Patricia B v. ADES, Dylan W

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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: 11/01/2011 RUTH A. WILLINGHAM, CLERK BY: DLL IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE PATRICIA B., ) ) Appellant. ) v. ) ) ARIZONA DEPARTMENT OF ECONOMIC ) SECURITY, DYLAN W., ) ) Appellees. ) ) No. 1 CA-JV 11-0111 DEPARTMENT C MEMORANDUM DECISION (Not for Publication Ariz. R.P. Juv. Ct. 103(G); ARCAP 28) Appeal from the Superior Court in Maricopa County Cause No. JD 18347 The Honorable Jo Lynn Gentry-Lewis, Judge AFFIRMED Anne M. Williams Attorney for Appellant Tempe Thomas C. Horne, Arizona Attorney General By Amanda L. Holguin, Assistant Attorney General Attorneys for Appellee Mesa H A L L, Judge ¶1 Patricia B. (Mother) appeals the order severing her parental rights to Dylan W. that follow, we affirm. juvenile court s For the reasons FACTUAL1 AND PROCEDURAL BACKGROUND ¶2 Mother August 8, 2005. is the biological parent of Dylan, born on On August 13, 2009, Child Protective Services (CPS) received a report alleging Mother was neglecting Dylan. Staff at Mother s apartment complex reported that four-year-old Dylan was found wandering around the apartment complex wearing his pajamas and no shoes. The staff members attempted contact Mother at her apartment, but received no response. to The report also alleged that Dylan had been observed wandering the apartment complex alone three times during the previous twoweek period. ¶3 CPS requested that Mother install locks on her doors to prevent Dylan from leaving the apartment without supervision. Mother did not comply with CPS s request. On August 21, 2009, Dylan was taken into CPS custody and placed with his paternal aunt and uncle. ¶4 On August 26, 2009, the Arizona Department of Economic Security (ADES) filed a dependency petition alleging that Mother is unable issues. contested to parent Dylan due to neglect and mental health On October 13, 2009, Mother failed to appear at the dependency hearing. 1 Following the State s We review the evidence and draw all reasonable inferences in the light most favorable to upholding the juvenile court s factual findings. Jesus M. v. Ariz. Dep t of Econ. Sec., 203 Ariz. 278, 282, ¶ 13, 53 P.3d 203, 207 (App. 2002). 2 presentation of evidence, the juvenile court found Dylan dependent to Mother. ¶5 On January 7, 2011, ADES filed a motion to terminate Mother s parental rights. ADES alleged that (1) Dylan has been cared for in an out-of-home placement for a cumulative total period of nine months or longer, pursuant to court order, and Mother substantially neglected or willfully refused to remedy the circumstances Dylan has been causing cared for the in out-of-home an placement, out-of-home and placement (2) for a cumulative total period of fifteen months or longer, pursuant to court order, and Mother has been unable to remedy the circumstances causing the out-of-home placement and there is a substantial likelihood that she will be incapable of exercising proper parental care in the near future. ¶6 At the June 1, 2011 contested Mother testified on her own behalf. severance hearing, She acknowledged that Dylan repeatedly left their apartment by himself, but explained that he never entered the pool area so he hadn t gotten that far to be that unsafe. Mother also admitted that she didn t make the effort to put locks or latches on the apartment door to prevent Dylan from leaving by himself. ¶7 Mother acknowledged that she has been diagnosed with bipolar disorder and has been receiving mental health services through Magellan for approximately fifteen years. 3 She further acknowledged that she is unemployed and explained that she has little time to find a job, but claimed she would probably be more motivated to find employment if Dylan were returned to her care. ¶8 When asked about her case manager, Mother testified that he explained to her that CPS s services were put in place to reunify her with her son. Mother stated that she did not participate in TERROS substance-abuse services, however, because she didn t think it was for me and didn t think [she] needed it. Although TERROS attempted to contact her on repeated occasions through telephone calls and letters, Mother decided that wasn t the type of counseling that was right for [her]. Likewise, Mother testified that she did not submit to urinalysis testing because she did not feel that s necessary and she didn t agree with it. visited Dylan since Mother also explained that she has not December 2010 because traveling to the visits made her carsick. ¶9 When asked specifically why she did not participate in services, Mother testified that she did not feel [she] need[ed] to participate in services and explained that she has a lot of other things that [she is] trying to do. that participation affirmed that CPS in has services given was her She further testified inconvenient. enough assistance Mother with services, but explained she did not need to do this with CPS 4 . . . I don t feel that s what I need. She claimed that she gave up on doing the services but didn t give up on [her] son. ¶10 Mother s case manager, Patrick Thompson, testified that Mother had been offered substance abuse services, random urinalysis testing, bus supervised visitation. passes, parent aid services, and He stated that, during their initial meeting, Mother acknowledged a history of drug use, but she nonetheless refused to participate in substance abuse services. Thompson also urinalysis testified tests. When that Mother asked why missed Mother more did than not thirty have more visitation with Dylan, Thompson explained that Mother frequently was inaccessible, and she failed information after she moved. to provide updated contact Thompson further testified that, based on his observation of Mother s few visits with Dylan, they are not bonded and Mother does not understand how to interact with her son. Finally, Thompson stated Dylan s prospective adoptive placement with his paternal aunt and uncle is meeting all of his medical, social, and physical needs and Dylan is thriving in that safe and stable environment. ¶11 After taking the matter under advisement, the juvenile court terminated Mother s rights to Dylan, finding: (1) ADES made diligent efforts to provide reunification