Kristi A. v. ADES, Tehya H., Dakota H.
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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 KRISTI A., Appellant, v. ARIZONA DEPARTMENT OF ECONOMIC SECURITY, TEHYA H., DAKOTA H., Appellees. ) ) ) ) ) ) ) ) ) ) ) 1 CA-JV 09-0207 DIVISION ONE FILED: 04/29/10 PHILIP G. URRY,CLERK BY: JT DEPARTMENT A MEMORANDUM DECISION (Not for Publication Ariz. R.P. Juv. Ct. 103(G); ARCAP 28) Appeal from the Superior Court in Mohave County Cause No. JD2008-0022 The Honorable Richard Weiss, Judge AFFIRMED Jill L. Evans, Mohave County Appellate Defender by Diane S. McCoy, Deputy Appellate Defender Attorneys for Appellant Terry Goddard, Attorney General by Kathleen Skinner, Assistant Attorney General Attorneys for Arizona Department of Economic Security Kingman Mesa W I N T H R O P, Judge ¶1 her Kristi A. ( Mother ) appeals from an order terminating parental rights pursuant to Arizona Revised Statutes ( A.R.S. ) sections 8-533(B)(2) and 8-533(B)(8)(a) (Supp. 2009). For the following reasons, we affirm. FACTS AND PROCEDURAL BACKGROUND ¶2 Mother marriage, an has two biological eleven-year-old daughter ( Daughter ). son children ( Son ) from and a a previous ten-year-old In April 2008, Child Protective Services ( CPS ), a branch of the Arizona Department of Economic Security ( ADES ), received ( Husband ), the a report children s that Mother s stepfather, had current burned husband Son with cigarettes and refused to allow the children into the home when they returned allegations home. 1 from of school. emotional The abuse report and was domestic accompanied violence in by the CPS removed the children from the home and placed them with their maternal grandparents, where they remained through the severance hearing. ¶3 On alleging, April 25, primarily, that ADES filed Mother had children from Husband s physical abuse. a dependency failed to petition protect the At the time, Mother was also briefly incarcerated for failing to appear on charges of issuing a bad check and possession 1 of drug paraphernalia. Mother and Husband had a history of domestic violence, including a November 2007 incident where Husband withheld the keys to the family car, head butt[ed] Mother, held her down, punched her, tossed her around the room, and pulled her hair. At the severance hearing, when presented with the police report from the incident, Mother testified that the police report was inaccurate that Husband did not punch her or pull her hair. 2 Mother denied the allegations in the dependency petition, but submitted the matter to the court. The court found the children dependent as to Mother. ¶4 family Following the reunification children s plan, 2 case removal, offering ADES Mother instituted and a Husband parenting classes, random urinalysis testing, a substance abuse assessment and treatment, domestic violence counseling, mental health services, a psychological evaluation, rent assistance and budgeting services from Catholic Charities, visitation, and transportation. ¶5 In early July 2008, Mother and Husband participated in psychological evaluations. Mother s evaluation revealed depression and anxiety, elevated antisocial conduct, and denial of both her psychological state and a potential marijuana abuse problem. The evaluating doctor explained that people with depressive disorders have trouble focusing . . . on things in their life, specifically for this case, . . . the children s needs. traits He also expressed concerns about Mother s codependent and however, their testify impact that on all the of 2 children. Mother s The doctor diagnoses would did, be In November 2008, CPS changed the case plan to severance and adoption, after Mother and Husband briefly ceased participating in services and moved out of Mohave County, to Holbrook, Arizona. 3 amenable to being conquered[,] with commitment and appropriate treatment. ¶6 Husband s assessment revealed alcohol dependence and marijuana use, as well as a bipolar disorder. The doctor noted evidence of antisocial and borderline personality traits, the characteristics of which include impulsivity and irresponsibility[,] as well as irritability and aggressiveness [that] could lend itself to physical and emotional abuse of a child. case Ultimately, the doctor reported that, even with the plan s discharge proposed Husband s responsibilities parental interventions, would ability be to highly questionable due to the fact that [h]e has a chronic mental condition exacerbated by continued alcohol use, and [h]e has an underlying personality disorder that will continue to be there even with the provision of specialized services. ¶7 With the exception complied with her case plan. was improving and learning of parenting classes, Mother Her counselors reported that she to set boundaries with Husband. Husband, however, was non-compliant. ¶8 Although domestic violence incidents appear to have ceased after November 2008, 3 control issues continued to plague 3 In November 2008, home placement, police down a short flight of leaving a contusion on seven months into the children s out-ofarrested Husband after he pushed Mother stairs and held his hand over her mouth, the left side of her head and swelling on 4 Mother form of Husband restricting Mother s access to the telephone or car. At the and Husband s severance hearing, relationship, Mother s usually father in the ( Grandfather ), case manager, and the doctor who conducted the couple s psychological evaluations, expressed concern about Mother s minimization of Husband s behavior and doubts about her prognosis for parenting as long as Husband remained in her life. Son also testified to being afraid of Husband. ¶9 After a three-day hearing, the juvenile court