Petition for Writ of Certiorari — Jasmaine H., Petitioner v. Arizona Department of Child Safety, et al.

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22-5114 ORIGINAL

-----------------------

Supreme Court, U.S.

FILED

MAY 2 6 2022

fntPje

OFFICE OF THE CLERK

Supreme Court of flje ®mteti States

Jasmaine K„ in forma pauperis

Petitioner,

v.

Arizona Department of Child Safety, et al.,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

Petition for a Writ of Certiorari

Jasmaine Shaphon Henry

12350 WSola Dr.

mn

Surprise, AZ 85378

€02-299-6789

Jasmo ine2G3 7@yfj.hoo.com

7

Questions Presented

Did the Arizona Department of Child Safety violate Mother’s Fourteenth

Amendment right to Due Process and deprive her of her fundamental right to

parent?

Does Arizona’s minimum standard for clear and convincing evidence upon findings

violate Mother’s ability to a fair trial?

i

TABLE OF CONTENTS

QUESTIONS PRESENTED_____

,..i

PARTIES TO THE PROCEEDING

11

LIST OF ALL PROCEEDINGS

.11

TABLE OF AUTHORITIES

,iv

T •

OPINION......

1

STATEMENT OF JURISDICTION

1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

1

INTRODUCTION.

2

STATEMENT OF THE CASE

3

REASONS FOR GRANTING THE WRIT

10

CONCLUSION.

16

APPENDIX

APPENDIX A:

la

APPENDIX B:..is not required per Rule 14.1(i) of the Supreme Court of the United

States and has been omitted. (Pages reserved)

9a

APPENDIX C:................................................

30a

APPENDIX D:.................................................

31a

iii

TABLE OF AUTHORITIES

Pages

Gases

Boyd v. U.S., 116 U.S. 616(1886):

U

DuBose v. Kelly, 187 F. 2d 999 (8th Cir. 1999):

2

Eisenstadt v. Baird, 405 U.S. 438 (1972):

13

Hardy v. Superior Court, Judicial Hist. of Fairfield, 3G5 Conn. 824, 48 A. 3d 50

(2012):

2

Loving v. Virginia, 388 U.S. 1, 12(1967):

12

Maricopa County Juvenile Action No. JS«65G, 157 Arizona 238, 243, 756 P.2d

12

335,340 (App. 1988):

Miranda v. Arizona. 384 US 436(1988):

13

Obergefell v. Hodges 576 US 644 (2015):

16

Robert G. v. Ariz. Dep'i of Econ. Sec., (2611): 12.13

Ross v. Henry AZ FC2014-002472:

14

Santosky v. Kramer 455 US 745 (1982):

14

Scull v. State, 569 So. 2d 1251 (Fla. 1990):

11

Stanley v. Mlinois 4G5 US 645 (1972): 15

Steven M. v. AZ Dep't of Child Safety JD532254:

US o. Minker, 35G US 179 (1956):

11

5

Statutes

Adoption and Safe Families Act (1997):

12

Arizona Revised Statute § 8-533 B (8) C:

9.12

Social Security Act of 1935 §1101 <6)d: 15

iv

Other

Edwards, F. (2016). Saving Children, Controlling Families: Punishment,

Redistribution, and Child Protection. American Sociological Review, 81(3), 575-595:

16

Merkel-Holguin, L., Drury, I., Gibley-Reed, G., Lara, A., Jihad, M., Grint, K., &

Marlowe, K. (2022). Structures of Oppression in the U.S. Child Welfare System:

Reflections on Administrative Barriers to Equity. Societies, 12(1), 26.:

16

v

OPINIONS

The opinion of the highest state court to review the merits appears in Appendix A to

the petition and is unpublished. The opinion of the Arizona Maricopa County

Superior Court is not required per Rule 14.1(i) of the Supreme Court of the United

States and has been omitted but would appear in Appendix B to the petition and is

unpublished. The decision of the State Supreme Court denying review appears in

Appendix C. Order of State Supreme Court denying rehearing appears in Appendix

D.

JURISDICTION

The date on which the highest state court decided my case was September 23, 2021.

A copy of that decision appears in Appendix A. A timely petition for rehearing was

thereafter denied on the following date: March 1, 2022, and a copy of the order

denying rehearing appears in Appendix D. The Jurisdiction of this Court is invoked

under 28 U.S.C. § 1257(a).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

This case involves United States Constitution 14th Amendment § 1.

