Danielle N. v. ADES
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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
)
)
)
Appellant,
)
)
v.
)
)
)
ARIZONA DEPARTMENT OF ECONOMIC
)
SECURITY, RICCARDO N., ALARA N., )
)
Appellees.
)
)
No.
DIVISION ONE
FILED: 09/27/2011
RUTH A. WILLINGHAM,
CLERK
BY: DLL
1 CA-JV 11-0074
DANIELLE N.,
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(Not for Publication –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. JD13582
The Honorable Christopher A. Coury, Judge
AFFIRMED
Robert D. Rosanelli
Attorney for Appellant
Phoenix
Thomas C. Horne, Attorney General
By Jamie R. Katelman, Assistant Attorney General
Attorneys for Arizona Department of Economic Security
Phoenix
H A L L, Judge
¶1
Danielle
N.
(Mother)
appeals
the
juvenile
court’s
order terminating her parental rights to R.N. and A.N. (the
children).1
FACTUAL2 AND PROCEDURAL BACKGROUND
¶2
Mother is the biological parent of R.N. and A.N., born
December 7, 2005, and August 23, 2008, respectively.
On January
15, 2010, Child Protective Services (CPS) received a report that
Mother and the children “were living in a car in the parking lot
of an apartment complex.
They had reportedly been living there
for several days. . . . [A.N.] was reported to have a sore
throat and difficulty breathing.
for her.
Mother did not have medication
Mother was reported to have been diagnosed as bipolar,
with anxiety and depression, and her medication is not believed
to
be
effective
for
her
needs.”
Mother
had
five
prior
unsubstantiated CPS reports alleging neglect, physical abuse,
emotional
abuse,
and
drug
abuse.
On
January
15,
CPS
took
temporary custody of the children and Mother was arrested that
1
R.N.’s father, Henry A., and A.N.’s father, David W., have also
had their parental rights terminated.
However, they are not
parties to this appeal. Mother is also the biological mother of
two other children, who are residing with their maternal
grandparents.
Mother’s rights have not been severed to either
child.
2
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
same day for criminal damage.
licensed
foster
home
the
decision
making
meeting
CPS placed the children in a
following
on
January
day.
20
CPS
to
held
discuss
a
team-
Mother’s
situation and Mother was unable to attend because she was still
incarcerated.
¶3
In its dependency petition, the Arizona Department of
Economic Security (ADES) alleged that Mother “has neglected the
children by failing to provide for the basic necessities of life
including the failure to provide supervision, food, clothing,
shelter or medical care and that inability and/or unwillingness
causes substantial risk of harm to the children’s health or
welfare.”
It further alleged that Mother had been “neglecting
her children due to her mental health” and failed to participate
in mental health services, despite being diagnosed with bipolar
disorder.
¶4
The juvenile court found the children dependent, made
them wards of the juvenile court and committed them to the care,
custody
and
control
family-reunification
of
ADES.
plan
and
The
ADES
juvenile
court
provided
Mother
following services to assist with the plan:
ordered
with
a
the
parenting classes,
parent-aide services, counseling, substance-abuse assessment and
treatment,
substance-abuse
testing,
visitation, and transportation.
3
psychiatric
evaluation,
¶5
The Foster Care Review Board (FCRB) issued findings
and recommendations in June 2010.
It found that Mother had not
been compliant or participated in services, did not have stable
housing, and the children’s out-of-home placement was necessary.
¶6
In
September
2010,
CPS
case
manager
Vicki
Bonassin
notified Mother that her parent-aide referral had been “closed
out as unsuccessful.”
She also informed Mother that the one
urine analysis test (UA) Mother had submitted on March 8, 2010,
was positive for marijuana.
Although Mother was instructed to
call every day to find out if she was required to submit a UA,
she only called a total of thirty-five times from March 2010 to
March 2011.
ADES considers failure to provide a UA on the
selected
as
date
a
positive
result.
Mother
also
failed
to
provide forty-two required UAs from March 2010 to March 2011 and
only submitted a total of three UAs in that time.
¶7
CPS
October
2010,
submitted
stating
a
that
report
to
Mother’s
the
juvenile
current
court
whereabouts
in
were
unknown; she did not have stable housing; and they believed she
was still abusing substances and not attending to her mentalhealth
issues.
CPS
concluded
that
“[r]eunification
services
should not continue because [Mother] is not doing reunification
services nor has she stayed in touch with [her] case manager.”
