Shannon T. v. ADES, Connor T.

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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 SHANNON T., ) ) Appellant, ) ) v. ) ) ARIZONA DEPARTMENT OF ECONOMIC ) SECURITY, CONNOR T., ) ) Appellees. ) ) __________________________________) DIVISION ONE FILED: 12/28/2010 RUTH WILLINGHAM, ACTING CLERK BY: GH No. 1 CA-JV 10-0083 DEPARTMENT E MEMORANDUM DECISION (Not for Publication 103(G) Ariz. R.P. Juv. Ct.; Rule 28 ARCAP) Appeal from the Superior Court in Maricopa County Cause No. JD16384 The Honorable Samuel A. Thumma, Judge AFFIRMED Robert D. Rosanelli Attorney for Appellant Mother Phoenix Terry Goddard, Attorney General By Amanda Holguin, Assistant Attorney General Attorneys for Appellee Phoenix S W A N N, Judge ¶1 court s Shannon order T. ( mother ) terminating following reasons, we affirm. her appeals parental from the rights. juvenile For the FACTS AND PROCEDURAL HISTORY1 ¶2 In December 2006, mother was observed violently shaking one-and-a-half year old C.T. and biting him on the cheek hard enough to leave a mark. The Protective Services ( CPS ) investigated. police and Child The result of the CPS investigation was "unsubstantiated" but CPS nonetheless provided family preservation services to C.T. s mother and parents. Mother was charged with child abuse. ¶3 In August 2007, father asked father s cousin Deanna R., a licensed foster care provider, to take C.T. for the weekend because a no-contact order against mother due to her criminal charges. that the order following Monday. would be resolved at a had been placed Mother told Deanna hearing set for the C.T. cried all the way to Deanna s home and had a hard time the first couple of days. He threw things and hit his face on the couch until his nose bled when he was put in "time out". When the weekend visit turned into a week, Deanna called CPS to make sure everything was okay and let them know where [C.T.] was placed. ¶4 CPS told her that was fine. In January 2008, Deanna filed a dependency petition and alleged that mother was unable to parent C.T. because the 1 We review the facts in the light most favorable to affirming the juvenile court s order. Denise R. v. Ariz. Dep t of Econ. Sec., 221 Ariz. 92, 95, ¶ 10, 210 P.3d 1263, 1266 (App. 2009). 2 no-contact counsel order for remained C.T. and place.2 in mother, temporary physical custody. and The placed court C.T. appointed in Deanna s The parties agreed to dismiss the petition pending the outcome of mother s criminal trial, and mother agreed to leave C.T. in Deanna s custody. Deanna sought counseling for C.T. because he hit or bit himself when stressed, awakened every 20 to 30 minutes throughout the night, and exhibited inappropriate sexual behaviors. ¶5 and In May 2008, Deanna filed a second dependency petition alleged criminal trial apartment. placed mother and The him in was unable because court to she appointed Deanna s temporary parent had due been counsel an evicted for physical to C.T. upcoming from and custody. her again At the initial dependency hearing, the Arizona Department of Economic Security ( ADES ) moved to substitute itself as petitioner. The court granted ADES s motion, appointed counsel for mother, and made C.T. a temporary ward of ADES. ADES filed an amended dependency petition, which mother contested. During a September mediation with ADES, mother agreed to participate in parent aide services, a psychological substance abuse testing, evaluation, and supervised 2 individual visitation counseling, with C.T. The petition also alleged C.T. s father was unable to parent. Father s parental rights were later terminated, but he does not join in this appeal so we reference him only as necessary to develop the issues in mother s appeal. 3 The case plan called for family reunification. dependency was submitted to the court, The issue of which found by a preponderance of evidence that C.T. was dependent as to mother. ¶6 In August 2008, mother pleaded guilty to aggravated assault for the events of December 2006. three years probation. with C.T. was officer. She was sentenced to Under the terms of probation, contact prohibited unless approved by her probation Mother was also required to participate in substance abuse and parenting counseling. ¶7 In October 2008, psychological examination. was 73. mother participated in a Testing demonstrated her overall IQ The psychologist opined that this borderline range of intelligence indicated that she would have