Timothy S. v. ADES/Tyler O.
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Ariz. R. Crim. P. 31.24
IN THE COURT OF APPEALS
STATE OF ARIZONA
DIVISION ONE
TIMOTHY S., CATHERINE O.,
Appellants,
v.
ARIZONA DEPARTMENT OF ECONOMIC
SECURITY, TYLER O., CODY O.,
Appellees.
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1 CA-JV 10-0142
DIVISION ONE
FILED: 09/15/2011
RUTH A. WILLINGHAM,
CLERK
BY: DLL
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(Not for Publication –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. JS 11395
The Honorable Samuel A. Thumma, Judge
AFFIRMED
Thomas C. Horne, Arizona Attorney General
Phoenix
By
Michael F. Valenzuela, Assistant Attorney General
Attorneys for Appellee Arizona Department of Economic Security
Robert D. Rosanelli Attorney at Law
By
Robert D. Rosanelli, Esq.
Attorney for Appellant Timothy O.
John L. Popilek, P.C.
By
John L. Popilek
Attorneys for Appellant Catherine O.
Vierling Law Offices
By
Thomas A. Vierling
Attorneys for Appellee Tyler O.
N O R R I S, Judge
Phoenix
Scottsdale
Phoenix
¶1
Timothy S. (“Father”) appeals the termination of his
parental rights to T.O., and Catherine O. (“Mother”) appeals the
termination of her parental rights to C.O.1
we
reject
Father‟s
court‟s
termination
Economic
Security
argument
order
we
should
because
(“Department”)
As discussed below,
reverse
the
Arizona
did
not,
the
juvenile
Department
contrary
to
of
the
court‟s findings, make diligent efforts to provide Father with
appropriate
reunification
services.
We
also
reject
Mother‟s
argument the juvenile court should have conducted an in camera
interview
of
C.O.
and
her
support termination under
assertion
the
evidence
failed
to
Arizona Revised Statutes (“A.R.S.”)
section 8-533(B)(3) (Supp. 2010).
FACTS AND PROCEDURAL BACKGROUND
¶2
Because
summarizes
in
the
detail
juvenile
the
court‟s
lengthy
case, we need not repeat it here.
multi-day
contested
severance
24-page
procedural
minute
history
of
entry
this
After the conclusion of a
hearing,
the
juvenile
court
terminated Father‟s parental rights to T.O.2 on the ground of 15
months in out-of-home placement under A.R.S. § 8-533(B)(8)(C),
1
In her opening brief, Mother also argues insufficient
evidence supported the juvenile court‟s conclusion M.O. was
dependent, but, as she acknowledged in her reply brief, M.O. “is
not properly the subject of the present appeal.”
2
T.O. was born on August 5, 2001.
2
and terminated Mother‟s parental rights to C.O.3 on four grounds:
15
months
in
out-of-home
placement,
prior
termination
under
A.R.S. § 8-533(B)(10), mental illness under A.R.S. § 8-533(B)(3),
and history of substance abuse under A.R.S. § 8-533(B)(3).
¶3
Although both Father and Mother prematurely noticed
their appeals, the premature notices were “followed by entry of
an appealable judgment.”
Schwab v. Ames Constr., 207 Ariz. 56,
58, ¶ 9, 83 P.3d 56, 58 (App. 2004).
Thus, we have jurisdiction
pursuant to A.R.S. § 8-235 (2007).
DISCUSSION
I. Father’s Appeal
¶4
order
Father argues we should reverse the juvenile court‟s
terminating
his
parental
rights
to
T.O.
because
the
Department did not, contrary to the court‟s findings, make “a
diligent effort to provide appropriate reunification services”
as required by A.R.S. § 8-533(B)(8),4 and instead allowed T.O.
“to dictate” the services the Department offered -- services
Father essentially asserts were inadequate.
We disagree; the
3
C.O. was born on November 1, 1999.