CPS
elaborated
that
Mother
“never
sought
the
counseling
requested of her . . . Therefore, [Mother] was not successful in
4
substance[-]abuse treatment, nor for her mental[-]health issues
which
specifically
included
domestic
violence.”
Parent-aide
services were also terminated due to Mother’s “non-compliance.”
¶8
Thereafter, the juvenile court changed the case plan
to severance and adoption and ordered ADES to file a motion for
termination
of
the
parent-child
relationship.
ADES
filed
a
motion for termination arguing that the children had been in an
out-of-home
diligent
placement
efforts
for
to
nine
months
provide
or
longer,
Mother
with
ADES
made
appropriate
reunification services, and Mother substantially neglected or
willfully refused to remedy the circumstances that caused the
children
to
be
care.3
in
533(B)(8)(a) (Supp. 2010).
Ariz.
Rev.
Stat.
(A.R.S.)
§
8-
ADES subsequently filed an amended
motion for termination, which added that the children had been
in
an
out-of-home
placement
for
fifteen
months
or
longer.
A.R.S. § 8-533(B)(8)(c).
¶9
The
juvenile
court
hearing in April 2011.
because
she
possession
of
had
a
contested
severance
Mother was incarcerated at the time
violated
drug
conducted
her
paraphernalia
probation
conviction,
temporarily released to attend the hearing.
3
stemming
but
from
she
a
was
Mother admitted
ADES also initially alleged that Mother was unable to discharge
her parental responsibilities due to mental illness, but
subsequently informed the juvenile court it would not proceed on
that ground.
5
that despite being told she had to make a daily phone call to
determine if she needed to submit a UA, she failed to do so.
Mother also admitted that she refused to take an oral swab drug
test or a hair follicle drug test.
Mother testified that she
was bipolar and had an anxiety disorder and depression, all of
which
require
medication
and
psychiatric
treatment.
Mother
admitted that if she fails to take her medication she “go[es]
downhill.”
Mother attempted to commit suicide three times, the
most recent of which was December 2010 or January 2011.
She
also failed to attend some of her psychiatric appointments while
her children were out of her care.
¶10
after
Mother
working
testified
for
that
approximately
she
was
four
not
weeks
employed
at
because
Arizona
Care
Providers in December 2010, she had to go on leave due to an
injury.
Prior to that job, she had “odd jobs on the internet”
such as selling “things on Craig’s List.”
Mother failed to
provide any financial support to the children since they were
removed from her care.
She stated that she lived in her own
apartment and her uncle and fiancé helped her pay her bills and
rent.
Mother stated that her fiancé was an appropriate person
to care for her children.
Mother testified that her two older
children, not parties to this case, had not lived with her for
at least two years.
6
¶11
not
CPS case manager Bonassin testified that Mother was
compliant
with
substance
abuse
testing,
parent-aide
services, or counseling, and Mother failed to remain in regular
contact with Bonassin or notify Bonassin of her whereabouts.
Based
on
the
results
of
a
background
check,
Bonassin
concerned about Mother’s fiancé caring for the children.
was
She
further stated that after A.N. visited with Mother, she began
having night terrors and, as a result, the visitations were
suspended.
A.N.’s night terrors stopped after the visits with
Mother ended.
¶12
their
Bonassin testified that the children were adoptable,
current
placement
was
willing
to
adopt
placement was able to meet all their needs.
them,
and
the
Bonassin concluded
that although she witnessed a loving and bonded relationship
between Mother and the children, it was in the children’s best
interest to have Mother’s parental rights terminated.
¶13
convincing
The juvenile court found that ADES proved by clear and
evidence
that
Mother’s
parental
rights
should
be
terminated due to the children’s out-of-home placement for nine
months in care, A.R.S. § 8-533(B)(8)(a), and fifteen months in
care, A.R.S. § 8-533(B)(8)(c).
The court additionally found
7
that
ADES
proved
by
a
preponderance
of
the
evidence
that
termination was in the best interest of the children.4
¶14
Mother
timely
appeals
and
argues
that
the
record
contains insufficient evidence to support the juvenile court’s
finding that Mother’s parental rights should be terminated under
A.R.S. §§ 8-533(B)(8)(a) and (c).
¶15
We have jurisdiction under A.R.S. §§ 8-235 (2007) and
12-120.21 (2003) and Arizona Rule of Procedure for the Juvenile
Court 103(A).
