Tina P. 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 DIVISION ONE FILED: 07/21/2011 RUTH A. WILLINGHAM, CLERK BY: DLL IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE TINA P., Appellant, v. ARIZONA DEPARTMENT OF ECONOMIC SECURITY, ASHLYNN F. and ANAKIN F., Appellees. ) ) ) ) ) ) ) ) ) ) ) ) No. 1 CA-JV 11-0042 DEPARTMENT D MEMORANDUM DECISION (Not for Publication – Ariz. R.P. Juv. Ct. 103(G); ARCAP 28) Appeal from the Superior Court in Maricopa County Cause No. JD 17819 The Honorable Dawn M. Bergin, Judge AFFIRMED John L. Popilek, P.C. By John L. Popilek Attorney for Appellant Scottsdale Thomas C. Horne, Attorney General Phoenix By Michael F. Valenzuela, Assistant Attorney General Attorneys for Arizona Department of Economic Security H A L L, Judge ¶1 Tina P. (Mother) appeals the juvenile court’s order terminating her parental rights to her two children.1 For the following reasons, we affirm. FACTUAL2 AND PROCEDURAL BACKGROUND ¶2 Mother is the biological parent of A.S.F. and A.J.F. (collectively, the 2007, respectively. children), born August 2001 and September In February 2009, Child Protective Services (CPS) received a report that [M]other was having a mental breakdown. Mother was yelling at herself and others and stating that she wanted to kill herself or someone else. There [were] concerns that while Mother was having this breakdown, . . . no one was caring for the children. [A.S.F.] was caring for [A.J.F.] and it appear[ed] that she care[d] for [A.J.F.] consistently. The home was cluttered with trash and dirty clothing. Due to the increasing domestic violence in which the children [were] witness to as well as mother’s increasing erratic behaviors, the children were taken into custody.3 ¶3 On March 3, 2009, Mother’s “behavior became out of control” during a CPS meeting. Mother threatened one counselor and attempted to throw a basket at another counselor. She then 1 The parental rights of the children’s father, Joseph F., have also been terminated, but he is not a party to this appeal. 2 We review the evidence and draw all reasonable inferences in the light most favorable to upholding the juvenile court’s factual findings. Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 282, ¶ 13, 53 P.3d 203, 207 (App. 2002). 3 CPS had received multiple reports prior to removing the children from the home of “neglect, an unfit home, increasing domestic violence, including in front of the children, and erratic behaviors by [M]other.” 2 “attacked [] her sister, by pulling her hair and dragging her to the floor. She then began yelling and screaming.” Mother’s brother attempted to restrain her and while he was doing so, “her pants fell down [and Mother] started to yell, ‘Help, he’s raping me!’” The police were called for assistance and Mother “threatened to cut the [CPS specialist’s] head off and rip her face off” Department in petition, front of of the Economic alleging that police. Security Mother Thereafter, (ADES) was filed unable mental-health issues and domestic violence. to the a Arizona dependency parent due to The juvenile court granted ADES’s dependency petition, made the children wards of the court, committed them to the care, custody, and control of ADES, and changed physical custody of the children to their paternal aunt. ¶4 been Mother has a long history of mental illness and has diagnosed with several differing disorders, such as schizoaffective disorder, bipolar disorder, adjustment disorder, borderline personality disorder, post traumatic stress disorder, and major depression. Kathryn Menendez, Ph.D., conducted a psychological examination of Mother in April 2009 and concluded that Mother “presented as confused and contradicted herself and provided irrational responses to the examination.” Dr. Menendez also found that Mother “does not appear to have the emotional resources by which to compensate 3 and create a healthy, functional factors lifestyle that for would her children” indirectly emotional abuse of a child.” cause and has “personality physical, sexual or She diagnosed Mother with “R/O Prescriptive Drug Abuse, R/O Bipolar Disorder, [Not otherwise specified], Personality Disorder, [Not otherwise specified], with Passive/Aggressive Traits.” ¶5 In June or July 2009, Mother was hospitalized for one month at a mental-health facility “due to violent outbursts, non-compliance with psychiatric treatment and threats of hurting herself and others.” From September 2009 to April 2010, Mother received housing, medication monitoring, and counseling from a behavioral health agency. Mother was evicted from the agency after she threatened to “shoot her brains out” if a specific male staff member did not speak with her. The agency ultimately obtained Mother a restraining order against because she continued to stalk and threaten the same staff member. ¶6 Mother including staples cutting in attempted her February to wrists 2010. commit so deep suicide she Additionally, several required in May times, multiple 2010, she overdosed on methamphetamines and was placed on life support for five days, where she tested positive for marijuana, amphetamines and opiates. Mother “head-butted a nurse and had to be placed in restraints” during the May 2010 hospitalization. 