Paul v. Dana B. 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
PAUL V., DANA B., Appellants,
v.
DEPARTMENT OF CHILD SAFETY, L.V., R.V., Appellees.
No. 1 CA-JV 16-0467
FILED 6-6-2017
Appeal from the Superior Court in Mohave County
No. L8015JD201407006
The Honorable Douglas Camacho, Judge Pro Tempore
AFFIRMED
COUNSEL
The Stavris Law Firm, PLLC, Scottsdale
By Alison Stavris
Counsel for Appellant Paul V.
Mohave County Legal Defender’s Office, Kingman
By Eric Devany
Counsel for Appellant Dana B.
Arizona Attorney General’s Office, Mesa
By Nicholas Chapman-Hushek
Counsel for Appellee Department of Child Safety
PAUL V., DANA B. v. DCS, et al.
Decision of the Court
MEMORANDUM DECISION
Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge James P. Beene joined.
W I N T H R O P, Judge:
¶1 Paul V. (“Father”) and Dana B. (“Mother”) (collectively, “the
parents”), the biological parents of L.V. and R.V. (collectively, “the
children”),1 appeal the juvenile court’s order terminating their parental
rights to the children on multiple statutory grounds. For the following
reasons, we affirm.
FACTS AND PROCEDURAL HISTORY2
¶2 The parents have a long history of domestic violence, and
Father has a history of substance abuse, specifically alcohol and
methamphetamines. Mother has a lengthy history of serious mental illness,
and, at times, has refused to use prescribed medications. For both parents,
these issues prevent them from properly parenting.
¶3 In January 2014, the parents and children lived in California.
At that time, Father called the police given Mother’s threat of self harm and
concerns about the safety of the children. Police officers took Mother to a
mental health facility; however, she checked herself out after twenty-four
hours. Over the next several days, the police were called to the residence
multiple times due to continuing incidents between the parents.
¶4 After a California state court granted Father emergency
temporary custody of the children, Mother took the children to Arizona to
live with her parents. The maternal grandparents then contacted Arizona’s
Department of Child Safety (“DCS”), which removed the children from
Mother’s care in late January 2014.
1 L.V. was born in November 2012; R.V. was born in September 2013.
2 We view the facts and reasonable inferences therefrom in the light
most favorable to affirming the juvenile court’s order. Ariz. Dep’t of Econ.
Sec. v. Matthew L., 223 Ariz. 547, 549, ¶ 7, 225 P.3d 604, 606 (App. 2010).
2
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Decision of the Court
¶5 DCS filed a dependency petition, alleging the children were
dependent as to the parents due to numerous instances of neglect, as well
as abuse on the part of Mother. The juvenile court found the children
dependent and adopted a case plan of family reunification.3
¶6 DCS offered the parents a wide variety of services. However,
Father initially chose to stay in California, where he was briefly arrested
and incarcerated, and did not engage in services or visitation. Mother
participated in various services but struggled with her mental health issues,
missed numerous sessions, routinely cancelled visitation, and continued to
engage in domestic violence with Father when he visited her.
¶7 In May 2014, Father moved to Arizona, was referred for
services, began to inconsistently visit the children, drank alcohol with
Mother, tested positive for opiates, and admitted using codeine prescribed
to Mother. Mother struggled to care for or redirect the children during
supervised visits, especially when attempting to care for both children or
when Father was present, and she and Father often terminated visits early.
Both parents also struggled to maintain stable housing and employment.
¶8 By February 2015, Mother’s mental health appeared stable,
and the parents were living together in an apartment. They were able to
effectively parent as a couple, but not without assistance. Also, Father had
a criminal case for which he faced possible incarceration. The parents later
began having weekly supervised visits in their home. Due to her mental
illness, however, Mother was unable to care for the children on her own.
