Danielle N. v. ADES

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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 ) ) ) 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ONE FILED: 09/27/2011 RUTH A. WILLINGHAM, CLERK BY: DLL 1 CA-JV 11-0074 DANIELLE N., DEPARTMENT E MEMORANDUM DECISION (Not for Publication – Ariz.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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