MICHELLE C. 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.Sup.Ct. 111(c); ARCAP 28(c); Ariz.R.Crim.P. 31.24 DIVISION ONE FILED: 2/19/2013 RUTH A. WILLINGHAM, CLERK BY: mjt IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE MICHELLE C., Appellant, v. ARIZONA DEPARTMENT OF ECONOMIC SECURITY, C.C., J.C., D.C., Appellees. ) ) ) ) ) ) ) ) ) ) ) 1 CA-JV 12-0172 DEPARTMENT B MEMORANDUM DECISION (Not for Publication Ariz.R.P.Juv.Ct. 103(G); ARCAP 28) Appeal from the Superior Court in Maricopa County Cause No. JD18949 The Honorable Colleen McNally, Judge AFFIRMED The Stavris Law Firm, PLLC By Alison Stavris Attorneys for Appellant Scottsdale Thomas C. Horne, Attorney General Phoenix By Nicholas Chapman-Hushek, Assistant Attorney General Attorneys for Appellees H O W E, Judge ¶1 Michelle C. ( Mother ) appeals termination of her parental rights to her biological children C.C., J.C., and D.C. ( the children ) based on out-of-home placement for a cumulative period of fifteen months or more. For the following reasons, we affirm. FACTS AND PROCEDURAL HISTORY ¶2 The children s paternal aunt ( Aunt ) filed a private dependency petition on March 18, 2010, alleging that the children have been in her care since December 29, 2009. Aunt stated that Mother s whereabouts were unknown and Aunt had no way to contact her. Aunt took temporary custody of the children the following day. Child Protective Services ( CPS ), a division of the Arizona intervened and Department reported of that Economic it Security would provide ( ADES ), appropriate reunification services to Mother when she was located. ¶3 the From December 2009 to May 2010, Mother called Aunt and children once or twice, and visited once. Mother used methamphetamine and was homeless during that time. In May 2010, Mother moved into her mother s home, and later that month was convicted of committing domestic violence against the children s grandmother in the children s presence and placed on probation. ¶4 On July 9, 2010, Mother appeared and contested the allegations in the dependency petition. The court found the children dependent as to Mother. The court approved the case plan of family reunification, and CPS offered services to Mother. To achieve reunification, Mother was required to remain sober; apply skills learned in treatment; and demonstrate the 2 ability to care for herself, her children, and the children s special needs. She also was required to demonstrate the ability to provide a secure environment, employment and stable housing; and to deal with her emotions without using violence or aggression. ¶5 or CPS provided the following services to Mother directly in coordination substance abuse consultation, education, with her assessment parent-aide anger probation: and treatment, supervised management urinalysis visits treatment, testing, psychological and individual parenting counseling, psychological evaluation and transportation. Mother participated in all services. She completed intensive outpatient substance abuse, anger management and individual counseling. She participated in drug testing and tested negatively for drug use on all tests. ¶6 and The children are difficult to manage. The case manager Aunt observed behavioral issues with the children, ages three, four, and six, all of whom had not been potty-trained. C.C. had significant mental health problems and expressed himself by kicking and biting. J.C. was diagnosed with ADD and expressed herself by throwing tantrums. D.C. also threw minor temper tantrums. ¶7 Two parent-aide referrals of six months each were offered to Mother to provide parenting skills training. Mother 3 attended consistently and was taught techniques for effective discipline, parenting understanding assistance. children developmental However, the with mental issues, and parent-aides health issues, finding reported housing that the children s visits with Mother were unsatisfactory. C.C. soiled himself, J.C. had nightmares after visits, and all the children acted out behaviorally before and after visits. CPS offered a second parent-aide referral because Mother did not successfully complete the first referral, and this too was unsuccessful. The parent-aides expressed concern about Mother s ability to control the children and her anger. ¶8 her Mother participated in a psychological evaluation and doctor manage the opined that expressed children Mother s concern within lack that Mother appeared a supervised setting. of motivation or her unable The to doctor inability to internalize material from her training made her unable to manage the children. Her doctor further opined that Mother would have difficulty parenting if overwhelmed by stressors, including stress caused by the children s exhibition of behavioral issues