                                  IN THE
             ARIZONA COURT OF APPEALS
                               DIVISION ONE


                           DESIREE S., Appellant,

                                      v.

           DEPARTMENT OF CHILD SAFETY,1 R.S., Appellees.

                            No. 1 CA-JV 14-0046
                                  FILED 9/9/14

           Appeal from the Superior Court in Maricopa County
                             No. JD18982
                The Honorable Daniel G. Martin, Judge

                     REVERSED AND REMANDED


                                 COUNSEL

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

Arizona Attorney General's Office, Phoenix
By Michael F. Valenzuela
Counsel for Appellee Department of Child Safety




1 Pursuant to S.B. 1001, Section 157, 51st Leg., 2nd Spec. Sess. (Ariz. 2014),
the Department of Child Safety (“DCS”) is substituted for the Arizona
Department of Economic Security in this matter. See ARCAP 27. Because
this case preceded the creation of DCS, we will refer to the agency as the
Department.
                          DESIREE S. v. DCS, R.S.
                           Opinion of the Court



                                 OPINION

Presiding Judge Maurice Portley delivered the Opinion of the Court, in
which Judge Michael J. Brown and Chief Judge Diane M. Johnsen joined.


P O R T L E Y, Judge:

¶1           Desiree S. (“Mother”) challenges the order terminating her
parental rights to her child, R.S., who was born in 2002. She argues that
there was insufficient evidence to support termination based on fifteen
months in out-of-home placement. We agree and reverse the termination
order.

                FACTS2 AND PROCEDURAL HISTORY

¶2           Mother and Richard M. (“Father”) are the biological parents
of R.S. Father was absent from the child’s life and R.S. lived with Mother,
her husband (“Husband”), and their four younger children.

¶3          The Department filed an in-home dependency petition
against Mother and Husband alleging Husband had abused the children
and Mother failed to protect them. The children were found dependent,
the couple completed services, and the dependency was dismissed in
March 2011.

¶4            Shortly thereafter, the Department received a new report that
Mother disciplined her seven-year-old daughter by hitting her in the face,
and Husband abused R.S. by spanking him with a belt. The children were
removed from the home and R.S. was subsequently placed with his
maternal grandmother. The Department filed a dependency petition and
the juvenile court found the children dependent and ordered a case plan of
family reunification.

¶5          Two years later, the juvenile court granted the Department’s
request to change R.S.’s case plan to severance and adoption. The
Department subsequently filed a motion to terminate Mother’s parental

2 On appeal, “[w]e view the facts in the light most favorable to upholding
the juvenile court’s order.” Ariz. Dep’t of Econ. Sec. v. Matthew L., 223 Ariz.
547, 549, ¶ 7, 225 P.3d 604, 606 (App. 2010).



                                      2
                           DESIREE S. v. DCS, R.S.
                            Opinion of the Court

rights, alleging that R.S. had been in an out-of-home placement for fifteen
months or more.3

¶6            When Mother failed to appear at a scheduled status
conference, the family court commenced the termination hearing. See Ariz.
Rev. Stat. § 8-537(c) (West 2014). The case manager testified, was cross-
examined, and the court subsequently signed findings of fact and
conclusions of law and terminated Mother’s parental rights to R.S. Mother
now appeals.4

                               DISCUSSION

¶7             A parent’s parental rights can be terminated if the juvenile
court finds that the Department has proven a statutory basis for termination
by clear and convincing evidence, Michael J. v. Arizona Department of
Economic Security, 196 Ariz. 246, 249, ¶ 12, 995 P.2d 682, 685 (2000), and there
is proof by a preponderance of the evidence that termination is in the child’s
best interest. Kent K. v. Bobby M., 210 Ariz. 279, 288, ¶ 41, 110 P.3d 1013,
1022 (2005). We will affirm the ruling terminating parental rights unless
clearly erroneous. Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 280,
¶ 4, 53 P.3d 203, 205 (App. 2002). A ruling is clearly erroneous if
unsupported by substantial evidence. Lashonda M. v. Ariz. Dep’t of Econ.
Sec., 210 Ariz. 77, 81, ¶ 13, 107 P.3d 923, 927 (App. 2005) (citing Mealey v.
Arndt, 206 Ariz. 218, 221, ¶ 12, 76 P.3d 892, 895 (App. 2003) (stating that
substantial evidence is any relevant evidence that allows a reasonable
person to reach the same conclusion as the fact-finder)).

