NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
DIANA R., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, I.E., Appellees.
No. 1 CA-JV 14-0124
FILED 12-18-2014
Appeal from the Superior Court in Maricopa County
JD21343
The Honorable Linda H. Miles, Judge
AFFIRMED
COUNSEL
Maricopa County Public Advocate’s Office, Mesa
By Suzanne Sanchez
Counsel for Appellant
Arizona Attorney General’s Office, Phoenix
By Erika Z. Alfred, Tucson
Counsel for Defendant/Appellee
DIANA R. v. DCS, I.E.
Decision of the Court
MEMORANDUM DECISION
Judge Maurice Portley delivered the decision of the Court, in which
Presiding Judge Patricia A. Orozco and Judge Randall M. Howe joined.
P O R T L E Y, Judge:
¶1 Diana R. (“Mother”) appeals the order terminating her
parental rights to her child, I.E. She argues that the termination should be
reversed because: (1) the juvenile court erred in determining that the
Arizona Department of Economic Security1 (“the Department”) proved the
statutory basis for termination; and (2) the juvenile court erred in finding
that termination was in the best interests of the child. For the following
reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 I.E. was born premature in 2011, and Mother tested positive
for methamphetamines. After the child was released from the hospital, the
Department placed him in a medical foster home to address his cerebral
palsy, hydrocephalus, and serious food and environmental allergies. The
Department filed a dependency petition against Mother and Oscar E.
(“Father”) in January 2012 and the juvenile court subsequently found I.E.
dependent as to both parents.
¶3 The Department then provided myriad services designed to
help Mother attempt to meet the case plan of family reunification. Initially,
Mother lied about her drug use and tested positive for drugs. She, however,
began to improve and tested clean, but Father continued to test positive. As
a result, the juvenile court approved changing the case plan to termination
and adoption, and the Department filed a motion to terminate Mother’s
parental rights based on the fact that the child had been in an out-of-home
placement for fifteen months or longer.
1 The Department of Child Safety ("DCS") has replaced the Arizona
Department of Economic Security. Because this case preceded the creation
of DCS, we will refer to the Department as the agency prosecuting this case.
See S.B. 1001, 51st Leg., 2d Spec. Sess. (Ariz. 2014).
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DIANA R. v. DCS, I.E.
Decision of the Court
¶4 The severance trial proceeded even though Mother left
Father, and the juvenile court determined the Department had met its
burden of proof and terminated Mother’s parental rights. Mother filed this
appeal.2 We have jurisdiction pursuant to Arizona Revised Statutes
(“A.R.S.”) sections 8-235(A), 12-120.21(A), and -2101(A)(1).3
DISCUSSION
¶5 We review a judgment terminating parental rights for abuse
of discretion. Mary Lou C. v. Ariz. Dep’t of Econ. Sec., 207 Ariz. 43, 47, ¶ 8, 83
P.3d 43, 47 (App. 2004). 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, 225 P.3d 604, 606 (App. 2010). The court is in the
“best position to weigh the evidence, judge the credibility of the parties,
observe the parties, and make appropriate factual findings.” Bennigno R. v.
Ariz. Dep’t of Econ. Sec., 233 Ariz. 345, 351, ¶ 31, 312 P.3d 861, 867 (App.
2013) (citation and internal quotation marks omitted). As a result, we
review the court’s findings of fact for clear error and will accept the court’s
findings of fact unless no reasonable evidence supports those findings.
Raymond F. v. Ariz. Dep’t of Econ. Sec., 224 Ariz. 373, 376, ¶ 13, 231 P.3d 377,
380 (App. 2010); see Lashonda M. v. Ariz. Dep’t of Econ. Sec., 210 Ariz. 77, 81,
¶ 13, 107 P.3d 923, 927 (App. 2005).
I. Statutory Grounds
¶6 Mother argues that the juvenile court abused its discretion by
terminating her parent-child relationship because she had remedied the
circumstances causing his out-of-home placement. She contends that she
was capable of caring for I.E.’s special needs and had a plan for caring for
him if he was returned to her custody.4
¶7 A parent’s rights can be terminated if their child has been in
an out-of-home placement for fifteen months or more, “the parent has been
unable to remedy the circumstances that cause the child to be in an out-of-
2 Father’s parental rights were also terminated, but he is not a party to this
appeal.
3 We cite to the current version of the statute unless otherwise noted.
4 Mother did not challenge the finding that the Department made a diligent
effort to provide her with appropriate reunification services or that I.E. had
been in an out-of-home placement for at least fifteen months. She therefore
has conceded the accuracy of these findings on appeal. See Britz v. Kinsvater,
87 Ariz. 385, 388, 351 P.2d 986, 987 (1960).
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DIANA R. v. DCS, I.E.