severed Mother s parental rights. Mother timely appealed, and we have jurisdiction pursuant to A.R.S. §§ 8-235 (2007), 12-120.21(A)(1) (2003), and -2101(B) (2003). ANALYSIS ¶10 Mother argues that the evidence does not support the juvenile court s findings that she failed to protect her children from neglect, see A.R.S. § 8-533(B)(2), and that she substantially neglected or willfully refused to remedy the circumstances that caused the children to remain in an out-ofhome placement for a period of nine months or longer, see A.R.S. § 8-533(B)(8)(a). She also argues ineffective assistance of trial counsel. her nose. Husband eventually pleaded guilty domestic violence and served four months in jail. 5 to aggravated 1. Section 8-533(B)(2) ¶11 To justify termination of parental rights, the juvenile court must find, by clear and convincing evidence, at least one of the statutory grounds set forth in A.R.S. § 8-533. A.R.S. § 8-537(B) (2006); Michael J. v. Ariz. Dep t of Econ. Sec., 196 Ariz. 246, 249, ¶ 12, 995 P.2d 682, 685 (2000). Under any of the § 8-533 grounds, the court must also consider the best interests of the children. 4 A.R.S. § 8-533(B); Michael J., 196 Ariz. at 249, ¶ 12, 995 P.2d at 685. Here, the juvenile court found two statutory grounds: (1) that Mother failed to protect the children from abuse or neglect under A.R.S. § 8533(B)(2), and (2) that Mother substantially neglected to remedy the problem that caused the out-of-home placement under A.R.S. § 8-533(B)(8)(a). ¶12 Following closing arguments, the court assessed the case, finding credibility issues and observing Mother to be a minimizer, a person in denial, an avoidance as to certain questions. enabler, and one with The court explained that there is ample evidence in this file that [Husband] is not [a] hypothetical threat to these children, but is a verifiable, demonstrated threat to these children s well-being. We agree, and begin by addressing the juvenile court s finding that Mother 4 Mother does not interests finding. challenge 6 the juvenile court s best failed to protect the children from abuse. See A.R.S. § 8- 533(B)(2). ¶13 The 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 witnesses, and make appropriate findings. credibility of Jesus M. v. Ariz. Dep t of Econ. Sec., 203 Ariz. 278, 280, ¶ 4, 53 P.3d 203, 205 (App. 2002). of fact We therefore accept the juvenile court s findings unless findings[.] Id. clearly erroneous. no reasonable evidence supports those We will affirm a severance order unless it is Id.; Audra T. v. Ariz. Dep t Econ. Sec., 194 Ariz. 376, 377, ¶ 2, 982 P.2d 1290, 1291 (App. 1998). ¶14 First, Mother asserts the court improperly considered testimony that Husband burned Son with cigarettes, because the testimony consisted solely of the child s statements that the incident had happened and was not corroborated by a medical diagnosis. Son testified that Husband flicked cigarettes at him while the family lived in Washington and that the marks on his arms were the result of cigarette burns. Both the CPS case manager and Grandfather testified to seeing burn marks on Son s arms, thus corroborating Son s testimony. Despite Mother s argument to the contrary, a medical diagnosis was not required. Witnesses may testify in the form of opinions or inferences rationally based on the perception of the witness and helpful to 7 an understanding of the witness s testimony or the determination of a fact in issue. State v. Tiscareno, 190 Ariz. 542, 544, 950 P.2d 1163, 1165 (App. 1997) (noting, A person does not have to be a medical expert to testify that broken ); see Ariz. R. Evid. 701. witnesses is a trial court her own nose has been Further, the credibility of determination that we need not disturb. ¶15 Mother also argues that the court mistakenly relied on a dated psychological evaluation. See In re Maricopa County, Juvenile Action No. JS-378, 21 Ariz. App. 202, 206, 517 P.2d 1095, 1099 (1974) ( neither this court nor the juvenile court could make such inferences which were vital to the proof of [Mother s] case from a psychological evaluation conducted over one year before distinguishable severance). from the The present case case Mother for cites several is reasons. First, the ground for severance in the cited case was mental illness, not evaluation neglect. was of Id. utmost, Accordingly, if not sole, the psychological importance. More important, the court did not find the dated evaluation invalid per se, rather, it found the juvenile court needed to support its conclusions with additional evidence. Id. In the present case, the juvenile court lists Mother s psychological evaluation as only one of several factors contributing to its decision. 8 Because the trial court did not solely rely on the psychiatric evaluation, it was not error for the court to consider it. ¶16 Next, Mother argues the court failed to consider her progress in the CPS-recommended services, and Husband s progress in counseling following his release from jail. As the State notes, however, participation and progress in services are not required court elements was under concerned A.R.S. 8-533(B)(2). whether with § Mother was Instead, the capable of acknowledging and acting upon the danger Husband posed to her children. Despite Mother s compliance with recommended services, the court properly considered her ability to protect the children from harm. ¶17 This case ultimately hinged on credibility determinations, and the court found Mother less credible than others. Mother s acknowledge testimony Husband s past indicated abuse potential for future violence. of an the unwillingness children and to the Despite Son s testimony that he was afraid of Husband, that Husband flicked cigarettes on him when the family lived in Washington, that Husband hit him in the arms and stomach more recently, and that he had observed Husband hitting Mother, Mother maintained the belief that Husband never physically abused either of the children. In fact, Mother attributed Son s fear of Husband to Grandfather s coaching and suggested Son was lying. Daughter s 9 statements to the case manager corroborated Son s testimony, however, and the record is replete with conclusions. 