¶8             Mother argues only that there was insufficient evidence to
support termination of her parental rights pursuant to the fifteen months in
out-of-home placement. She specifically argues that the Department failed
to demonstrate that she (1) failed to remedy the circumstances that caused
R.S. to be in out-of-home placement, and (2) was incapable of parenting R.S.
in the near future.




3 Husband and the four other children are no longer in the child welfare
system. Husband filed for divorce and received temporary orders that he
is the sole legal decision maker and Mother has unsupervised parenting
time one day a week.
4 Father’s parental rights were terminated for abandonment. He is not a

party to this appeal.



                                       3
                          DESIREE S. v. DCS, R.S.
                           Opinion of the Court

¶9           The case manager testified that Mother successfully
completed all services offered by the Department, including psychological
and psychiatric evaluations, parent aide services, drug testing, drug
treatment, and individual counseling. Mother was also offered family
counseling and was willing to attend, but R.S. refused. 5 And, because
Mother was no longer with Husband, the case manager testified that there
were “no safety concerns or barriers” for reunification with Mother.

¶10           The case manager, however, opined that Mother had been
unable to remedy the circumstances which caused R.S. to be in an out-of-
home placement. She also opined that Mother would not be capable of
parenting in the near future because R.S. did not want to return to Mother,
fearing she would not be able to protect him from abuse. The juvenile court
echoed that sentiment by finding that “Mother is unable at this time and
will be unable in the near future to remedy the root cause of the dependency
because the child does not believe Mother is able to protect the child from
abuse.”

¶11            There is no evidence to support the findings that Mother was
unable to remedy the circumstances that brought R.S. into care and will be
unable to parent the child. As the case manager testified, Mother
successfully completed all of the reasonable services offered to implement
family reunification. According to the case manager, Mother’s eleven-year-
old son did not think Mother could keep him safe, and refused to
participate in family counseling. The youngster’s subjective belief, without
more, cannot be the sole basis to determine as a matter of law that Mother
will be unable to parent him in the near future. His reluctance to participate
in family counseling with Mother and his refusal to give her an opportunity
to parent might go to the court’s determination of best interests, but cannot
demonstrate by clear and convincing evidence that she cannot parent in the
near future.

¶12            In Jordan C. v. Arizona Department of Economic Security, 223
Ariz. 86, 219 P.3d 296 (App. 2009), we considered a similar situation. There,
despite the fact that the mother completed all services in the case plan, the
case manager recommended terminating her rights so that her special
needs child, who might be difficult for the mother to handle, could be
adopted. Id. at 90, 95, ¶¶ 8, 26, 219 P.3d at 300, 305. We recognized that the
evidence that it would be difficult for mother to care for a special needs

5 Although R.S. participated in individual counseling, there was no
evidence indicating why R.S. could not or should not participate in
therapeutic family counseling with Mother.


                                      4
                           DESIREE S. v. DCS, R.S.
                            Opinion of the Court

child was “relevant to the issue of whether termination of [the mother’s]
rights was in the [child’s] best interest” but not to the statutory ground for
termination. Id. at 95, ¶ 28, 219 P.3d at 305. By the same reasoning, even
though R.S. does not want to attend counseling with Mother, his reluctance
to participate cannot by itself support the court’s finding that Mother will
be unable to parent her child in the near future.

¶13            Mother has taken advantage of and participated in the offered
services and wants to parent her child. While the child’s reluctance to
participate may, at best, be relevant to the best interest factor, “termination
cannot be predicated solely on the best interests of the child.” Maricopa
Cnty. Juv. Action No. JS-6831, 155 Ariz. 556, 558, 748 P.2d 785, 788 (App.
1988). As a result, the evidence does not support the findings that the
Department demonstrated by clear and convincing evidence that Mother
failed to remedy the circumstances that caused R.S. to be in out-of-home
placement and that she will be unable to parent him in the near future. See
id. Consequently, the evidence did not justify the permanent deprivation
of Mother’s parental rights. See id.; see also Michael J., 196 Ariz. at 249, ¶ 12,
319 P.2d at 685 (finding that the right to parent one’s child is fundamental);
Santosky v. Kramer, 455 U.S. 745, 753 (1982) (“The fundamental liberty
interest of natural parents in the care, custody, and management of their
child does not evaporate simply because they have not been model parents
or have lost temporary custody of their child to the State.”).

                                CONCLUSION

¶14           Based on the foregoing reasons, we reverse the order
terminating Mother’s parental rights to R.S., and remand the case to the
juvenile court.




                                     :JT



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