Lisa W. v. ADES et al.

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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 DIVISION ONE FILED: 09/23/2010 RUTH WILLINGHAM, ACTING CLERK BY: GH IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE LISA W., ) ) Appellant, ) ) v. ) ) ARIZONA DEPARTMENT OF ECONOMIC ) SECURITY, LANDON W., ) ) Appellees. ) ) __________________________________) No. 1 CA-JV 10-0094 DEPARTMENT C MEMORANDUM DECISION (Not for Publication 103(G) Ariz. R.P. Juv. Ct.; Rule 28 ARCAP) Appeal from the Superior Court in Yavapai County Cause No. V1300JD820080018 The Honorable Robert M. Brutinel, Judge AFFIRMED DeRienzo & Williams, P.L.L.C. By Craig Williams Attorney for Appellant Prescott Valley Terry Goddard, Arizona Attorney General By Jane A. Butler, Assistant Attorney General Attorneys for Appellee Arizona Department of Economic Security Tucson D O W N I E, Judge ¶1 Lisa W. ( Mother ) appeals from the juvenile court s order terminating her parental rights. For the following reasons, we affirm. 1 FACTS AND PROCEDURAL HISTORY 2 ¶2 Landon was born in June 2005. Between his birth and August 21, 2008, when he was taken into care, five separate sources called concerns about Child the Protective child s Services safety and ( CPS ) to well-being. report The case manager estimated there were ten referrals to CPS, plus a court ordered investigation. The concerns focused on the parents substance abuse and child neglect, but also involved conditions in the home and lack of food. Landon was seen eating cigarette butts off the floor while his parents sat dazed on the couch. The parents were reportedly abusing alcohol and drugs and engaging in domestic violence. ¶3 After a domestic violence incident led to Mother s hospitalization, Landon was placed with P.F. and A.F. in March 1 The court also terminated the rights of the biological father, who is not a party to this appeal. 2 We view the facts in the light most favorable to sustaining the juvenile court s ruling. Lashonda M. v. Ariz. Dep t of Econ. Sec., 210 Ariz. 77, 82, ¶ 13, 107 P.3d 923, 928 (App. 2005). We do not reweigh the evidence, and we defer to the fact-finder s resolution of any conflicts in the evidence. See Vanessa H. v. Ariz. Dep t of Econ. Sec., 215 Ariz. 252, 257, ¶ 22, 159 P.3d 562, 567 (App. 2007). 2 2008. They are Landon s half brother and his wife. The parents gave P.F. and A.F. a power of attorney in April 2008. ¶4 a Arizona Department of Economic Security ( ADES ) filed dependency Mother had petition already discuss infra. and been became offered Landon s various legal services, custodian. which we The juvenile court found Landon dependent and ordered ADES to provide reunification services. ¶5 In July 2009, ADES moved to terminate Mother s rights based on out-of-home placement for nine months or longer under Arizona Revised Statutes ( A.R.S. ) Section 8-533(B)(8)(a). ADES later amended its motion, adding the ground of out-of-home placement for fifteen months or longer under A.R.S. § 8- 533(B)(8)(c). ¶6 hearing. In January 2010, the juvenile court held a severance Psychiatrist James Thal testified that he evaluated Mother to assess her psychological status and ability to parent. Despite improvement in the months preceding the hearing, Dr. Thal recommended severance and adoption because Landon had been in care for such a lengthy period of time and because Mother was just starting to rebuild her life. In his opinion, she could not realistically parent in the near future. Dr. Thal testified that Mother had shown commitment to treatment programs in the past, but had relapsed. 3 ¶7 The ADES case manager testified that Mother s history of relapse and substance abuse, 3 plus the need for sustained sobriety and stability outside a structured environment were barriers to reunification. 24/7 supervised Mother had twenty- six dirty UAs, twenty-five missed UAs, and seven diluted UAs while the case was pending. She did not have a job at the time of hearing and had no income other than social security, but did have stable housing. 4 ¶8 The case manager Landon s best interests. testified that adoption was in He had been in care for over sixteen months, and his current placement was the only safe and stable home he had ever known. All of Landon s psychological, social, financial, and emotional needs were being met. P.F. and A.F. have bonded with Landon, and they wish to adopt him. requires a very structured environment, with set Landon rules and stability because he suffers from fetal alcohol syndrome. ¶9 During the termination hearing, ADES moved to amend its severance motion to conform to the evidence by neglect as a basis for termination under § 8-533(B)(2). objected. alleging Mother In its under advisement ruling, the juvenile court 3 Mother admitted being an alcoholic for the past twenty-six years and having a substance abuse addiction for twenty years. 4 Mother lived in a two bedroom apartment with her brother. 4 granted ADES s motion to amend and terminated Mother s rights based on neglect. ¶10 A signed order was filed on April 21, 2010. timely appealed. Mother We have jurisdiction pursuant to A.R.S. §§ 8- 235 (A) (2007) and 12-120.21 (A) (2003). DISCUSSION ¶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) (2007); Michael J. v. Ariz. Dep t of Econ. Sec., 196 Ariz. 246, 249, ¶ 12, 995 P.2d 682, 685 (2000). The court must also consider the best interests of the children. A.R.S. § 8-533(B) (Supp. 2009); Michael J., 196 Ariz. at 249, ¶ 12, 995 P.2d at 685. 