1

i

INTRODUCTION

There is a growing phenomenon nationwide within the child welfare system.

Children are being removed from their families at alarming rates for more related

to poverty and bias than actual abuse. Dr. Rank Edwards has explored over the

years this dilemma that has impacted families who have been, involved with child

protection services. Today, the numbers estimate that 1 in every 3 children will be

in vestigated by OPS and that rate becomes 1 in every 2 for black children. As a

representative of ALL mothers who have become a statistic to the design of the

system* consideration for certiorari is needed not only to protect our children but

the fundamental rights of the family and its foundation of this nation. Decisions to

uproot family units include unfair and unjust practices for financial gain. The

conspiracy of parties from the state to the attorneys, up to these judges recognizes

the actions being taken to depri ve many families and their right to toe process in

line with fundamental principles of liberty and justice; U.S.—DuBose v. Kelly, 187

F,3d 988 (8th Cir. 1898). Fundamental fed

is the soul and foundation of due

process. The liberties of families are valuable and must be seen as needing

protection under the 1.41h Amendment; Hardy v. Superior Court, Judicial Bist. of

Fairfield, 305 Conn. 824, 48A3d 50 (2012).

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STATEMENT OF CASE

On March 28th of 2017 Mother, Jasmaine H. gave birth to twin fraternal boys, M.S.

& M.S. During the stay, Mother answered questions from medical personnel

including about her use of marijuana as relief from pregnancy symptoms. The

Arizona Department of Child Safety, also to be referred to throughout this matter

as the department or DCS, began an investigation regarding concerns of substance

abuse. Mother agreed to work with the department and participate in services. In

August of 2017 the Department of Child Safety, DCS, closed out services

unsuccessfully due to the contracting agencies' inability to provide her with services

outside of her work schedule.

In April of 2018, a call to Phoenix Police Department by Mother was made

regarding a domestic quarrel Mother advised the police that she was upset because

the father of three children in reference refused to operate the air conditioning.

Stated that she was stressed, and they were having another baby. The police report

included allegations made of a possible physical altercation involving strangulation;

however, Mother refused to conduct an examination with a nurse. This incident

triggered a DCS hotline report where no resolution was returned.

In the mid-summer of 2018, another police report was made with conflicting

allegations. Father made a phone call stating that Mother had made comments and

was concerned about her mental, health as she stated she was going to “drive into

traffic”. Phoenix PD located Mother driving away from the location. Officer

confronted Mother who expressed concerns for her mental health. Officer provided

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transportation to a mental health facility where concerns of physical assault were

addressed, Due to Mother being 6 months pregnant a medical examination was

required before mental health was able to be assessed. Upon examination evidence

of injury compared to an assault was determined. Mother was released back to her

vehicle.

In August of 2018, a DCS investigation continued. The mother expressed issues

with stress, mental health, and financial struggles where investigators provided a

list of numbers and resources and were advised the case would be closed.

On the morning of November 7th, 2018, Mother went into labor with M.S.” At birth,

the Mother tested positive for THG/marijuana, Mother testified during the trial that

there was no conclusive evidence that M.S. had tested positive for TH.G/marijuana.

Prior to discharge, a DCS investigator arrived at the hospital questioning Mother

regarding prior reports of domestic violence between herself and the children’s

father. This prompted a seven-day separation of the family where the father was

asked to be removed, from the home until the Team Decision Meeting (TDM) that

took place on November 14th of 2018.

During this meeting, discussions were held that aroused emotions for the parents in

different fashions. Mother expressed issues with Postpartum Depression after the

birth of M..S. & MLS., limited financial resources, and. lack of community and

partner support which is supported by Dr. Leslie Montijo-Tai's testimony on day

two of the severance trial. While Mother regressed towards compliance, Father

showed clear signs of resistance. Upon conclusion of the meeting, all parties agreed

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to what was termed as “Court Oversight”. Believing that true accountability of all

parties would be reviewed, the parents agreed to these services. The safety plan was

lifted with a pop-in safety monitor to contact family twice a day to ensure that thenneeds were being met. Around November 28th, 2018, the DCS investigator obtained

signatures from both parents entering an agreement for an In-Home Intervention.

Unbeknownst to the parents, they had willing signed their legal rights away.

“Because of what appears to be a lawful command on the surface, many citizens,

because of their respect for what only appears to be a law, are cunningly coerced

into waiving their rights, due to ignorance.” US v. Minker, 350 US 179.

