Stephanie L. 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 STEPHANIE L., ADAM E., Sr., Appellants, v. ARIZONA DEPARTMENT OF ECONOMIC SECURITY, ADAM E., Jr., Appellees. ) ) ) ) ) ) ) ) ) ) ) ) ) ) 1 CA-JV 10-0007 DIVISION ONE FILED: 06-29-2010 PHILIP G. URRY,CLERK BY: GH DEPARTMENT A MEMORANDUM DECISION (Not for Publication Ariz. R.P. Juv. Ct. 103(G); ARCAP 28) Appeal from the Superior Court in Maricopa County Cause No. JD15974 The Honorable Cathy M. Holt, Judge, Retired AFFIRMED ___________________________________________________________ The Stavris Law Firm, PLLC by Alison Stavris Attorney for Appellant Stephanie L. Scottsdale Popilek & Jones, P.A. by John L. Popilek Attorney for Appellant Adam E., Sr. Scottsdale Terry Goddard, Arizona Attorney General Mesa by Amanda Holguin, Assistant Attorney General Attorneys for Appellees. ___________________________________________________________ B A R K E R, Judge ¶1 Appellants Stephanie L. ( Mother ) and Adam E., Sr. ( Father ) appeal the juvenile court s order terminating their parental rights to their son, Adam E., Jr. ( Adam ). Finding no error, we affirm. Facts and Procedural History ¶2 Mother and Father are the unmarried parents of Adam, who was born in April 2008. biological On June 10, 2008, Child Protective Services ( CPS ), a division of the Arizona Department of Economic Security ( ADES ), received a report that Mother purposefully dropped Adam on the floor of Father s apartment during an argument with Father the previous day. Father immediately took Adam to the emergency room where he was treated and diagnosed as having a small contusion on the back of the skull. On June 13, 2008, because CPS took temporary custody of Adam of imminent risk from dangerous home conditions and domestic violence. ¶3 Four days later, CPS filed a dependency petition alleging (1) Mother was unable to parent due to physical abuse, domestic violence with Father in the presence of Adam, ongoing dependency with her daughter, 1 and ongoing 1 Father is not the biological father of Mother s daughter. On February 23, 2009, the juvenile court severed Mother s parental rights to daughter pursuant to Arizona 2 substance abuse; and (2) Father was unable to parent due to domestic violence with Mother in the presence of Adam and use of illegal substances. Mother waived her right to contest dependency, and the court found Adam dependent as to Mother. After a contested dependency hearing, the court also found Adam dependent as to Father. The court set the case plan as family reunification and found the services offered to services Father offered evaluation, services, scheduled to necessary Father to testing, and housing appointments, reasonable. a TERROS Father was and parent aide substance abuse also employment. completed none The psychological Magellan, and treatment. stable and included referral urinalysis assessment maintain self were of required Father the to missed requested services, 2 and made sporadic visits with Adam. ¶4 CPS offered Mother substance-abuse services, random drug testing, domestic violence counseling, a selfreferral to transportation, Magellan parenting for mental classes, and supervised visits with Adam. health parent-aide services, services, Mother was also required Revised Statutes ( A.R.S. ) section 8-533(B)(1), (B)(8)(a) (Supp. 2009). 2 After the termination motion was filed, Father completed a class on infant brain development, but this class was not required by CPS. 3 to obtain and maintain stable housing and employment. In January 2009, Mother was homeless and was not participating in any services. evaluation prior Mother to CPS completed taking a Adam psychological and briefly participated in parent aide services but failed to comply with the other required services. Mother never visited Adam, and she failed to maintain regular contact with CPS. Mother was often homeless or moving from place to place and by May 2009 Immigration was and detained Customs in a Florence Enforcement prison ( ICE ) by following incarceration on charges of prostitution. ¶5 On June 12, 2009, ADES filed a motion to terminate Mother s and Father s parental rights to Adam. Following a three-day trial, the juvenile court severed Father s parental rights because he abandoned Adam pursuant to Arizona Revised Statutes ( A.R.S. ) section 8-533(B)(1) (Supp. 2009) and had substantially neglected or willfully refused to remedy the circumstances causing Adam s out-ofhome placement for nine months or longer