In Re Term of Parental Rights as to W.M.

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

IN RE TERMINATION OF PARENTAL RIGHTS AS TO W.M.

No. 1 CA-JV 23-0116
FILED 04-30-2024

Appeal from the Superior Court in Mohave County
No. B8015JD202004032
The Honorable Rick A. Williams, Judge

AFFIRMED

COUNSEL

Michelle M., Kingman
Appellant

The Law Offices of Robert Casey, Phoenix
By Robert Ian Casey
Advisory Counsel for Appellant Michelle M.

Arizona Attorney General’s Office, Tucson
By Autumn Spritzer
Counsel for Appellee Department of Child Safety
 IN RE TERM OF PARENTAL RIGHTS AS TO W.M.
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Angela K. Paton delivered the decision of the Court, in
which Judge Michael S. Catlett and Judge James B. Morse Jr. joined.

P A T O N, Judge:

¶1 Michelle M. (“Mother”) appeals the superior court’s
termination of her parental rights to her child, W.M. We affirm.

FACTS AND PROCEDURAL HISTORY

¶2 We view the facts in the light most favorable to upholding the
superior court’s ruling. See Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz.
246, 250, ¶ 20 (2000).

¶3 Mother has four children: E.B., born in 2013; M.B., born in
2016; R.B., born in 2020; and W.M., a child with special needs, born in 2021.
The children’s father (“Father”) is not a party to this appeal.1 The parents
have a significant history of domestic violence and substance abuse.

¶4 The court placed E.B. and M.B. in a permanent guardianship
in 2018. The Department of Child Safety (“DCS”) petitioned for R.B.’s
dependency in July 2020, and, during those proceedings, discovered that
Mother had given birth to W.M. in July 2021. Upon discovering W.M.’s
existence, DCS attempted to keep W.M. in the home subject to an in-home
dependency while providing Mother with services to reunify her with R.B.
But Mother continued seeing Father—despite DCS’s concerns of domestic
violence—and frequently left W.M. at home with “responsible adults” “for

1 The superior court terminated both parents’ rights to W.M. Pursuant to
Rule 607(e)(1)(B) of the Arizona Rules of Juvenile Procedure, Father’s
appointed counsel filed a notice in lieu of an opening brief, avowing that he
reviewed the entire record on appeal and found no non-frivolous issue to
raise. We extended the time for Father to file a pro se opening brief and
designated his appointed counsel as advisory counsel. Father’s deadline to
file an opening brief expired on August 29, 2023, and he did not request an
extension or otherwise indicate any intention to file a brief. On November
28, 2023, this court dismissed Father from this appeal.

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hours at a time.” Additionally, W.M.’s hair follicle tested positive for
methamphetamine and THC. In December 2021, DCS moved to terminate
both parents’ rights to R.B. and obtained physical custody of W.M.

¶5 On May 2, 2022, the court terminated the parents’ rights to
R.B. under Arizona Revised Statutes (“A.R.S.”) Section 8-533(B)(3) (inability
to discharge parental responsibilities) and Sections 8-533(B)(8)(a), (c) (nine
and fifteen month out-of-home placement). The court found the parents
have a history of domestic violence and substance abuse, R.B. and W.M.
“have tested positive for illegal drugs while in the parents’ care,” and R.B.
had been in an out-of-home placement since July 2020.

¶6 Specifically, as to Section 8-533(B)(3), the court found that “the
evidence of ongoing domestic violence and dysfunction between the
parents establishes that each parents’ substance use negatively impacts
their ability to parent and creates a hazardous environment for their
children.” And as to Section 8-533(B)(8), the court found that despite DCS’s
diligent reunification efforts, R.B. had not returned to the parents’ care since
his out-of-home placement in July 2020. The court also found that the
parents’ visits with R.B. were inconsistent, their overall engagement in
services was intermittent, and the parents had “been blatantly dishonest
with DCS,” including that Mother “never disclosed that she was pregnant
with [W.M.]” and “maintained a relationship with Father despite his
significant history of domestic violence and substance use.” The court then
concluded that “each parent has been unable to remedy the circumstances
that caused [R.B.] to be in an out-of-home placement.”

¶7 In November 2022, DCS moved to change W.M.’s case plan to
termination and adoption under Section 8-533(B)(10), alleging the parents
continued to have “toxic and antagonistic communications,” had been
maintaining contact “and some sort of relationship,” and that Mother
“continues to struggle with being able to provide a consistent and stable
environment for [W.M.].” DCS asserted these factors constituted the “same
cause” for the prior termination of parental rights to R.B. See A.R.S. § 8-
533(B)(10) (The court may terminate parental rights if the “parent has had
parental rights to another child terminated within the preceding two years
for the same cause and is currently unable to discharge parental
responsibilities due to the same cause.”).

¶8 After a contested termination trial in March 2023, the court
concluded clear and convincing evidence established that Mother had her
rights to R.B. terminated in the previous year and that she is currently

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Decision of the Court

unable to discharge parental responsibilities. At the time of the trial, W.M.
resided with his older siblings and their permanent guardian.