On or about December 6th, 2018, a phone call to Mother from the investigator

advising of a court heating to discuss the matter further. Mother was confused,

Father was outraged. A present danger plan had been provided for a cooling-off

period for the family which once again recommended for Father not to be in the

home for 14 days. Mother testified that the present danger plan was set to expire on

December 31, 2018, and no further action nor documentation was provided by the

department.

On January 7th, 2019, a status call was delivered to the DCS Hotline from Phoenix

Police Department regarding a disturbance. Father had contacted Phoenix Police

Department requesting for Mother to be removed from the home. There was never

any contact between either parent. Father made a call while not at the residence

and arrived once police were present. The mother provided Phoenix PD with the

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present danger plan that they were unable to enforce due to the plan expiration

date having passed. On an active warrant, Phoenix PD took Father into custody.

On or about February 13th of 2019, a call was made to Phoenix PD regarding

concerns for Mother’s mental health. When officers arrived, they found Mother in

the home with the children and her unde who is the current placement for the

children. Both Mother and Father had police contact where no reports of a physical

altercation had taken place. Mother was admitted into Aurora Behavior Health

where she spent 8 days recovering and engaging in healthy coping skills.

Approximately 48 hours into Mother’s stay, the Department of Child Safety

removed the children from her paternal unde’s home, separated them, and placed

them into group homes creating avoidable trauma for the three children. A TDM

was held near the end of the week on February 13th of 2019 where a discussion was

held with family members and the department. The children were to be placed with

the unde while Mother actively engaged in the Service Letter that was provided by

the case manager. Mother’s contact was immediately restricted. Mother began

complying and completing each aspect of the case plan as follows: Parent Aid,

Domestic Violence Counseling, Substance Abuse Assessment, Psychological

Evaluation, Random Drug Screening, Stable Financial Income, Housing, and

continued contact with the case manager. Mother had received a Medical Marijuana

card for legal usage in Arizona in March of 2019.

In August of 2019, supported by Dr. Leslie Montijo-Tai’s testimony, Mother

completed a psychological evaluation that provided recommendations for DBT

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Therapy, domestic violence, and substance abuse in an educational format. In

October 2019, Mother enrolled in a family violence course through the University of

Phoenix. In November of 2019 the Report & Review hearing continued to address

concerns regarding substance abuse, the following week Mother enrolled in a

Substance Abuse course, and both were completed successfully through the

University of Phoenix by January 2020.

In February of 2020, during a Report and Review hearing, the department

continued to request for Mother to complete a substance abuse assessment to

determine whether any services were needed. March of 2020, due to the start of the

pandemic there was limited availability for scheduling and a virtual appointment

was completed during the first week of April 2020 determining no services were

required.

In early May of 2020, a TDM was conducted as the path to returning the three

children to their mother. Mother completed all required conditions of return. A

Reunification Team was assigned to Mother as the family began unsupervised and

overnight visits. On or about June 5th of2020, the case manager came to the

mother’s home to sign a case plan. There was no safety included in the documents to

sign as supported by both Mother’s testimony and the testimony of the case

manager at trial. On or about June 12th of2020, the department filed a motion to

change custody to Mother. On June 15th, 2020, Father posted a video to YouTube

that included the twin boys M.S. & M.S. playing while he spoke out against political

officials along with the state agency and its case manager to keep him away from

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his children and that he would treat them as the Declaration of Independence sees

fit to those who do not uphold their oath and commit treason.

For a deeper perspective, Father Talib S. and the department have never managed

to create a rapport of trust to provide resources for him and the family supported by

Mother’s testimony with the Guardian Ad Litem. During a Report and Reviewing

hearing in November of 2019, Father addressed the Court regarding the

department not providing him with visits. The department responded with no

service providers being willing to attend his visits due to his hostility. The courts

advised the department that Father had a constitutional right to see his children

and was given two business days to conduct those visits. However, the Court

advised Father that if he continued to harass and bully staff members that visits

would be suspended. In early March of 2020, the department called for an

Emergency Status Conference to suspend Father’s visits due to continued hostility

in emails to several parties of the case. While there was supporting documentation

providing concerns for Father’s mental health, there were also disclosures received

by all parties from the Arizona Department of Veteran Affairs with notes in his

medical records determining that while the father suffered from depression, he was

not a danger to himself nor others. Upon completion of that hearing, Father’s visits

were suspended removing DCS’s obligation of providing him with visits throughout

the remainder of the dependency.