pursuant to A.R.S. § 8-533(B)(8)(a). The juvenile court severed Mother s parental rights because Mother abandoned Adam under A.R.S. § 8-533(B)(1), and had substantially neglected or willfully refused to remedy the circumstances causing Adam to remain in out-of-home placement for nine months or longer under 4 A.R.S. § 8-533(B)(8)(a), and had her parental rights to another child severed within the preceding two years for the same cause under A.R.S. § 8-533(B)(10). The juvenile court also found severance was in Adam s best interest. Mother and Father timely filed notices of appeal. ¶6 We have jurisdiction pursuant to A.R.S. §§ 8-235 (2007), 12-120.21 (2003), and 12-2101(B) (2003). Discussion ¶7 in We view the facts and all reasonable inferences the light court s order. most favorable to upholding the juvenile Jesus M. v. Ariz. Dep t of Econ. Sec., 203 Ariz. 278, 282, ¶ 13, 53 P.3d 203, 207 (App. 2002). The juvenile (1) court properly severs parental rights when clear and convincing evidence proves a statutory ground for termination and (2) a preponderance of the evidence shows severance is in the best interests of the child. Christy C. v. Ariz. Dep t of Econ. Sec., 214 Ariz. 445, 449, ¶ 12, 153 P.3d 1074, 1078 (App. 2007). We review for an abuse of discretion and will reverse the juvenile court s order if no reasonable evidence supports its factual findings. Id. at 451, ¶ 19, 153 P.3d at 1080; Denise R. v. Ariz. Dep t of Econ. Sec., 221 Ariz. 92, 93, ¶ 3, 210 P.3d 1263, 1264 (App. 2009). 5 1. Father s Parental Rights A. ¶8 Statutory Grounds for Severance Father argues severance of his parental rights was clearly erroneous because the trial court failed to consider several mitigating circumstances. Father contends (1) he was marginally In particular, advised of the services he needed to complete in order to reunite with Adam, (2) he visited Adam six or seven times, (3) it was difficult to communicate with the CPS case manager because of telephone issues, and (4) he maintained employment and actively parented his two other children. ¶9 Pursuant to A.R.S. § 8-533(B), termination parental rights is appropriate when: 1. [T]he parent child[;] [or] has abandoned the . . . . 8. [T]he child is being cared for in an out-of-home placement under the supervision of the juvenile court, the division or a licensed child welfare agency, that the agency responsible for the care of the child has made a diligent effort to provide appropriate reunification services and that either of the following circumstances exists: (a) The child has been in an out-ofhome placement for a cumulative total period of nine months or longer pursuant to court order or voluntary placement pursuant to § 8-806 and the parent has 6 of substantially neglected or willfully refused to remedy the circumstances which cause the child to be in an out-of-home placement. A.R.S. § 8-533(B)(1), (8)(a). ¶10 As required by A.R.S. § 8-533(B)(8)(A), CPS offered reunification services to Father beginning in June 2008, which was approximately one year prior to the filing of the motion to sever Father s parental rights for failing to remedy the circumstances causing Adam s out-of-home placement. Unlike the obstacles facing some parents in termination proceedings, Father little to reunite with Adam. was required to do very See Vanessa H. v. Ariz. Dep t of Econ. Sec., 215 Ariz. 252, 253, ¶ 3, 159 P.3d 562, 563 (App. 2007) (teenage mother had mental deficiency); Mary Lou C. v. Ariz. Dep t of Econ. Sec., 207 Ariz. 43, 46, ¶¶ 12-13, 83 incarcerated abuse). P.3d and The 43, had a 48 (App. twelve-year services offered to 2004) history Father (mother of was substance included a psychological evaluation, self referral to Magellan, parent aide abuse services, urinalysis assessment and testing, treatment. and TERROS Father substance could have completed the services offered to him and been reunited with Adam but chose not to do so. 7 ¶11 During a June 2008 meeting with Father, the CPS case manager identified reunification, but services a September until 2008, Father test the the required refused established results of a services participate to his for in paternity. 3 paternity Father was Adam s biological Father. test In showed In December 2008, after the juvenile court found Adam dependent to Father and approved the reunification services offered to Father, the case manager also gave Father a copy of the court s minute entry from the dependency hearing, which specified the required services. 