VALERIE G. v. ADES, E.G.

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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 VALERIE G., Appellant, v. ARIZONA DEPARTMENT OF ECONOMIC SECURITY, and E.G., Appellees. ) ) ) ) ) ) ) ) ) ) ) ) ) No. DIVISION ONE FILED: 06/26/2012 RUTH A. WILLINGHAM, CLERK BY: sls 1 CA-JV 12-0025 DEPARTMENT E MEMORANDUM DECISION (Not for Publication Ariz. R.P. Juv. Ct. 103(G); ARCAP 28) Appeal from the Superior Court in Maricopa County Cause No. JD13582 The Honorable Joan Sinclair, Judge Pro Tempore AFFIRMED John L. Popilek, P.C. Attorney for Appellant Phoenix 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 Valerie G. (Mother) appeals the juvenile court s order terminating her parental rights to E.G.1 For the following reasons, we affirm. FACTUAL2 AND PROCEDURAL BACKGROUND ¶2 Mother is the biological parent of E.G., born in 2003. Child Protective Services (CPS) began investigating Mother after it received a report that she was under the influence at E.G.'s school. During the investigation, E.G. reported that Mother did not provide him with food and he only ate at school. When CPS asked Mother why she did not have resources for food even though she received disability benefits, Mother responded that it was "none of CPS business." On September 2, 2010, CPS took temporary custody of E.G. and placed him in a foster home. ¶3 On September 8, 2010, the Department of Economic Security (ADES) filed a petition alleging that E.G. is dependant to Mother. juvenile dependent. Mother court submitted without the contest dependency and the issue court to found the E.G. The juvenile court ordered a family-reunification plan and ADES offered Mother the following services to assist 1 E.G. s father has also had his parental rights terminated. is not, however, a party to this appeal. 2 He 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). 2 with the plan: parent-aide services, substance-abuse assessment and treatment, substance-abuse testing, psychiatric evaluation, visitation, and transportation. ¶4 In August 2011, the Foster Care Review Board (FCRB) issued its findings and recommendations. It found that Mother had not been compliant or participated in services and E.G.'s out-of-home placement was both necessary and meeting all of his needs. ¶5 After the permanency hearing, ADES filed a motion to terminate Mother's parent-child relationship with E.G. on the grounds that Mother: (1) is unable to discharge her parental responsibilities because of chronic substance abuse, pursuant to Arizona Revised Statutes (A.R.S.) section 8-533(B)(3) (Supp. 2011), and (2) E.G. has been in a court-ordered out-of-home placement for a cumulative period of nine months or longer, ADES made diligent efforts to provide Mother with appropriate reunification services, and Mother substantially neglected or willfully refused to remedy the circumstances that caused E.G. to be in care, pursuant to A.R.S. § 8-533(B)(8)(b).3 ADES also alleged that termination of the relationship was in E.G.'s best 3 At the contested severance hearing, ADES moved to amend the motion for termination to add that E.G. has been in an out-ofhome placement for fifteen months or longer, pursuant to A.R.S. § 8-533(B)(8)(c). After taking the matter under advisement, the juvenile court granted ADES' motion. 3 interest. Mother denied the allegations in the petition and the juvenile court held a contested severance hearing. ¶6 At the hearing, Mother testified that she is currently living with friends, but acknowledged that she has been homeless for a significant period of time during the previous year. She is unemployed and receiving disability income for post-traumatic stress disorder, but looking for employment. Although Mother admitted using methamphetamine and other illegal substances to "self-medicate," she testified that she methamphetamine for six to eight months. has not used When asked why she did not comply with substance-abuse testing, Mother stated she could not because of depression. She also explained that her three mental health hospitalizations during the previous year were the result of one of the service providers, Magellan, "dropp[ing] the ball" by failing to give her the medications she needs, which caused her mental instability. ¶7 did CPS case manager Charlan then testified that Mother not services, comply or with substance-abuse substance-abuse testing, counseling. parent-aide Charlan referred Mother to TERROS twice for