Harmony F. v. Dcs

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

HARMONY F., Appellant,

v.

DEPARTMENT OF CHILD SAFETY, J.F., J.F., L.F., Appellees.

No. 1 CA-JV 19-0283
FILED 5-28-2020

Appeal from the Superior Court in Mohave County
No. L8015JD201707038
The Honorable Steven C. Moss, Judge

AFFIRMED

COUNSEL

The Stavris Law Firm, PLLC, Scottsdale
By Alison Stavris
Counsel for Appellant

Arizona Attorney General’s Office, Mesa
By Thomas Jose
Counsel for Appellee Department of Child Safety
 HARMONY F. v. DCS, et al.
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Lawrence F. Winthrop delivered the decision of the Court,
in which Judge Maria Elena Cruz and Judge David B. Gass joined.

W I N T H R O P, Judge:

¶1 Harmony F. (“Mother”) appeals the juvenile court order
terminating her parental rights to her three minor children, J.F., J.V.F., and
L.F. Mother argues she received ineffective assistance from her trial
counsel. She also argues the Arizona Department of Child Safety (the
“Department”) failed to meet its burden of proof as to grounds for
termination and the juvenile court erred in finding termination to be in the
best interests of the children. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Mother is the biological mother of J.F., born in December 2006,
J.V.F., born in January 2008, and L.F., born in September 2010. Each of the
children have different biological fathers.1

¶3 In September 2017, J.F. and L.F. were playing outside
unsupervised when they found gasoline and set a basketball on fire,
causing serious burns to J.F.’s hand. Although Mother heard screams, she
did not investigate, and the children called 9-1-1. That same month, the
Department received a report about this injury and another report
describing domestic violence between Mother and her boyfriend, drug use
in the home, and the family’s impending eviction.

¶4 After the family was evicted, the Department attempted to
engage the family in services, including housing assistance and behavioral
health services. In December, however, a school nurse informed the
Department that L.F. came to school with a fever and the school was unable
to contact Mother. L.F. said the children had slept in the family’s truck’s
bed under a camper shell the previous night. J.F. and J.V.F. reported the

1 The juvenile court order also terminated the parent-child
relationships between J.V.F. and L.F. and their respective fathers. These
individuals are not parties to this appeal.

2
 HARMONY F. v. DCS, et al.
Decision of the Court

same and explained the children slept in the bed of the truck, sharing a
single blanket. J.V.F. said he used one of the family’s dogs as a pillow. The
children reported they had slept in the truck’s bed for three nights while
Mother and her boyfriend slept in the truck’s cabin or in a nearby storage
unit. All of the children were sick but had not seen a doctor or received
medication. J.V.F. said he had been sick for nearly three weeks. The
Department removed the children from Mother’s care.2

¶5 The Department petitioned for dependency, alleging the
children were dependent on the grounds of neglect and substance abuse.
In May 2018, the juvenile court found the children dependent as to Mother
on each ground.

¶6 As part of a family reunification plan, the Department offered
Mother numerous services, including services for substance abuse, mental
health, and parenting skills. Mother made little progress in services until
late 2018 and then engaged inconsistently. She submitted to substance-
abuse testing, and tested positive for amphetamines once in January 2019
and again the following month. Mother also submitted several diluted
urine samples.

¶7 Meanwhile, the Department determined that the children
needed to be in separate placements and required individual counseling to
address their behavioral issues and developmental delays. The
Department located J.F.’s biological father, who reported Mother had
prevented him from being a part of J.F.’s life. J.F. and his father began
developing a relationship, and the Department submitted an Interstate
Compact on the Placement of Children request to Oregon, where J.F.’s
father resides, to facilitate J.F.’s placement with his father.

¶8 In March 2019, the Department moved to terminate Mother’s
parental rights to the children, alleging neglect and an inability to discharge
parental responsibilities because of chronic substance abuse. The
Department amended its motion to include an allegation of fifteen months’
time-in-care. Following a trial at which Mother testified, the juvenile court
granted the motion and terminated Mother’s parental rights as to all three
children. Mother timely appealed. We have jurisdiction pursuant to
Arizona Revised Statutes (“A.R.S.”) sections 8-235(A) and 12-2101(A)(1).