4
We reject T.O.‟s contention Father waived this
argument because he did not request an evidentiary hearing on
the Department‟s efforts to provide reunification services. The
record reflects Father challenged the Department‟s efforts, and
requesting an evidentiary hearing is only one “option” for
challenging the Department‟s actions. See Christina G. v. Ariz.
Dep’t of Econ. Sec., 227 Ariz. 231, 235 n.8, ¶ 15, 256 P.3d 628,
632 n.8 (App. 2011).
3
juvenile
court
Department
did
made
not
abuse
diligent
its
discretion
efforts
to
in
provide
finding
the
reunification
services.
¶5
The
relationship
juvenile
upon
demonstrating
a
court
finding
may
terminate
clear
statutory
and
ground
the
parent-child
convincing
for
termination
evidence
and
a
preponderance of the evidence demonstrating termination is in
the child‟s best interests.
Raymond F. v. Ariz. Dep’t of Econ.
Sec., 224 Ariz. 373, 377, ¶ 15, 231 P.3d 377, 381 (App. 2010);
see
A.R.S.
§
8-533(B).
We
review
the
“juvenile
court‟s
termination order in the light most favorable to sustaining the
court‟s decision5 and will affirm it „unless we must say as a
matter of law that no one could reasonably find the evidence
[supporting the statutory grounds for termination] to be clear
and convincing.‟”
Denise R. v. Ariz. Dep’t of Econ. Sec., 221
Ariz. 92, 95, ¶ 10, 210 P.3d 1263, 1266 (App. 2009) (quoting
Murillo v. Hernandez, 79 Ariz. 1, 9, 281 P.2d 786, 791 (1955)).
Although
the
Department
“need
not
provide
„every
conceivable
service,‟ it must provide a parent with the time and opportunity
to
participate
in
programs
designed
ability to care for the child.”
to
improve
the
parent‟s
Mary Ellen C. v. Ariz. Dep’t of
5
As the trier of fact in a termination proceeding, the
juvenile court “is in the best position to weigh the evidence,
observe the parties, judge the credibility of witnesses, and
resolve disputed facts.” Ariz. Dep’t of Econ. Sec. v. Oscar O.,
209 Ariz. 332, 334, ¶ 4, 100 P.3d 943, 945 (App. 2004).
4
Econ. Sec., 193 Ariz. 185, 193, ¶ 37, 971 P.2d 1046, 1054 (App.
1999) (quoting Maricopa County Juv. Action No. JS-501904, 180
Ariz. 348, 353, 884 P.2d 234, 239 (App. 1994)).
The Department
must “undertake measures with a reasonable prospect of success”
in reuniting the family.
¶6
was
Id. at 192, ¶ 34, 971 P.2d at 1053.
Here, Father had no relationship with T.O. after T.O.
14
months
old
because
Father
was
Father‟s
incarceration,
T.O.
problems
and,
threatened
in
2008,
incarcerated.
developed
to
major
commit
During
psychological
suicide.
The
Department attempted to facilitate two visits between Father and
T.O.
while
getting
Father
the
was
paperwork
in
prison,
done”
for
but
the
there
first
“was
a
attempt
problem
and
T.O.
“began to get very stressed . . . or upset” once the process was
initiated for the second attempt.
After this second attempt,
T.O.‟s therapist “saw [his] behaviors begin to disintegrate, and
he said there shouldn‟t be a visit to the prison for him.”
¶7
In the months leading up to Father‟s release in late
2008, T.O. had nightmares, wetting accidents, and anxiety, which
prompted a psychological consultation with Glenn L. Moe, Ph.D.
After
this
consultation,
Dr.
Moe
recommended
no
visits
with
Father due to T.O.‟s refusal to communicate with Father, his
lack
of
a
level.”
“appear[ed]
relationship
In
to
June
have
with
2009,
Father,
however,
stabilized,”
5
and
and
Dr.
his
Moe
T.O.
