Leah M. 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
IN THE COURT OF APPEALS
STATE OF ARIZONA
DIVISION ONE
LEAH M.,
Appellant,
v.
ARIZONA DEPARTMENT OF ECONOMIC
SECURITY, V.M., A.M.
Appellees.
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No.
1 CA-JV 11-0006
DIVISION ONE
FILED: 09/20/2011
RUTH A. WILLINGHAM,
CLERK
BY: GH
DEPARTMENT E
MEMORANDUM DECISION
(Not for Publication –
Ariz. R.P. Juv. Ct. 103(G);
ARCAP 28)
Appeal from the Superior Court in Maricopa County
Cause No. JD507632
The Honorable Linda A. Akers, Judge
AFFIRMED
Thomas C. Horne, Attorney General
Phoenix
By Eric Devany, Assistant Attorney General
Attorneys for Appellee Arizona Department of Economic Security
Priestley Law Firm
By Sara L. Priestley
Guardian Ad Litem for Appellees V.M. and A.M
Robert D. Rosanelli, Esq.
By Robert D. Rosanelli
Attorney for Appellant Leah M.
J O H N S E N, Judge
Mesa
Phoenix
¶1
Leah M. (“Mother”) appeals the superior court’s order
terminating her parental rights as to her twin daughters, V.M.
and A.M., born in 2003.
For the following reasons, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2
In 2005 Mother was arrested, convicted and sentenced
to prison for fraud and the sale of drugs in California.
eventually
granted
temporary
custody
grandparents, who lived in Payson.
to
the
girls’
She
great-
After the death of the
children’s great-grandmother in 2006, Mother signed a temporary
guardianship in favor of the children’s maternal aunt.
¶3
Mother was released from prison later in 2006, but the
conditions of her parole prohibited her from leaving California.
Consequently,
she
remained
separated
continued to live in Arizona.
from
her
children,
who
At an annual review in November
2008, Mother moved to terminate the guardianship and have the
children returned to her.
ad
litem
and
the
This prompted the children’s guardian
Arizona
Department
of
Economic
Security
(“ADES”) to file a dependency petition, which the court granted.
¶4
Initially the case plan was to reunify Mother with
the twins.
ADES provided supervised visitation, hair-follicle
testing, substance-abuse treatment, parenting education and a
bonding assessment.
for
methamphetamines;
In February 2009, Mother tested positive
she
later
explained
that
her
lack
of
structure and coping skills, combined with the guardian’s desire
2
to adopt the twins, led to her relapse.
Mother also reported
she planned to move back to Arizona to aid reunification, but
she did not do so.
She explained, “At this point I don’t feel
it would be in my children’s best interest if I did move [to
Arizona] because of the trauma it would cause the girls.”
¶5
After
Arizona,
ADES
Mother
abandoned
initiated
a
home
her
plans
study
of
to
her
relocate
to
residence
in
California through the Interstate Compact on the Placement of
Children
(“ICPC”).
The
ICPC
report
recommended
placement of the twins with Mother in California.
denying
The report
noted Mother had “not made regular visits with her children to
form a bond or attachment with the twins,” had failed to provide
any
documentation
for
her
current
living
situation,
had
a
history of substance abuse and child abuse, and had failed to
document successful completion of a drug treatment program.
¶6
In
March
2010,
ADES
moved
to
terminate
Mother’s
parental rights pursuant to Arizona Revised Statutes (“A.R.S.”)
section 8-533(B)(8)(c) (2011). 1
After a three-day trial, the
superior court severed Mother’s parental rights to the twins. 2
1
Although this statute was amended after the relevant date,
the revisions are immaterial to this appeal.
2
Although the court had ordered Mother to appear in person
at the severance trial, she appeared by telephone for the first
two days of trial, and the battery of her cellular phone died
both days mid-way through the proceedings, disrupting the
3
¶7
Mother
timely
appeals.
We
have
jurisdiction
under
Article 6, Section 9, of the Arizona Constitution and pursuant
to A.R.S. § 8-235 (2011).
DISCUSSION
¶8
The
superior
court
ordered
Mother’s
parental
rights
terminated pursuant to A.R.S. § 8-533(B)(8)(c), which required
it to find, by clear and convincing evidence, that
the child is being cared for in an out-ofhome 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]
*
*
*
[t]he child has been in an out-of-home
placement for a cumulative total period of
fifteen months or longer[,] . . . the parent
has been unable to remedy the circumstances
that cause the child to be in an out-of-home
placement
and
there
is
a
substantial
likelihood that the parent will not be
capable of exercising proper and effective
parental care and control in the near
future.
A.R.S. § 8-533(B)(8)(c); see Michael J. v. Ariz. Dep’t of Econ.
Sec., 196 Ariz. 246, 249, ¶ 12, 995 P.2d 682, 685 (2000).
