Opinion
No. 1 CA-JV 12-0245
03-14-2013
LYDIA D., Appellant, v. ARIZONA DEPARTMENT OF ECONOMIC SECURITY, F. D., Appellees.
Law Office of Florence M. Bruemmer PC By Florence M. Bruemmer Attorney for Appellant Anthem Thomas C. Horne, Arizona Attorney General Mesa By Eric Devany, Assistant Attorney General Attorneys for Appellee Arizona Department of Economic Security Mesa
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
MEMORANDUM DECISION
(Not for Publication - 103(G) Ariz. R.P. Juv. Ct.; Rule 28, ARCAP)
Appeal from the Superior Court in Yavapai County
Cause No. P1300JD201000071
The Honorable David L. Mackey, Judge
AFFIRMED
Law Office of Florence M. Bruemmer PC By Florence M. Bruemmer
Attorney for Appellant
Anthem Thomas C. Horne, Arizona Attorney General Mesa
By Eric Devany, Assistant Attorney General
Attorneys for Appellee Arizona Department of Economic Security
Mesa BROWN , Judge ¶1 Lydia D. ("Mother") appeals the juvenile court's order terminating her parental rights to her son ("the child"). Mother argues the court erred because (1) the Arizona Department of Economic Security ("ADES") failed to make reasonable efforts to provide adequate reunification services; and (2) termination was not in the child's best interests. For the following reasons, we affirm.
On the court's own motion, we amend the caption to protect the identity of the minor child.
BACKGROUND
¶2 The child was born in March of 2009. In December 2010, Child Protective Services ("CPS") investigated a report of two incidents of Mother's alleged neglect of the child: (1) a person entered Mother's apartment through an unlocked front door, found Mother passed out from intoxication, and discovered the child screaming in his crib; and (2) on another occasion, a different person entered Mother's apartment through an unlocked front door and discovered Mother passed out from intoxication on the kitchen floor while the child was sleeping in his crib. Following the report of those incidences, CPS offered Mother voluntary referrals to substance abuse treatment but she refused, denying any problem. ¶3 About two weeks after the initial report, CPS received another report indicating that police officers found Mother walking down the street while highly intoxicated. The officers determined that Mother left the child home alone for at least twenty to thirty minutes while she walked to a nearby store. That same day, a CPS case manager went to Mother's apartment and found that Mother was "extremely intoxicated." CPS offered Mother a safety plan, which would consist of the child being placed in a safe environment while assessments were being completed and substance abuse treatment was being initiated, but Mother refused to cooperate. When the case manager informed Mother ADES was taking temporary custody of the child, Mother attempted to assault the case manager. ¶4 The day after taking custody of the child, ADES filed a dependency petition alleging that Mother was neglecting the child due to alcohol abuse and failure to meet her parental responsibilities. Several weeks later, the juvenile court found the child dependent as to Mother and approved a case plan of family reunification and services to achieve that goal. ¶5 Mother successfully participated in a number of services offered by ADES including a psychological evaluation by Dr. Wagner, who recommended that Mother continue intensive outpatient treatment, undergo random urinalysis testing, participate in visitation and parenting classes, undergo psychotherapy, develop a specific program of recovery, and consult a doctor regarding being placed on Antabuse, a prescription medication for treating alcohol abuse. Mother also graduated from family drug court. In June 2011, the child was returned to Mother's care and the juvenile court dismissed the dependency in late November 2011. ¶6 Less than two weeks after the court dismissed the dependency, CPS discovered that Mother had failed to pick up the child from a daycare center because she was too intoxicated. When a CPS investigator arrived at her residence, Mother had passed out. Neighbors reported Mother had been drinking for the past two weeks. CPS again removed the child and returned him to the same foster family that cared for him during the first dependency. ADES filed a second dependency petition, alleging neglect due to Mother's substance abuse and her inability to provide for the child's safety and wellbeing. The juvenile court adjudicated the child dependent, finding that ADES had made reasonable efforts to prevent the need for continued removal of the child from the home and that family reunification was still an appropriate goal. ¶7 ADES again offered a number of services, including child care, bonding assessment, referrals to community resources, individual counseling, family counseling, visitation, parent aide, parenting classes, psychological evaluation, substance abuse assessment and aftercare program, and urinalysis testing. ADES further recommended that Mother participate in extensive mental/emotional health treatment, reside in a sober living environment, and re-enroll in family drug court with a more extensive treatment plan. ¶8 In December 2011, Mother participated in urinalysis testing and tested positive for marijuana three times. Mother also participated in substance-abuse classes and one-on-one counseling. However, Mother dropped out of family drug court after she was ordered to serve jail time due to non-compliance. In January 2012, Dr. Wagner performed another psychological evaluation and reported Mother was "extremely resistant" to entering inpatient treatment and refused to engage in Alcoholics-Anonymous-type programs because they did not "fit for her." Dr. Wagner concluded that continued placement with Mother would deprive the child of consistency in his life. ¶9 In May 2012, ADES filed a motion to terminate Mother's parental rights to the child. ADES sought termination on three grounds: (1) neglect under Arizona Revised Statutes ("A.R.S.") section 8-533(B)(2) (2012); (2) chronic substance abuse under A.R.S § 8-533(B)(3); and (3) the child's return to out-of-home placement within 18 months after being returned to Mother following the initial dependency under A.R.S. § 8-533(B)(11). ADES also alleged termination would be in the best interests of the child. ¶10 At the severance hearing, ADES presented evidence that in May 2012 Mother had been expelled from her inpatient treatment facility for being absent more than 24 hours without authorization. The next day, Mother relapsed with alcohol and marijuana. Mother testified she had consumed alcohol and used marijuana after the first dependency was terminated, specifically indicating that she consumed alcohol the day before the severance hearing and used marijuana the week prior. Mother also testified she did not complete her inpatient treatment and was not currently enrolled in any other treatment program. Mother stated she "gave up" on treatment options because she "didn't feel like there was any chance for [her] to fix it." Mother also indicated she did not agree with the treatment provided because it was not helpful. ADES presented evidence that supervised visitation was discontinued because Mother was unable to demonstrate sobriety. The court granted ADES' motion for termination, finding that ADES established all three statutory grounds by clear and convincing evidence. The court also determined that termination was in the child's best interests. Mother timely appealed.