difficulty acquiring new information and generalizing what information she does have to new situations. The assessment evidenced depressive and personality disorders, including borderline and dependent traits that indicated impulsivity and intense anger responses. The psychologist opined that mother would have trouble focusing on her child s needs. Mother reported a history of drug abuse with five months of abstinence, and the psychologist rated moderately high. her potential for relapse at moderate to The psychologist indicated a risk of abuse if C.T. was placed in mother s care due to mother s history of aggressive responses, depression 4 and substance abuse. He recommended that mother participate in individual psychotherapy, a psychiatric evaluation, anger management skills training, and further parent skills training. ¶8 In ( CASA ) March 2009, reported a that Court C.T. Appointed had: Special significant Advocate emotional, behavioral and medical needs that required 2-4 appointments per week with therapists and counselors ; significant environmental allergies; asthma; left-side weakness in his arm, hand, and foot, for which he received physical and occupational therapy; and visual impairments. C.T. exhibited sleep After visits with his parents, difficulty, excessive aggression, including smearing of feces. clinginess, and The CASA reported that both parents had an inconsistent history of following through with services and expressed concern that C.T. would be at risk for physical harm if returned to his parents. She recommended that the primary case plan goal be severance and adoption. The ADES case manager reported that mother was unable to meet C.T. s specialized needs and also recommended that the case plan be changed to severance and adoption. ¶9 The court agreed with the recommendation and ADES moved to terminate mother s parental rights pursuant to: - A.R.S. §§ 8-201(2) and -533(B)(2), alleging that mother willfully abused C.T. in December 2006; 5 A.R.S. § 8-533(B)(3), alleging that mother was unable to discharge her parental responsibilities because of mental illness and reasonable grounds existed to believe that the condition would continue for a prolonged indeterminate period; - A.R.S. § 8-533(B)(8)(a), alleging that C.T. had been in an out-of-home placement for a cumulative period of nine months or longer and mother had substantially neglected or willfully refused to remedy the circumstances that caused the out-ofhome placement; and - A.R.S. § 8-533(B)(8)(c), alleging that C.T. had been in an out-of-home placement for fifteen months or longer, that mother had been unable to remedy the circumstances that caused the child to be placed out-of-home, substantial incapable likelihood of exercising and that there existed a mother would be proper and effective parental care and control of C.T. in the near future. ¶10 Following a seven-day contested severance hearing, the court entered a 26-page Under Advisement Ruling that terminated mother s parental rights pursuant to A.R.S. § 8-533(B)(8)(a) and (c), but denied ADES S motion to terminate based on abuse and 6 mental illness. Mother timely appeals. We have jurisdiction pursuant to A.R.S. §§ 8-235, 12-120.21(A)(1), and -2101(B). DISCUSSION ¶11 Mother insufficient asserts evidence to that support (1) the the record trial contains court s finding pursuant to A.R.S. § 8-533(B)(8)(a), and (2) that the trial court s finding pursuant to A.R.S. § 8-533(B)(8)(c) was clearly erroneous and contrary to the substantial evidence in the record. ¶12 To terminate parental rights, a juvenile court must first find by clear and convincing evidence the existence of at least one statutory ground for termination.3 See A.R.S. § 8533(B); Ariz. R.P. Juv. Ct. 66(C). Clear and convincing evidence is that which makes the alleged facts highly probable or reasonably certain. P.3d at 1264. Denise R., 221 Ariz. at 93, ¶ 2, 210 We will not reverse a termination order unless it is clearly erroneous. Jennifer B. v. Ariz. Dep t of Econ. Sec., 189 Ariz. 553, 555, 944 P.2d 68, 70 (App. 1997). 3 The court must also find by a preponderance of the evidence that the termination is in the best interests of the child. A.R.S. § 8-533(B); Kent K. v. Bobby M., 210 Ariz. 279, 288, ¶ 41, 110 P.3d 1013, 1022 (2005). Mother does not contest the court s best interest finding, so we do not consider that issue. See Schabel v. Deer Valley Unified Sch. Dist. No. 97, 186 Ariz. 161, 167, 920 P.2d 41, 47 (App. 1996) ( Issues not clearly raised and argued in a party s appellate brief are waived. ). 