2 Mother subsequently pled guilty to imperiling a minor by neglect, a
Class 1 misdemeanor.

3
 HARMONY F. v. DCS, et al.
Decision of the Court

ANALYSIS

I. Ineffective Assistance of Counsel

¶9 Mother argues her trial counsel provided ineffective
assistance by failing to submit certain visitation records as evidence. The
“ultimate focus of [appellate court inquiry in a parental rights termination
case] must be on the fundamental fairness of the proceeding” giving rise to
the challenged ruling. John M. v. Ariz. Dep’t of Econ. Sec., 217 Ariz. 320, 324,
¶ 14 (App. 2007) (quoting Strickland v. Washington, 466 U.S. 668, 696 (1984)).
We need not resolve the issue of whether ineffective assistance of counsel
review is applicable in civil dependency/termination proceedings, but note
that, as it relates to the “fundamental fairness” standard, we will not reverse
a termination order for alleged errors of counsel unless “at a minimum”
Mother demonstrates those alleged errors undermine confidence in the
proceeding’s outcome and “give rise to a reasonable probability that, but
for counsel’s errors, the result would have been different.” John M., 217
Ariz. at 324-25, ¶¶ 14, 18.

¶10 According to Mother, these visitation records contained
information that “could have been used to rebut the neglect and fifteen
month[s] time in care grounds.” We note, however, that the juvenile court
found the State proved by clear and convincing evidence three separate
grounds on which to terminate Mother’s parental rights. Mother does not
argue how the visitation records would rebut the substance-abuse ground;
notably, the court found that Mother “is not credible at all in her testimony”
about her substance abuse and testing. Further, given the significant
evidence in the record that Mother “is not able to provide for the needs of
these three children . . . who have unique and significant issues,” there is
no reasonable probability the additional documentation that Mother
sometimes had provided food for her children and also had, at times,
demonstrated appropriate parenting skills during supervised visitations
would have changed the outcome of the proceeding.

¶11 In light of the record in this case, there is no basis to determine
counsel’s alleged error in not offering the visitation records caused the
termination proceedings here to be fundamentally unfair so as to cause
prejudice. See John M., 217 Ariz. at 325, ¶ 18.

II. Termination of Parent-Child Relationship

¶12 We review the juvenile court’s decision to terminate parental
rights for abuse of discretion, and we will affirm the decision if reasonable
evidence supports the court’s findings of fact. E.R. v. Dep’t of Child Safety,

4
 HARMONY F. v. DCS, et al.
Decision of the Court

237 Ariz. 56, 58, ¶ 9 (App. 2015); Ariz. Dep’t of Econ. Sec. v. Rocky J., 234 Ariz.
437, 440, ¶ 12 (App. 2014). We view the facts in the light most favorable to
sustaining the juvenile court’s order. See Rocky J., 234 Ariz. at 440, ¶ 12. The
juvenile court is uniquely positioned to resolve conflicts of evidence, so we
do not reweigh evidence. Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278,
280, ¶ 4 (App. 2002) (“The juvenile court . . . is in the best position to weigh
the evidence, observe the parties, judge the credibility of witnesses, and
make appropriate findings.”).

A. Grounds for Termination

¶13 Mother argues the juvenile court erred in finding the State
proved by clear and convincing evidence three separate grounds to
terminate her parental rights: neglect, chronic substance abuse, and fifteen
months’ time-in-care. A.R.S. § 8-533(B)(2), (3), (8)(c). The juvenile court
may terminate a parent’s rights if it finds clear and convincing evidence of
at least one statutory ground listed in A.R.S. § 8-533(B). Christy C. v. Ariz.
Dep’t of Econ. Sec., 214 Ariz. 445, 449, ¶ 12 (App. 2007). “If clear and
convincing evidence supports any one of the statutory grounds on which
the juvenile court ordered severance, we need not address claims
pertaining to the other grounds.” Jesus M., 203 Ariz. at 280, ¶ 3.

¶14 The parent-child relationship may be terminated if the
juvenile court determines “the parent has neglected . . . a child.” A.R.S. § 8-
533(B)(2). “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). The juvenile
court looks to the circumstances of the parent’s conduct to determine
whether that conduct reflects an “inability or unwillingness” to provide
such necessities to their child so as to render the parent unfit. Jade K. v.
Loraine K., 240 Ariz. 414, 417-18, ¶¶ 12, 16 (App. 2016).

¶15 At trial, the Department case manager described how the
Department became involved with Mother and the children in this case in
late 2017. J.F., then twelve years old, sustained a second-degree burn after
he and L.F., then seven years old, poured gasoline on a basketball and used
a soldering torch to light it. The children were unsupervised as Mother was
asleep at the time. The case manager also testified that a few months later,
the Department sought removal of the children after receiving reports that
the recently homeless family was sleeping in a truck, with the children
sleeping in the bed of the truck with no heat, “one blanket to share amongst
them,” and with one child using a dog as a pillow. The children had been

5
 HARMONY F. v. DCS, et al.
Decision of the Court

sick for approximately three weeks, but Mother had not sought medical
attention for them and had provided only “throat spray” instead of
medication.

