Desiree S. v. Department of Child Safety
235 Ariz. 532
| Ariz. Ct. App. | 2014Background
- Mother (Desiree S.) and Husband previously had children removed for abuse; initial dependency dismissed after services in 2011.
- New reports alleged Husband abused R.S. (born 2002) and Mother failed to protect; children removed and R.S. placed with maternal grandmother.
- Department changed R.S.’s plan to severance and adoption after about two years in care and moved to terminate Mother’s rights under the 15-months-in-out-of-home-placement ground.
- Mother completed all offered reunification services (psych/psychiatric evaluations, parent aide, drug testing/treatment, individual counseling); R.S. refused family therapy and did not want to return to Mother.
- At the termination hearing Mother did not appear; the case manager testified and opined Mother could not remedy the circumstances and would be unable to parent in the near future; the court terminated Mother’s parental rights.
- On appeal, the court found no substantial evidence that Mother failed to remedy the circumstances or was incapable of parenting in the near future because she completed services and the child’s subjective reluctance alone could not satisfy the statutory standard.
Issues
| Issue | Plaintiff's Argument (Mother) | Defendant's Argument (Department) | Held |
|---|---|---|---|
| Whether termination is supported under the statutory ground of 15+ months in out-of-home placement | Mother contends insufficient evidence that she failed to remedy the circumstances or is incapable of parenting soon | Department relied on case manager’s opinion and child’s refusal to reunify/family therapy to show inability to remedy and future incapacity | Reversed: evidence insufficient to prove by clear and convincing evidence Mother failed to remedy conditions or will be unable to parent in the near future |
Key Cases Cited
- Michael J. v. Arizona Department of Economic Security, 196 Ariz. 246 (2000) (clear-and-convincing standard for statutory grounds to terminate parental rights)
- Kent K. v. Bobby M., 210 Ariz. 279 (2005) (preponderance standard for best-interest showing)
- Jesus M. v. Arizona Department of Economic Security, 203 Ariz. 278 (App. 2002) (appellate review standard for juvenile court termination orders)
- Lashonda M. v. Arizona Department of Economic Security, 210 Ariz. 77 (App. 2005) (substantial evidence defines clear-error review)
- Mealey v. Arndt, 206 Ariz. 218 (App. 2003) (substantial-evidence standard explained)
- Jordan C. v. Arizona Department of Economic Security, 223 Ariz. 86 (App. 2009) (evidence that a child is difficult or reluctant to reunify may bear on best interests but not alone on statutory grounds)
- Maricopa County Juv. Action No. JS-6831, 155 Ariz. 556 (App. 1988) (termination cannot be based solely on best-interest considerations)
- Santosky v. Kramer, 455 U.S. 745 (1982) (parental rights are a fundamental liberty interest)