services, (2) Dylan has been in an out-of-home placement for a cumulative 5 period of nine months or longer pursuant to court order, (3) Dylan has been in an out-of-home placement for a cumulative period of fifteen months or longer pursuant to court order, (4) Mother was unable to remedy the circumstances causing the outof-home placement and there is a substantial likelihood that Mother will be incapable of exercising proper care of Dylan in the near future, and (5) termination of Mother s parental rights is in Dylan s best interest. Mother timely appealed. We have jurisdiction under Arizona Revised Statutes (A.R.S.) sections 8235 (2007) and 12-120.21 (2003) and Arizona Rule of Procedure for the Juvenile Court 103(a). DISCUSSION ¶12 The relationship evidence severance juvenile only upon demonstrates and that a court may finding at least terminate that one preponderance the clear and statutory of severance is in the child s best interest. the parent-child convincing ground evidence for shows A.R.S. § 8-533(B) (Supp. 2009); Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 22, 110 P.3d 1013, 1018 (2005). We will affirm the judgment unless the juvenile court abused its discretion by making factual findings [that] 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) (citations omitted). 6 [T]he juvenile court will be deemed to have judgment. made every finding necessary to support the Maricopa County Juv. Action No. JS-8287, 171 Ariz. 104, 111, 828 P.2d 1245, 1252 (App. 1991) (citations omitted). ¶13 On appeal, Mother first asserts that the juvenile court erred by finding that ADES provided reasonable services and made diligent efforts to reunify the family. See A.R.S. § 8-533(B)(8)(c) (Supp. 2010) (allowing parental rights to be terminated when ADES makes a diligent effort to provide appropriate reunifications services, the child has been in an out-of-home placement for fifteen months or longer, and the parent has been unable to remedy the circumstances that cause the child to be in an out-of-home placement ). ¶14 Before parental rights may be severed pursuant to A.R.S. § 8-533(B)(8)(c), ADES must provide parents with the time and opportunity to participate in programs designed to help [them] become [] effective parent[s]. In re Maricopa County Juv. Action No. JS-501904, 180 Ariz. 348, 353, 884 P.2d 234, 239 (App. 1994). ADES is not required, however, to provide every conceivable service, or one that would be futile. See Mary Ellen C. v. Ariz. Dep t of Econ. Sec., 193 Ariz. 185, 192, ¶¶ 34, 37, 971 P.2d 1046, 1053 (App. 1999). Moreover, ADES is not required to duplicate a service that the parent has received from another source. See Pima County Severance Action No. S- 2397, 161 Ariz. 574, 577, 780 P.2d 407, 410 (App. 1989). 7 ¶15 Here, the record reflects that ADES offered Mother numerous services to help her become a more effective parent, including substance abuse treatment, transportation assistance, a parent aide, and supervised visitation. By Mother s own admission, she chose not to participate in the services because she did not feel inconvenient. provide were necessary and found them On appeal, Mother argues that ADES failed to adequate psychological they services evaluation. by As not providing Mother notes, her ADES with a included psychological evaluation among its intended services. a Mother s case manager testified he was unable to schedule an evaluation, however, because Mother was not accessible by telephone, she had moved without providing updated contact failed to check-in as requested. information, and she Mother also argues that ADES failed to provide adequate services by simply encouraging her to continue issues with rather her Magellan than counseling independently for her mental health providing her mental health services, or at least assessing whether the Magellan services were adequate. not to Given Mother s own testimony that she elected participate admissions sporadic, that we her in CPS s services, participation conclude that with offering would have been duplicative and futile. 8 as well Magellan any as her trial services additional was services Therefore, the juvenile court did not err by finding that ADES provided reasonable services and made diligent efforts to reunify the family. ¶16 Finally, Mother contends that the juvenile court erred by admonishing her to be completely compliant with services at the February 12, 2010 report and review hearing. Mother argues that the juvenile court misstated the law and prejudged the evidence as to what it would take for Mother to satisfy the Court. ¶17 As reflected in the juvenile court s February 12, 2010 minute entry, the court admonished Mother to be completely compliant with services by the time of the next hearing and reminded her accordingly. of the The consequences juvenile for court s failure to explanation consequences is not part of the appellate record. of do the Regardless, as noted by the State, the record reflects that the juvenile court applied the correct standard at the termination hearing. The juvenile because she Rather, the court failed did to juvenile not sever completely court found Mother s comply that parental with all Mother rights services. refused to participate in almost all services because she did not believe she needed any of [them]. The juvenile court further noted that Mother s refusal to provide contact information thwarted ADES s attempts to provide remedial services. Therefore, even assuming the juvenile court s February 12, 2010 admonishment to 9 Mother correct misstated the law, standard and Mother resulting prejudice. the court has ultimately failed to applied the demonstrate any See State v. Martinez, 218 Ariz. 421, 430- 31, ¶ 40, 189 P.3d 348, 357-58 (2008) (upholding a defendant s convictions and sentences, notwithstanding the trial court s misstatement of the law in the jury instruction, because there was no resulting prejudice). CONCLUSION ¶18 For the foregoing reasons, we affirm the juvenile court s order severing Mother s parental rights to Dylan. _/s/______________________________ PHILIP HALL, Judge CONCURRING: _/s/_______________________________ MICHAEL J. BROWN, Presiding Judge _/s/_______________________________ PATRICIA K. NORRIS, Judge 10

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