and the instability of her employment or housing. ¶9 Because the parenting services CPS offered had been ineffective, CPS offered Mother therapeutic supervision visits that are supervised by a psychologist who intervenes and directly address issues that a 4 parent is having with her children. These visits did not go well; C.C. became aggressive and verbally defiant towards Mother during most of the visits, and bit Mother and his siblings. ¶10 The psychologist present during therapeutic supervision reported that Mother became easily overwhelmed and needed direction on what to do during her visits with the children. She also was not able to properly physically restrain the children psychologist during further visits reported when that it the was necessary. interactions The sometimes made Mother angry and frustrated and Mother did not know how to de-escalate the children s outbursts. ¶11 of After one year of parent-aide training and six months therapeutic visits, Mother s ability to parent did not progress to allow for unsupervised visits. In January 2012, ADES moved to terminate the parent-child relationship between Mother and the children. At this time, the children had been in out-ofhome placement for over two years. ¶12 made After a four-day trial, the court concluded that ADES diligent services placement to for efforts Mother, fifteen to the provide children months or appropriate had longer, been and reunification in out-of-home Mother was not capable of exercising proper and effective parental care and control in the near future. The court thus terminated Mother s parental rights to the children. 5 ¶13 Mother timely appeals. This court has jurisdiction under Arizona Revised Statutes ( A.R.S. ) sections 8-235 and 12120.21 (West 2013). 1 DISCUSSION ¶14 that Mother argues that the trial court erred in finding (1) ADES provided appropriate reunification services, (2) she was unable to remedy the circumstances that caused her children to be in out-of-home placement, and (3) a substantial likelihood existed that Mother would not be capable of exercising proper and effective parental care and control in the near future. 2 We find no error and affirm. ¶15 We view the evidence and all reasonable inferences therefrom in the light most favorable to upholding the juvenile court s order. Manuel M. v. Ariz. Dep t of Econ. Sec., 218 Ariz. 205, 207, ¶ 2, 181 P.3d 1126, 1128 (App. 2008). We do not reweigh the evidence because the juvenile court, as the trier of fact, 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). We accept 1 Absent material revisions to this decision, we cite the current version of applicable statutes. 2 Mother does not contest that the children have been in out-ofhome placement for fifteen months or longer. 6 the juvenile court s factual findings if reasonable evidence supports them, and we affirm a severance 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). ¶16 find To terminate parental rights, the juvenile court must by clear termination and set preponderance convincing forth of the in evidence A.R.S. evidence § that 8-533 that a ground exists, termination and is for by in a the children s best interest. 3 Kent K. v. Bobby M., 210 Ariz. 279, 280, 288, ¶¶ 1, 41, 110 P.3d 1013, 1014, 1022 (2005). To satisfy the requirements of § 8-533(B)(8)(c), the juvenile court must find that (1) ADES made a diligent effort to provide appropriate reunification services, (2) the child has been in out-of-home placement for a cumulative period of fifteen months or longer pursuant to court order, (3) the parent has failed to remedy the circumstances placement, and that (4) caused a the child substantial to be likelihood in out-of-home exists 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). 3 Mother does not contest the juvenile court s finding that termination of her parental rights was in the children s best interest. 7 I. Duty to Provide Appropriate Services ¶17 Mother s first argument, as we understand it, is that CPS failed to provide her with appropriate services by waiting almost a year to teach her the one, two, three redirection method, which she believes is a crucial technique necessary to parent and control C.C. Arguably, Mother waived this argument by failing to object to the trial court regarding the manner services were provided. 