substance-abuse treatment, but Mother never completed because Mother she a had repeatedly program and was "confrontations" reported to removed with Charlan 4 from other that she one program participants. was actively using drugs and claimed she could not participate in services until she received the medications she believed she needed. ¶8 In addition, Charlan testified that Mother refused to submit to a psychological evaluation. For the majority of the time Mother was offered services, she could not qualify for a psychological evaluation because she failed to maintain sobriety for the requisite thirty-day period. Indeed, Mother only submitted to seven urinalysis tests during the entire period she was provided services, and one test was positive for marijuana. Mother provided two clean tests in October 2011, however, and Charlan made an appointment for her to have a psychological evaluation. Ultimately, Mother refused the evaluation because she could not "bring herself to leave her apartment." ¶9 Charlan demonstrated further emotional testified instability that Mother repeatedly during visits with E.G. Mother had several bouts of uncontrollable crying and had to be comforted during visits rather than focusing her attention on E.G. ¶10 Finally, Charlan testified that E.G. has been in a court-ordered out-of-home placement for more than fifteen months and Mother comply with substantially reunification neglected or services. willfully Charlan refused also to opined, without objection, that Mother's substance abuse will continue for a prolonged and indeterminate period. 5 When questioned about E.G.'s best interest, Charlan testified that E.G.'s foster parents are meeting all of his educational, social, medical, physical and emotional needs and want to adopt him. In addition, E.G. consistently states that he wants to stay with his foster parents and is frightened by the possibility he could be returned to Mother. Accordingly, Charlan opined that severance and adoption is in E.G.'s best interest. ¶11 In addition to presenting Charlan's testimony, ADES submitted numerous consideration, conducted exhibits including by G. Joseph a for the psychological Bluth, Ph.D., on juvenile court's evaluation November of E.G. 28, 2011. During the evaluation, E.G. told Dr. Bluth that he "did not like living with [Mother] because her behavior was strange and they frequently did not have food in the home." informed Dr. parents]" is Bluth the that best "getting thing that adopted has In addition, E.G. by happened [his in foster his life. Based on his evaluation of E.G., Dr. Bluth opined that E.G. suffers from both depression and anxiety as a result of "severe abuse and neglect." Dr. Bluth also diagnosed E.G. as suffering from post-traumatic stress disorder and dysthymic disorder. Dr. Bluth and all Mother is recommended visitation be that terminated Mother's because "traumatizing" to E.G. 6 parental contact rights with ¶12 After taking the matter under advisement, the juvenile court found ADES proved by clear and convincing evidence that Mother s parental rights should be terminated due to her inability to discharge her parental responsibilities because of chronic substance abuse, A.R.S. § 8-533(B)(3), E.G.'s out-ofhome placement for nine months, A.R.S. § 8-533(B)(8)(a), and E.G.'s out-of-home placement for fifteen months, A.R.S. § 8533(B)(8)(c).4 The court additionally found that ADES proved by a preponderance of the evidence that termination was in E.G.'s best interest. ¶13 Mother timely appealed. We have jurisdiction under A.R.S. §§ 8-235 (2007), 12-120.21 (2003) and Arizona Rule of Procedure for the Juvenile Court 103(A). DISCUSSION ¶14 To terminate parental rights, the juvenile court must find, by clear and convincing evidence, the existence of at least one of the statutory grounds for termination enumerated in A.R.S. § 8-533(B). Michael J. v. Ariz. Dep t of Econ. Sec., 196 Ariz. 246, 249, ¶ 12, 995 P.2d 682, 685 (2000). The juvenile court must also find, by a preponderance of the evidence, that termination is in the child's best interest. 4 We will affirm an Mother does not challenge the juvenile court s finding of a statutory basis for termination and we will therefore not address it on appeal. 