7 I. A.R.S. § 8-533(B)(8)(a) ¶13 Mother contends that she participated in all services referred by ADES except the best interest/bonding assessment and that with [t]his type of cooperation the trial court could not have reasonably determined that she substantially neglected or willfully refused to remedy the circumstances which caused C.T. s out-of-home placement.4 ¶14 terminated Section 8-533(B)(8)(a) allows parental rights to be when ADES makes a diligent effort to provide appropriate reunification services, the child has been in an out-of-home placement for nine months or longer, and the parent has substantially neglected or willfully refused to remedy the circumstances that caused the out-of-home placement. [P]arents who make appreciable, good faith efforts to comply with remedial programs outlined by ADES will not be found to have substantially neglected to remedy the circumstances that caused out-of-home placement, even if they cannot completely overcome their difficulties. Maricopa County Juv. Action No. JS-501568, 177 Ariz. 571, 576, 869 P.2d 1224, 1229 (App. 1994). But when parents make only sporadic, aborted attempts to remedy the circumstances causing the out-of-home placement, a trial court 4 Mother does not challenge ADES s efforts in providing services or the length of C.T. s out-of-home placement. We therefore do not discuss these issues. See Schabel, 186 Ariz. at 167, 920 P.2d at 47. 8 is well within its discretion in finding substantial neglect and terminating parental rights on that basis. Id. [C]ompliance under [§ 8-533(B)(8)(a)] sufficient to avoid severance requires, at a minimum, something more than trivial or de minimis efforts at remediation. Id. at n.1. ¶15 The assertion record that she here, however, participated in contradicts services mother s and instead demonstrates that she: - Failed to complete parenting skills sessions; - Completed an intake for individual counseling, but failed to attend subsequent appointments and attended her first counseling session one month before the service referral was set to expire; - Attended seven of nine group substance abuse - Failed to maintain stable housing; - Missed nine supervised visits between September sessions; 2008 and January 2009, including three no-shows; - Failed to participate in Child and Family Team - Refused to participate in the bonding assessment meetings; without the presence of legal counsel or the guardian ad litem to protect her. 9 ¶16 Mother s lack of follow-through was noted throughout the record. For example, a March 2009 CASA report summarized that both parents seem to have difficulty applying what they have been taught in their parenting classes to their interactions with [C.T.]. They seem unable or unwilling to make changes in their lives to support [C.T. s] return. They have an inconsistent history of following through with recommended and required services. They have emotional and psychological needs and have been inconsistent in seeking treatment for them. They have missed urine tests, counseling, sessions, visits with [C.T.] and frequently place blame for these failures on the system. ¶17 During the severance hearing, mother testified that she originally refused to participate in counseling because she believed she participate did in not need it. Although she counseling, one psychologist did eventually testified at the severance hearing that her issues would have required lengthier treatment than what she did because [s]he has a personality disorder; and by nature, personality disorders are enduring. That personality disorder, he opined, posed a risk of physical abuse to C.T. that would continue to be a risk if [mother] were to parent C.T. ¶18 completed Mother and also testified offered participate in others. about explanations the for services her she had failure to On appeal, however, we do not reweigh 10 evidence; rather, we consider whether the court had before it evidence upon which an unprejudiced mind might reasonably have reached the same conclusion. 