¶9 In May 2015, Mother engaged in self harm and, pursuant to a
psychological evaluation, was diagnosed with “Major Depressive Disorder,
recurrent episodes, severe”; “Borderline Personality Disorder”; and rule-
out “Bipolar II Disorder.” Father also underwent a psychological
evaluation, with a resulting recommendation that he engage in “individual
counseling for symptoms of anxiety and depression as well as to assess
further for any ongoing issues with his own anger toward others if still
present,” a psychiatric evaluation for a medication evaluation, couples
3 Arizona’s juvenile court had jurisdiction under the Uniform Child
Custody Jurisdiction and Enforcement Act because the court contacted the
California superior court, which declined jurisdiction over the matter. See
Ariz. Rev. Stat. (“A.R.S.”) §§ 25-1031 to -1040 (2017); see also Cal. Fam. Code
§§ 3421 to 3430 (West 2017).
3
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Decision of the Court
therapy, psychoeducational parenting classes, and family therapy if he
were unified with the children.
¶10 Between October 2014 and October 2015, Father missed over
half of his required drug tests and tested positive for alcohol five times and
opiates once—even while he engaged in substance-abuse treatment. He
also missed nearly forty percent of his domestic violence classes.
Nonetheless, by October 2015, the parents were allowed overnight
weekend visits with the children, as well as twice-weekly monitored visits,
and DCS eventually moved to change the children’s physical custody to
Father.
¶11 In early December 2015, the juvenile court granted Father
physical custody of the children, in part because he assured DCS that he
would follow DCS’s directive to not leave the children alone with Mother.4
In February 2016, the court orally dismissed the case, and soon after, DCS
lodged a formal order to dismiss.
¶12 Shortly thereafter, however, Mother contacted DCS and
explained that Father had relapsed on methamphetamines, was physically
and emotionally abusing her, and the children were unsafe in the
residence.5 Mother sought an order of protection against Father, and she
and the children moved in with the maternal grandparents with a safety
plan. Father then made harassing phone calls to Mother and caused
destruction at the maternal grandparents’ residence, including shattering
the windows and denting the trunk of Mother’s car, which led to the filing
of numerous police reports and a charge of aggravated domestic violence
against Father. Mother refused to cease communication with Father,
however, and the maternal grandparents requested that Mother vacate the
residence, leaving Mother without stable housing for her and the children.
Mother was referred to a domestic violence shelter, but refused to go.
¶13 Father contacted DCS, expressing concerns that Mother and
the children were staying at a homeless shelter. Father also filed an
objection to the order to dismiss the dependency, which was joined by
4 A safety plan had been developed that if Father was not able to pick
up the children from daycare or if one of the children were sick and unable
to go to daycare, Mother would contact an approved friend or family
member to stay with her and the children until Father could come home.
5 Father had also been leaving the children alone with Mother, and he
subsequently tested positive for methamphetamines and opiates.
4
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Decision of the Court
counsel for the children. DCS then moved to withdraw the dismissal,
removed the children from Father, and returned them to foster care—their
fourth placement in the case. A few days later, Mother came to Father’s
house uninvited, attempted to break in, and the parents again engaged in
domestic violence. Father, who was allegedly intoxicated, choked Mother,
and the police were again called. In April 2016, the juvenile court vacated
its oral order dismissing the case.
¶14 Between April and August 2016, Father missed
approximately one-half of his required drug tests and was arrested for a
DUI after driving 104 miles-per-hour in a 55 mile-per-hour zone while
intoxicated; Mother was a passenger.6 Arizona Families F.I.R.S.T. assessed
Father’s condition and recommended he engage in further substance abuse
treatment and domestic violence classes, but Father expressly refused both
services.
¶15 Both parents missed numerous visits with the children,
declined the opportunity to schedule more visits, and did not actively
engage in services after the children’s re-removal. Mother missed
counseling sessions, took her medication inconsistently, and consumed
alcohol. She also never secured stable housing for herself, and continued
to stay in a relationship with Father, despite his arrest for another DUI.
¶16 On June 30, 2016, DCS moved to terminate the parents’
parental rights. As to Father, DCS moved to terminate on the grounds of
neglect, chronic substance abuse, nine months’ out-of-home placement, and
fifteen months’ out-of-home placement. As to Mother, DCS moved to
terminate on the grounds of neglect, willful abuse, mental illness, nine
months’ out-of-home placement, and fifteen months’ out-of-home
placement. See A.R.S. § 8-533(B)(2), (3), (8)(a), (c) (Supp. 2016). In the weeks
before trial, Father submitted diluted urine samples—which DCS deemed
positive for banned substances—and samples that tested positive for
alcohol; however, he denied having a chronic substance abuse history and
that his substance abuse hindered his ability to care for the children.
