Vanessa W. v. Dcs ( 2018 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
VANESSA W., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, E.W., P.Q., O.W., J.R., NAVAJO
NATION, Appellees.
No. 1 CA-JV 17-0461
FILED 5-10-2018
Appeal from the Superior Court in Maricopa County
No. JD38127
The Honorable Bruce R. Cohen, Judge
AFFIRMED
COUNSEL
Clark Jones, Attorney at Law, Mesa
By H. Clark Jones
Counsel for Appellant
Arizona Attorney General’s Office, Phoenix
By Sandra L. Nahigian
Counsel for Appellee Department of Child Safety
VANESSA W. v. DCS, et al.
Decision of the Court
MEMORANDUM DECISION
Judge James B. Morse Jr. delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Kenton D. Jones joined.
M O R S E, Judge:
¶1 Vanessa W. ("Mother") appeals the juvenile court's order
terminating her parental rights to her four minor children. For the
following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Mother is the biological mother of four children: E.W. born in
2005, P.Q. born in 2006, O.W. born in 2010, and J.R. born in 2012.1 In 2010,
the Department of Child Safety2 ("DCS") removed E.W., P.Q., and O.W.
from Mother's care when she tested positive for methamphetamine and
marijuana at O.W.'s birth. Mother complied with the services offered by
DCS, and the dependency petition was dismissed.
¶3 In October 2015, DCS removed all four children from
Mother's care and filed a dependency petition because Mother tested
positive for methamphetamine and was reported to be selling drugs while
caring for her children. The juvenile court found the children dependent.
¶4 DCS referred Mother to TERROS for substance abuse
assessment and treatment in October 2015, and again in March 2016.
Mother completed an intake assessment for each referral. The TERROS
therapist diagnosed Mother with amphetamine use disorder and
recommended outpatient treatment, which included group sessions,
individual counseling, meetings with her case manager, and drug testing.
At the assessments, Mother tested positive for methamphetamines and
admitted to using methamphetamine during the previous year. In March
1The children's fathers' parental rights were also terminated, but the fathers
are not parties to this appeal.
2 The petition was brought by the Arizona Department of Economic
Security, the predecessor to the Department of Child Safety. See S.B. 1001 §
157(D), 51st Leg., 2nd Spec. Sess. (Ariz. 2014).
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VANESSA W. v. DCS, et al.
Decision of the Court
2016, TERROS closed the October 2015 referral because Mother was neither
participating in classes nor submitting to drug testing. TERROS closed the
March 2016 referral in May 2016 because she continued to miss group
sessions, even after she was warned that failure to attend would close out
her treatment.
¶5 Mother also self-referred for substance abuse treatment. On
September 10, 2016, Mother self-referred to TERROS, and a therapist again
recommended outpatient treatment. Mother continued her pattern of
inconsistent participation, and after missing multiple group sessions and
refusing further services, her treatment was closed in January 2017. She
then self-referred to Native American Connections' inpatient treatment
program in March 2017. After 45 days, she had achieved only "partial
resolution" and still demonstrated an "inability to take ownership of the
events that lead her back into relapse." Native American Connections
recommended its intensive outpatient program. She completed the intake
assessments, but never returned for services, and Native American
Connections discharged her from the outpatient program. Next, Mother
started treatment with Southwest Behavioral, but her participation
remained inconsistent.
¶6 Between October 2015 and September 2017, DCS provided
Mother more than 10 referrals for drug testing. Each referral was closed
after Mother missed multiple tests. DCS also provided Mother multiple
parent aide and supervised visits referrals. Because she repeatedly missed
visitations, Mother was ultimately required to call to confirm her
attendance. However, she did not call to confirm, and the original parent
aide and supervised visits referrals were closed out.
¶7 In October 2017, the juvenile court ordered the termination of
Mother's parental rights based upon out-of-home placement of fifteen
months, pursuant to Arizona Revised Statutes ("A.R.S.") section 8-
533(B)(8)(c), finding DCS met the active efforts and diligent efforts
requirements.
¶8 Mother timely appealed the juvenile court's order, and we
have jurisdiction pursuant to A.R.S. sections 8-235(A), 12-120.21(A)(1), and
-2101(A)(1).
DISCUSSION
¶9 Mother argues only that the juvenile court erred in
terminating her parental rights because DCS had not made active and
reasonable efforts to provide her with rehabilitative services. We will
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VANESSA W. v. DCS, et al.
Decision of the Court
affirm a juvenile court's termination of parental rights absent an abuse of
discretion and accept its findings of fact unless they are clearly erroneous.
Mary Lou C. v. Ariz. Dep't of Econ. Sec., 207 Ariz. 43, 47, ¶ 8 (App. 2004).
I. Waiver
¶10 The State argues that Mother waived her appeal rights as to
the sufficiency of DCS's efforts, except as to a single request for intensive
outpatient treatment. A parent's failure to raise an issue in the juvenile
court, including whether DCS made an active and diligent effort to provide
reunification services, precludes the parent from challenging that finding
on appeal. Shawanee S. v. Ariz. Dep't of Econ. Sec., 234 Ariz. 174, 179, ¶ 16
(App. 2014).
