Jamie R. v. ADES, et al

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE JAMIE R., ) ) ) ) ) ) ) ) ) ) ) ) ) ) Appellant, v. ARIZONA DEPARTMENT OF ECONOMIC SECURITY, N.R., A.R., S.R., APPELLEES. DIVISION ONE FILED: 11-30-2010 RUTH WILLINGHAM, ACTING CLERK BY: GH 1 CA-JV 10-0031 DEPARTMENT A MEMORANDUM DECISION (Not for Publication Ariz. R.P. Juv. Ct. 103(G); ARCAP 28) Appeal from the Superior Court in Maricopa County Cause No. JD504871 The Honorable Brian K. Ishikawa, Judge AFFIRMED Virginia Matte, Esq. Attorney for Appellant Phoenix Terry Goddard, Arizona Attorney General by Eric Devany, Assistant Attorney General Attorneys for Appellee Phoenix B A R K E R, Judge ¶1 court s Appellant order Jamie terminating children N., A., and S. R. ( Mother ) her parental appeals rights the to Finding no error, we affirm. juvenile her three Facts and Procedural History 1 ¶2 Mother is the biological mother of N., born June 2003; A., born January 2005; and S., born December 2006. S. was born, ( ADES ) was the Arizona notified amphetamines, Department that Mother barbiturates, and of had On the day Economic tested tricyclics. Security positive for Although the hospital was unable to test S. for the presence of drugs, S. exhibited symptoms discharge from consistent the hospital with on withdrawal. December 28, Upon 2006, S. s Mother voluntarily agreed to place N., A., and S. into temporary ADES custody. Thereafter, Mother refused to complete drug testing services required January 16, agreement. petition and by 2007, On N., Mother s custody. ADES as Mother January A., revoked 29, and part S. 2007, were of the placement, the voluntary ADES filed subsequently a and on placement dependency removed from On February 5, 2007, the juvenile court held a temporary custody hearing and ordered that the children be returned to Mother s custody. The court also ordered that Mother cooperate and participate in a MMPI evaluation (Minnesota Multiphasic Personality Inventory), a psychological evaluation, continued urinalysis ( UA ) tests and a hair follicle test. 1 We view the facts in the light most favorable to upholding the juvenile court s order. Manuel M. v. Ariz. Dep t of Econ. Sec., 218 Ariz. 205, 207, ¶ 2, 181 P.3d 1126, 1128 (App. 2008). 2 ¶3 Between February and April 2007, Mother failed to submit to nearly all required UA tests, and in February and March, Mother s hair follicle tests returned positive results for methamphetamine. found the children ( Father ). On dependent Thereafter, children in foster care. reunification. and April 23, as ADES 2007, to the Mother took juvenile and custody her and court husband placed the The case plan at that time was family In September 2008, it was changed to severance adoption after Mother failed to comply with services provided by ADES. ¶4 In February 2007, to address Mother s drug problem, ADES made a referral for Mother to receive services from TERROS. After the February referral was closed because of Mother s noncompliance and refusal of services, ADES made another referral in June 2007. Mother completed the TERROS assessment, but because she failed to comply with the resulting recommendations and to contact TERROS as requested, the July referral was also closed. In February 2008, ADES made its final referral to TERROS, which was closed in April 2008 because of Mother s noncompliance and lack of contact. ¶5 random ADES UA provided tests September 2008. from Mother the with hair beginning of follicle the tests dependency and to Mother s case manager reported that while the UA tests were being requested during 2007 and 2008, Mother was 3 only minimally compliant with the random screenings. She testified at the severance hearing that despite being told that missed UA tests would be viewed as a positive result, Mother missed approximately seventy-five UA tests during 2007. From January to July 2008, Mother failed to submit to UA testing thirty-three out of fifty-one required times and submitted to UA tests on seven occasions on which she was not required to do so. Mother s case manager reported that although Mother s tests had been negative since July 2007, she did not test with enough regularity or in strict enough compliance with the randomized schedule to provide clear evidence that she had not in fact been using drugs in between tests. Father admitted to police Additionally, in September 2008, that both he and Mother used methamphetamine. ¶6 ADES provided Mother with an MMPI evaluation in April 2007. The resulting recommendations were that Mother should receive parenting psychological supervised classes, evaluation, a parent-aide substance visitations. services, abuse Consistent a assessment with the full and MMPI recommendations, from July 2007 to November 2008, ADES provided Mother with three consecutive referrals to Children s Services for parent-aide services. Arizona Baptist These services included supervised visitations between Mother and her children, as well as weekly one-on-one 4 meetings to discuss various parenting topics such as childhood developmental milestones, proper nutrition, feeding, and discipline techniques. September 2007 and August 2008, fifty-four visits Between were made available for Mother and children to visit under the supervision of parent aides. appointments. Mother missed twenty of the fifty-four As a result, ADES requested Mother arrive an hour early to the visitation appointments. Mother responded that she would not comply. ¶7 With respect to the one-on-one training sessions with parent aides, Mother s case manager testified that after the first month, Mother s attendance at those sessions was sporadic, if at all and that Mother did not complete all of the homework assignments from the sessions she did attend. ¶8 ADES arranged for Mother to psychological evaluation on July 4, 2007. participate in a Despite being aware of the appointment date in advance, and that it coincided with a holiday, Mother did not cancel until the day of the appointment. Consequently, ADES made another referral for the evaluation in October 2007. From the results of that evaluation, it was recommended that Mother continue to receive drug testing and parent aid, and that she receive individual counseling, and attend either a specific anger-management-skills training group or dialectical behavior therapy ( DBT ). 