Tammy S. v. ADES, Z. S.

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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 TAMMY S., Appellant, v. ARIZONA DEPARTMENT OF ECONOMIC SECURITY, Z.S., Appellee. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. DIVISION ONE FILED: 04-06-2010 PHILIP G. URRY,CLERK BY: GH 1 CA-JV 09-0172 DEPARTMENT C MEMORANDUM DECISION (Not for Publication 103(G), Ariz.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. JD13214 The Honorable Jo Lynn Gentry-Lewis, Judge AFFIRMED Gates Law Firm, L.L.C. By S. Marie Gates Attorney for Appellant Terry Goddard, Arizona Attorney General By Kathleen Skinner, Assistant Attorney General Attorneys for Appellee B R O W N, Judge Phoenix Mesa ¶1 Tammy S. ( Mother ) appeals the juvenile termination of her parental rights to her son, Z.S. 1 court s For the following reasons, we affirm. BACKGROUND ¶2 Mother and Justin S. ( Father ) are parents of Z.S., who was born in January 2007. 2 the biological Two weeks after his birth, the Arizona Department of Economic Security ( ADES ) took Z.S. into temporary custody and placed him in an emergency receiving home. ADES then filed a dependency petition alleging that unable Mother was domestic violence. to parent due to mental illness and The juvenile court granted the petition in May 2007 and approved a plan for family reunification. ¶3 Consistent with the court s order, ADES offered Mother reunification services, including psychological and psychiatric evaluation, individual substance abuse urinalysis testing, services. counseling, assessment, medication substance supervised visitation, abuse and monitoring, treatment, parent aide At a review hearing in May 2008, ADES moved to change the case plan to severance and adoption, which was denied by the 1 On the court s own motion, it is hereby ordered amending the caption for this appeal as reflected in this decision. The above referenced caption shall be used on all documents filed in this appeal. 2 The juvenile court terminated the parental rights of Father on the first day of the severance hearing. His rights are not the subject of this appeal. 2 juvenile court to give mother the opportunity to reengage and correct some of her issues. The court ordered ADES to discuss and identify the special needs of Z.S. so Mother could address them and gain appropriate skills if needed. ¶4 that At the review hearing in August 2008, ADES asserted no change participation had in been made services. juvenile court ordered severance and adoption. with Over that the ADES regard Mother s case then Mother s objection, plan filed to the be changed to its motion for termination, alleging that: (1) Mother was unable to discharge her parental responsibilities due to mental illness and there were reasonable grounds to believe the condition would continue for a prolonged, indeterminate period; (2) Z.S. had been in an out-of-home placement for fifteen months or longer, Mother was unable to remedy the circumstances that caused the out-of-home placement, and there was a substantial likelihood that Mother would be unable to exercise proper and effective parental care in the near future; and (3) Mother had her parental rights to other children terminated within the preceding two years for the same cause and was currently unable to discharge parental responsibilities due to the same cause. ¶5 At presented child. the the three-day following contested evidence. severance Z.S. is hearing, Mother s ADES seventh Mother s parental rights were terminated as to her other 3 six children in December 2006 and May 2007 for mental illness and instances of domestic violence between Mother and Father. Prior to termination ADES children, the tried to of her reunify rights Mother to with the her first six children by returning only some the children to her care at a given time. Mother had difficulty managing the children s behaviors; in one instance she returned the children to their foster placements. ¶6 Mother disorder, major disorder. She has suffered depression, admitted herself in the past. to from bipolar personality attempting disorder, disorder, suicide and and anxiety a mood cutting She used cocaine from August or September 2007 through May 2008, at which time she completed a two-week outpatient program for alcohol and cocaine abuse. Mother began smoking in May 2008 and continued to smoke even after becoming pregnant with another child in January 2009. ¶7 According to Mother s TERROS treatment plan, beginning September 2008, Mother was instructed to participate in two group counseling programs, one for eight hours a week for one year, and the other program for two hours a