3 Father, relying on Pima County Juvenile Severance Action No. S-114487 v. Adam, 179 Ariz. 86, 876 P.2d 1121 (1994), asserts that the court erred in considering his conduct prior to the establishment of paternity. We disagree. In S-114487, the court stated that [o]nly if paternity is legally established and the unwed father seeks custody does he have the right to provide emotional support and receive the corresponding benefits of a parental relationship. Id. at 96, 876 P.2d at 1131. Father accordingly asserts that it was inappropriate to consider his conduct prior to the establishment of paternity. He is wrong. The next sentence in S-114487 makes this clear: Thus, because the unwed father has no immediate and obvious legal ties to the child, he must act to establish his parent-child relationship. Id. (emphasis added). Our supreme court went on to state: Thus, in whatever manner we apply the statute s language to termination proceedings against an unwed father with no parental relationship, the message, put simply, is this: do something, because conduct speaks louder than words or subjective intent. Id. at 97, 876 P.2d at 1132 (emphasis added). Thus, the trial court did not err in considering Father s lack of action prior to the establishment of a paternity test. 8 ¶12 The CPS case manager scheduled two psychological consultations and twice referred Father to substance-abuse services, but Father failed to participate in the services. In May 2009, Father had not visited Adam in six months. Despite problems with the case manager s telephone from May 2009 to August 2009, Father had been informed of the services required to reunite with Adam since June 2008 and could have found a way to complete the services. Moreover, Father failed to complete any services before May 2009, when the case manager s telephone functioned properly. ¶13 Father maintained at trial that he was employed throughout the proceedings, but he submit proof of employment to CPS. repeatedly failed to Father also testified that he parented his daughter and provided child support to his son in Louisiana. good father. Father contends this shows he is a The juvenile court, however, interpreted this as evidence that Father had assumed parental responsibility for his other children but had failed to do so for Adam. ¶14 Contrary to Father s assertion, the juvenile court considered all the evidence presented but found it supported juvenile severance court is under in A.R.S. the best § 8-533(B)(8)(a). position to weigh The the evidence, judge the credibility of the parties, observe the parties, and make appropriate 9 factual findings, Pima County Dependency Action No. 93511, 154 Ariz. 543, 546, 744 P.2d 455, 458 (App. 1987), and we look only to determine whether reasonable evidence supports the court s ruling. Maricopa County Juvenile Action No. JV-132905, 186 Ariz. 607, 609, 925 P.2d 748, 750 (App. 1996). was enacted in children in rights but response foster care refuse responsibilities. to the whose to Section 8-533(B) increasing parents number maintain assume their of parental parental Ariz. Dep t of Econ. Sec. v. Oscar O., 209 Ariz. 332, 337, ¶ 16, 100 P.3d 943, 948 (App. 2004) (quoting 1986 Ariz. Sess. Laws, ch. 205, §§ 1, 6). purpose of § 8-533(B) is to expedite the The adoption of numerous children who remain in temporary foster care . . . and in so doing[,] promote a stable and long-term family environment for these children. Sess. Laws, ch. 205, §§ 1, 6). Id. (quoting 1986 Ariz. Adam is the type of child meant to benefit by severance under § 8-533(B). court could have easily concluded that had The trial Father been serious about parenting Adam, he would have complied with the reunification plan prior to the filing of the motion to sever the parent-child relationship. At the time of trial, Adam had been in an out-of-home placement for eighteen of his twenty evidence months supports of the life. On trial 10 this court s record, reasonable determination that Father substantially remedy the neglected circumstances or willfully causing Adam s refused to out-of-home placement. 4 B. ¶15 Best Interests Father argues the juvenile court s determination that severance was in Adam s best interests was clearly erroneous. When terminating the parent-child relationship, a preponderance of the evidence must show that severance is in the child s best interests. 