Ashley W. v. Dcs ( 2017 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
ASHLEY W., Appellant,
v.
DEPARTMENT OF CHILD SAFETY,
T.W., T.T., T.W., J.W., Appellees.
No. 1 CA-JV 17-0203
FILED 10-24-2017
Appeal from the Superior Court in Maricopa County
No. JD31473
The Honorable Cari A. Harrison, Judge
AFFIRMED
COUNSEL
The Stavris Law Firm, PLLC, Scottsdale
By Christopher Stavris
Counsel for Appellant
Arizona Attorney General's Office, Phoenix
By Amber E. Pershon
Counsel for Appellee DCS
ASHLEY W. v. DCS, et al.
Decision of the Court
MEMORANDUM DECISION
Judge Diane M. Johnsen delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge Maria Elena Cruz joined.
J O H N S E N, Judge:
¶1 Ashley W. ("Mother") appeals the superior court's order
terminating her parental rights to her four children. For the following
reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 In October 2015, the Department of Child Safety ("DCS") filed
a dependency petition, alleging Mother was unable to provide stable and
safe housing for her children and had neglected them due to her substance
abuse. The superior court found the children dependent and adopted a case
plan of family reunification concurrent with severance and adoption.
¶3 DCS offered Mother a variety of services, including
substance-abuse treatment, psychological evaluation and counseling, a
parent aide, and visitation, but she did not consistently participate. During
this time, Mother often tested positive for marijuana or cocaine, and she
stopped submitting to drug testing after August 2016, when she tested
positive for amphetamine, cocaine metabolites and THC. Mother also
stopped attending court proceedings in this matter, although her counsel
appeared at all hearings. In October 2016, the court changed the case plan
to severance and adoption.
¶4 In November 2016, DCS filed a petition for termination of
Mother's parental rights, alleging the children had been in out-of-home
placement for nine months and, despite DCS's diligent efforts to provide
reunification services, Mother had substantially neglected or willfully
refused to remedy the circumstances that caused the placement. See Ariz.
Rev. Stat. ("A.R.S.") § 8-533(B)(8)(a) (2017).1 After a contested hearing, the
superior court found that DCS proved the statutory grounds by clear and
1 Absent material revision after the relevant dates, we cite the current
version of statutes unless otherwise indicated.
2
ASHLEY W. v. DCS, et al.
Decision of the Court
convincing evidence and, by a preponderance of the evidence, that
termination was in the children's best interests.
¶5 Mother failed to timely file a notice of appeal, but the superior
court allowed her to file a late appeal. This court has jurisdiction pursuant
to Article 6, Section 9, of the Arizona Constitution, A.R.S. §§ 8-235(A) (2017),
12-2101(A) (2017), 12-120.21(A) (2017) and Arizona Rules of Procedure for
the Juvenile Court 103 and 104.
DISCUSSION
¶6 Mother does not challenge the superior court's findings
regarding the statutory ground for severance or the children's best interests;
she argues only that the court erred because she did not receive effective
legal representation during the termination proceeding.
¶7 In reviewing a claim of ineffective assistance of counsel, the
"ultimate focus of inquiry must be on the fundamental fairness of the
proceeding whose result is being challenged." John M. v. Ariz. Dep't of Econ.
Sec., 217 Ariz. 320, 324, ¶¶ 13–14 (App. 2007) (quoting Strickland v.
Washington, 466 U.S. 668, 696 (1984)).2 We presume Mother's counsel
provided competent assistance, see State v. Bennett, 213 Ariz. 562, 567, ¶ 22
(2006), and Mother must prove that her counsel's conduct fell below the
standard of professional competence and demonstrate a reasonable
probability that "but for counsel's errors, the result would have been
different." John M., 217 Ariz. at 325, ¶ 18 (citation omitted); Bob H. v. Ariz.
Dep't of Econ. Sec., 225 Ariz. 279, 282, ¶ 10 (App. 2010). Further, counsel's
errors must have been so egregious that they undermine confidence in the
outcome of the proceeding. John M., 217 Ariz. at 325, ¶ 18.
¶8 Mother has provided no basis for us to conclude that the
severance proceedings in her case were fundamentally unfair or that, had
her counsel conducted himself differently, the superior court would have
reached a different result. Id. at 325, ¶ 19. Mother's only argument as to her
counsel's alleged ineffectiveness is that he failed to respond to an email she
sent him on January 30, 2017, inquiring about the status of her case. By the
time of her email, however, the superior court already had terminated her
2 Arizona courts have not explicitly decided whether a claim of
ineffective assistance of counsel may justify relief in a termination
proceeding. See John M., 217 Ariz. at 322–24, ¶¶ 8–12. Here, we assume
without deciding that Arizona law would permit relief based on a claim of
ineffective assistance of counsel. Id. at 325, ¶ 17.
3
ASHLEY W. v. DCS, et al.
Decision of the Court
parental rights, and any resulting prejudice to her ability to timely appeal
that decision was cured when the court allowed her to file a late notice of
appeal.
¶9 Accordingly, Mother has provided no basis for this court to
vacate the termination of her parental rights because of ineffective
assistance of counsel. See Pima County Severance Action No. S-2397, 161 Ariz.
574, 577–78 (App. 1989) (affirming termination of parental rights where a
parent failed to establish that her counsel's performance was both
incompetent and prejudicial).
CONCLUSION
¶10 For the foregoing reasons, we affirm the superior court's order
terminating Mother's parental rights.
AMY M. WOOD • Clerk of the Court
FILED: AA
4