5 ¶9 In response to these recommendations, ADES referred Mother to individual therapy, but Mother refused to participate. ADES referred Mother to attend anger management sessions, but Mother made various complaints objecting to necessity of the anger management services. the nature and Mother complained that she wanted individual anger management sessions in her home and not group sessions. ADES accommodated the request by making a referral for individual sessions. After Mother requested that a different agency provide the counseling, ADES referred her to Ameripsych. management three. did From January to May 2008, Mother attended two anger sessions, cancelled two, and failed to appear at Mother s anger management therapist reported that Mother not return her phone calls, not making progress, inconsistently, was motivated services. for Anger attended and did management counseling not services appear were discontinued in June 2008. ¶10 Mother s case manager testified at the severance hearing that Mother still had anger management issues and that she had seen Mother have outbursts of supervised, that would intimidate children. anger, even while The case manager further testified that she was concerned about what Mother might do if supervisors were not present to de-escalate the situation and ensure the safety of the children. 6 ¶11 At a permanency planning hearing in February 2008, Mother was ordered by the court to participate in DBT, which had been recommended previously and for which ADES made a referral. Mother did not participate comply. in a The bonding court also ordered assessment. Mother Mother s to original appointment with Dr. Moe was scheduled for May 16, 2008. Dr. Moe was later subpoenaed to testify in court on that date and was forced to cancel the appointment. Mother was not informed of not the cancellation, appointment. Mother did but she did show up for the The appointment was then changed to June 13, 2008. not appear for that appointment either. Because Mother had not appeared for two consecutive appointments, Dr. Moe did not schedule a third. ¶12 In shoplifting. arrested for April On 2008, Mother September stealing goods pled 11, guilty 2008, from a Mother to one and commercial count Father storage of were unit. Mother later pled guilty to one count of solicitation and was placed on probation for two years. ¶13 In September 2008, after changing the case plan from reunification to adoption and severance, ADES filed a motion to terminate Mother s and Father s parental rights, alleging two statutory grounds for termination. under Arizona (2007) that Revised Mother Statutes had As to Mother, ADES alleged ( A.R.S. ) substantially 7 section neglected 8-533(B)(8) or wilfully refused to remedy the circumstances which caused the children to be in an out-of-home placement for nine months or more. also alleged that Mother had been unable to ADES remedy the circumstances which caused the children to be in an out-of-home placement for substantial fifteen likelihood months or more that she and would that not there be was capable a of exercising proper effective parental care and control in the near future. ¶14 Following offer the reunification case-plan services. change, As they ADES had continued throughout to the dependency, ADES continued to arrange visits between Mother and children and, transportation. when available, Because ADES provide had concerns Mother about with Mother s income, Mother was provided day care for her other child so that she could look for stable employment. a housing subsidy if, among other ADES also offered Mother things, she could provide proof that she and Father had sufficient income to support the housing costs once the financial assistance ended. Although Mother s case manager requested documentation of employment more than once, Mother failed to provide it. ¶15 A contested severance hearing was held on five days between August and November 2009. At the commencement of the hearing, N., A., and S. had been in their respective foster homes continuously for approximately twenty-eight months. 