210 P.3d at 1265. We conclude evidence substantial determine Denise R., 221 Ariz. at 94, ¶ 6, upon which that mother that the substantially this court record could neglected to contains reasonably remedy the circumstances that caused C.T. s out-of-home placement. II. A.R.S. § 8-533(B)(8)(c) ¶19 Mother asserts the trial court erred because the only condition she had not remedied was C.T. s special needs and that no credible evidence in the record supported the court s finding that she would be unable to effectively parent in the near future. ¶20 Section 8-533(B)(8)(c) allows parental rights to be terminated when ADES makes a diligent effort to provide appropriate reunification services, the child has been in an out-of-home placement for a cumulative period of fifteen months or longer, the parent has been unable to remedy the circumstances that caused the 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. ¶21 In this section of her brief, mother merely asserts facts, without citation to the record, to support her contention 11 that she has attempted to put herself in a position to better parent C.T.; her only cited legal authority is A.R.S. § 8533(B)(8)(c). We will not consider arguments posited without authority. Cullum v. Cullum, 215 Ariz. 352, 355 n.5, ¶ 14, 160 P.3d 231, 234 n.5 (App. 2007). A party must present significant arguments, set forth his or her position on the issues raised, and include citations to relevant portions of the record. present an argument authorities, See ARCAP 13(a)(6). in this manner statutes, The failure to usually abandonment and a waiver of that issue. and constitutes State v. Moody, 208 Ariz. 424, 452 n.9, ¶ 101, 94 P.3d 1119, 1147 n.9 (2004). ¶22 Mother terminated needs.5 her implies parental that the only reason rights is because C.T. the has court special In fact, the record provides substantial evidence for termination based on A.R.S. § 8-533(B)(8)(c). As we discussed supra, the failure to substantial record contains participate evidence in that substantial services. mother evidence But was unable details that mother made some contains to parent even when she did participate in services. record mother s also it of effectively Although the progress during individual counseling sessions and was able to admit her poor 5 The record indicates that C.T. had significant emotional, behavioral and medical needs. One psychologist testified that C.T. had high needs that required secure caregiving relationships that are responsive to his needs. 12 parenting decision to bite her infant son s cheek, it also noted that she was unable to accept responsibility for other parent problems such necessities. as providing a stable home and other basic She saw herself as a victim and often justified her lack of foresight, lack of emotional regulation and personal responsibilities as beyond her control. A case manager noted that even though mother knew of C.T. s specific allergies to oranges, cranberries containing those and items nuts, [o]n she several provided him occasions. snacks The CASA reported that mother made comments that indicate doubts about the significance of C.T. s needs. ¶23 Almost a year after mother agreed to participate in services, the CASA reported that the pattern of behavior during parent-child visitation had not improved and that there was almost no interaction between the parents and C.T. during the visits. This lack of interaction had not resolved in January 2010, when a case manager noted that C.T. and mother watched television during physical contact. behavior continued their visits, January to sitting 2010 escalate side-by-side reports after noted parent that with no C.T. s visits, and daycare and preschool teachers reported that he was hitting, pushing, stealing, vomiting on the days after parent visits. ¶24 record Finally, contrary to mother s assertion otherwise, the does contain evidence that mother would be unable to 13 effectively parent in the near future. In addition to numerous reports from case managers, the CASA, and service providers that detailed mother s ineffective parenting skills, three psychologists involved with the case specifically testified that mother would be unable foreseeable future. to weigh the to effectively parent C.T. in the The juvenile court was in the best position evidence, observe the parties, judge credibility of witnesses, and make appropriate findings. the Jesus M. v. Ariz. Dep t of Econ. Sec., 203 Ariz. 278, 280, ¶ 4, 53 P.3d 203, 205 (App. 2002). CONCLUSION ¶25 For the foregoing reasons, we affirm the termination of mother s parental rights. /s/ ___________________________________ PETER B. SWANN, Judge CONCURRING: /s/ ____________________________________ PHILIP HALL, Presiding Judge /s/ ____________________________________ SHELDON H. WEISBERG, Judge 14

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