Victoria M. v. ADES, Divine M.

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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 VICTORIA M., ) ) Appellant, ) ) v. ) ) ARIZONA DEPARTMENT OF ECONOMIC ) SECURITY, DIVINE M., ) ) Appellees. ) ) __________________________________) DIVISION ONE FILED: 06-22-010 PHILIP G. URRY,CLERK BY: GH 1 CA-JV 09-0222 DEPARTMENT B MEMORANDUM DECISION (Not for Publication 103(G), Ariz.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. JD17323 The Honorable Crane McClennen, Judge AFFIRMED Law Office of Lisa M. Timmes by Lisa M. Timmes Attorney for Appellant Scottsdale Terry Goddard, Attorney General Phoenix by Claudia Acosta Collings, Tucson Assistant Attorney General Attorneys for Appellee Arizona Department of Economic Security P O R T L E Y, Judge ¶1 Victoria M. ( Mother ) appeals the termination of her parental rights. For the following reasons, we affirm. FACTS AND PROCEDURAL BACKGROUND 1 ¶2 Mother and her child left Phoenix Seattle, Washington, in February 2008. and settled in The Washington Child Protective Service ( CPS ) agency began to receive allegations that Mother was neglecting the child. was initiated and February 22, 2008. the child was A dependency proceeding placed in foster care on The dependency was transferred to Arizona in September 2008 when the child was placed with a maternal aunt in Phoenix. ¶3 The Arizona Department of Economic Security ( ADES ) filed a dependency petition in the juvenile court on October 3, 2008. child The petition alleged Mother was unable to care for her due to neglect and mental illness. Additionally, the petition alleged that the Washington CPS could not locate Mother after the child had been placed in foster care and CPS believed Mother had returned to Arizona. ¶4 Mother appeared at the initial dependency hearing and denied the allegations. She, however, agreed during mediation 1 We view the facts in the light most favorable to upholding the juvenile court s determination. Manuel M. v. Ariz. Dep t of Econ. Sec., 218 Ariz. 205, 207, ¶ 2, 181 P.3d 1126, 1128 (App. 2008). 2 to participate evaluation; in substance the following abuse services: assessment and psychological treatment; random urinalysis testing; a self-referral to Magellan; 2 and visitation with the child at ADES s discretion. The juvenile court subsequently found the child dependent and set the case plan for family reunification, based on the agreed-upon reunification services, as well as parent-aide services and transportation, if necessary. 3 ¶5 The case plan was changed to severance and adoption six months later. alleged that ADES then filed a motion for termination and Mother had abandoned the child under Arizona Revised Statutes ( A.R.S. ) section 8-533(B)(1) (Supp. 2009) 4 and the child had been in an out-of-home placement for nine months or longer under A.R.S. § 8-533(B)(8)(a). After the contested severance hearing, the court terminated Mother s parental rights and entered 2009. the formal order of termination on November 24, Mother appealed, and we have jurisdiction pursuant to A.R.S. §§ 8-235 (2007), 12-120.21(A)(1), and -2101(B) (2003). 2 Magellan Health Services of Arizona, Inc., is the Regional Behavioral Health Authority of Maricopa County, and manages the publicly funded behavioral health care delivery system. 3 The juvenile court also found the child dependent as to her biological Father. His parental rights were subsequently terminated. He filed an appeal, but it is not presently before us. 4 We cite to the current version of A.R.S. § 8-533 because the statute has not been amended in a way material to this decision. 3 DISCUSSION ¶6 Before terminating parental rights, a juvenile court must find by clear and convincing evidence the existence of one statutory basis for termination. Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 22, 110 P.3d 1013, 1018 (2005). The court must also find that the termination is in the best interests of the child by a preponderance of the evidence. 5 severance order unless it is Id. clearly We will affirm the erroneous, Jesus M. v. Ariz. Dep t of Econ. Sec., 203 Ariz. 278, 280, ¶ 4, 53 P.3d 203, 205 (App. 2002), and the juvenile court will be deemed to have made every finding necessary to support the judgment. Maricopa County Juvenile Action No. JS-8287, 171 Ariz. 104, 111, 828 P.2d 1245, 1252 (App. 1991) (quoting Pima County Severance Action No. S-1607, 147 Ariz. 237, 238, 709 P.2d 871, 872 (1985)). will accept the juvenile court s findings of fact reasonable evidence supports those findings. [W]e unless no Jesus M., 203 Ariz. at 280, ¶ 4, 53 P.3d at 205. ¶7 Mother argues there was insufficient support any statutory ground for termination. evidence to She argues that ADES did not prove by clear and convincing evidence that she substantially neglected or willfully refused to remedy the circumstances that resulted in 5 the child being placed into Mother does not challenge the juvenile court s determination that the termination was in the child s best interests. 4 ADES s care or that ADES made reasonable efforts to provide her with appropriate reunification services to support termination based on the child being in an out-of-home placement for nine months or longer. 6 ¶8 Termination based upon nine months in care requires proof that placement a for child at has least been nine in court-ordered months, that ADES out-of-home had made a diligent effort to provide appropriate reunification services, and that the parent had substantially neglected or wilfully refused to placement. remedy the circumstances A.R.S. § 8-533(B)(8)(a). necessitating the The circumstances that caused the out-of-home placement are those 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) (quoting Maricopa County Juv. Action No. JS-8441, 175 Ariz. 463, 468, 857 P.2d 1317, 1322 (App. 1993), abrogated on other grounds by Kent K., 210 Ariz. at 282-84, 110 P.3d at 1016-18). We focus on the effort of the parent to remedy the circumstances and not the parent s success in doing so. Marina P., 214 Ariz. at 329, ¶ 20, 152 P.3d at 1212. 