¶17 At the September 27, 2016 termination adjudication hearing,
the juvenile court granted DCS’s motion to terminate the parents’ parental
rights to the children. The court terminated Father’s rights on the grounds
6 Although Father’s license was suspended, he continued to drive.
DCS reported that Mother was “very unstable in her moods” and “[h]er
behaviors have shown that she cannot make appropriate life choices for
herself and her children to provide safety and stability.”
5
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of chronic substance abuse, nine months’ out-of-home placement, and
fifteen months’ out-of-home placement. The court terminated Mother’s
rights on the grounds of mental illness, nine months’ out-of-home
placement, and fifteen months’ out-of-home placement. The court also
found the parents had received proper legal notice of the proceedings, DCS
had made a diligent effort to provide appropriate reunification services,
and severance was in the children’s best interests.
¶18 Father and Mother each filed a timely notice of appeal. We
have jurisdiction pursuant to A.R.S. § 8-235(A) (2014) and Rule 103(A) of
the Arizona Rules of Procedure for the Juvenile Court.
ANALYSIS
I. Standard of Review
¶19 “Parents possess a fundamental liberty interest in the care,
custody, and management of their children.” Kent K. v. Bobby M., 210 Ariz.
279, 284, ¶ 24, 110 P.3d 1013, 1018 (2005) (citations omitted). Even
fundamental rights are not absolute, however. Id. (citation omitted). A
court may sever those rights if it finds clear and convincing evidence of one
of the statutory grounds for severance, and finds by a preponderance of the
evidence that severance is in the children’s best interests. See A.R.S. §§ 8-
533(B), -537(B) (2014); Kent K., 210 Ariz. at 281–82, 288, ¶¶ 7, 41, 110 P.3d at
1015–16, 1022.
¶20 The juvenile court retains great discretion in weighing and
balancing the interests of the children, parents, and state. Cochise Cty. Juv.
Action No. 5666-J, 133 Ariz. 157, 160, 650 P.2d 459, 462 (1982). As the trier of
fact, the juvenile court “is in the best position to weigh the evidence,
observe the parties, judge the credibility of witnesses, and resolve disputed
facts.” Jordan C. v. Ariz. Dep’t of Econ. Sec., 223 Ariz. 86, 93, ¶ 18, 219 P.3d
296, 303 (App. 2009) (citation omitted). Thus, the resolution of conflicts in
the evidence is uniquely the province of the juvenile court, and we will not
reweigh the evidence in our review. Jesus M. v. Ariz. Dep’t of Econ. Sec., 203
Ariz. 278, 282, ¶ 12, 53 P.3d 203, 207 (App. 2002).
¶21 We will not disturb the juvenile court’s order absent an abuse
of discretion or unless no reasonable evidence supports its factual findings.
Matthew L., 223 Ariz. at 549, ¶ 7, 225 P.3d at 606; Mary Lou C. v. Ariz. Dep’t
of Econ. Sec., 207 Ariz. 43, 47, ¶ 8, 83 P.3d 43, 47 (App. 2004). We review de
novo questions of law, including the application of a statute or rule. Ariz.
Dep’t of Econ. Sec. v. Ciana H., 191 Ariz. 339, 341-42, 955 P.2d 977, 979-80
(App. 1998).
6
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II. Father’s Arguments Regarding Severance
¶22 Father argues the juvenile court erred in terminating his
parental rights on the ground of fifteen months’ out-of-home placement.
¶23 Under A.R.S. § 8-533(B)(8)(c), the juvenile court may
terminate parental rights if DCS “has made a diligent effort to provide
appropriate reunification services”7 and:
[t]he child has been in an out-of-home placement for a
cumulative total period of fifteen months or longer pursuant
to court order . . .,[8] the parent has been unable to remedy the
circumstances that cause the child to be in an out-of-home
placement and there is a substantial likelihood that the parent
will not be capable of exercising proper and effective parental
care and control in the near future.
