Gladesa A. v. Dcs, N.A. ( 2020 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
GLADESA A., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, N.A., Appellees.
No. 1 CA-JV 19-0153
FILED 2-18-2020
Appeal from the Superior Court in Maricopa County
No. JD 33945
The Honorable Lisa Daniel Flores, Judge
AFFIRMED
COUNSEL
David W. Bell, Attorney at Law, Higley
By David W. Bell
Counsel for Appellant
Arizona Attorney General’s Office, Tucson
By Cathleen E. Fuller
Counsel for Appellee, Department of Child Safety
GLADESA A. v. DCS, N.A.
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Jennifer B. Campbell delivered the decision of the Court,
in which Judge Lawrence F. Winthrop and Judge Michael J. Brown joined.
C A M P B E L L, Judge:
¶1 Gladesa A. (“Mother”) appeals from the superior court’s
order terminating her parental rights. Mother argues (1) insufficient
evidence supports the court’s finding that DCS made diligent efforts to
provide appropriate reunification services under A.R.S. § 8-533(B)(8)(c); (2)
DCS’s witnesses were not credible; and (3) the court violated her due
process rights by precluding her trial attorney from pursuing a particular
line of questioning. Here, sufficient evidence supports the court’s findings
of diligent efforts and witness credibility, and because Mother’s due
process rights were not violated, we affirm.
BACKGROUND
¶2 Mother is the biological mother of a child born in 2007. He
was medically fragile due to a hole in his heart. Doctors recommended a
procedure to address the problem in 2014. Mother failed to bring him to the
hospital for his procedure and then again for his rescheduled procedure. In
February 2017, he was brought to the emergency room for abdominal pain,
severe anemia, and weight loss leading to open heart surgery to remove a
pulmonary embolism and to repair the preexisting hole in his heart. The
nurse’s notes indicated that Mother did not help care for the child while he
was hospitalized.
¶3 The Department of Child Safety (“DCS”) filed a dependency
petition in March 2017 alleging that the child was dependent as to Mother.1
DCS asserted Mother neglected to provide for his basic care and medical
needs, she suffered from mental health and substance abuse issues, and she
had engaged in child abuse. DCS took temporary custody of the child while
he remained hospitalized. Once released from the hospital, he was placed
in foster care. In June 2017, the superior court adjudicated child dependent
as to Mother. The court adopted a case plan of family reunification which
1 The dependency petition also included a half-sibling which was later
dismissed from the dependency.
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GLADESA A. v. DCS, N.A.
Decision of the Court
changed later to family reunification concurrent with severance and
adoption.
¶4 DCS referred Mother for parent-aide services, a psychological
evaluation, Ph.D.-level trauma therapy, urinalysis testing, substance abuse
assessment, and provided transportation. DCS also provided a case aide
and offered Mother therapeutic visitation with her son. Mother participated
in a psychological evaluation, but it took her four months to complete such
evaluation. Shortly after the evaluation, Mother moved to Michigan. DCS
attempted to provide an-out-of-state referral for therapy. Before they were
able to implement therapy, Mother moved back to Arizona. After receiving
recommendations, Mother began trauma therapy in October 2018. In the
summer of 2018, the superior court changed the case plan from family
reunification concurrent with severance and adoption to severance and
adoption, and DCS moved to terminate Mother’s parental rights based on
the allegation that the child had been in an out-of-home placement for
fifteen months and Mother had been unable to remedy the circumstances
that caused the child to be in out-of-home placement. DCS later amended
the petition to include an allegation of willful abuse by Mother.2
¶5 After a contested severance hearing, the superior court
specifically addressed Mother’s lack of credibility, finding that “Mother
failed to corroborate her testimony with proof that she could have
provided.” The court cited examples of Mother’s unsubstantiated
testimony regarding child’s enrollment at school, the advice from child’s
cardiologist about the urgency of the corrective heart surgery, and the
frequency of Mother’s communication with the DCS case manager. In
contrast, the court found both the case manager and DCS’s unit
psychologist, Dr. Erin South, credible.
¶6 The court found DCS had established the statutory ground of
fifteen months time in care, that termination was in the child’s best interest,
and that DCS made diligent efforts to provide Mother with reunification
services. Mother timely appealed.
DISCUSSION
¶7 Mother argues insufficient evidence supports the superior
court’s order terminating her parental rights on the statutory ground of
2 At the close of the State’s evidence, the court granted Mother’s
motion to dismiss the ground of abuse alleged against Mother.
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Decision of the Court
fifteen-months out-of-home placement, that DCS’s witnesses were not
credible, and that the superior court violated her due process rights.
I. Diligent Efforts to Provide Reunification Services
¶8 Mother argues the superior court erred when it found DCS
made diligent efforts to provide reunification services. We will not disturb
the superior court’s termination of parental rights unless the court’s factual
findings are clearly erroneous—that is, unless no reasonable evidence exists
to support them. See Minh T. v. Ariz. Dep’t of Econ. Sec., 202 Ariz. 76, 78–79,
¶ 9 (App. 2001).
¶9 The superior court may terminate parental rights under
A.R.S. § 8-533(B)(8)(c) if DCS “has made a diligent effort to provide
appropriate reunification services.” Here, reasonable evidence supports the
superior court’s finding of diligent efforts because DCS provided Mother
access to all services she now claims DCS should have provided.
¶10 DCS satisfies its obligation to make reasonable efforts to
reunify the family when it provides the parent “with the time and
opportunity to participate in programs designed to help [Mother] become
an effective parent.” Maricopa Cty. Juv. Action No-JS-501094, 180 Ariz. 348,
353 (App. 1994). It is not DCS’s duty to force parents to participate in the
services they offer. See id.