4 ¶7 Mother began counseling at Phoenix Interfaith in May 2010 and has sporadically participated in dialectical behavioral therapy for borderline personality disorder. ¶8 Mother was arrested and incarcerated for shoplifting, aggravated assault, and resisting arrest in September 2010. “She assaulted the police officer, kicked the doors and windows of the police car, banged her head stripped some of her clothing off.” against the window and She pled no contest to attempted aggravated assault and shoplifting, was sentenced to three years of probation, and released from jail in December 2010. ¶9 To parent Mother facilitate aide family reunification, services, a ADES psychological offered evaluation, medications, medication monitoring, counseling, transportation, and visitations with the children. Mother was only partially compliant with services and “continuously cancelled” counseling appointments. with CPS, violence She also failed to: regularly maintain contact participate counseling, in individual comply with counseling mental-health and domestic services, and Mother was cooperate with the parent aide. ¶10 A parent aide informed CPS that “inappropriate with the children during visits. speak in a loud voice, interrogate statements about their health. them and She would cry, make alarming The children displayed fear of 5 her.” As a result, CPS specialist Elishah Montijo consulted with Dr. Menendez in October 2010, who concluded that Mother “continues to maintain hostile, irrational, and threatening contact with [Montijo and] the child[ren’s] safety cannot be guaranteed. child[ren] It is believed that contact would be harmful to the based on [Mother’s] past and current behavior. Visits are not appropriate at this time.” ¶11 The Foster Care Review Board (FCRB) determined that the children’s out-of-home placement was “necessary” and “safe, appropriate and least restrictive.” The FCRB noted it was “pleased” the case was progressing towards permanency for the children in the form of severance and adoption. ¶12 In May 2010, ADES moved for termination of the parent- child relationship between Mother and the children. was based on Mother’s responsibilities inability because of mental to discharge illness, The motion her and parental the children being in an out-of-home placement for nine months or longer and fifteen months or longer. The court changed the case plan to severance and adoption. ¶13 The juvenile court hearing in January 2011. conducted a contested Mother testified that she was not financially able to provide for the children. she had disorder. originally According been to severance misdiagnosed Mother, 6 she with was She stated that schizoaffective diagnosed with borderline personality disorder in September 2010 and her medications and therapy changed to reflect the new diagnosis.4 She said that the new regime of therapy and medications have helped her immensely and she was voluntarily residing in an 18hour residential treatment facility. ¶14 were CPS “doing specialist very well” Montijo in testified their placement that the children and she believed severance and adoption was in the children’s best interests. She elaborated that “[t]he children have been in care almost two years. were They do need stability and permanency. not in a –- a healthy, safe The children environment [Mother], and they just need the stability now.” before with Montijo stated that the children were adoptable and their paternal aunt was willing to adopt them. Finally, Montijo testified that she did not believe that Mother could adequately parent the children at that time. ¶15 The juvenile court found two grounds terminating Mother’s rights to the children. ruled that Mother was “unable to discharge existed for First, the court [her] parental responsibilities because of mental illness” and “there [were] reasonable grounds to believe that the condition will continue 4 This statement is inaccurate because Mother received this diagnosis in May 2010 and began the new therapy at that time. 7 for a prolonged indeterminate period of time.” (A.R.S.) § 8-533(B)(3) (2007). Ariz. Rev. Stat. The court stated that: Mother’s severe mental illness is long-standing and well