Karen P v. ADES

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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 KAREN P., ) ) Appellant, ) ) v. ) ) ARIZONA DEPARTMENT OF ECONOMIC ) SECURITY, M.J., A.S., ) ) Appellees. ) ) __________________________________) DIVISION ONE FILED: 02/21/2012 RUTH A. WILLINGHAM, CLERK BY: DLL No. 1 CA-JV 11-0110 DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 103(G), Ariz. R. P. Juv. Ct., Rule 28 ARCAP) Appeal from the Superior Court in Maricopa County Cause No. JD508145 The Honorable Peter A. Thompson, Judge AFFIRMED Thomas C. Horne, Arizona Attorney General Phoenix By Michael F. Valenzuela, Assistant Attorney General Attorneys for Appellees Robert D. Rosanelli, Attorney at Law By Robert D. Rosanelli Attorney for Appellant Phoenix B R O W N, Judge ¶1 order Karen P. ( Mother ) appeals from the juvenile court s terminating children. her parental rights to two For the following reasons, we affirm. of her minor BACKGROUND ¶2 2001, Mother is the biological mother of M.J., born in May A.S., 1 and children ). 2 born in August 2007 (collectively the Child Protective Services ( CPS ) initially removed the children from Mother s care in September 2009 after Mother had consumed prescription medication and alcohol and lost consciousness in her driveway, leaving the children, then ages eight and dependent two, unsupervised. and the Department ) Department Department initially provided The of pursued Mother court Economic an with found children Security ( the dependency. in-home various the The family preservation services, including substance abuse treatment, counseling, and assistance with significantly parenting comply with skills, any of but the tasks Mother did assigned to not her during October and November 2009. ¶3 CPS then removed the children from Mother s physical custody and placed them in out-of-home placement after being unable to contact Mother or verify the children s well-being. Mother was scheduled for a psychological evaluation in January 2010, but she failed to attend. 1 The Department also continued We amend the caption in this children solely by their initials. 2 appeal to refer to the Mother s rights to B.L., born in February 1999, were also terminated. However, she did not appeal the severance order as to B.L. 2 to provide Mother with family reunification services, including referrals for treatment, substance parenting visitation. abuse classes, treatment, parent aide mental health services, and Although Mother attended visits with the children fairly regularly, she did not substantially participate in any of the other services offered to her. Mother was also required to report for drug testing once per week. Her first four tests were positive for marijuana and other drugs. Mother then missed several tests and, in September 2010, she gave birth to another child, R.P., marijuana at who tested birth. 3 In positive for methamphetamine November 2010, the juvenile and court approved the Department s request to change the case plan for the children to severance and adoption. The Department then filed a motion to terminate Mother s rights to the children, alleging nine and fifteen months out-of-home placement under Arizona Revised Statutes ( A.R.S. ) section 8-533(B)(8)(a) and (c) (Supp. 2011), and substance abuse under § 8-533(B)(3). 4 Notice of the motion to terminate was provided to the Pueblo of Zuni and Pueblo of Laguna Tribes pursuant to the Indian Child Welfare Act of 1978 ( ICWA ), 25 U.S.C. §§ 1901-1963. 3 R.P. was not a party to this severance action. 4 The initial motion included only the nine-months substance abuse grounds, but at the beginning of trial motion was amended to add the fifteen-months ground. 3 and the ¶4 Between November 2010 and February 2011, Mother successfully participated in drug testing and became actively engaged in her substance abuse treatment. 2011, Mother diagnosed completed with intellectual a several functioning, psychological disorders with an IQ Also, in January evaluation including of 75. and was borderline Following her evaluation, Mother began participating in individual counseling. Mother continued to severance hearing. actively engage in services until the Following a two-day hearing, the juvenile court found the Department had proven all three grounds alleged and that severance was in the best interests of the children. 5 Mother timely appealed. DISCUSSION ¶5 Termination of the parent-child relationship is appropriate if at least one of the statutory grounds alleged is supported by clear and convincing evidence and the termination is in the best interests of the child. Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, 280, ¶¶ 3-4, 53 P.3d 203, 205 (App. 2002). We accept the juvenile court s findings of fact unless no reasonable evidence supports those findings, and we 5 The court also found that the Zuni Tribe, through its designated representative, agreed that the Department made active efforts to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that those efforts were unsuccessful. 4 will affirm a severance order unless it is clearly erroneous. Id. at 280, ¶ 4, 53 P.3d at 205. ¶6 Mother argues that the Department failed to make sufficient efforts to reunify and preserve her family because it did not provide [her] with services appropriate for a parent with Borderline Functioning. 6 Intellectual Under § 8- 533(B)(8)(a) and (c), the Department must prove it has made a diligent effort to provide appropriate reunification services. Similarly, § 8-533(B)(3) requires that the Department show it has made a reasonable effort to preserve the family. Mary Ellen C. v. Ariz. Dep't of Econ. Sec., 193 Ariz. 185, 192, ¶ 33, 971 P.2d 1046, 1053 (App. 1999). The Department fulfills its duty to provide services when it gives a parent the time and opportunity to participate in programs designed to help [him or] her become an effective parent. No. JS-501904, 1994). every 180 Ariz. 348, Maricopa County Juv. Action 353, 884 P.2d 234, 239 (App. The Department is not required, however, to provide conceivable service or to ensure participates in each service it offers. that a parent Christina G. v. Ariz. Dep t of Econ. Sec., 227 Ariz. 231, ___, ¶ 15, 256 P.3d 628, 632 (App. 2011). 6 Mother does not challenge the court's findings regarding best interests, compliance with the ICWA, or the other elements necessary for termination under § 8-533(B)(3), (8)(a), and (8)(c). Therefore, we need not address these issues. 5 ¶7 For more than a year prior to filing its motion to terminate Mother s parental rights, the Department offered Mother parent-aide services, substance abuse treatment, mental health services, and counseling. these services should have Mother argues on appeal that been tailored to her level of intelligence because her low IQ impairs her understanding of instructions[.] Even assuming the Department was responsible to provide Mother with a different type of services because of her low mental functioning, the Department was not obligated to do so because it was not aware of Mother s IQ until January 2011, three months after the case plan had been changed to severance and adoption. scheduled Additionally, psychological Mother s evaluation in failure to attend January 2010 the severely undermines her argument that the Department should have done more to take into consideration her mental status. By the time the evaluation was actually conducted, the children had already been in out-of-home care for more than a year and Mother had failed to meaningfully participate in the services offered to her. ¶8 Moreover, Mother s argument is belied by her testimony at the severance hearing. Mother stated that she understood what tasks she was required to perform and what services she was required understood to participate the in. consequences She of 6 also failing testified to that participate she in reunification might have services. helped her, When she housing and transportation. actively participating in asked cited what only additional more services assistance with Further, although Mother had been services from late 2010 until the severance hearing, she admitted at the hearing that she did not do as much as she could have during the first year of the dependency, stating I could have done what I [am] doing now. ¶9 the In sum, we conclude there is sufficient evidence in record Department to support made the appropriate court s implicit efforts to finding provide that the reunification services and preserve Mother s relationship with her children. CONCLUSION ¶10 For the foregoing reasons, we affirm the juvenile court s order terminating Mother s parental rights to M.J. and A.S. /s/ _________________________________ MICHAEL J. BROWN, Judge CONCURRING: /s/ ___________________________________ PETER B. SWANN, Presiding Judge /s/ ___________________________________ JON W. THOMPSON, Judge 7

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