Mary C. v. Dcs, J.S. ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
MARY C., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, J.S., Appellees.
No. 1 CA-JV 17-0149
FILED 10-26-2017
Appeal from the Superior Court in Maricopa County
No. JD16331
The Honorable Cari A. Harrison, Judge
AFFIRMED
COUNSEL
Denise L. Carroll Esq., Scottsdale
By Denise L. Carroll
Counsel for Appellant
Arizona Attorney General’s Office, Phoenix
By Amber E. Pershon
Counsel for Appellee Department of Child Safety
MARY C. v. DCS, J.S.
Decision of the Court
MEMORANDUM DECISION
Judge Thomas C. Kleinschmidt 1 delivered the decision of the Court, in
which Presiding Judge Paul J. McMurdie and Judge Peter B. Swann joined.
K L E I N S C H M I D T, Judge:
¶1 Mary C. (Mother) challenges the superior court’s order
terminating her parental rights to her biological son J.S. based on mental-
illness and 15-months’ time-in-care. She argues the court erred in finding
(1) the Arizona Department of Economic Security (ADES) made diligent
efforts to provide her with appropriate reunification services, and (2)
termination is in the best interests of the child. Because Mother has shown
no error, the order is affirmed.
FACTS 2 AND PROCEDURAL HISTORY
¶2 J.S. was born in November 2009. In early 2015, Mother, Father,
and five-year-old J.S. were homeless. 3 The Department of Child Safety
(DCS) received reports that the family was staying in a drug house, Father
was abusing substances, and there was domestic violence between Mother
and Father. DCS interviewed Mother who admitted the family was
homeless and Father was selling drugs to earn money. She denied either
parent was abusing substances, but DCS asked her to submit to a urinalysis
test. She did not comply.
¶3 DCS took custody of J.S. and filed a petition alleging he was
dependent as to Mother because she was unable to meet his basic needs,
1 The Honorable Thomas C. Kleinschmidt, retired Judge of the Court
of Appeals, Division One, has been authorized to sit in this matter pursuant
to Article VI, Section 3, of the Arizona Constitution.
2 This court views the evidence in a light most favorable to sustaining
the superior court’s findings. See Manuel M. v. Ariz. Dep’t of Econ. Sec., 218
Ariz. 205, 207, ¶ 2 (App. 2008).
3 Father’s parental rights were terminated and he is not a party to this
appeal.
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MARY C. v. DCS, J.S.
Decision of the Court
had unaddressed mental health and cognitive concerns, and DCS could not
rule out substance abuse at that time. In March 2015, the court found J.S.
dependent and set the case plan as family reunification. 4 Mother and Father
moved to Prescott shortly after the proceeding.
¶4 In April 2015, Mother completed rule-out hair follicle testing
and urinalysis tests. When these tests returned negative, DCS did not have
further substance-abuse concerns with Mother. That summer, DCS referred
Mother for a psychological evaluation which she did not complete. In
September 2015, Mother began parent-aide services. Mother participated in
this service without Father because of Father’s prior aggressive behavior.
At her mid-point evaluation in December, Mother denied neglecting J.S.
and denied Father presented any safety concerns. Mother unsuccessfully
closed out of parent-aide in April 2016 because she was not open to
direction, disagreed with the parent-aide, did not complete the homework,
and failed to meet the parenting goals which included gaining an
understanding of domestic violence and substance abuse. DCS did not
provide a second parent-aide referral because the child was placed out of
state. Further, DCS does not typically provide second parent-aide referrals
absent special circumstances.
¶5 DCS provided Mother a second psychological evaluation
referral which she completed in January 2016. Mother denied Father’s
continued substance abuse despite his positive drug tests, denied
neglecting J.S., and had great difficulty answering basic child care
questions. Mother was diagnosed with a mild to moderate intellectual
disability and a rule-out diagnosis of dependent personality disorder. The
evaluator noted Mother would likely be incapable of raising a child
independently due to her mental deficiency.
¶6 Mother and Father participated in couples counseling for
several months until they were closed out unsuccessfully due to Father’s
anger issues. Mother told DCS she would not continue counseling without
Father. DCS provided her information on how to access services in Yavapai
County and she eventually self-referred to counseling in October 2016.
¶7 J.S. was moved to an out-of-state placement in June 2016. In
July 2016, the court changed the case plan to severance and adoption, and
in August, DCS moved to terminate Mother’s parental rights on the
mental-illness and fifteen-months out-of-home placement grounds. J.S.
4 Mother was appointed a guardian ad litem during the juvenile court
proceedings.
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exhibited aggressive behaviors and was moved to a foster care placement
in Arizona.
¶8 The juvenile court held a contested severance hearing in
March 2017. Mother admitted that her relationship with Father was
emotionally abusive and testified she separated from him in September
2016. She denied, however, allegations of neglect, domestic violence, and
Father’s substance abuse. The juvenile court terminated Mother’s parental
rights on the grounds alleged and found termination was in J.S.’s best
interests.
¶9 This court has jurisdiction over Mother’s timey appeal
pursuant to Article 6, Section 9, of the Arizona Constitution, Arizona
Revised Statutes (“A.R.S.”) sections 8-235(A), 12-2101(A) and 12-120.21(A),
and Arizona Rules of Procedure for the Juvenile Court 103 and 104.
DISCUSSION
¶10 As applicable here, to terminate parental rights, a court must
find proven by clear and convincing evidence at least one statutory ground
articulated in A.R.S. § 8-533(B), and must find by a preponderance of the
evidence that termination is in the best interests of the child. See Kent K. v.