documented. The behaviors caused by the mental illness present serious risks to her children and others. Unfortunately, mother has not always been compliant with her court-ordered treatment, and it appears to this Court that her mental health professionals have yet to find a successful medication regimen for her. Although [M]other believes she now has an accurate diagnosis and appropriate medications, she continues to reside at a facility with 18-hour per day on-site staff and she has only just restarted counseling. Given [M]other’s long history of mental illness, her significant diagnoses, the high level of required care and the fact that her illness has not abated or improved, there are reasonable grounds her condition will continue for a prolonged indeterminate period of time. ¶16 Second, the court found that the children had been in an out-of-home placement for fifteen months or longer, Mother was unable to remedy the circumstances that caused them to be in an out-of-home placement, and there was a substantial likelihood that Mother would not be capable of exercising proper effective parental care and control in the near future. § 8-533(B)(8)(c). and A.R.S. The court added that Mother’s “mental illness preclude[d] her from being able to care for her children. In addition, [M]other [could not] financially support the children and she ha[d] no housing available for them. The Court [saw] no prospect for [M]other being able to change those circumstances in the near future.” 8 ¶17 The court found that the children were adoptable. They had been living with their aunt for twenty months and she wanted to adopt them. The children “made tremendous progress with [their aunt] and [we]re very bonded to her.” The court stated that although Mother “truly love[d] her children, . . . [the children] need[ed] permanency and stability, and unfortunately, [M]other [was] unable to provide either.” The court concluded that it was in the children’s best interest to terminate the parent-child relationship with Mother and severed Mother’s parental rights to the children.5 ¶18 Mother timely appealed and argued the juvenile court erred by: (1) failing to differentiate Mother’s mental-health prognosis based upon her change in diagnosis, treatment, and medication; (2) concluding that Mother’s voluntary decision to reside in the Toby House was evidence of her mental unfitness; (3) failing to continue the matter for at least a brief period of time to determine the effectiveness of Mother’s new treatment; (4) terminating Mother’s rights under A.R.S. § 8533(B)(8)(c). Mother also argues she was denied effective assistance of counsel. 5 Mother does not challenge the juvenile court’s best interest finding and we will therefore not address it on appeal. 9 ¶19 We have jurisdiction under A.R.S. § 8-235 (2007) and 12-120.21 (2003) and Arizona Rule of Procedure for the Juvenile Court 103(A). DISCUSSION ¶20 The relationship evidence severance juvenile only court upon demonstrates and that may finding at a terminate that least one preponderance the clear parent-child and statutory of severance is in the child’s best interest. the convincing ground evidence for shows A.R.S. § 8-533(B); Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 22, 110 P.3d 1013, 1018 (2005). We will affirm the judgment unless the juvenile court abused its discretion by making “factual findings [that] are clearly erroneous[;] that is, unless there is no reasonable evidence to support them.” Audra T. v. Ariz. Dep’t of Econ. Sec., 194 Ariz. 376, 377, ¶ 2, 982 P.2d 1290, 1291 (App. 1998) (citations omitted). have made every “[T]he juvenile court will be deemed to finding necessary to support the judgment.” Maricopa County Juv. Action No. JS-8287, 171 Ariz. 104, 111, 828 P.2d 1245, 1252 (App. 1991) (citations omitted). ¶21 Because termination is warranted upon a finding of any one of the grounds listed in A.R.S. § 8-533(B), we need examine only whether ADES presented evidence grounds relied on by the court. 10 to support one of the Jesus M., 203 Ariz. at 280, ¶ 3, 53 P.3d at 205. We commence our review with the juvenile court’s mental-illness findings. ¶22 Pursuant to A.R.S. § 8-533(B)(3), the juvenile court was authorized findings that to (1) terminate she was Mother’s unable to parental rights discharge her upon parental responsibilities due to mental illness or mental deficiency and (2) reasonable grounds existed to believe her condition would “continue for a prolonged indeterminate period.” ¶23 Mother first contends that the juvenile court erred by failing to differentiate her mental-health prognosis based on her change in diagnosis, treatment, and medication. Mother started her new therapy in May 2010 and her new