The
relevant circumstances pursuant to § 8-533 are those “at the
time of the severance that prevent a parent from being able to
hearing.
Mother did not appear by telephone or in person for
the final day of the hearing.
4
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) (citation and internal quotation marks
omitted).
child’s
The court also must find that severance is in the
best
interests
by
a
preponderance
of
the
evidence.
A.R.S. § 8-533(B); see Kent K. v. Bobby M., 210 Ariz. 279, 284,
¶ 22, 110 P.3d 1013, 1018 (2005).
best
position
to
weigh
the
The superior court is in the
evidence;
we
accept
the
court’s
findings of fact unless no reasonable evidence supports those
findings, and we will affirm a termination order unless it is
clearly erroneous.
Jesus M. v. Ariz. Dep’t of Econ. Sec., 203
Ariz. 278, 280, ¶ 4, 53 P.3d 203, 205 (App. 2002).
¶9
Reasonable
decision.
ADES
evidence
provided
supports
regular
the
superior
telephonic
and
court’s
in-person
visits, yet Mother frequently missed the telephone calls and
when
she
did
visit
with
the
discussed
the
case
plan
with
children,
them.
she
inappropriately
This
supported
the
conclusion of Dr. Connie Pyburn, a licensed psychologist, that
Mother “is a virtual stranger to the twins” and that the girls
“would need significant therapeutic intervention to transfer to
her care.”
¶10
Despite
Mother’s
assertion
that
“[h]er
criminal
history has not prevented her from parenting the children since
the year 2006,” she had not relocated to Arizona by the time of
5
trial.
Nevertheless, Mother suggests ADES should have done more
to facilitate greater contact between her and the children.
For
example, Mother faults ADES for not providing “transportation to
and from California for visitations.”
ADES, however, “is not
required to provide every conceivable service or to ensure that
a parent participates in each service it offers.”
Maricopa
County Juv. Action No. JS-501904, 180 Ariz. 348, 353, 884 P.2d
234, 239 (App. 1994).
¶11
The evidence also demonstrates that Mother was unable
to resolve her drug-abuse problem.
In February 2009, she tested
positive for methamphetamines, a drug to which she admits an
addiction.
She testified that she used “crystal meth” during
the guardianship, admitting, “I didn’t really have any coping
skills or any structure . . . in my life at that time and I
messed up once.”
Additionally, between July 2009 and August
2010, Mother missed seven required urinalysis tests even though
she knew that a missed test would be considered positive for
banned substances.
before
the
And in August 2010, approximately one month
termination
hearing,
Mother
ceased
drug
testing
altogether despite being required to continue with the program.
¶12
Because Mother lived in California, ADES referred her
to the Tarzana Treatment Center in Long Beach.
Rather than
participate in the Tarzana program, however, Mother claimed she
had secured her own substance-abuse service provider, Douglas
6
Duffy.
She
provided
no
documentation
for
this
contention,
however, and despite several attempts to contact Duffy, ADES was
unable to verify that Mother successfully completed any drugabuse
program.
Similarly,
although
Mother
asserted
she
had
participated in programs through the Phoenix House, Sober Living
and
Alcoholics
Anonymous,
she
did
not
verification to support her assertions.
provide
ADES
any
Although ADES sent her
numerous letters requesting such verification, Mother testified
she did not know she was supposed to provide that information.
¶13
Mother also was unable to demonstrate stable housing
or employment.
She testified her uncle orally agreed to let her
stay in his California house rent-free in exchange for paying
utility
bills
and
uncle’s
contact
however,
Mother
property
information
failed
to
taxes.
to
When
verify
provide
it. 3
ADES
the
requested
oral
the
agreement,
Likewise,
although
Mother testified she was employed, she did not provide ADES with
any document to verify her employment.
¶14
On appeal, Mother does not dispute that termination of
her parental rights is in the best interests of the twins.
Substantial evidence supported that finding by the court.
The
ICPC report and Pyburn both noted that the current placement
3
Approximately one month before the termination proceeding,
Mother’s uncle was arrested. He was incarcerated at the time of
trial.
7
served the girls’ best interests.
Mother concedes that the
twins have developed an affectionate bond with the guardian.
See
Kent
K.,
210
Ariz.
at
284,
¶
22,
110
P.3d
at
1018
(termination must be proved to be in the best interests of the
child by a preponderance of the evidence).
CONCLUSION
¶15
Because
reasonable
evidence
supports
the
superior
court’s decision, Jesus M., 203 Ariz. at 280, ¶ 4, 53 P.3d at
205, we affirm the order terminating Mother’s parental rights as
to V.M. and A.M. 4
/s/
DIANE M. JOHNSEN, Presiding Judge
CONCURRING:
/s/
PATRICIA A. OROZCO, Judge
/s/
PHILIP HALL, Judge
4
We amend the caption
children by their initials.
in
this
8
appeal
to
refer
to
the
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