“high
anxiety
reported
indicated
he
T.O.
was
interested
Services
in
visiting
(“CPS”)
case
with
Father,
manager
so
arranged
the
a
Child
Protective
therapeutic
visit.
Despite his initial expression of interest, on the days leading
up to the scheduled visit T.O. stated he did not want to go
through with the meeting and, on the day of, refused to get out
of the car and threatened to kick anyone who tried to make him
visit Father.
¶8
At
that
point,
future visits with Father.
Father
was
reunified
with
Dr.
Moe
once
again
recommended
no
Moreover, T.O.‟s therapist stated if
T.O.,
T.O.
would
likely
regress,
“completely withdraw,” “isolate,” and possibly “become a danger
to
himself
again.”
Accordingly,
the
Department
thereafter
diligently relied on the advice of mental health professionals
who, in turn, duly considered the adverse psychological impact
of T.O.‟s visits to Father.
¶9
Furthermore, the Department made diligent efforts to
provide Father with appropriate services other than visitation
attempts.
After Father was released from prison in December
2008,
referred
CPS
assessment,
Father
psychological
for
urinalysis
evaluation,
testing,
parenting
a
TERROS
classes,
and
substance abuse counseling. When necessary, CPS also provided
Father with transportation to these services.
In addition, CPS
coordinated with Father‟s probation officer to refer Father to
counseling and anger management classes.
6
George Bluth, Ph.D, a
clinical psychologist who interviewed Father, testified no other
services were necessary for Father because his main problem was
drug addiction and, “as far as [he] know[s],” the Department
took appropriate steps to provide visitation with T.O.
prepare
T.O.
counseling
and
for
visitation
referred
him
with
to
Father,
equine
CPS
therapy.
Also, to
offered
T.O.
Therefore,
reasonable evidence supported the juvenile court‟s finding the
Department
had
made
diligent
efforts
to
provide
Father
with
reunification services and to prepare T.O. to be reunified with
Father.
We thus affirm the court‟s order terminating Father‟s
parental rights to T.O.
II. Mother’s Appeal
A. In Camera Interview
¶10
Mother argues the court abused its discretion by not
conducting an in camera interview of C.O. because it relied on
the Department‟s experts‟ opinion C.O. was “parentified” despite
conflicting evidence and without independently evaluating the
experts‟ reliability by taking “the „best evidence‟ of [C.O.]‟s
beliefs and psychological state.”
We disagree; the juvenile
court did not abuse its discretion by not interviewing C.O. in
camera.
¶11
Here, although the court initially noted it was not
its normal practice to interview juveniles “one on one” in a
termination case, it reserved its ruling on the motion.
7
After
the close of the Department‟s evidence and after considering the
guardian
ad
litem‟s
opposition,
the
court
denied
Mother‟s
request.
In so doing, the court recognized C.O. had “expressed
a desire to live with his biological mother” and “the testimony
received so far” confirmed this.
Accordingly, even if C.O.‟s
testimony would have demonstrated Mother had a relationship with
C.O., the court‟s ruling acknowledged the evidence confirmed the
existence
found,
of
such
based
on
a
relationship.
other
evidence,
Nevertheless,
Mother‟s
chronic
the
court
drug
abuse
would interfere with her ability to responsibly parent C.O. for
a
prolonged
Under
and
these
indeterminate
circumstances,
period.
the
See
court
infra
did
¶¶
not
14-19.
abuse
its
discretion in not conducting an in camera interview of C.O.
Lashonda M. v. Ariz. Dep’t of Econ. Sec., 210 Ariz. 77, 83,
¶ 19, 107 P.3d 923, 929 (App. 2005) (juvenile court abuses its
discretion when it is “manifestly unreasonable, or exercised on
untenable grounds, or for untenable reasons”) (quoting Quigley
v.
Tucson
City
Court,
132
Ariz.