On June 18th of 2020, the department withdrew its position to change custody to

Mother and motioned for a change of case plan to Severance and Adoption due to

8

time in care pursuant to Arizona Revised Statute 8-533 (B) 8(C). On January 14th,

2021, Reunification team Counselor Christa Jackson testified to the completion of

services by Mother. In support of Mother's testimony, Ms. Jackson also testified

that no safety plan was provided during intake of services by the department. After

testimony from Mother’s Behavior Health Therapist, Alisha Shipman, who testified

that she had begun working on components of DBT therapy with Mother. On March

15, 2021, the Maricopa County Superior Court terminated the rights of both

parents. Mother’s rights were severed only on the ground of time in care pursuant

to Arizona Revised Statute 8-533 (B) 8(C).

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REASON FOR GRANTING THE WRIT

In August of 2020, the Courts granted the department’s motion to change the case

plan to Severance and Adoption and did not entertain a concurrent plan for

reunification as the assigned judge stated that Mother was “ungrateful for the

opportunity that was given to her children to return”. After the department was

granted its change in the case plan, a TDM (Team Decision Meeting) was held at

the request of Mother. The department testified that they felt no need to conduct a

TDM prior to putting in the motion as a decision was already made to pursue

severance and adoption.

A mediation took place in early October of 2020 where after all of Mother’s services

were completed as well as volunteering for After Care Services with the

reunification team. The department refused to walk back its decision for severance

and adoption. During a Report & Review hearing in late October of2020, Mother

requested more visits and the department requested for Mother to complete a

psychological evaluation to determine if any additional services would be necessary

to obtain more visits. Upon completion, visits were not given outside of what was

already being provided even after the department refused to make up missed visits

that the case manager refused to make up.

The first few days of the severance hearing included testimony from the

department’s case manager. The courts asked the department what had been done

to give Mother another chance to show that she can have custody of the children

without the father being around to which the case manager responded that “the

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department felt that she had plenty of opportunities." On February 17th, day four of

the trial, Mother testifies regarding her position with the children’s father and how

they are not in a relationship, and she is working towards enhancing her life with

her education and raising her children. When the Court inquiries about interaction

and contact between Father and the children, Mother expresses the willingness to

maintain a fundamental bond between Father and children when appropriate.

Mother testified to the tools given to her by the department to protect herself as

well as her children. Mother testified that she was never given a safety plan that

advised that she would be unable to provide supervised visits to Father as they

moved towards reunification. In support of Mother’s position about being confused

regarding DOS’s position and to maintain a familial relationship with the children

and their father, Christa Jackson stated that the same in addition to the

department’s swift decision to move towards severance, as we ask this court to

acknowledge Scull v. State, 569 So. 2d 1251, “Trial court’s haste in resentencing

Scull violated his due process rights.” The department lacked the decision to move

toward having the mother sign a safety plan at the March 2020 status conference to

suspend the Father’s visits shows that there were no clear imminent concerns like

Steven M. v. AZDep't of Child Safety JD532254.

This case is not about the inability of the parent being able to exercise proper and

effective parental care and control, but about a federal requirement that has pushed

courts into a comer to violate even the best parent’s rights. “The court is to protect

against any encroachment of constitutionally secured liberties.” Boyd v. U.S., 116

ll

U.S. 616. “One of the vital personal rights essential to the orderly pursuit of

happiness by free men” In Loving v. Virginia, 388 U. S. 1, as unanimously decided

for one’s right to marry and upon marriage is the creation of lineage to be protected.

The argument to address is the Arizona Revised Statute 8-533 (B) 8(C) which

states: “The child has been in an out-of-home placement for a cumulative total

period of fifteen months or longer pursuant to a court order or voluntary placement

pursuant to section 8-806, the parent has been unable to remedy the circumstances

that cause the child to be in an out-of-home placement and there is a substantial

likelihood that the parent will not be capable of exercising proper and effective

parental care and control in the near future ” This statute is intended to align with

the 1997 Adoption and Safe Families Act which makes the state required to

accelerate dependency cases to conduct a sale of a child. The purpose of the

Adoption and Safe Families Act of 1997 was to provide children who have been

placed in foster care for an extended period a permanent placement as it is the

child’s constitutional right to have a loving and nurturing home to develop in even

with no progress or interest from the parents to reunify. As further supported in re

Appeal in Maricopa County Juvenile Action No. JS-6520,157Ariz. 238, 243, 756

P.2d 335, 340 (App. 1988) “to expedite the process of numerous children who remain

in temporary foster care and in so doing to promote a stable and long-term family

environment for these children.” However, Mother argues that this is not the case.