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) (when trial court entered explicit findings that ADES made reasonable efforts to provide services and Mother never objected, Mother waives right to raise the issue on appeal). Nevertheless, we need not address this issue because reasonable evidence supports the finding that ADES provided appropriate services to Mother. ¶18 make ADES has a statutory and constitutional obligation to reasonable efforts to reunify the family. Jordan C. v. Ariz. Dep t of Econ. Sec., 223 Ariz. 86, 93, ¶ 19, 219 P.3d 296, 303 (App. availability 2009). of The juvenile reunification court services must to consider Mother and the her participation in the services, and must find that ADES made a diligent effort to provide such services. A.R.S. § 8-533(B)(8), (D); Christina G., 227 Ariz. at 235, ¶ 14, 256 P.3d at 632. ADES is not required to provide every conceivable service, but must 8 provide Mother with the time and opportunity to participate in programs designed to improve the parent s ability to care for their children. Mary Ellen C. v. Ariz. Dep t Econ. Sec., 193 Ariz. 185, 192, ¶ 37, 971 P.2d 1046, 1053 (App. 1999). ADES satisfies its duty when it provides the type of therapy that offers the parental most hope for responsibilities. enabling Mother Maricopa Cnty. to carry Juvenile out her Action No. JS-5209 & No. JS-4963, 143 Ariz. 178, 189, 692 P.2d 1027, 1038 (App. 1984). ¶19 ADES provided appropriate services to Mother. By September 2010, Mother had participated in services including visitation, parent-aide referrals, urinalysis testing, substance abuse treatment, Notably, the techniques mental After management, parent-aide for health Mother anger effective issues, failed referrals individual included discipline, and to and successfully teaching parenting understanding counseling. children developmental complete Mother the with issues. parent-aide referrals, she participated in therapeutic supervision to gain further Mother instruction with a on parenting multitude of her services children. to help ADES her provided become an effective parent. Reasonable evidence supports the finding that ADES provided services that offered the most hope of enabling Mother to carry out her parental responsibilities. 9 II. Inability to Remedy Circumstances ¶20 Mother next argues that she had remedied the circumstances that caused the children s out-of-home placement because she had gained the knowledge necessary for her to parent the children. supports We the disagree finding and that Mother that find reasonable had not evidence remedied the circumstances that caused the children s out-of-home placement. ¶21 The circumstances that cause a child s out-of-home placement are those existing at the time of the severance that prevent[s] a parent from being able to 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). In its Findings of Fact, Conclusions of Law and Order, the court determined that Mother was not able to manage the children, even in a supervised setting, and that parent-aides and psychologists still observed that Mother experienced anger because the children overwhelmed her. The court found that [t]he concerns regarding . . . Mother s ability to meet the children s basic needs have not been ameliorated. The problem of unstable housing and employment is also a stressor for Mother. ¶22 Reasonable evidence supported the court s finding. Mother did not successfully complete two parent-aide services. Caseworkers and ability parent to psychologists the were children 10 concerned while about controlling Mother s her anger. Mother was not able to progress during therapeutic supervision to allow for unsupervised visitation. Further, Mother has not found stable housing or employment. While we commend Mother for her participation in services, she nevertheless failed to learn the skills necessary to effectively parent the children. III. Ability to Parent in the Near Future ¶23 Reasonable evidence supports the finding that Mother would not be capable of exercising proper and effective parental care and control in the near future. After all of the services offered to visitation direction Mother, with that At assuming supervision, recommend the did not progress children her from overwhelmed. she and she psychologist trial, Mother it family could Mother s became to reunification. two require psychologist years Further, to frustrated participation up unsupervised continued clinical continued take and to in stated therapeutic until Mother when did she not would show signs of improving her financial situation or living situation. At the time of the hearing, Mother continued to live with her mother, the place where Mother had committed domestic violence in the children s presence. Accordingly, we find the court did not err in terminating Mother s 533(8)(c). 11 parental rights under § 8- CONCLUSION ¶24 For these reasons, we affirm the juvenile court s termination order. _______/s/________________________ RANDALL M. HOWE, Judge CONCURRING: __/s/______________________________ PATRICIA K. NORRIS, Presiding Judge _/s/_______________________________ ANDREW W. GOULD, Judge 12

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