35,
37,
643
P.2d
738,
740
abused
its
(1982)).
B. Grounds for Terminating Parental Rights
¶12
Mother
discretion
without
discharge
by
also
terminating
“substantial”
her
argues
the
Mother‟s
evidence
parental
juvenile
parental
Mother
rights
would
responsibilities
8
court
in
be
to
unable
the
C.O.
to
future.
According
whether
to
Mother,
[she]
was
the
“primary
capable
of
issue
staying
in
this
sober
in
matter
a
is
manner
sufficient to parent [C.O.].”6
¶13
Termination under A.R.S. § 8-533(B)(3) for a history
of chronic substance abuse requires evidence Mother was “unable
to
discharge
substance
[her]
abuse
parental
and
responsibilities”
“reasonable
grounds
to
because
believe
of
her
that
the
condition will continue for a prolonged indeterminate period.”7
As this court has explained, the key fact suggesting a parent‟s
substance abuse will continue indeterminately is the parent‟s
consistent failure to abstain from drugs, particularly when the
parent is aware the Department will take the children away if
the parent uses drugs.
Raymond F., 224 Ariz. at 379, ¶ 29, 231
P.3d at 383.
Based on our review of the record, we cannot say
as
of
a
“matter
evidence
law
[supporting
that
no
one
the
grounds
could
reasonably
for
terminating
find
the
Mother‟s
6
Although Mother did not discuss separately each
statutory ground on which the court terminated her parental
rights to C.O., she argues on appeal a common element underlying
each ground -- whether she will be incapable of parenting C.O.
properly in the near future because of her drug abuse. Because
Mother does not challenge the other elements of the statutory
grounds, however, we limit our analysis to whether the
Department presented clear and convincing evidence of Mother‟s
chronic drug abuse.
7
This ground also requires evidence the Department made
reasonable efforts to reunify or that such efforts would be
futile.
Jennifer G. v. Ariz. Dep’t of Econ. Sec., 211 Ariz.
450, 453, ¶ 12, 123 P.3d 186, 189 (App. 2005). Mother, however,
does not challenge this element on appeal.
9
parental rights] to be clear and convincing.”
Denise R., 221
Ariz. at 95, ¶10, 210 P.3d at 1266; see supra ¶5.
¶14
Mother reported ingesting drugs intermittently since
she was a teenager.
case
for
enough
Mother abstained from drug use during this
time
that
CPS
ceased
requiring
participate in urinalysis testing in June 2009.
her
to
Accordingly, in
August 2009, a family reunification team placed C.O. with Mother
under its supervision.
manager
phone
reported
so
she
Mother
directed
In October 2009, however, the CPS case
began
her
to
acting
take
“irrational[ly]”
a
drug
test
on
the
immediately.
Mother submitted a urinalysis test and a hair follicle test “a
few weeks” after her phone conversation with the case manager,
and both tests were positive for methamphetamine.
supervisor
of
the
drug
testing
facility
The technical
testified
the
hair
follicle results indicated Mother had taken “a couple doses” of
methamphetamine two to ten weeks prior to collection and the
urinalysis results indicated Mother had also used within the
last two to four days -- both time periods in which C.O. was in
Mother‟s care.
¶15
When the case manager went to Mother‟s residence to
remove C.O. after the positive drug test results, Mother told
the case manager she “had a slip” because it was the anniversary
of the day one of her other children had been adopted.
severance
hearing,
Dr.
Bluth
testified
10
Mother
At the
exhibited
a
“pattern of relapse into drug use.” He also testified Mother‟s
mental
illnesses
affected
her
ability
to
abstain
from
drugs
because she believed rules did not apply to her, her amphetamine
dependence was ingrained, and her dependence would prevent her
from parenting C.O. safely because she lacked a firm commitment
to recovery.
