STATE OF ARIZONA v. ERIC WAYNE RETHERFORD (pdf)

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IN THE ARIZONA COURT OF APPEALS DIVISION TWO IN RE TERMINATION OF PARENTAL RIGHTS AS TO R.B., No. 2 CA-JV 2022-0046 Filed October 14, 2022 THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. NOT FOR PUBLICATION See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f); Ariz. R. P. Juv. Ct. 602(i)(17). Appeal from the Superior Court in Pima County No. JD20190448 The Honorable Bunkye Olson, Judge Pro Tempore AFFIRMED COUNSEL Megan Page, Pima County Public Defender By David J. Euchner, Assistant Public Defender, Tucson Counsel for Appellant Mark Brnovich, Arizona Attorney General By Autumn Spritzer, Assistant Attorney General, Tucson Counsel for Appellee Department of Child Safety Pima County Office of Children’s Counsel, Tucson By David Miller Counsel for Minor IN RE TERMINATION OF PARENTAL RIGHTS AS TO R.B. Decision of the Court MEMORANDUM DECISION Presiding Judge Eckerstrom authored the decision of the Court, in which Chief Judge Vásquez and Judge Cattani concurred. E C K E R S T R O M, Presiding Judge: ¶1 Star B. appeals from the juvenile court’s April 2022 ruling terminating her parental rights to her daughter, R.B., born in May 2014, based on length of time in court-ordered care.1 See A.R.S. § 8-533(B)(8)(c). She contends that, because the Department of Child Safety (DCS) abandoned abuse as a ground for termination, the court violated “the principle of party presentation” by finding she had “physically harmed” another daughter. She also maintains the court erred by terminating her rights based on an “inconsistent engagement in services.” We affirm. Factual and Procedural Background ¶2 We view the evidence in the light most favorable to affirming the juvenile court’s ruling. See Christina G. v. Ariz. Dep’t of Econ. Sec., 227 Ariz. 231, ¶ 13 (App. 2011). Star is the mother of twin children (L.B. and D.B) in addition to R.B.; the twins were born in May 2019. In August 2019, Star took L.B. to the hospital after finding her non-responsive. L.B. was suffering from a subdural hematoma and retinal hemorrhages, consistent with shaken baby syndrome. A doctor opined that the cause of the bleeding was non-accidental trauma or abuse “[b]ecause a three-month-old has no reason to have a subdural hemorrhage without any documented episode of trauma.” Officers began a criminal investigation, and DCS took custody of all three children. Upon removal, the family home was found to be unsafe and unsanitary. Later that month, DCS filed a dependency petition as to R.B., L.B., and D.B., alleging they were dependent due to abuse or neglect by Star. ¶3 In September 2019, a grand jury indicted Star for two counts of child abuse, one for “abusive head trauma” and one for “unhealthy living conditions.” The conditions of Star’s release prohibited her from having any contact with the children except through DCS. That same month, Star 1The court also terminated the parental rights of R.B.’s father, John Doe. He is not a party to this appeal. 2 IN RE TERMINATION OF PARENTAL RIGHTS AS TO R.B. Decision of the Court entered a no-contest plea to the dependency petition, and the juvenile court adjudicated the children dependent as to her. The court set a case plan goal of family reunification and ordered DCS to make reasonable efforts to provide reunification services. ¶4 By January 2020, the condition of the home had been remedied and was no longer a concern for DCS. Star was also participating in supervised visitation with the children, as well as child and family team meetings. However, Star refused to undergo a psychological evaluation, which DCS thought was necessary to determine what other services she would benefit from, while the criminal case was pending. In addition, Star failed to complete parenting classes and individual therapy, and parent-child therapy was closed out due to lack of engagement by Star.2 ¶5 Later that year, Star began living with R.D., with whom she had a romantic relationship. Based on R.D.’s prior conviction for child neglect in California, his history with DCS, and the caseworker’s assessment of him, DCS requested that R.D. drug test and engage in services. However, he failed to do so. ¶6 During the dependency, DCS located the father of L.B. and D.B. After he was awarded sole legal decision-making in a separate paternity action, the dependency was dismissed as to them in October 2020. The twins later relocated to West Virginia to live with their father. ¶7 In July 2021, Star completed a psychological evaluation. Although she had “no diagnosable condition,” the doctor explained that one test he administered was “invalid” because Star had answered too many questions in a “socially desirable manner” and that on another test his “interpretive hypotheses . . . should be reviewed with caution” because of her “tendency to repress undesirable characteristics.” The doctor recommended counseling for six months, as well as a parent-child-relationship assessment and other services. ¶8 That same month, R.B. began refusing visits with Star and instead wanted to remain with her placement. After visitation stopped, 2The record includes a certificate of completion for a one-hour online training on “Positive Discipline and Guidance.” DCS, however, recommended more in-depth parenting classes to address concerns with “discipline and behavior management,” as well as “concerns with the visits” and proper nutrition. Star did not pursue those classes. 