Mother requests to persuade the court in acknowledging that Robert G. v. Ariz.

Dep't of Econ. Sec., 2011 Ariz. App. Unpub. LEXIS 882, 2011 WL 2517418. “If a

12

parent successfully completes all offered services, and the services provided the

required reasonable opportunity of success for reunification, the parent will have

remedied the circumstances which cause her child to be placed in foster care”.

While the department will argue that Mother allowed Father time with children

and in doing so showed that Mother lacked insight on Father’s mental health. Yet,

Mother’s therapist testified that she holds insight. Testimony from the case aid

assigned to supervise Mother’s visits supports Mother’s ability to exercise proper

and effective parental care and control.

"Where rights secured by the Constitution are involved, there can be no rule­

making or legislation, which would abrogate them” Miranda v. Arizona 384 US 436,

125. Section 1 of the Fourteenth Amendment provides: 'All persons bom or

naturalized in the United States and subject to the jurisdiction thereof, are citizens

of the United States and of the State wherein they reside. No State shall make or

enforce any law which shall abridge the privileges or immunities of

citizens of the United States; nor shall any State deprive any person of life,

liberty, or property, without due process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.' And yet the case manager’s testimony

after the Court questioned him supports Mother’s position of the lack of Due

Process when the decision to move towards the termination of her parental rights

was made. Eisenstadt v. Baird, 405 U.S. 438 (1972) expresses that “If the right to

privacy means anything, it is the right of the individual, married or single, to be

free from unwarranted governmental intrusions into matters so fundamentally

13

affecting a person as the decision whether to bear or beget a child." To terminate

both parent's rights because of an interest in the termination of one’s creates an

unequal decision that does not protect Mother’s rights to the care, custody, and

control of her children which supports Mother’s position of her 14th Amendment

Right being violated due to the state’s interest to terminate the rights of another

party. Marriage, children, and family bonds are foundational to the founders of this

Nation.

In Santosky v. Kramer 455 US 745, the family questioned the constitutionality of

the preponderance of evidence needed to terminate the parent-child relationship.

Mother argues that her rights too were violated by the grounds that allow for

anything less than proof beyond a reasonable doubt to support the interest of the

state’s position to terminate her parental rights and sever the familial bond.

Considering those overturned events, Mother’s level of engagement and

participation throughout the case further exceeds those within ibid. A more recent

case reflects an Arizona Maricopa County Superior Court judgment made on the

same mother in re Ross v. Henry, FC2014-002472 for another child, M.R. Within

these proceedings, Mother provided a third psychological evaluation through an

agency not contracted with the department that determined her mental fitness and

ability to parent. In addition, Mother also had delivered the child with which she

was pregnant during her severance trial. Mother reported that both she her and

child, M.S., had tested negative on a toxicology screen at birth. Mother testified that

the department choose to remove the newborn for 27 hours and she was determined

14

safe to parent when the child was returned. In addition, Mother completed a hair

folic through an order of the family court which determined no use of medicinal

marijuana/THC within her system. Mother also indicated that she was not in a

romantic relationship with anyone. With the case listed ibid, there is proof beyond a

reasonable doubt that the appropriate evidence was never provided to the courts to

determine Mother’s true ability to parent, thus allowing the juvenile court to render

its decision to proceed with terminating Mother’s rights, see Stanley v. Illinois 405

US 645. As the state’s standards of dear and convincing evidence do not give

authority to take charge of any child over the objection of either parent of such

child, Social Security Act § 1101.6(d).

15

CONCLUSION

In conclusion, based on tbe numbers provided by Dr. Frank Edwards neglect is the

number one reason for child welfare involvement which typically stems from

poverty {Edwards, 2022). While there are children that need to be protected, there

are more families who need support. However, child welfare systems have managed

to create a form of oppression against families dining their most vulnerable times

(Merkei-Hoiguitt, et al, 2022). While the phenomenon seems to target those

minority-based groups, the numbers have shown that every family, no matter the

race, color, background, religion, or sen could possibly find themselves at the mercy

of our government agencies when it comes to the very thing our founding fathers

valued and protected under the United States Constitution and the Bill, of Bights.

With that, Mother prays that this court will bless her by granting certiorari to no

longer deprive one of their constitutional righto GhergepsU p« Hodges STS US 644.

Submitted on

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