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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

VALENTYNA S., Appellant,

v.

DEPARTMENT OF CHILD SAFETY, N.S., M.S., Appellees.

No. 1 CA-JV 20-0087
FILED 11-3-2020

Appeal from the Superior Court in Maricopa County
No. JD34683
The Honorable Randall H. Warner, Judge

AFFIRMED

COUNSEL

Denise Lynn Carroll Attorney at Law, Scottsdale
By Denise Lynn Carroll
Counsel for Appellant

Arizona Attorney General’s Office, Phoenix
By Sandra L. Nahigian
Counsel for Appellee Department of Child Safety
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MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge James B. Morse Jr. and Judge Paul J. McMurdie joined.

C R U Z, Judge:

¶1 Valentyna S. (“Mother”) appeals the superior court’s order
terminating her parental rights to her two children. For the following
reasons, we affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2 Mother is the biological parent of Valerie and Kyle, both born
in 2005.1 When the children were born, Mother was married to the
children’s father, Michael S. (“Father”).

¶3 Father filed for dissolution of the marriage shortly after the
children were born. A bitter custody battle ensued, and both parties
accused the other of domestic violence. Although the superior court found
Mother acted irrationally to disrupt Father’s parenting time, in 2008, it
awarded the parents joint legal custody and equal parenting time. Shortly
thereafter, Mother sought an out-of-state protection order for her and the
children against Father that contradicted the Arizona custody order. The
superior court promptly awarded Father sole legal custody and required
that Mother’s parenting time be supervised. The court also ordered Mother
to undergo a psychological evaluation.

¶4 Litigation persisted for eight more years. The superior court
rebuffed Mother’s attempts for unsupervised visitation out of caution for
the children’s emotional safety, noting the children harbored “confusion
and mistrust” about their relationship with her. Despite several ongoing
counseling or psychological efforts, Mother failed to “change the
circumstances and behaviors” that created “barriers to therapeutic
intervention for reunification.” Throughout the litigation, the children
resided with Father and had little contact with Mother. According to the

1 To protect the children’s privacy, their names have been changed to
pseudonyms.

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children, however, Mother “harassed them,” their father, their doctors, and
their teachers; the children said she “stalk[ed]” them for much of their lives.

¶5 In 2017, when the children were twelve years old, Father died
and the children discovered his body in their home. Mother sought
custody, but the children moved in with their paternal grandparents. The
children’s court-appointed best-interests attorney filed a dependency
petition, which explained the children were uncomfortable talking to
Mother and “they do not want to see Mother.” The petition advised the
court of concerns for the children’s “emotional, mental and physical health
in Mother’s care.” The court granted the petition on a temporary basis,
citing abandonment, mental health issues, and a risk of abuse or neglect.
The Department of Child Services (the “Department”) joined as a co-
petitioner after an investigation revealed concerns about Mother’s mental
health and the poor relationship between Mother and the children.

¶6 Although Mother initially contested the dependency petition,
she reversed course, and the court found the children dependent. In a
minute entry outlining the complicated factors in developing a case plan
for the children, the superior court expressed skepticism that the
relationship with Mother and the children could be remediated: “Mother
must have an epiphany as to how her behaviors have impacted her children
and their relationship with her if there is to be any hope. The likelihood of
that occurring is quite remote.”

¶7 Throughout the proceedings, the Department provided
Mother with referrals for counseling, psychological evaluation, and
therapeutic visitation involving the children. Mother refused counseling
services for nearly a year. Therapeutic visitation services proved
impossible because the children refused to see Mother, and the children’s
therapist determined that visits with Mother would have a “traumatic
effect” on the children. Mother attempted to have a stranger deliver
Christmas gifts to the children as she parked nearby; the gifts were refused.
After Valerie texted Mother to warn that her paternal grandmother would
call the police if Mother returned to the house, Mother responded by telling
Valerie her grandmother had “nothing to do with you” and “[Grandma]
will get judgement from the God.” The children reported they locked their
doors nightly because they were afraid that Mother would return to their
home. Shortly thereafter, the court prohibited Mother from going to where
the children resided and ordered her not to email or text the children.

¶8 Despite the court order—and despite the children adamantly
opposing any contact with Mother—the children reported they saw her “in

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various locations, including their backyard, school, and at the behavioral
health provider.” Mother also continued to call and text the children until
the court ordered her to refrain from contacting the children “until it has
been determined by a therapist to be appropriate.”

¶9 By mid-2018, the children’s relationship with their paternal
grandparents became strained as they struggled to adjust. Kyle
experimented with marijuana, became defiant, and was suspended briefly
from school. Valerie admitted to using substances including
methamphetamine and cocaine. The children addressed these issues in
therapy, and Valerie submitted to regular drug testing. Both children made
good progress by the fall. To allow their grandparents to just “be
grandparents,” the children suggested they live with a family friend willing
to provide care for them. After conducting a home study, the Department
moved to place the children with the family friend, which the court
authorized.

¶10 The Department moved to terminate Mother’s relationship
with the children on the grounds of out-of-home placement for fifteen
months or longer. See Ariz. Rev. Stat. (“A.R.S.”) § 8-533(B)(8)(c). After a
nine-session trial, at which Mother and numerous mental health services
providers testified, the superior court terminated Mother’s parental rights
to the children, who were nearing their fifteenth birthdays. Mother timely
appealed, and we have jurisdiction pursuant to A.R.S. §§ 8-235(A) and 12-
120.21(A)(1).

