AMELIA J. v. ADES ET AL.
Annotate this Case
Download PDF
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 AMELIA J., ) ) Appellant, ) ) v. ) ) ARIZONA DEPARTMENT OF ECONOMIC ) SECURITY, CESAR R., LISANDRA R., ) ANDREA R., ERICA R., ) ) Appellees. ) ) __________________________________) DIVISION ONE FILED: 07/19/2012 RUTH A. WILLINGHAM, CLERK BY: sls No. 1 CA-JV 11-0231 DEPARTMENT B MEMORANDUM DECISION (Not for Publication 103 (G) Ariz.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. JD16926 The Honorable Joan M. Sinclair, Judge Pro Tem AFFIRMED James E. Rogers College of Law Child and Family Law Clinic, University of Arizona By Paul D. Bennett, Clinical Professor Appearing Under Rule 38 Attorneys for Appellant Tucson Thomas C. Horne, Arizona Attorney General By Amanda Holguin, Assistant Attorney General Attorneys for Appellee Arizona Department of Economic Security Mesa D O W N I E, Judge ¶1 Amelia J. ( Mother ) appeals from the juvenile court s order terminating her parental rights. For the reasons that follow, we affirm. FACTS AND PROCEDURAL HISTORY ¶2 Mother has a son, C.R., born in January 1995, and three daughters -- A.R., born in August 1999; L.R., born in January 2001; and E.R., born in March 2008 (collectively, the girls ). brain C.R. has spastic quadriparetic cerebral palsy and a lesion. He cannot move without assistance wheelchair-bound, blind, deaf, and non-verbal. Mexico; the girls were born in Arizona. and is C.R. was born in Mother was not legally present in the United States. ¶3 that In June 2008, a neighbor reported to Phoenix police C.R. was possibly left alone in the family apartment. Around 9:00 p.m., officers found C.R. alone, lying on his back on the living room floor. floor. A bag of crackers was near him on the Officers saw C.R. feel around the floor, pick things up, and put them in his mouth. The apartment was a mess, and the carpet around C.R. was not clean. The apartment was also hot and not air conditioned. ¶4 C.R. did not respond to the officers presence until they touched him; he then indicated he wanted something. officers gave C.R. a bottle of water, which he The sucked down . . . within a couple of seconds, causing him to vomit. 2 When C.R. appeared unable to clear his airway, officers rolled him onto his side. ¶5 An hour or so later, Mother and E.R. returned to the apartment. Mother told officers that she, C.A. 1, and the girls left around 7:30 p.m. without C.R. because there wasn t enough room in the car. Mother dropped C.A., A.R. and L.R. at the park then took E.R. with her to get keys to an apartment where the family planned to move the next day. returned to the apartment about 8:30 p.m. Mother and E.R. When Mother realized there was no milk, she again left C.R. alone. Mother told officers she did not typically leave C.R. home alone, but did so because it was an emergency. ¶6 C.A. returned to the apartment and told officers a similar story, confirming that he also knew C.R. had been left home alone. The officers contacted Child Protective Services ( CPS ), the and four children were placed Mother was charged with child abuse. 2 immigration detention facility in foster care. She was placed at an ( federal facility ) pending a deportation hearing and was also in the county jail for a few months. ¶7 In July 2008, the Arizona Department of Economic Security ( ADES ) filed a dependency petition, alleging Mother 1 C.A. is the father of A.R. and L.R. Mother pled guilty to endangerment, a undesignated felony and domestic violence offense. 2 3 class six was unable to incarceration parent due child abuse on children dependent. to neglect charges. and The based court on her found the It also stated that ADES would not offer Mother services while incarcerated, but approved a case plan for family reunification. ¶8 In June 2009, the case plan was changed to severance and adoption for the girls. ADES moved to terminate Mother s parental rights based on abuse and neglect. Stat. ( A.R.S. ) §§ 8-201, -533(B)(2). See Ariz. Rev. After a trial, the juvenile court found that Mother s conduct in leaving [C.R.] home alone for more than two hours in a hot apartment on a June evening constitute[d] abuse and neglect of a severely disabled child, but it could not find that her conduct toward C.R. would endanger the girls in the same way or that the girls were in danger of abuse or neglect. severance motion. ¶9 The court denied the The children remained in foster care. In May 2010, the court affirmed a case plan of family reunification for the girls and long-term foster care for C.R. ADES informed the court that Mother had services due to her federal detention. allowed entry to the federal participated in ADES asked that it be facility psychological evaluation and visitation. request. not to complete a The court granted that The ADES case manager made referrals for services, but Mother was deported to Mexico before they could be implemented. 