¶11 During the severance hearing, Mother raised issues related to
caseworker turnover, caseworkers not returning her calls, and a lack of
transportation assistance as issues that affected the services she was
provided, which led her to seek services on her own. Mother did not
challenge the "type or manner of services" DCS provided and has thereby
waived the right to appeal this issue. Id. at ¶ 18. However, in our discretion,
we address the merits of her appeal.
II. Active and Diligent Efforts
¶12 Mother argues that DCS failed to make active and diligent
efforts as required by the Indian Child Welfare Act ("ICWA"), 25 U.S.C. §
1912(d), and A.R.S. section 8-533(B)(8).3 We disagree.
¶13 Termination of parental rights based upon out-of-home
placement of 15 months requires DCS to demonstrate (1) that it "made a
diligent effort to provide appropriate reunification services," and (2) the
child was in out-of-home placement for 15 months, or more, while the
parent was unable to remedy the circumstance that led to the placement
and there is a substantial likelihood that the parent will not be able to
provide effective parental care in the near future. A.R.S. § 8-533(B)(8)(c).
Because Mother did not raise the second requirement in her appeal, she has
3 The "active efforts" requirement is only applicable to O.W., who is an
Indian child, while the "diligent efforts" requirement is applicable to all four
children. While the active efforts requirement may be more stringent than
diligent efforts, we are not required to reach this question to resolve
Mother's appeal.
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VANESSA W. v. DCS, et al.
Decision of the Court
waived this argument, and we address only the diligent efforts
requirement.
¶14 The termination of parental rights to an Indian child,
pursuant to the ICWA, requires DCS prove by clear and convincing
evidence that "active efforts have been made to provide remedial services
and rehabilitative programs designed to prevent the breakup of the Indian
family and that these efforts have proved unsuccessful." Yvonne L. v. Ariz.
Dep't of Econ. Sec., 227 Ariz. 415, 421, ¶ 26 (App. 2011); 25 U.S.C. § 1912(d).
"What constitutes 'active efforts' will vary, depending on the circumstances,
the asserted grounds for severance and available resources." S.S. v.
Stephanie H., 241 Ariz. 419, 425, ¶ 21 (App. 2017). "[W]hether 'active efforts'
were made and were unsuccessful requires both factual findings by the
court about the nature and extent of the services provided and a legal
conclusion about their adequacy." Yvonne L., 227 Ariz. at 422, ¶ 28.4
¶15 Similarly, DCS must prove it made a diligent effort to provide
appropriate reunification services, pursuant to A.R.S. section 8-533(B)(8).
To meet the diligent efforts requirement, DCS must "provide services to the
parent 'with 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 (App. 2011) (quoting Maricopa Cty. Juvenile
Action No. JS-501904, 180 Ariz. 348, 353 (App. 1994).
¶16 When DCS proves it met the active efforts requirement,
pursuant to ICWA, the diligent efforts requirement is also satisfied because
ICWA's "active efforts" requirement is at least as stringent as the "diligent
efforts" requirement in A.R.S. section 8-533(B)(8). Thus, the same analysis
may support a finding that DCS provided both active and diligent efforts.
¶17 Mother does not dispute that DCS provided her case
management services, substance abuse assessment, substance abuse
treatment, drug testing, parental aide visitations, and parenting skills
training. Mother also does not dispute that she failed to complete these
services.
¶18 Instead, Mother argues that DCS knew she had a history of
substance abuse, but it provided only "bare minimum" services using a
"cookie-cutter" approach instead of providing more intensive, inpatient
4We do not address whether the services provided were successful because
Mother did not raise this issue on appeal.
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VANESSA W. v. DCS, et al.
Decision of the Court
treatment. In essence, Mother argues DCS failed to make active efforts
because she refused to participate in the offered services. While DCS must
make an active effort to provide services, it "cannot force a parent to
participate in recommended services." Yvonne L., 227 Ariz. at 423, ¶ 34.
Further, DCS is not required to "provide every imaginable service or
program." Id. The juvenile court found that had Mother successfully
completed the services that were offered, "reunification likely would have
occurred." Additionally, the ICWA expert testified that DCS made an active
effort to provide Mother with services.
¶19 Mother also argues that DCS failed to provide her
transportation assistance, did not make accommodations for her work
schedule, and frequently changed case managers. The record does not
support these assertions. Mother regularly requested and received bus
passes through DCS and other programs. Mother's referrals were closed
not because of isolated missed appointments but because of her perpetual
inconsistent participation. Even when she self-referred for treatment,
Mother maintained inconsistent participation.
¶20 Because substantial evidence in the record supports the
juvenile court's finding that DCS made active and diligent efforts to provide
Mother with required services, we affirm the juvenile court's termination of
Mother's parental rights based on out-of-home placement of fifteen months,
pursuant to A.R.S. section 8-533(B)(8)(c).
CONCLUSION
¶21 For the foregoing reasons, we affirm the juvenile court's order
terminating Mother's parental rights.
AMY M. WOOD • Clerk of the Court
FILED: AA
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