6 We need not address whether there was sufficient evidence to support the ground of abandonment because we need only find one statutory basis to affirm the juvenile court s termination of Mother s rights. See Kent K., 210 Ariz. at 284, ¶ 22, 110 P.3d at 1018. 5 ¶9 The juvenile court found that Mother only submitted four to five (4-5) random urinalysis tests and participated in a psychological consultation and that she refused to visit her daughter for dependency, the first failed six to keep (6) months of in regular the underlying contact with the Department, and failed to even provide a working phone number or address at which she could be contacted. participate in any parent-aide Mother also failed to services, or substance abuse assessment and evaluation. ¶10 Mother child. argues that she made attempts to visit the She, however, did not visit her child for the first six months of the dependency proceedings, and once she attempted visits, Mother often failed to visit the child because she did not follow contact up with information. her case For manager example, and provide Mother appropriate called her case manager on April 30, 2009, and requested a visit the following day. The case manager returned Mother s call and informed her that a visit could not be scheduled without more notice. Mother did not call back until May 7, 2009, and again requested a next day visit. After the case manager again told Mother that ADES needed more notice to schedule a visit, Mother did not contact her again until July. ¶11 Mother met her case manager in after the severance motion had been filed. July 6 2009; a month After Mother was told she needed a psychological consultation before a visit, Mother attended psychologist, and completed however, opined the that consultation. Mother was The unstable and recommended she not be allowed to visit with the child until she had a full psychological evaluation. An evaluation was scheduled, but Mother had provided an incorrect address and the letter was returned. Mother subsequently went to the case manager s office three times; twice she left before anyone could speak with her, and she provided her case manager with a telephone number where she could not be reached. ¶12 Mother went to St. Luke s Behavioral Health Center in September 2009. copy of the She refused, however, to allow ADES access to a intake assessment. She allowed the St. Luke s intake worker to call ADES, who told ADES about her concerns with Mother s recommended mental that health, Mother sign and informed herself into ADES the that she hospital for treatment, but Mother refused. ¶13 While Mother argues that she was working to the best of her ability within the bounds of her serious mental health issues and that she made genuine efforts to participate in services, there is reasonable evidence that Mother only made sporadic, aborted attempts, see Maricopa County Juv. Action No. JS-501568, 177 Ariz. 571, 576, 869 P.2d 1224, 1229 (App. 1994), to participate. Mother only participated in a few of the 7 offered services, information. and failed to provide accurate contact Moreover, as noted by the juvenile court, Mother failed to obtain stable housing and employment, and her current residence remains substantial unknown. evidence Accordingly, to support we the find there juvenile was court s determination that Mother substantially neglected or willfully refused to remedy the circumstances. ¶14 We also agree with the juvenile court s finding that ADES made a diligent reunification services. effort to provide appropriate It is well established that [ADES], 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), including providing a parent with the time and opportunity to participate in programs, Maricopa County Juv. Action. No. JS-501904, 180 Ariz. 348, 353, 884 P.2d 234, 239 (App. 1994). obliged to undertake futile rehabilitative ADES is not measures, it need only undertake measures with a reasonable prospect of success. Mary Ellen C., 193 Ariz. at 192, ¶ 34, 971 P.2d at 1053. ¶15 ADES offered Mother a range of services. She argues that ADES failed to make diligent efforts because ADES should not have obtain allowed her own a seriously services and 8 mentally because unstable her [woman] to psychological evaluation was not set until after the case plan was changed to termination. ¶16 Mother, however, had agreed to refer herself to Magellan for evaluation and treatment during the mediation, and did not comply. for an intake Moreover, the fact that she went to St. Luke s assessment because she needed a psychological evaluation demonstrates that she could, and did, seek out mental health services, albeit untimely. Additionally, there was sufficient evidence to allow the juvenile court to determine that Mother s failure to provide appropriate contact information was a cause of the lack of success in scheduling services or advising her about the schedule. ¶17 Based on the services provided and because ADES is not required to . . . ensure that a parent participates in each service it offers, JS-501904, 180 Ariz. at 353, 884 P.2d at 239, we find there was sufficient evidence for the juvenile court to conclude that ADES provided appropriate reunification services. Consequently, the juvenile court had sufficient information to determine by clear and convincing evidence that Mother substantially neglected or willfully refused to remedy the circumstances that resulted in the child s out-ofhome placement and that ADES made reasonable efforts to provide Mother with appropriate reunification services. 9 CONCLUSION ¶18 For the foregoing reasons, we affirm the judgment. /s/ ___________________________ MAURICE PORTLEY, Judge CONCURRING: /s/ ________________________________ JOHN C. GEMMILL, Presiding Judge /s/ ________________________________ PATRICIA K. NORRIS, Judge 10

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