8 On February 2, 2010, the juvenile court issued an order severing Mother s and Father s parental rights pursuant to A.R.S. §§ 8533(B)(8)(a) (nine months in care) and -533(B)(8)(c) (fifteen months in care). Mother timely appealed. We have jurisdiction pursuant to A.R.S. §§ 8-235(A) (2007), 12-120.21 (2003), and 122101(B) (2003). For the reasons stated below, we affirm. Discussion ¶16 Mother argues that the juvenile court erred in severing her parental rights pursuant to A.R.S. § 8-533(B)(8). In particular, Mother alleges that there was insufficient evidence to support the court s findings that (1) ADES made a diligent effort to provide appropriate reunification services, (2) Mother substantially neglected or wilfully refused to remedy the circumstances that caused her children to be in an out-ofhome placement for nine months or longer, 2 and (3) it was in the best interest of the children to sever Mother s rights. ¶17 On credibility appeal, we do determinations; not reweigh instead, we the evidence examine the or make record merely to determine whether there is reasonable evidence of the grounds for termination. Jesus M. v. Ariz. Dep t. of Econ. Sec., 203 Ariz. 278, 280, ¶ 4, 53 P.3d 203, 205 (App. 2002) 2 Mother also asserts insufficiency of evidence as to the fifteen months in care provision. A.R.S. § 8-533(B)(8)(c). We discuss this briefly in footnote 4, infra ¶ 26. 9 ( The juvenile 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. ); Audra T. v. Ariz. Dep t. of Econ. Sec., 194 Ariz. 376, 377, ¶ 2, 982 P.2d 1290, 1291 (App. 1998) (explaining that court s order findings are this court severing clearly will parental erroneous, not disturb rights that is, the juvenile unless its factual unless there is no reasonable evidence to support them. ). 1. Diligent Efforts to Provide Reunification Services ¶18 based In on order a to child s terminate placement the in parent-child out-of-home relationship care for nine months, the court must find that the agency responsible for the care of the appropriate child has reunification made a diligent services. effort A.R.S. § to provide 8-533(B)(8). ADES fulfills its obligation when it provides the parent the time and opportunity to participate in programs designed to help [him or her] become an effective parent. Maricopa County Juv. Action No. JS-501904, 180 Ariz. 348, 353, 884 P.2d 234, 239 (App. 1994). ADES is not required to provide every conceivable service or to undertake rehabilitative measures that are futile. Mary Ellen C., 193 Ariz. 185, 192, ¶¶ 34, 37, 971 P.2d 1046, 1053, (quoting JS-501904, 180 Ariz. at 353, 884 P.2d at 239.) 10 ¶19 Here, reasonable evidence supports the juvenile court s finding that ADES made a diligent effort to provide appropriate reunification services. In response to Mother s drug problem, ADES provided Mother with three separate referrals to TERROS and continuous drug testing from the beginning of the dependency until September 2008 when Mother s case manager said the tests were no longer necessary. In response to the MMPI evaluation, ADES provided Mother with a psychological evaluation and three consecutive referrals to parent-aide services, which included supervised visits and parenting skills classes. In response to the results of the psychological evaluation, ADES referred Mother to individual therapy and anger management sessions. ¶20 After provided Mother a permanency with a planning referral to appointments for a bonding assessment. hearing DBT was held, services and ADES two When ADES concluded that employment was an issue preventing reunification, ADES provided Mother with day care services to allow Mother to look for steady employment. When stable housing became an issue, ADES offered Mother a housing subsidy on condition that she could demonstrate the ability throughout to afford the housing the entire dependency, in the Mother future. was Finally, provided with regular visits with her children and, when available, was given transportation to those visits. Thus, we conclude that there is 11 sufficient evidence to support the juvenile court s finding that ADES was diligent in offering appropriate reunification services. 2. Substantial Neglect or Wilful Refusal to Remedy Circumstances ¶21 In order to terminate the parent-child relationship based on a child s placement in out-of-home care for nine months or more, the court must find that the parent has substantially neglected or wilfully refused to remedy the circumstances that cause the child to be in an out-of-home placement. 533(B)(8)(a). completely Termination is not limited to those who have neglected circumstances. Ariz. 571, A.R.S. § 8- 576, or wilfully refused to remedy such Maricopa County Juv. Action No. JS-501568, 177 869 P.2d 1224, 1229 (App. 1994). We have construed § 8-533(B)(8) to mean those circumstances existing at the time of the severance that prevent a parent from being able to appropriately provide for his or her children. Marina P. v. Ariz. Dep't. of Econ. Sec., 214 Ariz. 326, 330, ¶ 22, 152 P.3d, 1209, 1213 (App. 2007). ¶22 Here, sufficient evidence supports the juvenile court s finding of substantial neglect or wilful refusal under § 8-533(B)(8)(a). At trial, the case manager mother s drug history was still significant. 3 3 Q. testified that Mother had three The exact language was as follows: What would you say about the parents drug history? 12 TERROS referrals closed due to non-compliance. She also failed to comply with random UA testing to such a degree that her case manager reported that Mother had essentially created her own schedule and that no clear evidence existed to show that she had not used drugs in between tests. missed test would be viewed Despite being informed that a as a positive chronically missed her required UA tests. result, Mother Moreover, despite Mother s negative test results during 2008, Father told police that he and Mother were still using also evidence methamphetamine as of September 2008. ¶23 There neglected was parent-aide Children s Services. supervised Services. also visits services that offered Mother by substantially Arizona Baptist Mother missed twenty of the fifty-four offered by Arizona Baptist Children s Her attendance at the weekly parent-aide meetings was sporadic, and she did not complete all the homework assigned for the classes she did attend. ¶24 After ADES attempted to accommodate Mother s requests for the anger management classes, Mother still attended only two classes, cancelled two, and simply failed to appear at three. Her therapist reported that Mother would not return her phone A. . . . . I would say it would be significant. There has never been consistent tests that have proven otherwise. 