DISCUSSION

¶11 On appeal, Mother argues that insufficient evidence supports
the superior court’s order terminating her rights and that the Department
failed to provide appropriate reunification services. We will affirm the
court’s decision “unless it is clearly erroneous.” Demetrius L. v. Joshlynn F., 239 Ariz. 1, 3, ¶ 9 (2016). Because the superior court is best suited to
determine the credibility of witnesses and resolve conflicts in evidence, we
do not reweigh the evidence. Id.; Dominique M. v. Dep’t of Child Safety, 240
Ariz. 96, 97, ¶ 6 (App. 2016).

¶12 Although parents have fundamental rights in the care and
management of their children, those rights are not absolute and may be
terminated if the superior court finds clear and convincing evidence of a
statutory ground for termination and finds by a preponderance of the
evidence that termination is in the children’s best interests. Kent K. v. Bobby
M., 210 Ariz. 279, 284, ¶¶ 22, 24 (2005).

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I. Grounds for Termination

¶13 Pursuant to A.R.S. § 8-533(B)(8)(c), the superior court may
terminate a parent’s rights if the child has been in an out-of-home
placement for fifteen months or longer pursuant to court order, “the parent
has been unable to remedy the circumstances” causing the child to be in an
out-of-home placement, and “there is a substantial likelihood” she will be
unable to care properly for her child in the near future. In determining
whether the evidence supports the termination ground, the court considers
those circumstances existing at the time of the termination proceedings that
prevent the parent from appropriately providing for her child. Marina P. v.
Ariz. Dep’t of Econ. Sec., 214 Ariz. 326, 330, ¶ 22 (App. 2007).

¶14 Here, although the children were initially found to be
dependent as to Mother on the grounds of abandonment, concerns for
Mother’s mental health, and a risk of abuse or neglect, it was the nearly non-
existent parental relationship—exacerbated by Mother’s inability to
empathize with the children—that caused the out-of-home placement. The
superior court found the children “do not feel emotionally safe in
[Mother’s] care.”

¶15 Mother argues that significant evidence demonstrates she is a
fit parent. The record shows that Mother underwent several psychological
evaluations and met numerous counselors dating back to 2011. Neither of
the Department-referred psychologists testified that Mother has a
personality disorder or other mental illness. The professionals who
determined that Mother could parent a child did not interview or otherwise
work with Valerie or Kyle. Therefore, these professionals could not
evaluate Mother’s ability to parent her two children with significant needs.
See Joelle M. v. Dep’t of Child Safety, 245 Ariz. 525, 527-28, ¶¶ 12-13 (App.
2018) (explaining the superior court must “consider the discrete and special
needs of the particular child” in termination proceedings).

¶16 In the more than two years that the children remained
dependent as to Mother, she continued to undermine any opportunity to
build a relationship with her children. Her unplanned appearances at the
children’s school and home and her violations of the no-contact order only
deepened the children’s feelings of distrust. Even if Mother acted out of
love, the fact remains that these actions demonstrate Mother’s inability to
empathize with two children who had experienced significant trauma. At
trial, Mother’s testimony underscored how little progress she had made in
remedying her ability to understand her children’s needs. She dismissed
their desire not to see her as coerced and suggested the children felt “no

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sadness of any kind” when Father died. Sufficient evidence supports the
superior court’s findings that Mother was unable to remedy the
circumstances that caused the out-of-home placement and there was a
substantial likelihood that she would not be able to parent the children
safely in the near future.

¶17 Before the superior court may terminate a parent’s rights
under A.R.S. § 8-533(B)(8)(c), the court must “consider the availability of
reunification services to the parent.” A.R.S. § 8-533(D). Mother argues the
Department failed to provide court-ordered therapeutic visits and other
interventions recommended by professionals retained by Mother. The
Department must provide services with a reasonable probability of success
but is not required to undertake rehabilitative measures that are futile or
would risk harm to the children. See Mary Ellen C. v. Ariz. Dep’t of Econ. Sec.,
193 Ariz. 185, 192, ¶ 34 (App. 1999). Here, even as the Department
attempted to coordinate visits, the children refused visits with Mother and
reported they were afraid of her. At trial, Valerie’s therapist2 testified that
forcing such visits “would have been absolutely detrimental” to the
children’s progress because in their minds, Mother represents a “huge piece
of their trauma.” The Department cannot be expected to repair in two years
a relationship Mother had been unable to correct for more than a decade.
The record supports the court’s finding that the Department made diligent
efforts to provide appropriate reunification services with a reasonable
probability of success.

II. Best Interests

¶18 Mother argues that the superior court erred in determining
termination is in the children’s best interests. To prove termination is in the
children’s best interests, the Department must demonstrate that
termination would either benefit the children or that the children would be
harmed if their relationship with Mother continued. See Dominique M., 240
Ariz. at 98, ¶ 8. The superior court must “balance the rights of an unfit
parent” against the children’s interest “in obtaining a loving, stable home”
or “avoiding a potentially harmful relationship” with the parent. Kent K.,
210 Ariz. at 287, ¶ 37.

¶19 Valerie and Kyle, now fifteen years old, have been the subject
of litigation for practically their entire lives and have faced significant
challenges since Father’s death. The Department presented evidence that

2 The therapist also served as Kyle’s case manager and reviewed his
progress and treatment needs.

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the children were in an adoptive placement meeting their needs and
helping them achieve much-needed stability. See Demetrius L., 239 Ariz. at
4-5, ¶¶ 15-16 (noting that protecting children’s interest in stability and
security must be paramount). Mother’s argument emphasizes her
biological connection to the children; in doing so, she essentially invites us
to reweigh the evidence before the superior court. We will not do so. And
to the extent Mother argues the court should have given her additional time
to work through therapeutic services, the record shows that delaying
termination would only create a detriment to the children, forcing them to
linger in the system without a sense of permanence. The court did not err
in finding termination to be in the children’s best interests.

CONCLUSION

¶20 For the foregoing reasons, we affirm the superior court order
terminating Mother’s parental rights to her children.

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

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