3 IN RE TERMINATION OF PARENTAL RIGHTS AS TO R.B. Decision of the Court Star’s communication with her DCS caseworker became infrequent, approximately “once every couple of months.” In October 2021, because R.B. was still refusing contact, Star filed a motion for therapeutic visits. The following month, the juvenile court ordered DCS to make a referral for clinically supervised parenting time, further providing that if R.B. “is refusing to go, nobody is going to force her to go.” The program administrator later denied the referral, and R.B. continued to decline visitation. ¶9 In November 2021, DCS filed a motion to terminate the parent-child relationship. DCS alleged as grounds for termination that Star had willfully abused L.B. in August 2019, see § 8-533(B)(2), and that R.B. had been in an out-of-home placement for more than fifteen months, see § 8533(B)(8)(c). However, DCS later amended the petition to remove the abuse ground. The juvenile court conducted a five-part severance hearing in February and March 2022. In March, Star pled guilty in her criminal case to one count of child abuse related to “unhealthy living conditions.” The trial court suspended the imposition of sentence and placed Star on a ten-year term of probation. ¶10 The juvenile court issued its under-advisement ruling on the severance in April 2022. Although DCS had “not alleged abuse or neglect as a ground for termination,” the court made a finding as to L.B.’s injuries: “[T]o the extent that the Court needs to make a factual finding of child abuse and non-accidental trauma, the Court, after giv[ing] careful consideration to the exhibits and testimony . . . does find by clear and convincing evidence that [DCS] has proven [L.B.’s] injuries were a result of non-accidental trauma.” The court found that Star’s testimony about the circumstances of L.B.’s injuries, as well as her statements about her “willingness to protect [R.B.] from future harm,” including R.D., was not credible and that she had lied about “her participation in services.” The court determined that DCS had established the statutory ground for severance under § 8-533(B)(8)(c)—pointing to Star’s lack of participation in services, her relationship with R.D., and her lack of relationship with R.B.— and that termination was in R.B.’s best interests. The court thus granted DCS’s motion to terminate the parent-child relationship. This appeal followed. Discussion ¶11 Star first contends the juvenile court “violated the principle of party presentation” by finding she had “physically harmed L.B. even though DCS abandoned the allegation of abuse as a ground for 4 IN RE TERMINATION OF PARENTAL RIGHTS AS TO R.B. Decision of the Court termination.” The “principle of party presentation” means “we rely on the parties to frame the issues for decision” and courts assume “the role of neutral arbiter of matters the parties present.” Greenlaw v. United States, 554 U.S. 237, 243 (2008). We review questions of law, as well as mixed questions of law and fact, de novo. Willie G. v. Ariz. Dep’t of Econ. Sec., 211 Ariz. 231, ¶ 8 (App. 2005). ¶12 In support of her argument, Star relies on United States v. Sineneng-Smith, 140 S. Ct. 1575 (2020). There, the defendant had appealed to the Ninth Circuit Court of Appeals, challenging her convictions for two counts of violating 8 U.S.C. § 1324. Sineneng-Smith, 140 S. Ct. at 1580. However, after briefing and oral argument based on arguments previously asserted before the district court, the Ninth Circuit panel invited three organizations to file amicus briefs addressing the constitutionality of the statute. Id. at 1580-81. The parties were permitted to file additional briefs responsive to any of the amicus briefs, and the defendant “adopted without elaboration” the amici’s argument that the statute was overbroad. Id. at 1581. The Ninth Circuit similarly concluded that the statute was overbroad and reversed the defendant’s convictions and sentences. Id. ¶13 On review, the United States Supreme Court concluded the Ninth Circuit had “departed so drastically from the principle of party presentation as to constitute an abuse of discretion” and, therefore, vacated the Ninth Circuit’s judgment and remanded the case for an adjudication of the issues raised by the parties. Id. at 1578. The Court reiterated the principle of party presentation: “‘[C]ourts are essentially passive instruments of government.’ They ‘do not, or should not, sally forth each day looking for wrongs to right.’” Id. at 1579 (alteration in Sineneng-Smith) (quoting United States v. Samuels, 808 F.2d 1298, 1301 (8th Cir. 1987) (Arnold, J., concurring)). Although it recognized the principle of party presentation is not “ironclad,” the Court determined that it was not appropriate for the Ninth Circuit to have so dramatically transformed the appeal. Id. at 1579, 1581-82. ¶14 This case is readily distinguishable from Sineneng-Smith. As DCS and R.B. point out, the alleged abuse of L.B. was a continuous issue throughout the dependency and at the severance hearing. Star continued to deny that she had abused L.B., instead testifying at the severance hearing 5 IN RE TERMINATION OF PARENTAL RIGHTS AS TO R.B. Decision of the Court that L.B.’s injuries were related to her birth. 