4 ADES contacted the Mexican consulate and requested a home study, psychological evaluation, and parenting classes. Mother participated in parenting classes, drug testing, and telephonic visits with the girls while in Mexico. ¶10 In September 2010, A.R. told the court that she wished to be adopted, but ADES requested additional time for Mother to continue with services. The court affirmed the case plan of family reunification for the girls and long-term foster care for C.R. In study. October 2010, ADES received Mother s Mexican home Mother failed to tell the evaluator about her criminal conviction for endangerment or disclose why her children had been removed. Instead, the home study stated that Mother left C.R. with C.A., who was responsible for leaving C.R. home alone. ¶11 In March 2011, the court granted ADES s request to amend the case plan to severance and adoption for E.R. and C.R., and guardianship for A.R. and L.R. ADES filed a severance petition, alleging abuse and neglect as to C.R. and citing 15 months in care, reunification the services, agency s and diligent Mother s efforts inability to to provide remedy the circumstances leading to out-of-home placement as grounds for severing her rights to E.R. and C.R. -533(B)(2), -533(B)(8)(c). guardians for A.R. and L.R. ADES See A.R.S. §§ 8-201, separately moved to appoint However, the guardian ad litem ( GAL ) for A.R. and L.R. moved to terminate Mother s rights to 5 them based on abuse and neglect and out-of-home placement for 15 months or longer. See A.R.S. §§ 8-201, -533(B)(2), -533(B)(8)(c). ¶12 A contested severance trial ensued. The court thereafter issued a 16-page ruling terminating Mother s rights to all four jurisdiction children. pursuant Mother to timely Arizona Revised appealed. Statutes We have ( A.R.S. ) section 8-235. DISCUSSION ¶13 Mother contends because: (1) reunification no the severance services order were was improper offered in the federal facility and insufficient services were offered while she was jailed; (2) the case plan was designed to fail because no services were offered in the federal facility and there was no meaningful way for her to comply with the plan while in Mexico; (3) leaving C.R. alone in June 2008 was not the type of abuse or neglect that justifies termination ; and (4) Mother received ineffective assistance of counsel. ¶14 To terminate parental rights, the court must find by clear and convincing evidence at least one statutory ground set forth in A.R.S. § 8-533 and also find that termination is in the child s best interest. Minh T. v. Ariz. Dep t of Econ. Sec., 202 Ariz. 76, 79, ¶ 9, 41 P.3d 614, 617 (App. 2001). We review a severance order in the light most favorable to sustaining the 6 decision. Denise R. v. Ariz. Dep t of Econ. Sec., 221 Ariz. 92, 95, ¶ 10, 210 P.3d 1263, 1266 (App. 2009) (citation omitted). [W]e will accept the juvenile court s findings of fact unless no reasonable evidence supports those findings, and we affirm a severance order unless it is clearly erroneous. will Jesus M. v. Ariz. Dep t of Econ. Sec., 203 Ariz. 278, 280, ¶ 4, 53 P.3d 203, 205 (App. 2002) (citations omitted). I. Severance as to C.R. ¶15 In moving to terminate Mother s rights to C.R., ADES alleged: 3 [Mother] has willfully neglected and abused [C.R.] or failed to protect [C.R.] from willful neglect and abuse so as to cause a substantial risk of harm to [C.R. s] health or welfare. A.R.S. § 8-201(2), -533(B)(2); A.R.S. § 8-201(21), -533(B)(2). [C.R.] was left home alone for an unknown period of time. [C.R.] has significant medical issues, and is deaf and blind. When the police found him, he was lying on the floor with his head in a box, he did not have access to his wheel chair, there were food crumbs scattered around him, and the house was filthy. The other children and the babysitter reported that he had been left home alone in the past. Based upon this incident, Mother was charged with, and convicted of, a crime. 3 Because we affirm the termination order based on abuse and neglect, we need not examine whether additional grounds for severance existed as to C.R. See Jesus M., 203 Ariz. at 280, ¶ 3, 53 P.3d at 205 ( If clear and convincing evidence supports any one of the statutory grounds on which the juvenile court ordered severance, we need not address claims pertaining to the other grounds. ). 