medication in September 2010. Mother testified at the January 2011 termination hearing that she believed she was benefitting from the new treatment regime and medication; she argues on appeal that “there was no competent testimony to the contrary.” disagree. We In October 2010, Dr. Menendez recommended ceasing all visitations between Mother and the children because “contact would be harmful to the child[ren] based on [Mother’s] past and current behavior.” January 2011 that Further, CPS specialist Montijo testified in Mother could not adequately parent the children and she did not provide a safe, healthy environment for them. Mother failed to submit any evidence to the juvenile court that her current regime of therapy and medications not 11 only improved her mental health, but resolved her severe mentalhealth issues to the point that she was capable of safely and adequately caring for her children. to cite to requires this the court juvenile any case court to diagnoses and treatments of whole. The record replete is Additionally, Mother failed law or only Mother law consider and with inability to care for her children. statutory the not record the evidence of that current as a Mother’s She attempted to commit suicide at least twice; she abused drugs; she engaged in violent behavior on repeated occasions and threatened and physically assaulted the police, mental-health professionals, and family members; she was non-compliant with ADES services; she acted inappropriately with her children and has long-standing, extreme mental-health problems. We defer to the juvenile court’s ruling and its weighing of the evidence. Ariz. Dep’t of Econ. Sec. v. Oscar O., 209 Ariz. 332, 334, ¶ 4, 100 P.3d 943, 945 (App. 2004) (“A juvenile proceeding is court in as the the best trier of position fact to in weigh a termination the evidence, observe the parties, judge the credibility of witnesses, and resolve disputed facts.”). ¶24 that Next, Mother argues that the court erred in concluding her facility decision was to evidence voluntarily of her reside mental in a unfitness. mental-health The court mentioned Mother’s current residence in an 18-hour per day on- 12 site staff mental-health facility in its ruling pertaining to A.R.S. § 8-533(B)(8)(3). Despite Mother’s contentions that the court should not have considered her decision to voluntarily enter the facility, it is very significant that Mother was residing in such a facility while contesting the termination of parental rights. health services Although Mother’s efforts to obtain mentalwas commendable, nevertheless, her voluntary stay at the mental-health facility demonstrated, in part, that at least at the time of trial, she could not provide the proper housing for the children and that she was not capable of living on her own and caring for herself, let financially providing for two children. alone caring and Again, the juvenile court is in the best position to weigh the evidence. 209 Ariz. at 334, ¶ 4, 100 P.3d at 945. Oscar O., Thus, the court’s decision to mention Mother’s current residence in its ruling was not error, but one of the circumstances that the court properly considered in evaluating Mother’s case. ¶25 Third, Mother maintains that the trial court erred in failing to continue the case in order to determine effectiveness of Mother’s new treatment and medications. Mother contends her attorney’s statement that Mother has sought out her own services and as a result has improved her mental health and is now doing much, much better; that she is deserving of more time because she does suffer from a serious mental illness and she needed more time; that she loves her children and that 13 the she would be able to care for them if this Court gave her more time, and that is her basic request, that this Court consider her mental illness and then give her more time qualified as a request for a continuance. specifically requested a continuance However, Mother never and the court did not appear to view it as such because it did not rule on it and the minute entry did not reflect such a request. Our review of the record persuades us that Mother did not request a continuance, but rather requested the court deny the motion to sever. Moreover, even if we were to construe the statement by Mother’s counsel as a request for continuance, the court would not have abused its discretion in denying it. ¶26 Next, Mother argues that severance was not authorized by A.R.S. § 8-533(B)(8)(c). Sufficient evidence supports the juvenile court’s finding that severance was appropriate under A.R.S. § 8-533(B)(3) due to the likelihood that Mother’s mental illness would exist for a prolonged indeterminate period. In light of this holding, we need