3 She also called an expert witness to testify as such. ¶15 In addition, unlike in Sineneng-Smith, the juvenile court asked the parties at the severance hearing to address during closing arguments whether it needed “to make a finding of the underlying abuse allegation” and, if so, how that would impact its other findings under the § 8-533(B)(8)(c) ground. Star asserted that the abuse allegation was relevant because the time-in-care ground was “predicated” on the removal of the children due to that allegation. She further maintained that the court should make a finding “as to whether or not child abuse occurred because it goes to whether [Star] can safely parent.” In its ruling, the court made clear that that the abuse allegation was not the basis of the severance and it was only making a finding of abuse “to the extent” necessary. Because Star raised and argued the abuse issue, the court did not violate the principle of party presentation by addressing it. ¶16 Star next contends that “the juvenile court abused its discretion when it terminated [her] parental rights based on inconsistent engagement in services.” We “will affirm a termination order that is supported by reasonable evidence.” Jordan C. v. Ariz. Dep’t of Econ. Sec., 223 Ariz. 86, ¶ 18 (App. 2009). We defer to the juvenile court, as the factfinder, to weigh the evidence, judge the credibility of the witnesses, and resolve disputed facts. Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, ¶ 12 (App. 2002). ¶17 The juvenile court may terminate a parent’s rights if it finds by clear and convincing evidence that at least one of the statutory grounds for termination exists and by a preponderance of the evidence that termination of the parent’s rights is in the child’s best interests. A.R.S. §§ 8-533(B), 8-537(B); Kent K. v. Bobby M., 210 Ariz. 279, ¶ 41 (2005). Section 8-533(B)(8)(c) allows the court to sever 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.” See Marina P. v. Ariz. Dep’t of Econ. Sec., 214 Ariz. 326, ¶ 22 (App. 2007) (“circumstances which 3This contradicted Star’s original statement to officers that she had “dropped [L.B.] a short distance onto the arm of a chair.” 6 IN RE TERMINATION OF PARENTAL RIGHTS AS TO R.B. Decision of the Court cause the child to be in an out-of-home placement” mean circumstances existing at time of severance (quoting § 8-533(B)(8)(a))). DCS is also required to make “a diligent effort to provide appropriate reunification services.” § 8-533(B)(8); see Mary Lou C. v. Ariz. Dep’t of Econ. Sec., 207 Ariz. 43, ¶¶ 14-15 (App. 2004). ¶18 Star does not dispute that R.B. was in an out-of-home placement for more than fifteen months or that DCS made a diligent effort to provide reunification services. Instead, she challenges the juvenile court’s findings as to the second and third elements of § 8-533(B)(8)(c) that she was “unable to remedy the circumstances that cause[d] the child to be in an out-of-home placement” and that there was “a substantial likelihood that [she would] not be capable of exercising proper and effective parental care and control in the near future.” Relying on Brionna J. v. Department of Child Safety, 253 Ariz. 271 (App. 2022), Star argues that a “failure to engage in services does not prove the time-in-care ground for termination, unless DCS can point to how that lack of engagement made Star unfit to parent.” And she maintains, “No such evidence exists in this case.” ¶19 In Brionna J., the juvenile court terminated Brionna’s parental rights under § 8-533(B)(8)(c) based on her initial resistance to services, her aggressive and hostile behaviors toward providers and her daughter, and her mental health conditions and diagnoses. 253 Ariz. 271, ¶ 21. On appeal, this court vacated the termination order, explaining that “even abundant evidence of bad parenting does not necessarily equate to the parental unfitness necessary to justify permanent termination of the parent-child relationship by the state.” Id. ¶ 1. We pointed out that reasonable evidence supported the juvenile court’s findings about Brionna’s initial participation in services, her aggressive and hostile behaviors, and her diagnosis with a personality disorder. Id. ¶ 28. However, we noted that “she was successfully discharged from parent-aide services, and though her continuing conduct was concerning and may have established that she was an unkind and volatile parent, the evidence did not establish that she was unfit.” Id. We added, “The draconian consequences of severance (for both parent and child) are appropriate under § 8-533(B)(8)(c) only when the child must be protected from a parent who is incapable of exercising proper and effective care and control.” Id. ¶ 29. 7 IN RE TERMINATION OF PARENTAL RIGHTS AS TO R.B. Decision of the Court ¶20 This case, however, is distinguishable from Brionna J.4 First, unlike Brionna, who was successfully discharged from the parent-aide program, Star failed to complete any services. DCS tried to engage Star with various services for over two years, but she was largely non-compliant, particularly as time passed. Second, unlike in Brionna J., the juvenile court here was concerned with more than the mother’s “disruptive behaviors” and “fighting” with her daughter. Id.