449, ¶ 12, 153 P.3d at 1078. a finding severance as or relationship. to be how The juvenile court must make the harmed Christy C., 214 Ariz. at child by the would benefit continuation from of a the Maricopa County Juv. Action No. JS-500274, 167 Ariz. 1, 5, 804 P.2d 730, 734 (1990). Evidence that the child is adoptable, that an adoption plan exists, or that the existing placement meets the child s needs is sufficient to support a finding that severance is in the 4 We need not address Father s argument as it relates to abandonment because proof of only one statutory ground for termination is required to support an order terminating the parent-child relationship. A.R.S. § 8-533(B) (stating termination of the parent-child relationship is proper when sufficient evidence proves any one of the statutory grounds for termination). For the same reason, we decline to address Father s claim that the juvenile court violated his right to due process when it severed his parental rights on the ground of abandonment because he did not have notice that he could send gifts and financial support to Adam. 11 child s best interests. Mary Lou C. v. Ariz. Dep t of Econ. Sec., 207 Ariz. 43, 50, ¶ 19, 83 P.3d 43, 50 (App. 2004). ¶16 Here, the CPS case manager testified that Adam was adoptable and needed permanency and stability in his life. In addition, the case manager believed Father had not made any behavioral changes to meet Adam s basic needs. Accordingly, reasonable evidence supports the juvenile court s best interests finding. C. Ninety-Day Extension ¶17 While testifying at the severance hearing, Father asked the juvenile court for a ninety-day extension so that he could complete the requirements for reunification. Father s counsel made the same request again during closing argument. To the extent the request was properly presented to the juvenile court, we deem it denied because the court issued an order severing the parent-child relationship without commenting on the extension request. See State v. Hill, 1385 174 Ariz. 313, 323, 848 P.2d 1375, (1993) (stating a motion is treated as denied when the court fails to rule on it). Father argues the juvenile court abused its discretion by denying this request. ¶18 Father first learned of We disagree. the requirements necessary for reunification at the June 2008 meeting with 12 the CPS case manager. When paternity was established in September 2008, Father had eight months to complete the required services before ADES filed the motion to sever the parent-child relationship. motion to sever, Father Even after the filing of the still had over four months to complete the services prior to the first severance hearing. On this record, Father had ample time to comply with the requirements necessary for reunification but failed to do so. Accordingly, the juvenile court did not abuse its discretion by denying Father s request for an extension of time. See Findlay v. Lewis, 172 Ariz. 343, 346, 837 P.2d 145, 148 (1992) ( A trial court has broad discretion over the management of its docket. ). 5 2. Mother s Parental Rights A. ¶19 Abandonment Mother contends severance pursuant to A.R.S. § 8- 533(1) was improper because reasonable evidence does not support the juvenile court s finding that she abandoned her child. ¶20 We disagree. Our legislature defines abandonment as: 5 Father s request for a ninety-day extension to complete reunification services as an alternate appellate remedy is denied as it is an unauthorized request to reverse the trial court on a matter committed to that court s discretion. 13 [T]he failure of a parent to provide reasonable support and to maintain regular contact with the child, including providing normal supervision. Abandonment includes a judicial finding that a parent has made only minimal efforts to support and communicate with the child. Failure to maintain a normal parental relationship with the child without just cause for a period of six months constitutes prima facie evidence of abandonment. A.R.S. § support, 8-531(1) regular (2007). contact, from case to case. What and constitutes normal reasonable supervision varies Pima County Juv. Severance Action No. S-114487, 179 Ariz. 86, 96, 876 P.2d 1121, 1131 (1994). ¶21 There was evidence Mother had a home, contributed to the monthly rent, and used food stamps to buy Adam food prior to CPS taking custody of him in June 2008. Mother, however, admitted that she had not seen Adam since June 2008. Even though Mother was incarcerated in March 2009 and in ICE custody by May 2009, she failed to visit Adam in the nine months prior to March 2009. she kn[e]w how to get ahold Mother testified that [sic] of [the CPS case manager] but [n]ever call[ed] [] to request visits to see [Adam]. Despite Mother s testimony that she cleaned houses to support Adam and drew pictures for him, Mother admitted she did [not] provide any type of support for [Adam] and had no communication 14 with him after he was taken into CPS custody. juvenile court s This record amply supports the finding that Mother abandoned Adam. Accordingly, we find no error. 