¶9 The court gave credit to Mother for maintaining a separate
residence from Father and for engaging in behavioral services but found
that she still allowed Father to contact her and W.M., despite having an
order of protection against him. The court found it particularly troubling
that Mother hid W.M.’s existence from DCS, continued to have an unstable
relationship with Father, and exposed W.M. to methamphetamines.
Finding that W.M.’s current placement is an adoptive placement that would
protect him and attend to his special needs, the court concluded termination
is in W.M.’s best interests.

¶10 Mother’s appointed counsel filed a notice of avowal in lieu of
an opening brief, see Rule 607(e)(1)(B), Ariz. R.P. Juv. Ct., stating he
diligently searched the record and did not find any non-frivolous issues to
present on appeal. He informed Mother that he found no non-frivolous
issue to raise and that she may file an opening brief pro se. We ordered
Mother’s appointed counsel to remain her advisory counsel and set a
deadline for her to file a pro se opening brief. Mother filed an “Amended
Pro Se Opening Brief” on August 14, 2023.

¶11 We have jurisdiction over Mother’s timely appeal pursuant to
Sections 8-235(A) and 12-120.21(A)(1).

DISCUSSION

¶12 To terminate a parental relationship, the superior court must
find at least one of the grounds for termination in Section 8-533(B) proven
by clear and convincing evidence, and that termination is in the child’s best
interests by a preponderance of the evidence. See Alma S. v. Dep’t of Child
Safety, 245 Ariz. 146, 149–50, ¶ 8 (2018). “The [superior] court, as the trier
of fact in a termination proceeding, is in the best position to weigh 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 do not reweigh the evidence and will look only to
determine whether reasonable evidence exists to sustain the court’s ruling.
See Mary Lou C. v. Ariz. Dep’t of Econ. Sec., 207 Ariz. 43, 47, ¶ 8 (App. 2004).
Our supreme court has directed us to “affirm a termination order unless the
[superior] court abuses its discretion or the court’s findings are not
supported by reasonable evidence.” Brionna J. v. Dep’t of Child Safety, 255
Ariz. 471, 478, ¶ 29 (2023) (citation omitted).

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Decision of the Court

¶13 The superior court may terminate parental rights under
Section 8-533(B)(10) if it finds “the parent has had parental rights to another
child terminated within the preceding two years for the same cause and is
currently unable to discharge parental responsibilities due to the same
cause.” A.R.S. § 8-533(B)(10). “[S]ame cause” refers to the factual cause that
resulted in the termination, not the statutory grounds. Mary Lou C., 207
Ariz. at 48, ¶ 11. DCS must prove it made reasonable efforts to provide
rehabilitative services to alleviate the cause or that such efforts would be
futile. See id. at 49, ¶ 15 (citation omitted).

¶14 Mother’s opening brief does not comply with our procedural
rules; it contains no record citations, legal authority, or arguments for us to
consider on appeal. See ARCAP 13(a); see also Ariz. R.P. Juv. Ct. 607(b). Her
brief includes photographs of a child in the hospital and makes statements
relevant to that. Although Mother is proceeding pro se, we must hold her
briefing to the same standards as briefing presented by counsel. See Flynn
v. Campbell, 243 Ariz. 76, 83–84, ¶ 24 (2017). We conclude Mother has
waived any arguments relating to the termination of her parental rights on
appeal. See J.W. v. Dep’t of Child Safety, 252 Ariz. 184, 188, ¶ 11 (App. 2021)
(“Arguments that are unsupported by legal authority and adequate citation
to the record are waived.”).

¶15 Nevertheless, we have reviewed the record, including the
contested termination trial transcript and the superior court’s termination
order. The court found that “Mother disregards the fact that [the children]
have all suffered a degree of abuse or neglect due in part to her decision to
maintain some level of contact or relationship with Father,” and that
maintaining a relationship with Father “is contrary to [W.M.’s] best
interests and leaves him at risk for further abuse and neglect.” The record
supports the superior court’s finding that Mother had her parental rights to
another child terminated within the preceding two years for the same
cause, namely, that she allows contact with Father despite the risk of abuse.
She had approximately one year to rectify the concerning circumstances but
did not, and thus was unable to discharge parental responsibilities due to
the same cause. Further, nothing in the record suggests that the court erred
in its best-interests conclusion. The court found termination would provide
W.M. with permanency, protection, and care for his special needs. It also
concluded he will benefit from a safe and stable home with his older
siblings.

¶16 In light of the superior court’s “thorough findings of fact and
sustainable conclusions of law with respect to both the statutory ground[]

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Decision of the Court

for [termination] and the child[]’s best interests,” we affirm. See Jesus M.,
203 Ariz. at 282, ¶ 16.

CONCLUSION

¶17 For the foregoing reasons, we affirm.

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

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