¶24 Father argues that, although he has been unable to remedy
the circumstances that caused the children to be in an out-of-home
placement, he demonstrated some ability to address those circumstances,
and the juvenile court erred in finding there is a substantial likelihood he
7 Father states once in his brief that the juvenile court erred in finding
DCS made a diligent effort to provide appropriate reunification services.
He fails to develop or support his argument, however, and his conclusory
statement comes in the midst of his argument about how he “made
appreciable, good faith efforts to comply with the services offered by DCS.”
Moreover, given the number of services DCS offered Father in this case—
including hair follicle and urinalysis testing, substance abuse assessment
and treatment, case management services, case plan staffings, team decision
making meetings, a psychological evaluation, domestic violence
counseling, individual and couples counseling, parent aide services,
transportation, and visitation—and Father’s failure to challenge the
sufficiency and appropriateness of these services during the dependency or
on appeal, Father has waived his right to argue that DCS failed to provide
appropriate reunification services. See Shawanee S. v. Ariz. Dep’t of Econ.
Sec., 234 Ariz. 174, 177-79, ¶¶ 10-18, 319 P.3d 236, 239-41 (App. 2014).
8 Neither Father nor Mother challenges the juvenile court’s finding
that the children have lived in an out-of-home placement for at least fifteen
months under court order. Accordingly, each has conceded the accuracy of
that finding. See Britz v. Kinsvater, 87 Ariz. 385, 388, 351 P.2d 986, 987 (1960).
Moreover, reasonable evidence supports the finding.
7
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will not be capable of exercising proper and effective parental care and
control in the near future.
¶25 The fifteen-month out-of-home placement ground does not
demand, however, that the juvenile court measure a parent’s efforts at
remedying the circumstances described above. Compare A.R.S. § 8-
533(B)(8)(a), with (c). The statute requires only that the court assess a
parent’s ultimate ability or inability to remedy those circumstances—apart
from the parent’s efforts. See Maricopa Cty. Juv. Action No. JS-6520, 157 Ariz.
238, 243, 756 P.2d 335, 340 (App. 1988) (comparing A.R.S. § 8-533(B)(8)(a)’s
predecessor, A.R.S. § 8-533(B)(6)(a) (one-year out-of-home placement
ground), with A.R.S. § 8-533(B)(8)(c)’s predecessor, A.R.S. § 8-533(B)(6)(b)
(two-year out-of-home placement ground)). For the longer period, the
standard is lessened: an inability to remedy the situation, rather than
substantial neglect or a willful refusal. Id.
¶26 In this case, reasonable evidence supports the juvenile court’s
finding that a substantial likelihood exists that Father will remain unable to
exercise proper and effective parental care and control in the near future.
The children were placed in the care of DCS in January 2014, and by
September 2016, Father had still failed to remedy the circumstances causing
the children’s out-of-home care. He continued to abuse alcohol and illegal
substances and to engage in domestic violence despite the children’s first
removal, the numerous rehabilitative services DCS offered him for more
than two-and-a-half years, the children’s return to him, the children’s
second removal, and the motion to terminate his parental rights to the
children. The DCS case manager testified Father was not only unable, but
had willfully refused, to remedy the circumstances that caused the
children’s out-of-home placement, and she opined he would likely remain
unable to exercise proper and effective parental care and control in the
foreseeable future. The extensive record fully supports her testimony.
Accordingly, reasonable evidence supports the juvenile court’s finding that
clear and convincing evidence supports terminating Father’s parental
rights to the children on the fifteen-month out-of-home placement ground.9
9 Because we affirm the juvenile court’s severance finding under the
fifteen-month out-of-home placement ground, we do not address Father’s
challenges to the nine-month out-of-home placement and chronic substance
abuse grounds. See Jesus M., 203 Ariz. at 280, ¶ 3, 53 P.3d at 205; see also
A.R.S. § 8-533(B) (requiring that evidence sufficient to justify the
termination of the parent-child relationship include “any one” of the
enumerated termination grounds).
8
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III. Mother’s Arguments Regarding Severance
¶27 Mother argues she was denied (1) due process and (2)
effective assistance of counsel at the severance hearing. We review de novo
constitutional claims. Emmett McLoughlin Realty, Inc. v. Pima Cty., 212 Ariz.