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 credibility of witnesses, and make appropriate findings. Jesus M. v. Ariz. Dep t of Econ. Sec., 203 Ariz. 278, 280, ¶ 4, 53 P.3d 203, 205 (App. 2002). fact unless [W]e will accept the juvenile court s findings of no reasonable evidence supports those findings. Id. ¶12 Under A.R.S. § 8-533(B)(2), if there is clear and convincing evidence that Mother neglected Landon, the statutory 5 basis for severance is satisfied. 5 Neglect is defined as [t]he inability or unwillingness of a parent . . . to provide that child with supervision, food, clothing, shelter or medical care if that inability or unwillingness causes unreasonable risk of harm to the child s health or welfare. A.R.S. § 8-201(22)(a) (Supp. 2009). ¶13 There was clear and convincing evidence of neglect. When Landon was placed with P.F. and A.F., he was underweight, uncoordinated, and lacked proper vocal skills. He required extensive dental surgery, including eight root canals and ten crowns, due to severe medical neglect. Landon was left with only five of his real teeth and will have continuous and longterm dental damage from the lack of proper hygiene. Mother admitted knowing of Landon s dental problems and failing to take adequate frequently steps to dirty, address hungry, them. and Additionally, unsupervised while Landon was in Mother s make diligent care. ¶14 Mother contends that ADES failed to efforts to preserve the relationship due to her past and its skepticism about the sincerity of her sobriety, citing Mary Ellen C. v. Arizona Department of Economic Security, 193 Ariz. 185, 971 P.2d 1046 (App. 1999) to support her claim. 5 Even Mother has not challenged the ruling granting ADES s motion to amend to allege neglect as a basis for severance. 6 assuming arguendo that reunification services were required to sever Mother s rights based on neglect, the record establishes compliance by the agency. ¶15 In Mary Ellen C., ADES offered no significant reunification services for almost a year after removing the child and waited more than a year before referring a mother with serious mental illness for evaluation. 971 P.2d at 1053. an evaluation 193 Ariz. at 192, ¶ 35, The agency delayed another three months after suggested the mother required intensive mental health services and never followed up sufficiently to secure progress records before pursuing a severance. ¶16 Id. In this case, ADES offered Mother extensive services even before filing a dependency petition, including urinalysis testing, substance abuse counseling/treatment, domestic violence classes, parenting classes, and therapy. During the next year, ADES provided Mother with a psychological evaluation, individual therapy, a parent transportation, and aide, parenting supervised and visits. nutrition classes, She received also inpatient treatment for twenty-eight days and was discharged to a residential treatment center, which she left against medical advice after thirteen days. Mother was not compliant with the case plan, canceled visits with Landon, arrived intoxicated, was unable to complete programs, and continued to relapse. Although Mother demonstrated sincere efforts at maintaining sobriety just 7 prior to the termination hearing, those efforts do not prevent a severance based on dependency status. neglect or justify prolonging Landon s See, e.g., Maricopa County Juv. Action No. JS-501568, 177 Ariz. 571, 576-77, 869 P.2d 1224, 1229-30 (App. 1994) (termination proper despite parent s belated progress before severance hearing). ¶17 must Before terminating parental rights, the juvenile court also find, by a preponderance of the evidence, termination is in the child s best interests. that See Kent K. v. Bobby M., 210 Ariz. 279, 288, ¶ 41, 110 P.3d 1013, 1022 (2005). To support such a finding, the petitioner must prove that the child will affirmatively benefit from the termination. Maricopa County Juv. Action No. JS-500274, 167 Ariz. 1, 6, 804 P.2d 730, 735 (1990). This means that a determination of the child s best interest must include a finding as to how the child would benefit from a severance or be harmed by the continuation of the relationship. The best Id. at 5, 804 P.2d at 734 (emphasis omitted). interests requirement may be met if the petitioner proves that a current adoptive plan exists for the child. Id. at 6, 804 P.2d at 735. ¶18 Reasonable evidence supports the termination was in Landon s best interests. finding that ADES established that P.F. and A.F. were providing a stable home for Landon, were meeting all of his needs, and wished to adopt him. 8 See Ariz. Dep t of Econ. Sec. v. Oscar O., 209 Ariz. 332, 334, ¶ 6, 100 P.3d 943, 945 (App. 2004) ( a current adoptive plan is one wellrecognized example of benefit derived from termination of parental rights); Audra T. v. Ariz. Dep t of Econ. Sec., 194 Ariz. 376, 377, ¶ 5, 982 P.2d 1290, 1291 (App. 1998) (juvenile court may consider whether child s existing placement meeting child s needs). CONCLUSION ¶19 For the foregoing reasons, we affirm the court s order terminating Mother s parental rights. /s/ MARGARET H. DOWNIE, Judge CONCURRING: /s/ MAURICE PORTLEY, Presiding Judge /s/ PATRICIA A. OROZCO, Judge 9 juvenile

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