DISCUSSION
¶16
In order to terminate parental rights, the juvenile
court must find, by clear and convincing evidence, a minimum of
one
of
the
factors
listed
in
A.R.S.
§
8-533(B)
termination is in the best interest of the children.
and
that
Michael J.
v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 249, ¶ 12, 995 P.2d
682,
685
(2000).
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).
deemed
to
have
made
every
“[T]he juvenile court will be
finding
4
necessary
to
support
the
Mother does not challenge the juvenile court’s best interest
finding and we will therefore not address it on appeal.
8
judgment.”
Maricopa County Juv. Action No. JS-8287, 171 Ariz.
104, 111, 828 P.2d 1245, 1252 (App. 1991) (citations omitted).
“Because the trial court is ‘in the best position to weigh the
evidence,
judge
the
credibility
of
the
parties,
observe
the
parties, and make appropriate factual findings,’ this court will
not reweigh the evidence but will look only to determine if
there is evidence to sustain the court’s ruling.”
Mary Lou C.
v. Ariz. Dep’t of Econ. Sec., 207 Ariz. 43, 47, ¶ 8, 83 P.3d 43,
47 (App. 2004) (quoting Pima County Dependency Action No. 93511,
154 Ariz. 543, 546, 744 P.2d 455, 458 (App. 1987)).
¶17
Because termination is warranted upon a finding of any
one of the grounds listed in A.R.S. § 8-533(B), we need examine
only
whether
ADES
presented
evidence
grounds relied on by the court.
to
support
one
of
the
Jesus M., 203 Ariz. at 280, ¶
3, 53 P.3d at 205.
¶18
Pursuant
court
was
children
provide
to
A.R.S.
authorized
upon
finding
appropriate
to
§
8-533(B)(8)(c),
terminate
that
ADES
reunification
Mother’s
made
a
the
rights
diligent
services,
juvenile
the
to
the
effort
children
to
had
been in an out-of-home placement for a cumulative total period
of fifteen months or longer, Mother had been unable to remedy
the circumstances that caused the children to be in an out-ofhome
placement,
and
there
was
a
9
substantial
likelihood
that
Mother would not be capable of exercising proper and effective
parental control in the near future.
¶19
The
children
were
in
an
out-of-home
placement
from
January 16, 2010 to April 18, 2011, the date of the severance
hearing.
ADES
offered
services,
visitation,
Mother
parenting
mental-health
classes,
services,
parent-aide
substance-abuse
assessment and treatment, substance-abuse testing, psychiatric
evaluation, and transportation.
¶20
The
record
is
replete
with
inability to care for her children.
compliant
health
in
participating
services,
and
in
evidence
of
Mother’s
Mother was largely non-
parent-aide
substance-abuse
services,
testing
and
Mother refused to partake in required drug testing.
mental-
treatment.
Mother also
tested positive for marijuana in one of three UAs she completed
over a one year period.
Mother has mental-health issues for
which she has not sought and/or accepted adequate care.
She
attempted suicide three times, most recently while her children
were
in
an
out-of-home
placement.
independently obtain stable housing.
Mother
failed
to
Mother is unemployed and
was only employed for approximately four weeks over the duration
of the case.
Mother cannot adequately financially support the
children or properly and effectively care for the children.
She
has been incarcerated twice since the children were removed from
her care.
Finally, Mother is engaged to a man CPS determined
10
was unacceptable to be in the presence of the children.
Thus,
sufficient evidence supports the juvenile court’s finding that
severance was appropriate under A.R.S. § 8-533(B)(8)(c).
We
defer to the juvenile court’s ruling and its weighing of the
evidence.
Ariz. Dep’t of Econ. Sec. v. Oscar O., 209 Ariz. 332,
334, ¶ 4, 100 P.3d 943, 945 (App. 2004) (“A 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
resolve
disputed
facts.”).
In
light of this holding, we need not discuss whether termination
was also appropriate under A.R.S. § 8-533(B)(8)(a).
CONCLUSION
¶21
For
the
foregoing
reasons,
we
affirm
the
judgment
terminating Mother’s parental rights to the children.
_/s/______________________________
PHILIP HALL, Judge
CONCURRING:
_/s/_______________________________
DIANE M. JOHNSEN, Presiding Judge
_/s/_______________________________
PATRICIA A. OROZCO, Judge
11
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