Sylvia R.
v.
Dep't of Child Safety & A.R.

ARIZONA COURT OF APPEALS DIVISION TWOSep 10, 2018
No. 2 CA-JV 2018-0085 (Ariz. Ct. App. Sep. 10, 2018)

No. 2 CA-JV 2018-0085

09-10-2018

SYLVIA R., Appellant, v. DEPARTMENT OF CHILD SAFETY AND A.R., Appellees.

COUNSEL Alewelt Law and Consulting PLLC, Phoenix By Jennifer A. Alewelt Counsel for Appellant Mark Brnovich, Arizona Attorney General By Laura J. Huff, Assistant Attorney General, Tucson Counsel for Appellee Department of Child Safety Pima County Office of Children's Counsel, Tucson By Sybil Clarke Counsel for Minor


THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See
Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f); Ariz. R. P. Juv. Ct. 103(G). Appeal from the Superior Court in Pima County
No. JD20150502
The Honorable Wayne E. Yehling, Judge

AFFIRMED

COUNSEL Alewelt Law and Consulting PLLC, Phoenix
By Jennifer A. Alewelt
Counsel for Appellant
Mark Brnovich, Arizona Attorney General
By Laura J. Huff, Assistant Attorney General, Tucson
Counsel for Appellee Department of Child Safety
Pima County Office of Children's Counsel, Tucson
By Sybil Clarke
Counsel for Minor

MEMORANDUM DECISION

Presiding Judge Vásquez authored the decision of the Court, in which Judge Espinosa and Judge Eppich concurred. VÁSQUEZ, Presiding Judge: ¶1 Appellant Sylvia R. challenges the juvenile court's order of April 13, 2018, terminating her parental rights to her daughter, A.R., born suffering drug withdrawal in August 2016, on the ground of Sylvia's inability to remedy the circumstances causing the child to remain in a court-ordered, out-of-home placement for longer than fifteen months. See A.R.S. § 8-533(B)(8)(c). On appeal, Sylvia contends the juvenile court should have sua sponte appointed her a guardian ad litem (GAL) and erred in finding the Department of Child Safety (DCS) had made "active efforts to reunify" her with A.R. ¶2 "We review the juvenile court's failure to sua sponte appoint a GAL under an abuse of discretion standard." Kelly R. v. Ariz. Dep't of Econ. Sec., 213 Ariz. 17, n.6 (App. 2006). "On the motion of any party or on its own motion, the court shall appoint a guardian ad litem if it determines that there are reasonable grounds to believe that a party to the proceeding is mentally incompetent or is otherwise in need of a guardian ad litem." A.R.S. § 8-535(F). Likewise, pursuant to Rule 40(C), Ariz. R. Juv. Ct., "[i]f the court has reason to believe a parent . . . may be incompetent, the court shall appoint a guardian ad litem to conduct an investigation and report to the court as to whether the parent . . . may be incompetent and in need of protection." ¶3 We have previously held that "the essential question in deciding if reasonable grounds exist to believe a parent is mentally incompetent is whether the parent is unable to understand the nature and object of the proceedings or assist in his or her defense." Kelly R., 213 Ariz. 17, ¶ 28. Thus, even when a parent is mentally ill, a court is not required to appoint a GAL in the absence of evidence that the parent is mentally incompetent and cannot understand the proceedings. Id. ¶ 29. ¶4 In this case, we cannot agree with Sylvia's assertion that the juvenile court should have appointed a GAL based on testimony about her low vocabulary knowledge and confusion and need for assistance in services. Despite such evidence of cognitive impairment, Sylvia's psychological evaluation does not raise a question about her competency; indeed the evaluator noted she "exhibited adequate attention, concentration and memory in our assessment context." She also declined a second evaluation. Sylvia participated in court proceedings and nothing in the record suggests concern by counsel or the court that she did not understand them. On the record before us, we cannot say the court abused its discretion in not appointing a GAL. See Kelly R., 213 Ariz. 17, n.6. ¶5 We also disagree with Sylvia's claim that the juvenile court erred in concluding DCS had made active efforts to reunite her with A.R. Before it may terminate a parent's rights, a juvenile court must find by clear and convincing evidence that at least one statutory ground for severance exists and must find by a preponderance of the evidence that terminating the parent's rights is in the best interests of the child. See A.R.S. §§ 8-533(B), 8-537(B); Kent K. v. Bobby M., 210 Ariz. 279, ¶ 41 (2005). When, as here, the child is an Indian child, the Indian Child Welfare Act (ICWA) requires two additional findings. First, the court must find by clear and convincing evidence that active efforts at "remedial services and rehabilitative programs designed to prevent the breakup of the Indian family" were made and were unsuccessful. 25 U.S.C. § 1912(d); see Yvonne L. v. Ariz. Dep't of Econ. Sec., 227 Ariz. 415, ¶ 26 (App. 2011). Second, the court must make "a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child." 25 U.S.C. § 1912(f). ¶6 As DCS points out, Sylvia did not object to the juvenile court's multiple findings that DCS had made active efforts to provide services. A parent who does not object to such findings regarding the provision of appropriate reunification services in the non-ICWA context has "waived the right to argue for the first time on appeal that [DCS] failed to offer appropriate reunification services." Shawanee S. v. Ariz. Dep't of Econ. Sec., 234 Ariz. 174, ¶ 18 (App. 2014). ¶7 Sylvia has not argued a different standard should apply here. Instead she contends that because she should have been appointed a GAL, her failure to object "cannot be treated as a waiver." But, as detailed above, the juvenile court did not abuse its discretion by proceeding without a GAL. Thus, because Sylvia did not timely object, she cannot now argue DCS failed to make active efforts toward reunification. ¶8 For the above-stated reasons, we affirm the juvenile court's order severing Sylvia's parental rights.

The court in Shawnee S. referred to the Arizona Department of Economic Security, but that agency's role in dependency cases has been replaced by DCS. See 2014 Ariz. Sess. Laws 2nd Spec. Sess., ch. 1, §§ 6, 20, 54. --------