(c). It found Mother either knew of the ongoing abuse [by M.], or had her head so very deeply in the sand that she affirmatively chose to ignore it. Additionally, the court found that in attempting to protect M., she placed her other children in harm s way. The court was not convinced Mother could protect the Children from future harm suffered by and found S. and Z. a sufficient and the nexus between likelihood that the abuse the other children, left in Mother s care, would be subjected to abuse or neglect. The court also found that the Children had been in an out-of-home placement for more than twenty-one months and that ADES had made reasonable efforts at reunification. 8 7 It found ADES did not seek to sever Mother s parental rights to M. 8 Mother has not challenged the adequacy of reunification services offered by ADES. 8 Mother was unable to remedy the circumstances that caused the Children to be removed from the home and that there was a substantial likelihood she would not be capable of exercising proper and effective parental care and control in the near future. ¶18 Mother timely appealed. We have jurisdiction pursuant to A.R.S. §§ 8-235(A), 12-120.21(A)(1), and 12-2101(B). DISCUSSION ¶19 Mother argues the juvenile court erred by finding: (1) she knew or should have known the Children were being abused; (2) she was unable to remedy the circumstances that brought them into care; and (3) termination was in the Children s best interests. ¶20 We view the evidence in the light most favorable to sustaining the juvenile court s findings. Manuel M. v. Ariz. Dep t of Econ. Sec., 218 Ariz. 205, 207, ¶ 2, 181 P.3d 1126, 1128 (App. 2008). We will not reverse an order terminating parental rights unless the court s factual findings are clearly erroneous. Audra T. v. Ariz. Dep t of Econ. Sec., 194 Ariz. 376, 377, ¶ 2, 982 P.2d 1290, 1291 (App. 1998). clearly erroneous support it. ¶21 § 8-533. when there is no reasonable A finding is evidence to Id. Termination of parental rights is governed by A.R.S. Michael J. v. Ariz. Dep t of Econ. Sec., 196 Ariz. 9 246, 248-49, ¶ 12, 995 P.2d 682, 684-85 (2000). The court must find, by clear and convincing evidence, at least one of the grounds for termination enumerated in A.R.S. § 8-533, and it must find by a preponderance of the evidence that termination is in the best interests of the children. Kent K. v. Bobby M., 210 Ariz. 279, 280, 284, ¶¶ 1, 22, 110 P.3d 1013, 1014, 1018 (2005). A. ¶22 Mother s Knowledge of Abuse Mother appears to contend there was insufficient evidence to support the finding that she knew or should have known of the abuse, and she invites us to reweigh the evidence presented below. Although there was evidence that, at times, Mother demonstrated proper parenting skills, an appellate court does not reweigh the evidence. The juvenile court was in the best position to assess the credibility of witnesses and weigh the evidence. See In re Andrew A., 203 Ariz. 585, 587, ¶ 9, 58 P.3d 527, 529 (App. 2002). ¶23 To justify severance based on A.R.S. § 8-533(B)(2), the court must find: That the parent has neglected or willfully abused a child. This abuse includes serious physical or emotional injury or situations in which the parent knew or reasonably should have known that a person was abusing or neglecting a child. Sufficient evidence supports the finding that Mother knew or should have known of M. s sexual abuse of S. and Z. 10 Mother stated in a recorded phone conversation that everyone knew who had assaulted S. sexually abused relations with This incident was not the first time M. had his Z. sisters. from the M. time admitted she was having five years sexual old. Additionally, Mother s willingness to falsely confess to sexual assault and her resistance to addressing the issues that led to the Children s removal support the conclusion that, at the very least, she was willfully ignorant of the abuse. ¶24 There was a sufficient nexus between the abuse of S. and Z. and the likelihood that R. and C. would be subjected to abuse. In Linda V. v. Arizona Department of Economic Security, we held that when parents permit another person to abuse or neglect their children, courts may sever the rights to other children under § 8-533(B)(2), even though there is no evidence that the other children were abused or neglected. 76, 79, ¶ 14, 117 P.3d 795, 798 (App. 2005). 211 Ariz. The record establishes that R. and C. were affected by the abuse occurring while in Mother s care. Witnesses described how the Children have acted out in a sexualized manner. Testimony by Dr. Moe and Ms. Geer established the likelihood that Mother would ignore warning signs of abuse of C. and R. in the same manner as S. and Z., creating a high risk that the two youngest children would be abused if returned to Mother s care. 11 B. Best Interests ¶25 To protect a parent s constitutional right to custody and control of a child, a determination of [the children s] best interest must include a finding as to how [they] would benefit from a severance or be harmed by the continuation of the relationship. Maricopa County Juvenile Action No. JS-500274, 167 Ariz. 1, 5, 804 P.2d 730, 734 (1990). a finding of benefit from severance Factors that support include the immediate availability of an adoptive placement, Audra T., 194 Ariz. at 377, ¶ 5, 982 P.2d at 1291, whether an existing placement is meeting the needs of the child, id., and whether the child is adoptable. Maricopa County Juvenile Action No. JS-501904, 180 Ariz. 348, 352, 884 P.2d 234, 238 (App. 1994). ¶26 The evidence established that the Children are doing well in their foster care placements. that the Children receive The foster parents ensure appropriate services, including individual counseling, speech therapy, and occupational therapy. ADES proved that the Children are adoptable, that their foster parents wish to adopt them, and that they have made significant gains since being placed in foster care. supports the best interests finding. 12 Substantial evidence CONCLUSION ¶27 For the foregoing reasons, we affirm the juvenile court s severance order. 9 /s/ MARGARET H. DOWNIE, Judge CONCURRING: /s/ DANIEL A. BARKER, Presiding Judge /s/ MICHAEL J. BROWN, Judge 9 Because we affirm the severance based on A.R.S. § 8533(B)(2), we need not consider whether termination pursuant to § 8-533(B)(8)(c) was also justified. Michael J., 196 Ariz. at 251, ¶ 27, 995 P.2d at 687. 13

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