The rights of the child's father were also terminated, but he is not a party to this appeal.
Absent material revision after the relevant date, we cite a statute's current version.
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DISCUSSION
A. Adequacy of Reunification Services
¶11 To justify termination of Mother's parental rights, ADES had to prove and the juvenile court had to find the existence of at least one statutory ground by clear and convincing evidence. Michael J. v. Ariz. Dep't of Econ. Sec.,196 Ariz. 246, 249, ¶ 12, 995 P.2d 682, 685 (2000). The court was also required to find by a preponderance of the evidence that termination was in the child's best interests. Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 22, 110 P.3d 1013, 1018 (2005). We view the evidence in a severance case in the light most favorable to sustaining the juvenile court's findings. Christina G. v. Ariz. Dep't of Econ. Sec.,227 Ariz. 231, 234, ¶ 13, 256 P.3d 628, 631 (App. 2011). "[W]e will accept the juvenile court's findings of fact unless no reasonable evidence supports those findings, and we will 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) (citation omitted). ¶12 "It is well established that [ADES], before acting to terminate parental rights, has an affirmative duty to make all reasonable efforts to preserve the family relationship." Mary Ellen C. v. Ariz. Dep't of Econ. Sec., 193 Ariz. 185, 186, ¶ 1, 971 P.2d 1046, 1047 (App. 1999). ADES must provide a parent "with the time and opportunity to participate in programs designed to help her to become an effective parent." Maricopa Cnty. Juv. Action No. JS-501904, 180 Ariz. 348, 353, 884 P.2d 234, 239 (App. 1994). ADES "is not required to provide every conceivable service or to ensure that a parent participates in each service it offers." Id. Further, ADES is not required to undertake futile rehabilitative measures. Mary Ellen C., 193 Ariz. at 192-93, ¶¶ 37-39, 971 P.2d at 1053-54. ¶13 Mother asserts the juvenile court erred by finding ADES made diligent efforts to provide her with appropriate reunification services, arguing the services ADES provided did not accommodate her religious views and were not sensitive to her aversion to group living arrangements. Assuming without deciding whether ADES is required to show reasonable efforts to reunify the family when the ground for termination is based on neglect, we address Mother's arguments. ¶14 In concluding that severance was appropriate, the juvenile court found Mother's actions repeatedly put the child in danger and caused him to be removed from her care on two separate occasions. The court also found Mother was unable to discharge her parental responsibilities because of a history of chronic abuse of drugs and alcohol. The court further found that ADES made reasonable efforts throughout the two dependencies to provide Mother with several reunification services, including case management, child and family team meetings, substance abuse assessment and treatment, family drug court, urinalysis testing, parenting class, visitation, in-home therapeutic support, individual counseling, a psychological evaluation, women's empowerment services, substance abuse case management, transportation, parent aide services, and referrals to community support services. The evidence shows ADES offered additional services to Mother during the second dependency including referral to a halfway house, bonding assessment, psychiatric evaluation, parent-child play therapy, and additional parenting classes. The court found Mother was only minimally compliant with services during the second dependency, noting that she moved into a halfway house more than two months after it was recommended, stopped attending family drug court, failed to attend parent-child play therapy and parenting classes, and walked out of her psychiatric evaluation before it was completed. ¶15 On appeal, Mother argues that when providing services, ADES must tailor those services to an individual parent's requests. While we agree that ADES was required to give Mother "the time and opportunity to participate in programs designed to help her become an effective parent," Juv. Action No. JS-501904, 180 Ariz. at 353, 884 P.2d at 239, we do not agree that ADES was required to make available every conceivable service. Nor was ADES required to provide any specific services Mother desired or preferred. Instead, ADES' responsibility was to engage in "reasonable efforts to preserve the family relationship." Mary Ellen C., 193 Ariz. at 186, ¶ 1, 971 P.2d at 1047. ¶16 Mother argues that to the extent some of the services ADES provided conflicted with her atheist beliefs and her past experiences as a foster child, ADES failed to provide sufficient services prior to the court's terminating her parental rights to the child. Even assuming the truth of that assertion, however, the record demonstrates that ADES offered Mother an array of other services that did not include any religious component such as urinalysis testing, parenting classes, psychological and psychiatric evaluations, and therapeutic visitations. And notwithstanding the secular nature of those services, Mother still failed to take advantage of the opportunities they presented. Moreover, Dr. Wagner opined that regardless of any religious component in Mother's treatment facilities, she would resist any program in which she was not in control. In determining whether severance was appropriate in this case, the juvenile court was required to consider not only "the availability of reunification services to the parent," but also "the participation of the parent in [those] services." A.R.S. § 8-533(D) (2012) (emphasis added). Thus, although Mother argues some services ADES provided were not a good fit, she failed to adequately utilize the remaining available services that would have assisted her in achieving the goal of reunification. We therefore conclude that the record supports the juvenile court's finding that ADES made reasonable efforts to provide Mother rehabilitative services.