7 order terminating parental rights unless the juvenile court abused its discretion by making factual findings [that] are clearly erroneous[;] that is, evidence to support them. unless there is no reasonable 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). Because the trial court is in the best position to weigh the evidence, judge the credibility of the parties, observe the parties, and make appropriate factual findings, this court will not reweigh the evidence but will look only to determine evidence to sustain the court s ruling. if there is Mary Lou C. v. Ariz. Dep t of Econ. Sec., 207 Ariz. 43, 47, ¶ 8, 83 P.3d 43, 47 (App. 2004) (quoting Pima County Dependency Action No. 93511, 154 Ariz. 543, 546, 744 P.2d 455, 458 (App. 1987)). ¶15 On appeal, Mother contends that the juvenile court erred by finding ADES made reasonable and diligent efforts to provide her with reunification services and by finding that termination of the parent-child relationship was in E.G.'s best interest. She also assistance of counsel. asserts that she was denied effective We address each argument in turn. 8 I. Reunification Services ¶16 "It is well established that the State, before acting to terminate parental rights, has an affirmative duty to make all reasonable efforts to preserve the family relationship." Mary Ellen C. v. Ariz. Dep't of Econ. Sec., 193 Ariz. 185, 186, ¶ 1, 971 P.2d 1046, 1047 (App. 1999). Reasonable efforts include providing a parent "with the time and opportunity to participate in programs designed to help her become an effective parent." In re Maricopa County Juvenile 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 ensure that a parent participates Likewise, ADES rehabilitative "undertake is in not measures measures each "oblige[d] that with service a are . it . offers." . futile" reasonable to and prospect Id. undertake need of only success." Mary Ellen C., 193 Ariz. at 192, ¶ 34, 971 P.2d at 1053. ¶17 Mother argues the juvenile court erred by finding ADES made reasonable and reunification services. to provide parent-aide her with referral, diligent efforts to provide her with Specifically, Mother claims ADES failed three (2) "crucial photo services": identification (1) to a third assist her substance-abuse testing, and (3) transportation. ¶18 ADES offered Mother parent-aide services, visitation, substance-abuse assessment and 9 treatment, substance-abuse testing, psychiatric evaluation, and transportation. The record is replete with evidence that Mother was largely non-compliant in participating in these services. Mother received two referrals for substance-abuse treatment, but failed to complete a program. aide Likewise, Mother received two referrals for parent- services, but failed to participate. Although Mother contends ADES' reunification efforts were insufficient because it denied her request for a third parent-aide referral, case manager Charlan testified that she submitted Mother's request for parent-aide services, but the service provider refused to offer services because Mother failed to comply with services related to the two previous referrals. ¶19 In addition, ADES offered Mother substance-abuse testing, but Mother generally refused to submit to urinalysis. She also urinalysis tested tests reunification failed to positive she marijuana completed. efforts provide for were her with Mother insufficient a in "CPS one argues because ID" after of seven that ADES' the she agency lost her identification, and therefore she was unable to participate in substance-abuse testing. informed manager case The Charlan record that reflects she lost that her identification in late October or early November 2011. Mother photo At the severance hearing, Mother's attorney asked Charlan why she did not provide Mother with a "CPS ID," that is, a letter from CPS 10 accompanied by Mother's photograph. In response, Charlan explained that the service provider, TERROS, generally did not accept a "CPS ID" identification. and instead Accordingly, required Charlan state-issued encouraged Mother to obtain a replacement state-issued identification that would be accepted by TERROS. ¶20 Finally, adequate reunification transportation." offered Mother Mother argues that services ADES failed because it to provide "denied [her] To the contrary, the record reflects that ADES bus passes, but Mother's requests for taxi service were denied on some occasions. ¶21 that Thus, the record supports the juvenile court's finding the services ADES provided Mother were reasonable, appropriate and sufficient under the circumstances. II. Best Interest ¶22 child's Termination of the parent-child relationship is in the best interest if the child will benefit from the termination or would be harmed if the relationship continued. Bobby G. v. Ariz. Dep't of Econ. Sec., 219 Ariz. 506, 511, ¶ 15, 200 P.3d 1003, 1008 (App. 2008). interest, the juvenile including the child's court In assessing the child's best may adoptability consider and placement is meeting the child's needs. 