¶ 21. In particular, the court noted Star’s lack of bond to R.B. and her continued relationship with R.D. And contrary to Star’s suggestion, although the court was concerned, in part, with Star’s lack of participation in services, the court’s ruling was not based solely on a finding that Star’s “lack of engagement made [her] unfit to parent.” ¶21 The record supports the juvenile court’s finding that Star had “been unable to remedy the circumstances resulting in [R.B.’s] out-of-home placement.” At the time of the severance hearing, DCS was satisfied with the condition of the home but was still concerned about Star’s denial of abuse of L.B., as well as the lack of a mother-daughter bond and Star’s continued relationship with R.D. See Marina P., 214 Ariz. 326, ¶ 22. One caseworker explained that once the twins were dismissed from the dependency and the visits only involved R.B. and Star, she noticed that R.B. was “leading the visits” and “trying to engage with [Star], but the engagement [was not] returned.” She explained that Star was “not communicating with” R.B. As a result, the caseworker recommended a family functioning assessment, but Star failed to participate. ¶22 The passage of time over the dependency exacerbated the situation between mother and daughter, as Star acknowledged, leading to R.B. refusing visits in July 2021. Through the severance hearing approximately eight months later, R.B. continued to indicate that she did not want contact with Star and wanted to be adopted by her placement. Although Star testified that she was willing to participate in therapeutic services to address her relationship with R.B., she “d[id]n’t know” why she had not participated in them previously, and nothing in the record indicates that Star was actively trying to repair the relationship with her daughter. ¶23 In addition, over the course of the dependency, Star moved in with R.D. Despite DCS’s repeated concerns about R.D., including his 4DCS argues that Brionna J. “was decided in error and that this Court should decline to rely on it.” However, we need not address that question because this case is distinguishable. 8 IN RE TERMINATION OF PARENTAL RIGHTS AS TO R.B. Decision of the Court history of child neglect, Star continued to live with him.5 The caseworker opined that Star did not appreciate the danger R.D. posed to R.B. Indeed, Star testified that R.D. was not a danger to R.B. ¶24 The record also supports the juvenile court’s finding that “there is a substantial likelihood that [Star] will not be capable of exercising proper and effective parental care and control in the near future.” The caseworker stated that Star was not able to safely parent R.B. at the time of the severance hearing or in the near future because of the lack of bond between mother and daughter, as well as safety concerns over R.B. and “the still unresolved physical abuse.” 6 After over two years, Star had not meaningfully engaged in services or otherwise taken action to address these issues. Notably, the court found Star had often lied about services intended to improve her parenting skills and her relationship with R.B. See Jesus M., 203 Ariz. 278, ¶ 12. ¶25 Indeed, Star recognized that “nothing” was different about her at the time of the severance hearing versus when the dependency began. When asked what she needed to work on before being able to parent R.B., Star responded, “A lot of the services,” such as individual and family therapy and parenting classes. But there was no evidence of how long those services would take. Because the juvenile court’s § 8-533(B)(8)(c) finding is supported by reasonable evidence, we cannot say the court erred in 5Star testified that neither she nor R.D. were aware of R.D.’s previous involvement with DCS. But the caseworker testified otherwise, and the juvenile court generally found Star’s testimony not credible. 6Although the referral for clinically supervised parenting time was denied in February 2022, Star does not challenge the denial in her opening brief or argue that it otherwise affected her bond with R.B. See Ritchie v. Krasner, 221 Ariz. 288, ¶ 62 (App. 2009) (failure to develop argument in opening brief constitutes abandonment and waiver of claim); Nelson v. Rice, 198 Ariz. 563, n.3 (App. 2000) (argument waived by appellant’s failure to raise it in opening brief). In any event, here, Star was permitted significant visitation, but visitation was discontinued because it did not go well, and therapeutic visitation was not available because Star did not participate in individual therapy. It is unclear whether clinically supervised visitation could ultimately have been made available, but the trial court acted within its discretion by implicitly concluding that severance was appropriate notwithstanding DCS’s failure to arrange clinically supervised parenting time. 9 IN RE TERMINATION OF PARENTAL RIGHTS AS TO R.B. Decision of the Court granting DCS’s motion to terminate the parent-child relationship. 7 See Jordan C., 223 Ariz. 86, ¶ 18. Disposition ¶26 For the foregoing reasons, we affirm the juvenile court’s ruling terminating Star’s parental rights to R.B. Star does not challenge the juvenile court’s best-interests determination on appeal. Accordingly, we do not address it. See Ariz. R. Civ. App. P. 13(a)(7) (opening brief must include argument with issues presented for review); see also Ariz. R. P. Juv. Ct. 607(b) (Ariz. R. Civ. App. P. 13 applies in juvenile appeals). 7 10

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