351, 355, ¶ 16, 132 P.3d 290, 294 (App. 2006).
¶28 Before we address Mother’s issues, we first examine the
proceedings from which Mother assigns error: When DCS filed the
severance motion, DCS also notified Mother that the court had set an initial
termination hearing and that she had the right to participate in the
termination proceedings with counsel. At the initial termination hearing,
with Mother present, Mother’s counsel indicated he had seen the motion,
announced that Mother denied the motion’s allegations, and asked the
court to set a termination adjudication hearing.
¶29 On the day of the termination adjudication hearing, Mother
and her counsel appeared, and Mother’s counsel notified the court that
Mother had consented in writing to the termination of her parental rights.
Mother’s counsel moved to withdraw from representing Mother and
requested that the court excuse Mother and him from the hearing. Counsel
further explained that he and Mother had “been talking about it for the last
couple of months leading up to today’s hearing.” The court questioned
Mother at length about her consent, and although Mother expressed her
understanding of the consent and indicated that was what she wanted to
do, the court expressed concerns about Mother’s mental health issues and
whether “she knows in fact what she’s doing by consenting.” The court
refused Mother’s consent and denied her counsel’s motion to withdraw, but
allowed Mother and her counsel to leave if they believed “that it may be a
waste of their time.”10 After a brief recess, Mother’s counsel moved for
reconsideration, but the court denied that motion and ordered that the
hearing proceed.
¶30 Mother and her counsel remained in the courtroom, and her
counsel engaged in nearly the entire hearing, including testimony by the
DCS case manager and Father, the only two witnesses. During that time,
Mother’s counsel made relevant objections to the case manager’s testimony
and cross-examined her.
10 On this record, the court did not abuse its discretion in declining to
accept the consent and denying counsel’s motion to withdraw; however,
the court should not have invited Mother and her counsel to leave.
9
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¶31 After Mother’s counsel had completed cross-examining the
case manager, he notified the juvenile court that he would have to leave “by
3:30” p.m. Later, after Father fully testified, Mother’s counsel left during a
brief recess, and the court noted on the record that he was no longer present.
The court allowed the proceedings to continue, and the state’s attorney
elicited brief rebuttal testimony from the case manager regarding Father’s
refusal to accept services from the substance abuse treatment provider and
Father’s use of Mother’s medication. Although the case manager’s
testimony pertained only to Father, the court allowed Mother to present her
own cross-examination, in which she asked about the restraining order she
had sought against Father, and she elicited testimony that the case manager
had at some time told a worker from Southwest Behavioral Health Services
that Mother “loved [her] kids and that [she] should probably get another
psych evaluation.”11 Mother subsequently presented her own closing
argument.
¶32 In terminating Mother’s parental rights, the court found the
state had not proved by clear and convincing evidence the alleged grounds
of neglect and abuse. However, the court found the state had proved the
other alleged grounds, and found that “subsequent efforts [to reunify the
family] would have been futile because of [M]other’s condition.”
A. Due Process
¶33 Mother argues the juvenile court denied her due process by
continuing with the termination adjudication hearing despite the fact that
her counsel was not present for the latter portion of the hearing. Although
we do not condone Mother’s counsel’s actions in leaving early, we do not
vacate the severance on this basis.
¶34 Neither Mother nor her attorney raised the issue of due
process or objected to continuance of the proceedings in the juvenile court,
and Mother has therefore waived her arguments on appeal. See Englert v.
Carondelet Health Network, 199 Ariz. 21, 26, ¶ 13, 13 P.3d 763, 768 (App. 2000)
(recognizing that “we generally do not consider issues, even constitutional
issues, raised for the first time on appeal” (citation omitted)). We are aware
11 Father’s counsel then cross-examined the case manager, and
followed up Mother’s cross-examination by asking whether Mother needed
and had received a second psychological evaluation. The case manager
explained that DCS had not referred Mother for a second evaluation, but
that, to her knowledge, Mother was scheduled to receive one from her
provider, although “[w]hether or not they did that, I’m unsure.”
10
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that the doctrine of fundamental error, typically reserved for criminal
matters, has been applied in severance cases. See, e.g., Monica C. v. Ariz.