not discuss whether termination was also appropriate under § 8-533(B)(8)(c). ¶27 Finally, Mother argues that she was denied effective assistance of counsel because her attorney did not: (1) have Mother’s most present any recent therapist, evidence about Susan Mother’s 14 Porter, new testify; treatment (2) and medication6; and (3) have Mother’s relatives testify. failed to present this argument to the juvenile court. we question whether this court is the appropriate present such a claim, we will nevertheless address it. Mother Although forum to Cf. John M. v. Ariz. Dep’t of Econ. Sec., 217 Ariz. 320, 325, ¶ 17, 173 P.3d 1021, 1026 (2007) (assuming arguendo that an ineffective assistance of counsel claim can be made on direct appeal from a termination order). ¶28 In order for Mother to prevail on an effective assistance of counsel claim, she must demonstrate both that her counsel was inadequate and that she suffered prejudice in the resulting (“[N]o termination reversal inadequacy of of counsel demonstrate that ‘undermine confidence of a her parental termination unless, counsel's in at alleged the rights. order a is minimum, errors outcome’ were of Id. at ¶ justified a parent sufficient the 18 by can to severance proceeding and give rise to a reasonable probability that, but for counsel's errors, the result would have been different.”) Mother fails to show prejudice. Although her therapist, Porter, did not testify at the termination hearing, Porter did submit a 6 We will not consider the documents attached to Mother’s opening brief because they were not in the record and therefore not part of the record on appeal. See In re property at 6757 S. Burcham Ave., 204 Ariz. 401, 404-05, ¶ 11, 64 P.3d 843, 846-47 (App. 2003). 15 letter to the court in August 2010 describing her counseling sessions with Mother and stated that Mother would not pose any harm to the children if visitations were restored, but would require continued counseling for a minimum of twelve to twentyfour months. Porter’s Mother client additionally progress notes submitted, completed as an each after exhibit, therapy session or telephone call with Mother through July 2010. Under these circumstances, although any progress notes that Porter may have prepared after July 2010 and before the hearing were not submitted to the court,7 we cannot say that Porter’s failure to testify prejudiced Mother in the outcome of the case. ¶29 Mother present any also evidence argues that pertaining her to attorney’s her new failure treatment to and medication also resulted in ineffective assistance of counsel. Although we cannot review the attachments that Mother submitted with her presented opening about brief, her most we disagree recent that treatments no evidence and was medications. Mother testified at the hearing about her current treatment and medication regime and the positive impact it has had in her life. see Additionally, Montijo testified that she has failed to any improvement in Mother since she began working on Mother’s case in October 2009 and she did not believe Mother’s 7 Mother did not have any counseling sessions with Porter between her arrest in late September and eventual release from jail in early December. 16 current medications, therapy, or treatment program improved her well-being or ability to care for the children. Montijo stated that she spoke with Porter, who said that although Mother has been “engaged in services . . . it hasn’t been for a long [enough] period progress.” of time to determine if she’s made any Thus, there was sufficient evidence provided to the court about Mother’s current treatments and medications in order for the court to properly form a basis for its termination decision. ¶30 have Last, Mother Mother’s demonstrated disagree. Mother’s argues relatives of this severe attorney’s about assistance exclusion long-standing her testify ineffective The that of her failure support counsel. testimony mental-health system Again, would not issues, to we change lack of financial support, and lack of a stable home and environment in which she could Thus, we need properly not and adequately determine whether raise the Mother’s children. counsel inadequate because she has not demonstrated any prejudice. M., 217 Ariz. at 325, ¶ 18, 173 P.3d at 1026. prejudice, Mother has failed assistance of counsel claim. 17 to establish was John In the absence of an ineffective CONCLUSION ¶31 For the foregoing reasons, we affirm the termination of Mother’s parental rights to the children. _/s/______________________________ PHILIP HALL, Judge CONCURRING: _/s/___________________________________ PATRICIA A. OROZCO, Presiding Judge _/s/___________________________________ PATRICIA K. NORRIS, Judge 18