Richard Rosengard, D.O., a psychiatrist, testified
it was “significant” that Mother was under the scrutiny of the
family
reunification
team
and
understood
the
relapse, but used methamphetamine anyway.
consequences
of
He also testified
Mother was “at risk” for prolonged drug abuse “[b]ased on the
past
history
of
chronic
recurrent
abuse,
her
underlying
depression and underlying personality disorder.”
¶16
The evidence supported
the court‟s finding
drug abuse affected her ability to parent responsibly.
Mother‟s
When the
case manager came to remove C.O., Mother whispered something to
C.O., who then jumped over the back wall and ran away while
Mother walked away from the case manager.
C.O. later reported
to the case manager that during the time Mother absconded from
CPS he did not attend school or therapy, slept on a pool table,
and
did
not
Rosengard
affect
always
and
her
Bluth
ability
have
access
testified
to
to
food.
Mother‟s
parent
Furthermore,
substance
responsibly
for
abuse
a
Drs.
would
prolonged
indeterminate period of time as she was unable to attend to
C.O.‟s needs when on drugs.
11
¶17
to
Although Mother argues she has taken “numerous steps
ensure
that
supported
the
there
court‟s
are
no
finding
further
slip-ups,”8
the
record
Mother‟s
substance
abuse
would
continue for a prolonged indeterminate period.
The evidence
showed Mother relapsed in October 2009 and failed to take the
required
urinalysis
tests
until
the
end
of
December
2009.
Although Mother reported she had attended weekly narcotics and
alcoholics
anonymous
participated
present
in
evidence
meetings
substance
after
abuse
substantiating
her
counseling,
her
weekly
relapse
and
had
did
not
Mother
attendance,
and,
furthermore, Dr. Bluth reported Mother “obviously did not use
the tools from her treatment” before she relapsed.
also
reported
questionable,
Mother‟s
which
is
“commitment
related
to
her
to
Dr. Bluth
recovery
underlying
seems
personality
disorder where she tends to blame other people or circumstances
for her problems rather than assuming responsibility for them”
and a “child in her care would be at risk for neglect related to
her problem with relapse and . . . [her] unstable lifestyle.”
8
Mother asserted she was living in a housing program
that required its residents to submit to random urinalysis tests
and to work towards employment or education.
According to her
lease agreement, however, if Mother failed to take a urinalysis
test or if a test yielded positive results, the housing program
could evict her immediately.
Further, even if Mother had
complied with all requirements, the lease term expired after two
years. Thus, this housing program did not resolve the concerns
of the court and the Department for C.O.‟s well-being.
12
¶18
We acknowledge, as Mother points out, her Southwest
Behavioral
Health
therapist
counselor
testified
they
and
had
family
observed
reunification
her
exercising
team
“good
parenting” and “appropriate parenting skills.”
But the juvenile
court
not
reasonably
found
this
testimony
“did
negate
the
[underlying personality disorder] diagnoses and opinions of Drs.
Bluth, Rosengard, and Moe.”
¶19
Accordingly,
the
evidence
supported
the
juvenile
court‟s findings Mother was unable to discharge her parental
responsibilities due to her chronic drug abuse and reasonable
grounds existed to believe the condition that prevented her from
being able to parent C.O. -- that is, her drug abuse -- would
continue for a prolonged and indeterminate period.
We therefore
do not need to address the other statutory grounds identified by
the court in terminating parental rights.
Adrian E. v. Ariz.
Dep’t of Econ. Sec., 215 Ariz. 96, 103, ¶ 26, 158 P.3d 225, 232
(App. 2007).
13
CONCLUSION
¶20
For
the
foregoing
reasons,
we
affirm
the
juvenile
court‟s order terminating Father‟s parental rights to T.O. and
Mother‟s parental rights to C.O.
/s/
PATRICIA K. NORRIS, Judge
CONCURRING:
/s/
MICHAEL J. BROWN, Presiding Judge
/s/
PHILIP HALL, Judge
14
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