13 calls, that no progress was being made, and that mother did not appear motivated instances in for which services. Mother had All this become so occurred angry in despite front of supervisors that her case manager was concerned for the safety of the children if they were returned. ¶25 Mother also failed to comply with the court s orders at the February 2008 permanency planning hearing. She did not participate in DBT services and failed to appear at both bonding assessment appointments. At the hearing, Mother was also told that she needed to find stable housing. Despite this, between the permanency planning hearing and the end of the severance hearing, Mother had lived in at least six different locations. ¶26 Mother s case manager reported that Mother had been resistant to participating in the case plan and seem[ed] to believe that the services that she ha[d] participate in [were] not warranted. been asked to The case manager also stated that Mother [had] made little to no effort in regards to the services foregoing, we [ADES had] conclude offered that to [her]. sufficient evidence Based on the supports the juvenile court s finding that Mother substantially neglected or wilfully refused to remedy the circumstances that caused her 14 children to be in an out-of-home placement for more than nine months. 4 3. Children s Best Interests ¶27 To prove that termination is in the children s best interests, ADES must present credible evidence showing by a preponderance of the evidence that the children would benefit from a severance relationship. or be harmed by the continuation of the Lawrence R. v. Ariz. Dep t of Econ. Sec., 217 Ariz. 585, 587, ¶¶ 7, 8, 177 P.3d 327, 329 (App. 2008) (quoting Mary Lou C. v. Ariz. Dep t of Econ. Sec., 207 Ariz. 43, 50, ¶ 19, 83 P.3d 43, 50 (App. 2004)). ADES may satisfy this burden by presenting credible evidence that the child is adoptable. Id. at ¶ 8. The trier of fact is not required to terminate upon a finding that a child is adoptable, but it is within the fact finder s discretion to terminate on that basis alone. Id. at 588, ¶ 11, 177 P.3d at 330; Mary Lou C., 207 Ariz. at 50, ¶ 19, 83 P.3d at 50 ( The best interest requirement may be met if, for example, the petitioner proves that a current adoptive plan exists for the child or even that the child is adoptable. ) (citation omitted). 4 We need not address Mother s additional arguments that severance was inappropriate pursuant to A.R.S. § 8-533(B)(8)(c) (fifteen months), because proof of only one statutory ground for severance is needed to uphold the juvenile court s order. A.R.S. § 8-533(B). However, the facts that support severance under A.R.S. § 8-533(B)(8)(a) also support severance under § 8533(B)(8)(c). 15 ¶28 Here, the case manager testified that the children had spent the past twenty-eight months, and the majority of their lives, in foster care. Of S. s thirty-two months of life - as of the time of the severance hearing - she had spent twenty-nine months in ADES custody. A. had spent forty out of fifty-five months in foster care. And N. had spent fifty-four out of seventy-two months in the same foster home. Additionally, N. s foster mother testified that N. was very attached to her and that she was willing to adopt him. When N. s foster mother was asked if she would maintain contact between N., A., and S., she stated that she was very committed to making sure they re always a part of each other s life. ¶29 Mother s case manager testified that the severance would provide the children with the stability and structure that they needed. she would She stated that even if the severance were denied, recommend placements for the another housing and employment. children year while stay in Mother their out-of-home demonstrated stable Moreover, because it was established that this was not the first dependency for Mother, there was evidence that if the children were returned, they might be removed again at a later time. ¶30 Evidence was also presented that living with Mother might expose the children to crime, drugs, and violence. In September of 2008, after having pled 16 guilty to one count shoplifting, Mother was arrested for stealing goods from a commercial storage unit and was placed on two-years probation. Despite Mother s testing clean for drugs, evidence showed that methamphetamine continued to be an issue. Finally, Mother s case manager testified that because of Mother s unresolved anger issues, she was concerned about what Mother might do without supervisors present to ensure the safety of the children. In light of the above facts, we conclude that sufficient evidence supports the juvenile court s finding that termination was in the best interests of the children. Conclusion ¶31 Finding sufficient evidence to support the termination of Mother s parental rights, we affirm. /s/ __________________________________ DANIEL A. BARKER, Judge CONCURRING: /s/ ____________________________________ DONN KESSLER, Presiding Judge /s/ ___________________________________ JON W. THOMPSON, Judge 17

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