week for six months. Mother participated weeks but never in the completed group the counseling program, for and a couple Mother of instead decided to handle it on [her] own. ¶8 Mother failed to complete the domestic violence counseling program and was also inconsistent with her individual 4 counseling. parenting Mother Though classes, did however, she she participated did participate she admitted not in to in fully to majority of her complete the program. checks medication failing a with TERROS, some of show for her appointments. ¶9 Z.S. experienced developmental delays and was diagnosed with cerebral palsy. One of Mother s treatment goals was medical to participate in Z.S. s appointments, failed to follow through with all of them. but she Most recently, she failed to attend Z.S. s neurologist appointment in July 2009, even after a transportation. Z.S. took case manager had arranged for Mother s A majority of the visits between Mother and place in Mother s home, and she was generally consistent with the visits. ¶10 Mother was unemployed at the time of the severance hearing, and Mother s last full-time employment consisted of a two-week period in 2008. acquiring her GED. Mother also failed to meet her goal of She testified that her new husband, who she married in January 2009, paid the rent on their apartment. ¶11 Cynthia Vaughn, a case manager for ADES Division of Developmental Disabilities ( DDD ), opined that there was a substantial likelihood that Mother would be unable to exercise proper future. and effective Vaughn s parental assessment care and stemmed 5 control from her in the near concern over Mother s mental health stability and because Mother had already had children removed from her care due to not being able to care for the children due to her stress level of . . . having the children. ¶12 Dr. Bluth, a licensed psychologist, performed psychological evaluations of Mother in June 2007 and December 2008. He expressed concerns about whether Mother could handle [Z.S.] and work appointments[.] and keep up with his and her own medical Dr. Bluth also noted that Z.S. would require a parent who is actually more than minimally adequate in order to parent him. Dr. Bluth opined that Mother had used drugs to cope with her mental health needs[,] and that Mother never fully addressed her dependence on cocaine. ¶13 The juvenile court found clear and convincing evidence supporting the termination of Mother s parental rights on all three grounds Statutes alleged ( A.R.S. ) (Supp. 2009). 3,4 in the section motion. 8-533(B)(3), See Arizona Revised (B)(8)(b), (B)(10) The court also found that termination would be in the best interests of Z.S. 3 We cite the current version of the applicable statutes if no revisions material to this decision have since occurred. 4 Although the juvenile court s order states that it terminated Mother s parental rights pursuant to A.R.S. § 8533(B)(8)(b), we find that the court intended to cite to A.R.S. § 8-533(B)(8)(c). Section 8-533(B)(8)(b), formerly the fifteen month out-of-home placement ground for termination, was 6 ¶14 Mother filed her notice of appeal on September 25, 2009. The notice, however, refers to an order filed by the juvenile court on August 25, 2009, which applies only to the termination of the rights of Father. The order Mother s rights was filed on September 22, 2009. terminating Thus, Mother s notice of appeal does not reference the correct order. A mere technical error, however, should not prevent us from reaching the merits of an appeal when adequate notice of the appeal was given to the opposing party and no one was misled. Hanen v. Willis, 102 Ariz. 6, 9, 423 P.2d 95, 98 (1967) (finding an appeal to be timely even though the notice of appeal erroneously included the date of an earlier decision recorded in a minute entry); see also Hill v. City of Phoenix, 193 Ariz. 570, 572-73, 975 P.2d 700, 702-03 (1999) ( [W]here the record discloses an appellant s intent to appeal from a judgment . . . the notice of appeal should be construed as sufficient so long as the defect has neither misled nor prejudiced an opposing party. ). has been no indication here from ADES that the There notice was inadequate or misleading; therefore, we accept Mother s appeal renumbered in 2008 as § 8-533(B)(8)(c). 2008 Ariz. Sess. Laws, ch. 198, § 2 (2d Reg. Sess.). A.R.S. § 8-533(B)(8)(b) provides for termination based on six months out-of-home placement. It is clear from ADES motion that it sought termination under § 8533(B)(8)(c). Further, the court s order refers to a fifteen month out-of-home placement ground for termination but never references a six month out-of-home placement. 