Bobby M., 210 Ariz. 279, 288, ¶ 41 (2005); Michael J. v. Ariz. Dep’t of Econ. Sec.,
196 Ariz. 246, 249, ¶ 12 (2000). Because the superior court “is in the best
position to weigh the evidence, observe the parties, judge the credibility of
witnesses, and resolve disputed facts,” this court will affirm an order
terminating parental rights as long as it is supported by reasonable
evidence. Jordan C. v. Ariz. Dep’t of Econ. Sec., 223 Ariz. 86, 93, ¶ 18 (App.
2009).
I. DCS Made Diligent Efforts to Reunify the Family.
¶11 Mother’s only challenge to the juvenile court’s findings
regarding the statutory grounds of mental illness and time-in-care is that
DCS did not make a “diligent effort to provide appropriate reunification
services” after she separated from Father. A.R.S. § 8-533(B)(8). ADES argues
Mother waived this argument because she did not claim services were
inadequate until the termination hearing. However, if “at a termination
hearing, a parent can dispute evidence that ADES claims shows a diligent
effort to provide appropriate reunification services, including by testifying
about the services actually provided,” then the argument is properly raised
for appeal. Shawanee S. v. Ariz. Dept. of Econ. Sec., 234 Ariz. 174, 178, ¶ 14
(App. 2014).
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¶12 The State is constitutionally obligated to make reasonable
efforts to preserve the family as a necessary predicate to severing parental
rights. Mary Ellen C. v. Ariz. Dep’t of Econ. Sec., 193 Ariz. 185, 192, ¶ 32 (App.
1999). DCS must provide a parent “with the time and opportunity to
participate in programs designed to help her become an effective parent.”
Maricopa Cty. Juv. Action No. JS-501904, 180 Ariz. 348, 353 (App. 1994).
However, futile efforts are not required and DCS “is not required to provide
every conceivable service or to ensure that a parent participates in each
service.” Id. Nor is the court required to “leav[e] the window of opportunity
for remediation open indefinitely.” Maricopa Cty. Juv. Action No. JS-501568,
177 Ariz. 571, 577 (App. 1994).
¶13 Mother argues DCS did not make diligent efforts to provide
her with reunification services after she separated from Father, primarily
asserting she was not provided with counseling or a second parent-aide
referral. We disagree.
¶14 The record indicates Mother participated in some individual
and joint counseling with Father. After the service closed, she was offered
an individual referral but refused, stating “there was no need for
[counseling] and the entire case was a conspiracy and she should have her
child back.” Nevertheless, DCS provided her with individual counseling
options in Yavapai County, including instructions on how to contact the
providers.
¶15 Mother began participating in self-referred counseling after
she reportedly left Father in September 2016. Thus, DCS was not required
to duplicate this service for her. See Pima Cty. Severance Action No. S-2397,
161 Ariz. 574, 577 (App. 1989) (DCS is not required to provide services that
were already offered).
¶16 Mother argues DCS should have provided a second
parent-aide referral after she left Father. However, the record indicates
parent-aide referrals are only offered a second time under unusual
circumstances. Additionally, J.S. was in an out-of-state placement until
approximately three months before the termination proceeding. Thus, a
second parent-aide referral would have been futile.
¶17 The record shows DCS provided Mother with numerous
services including counseling, parent aide, case aide, drug testing, and
transportation. Mother did not successfully complete many services and
only showed a willingness to engage after the case plan had changed to
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termination. The record supports the court’s determination that DCS made
reasonable efforts to provide Mother reunification services.
II. Mother Has Shown No Error In The Superior Court’s Best
Interests Finding.
¶18 Mother argues the superior court erred when it found
termination was in J.S.’s best interests. To support a best interests finding,
“the court must find either that the child will benefit from termination of
the relationship or that the child would be harmed by continuation of the
parental relationship.” Mario G. v. Ariz. Dep’t of Econ. Sec., 227 Ariz. 282, 286,
¶ 26 (App. 2011).
¶19 The evidence in this case supports both alternatives. “One
factor the court may properly consider in favor of severance is the
immediate availability of an adoptive placement. Another is whether an
existing placement is meeting the needs of the child.” Audra T. v. Ariz. Dep’t
of Econ. Sec., 194 Ariz. 376, 377, ¶ 5 (App. 1998) (citation omitted). The
superior court properly found that termination would benefit J.S. because
there is a current adoption plan in place with a placement that “is able to
meet [all of the child’s] needs.” Additionally, J.S. is “considered adoptable
if the placement were not able to finalize his adoption for any reason.”
¶20 Although Mother has taken some positive steps toward being
able to care for J.S., including obtaining housing and social security, it is
unclear how long it would take for her to be in a position where she could
raise J.S. on her own. The superior court noted “there is a detriment in not
terminating the Mother’s parental rights as it would result in the child
lingering in the foster care system for an indeterminate period as Father’s
rights have been terminated and Mother is not able to care for the child now
or in the future.” The superior court properly could conclude that affording
Mother an indeterminate amount of additional time to work on her mental
health issues was not in J.S.’s best interests. See JS-501568, 177 Ariz. at 577.
¶21 Mother argues she and J.S. are strongly bonded and he has
expressed a desire to return to her care. However,
[t]he existence and effect of a bonded
relationship between a biological parent and a
child, although a factor to consider, is not
dispositive in addressing best interests. Even in
the face of such a bond, the juvenile court is
required to evaluate the totality of
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circumstances and determine whether
severance is in the best interests of the children.
Dominique M. v. Dep’t of Child Safety, 240 Ariz. 96, 98–99, ¶ 12 (App. 2016)
(citation omitted). Here, the superior court considered the totality of the
circumstances in finding that termination was in J.S.’s best interests;
reasonable evidence in the record supports that finding.
CONCLUSION
¶22 The superior court’s order terminating the parental rights of
Mother to J.S. is affirmed.
AMY M. WOOD • Clerk of the Court
FILED: AA
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