Dep’t of Econ. Sec., 211 Ariz. 89, 94, ¶ 23, 118 P.3d 37, 42 (App. 2005); see also
State v. Henderson, 210 Ariz. 561, 567-68, ¶¶ 19-26, 115 P.3d 601, 607-08 (2005)
(holding that a defendant forfeits review of all but fundamental, prejudicial
error by failing to object at trial). Even assuming fundamental error review
is appropriate in this context, however, Mother has nonetheless waived her
claim on appeal because, in her opening brief, she did not acknowledge she
failed to raise the arguments below or assert that we should apply
fundamental error review, much less attempt to show any error was
fundamental and caused her prejudice. See State v. Moreno-Medrano, 218
Ariz. 349, 354, ¶ 17, 185 P.3d 135, 140 (App. 2008) (holding that the failure
to allege fundamental error waives the argument on appeal); see also Schabel
v. Deer Valley Unified Sch. Dist. No. 97, 186 Ariz. 161, 167, 920 P.2d 41, 47
(App. 1996) (“Issues not clearly raised and argued in a party’s appellate
brief are waived.” (citations omitted)); Dawson v. Withycombe, 216 Ariz. 84,
111, ¶ 91, 163 P.3d 1034, 1061 (App. 2007) (“We will not consider arguments
made for the first time in a reply brief.” (citation omitted)).
¶35 Mother also argues that her counsel erred by absenting
himself from the hearing before it was complete and by failing to object to
the juvenile court continuing to hold the hearing in his absence.
¶36 However, “no reversal of a termination order is justified by
inadequacy of counsel unless, at a minimum, a parent can demonstrate that
counsel’s alleged errors were sufficient to undermine confidence in the
outcome of the severance proceeding and give rise to a reasonable
probability that, but for counsel’s errors, the result would have been
different.” John M. v. Ariz. Dep’t of Econ. Sec., 217 Ariz. 320, 325, ¶ 18, 173
P.3d 1021, 1026 (App. 2007) (citations and internal quotations omitted).
¶37 Here, Mother has provided no basis for us to conclude that
the severance proceedings in her case were fundamentally unfair, that the
result of the hearing is unreliable, or that, had her counsel conducted
himself differently, the juvenile court would have reached a different result.
See id. at ¶ 19. Accordingly, Mother has provided no basis for this court to
vacate termination of her parental rights on the basis of ineffective
assistance of counsel. See generally Pima Cty. Severance Action No. S–2397,
161 Ariz. 574, 578, 780 P.2d 407, 411 (App. 1989) (affirming a juvenile court’s
termination of parental rights where a parent failed to establish that her
counsel’s performance was both incompetent and prejudicial).
11
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B. Diligent Efforts
¶38 Mother next argues that insufficient evidence supports the
court’s finding that DCS made a diligent effort to provide her appropriate
reunification services because DCS did not grant her request for a second
psychological evaluation. Mother’s argument suggests she believes a
second psychological evaluation might have revealed a change in her
ability to parent.
¶39 DCS makes a diligent effort to provide appropriate
reunification services when it gives the parent “the time and opportunity to
participate in programs designed to help her to become an effective
parent.” Christina G. v. Ariz. Dep’t of Econ. Sec., 227 Ariz. 231, 235, ¶ 14, 256
P.3d 628, 632 (App. 2011) (citation omitted). DCS “is not required, however,
to provide every conceivable service or to ensure that a parent participates
in each service it offers.” Id. at ¶ 15 (citation and internal quotation
omitted). DCS also need not duplicate a service the parent has already
received, at least when such services would clearly prove futile. See Pima
Cty. Severance Action No. S-2397, 161 Ariz. 574, 577, 780 P.2d 407, 410 (App.
1989); Mary Ellen C. v. Ariz. Dep’t of Econ. Sec., 193 Ariz. 185, 192, ¶ 34, 971
P.2d 1046, 1053 (App. 1999) (recognizing the state must only “undertake
measures with a reasonable prospect of success”). Further, DCS need not
undertake rehabilitative measures indefinitely. See Maricopa Cty. Juv. Action
No. JS-501568, 177 Ariz. 571, 577, 869 P.2d 1224, 1230 (App. 1994).