7 as timely. We have jurisdiction pursuant to A.R.S. § 8-235 (2007) and Ariz. R.P. Juv. Ct. 103(A). DISCUSSION 5 ¶15 An order terminating parental rights must be supported by clear and convincing evidence showing at least one statutory ground for indicating severance that and severance by is a in preponderance the child s of the best evidence interests. A.R.S. § 8-533(B); Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 22, 110 P.3d 1013, 1018 (2005). We do not reweigh the evidence on review of the juvenile court s finding, and we view the facts in a light most favorable to affirming the court s order. Jesus M. v. Ariz. Dep't. of Econ. Sec., 203 Ariz. 278, 282, ¶ 12, 53 P.3d 203, 207 (App. 2002); Maricopa County Juv. Action No. JS-8490, 179 Ariz. 102, 106, 876 P.2d 1137, 1141 (1994). 5 Mother s arguments are not supported by citations to authorities or references to the record, which could constitute abandonment and waiver of her claims. ARCAP 13(a) (requiring the appellant s brief to contain arguments that include citations to the authorities, statutes and parts of the record relied on ); State v. Carver, 160 Ariz. 167, 175, 771 P.2d 1382, 1390 (1989) ( [O]pening briefs must present significant arguments, supported by authority, setting forth an appellant s position on the issues raised. Failure to argue a claim usually constitutes abandonment and waiver of that claim. ). Considering the importance of Mother s rights at stake here, in our discretion we decide this appeal on its merits based on our own review of the record. See Adams v. Valley Nat. Bank of Ariz., 139 Ariz. 340, 342, 678 P.2d 525, 527 (App. 1984) (recognizing that courts prefer to decide each case upon its merits rather than dismissing on procedural grounds). 8 In addition, we will not disturb the juvenile court s order severing parental rights unless [the court s] factual findings 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). A. ¶16 Fifteen Months Out-of-Home Placement Pursuant to A.R.S. § 8-533(B)(8)(c), the juvenile court can properly sever a parent s rights if (1) the child has been in out-of-home placement for fifteen months or longer; (2) the parent has been unable to remedy the circumstances causing the child to be in out-of-home placement; and (3) a substantial likelihood existed that the parent would not be able to properly care for the child in the near future. We consider those circumstances existing at the time of the severance that prevent a parent from being able to appropriately provide for his or her children. Marina P. v. Ariz. Dep t of Econ. Sec., 214 Ariz. 326, 330, ¶ 22, 152 P.3d 1209, 1213 (App. 2007) (internal quotes and citation omitted). more than trivial or To avoid severance, the parent must make de minimus efforts at remediation. Maricopa County Juv. Action No. JS-501568, 177 Ariz. 571, 576 n.1, 869 P.2d 1224, 1229 n.1 (App. 1994). ¶17 home Mother does not contest that Z.S. has been in out-ofplacement for longer than fifteen months. Rather, she asserts generally that ADES failed to make reasonable efforts to 9 offer services to her. 6 made a diligent We disagree. effort to provide The court found that ADES appropriate reunification services that were designed to improve her ability to parent . . . . Mother does not explain why she believes the court s finding is in error. Based on our review of the record, Mother was given the time and opportunity to participate in a number of services directed at assisting her to reach the case plan goal of family reunification. Thus, we cannot say the court s finding on this issue is clearly erroneous. ¶18 record Additionally, supporting the we find court s reasonable determination evidence that in the Mother was unable to remedy the circumstances causing Z.S. to be in out-ofhome placement and a substantial likelihood existed that she would not be able to properly care for him in the near future. In support of its determination, the court found that Mother did not complete the parent aide goals nor did she complete the substance abuse treatment. The court also found that she has on-going substance abuse issues and she relapsed on cocaine. Again, Mother does not contest these findings. 6 Mother argues that the juvenile court erred by terminating her rights based on six months out-of-home placement. We need not address this argument as the court did not terminate Mother s parental rights on that ground. See supra, n.4. Rather, we construe Mother s argument as challenging the court s decision to sever her rights based on fifteen months out-ofhome placement. 