7 ¶16 Mother contends the one incident of leaving C.R. home alone does not rise to the level of an unreasonable risk of harm to the child. convincing evidence We disagree and conclude that clear and supports the termination order based on neglect. ¶17 Neglect includes the inability or unwillingness of a parent to provide a child with supervision if that inability or unwillingness causes unreasonable risk of harm to the child s health or welfare. A.R.S. § 8-201(22). The record includes evidence that Mother left C.R. home alone on several occasions. Due to C.R. s disabilities, he could not hear, move independently, or call out for help in case of an emergency. In the June 2008 incident, he was left alone for hours without air conditioning or water. The area around him was littered with objects that could choke him, and he could not clear his own airway if they did. C.R. alone in a The juvenile court found that Mother left dangerous situation. The record amply supports this finding. 4 ¶18 Also significant is the fact Mother pled guilty to endangering C.R., a domestic violence offense that by its very nature establishes neglect at 4 a minimum. See A.R.S. Officers testified that Mother admitted leaving C.R. alone that night. Mother testified that the officers testimony was incorrect and that she left C.R. in the care of C.A. C.A., however, testified it was Mother who left C.R. alone. The court found Mother s claim that C.A. left C.R. alone not credible. 8 §§ 13-1201(A) ( A person commits endangerment by recklessly endangering another person with a substantial risk of imminent death or physical injury. ), -1201(B) ( Endangerment involving a substantial risk of imminent death is a class 6 felony. other cases, it is a class 1 misdemeanor. ). plea, during the severance trial, In all Despite her guilty Mother denied any responsibility for the circumstances that brought her children into care and testified differently. She she denied would making not poor have done anything and believed choices services to help her parent her children were unnecessary. ¶19 The juvenile court concluded that C.R. would suffer a detriment if returned to Mother and has significant needs that Mother Mother s cannot meet. failure to The court demonstrate children were taken into care. was any also concerned insight into presented, a why the It noted that Mother accepted no responsibility for the removal of her children. circumstances about reasonable trier of Under the fact could conclude that Mother s parenting posed an unreasonable risk of harm to C.R. s health or welfare. We therefore affirm the severance order as to C.R. 5 5 Section 8-533(B)(2) does not require ADES to make diligent efforts to reunify the family. Compare A.R.S. § 8-533(B)(2) ( Evidence sufficient to justify the termination of the parent-child relationship shall include . . . [t]hat the parent has neglected or wilfully abused a child. ), with -533(B)(8)(c) (when a child has been in an out-of-home placement for 15 months 9 II. Severance as to the Girls ¶20 15 When a child has been in an out-of-home placement for months or longer, the court may sever the parent-child relationship if it finds that the agency has made a diligent effort to provide appropriate reunification services. 6 § 8-533(B)(8)(c). that ADES made reunification A.R.S. In the case at bar, the juvenile court found diligent efforts services. to provide The record of learning appropriate supports this determination. A. ¶21 Federal Facility Within a month of Mother s immigration-based detention, ADES attempted to provide services at the federal facility. In August 2008, case manager G.H. called the facility to inquire whether ADES could offer services there or bring the children to visit Mother. that ADES could not do so. G.H. was advised Over the next few months, G.H. spoke or longer, the responsible agency must make a diligent effort to provide appropriate reunification services ); Cf. James H. v. Ariz. Dep t of Econ. Sec., 210 Ariz. 1, 2, ¶ 6, 106 P.3d 327, 328 (App. 2005) (comparing A.R.S. § 8-533(B)(4), which imposes no explicit duty on [ADES] to provide reunification services when termination is based on a parent s incarceration, with -533(B)(8)). But as we discuss infra, the agency here made reasonable efforts at reunification. 