11 several whether the factors, current Audra T. v. Ariz. Dep't of Econ. Sec., 194 Ariz. 376, 377, ¶ 5, 982 P.2d 1290, 1291 (App. 1998). ¶23 The record supports the juvenile court's finding that termination of the parent-child relationship is in E.G.'s best interest. Charlan testified that E.G.'s foster parents are meeting all of his educational, social, medical, physical and emotional needs and want to adopt him. concluded that continuation would be traumatic to E.G. of the In addition, Dr. Bluth parent-child relationship Although Mother testified that E.G. was not "being properly taken care of" by the foster parents as demonstrated by the "tartar on his teeth" and the holes in his shoes that she observed during their visits, we conclude this testimony does not undermine the juvenile court's best interest finding. Moreover, Mother's testimony is also contrary to other evidence in the record, such as Dr. Bluth's assessment that E.G. was "appropriately dressed and groomed" during the evaluation, and we defer to the juvenile court, as the trier of fact, to weigh the evidence and judge the credibility of witnesses. See Ariz. Dep t of Econ. Sec. v. Oscar O., 209 Ariz. 332, 334, ¶ 4, 100 P.3d 943, 945 (App. 2004) ( A 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 resolve disputed 12 facts. ). Therefore, we affirm the juvenile court's finding that terminating Mother's parental rights was in E.G.'s best interest. III. Ineffective Assistance of Counsel ¶24 As previously recognized in Arizona case law, a parent has a due process right to the effective assistance of counsel to ensure that severance proceedings are fair and the results of the proceedings are reliable. See John M. v. Ariz. Dep't of Econ. Sec., 217 Ariz. 320, 324, ¶ 14, 173 P.3d 1021, 1025 (App. 2007). Applying, by analogy, the standard set forth in Strickland v. Washington, 466 U.S. 688 (1984), for establishing ineffective assistance of counsel in criminal cases, a parent claiming ineffective assistance in a severance proceeding must establish both incompetence by counsel and resulting prejudice. John M., 217 Ariz. at 325, ¶ 17, 173 P.3d at 1026. prevail, the parent must "demonstrate that Thus, to counsel's alleged errors were sufficient to 'undermine confidence in the outcome' of the severance proceeding and give rise to a reasonable probability that, but for counsel's errors, the result would have been different." Id. at 325, ¶ 18, 173 P.3d at 1026 (quoting Strickland, 466 U.S. at 694). ¶25 Mother contends that she was denied effective assistance of counsel because her attorney failed to submit a list of witnesses and exhibits prior to the severance trial and, as a result, only one of her 13 two character witnesses was permitted to testify. the performance Mother has of failed prejudice. We need not determine, however, whether Mother's to attorney demonstrate, was or incompetent even claim, because resulting Instead, Mother simply asserts that "[t]here is no knowing" whether the "outcome of the proceeding" may have been different had she been permitted to have both of her character witnesses testify. speculation and prejudice. 757, 760 Mother's falls far argument short of consists showing the only of requisite See State v. Santanna, 153 Ariz. 147, 150, 735 P.2d (1987) demonstrable ("Proof reality of rather ineffectiveness than a matter must of be to a speculation."). Thus, Mother "has provided no basis for us to conclude that the severance proceeding[] in this case [was] fundamentally unfair; that the result of the hearing is unreliable; or that, had counsel conducted himself differently, the juvenile court would have reached a different result." ¶ 19, 173 P.3d at 1026. 14 John M., 217 Ariz. at 325, CONCLUSION ¶26 For the foregoing reasons, we affirm the judgment terminating Mother s parental rights to E.G.5 _/s/______________________________ PHILIP HALL, Judge CONCURRING: _/s/_______________________________ MAURICE PORTLEY, Presiding Judge _/s/_______________________________ DIANE M. JOHNSEN, Judge 5 We amend the caption in this appeal to refer to the child solely by his initials. 15

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