Decision of the Court
home placement[,] and 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.” A.R.S. § 8-533(B)(8)(c). The “circumstances that cause
the child to be in an out-of-home placement” are the circumstances existing
at the time of the severance rather than at the time of the initial dependency
petition. A.R.S. § 8-533(B)(8)(a).
¶8 In ruling on the termination motion, the juvenile court
concluded that the evidence demonstrated that I.E., who had serious
medical and developmental needs, needed “more than a minimally
adequate parent due to his chronic medical needs.” Although Mother was
testing clean and had remedied her substance abuse, the evidence revealed
that she did not fully understand I.E.’s special needs, did not appreciate the
seriousness of his allergies, had been inconsistent in attending I.E.’s
appointments, and had not developed a viable child care plan while she
worked.
¶9 Brad Pasternak, M.D., I.E.’s pediatric gastroenterologist,
testified that he tried to get Mother to appreciate that it was important for
I.E. to get the appropriate amount of specialized formula, as well as proper
and adequate fluid intake for nutrition and weight gain, to avoid the risk of
malnutrition. Mother, however, had admitted that during her supervised
visits she had been giving I.E. less than the required amount of formula
despite the fact that the foster mother clearly marked the formula can with
the appropriate number of required scoops. Her refusal to follow the basic
instructions during supervised visits reinforces the concern that she would
not meet I.E.’s needs if he was returned to her.
¶10 The evidence also reflected that Mother does not fully
appreciate the seriousness of I.E.’s allergies and the importance of carrying
his epinephrine pen at all times. Despite being advised about his potential
for anaphylactic reactions to his allergies, she took him on a walk without
the epinephrine pen during a supervised visit. Moreover, although she
claimed that her fear of needles would not interfere with her ability to
administer the epinephrine pen, she was unable to hold or comfort I.E. as
he had his blood drawn in December 2013 and had to be coaxed to practice
using the pen during a training session in February 2014. Further, Mother
has been inconsistent in attending I.E.’s various medical appointments, had
not met all of her parent aide services goals, and had not formulated a plan
for meeting I.E.’s special needs if he were returned to her care.
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DIANA R. v. DCS, I.E.
Decision of the Court
¶11 Although Mother did some things well, the evidence about
her actions and behavior demonstrate that she remains unable to effectively
and appropriately parent her medically fragile child and, as the
psychologist testified, there is a substantial likelihood that she will not be
”able to parent in the foreseeable future.” Because there is evidence to
support the juvenile court’s determination that the Department had proven
the statutory basis for termination, we find no abuse of discretion.
II. Best Interests
¶12 Mother contends that the juvenile court erred by finding that
termination was in the child’s best interests. She contends that she was able
to effectively parent him and they shared a strong bond. We disagree.
¶13 Best interests to support termination must be found by a
preponderance of the evidence. A.R.S. § 8–533(B); Kent K. v. Bobby M., 210
Ariz. 274, 284, ¶ 22, 110 P.3d 1013, 1018 (2005). Best interests can be
demonstrated by evidence showing “an affirmative benefit to the child by
removal or a detriment to the child by continuing in the relationship.” Jesus
M. v. Ariz. Dep’t. of Econ. Sec., 203 Ariz. 278, 282, ¶ 14, 53 P.3d 203, 207 (App.
2002) (citation and internal quotation marks omitted); see Bennigno R., 233
Ariz. at 350, ¶ 23, 312 P.3d at 866 (recognizing factors that favor a finding
that termination is in the best interests of the child include: (1) whether an
adoption plan exists; and (2) whether the placement meets the needs of the
child).
¶14 Here, the case manager testified that termination was in the
child’s best interests. Specifically, she testified that I.E. was adoptable and
his therapeutic foster home was ready to adopt him, the therapeutic foster
parents could properly care for his special needs and had an emotional
attachment with I.E., and termination would provide I.E. with much
needed stability, structure, and permanency because “he has extensive
medical needs that the placement is able to meet and is willing to meet and
is able to provide a stable and loving home for him.” The case manager also
testified that I.E. could be harmed if parental rights were continued because
Mother could not provide permanence, stability, or security.
¶15 In addition to finding that I.E. had formed a secure
attachment with his foster parents, who were willing and able to meet his
special needs, the juvenile court also found that termination would “enable
[him] to achieve permanency through adoption in this loving, stable, drug-
free home.” Because the evidence supports the juvenile court’s best
interests finding, we find no abuse of discretion.
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DIANA R. v. DCS, I.E.
Decision of the Court
CONCLUSION
¶16 Based on the foregoing, we affirm the judgment terminating
Mother’s parental rights to I.E.
:gsh
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