B. Best Interests ¶17 Mother argues that termination of her parental rights was not in the child's best interests. When ruling on a termination petition, a juvenile court must consider the best interests of the child. A.R.S. § 8-533(B). In assessing what is in the child's best interests, the court "must include a finding as to how the child would benefit from severance or be harmed by the continuation of the relationship." Juv. Action No. JS-500274, 167 Ariz. 1, 5, 804 P.2d 730, 734 (1990). Evidence supporting a finding that a child would benefit from the termination of parental rights includes evidence of an adoption plan or that the child is "adoptable." Id. at 6. The juvenile court may consider whether the existing placement is meeting the child's needs in making its best-interests' finding. Audra T. v. Ariz. Dep't of Econ. Sec.,194 Ariz. 376, 377, ¶ 5, 982 P.2d 1290, 1291 (App. 1998). A "best interest inquiry focuses primarily upon the interests of the child, as distinct from those of the parent." Kent K., 210 Ariz. at 287, ¶ 37, 110 P.3d at 1021. ¶18 Here, a case manager testified the child had been in out-of-home care for thirteen months, was in an adoptive placement, was bonded to that placement, and it would be in the child's best interests to allow him to be adopted to provide him with permanency, safety, and stability. Dr. Wagner opined that "[g]iven [Mother's] severe bouts of alcoholic behavior and dysfunction, . . . the child has been through way too much in his short life" and "deserves to have a consistent, safe, loving, nurturing, [sober] environment in which to grow up." Accordingly, the record supports the court's conclusion that severance was in the child's best interests. ¶19 Without any supporting authority, Mother suggests that a permanent guardianship pursuant to A.R.S. § 8-872(A) (2012) would serve the child's best interests better than severance. Although Mother briefly mentioned the guardianship option at the severance hearing, nothing in the record indicates she filed a motion for permanent guardianship or otherwise raised the issue at any point prior to the hearing. As such, she has waived this argument, absent a showing of fundamental error. See Monica C. v. Ariz. Dep't of Econ. Sec., 211 Ariz. 89, 94, ¶ 23, 118 P.3d 37, 42 (App. 2005). But Mother has not alleged, much less shown, that fundamental error occurred. See State v. Moreno-Medrano, 218 Ariz. 349, 354, ¶ 17, 185 P.3d 135, 140 (App. 2008) (explaining that failure to allege fundamental error on appeal waives argument). ¶20 Furthermore, Mother has not provided this court with a transcript of the permanency hearing conducted on May 1, 2012, at which time the juvenile court approved ADES' recommendation to change the case plan from reunification to severance and adoption. In the absence of a transcript, we presume that the court considered the appropriate alternatives, including guardianship, as directed by statute. See Adrian E. v. Ariz. Dep't of Econ. Sec., 215 Ariz. 96, 102, ¶ 21, 158 P.3d 225, 231 (App. 2007) ("We generally presume items that are necessary for our consideration of the issues but not included in the record support the court's findings and conclusions."); A.R.S. § 8-862 (B) (2012) ("At the permanency hearing, the court shall determine . . .[w]hether termination of parental rights . . . or some other permanent legal status is the most appropriate plan for the child."). ¶21 Moreover, while a permanent guardianship could have been an option, ADES asserted that severance was more appropriate. ADES explained it was seeking the most permanent option for the child to ensure long-term stability. Thus, we disagree with Mother's suggestion that the juvenile court erred in failing to consider a permanent guardianship option.
CONCLUSION
¶22 Based on the foregoing, we affirm the juvenile court's order terminating Mother's parental rights.
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MICHAEL J. BROWN, Judge
CONCURRING:
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SAMUEL A. THUMMA, Presiding Judge
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DIANE M. JOHNSEN, Judge