¶16 Significantly, the Department case manager testified that each
of the children have special needs—two have developmental delays and the
third has anger management and mood stabilization issues—and the
children are “difficult to parent.” The admitted evidence included a
psychiatric report expressing concerns about Mother’s inability to
understand the need to supervise her children and lack of insight regarding
appropriate supervision. Visitation records also reflect Mother’s inability
to consistently focus on her children or safely redirect them, requiring the
case aide to intervene.

¶17 Mother argues that she remedied her lack of housing. But at
the time of trial, Mother had only recently acquired employment and
housing, a one-bedroom apartment on a month-to-month lease. The court
found that these efforts amounted to only a “temporary resolution of this
issue” and did not address the Department’s concern that Mother should
demonstrate an ability to provide appropriate, stable housing. On this
record, sufficient evidence supports the court’s finding that Mother’s new
employment and housing showed she “may be able to provide for her own
needs at the present time” but not the needs of her children.

¶18 Next, Mother argues she demonstrated she improved her
ability to parent and supervise her children. She cites her testimony that
she took the children to the doctor and kept them current on their
immunizations prior to this case. She also relies on visitation records
showing she purchased meals for the children during some visits. The
juvenile court found that Mother failed to provide individual counseling
and appropriate medical care throughout their lives, and assessed Mother’s
testimony to the contrary as “nothing more than the mother’s self-serving
statement.” Mother’s arguments here essentially ask us to reweigh the
evidence, which we will not do. See Jesus M., 203 Ariz. at 282, ¶ 12; Pima
Cty. Juv. Action No. S-139, 27 Ariz. App. 424, 427 (1976) (“We defer to the
trial court’s assessment of credibility of witnesses . . . .”).

¶19 We find, on this record, reasonable evidence supports the
juvenile court’s findings. Thus, we find no abuse of discretion in the finding
the State presented clear and convincing evidence that Mother neglected
her three children pursuant to A.R.S. § 8-533(B)(2); accordingly, we need
not address Mother’s arguments as to the substance-abuse ground or fifteen
months’ time-in-care. See Jesus M., 203 Ariz. at 280, ¶ 3.

6
 HARMONY F. v. DCS, et al.
Decision of the Court

B. Best Interests

¶20 Upon finding the grounds to terminate a parent’s rights have
been established, the juvenile court must find by a preponderance of the
evidence that termination is in the best interests of the children. Raymond
F. v. Ariz. Dep’t of Econ. Sec., 224 Ariz. 373, 379, ¶ 30 (App. 2010).
“[T]ermination is in the child[ren]’s best interests if either: (1) the child[ren]
will benefit from severance; or (2) the child[ren] will be harmed if severance
is denied.” Alma S. v. Dep’t of Child Safety, 245 Ariz. 146, 150, ¶ 13 (2018). A
child may benefit from severance if the child is adoptable and if the current
placement is meeting the child’s needs. Raymond F., 224 Ariz. at 379, ¶ 30;
see Alma S., 245 Ariz. at 150, ¶ 13. Termination may be in the children’s best
interests if the juvenile court finds “if the parental relationship continued,
the [c]hildren would remain at significant risk for . . . neglect.” See
Dominique M. v. Dep’t of Child Safety, 240 Ariz. 96, 98, ¶ 10 (App. 2016).
“Courts must consider the totality of the circumstances existing at the time
of the severance determination.” Alma S., 245 Ariz. at 150-51, ¶ 13.

¶21 Mother argues the juvenile court erred in finding termination
is in the best interests of the children because the children are bonded with
her and she is capable of parenting the children safely. At trial, the
Department case manager acknowledged that the children have a strong
bond with Mother. But the case manager testified that despite that bond,
“there are also things that need to be provided from a mother to the
children,” including appropriate housing, financial stability, and structure.

¶22 As to J.V.F. and L.F., the juvenile court found that termination
of Mother’s parental rights was necessary to provide the stability in their
lives that Mother is incapable of providing. J.V.F. was in a “potential
adoptive home.” L.F. was not in an adoptive placement, but the juvenile
court found him “more likely than not” to be adoptable. As to J.F., the
juvenile court found Mother detrimentally interfered with the child’s
relationship with his father and could not provide needed “stability and
long-term care” for him. It also found that if the Department’s plan to place
J.F. with his father was unsuccessful, J.F. would be adoptable.

¶23 The evidence of J.V.F.’s and L.F.’s potential for adoption and
the availability of parental placement for J.F., along with evidence that
Mother cannot provide needed stability or structure for the children, is
sufficient to sustain the juvenile court’s decision that termination is in the
best interests of the children.

7
 HARMONY F. v. DCS, et al.
Decision of the Court

CONCLUSION

¶24 For the foregoing reasons, we affirm the juvenile court’s
orders terminating Mother’s parental rights to J.F., J.V.F., and L.F.

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

8