¶11 Mother argues that DCS failed to ensure that she received
appropriate Ph.D.-level trauma therapy. Although Mother had engaged in
Masters-level therapy, DCS’s unit psychologist informed DCS Mother
would need to work with a Ph.D.-level therapist to adequately address her
past trauma. DCS eventually provided Ph.D.-level therapy, and Mother
began participating in October 2018.
¶12 Still, Mother argues DCS’s efforts were insufficient because it
“took . . . a year to get [Ph.D.-level] therapy in place.” But this argument
fails to acknowledge Mother’s own causal role in the delay. DCS scheduled
Mother for a psychological evaluation, but Mother postponed the
appointment for four months. Based on the recommendations from that
psychological evaluation, DCS referred Mother for trauma therapy, but
shortly thereafter, Mother moved to Michigan and failed to stay in contact
with DCS. The case manager testified Mother could have sped up the “very
difficult process” of arranging service with an out of state provider by
helping DCS locate a therapist in Michigan, but Mother did not provide any
information. While DCS was trying to arrange services in Michigan, Mother
moved back to Arizona. As soon as Mother moved back to Arizona, DCS
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Decision of the Court
sent another referral for Ph.D.-level therapy. Mother commenced Ph.D-
level therapy with Dr. Metheka in October 2018. The superior court had a
reasonable evidentiary basis for finding DCS made diligent efforts, despite
the delay.
¶13 Mother further argues that even after DCS set up trauma
therapy, the case manager’s failure to communicate the goals of therapy to
Mother’s therapist rendered this service ineffective. But the case manager
testified that the goals of therapy had been provided to Dr. Metheka. DCS’s
psychologist also testified that the goals included “taking responsibility and
accountability,” which would require an “understanding of . . . how her
own history and trauma has impacted her ability to parent.” And, in her
own testimony, Mother explained that she discussed her need for trauma
therapy with Dr. Metheka, confirming Dr. Metheka was aware that
addressing trauma was among Mother’s goals. Accordingly, the record
supports a finding that DCS adequately communicated the goal of
addressing Mother’s need for trauma therapy.
¶14 Mother also contends that DCS did not make diligent efforts
to provide transportation because Mother had to travel long distances to
get to her therapy appointments. “DCS is not required to provide every
conceivable service.” Maricopa Cty. Juv. Action No-JS-501094, 180 Ariz. at
353. Also, even if inconvenient, DCS did provide transportation via taxi
services beginning in January 2019. To the extent Mother argues DCS could
have provided taxi service sooner, Mother confirmed she was able to take
the bus to her therapy sessions. The superior court did not abuse its
discretion finding DCS made diligent efforts to provide Mother
transportation.
¶15 Lastly, Mother asserts that DCS failed to provide enough
opportunities for visitation after she returned to Arizona. Failure to provide
visitation does not foreclose termination of parental rights. See Maricopa Cty.
Juv. Action No-JS-501094, 180 Ariz. at 353. Here, DCS did provide visitation.
Mother was permitted one two-hour visit per month with her son while she
lived in Michigan, which continued when she moved back to Arizona. Dr.
South testified that increases in visitation would have to go at the child’s
pace. In part, DCS did not increase visitation because of the child’s
reluctance to visit Mother. Regardless, the record shows DCS provided
visitation opportunities to Mother consistently, and therefore the superior
court did not abuse its discretion in finding that DCS made reasonable
efforts to provide visitation.
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Decision of the Court
II. Credibility of Witnesses
¶16 Mother argues that the superior court erred by finding the
case manager and Dr. South to be credible witnesses. As the trier of fact in
a termination proceeding, the superior court “is in the best position to
weigh the evidence, observe the parties, judge the credibility of witnesses,
and resolve disputed facts.” Ariz. Dep’t of Econ. Sec. v. Oscar O., 209 Ariz.
332, 334, ¶ 4 (App. 2004). Accordingly, we will not reweigh evidence, but
rather we view all evidence and reasonable inferences therefrom in the light
most favorable to affirming the superior court’s order. Jordan C. v. Ariz.
Dep’t of Econ. Sec., 223 Ariz. 86, 93, ¶ 18 (App. 2009). Here, the superior court
expressly found “[w]here Mother’s testimony was contradicted by [DCS]
witnesses, the Court believed [DCS’s] witnesses.” This finding falls
squarely within the superior court’s discretion, and we will not
independently reevaluate the court’s credibility determinations.
III. Due Process
¶17 Mother argues the superior court violated her due process
rights when it precluded her trial attorney from pursuing a line of
questioning involving information from before the dependency
adjudication. Mother claims the court later “heav[ily]” relied on this
information in reaching its decision. We review constitutional issues de
novo. See Lisa K. v. Ariz. Dep’t. of Econ. Sec., 230 Ariz. 173, 177, ¶ 9 (App.
2012).
¶18 Here, the superior court attempted to redirect Mother’s
counsel’s focus from events that took place prior to the dependency
adjudication. The court did not, however, preclude counsel from discussing
pre-dependency information. The judge said, “since the State . . . went into
some of the historical information I will let you go there . . . .” Therefore,
Mother’s claim is factually inaccurate. To the extent Mother’s counsel felt
constrained by the court’s statement, that is belied by the fact that Mother’s
counsel elicited testimony about pre-dependency information, even after
the court attempted to refocus the questioning. Counsel questioned Mother
about her prescription drug use from 2013 to 2017, her son’s schooling
before the dependency, and her Masters-level counseling prior to the filing
of the dependency action. Accordingly, Mother’s contention that she was
precluded from discussing information occurring prior to the dependency
is not borne out on the record. The court did not violate Mother’s due
process rights.
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GLADESA A. v. DCS, N.A.
Decision of the Court
CONCLUSION
¶19 For the foregoing reasons, we affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
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