6 Section 8-533(B)(8)(c) contains other requirements, but Mother challenges only the adequacy of reunification services. We therefore confine our analysis to this issue. See MT Builders, L.L.C. v. Fisher Roofing, Inc., 219 Ariz. 297, 304 n.7, 197 P.3d 758, 765 n.7 (App. 2008) (arguments not developed on appeal are deemed waived). 10 to Mother s assigned immigration social worker, who confirmed that ADES could not provide services at the federal facility. G.H. provided his contact information and advised that Mother could correspond with the children while detained. Mother did so, and G.H. sent her pictures of the children. The foster parents also reported that the girls were having monthly telephone calls with Mother while she was detained. ¶22 During the time when ADES could not provide services, it worked with the Mexican consulate to arrange for services in anticipation changed of and Mother s the case deportation. plan was When amended federal back policies to family reunification, the court ordered ADES to provide services at the federal facility, and ADES made the relevant referrals. However, a caseworker testified it was difficult to reach the appropriate person at the facility, and the process took months. Ultimately, Mother was deported before services could be its own implemented at the federal facility. ¶23 Mother asserts that ADES failed to follow policies, citing an agency policy applicable to parents who are incarcerated facilities. to federal Moreover, at Arizona Department of Corrections ( ADC ) By its own terms, though, the policy does not apply facilities, the cited over policy which the merely state requires has no ADES control. to offer services at secure facilities if allowable by ADC regulations. 11 ADES Children s Services Manual, Ch. 9, Sec. https://extranet.azdes.gov/dcyfpolicy//servicemanual.htm 8, (last visited June 14, 2012). B. ¶24 Jail From approximately November 2009 to Mother was in jail on the criminal charges. January 2010, While there, she met with caseworker G.H. and had 3-4 visits and a phone call with her daughters. In December ordered a psychological evaluation. the psychological criminal trial. 7 evaluation not 2009, the juvenile court Mother, though, asked that take place until after her By the time Mother pled guilty in March 2010, she was back in the federal facility. The record establishes that ADES made reasonable reunification efforts during the time Mother was in the jail facility. C. ¶25 Case Plan Mother also argues the case plan was designed to fail and that she had no meaningful way to comply with it after being deported. Her reliance on Jordan C. v. Arizona Department of Economic Security, 223 Ariz. 86, 219 P.3d 296 (App. 2009), is 7 On appeal, Mother emphasizes the failure to perform the evaluation, arguing, Without a psychological evaluation, [Mother] could not begin working towards reunification. Mother, though, was unwilling to submit to an evaluation while the criminal case was pending. Moreover, much as Mother asserts the evaluation was necessary for her to work toward reunification, it was also necessary for ADES to tailor appropriate services. 12 unavailing. mother and In Jordan C., ADES removed five children from their developed period of time. a plan to transition them back Id. at 92, ¶ 15, 219 P.3d at 302. over a ADES later changed the case plan to severance and adoption for the two youngest children, citing their time in care as a basis for termination. Id. On appeal, the children argued the case plan contemplated that reunification could not be completed without some of the children remaining in an out-of-home placement for longer than fifteen months. Id. at 94, ¶ 24, 219 P.3d at 304. We held that termination based on time in care was inappropriate under those circumstances because ADES controlled the timetable by agreeing to return the children one-by-one, each transition being dependent on the success of the previous one. Id. at 94, 96, ¶¶ 24, 30, 219 P.3d at 304, 306. ¶26 ADES Unlike Jordan C., in the case at bar, it was neither nor the placements. charges and It case was detention plan that Mother s based prolonged incarceration on her the on immigration out-of-home the criminal status. The children obviously could not be returned to Mother while she was in custody. The juvenile court observed: Mother fought deportation and stayed in custody a little over a year longer than if she had voluntarily agreed to deportation. This effectively made Mother unavailable for services during that period of time. 13 ¶27 A court may consider a parent s incarceration determining what services are reasonable in a given