6 B. Reunification Services ¶22 Mother also argues the juvenile court abused its discretion failed to services. provide in severing provide her her parental with rights appropriate because CPS reunification However, CPS had no statutory duty to diligently Mother with appropriate reunification services prior to seeking termination of Mother s parental rights for abandoning Adam. A.R.S. § 8-533(B)(1), (B)(11)(b); see also Toni W. v. Ariz. Dep t of Econ. Sec., 196 Ariz. 61, 65, ¶¶ 11-12, 993 P.2d 462, 466 (App. 1999) ( [W]e have concluded that ADES was not required to make an attempt to reunify this family to establish the statutory ground of abandonment . . . . ). Mother makes no assertion that her constitutional rights were violated. address this issue. Therefore, we do not See Dawson v. Withycombe, 216 Ariz. 84, 100 n.11, ¶ 40, 163 P.3d 1034, 1050 n.11 (App. 2007). 6 Further, we need not address the State s additional arguments supporting severance as we have concluded that severance was appropriate on abandonment grounds under § 8533(B)(1). 15 C. Ineffective Assistance of Counsel ¶23 Mother maintains the termination order should be reversed because she received ineffective counsel during the severance hearing. not clearly determined whether assistance of a Arizona courts have claim of ineffective assistance of counsel can reverse a termination order. See John M. v. Ariz. Dep t of Econ. Sec., 217 Ariz. 320, 32224, ¶¶ 8-12, 173 P.3d 1021, 1023-25 (App. 2007). Assuming as we did in John M. that Arizona recognizes a separate claim for ineffective assistance of counsel, Mother must establish (1) counsel s prevailing professional probability exists representation norms that, but and for (2) fell a counsel s below reasonable errors, the result of the proceeding would have been different. Id. at 323, 325, ¶¶ 8, 17, 173 P.3d at 1024, 1026; see also Strickland v. Washington, 466 U.S. 668, 687-88 (1984). ¶24 Mother contends counsel s representation fell below the prevailing professional standard because counsel failed to continue the second day of trial when ICE did not transport trial Mother succeed proceeded because to court. in Mother s Mother Although fails caused by this conduct. 16 absence, to the the identify second claim any day of cannot prejudice ¶25 Mother ineffective failed to also contends assistance admit Dr. of she counsel Bluth s report has a because into claim her for attorney evidence. CPS progress reports indicate Mother completed a psychological evaluation on June 4, 2008, and Dr. Bluth was the assigned doctor to conduct the evaluation. According to Mother, had her counsel admitted Dr. Bluth s report into evidence and had her testify as to the findings, specifically her diagnosis of moderate mental retardation, that the outcome of the case would have been different. We disagree. Mother fails to specifically identify how the admission of Dr. Bluth s report into evidence would have changed the outcome of the trial. To the extent Mother had moderate mental retardation, the evidence shows that it did not prevent her from having a parent-child relationship with Adam. Prior to CPS taking custody of Adam, Mother had a home, contributed to the monthly rent, and provided Adam with food using food stamps. of Adam, Mother earned Even after CPS took custody money cleaning houses. Despite Mother s ability to do these things, she never visited nor sent financial support to Adam while he was in CPS care. Accordingly, Mother has no colorable claim for ineffective assistance of counsel because 17 she has not established prejudice caused by her attorney s failure to admit Dr. Bluth s report. Conclusion ¶26 For the juvenile court s above-stated order reasons, severing Mother s we affirm and the Father s parental rights to Adam. /s/ _____________________________ DANIEL A. BARKER, Judge CONCURRING: /s/ ____________________________________ MICHAEL J. BROWN, Presiding Judge /s/ ___________________________________ PHILIP HALL, Judge 18

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