¶40 Even assuming Mother’s claim is not moot for failure to
contest the juvenile court’s finding from the bench that “subsequent efforts
[to reunify the family] would have been futile because of [M]other’s
condition,” reasonable evidence supports the court’s finding that DCS
made diligent efforts to provide appropriate reunification services.
¶41 DCS provided Mother with mental health services, including
DBT and domestic violence counseling, a psychological evaluation, as well
as initial substance abuse testing and assessment, case management
services, case plan services, case plan staffings, child and family team
meetings, individual and couples counseling, parent aide services,
parenting classes, visitation, transportation, and in-home services upon
reunification. However, as the juvenile court found, “Mother has a number
of mental health diagnoses which indicate she is unable to safely parent the
children alone.” The case manager opined that Mother’s condition would
continue indefinitely and, accordingly, providing Mother with extra
rehabilitative services, including further evaluations, would be futile. The
court recognized this fact when it found “[M]other has engaged in a
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number of services aimed at eliminating the need for continued out of home
placement; however, [M]other continues to make poor decisions especially
in the area of protecting herself and by extension the children from danger
in the form of domestic violence.” Reasonable evidence supports the
court’s finding that DCS made a diligent effort to provide Mother
appropriate reunification services.
C. Fifteen Months’ Out-of-Home Placement Ground
¶42 Mother also argues the juvenile court erred in terminating her
parental rights on the ground of fifteen months’ out-of-home placement.
¶43 In this case, reasonable evidence supports the juvenile court’s
finding that a substantial likelihood exists that Mother will remain unable
to exercise proper and effective parental care and control in the near future.
After the children’s second removal, she missed numerous visits with the
children, did not actively engage in services, took her medication
inconsistently, and consumed alcohol. Further, she never secured stable
housing and continued to stay in a violent relationship with Father. The
DCS case manager testified that Mother made inappropriate decisions even
when she was using her medication and that she was unwilling to remedy
the circumstances that caused the children’s second removal. The case
manager opined that Mother’s condition would continue indefinitely, and
she would likely remain unable to exercise proper and effective parental
care and control in the foreseeable future. The case manager added that
Mother could not “keep herself safe, let alone her two children. She
struggles with her own mental instability, which doesn’t allow her to . . .
care for herself and puts the children at risk. . . . There’s been no change of
her behavior for the last two years.” The juvenile court did not err in
finding that severance on the basis of fifteen months’ out-of-home
placement was supported by clear and convincing evidence.12
IV. Best Interests
¶44 Neither Father nor Mother challenges the juvenile court’s
finding that severance was in the children’s best interests. Nonetheless, we
note that the record supports the finding. See generally Maricopa Cty. Juv.
12 As is the case with Father, because we affirm the juvenile court’s
severance finding under the fifteen-month out-of-home placement ground,
we do not address Mother’s challenges to the nine-month out-of-home
placement and mental health grounds. See Jesus M., 203 Ariz. at 280, ¶ 3, 53
P.3d at 205; A.R.S. § 8-533(B).
13
PAUL V., DANA B. v. DCS, et al.
Decision of the Court
Action No. JS–500274, 167 Ariz. 1, 5, 804 P.2d 730, 734 (1990) (recognizing
that “best interests of the child are a necessary, but not exclusively
sufficient, condition for an order of termination”).
¶45 The court found and the record supports that termination of
the parents’ rights would further the plan of adoption, which would
provide the children with permanency and stability. See Ariz. Dep’t of Econ.
Sec. v. Oscar O., 209 Ariz. 332, 334, ¶ 6, 100 P.3d 943, 945 (App. 2004).
Further, the children are residing in an adoptive placement that is meeting
all of their needs. See Audra T. v. Ariz. Dep’t of Econ. Sec., 194 Ariz. 376, 377,
¶ 5, 982 P.2d 1290, 1291 (App. 1998). Finally, the children are adoptable and
another adoptive placement could be located should the current placement
be unable to adopt. See Mary Lou C., 207 Ariz. at 50, ¶ 19, 83 P.3d at 50.
CONCLUSION
¶46 The juvenile court’s order terminating the parents’ parental
rights to the children is affirmed.
AMY M. WOOD • Clerk of the Court
FILED: AA
14