2. ¶18 supporting the juvenile court s any of We affirm the court s ruling. Section 8-533(B)(8)(a) If statutory evidence sufficient grounds evidence upon which supports the juvenile one court the ordered severance, we need not address claims pertaining to the other grounds. Jesus M., 203 Ariz. at 280, ¶ 3, 53 P.3d at 205; see Michael J., 196 Ariz. at 251, ¶ 27, 995 P.2d at 687. Having found that there was sufficient evidence to support the juvenile court s § 8-533(B)(2) finding, we will not address the court s § 8-533(B)(8)(a) findings. 3. ¶19 Ineffective Assistance of Counsel Mother claims for the first time on appeal that her trial counsel was ineffective because he failed to object to the admission of hearsay evidence, medical opinions, and psychological evidence. We assume, without deciding, that the law ineffective permits severance relief for proceedings and apply assistance the criminal ineffective assistance of counsel claims. of counsel in standard to John M. v. Arizona Dep t of Econ. Sec., 217 Ariz. 320, 324, 325, ¶¶ 14, 17, 173 P.3d 1021, 1025, 1026 (App. 2007); see Strickland v. Washington, 466 U.S. 668 (1984). 10 ¶20 To prevail on her claim of ineffective assistance of counsel, Mother must show that counsel s actions were professionally unreasonable and that such action prejudiced her. Strickland, 466 U.S. at 688, 691-92. the juvenile court s termination Thus, we will not reverse order unless Mother can demonstrate both that counsel s performance was 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. John M., 217 Ariz. at 325, ¶ 18, 173 P.3d at 1026 (citation omitted). That appellate counsel now disagrees with [trial counsel s] strategy or claims errors in trial tactics is not enough to support a finding that the trial lawyer s conduct was incompetent. State v. Pereida, 170 Ariz. 450, 454, 825 P.2d 975, 979 (App. 1992) (citation omitted). ¶21 have First, objected particularly Mother to the concerning claims that hearsay Son s her trial statements abuse counsel of allegations, lacked sufficient indicia of reliability. 5 the should children, because they In a termination proceeding, [t]he out of court statements or nonverbal conduct 5 Mother fails to cite to what she considers the objectionable parts of the record. Because her trial attorney objected to the case manager s testimony regarding an outburst that occurred prior to the children s removal from the home, Mother cannot claim that her counsel did not object to any of the children s hearsay statements. 11 of a minor regarding acts of abuse or neglect perpetrated on him are admissible for all purposes . . . if the time, content and circumstances of such statement indication of its reliability. testimony that Husband burnt punched him was not hearsay. . . . provide sufficient A.R.S. § 8-237 (2007). his arms with Son s cigarettes and Son s hearing testimony supported both the case manager and Grandfather s hearsay testimony, as did the fact both the observed personally that case burn marks manager and Son s arms. on Grandfather Further, Daughter s statement to the case manager that Husband did not hit her often, corroborated contention but the that did hearsay the hit her brother testimony. children s We hearsay and mother, reject Mother s statements lacked sufficient indicia of reliability. ¶22 Next, Mother argues her attorney should have objected to the case manager s testimony describing marks she observed on Son s arms and Mother s mental health, because the case manager was not a qualified medical expert. The case manager was not testifying as an expert, rather, she offered her opinions as a lay witness with two years experience as a CPS specialist. explained supra, a lay witness may offer opinion As testimony rationally based on the perception of the witness and . . . helpful to a clear understanding of the witness testimony or the determination of a fact in issue. 12 Ariz. R. Evid. 701. Her testimony was based on her own observations and experience and the attorney s failure to object to its admission was not necessarily unreasonable. ¶23 Mother also argues that trial counsel should have objected to the admission of Mother s psychological evaluation. Contrary to Mother s belief, the date of the evaluation, in and of itself, does not make it inadmissible. See In re Maricopa County, Juvenile Action No. JS-378, 21 Ariz. App. at 206, 517 P.2d at 1099. As previously discussed, the psychological evaluation s conclusions were supported by other evidence and counsel s failure to object did not necessarily indicate incompetence. ¶24 Even supposing trial counsel s performance fell below an objective standard of reasonableness, the record abounds with evidence that Mother was, as the court described, a minimizer, a person in denial, [and] an enabler, unable to protect her children. She has failed to show that she was prejudiced by her trial counsel s inaction. 13 CONCLUSION ¶25 For the foregoing reasons, we affirm the juvenile court s order severing Mother s parental rights. ____________/S/______________ LAWRENCE F. WINTHROP, Judge CONCURRING: _______________/S/_______________ MAURICE PORTLEY, Presiding Judge ______________/S/________________ MARGARET H. DOWNIE, Judge 14
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