Fatuma H. v. Dcs, P.L.

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

FATUMA H., Appellant,

v.

DEPARTMENT OF CHILD SAFETY, P.L., Appellees.

No. 1 CA-JV 18-0264
FILED 2-5-2019

Appeal from the Superior Court in Maricopa County
No. JD508362
The Honorable Arthur T. Anderson, Judge

AFFIRMED

COUNSEL

David W. Bell, Attorney at Law, Higley
By David W. Bell
Counsel for Appellant

Arizona Attorney General's Office, Mesa
By Lauren J. Lowe
Counsel for Appellee DCS
 FATUMA H. v. DCS, P.L.
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Diane M. Johnsen delivered the decision of the Court, in
which Judge Michael J. Brown and Judge Jennifer M. Perkins joined.

J O H N S E N, Judge:

¶1 Fatuma H. ("Mother") appeals the superior court's order
terminating her parental rights to her son, P.L. For the following reasons,
we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 At a prenatal visit in June 2016, Mother tested positive for
opiates, amphetamines and marijuana, and she later admitted she was
addicted to opiates. Mother then went on methadone for the remainder of
her pregnancy. In October 2016, about a month after P.L. was born, Mother
and the child's father were arrested and jailed following an armed robbery.1
The Department of Child Safety ("DCS") took custody of P.L. and filed a
dependency petition. The court eventually found P.L. dependent and set a
case plan of family reunification.

¶3 DCS did not refer Mother for services because she was
incarcerated, but the case manager encouraged her to participate in any
services available to her during her incarceration. Mother asked DCS to
arrange in-person visits with P.L., but the jail did not allow visits by
children. Mother later pled guilty to one count of hindering prosecution,
and in May 2017 was sentenced to 3.5 years' imprisonment. She then was
transferred from jail to a prison that allowed children to visit.

¶4 At a hearing in the dependency two months later, the superior
court directed DCS "to determine whether face-to-face visits for Mother and
the child would be appropriate." DCS consulted with P.L.'s pediatrician,
who recommended against P.L. visiting the prison because it could
complicate the child's reactive airway disease. DCS therefore did not
arrange any visits but sent Mother some pictures of P.L. Mother provided

1 The superior court terminated the father's parental rights; he is not a
party to this appeal.

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Decision of the Court

no financial support for P.L. during her incarceration but did participate in
several classes, including substance-abuse and parenting classes.

¶5 In December 2017, DCS moved to terminate Mother's parental
rights on grounds of neglect and length-of-sentence pursuant to Arizona
Revised Statutes ("A.R.S.") section 8-533(B)(2) and -(B)(4) (2019).2 At the
severance hearing in May 2018, Mother testified that, notwithstanding her
official release date in July 2019, she will be eligible for early release in April
2019. P.L.'s pediatrician also testified and, at the court's request, wrote a
follow-up letter regarding the child's medical status during the year
preceding the severance hearing.

¶6 The court terminated Mother's parental rights on the grounds
alleged, and Mother timely appealed the order. We have jurisdiction
pursuant to Article 6, Section 9, of the Arizona Constitution, and A.R.S. §§
8-235(A) (2019), 12-120.21(A)(1) (2019) and -2101(A)(1) (2019).

DISCUSSION

¶7 A parent's rights may be terminated if the "parent is deprived
of civil liberties due to the conviction of a felony if . . . the sentence of that
parent is of such length that the child will be deprived of a normal home
for a period of years." A.R.S. § 8-533(B)(4). In ruling on a motion or petition
to sever on this ground, the superior court must consider "all relevant
factors," including:

(1) the length and strength of any parent-child relationship
existing when incarceration begins, (2) the degree to which
the parent-child relationship can be continued and nurtured
during the incarceration, (3) the age of the child and the
relationship between the child's age and the likelihood that
incarceration will deprive the child of a normal home, (4) the
length of the sentence, (5) the availability of another parent to
provide a normal home life, and (6) the effect of the
deprivation of a parental presence on the child at issue.

Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, 251-52, ¶ 29 (2000).

¶8 We view the evidence in the light most favorable to sustaining
the superior court's findings. Ariz. Dep't of Econ. Sec. v. Matthew L., 223 Ariz.
547, 549, ¶ 7 (App. 2010). The superior court is in the best position to weigh

2 Absent material change since the relevant date, we cite the current
version of a statute or rule.

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the evidence, observe the parties, judge the credibility of witnesses, and
make appropriate findings. Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz.
278, 280, ¶ 4 (App. 2002). We accept the superior court's findings of fact
unless no reasonable evidence supports them. Id. If this court determines
that reasonable evidence supports one termination ground, it need not
consider the remaining grounds. Mary Lou C. v. Ariz. Dep't of Econ. Sec., 207
Ariz. 43, 49, ¶ 14 (App. 2004).

¶9 Mother's argument on appeal is aimed at a finding the
superior court made under Michael J. that she has no relationship with her
son. Mother does not dispute that finding, but argues DCS is to blame
because it did not allow him to visit her during her incarceration.

¶10 The court found P.L. "has a serious respiratory condition that
needs constant monitoring" and can be triggered by "environmental"
factors. The court further found that Mother was unable to have in-person
visits with the child "due to his respiratory condition and the possible
exposure to disease triggers in a prison environment." According to the
court's findings, the child's "condition has remained fragile throughout this
dependency, making it unsafe for him to have in-person visits with Mother
in jail or prison."