10 ¶19 According substance abuse to that the she record, had Mother been has unable to a history remedy. of She admitted she used cocaine for approximately ten months in 2007 and 2008. Thus, Mother began her cocaine addiction when Z.S. was approximately seven months old. was dishonest about her drug She also admitted that she abuse, denying it during a behavioral health intake and hiding it from her case manager and the court. Although Mother completed a two-week outpatient program for her alcohol and cocaine abuse, Dr. Bluth opined that she had never actually addressed her cocaine dependence. Additionally, following her detox program in May 2008, Mother began smoking and continued to smoke even after becoming pregnant again in January 2009. ¶20 Mother was instructed to participate in two group counseling programs, beginning in September 2008, but failed to complete either program. Instead, Mother address her problems on [her] own. decided she would Mother also failed to fully complete the domestic violence counseling program and her parenting classes, participation in and she individual was inconsistent counseling. with Although her Mother generally participated in her medication checks with TERROS, she failed to attend all of her appointments. ¶21 Additionally, Mother has not shown that she is capable of taking care of Z.S. s special needs. 11 Due to developmental delays and cerebral palsy, Z.S. requires extensive therapy and services. Mother appointments, failed including to an neurologist in July 2009. attend important all of Z.S. s appointment medical with Z.S. s She conceded that she was unaware of the extent of Z.S. s daily needs. Dr. Bluth expressed concern about her ability to handle [Z.S.] and work and keep up with his and her own medical appointments[.] He believed Z.S. would require a parent who is actually more than minimally adequate in order to parent him. Dr. Bluth noted that individuals, such as Mother, who have been diagnosed with Bipolar Disorder are very sensitive to stress in their life and caring for a child with such significant problems would be stressful for a parent who does not have chronic mental health problems. ¶22 In sum, the record supports the juvenile court s decision to sever under A.R.S. § 8-533(B)(8)(c) (fifteen months out-of-home placement). 7 B. ¶23 Best Interests Although she does not argue the court s best interests finding was erroneous, Mother appears to suggest that a bonding assessment could have made a difference in the court s 7 Based on our conclusion, we need not address whether the evidence supports the juvenile court s findings of severance based on mental illness or prior severance for the same cause. 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. ). 12 decision. Mother also asserts place Z.S. with a relative. that no attempts were made to To establish that severance of a parent s rights would be in a child s best interests, the court must find either that the child will benefit from termination of the relationship or that the child continuation of the relationship. would be harmed by James S. v. Ariz. Dep t of Econ. Sec., 193 Ariz. 351, 356, ¶ 18, 972 P.2d 684, 689 (App. 1998). consider In making evidence the that determination, the child is the juvenile adoptable court or existing placement is meeting the needs of the child. may that an Mary Lou C. v. Ariz. Dep't of Econ. Sec., 207 Ariz. 43, 50, ¶ 19, 83 P.3d 43, 50 (App. 2004) (citations omitted). ¶24 Vaughn opined that Z.S. was adoptable and that a prospective adoptive placement who was already in the process of adopting two of Z.S. s siblings, had already expressed interest in adopting Z.S. Vaughn also testified that the existing placement was trained to meet the special developmental needs of Z.S. and that he was receiving appropriate social, educational, and emotional care. This evidence was sufficient to support the court s decision regarding best interests. Thus, the absence of a bonding assessment and the failure of ADES to place the child with a relative, even if relevant to best interests, do not overcome the evidentiary support found in this record. 13 ¶25 We conclude that the juvenile court did not err by finding that adoption would allow Z.S. to have a permanent, safe and loving home that is able to meet all of his education, medical, social and developmental needs and would be in his best interests. CONCLUSION ¶26 For the foregoing reasons, we affirm the juvenile court s order terminating Mother s parental rights to Z.S. /s/ _________________________________ MICHAEL J. BROWN, Judge CONCURRING: /s/ ______________________________ PATRICK IRVINE, Presiding Judge /s/ ______________________________ DONN KESSLER, Judge 14

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