case. in See, e.g., Christy C. v. Ariz. Dep t of Econ. Sec., 214 Ariz. 445, 451, ¶ 17, 153 P.3d 1074, 1080 (App. 2007) ( The court can certainly consider that incarceration will as a practical matter typically although preclude a all parent s but minimal immigration visits. ). status is not Additionally, a basis for severance, a parent s illegal status may cause or contribute to the existence of such a basis. Marina P. v. Ariz. Dep t of Econ. Sec., 214 Ariz. 326, 333, ¶ 40, 152 P.3d 1209, 1216 (App. 2007). Despite Mother s efforts to characterize it as such, this is simply not a case where the agency ignored its duty to make reasonable efforts at reunification. ¶28 The record also belies Mother s contention that there was no meaningful way for her to participate in services after being deported. ADES supervisor N.B. testified that the agency could have provided services in Nogales, where Mother originally resided. N.B. testified that the plan was for Mother to stay in Nogales for some period of time in order to complete services and be close to the border, where it was possible to facilitate visitation with the children. The juvenile court found: Mother was deported to Nogales. [The caseworker] understood that Mother was going to stay there for a period of time so that she could receive services. If Mother had stayed there, CPS might have been able to 14 facilitate visits with the children there. [The caseworker] sent a letter to Mother in Nogales confirming that she intended to stay there at least six months to receive services and re-establish a relationship with her children. ¶29 more However, Mother did not remain in Nogales. difficult to coordinate services once she It was moved to the interior of Mexico, but even then, ADES continued to work with her and the Mexican consulate. ADES maintained contact with Mother via e-mail and phone calls, informed her of the issues that needed information to for be addressed, Mexico s provided her with contact agency and the Mexican service consulate, met with the consulate representative, and asked the consulate to provide a psychological evaluation and home study, counseling and parenting classes. ¶30 At the juvenile court request granted services in Mexico. report, though, of ADES, Mother in September additional time 2010, to the complete The ensuing home study and psychological raised concerns about Mother s parenting abilities and emotional stability and also reflected a lack of candor regarding the removal of the children. The juvenile court was also concerned about Mother s testimony that she would not have done anything differently vis-à -vis her parenting. ¶31 Considering the juvenile court, viewing and totality the 15 of facts evidence in the before the light most favorable to sustaining its judgment, the record supports the court s reasonable efforts findings and its termination order as to the girls. III. Ineffective Assistance of Counsel ¶32 We assume for the sake of argument that Mother may assert an ineffective assistance of counsel claim on appeal. She argues her attorney should have requested that services be provided at the federal facility and should have objected or appealed when the juvenile court initially ruled that no services would be offered while Mother was incarcerated. ¶33 Even accepting nevertheless not these claims demonstrated as that true, Mother counsel s has alleged ineffectiveness was sufficient to undermine confidence in the outcome of reasonable the severance probability proceeding that, but for result would have been different. and give counsel s rise to errors, a the See John M. v. Ariz. Dep t of Econ. Sec., 217 Ariz. 320, 325, ¶ 18, 173 P.3d 1021, 1026 (App. 2007) (citations omitted). inaction that caused a It was not counsel s alleged delay in services. Moreover, in terminating Mother s rights, the court cited a number of factors having little, if anything, to do with counsel s inaction, including concerns based on the home study, Mother s lack of candor about responsibility, the removal, her failure her testimony that she 16 would to accept not have any done anything differently, and the fact that, despite receiving services in Mexico, Mother had not recognized and resolved the issues that originally brought the children into care. CONCLUSION ¶34 For the reasons stated, we affirm the juvenile court s order terminating Mother s parental rights. /s/ MARGARET H. DOWNIE, Presiding Judge CONCURRING: /s/ PHILIP HALL, Judge /s/ RANDALL M. HOWE, Judge 17
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