¶11 Mother contends DCS had a "statutory duty" to nurture her
relationship with the child that arose from the initial case plan of family
reunification, and argues that duty included an obligation to arrange visits
with the child. She disputes the court's finding that her son's medical
condition precluded visits, and argues that the DCS case manager
"incorrectly believed" it would not be safe for the child to come to the prison
to visit her.

¶12 DCS first contends that Mother waived this argument because
she failed to raise the visitation issue with the superior court after July 2017.
In this context, however, waiver turns not on whether a parent has raised
an issue repeatedly but on whether the parent has preserved that issue for
appellate review. See Logan B. v. Dep't of Child Safety, 244 Ariz. 532, 536, ¶ 9
(App. 2018) ("failure to raise an argument in the juvenile court waives the
issue on appeal[,] . . . [b]ut the decision to find waiver is discretionary");
Shawanee S. v. Ariz. Dep't of Econ. Sec., 234 Ariz. 174, 178-79, ¶¶ 16-17 (App.
2014) (applying waiver when parent did not raise any concerns over
reunification services during the dependency or argue the issue during
trial, and "wait[ed] to bring [the issue] to light for the first time on appeal").

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¶13 Here, the record is clear that Mother tried to obtain visits with
P.L. She requested visits while she was in jail and did so again after she
was transported to prison in May 2017. The parties discussed the issue
during a court appearance in July 2017, prompting the court to order DCS
to determine whether prison visits would be appropriate in view of P.L.'s
unique medical needs. Finally, Mother raised the issue repeatedly during
the severance hearing.

¶14 As for the legal basis for Mother's contention, DCS asserts it
was "not required to make diligent reunification efforts [including
providing visitation] before seeking termination of Mother's parental rights
on the length-of-sentence ground." We have held it "well established" that,
as a general matter in severance proceedings, the State "has an affirmative
duty to make all reasonable efforts to preserve the family relationship."
Mary Ellen C. v. Ariz. Dep't of Econ. Sec., 193 Ariz. 185, 186, 192, ¶¶ 1, 34
(App. 1999) (In dependency based on mental-health grounds, State must
offer reunification services even though statute does not expressly require
it.). We need not decide whether DCS was required to facilitate visits here,
however, because the record supports the court's finding that Mother's
incarceration and P.L.'s medical condition prevented them.

¶15 Mother does not contend DCS should have arranged for her
child to visit her in jail; she impliedly acknowledges that the earliest that
visits became possible was after her transfer to prison in May 2017. At that
time, however, the child's pediatrician recommended against taking the
child to the prison to see Mother. In the opinion of the pediatrician, at that
time "the most pressing medical issue for [P.L.] [was] his reactive airways
disease." P.L.'s immune system was still developing, so he was "prone to
acquiring infections" that could cause him respiratory distress. Notably,
according to the pediatrician, P.L.'s risk of distress came from exposure to
viral infections transferred by sneezing or coughing, or environmental
pollutants, such as allergens and cigarette smoke. The pediatrician stated
that it was "difficult to project" the consequences of a prison visit, but with
any exposure to new people or places, P.L. could potentially "develop acute
respiratory distress" or "a less severe but more chronic cough and wheeze."
Accordingly, the pediatrician testified that P.L.'s "risk of becoming ill is
directly related to the number of different people" he encounters. Indeed,
P.L. did not attend daycare because it was too risky for him at the time.
Relying on the pediatrician's advice that it would be "unwise to expose him
to prison where there would be multiple people with different infectious
diseases," DCS did not arrange in-person visits for Mother.

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¶16 On appeal, Mother argues that other evidence shows P.L. was
"healthy enough to have participated in visits with Mother for much of the
case." She points to the pediatrician's follow-up letter to the court, which
stated that in June 2017, P.L. was having only "mild, intermittent
symptoms," and that in July 2017, "he had no active wheezing or respiratory
symptoms." Moreover, the pediatrician testified that P.L.'s health was
generally at a greater risk during the flu season in winter rather than in
summer.

¶17 Even given the child's limited symptoms in the summer,
however, the pediatrician still had concerns about P.L.'s health. She
explained that children with respiratory issues "can look okay and
decompensate rapidly." She noted that P.L.'s symptoms may be "subtle,"
and he could seem "very calm and quiet" even when he was "actually
distressed." In her follow-up letter, the pediatrician stated that the child's
"asthma worsened through the end of 2017 and early 2018, requiring
emergency room visits and on two occasions oral steroids." According to
the pediatrician, P.L. generally remained "sicker than average until [he
went] to the pulmonologist" in February 2018. The pulmonologist placed
P.L. on preventative medicine, and his symptoms stabilized by about May
2018.

¶18 Thus, the record supports the conclusion that, although P.L.'s
outward symptoms subsided for a few months in 2017, his risk of
decompensating from exposure to new people and places remained. At the
same time, the court heard evidence that visiting rooms at Mother's prison
consisted of "open rooms with tables and vending machines" and a
bathroom where families and children of all ages could visit, meaning that
P.L. would be exposed to various people and environmental factors if he
visited Mother there.

¶19 Finally, Mother mentions that she was not allowed any
telephonic visits with P.L. The case manager, however, testified that
Mother's prison did not allow video conferencing, and DCS did not arrange
telephone calls between Mother and P.L. because, at less than two years old,
he was too young to meaningfully participate in them.

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 FATUMA H. v. DCS, P.L.
Decision of the Court

¶20 In sum, reasonable evidence supports the court's finding that
P.L.'s fragile "medical condition and Mother's limited visitation options"
prevented visits between Mother and P.L.

CONCLUSION

¶21 For the foregoing reasons, we affirm the superior court's
termination order.

AMY M. WOOD • Clerk of the Court
FILED: AA

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