Charles P., Starlene M. v. Dcs ( 2021 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
CHARLES P., STARLENE M., Appellants,
v.
DEPARTMENT OF CHILD SAFETY, T.D., S.M., J.D., R.D., HOPI TRIBE,
Appellees.
No. 1 CA-JV 20-0357
FILED 7-22-2021
Appeal from the Superior Court in Maricopa County
No. JD31456
The Honorable Lori Horn Bustamante, Judge
AFFIRMED
COUNSEL
Law Office of Ed Johnson PLLC, Peoria
By Edward D. Johnson
Counsel for Appellant Charles P.
Law Office of H. Clark Jones LLC, Mesa
By H. Clark Jones
Counsel for Appellant Starlene M.
Arizona Attorney General’s Office, Tucson
By Jennifer R. Blum
Counsel for Appellee Department of Child Safety
The Webb Law Group, Flagstaff
By Brian Webb
Counsel for Appellee Hopi Tribe
CHARLES P., STARLENE M. v. DCS et al.
Decision of the Court
MEMORANDUM DECISION
Judge Brian Y. Furuya delivered the decision of the Court, in which Chief
Judge Kent E. Cattani and Judge Samuel A. Thumma joined.
F U R U Y A, Judge:
¶1 Starlene M. (“Mother”) and Charles P. (“Father”) appeal the
superior court’s order terminating their parental rights to their children.
On appeal, Mother contends the Department of Child Safety (“DCS”)
provided insufficient reunification services. Father challenges the
sufficiency of the evidence that his continued custody would result in
serious emotional or physical damage to the children and the court’s
deviation from placement preferences under the Indian Child Welfare Act
(“ICWA”). For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Mother and Father are the biological parents of minor
children J.D.M., born March 2015, and R.D.M., born June 2017, and
Mother is also the biological mother of T.D.M., born October 2006, and
S.M., born August 2009 (collectively, the “children”). The children are
enrolled members of the Hopi Tribe and “Indian child[ren]” as defined by
ICWA. See 25 U.S.C. §§ 1901–1963.
¶3 In April 2018, DCS investigated Mother and Father
following a report of alleged substance abuse and domestic violence. DCS
had previously received at least ten reports that Father and Mother
engaged in severe domestic violence in the presence of the children. Upon
investigation, DCS observed unsanitary conditions, minimal food, and
empty alcoholic beverage containers throughout the home. The children
were found outside playing amongst sharp metal scraps. The children had
not been enrolled in school for more than a year.
¶4 DCS removed the children from Mother’s and Father’s care
and filed a dependency petition. The children were found dependent in
November 2018 and a case plan for family reunification was adopted. The
case plan required Mother to demonstrate sobriety, create a domestic
violence prevention plan, address her mental health and coping
mechanisms, and maintain housing and stable employment. DCS referred
Mother for substance-abuse testing, substance-abuse treatment, parent-
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Decision of the Court
aide services, case-aide services, and transportation services. Mother was
also referred for a psychological evaluation.
¶5 The case plan required Father to acknowledge his domestic
violence and substance abuse and to implement prevention plans. DCS
referred Father for substance-abuse testing, substance-abuse counseling,
individual counseling with a domestic-violence component, parent-aide
services, supervised visitation, case-aide visitation, transportation
services, and a psychological evaluation. Father denied having issues with
substance abuse or domestic violence. Father infrequently participated in
services and failed to complete domestic-violence counseling.
¶6 In February 2020, after the court changed the case plan to
severance and adoption, DCS filed a motion to terminate Mother’s and
Father’s parental rights on the ground that the children had been in out-
of-home placement for more than fifteen months. After adjudication in
November 2020, the court granted the motion. See Ariz. Rev. Stat.
(“A.R.S.”) § 8-533(B)(8)(c). Mother and Father timely filed notices of
appeal, and we have jurisdiction pursuant to A.R.S. §§ 8-235, 12-
120.21(A)(1), and -2101(A)(1).
DISCUSSION
¶7 To terminate a parent’s rights, the superior court must find
clear and convincing evidence to support at least one statutory ground for
termination. A.R.S. § 8-533(B); Ariz. R.P. Juv. Ct. 66(C). Termination must
also be shown to serve a child’s best interests by a preponderance of the
evidence. Ariz. R.P. Juv. Ct. 66(C). In ICWA cases, a court must also be
persuaded 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.” Valerie
M. v. Ariz. Dep’t of Econ. Sec., 219 Ariz. 331, 333, ¶ 3 (2009) (citing 25 U.S.C.
§ 1912(d)); accord Ariz. R.P. Juv. Ct. 66(C). The court must further make “a
determination, supported by evidence beyond a reasonable doubt,
including testimony of qualified expert witnesses, that the continued
custody of the child by the parent or Indian custodian is likely to result in
serious emotional or physical damage to the child.” Valerie M., 219 Ariz. at
333, ¶ 3 (citing 25 U.S.C. § 1912(f)); accord Ariz. R.P. Juv. Ct. 66(C).
¶8 In this case, the court ordered termination under A.R.S. § 8-
533(B)(8)(c), which requires that: (1) the parent be “unable to remedy the
circumstances that cause[d] the child to be in an out-of-home placement,”
(2) there be “a substantial likelihood that the parent will not be capable of
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Decision of the Court
exercising proper and effective parental care and control in the near
future,” and (3) DCS has provided appropriate reunification services. We
“will affirm the court’s termination order absent an abuse of discretion or
unless the court’s findings of fact were clearly erroneous.” E.R. v. DCS, 237
Ariz. 56, 58, ¶ 9 (App. 2015) (quotations omitted). A finding is clearly
erroneous if no reasonable evidence supports it. Mary Lou C. v.
Ariz. Dep’t of Econ. Sec., 207 Ariz. 43, 47, ¶ 8 (App. 2004).
I. DCS’ Active Efforts Toward Reunification
¶9 Mother does not challenge that DCS established the
statutory ground for termination by clear and convincing evidence, nor
that DCS proved beyond a reasonable doubt that Mother’s continued
custody would likely result in serious emotional or physical damage to
the children. Instead, Mother argues—for the first time on appeal—that
DCS failed to make active efforts to prevent the break-up of her family
because it offered her insufficient services. At no time during the two
years and five months of dependency proceedings did Mother object to
the sufficiency of the services DCS provided. Because Mother did not
make a timely objection, she has waived this argument. Shawanee S. v.
Ariz. Dep’t of Econ. Sec., 234 Ariz. 174, 178–79, ¶¶ 16, 18 (App. 2014).
¶10 Waiver notwithstanding, Mother’s arguments are without
merit. Preliminarily, Mother concedes that DCS offered a wide array of
services, in which she chose not to participate. Following Mother’s
psychological evaluation in April 2019, she was diagnosed with bipolar II
disorder, post-traumatic stress disorder, alcohol-abuse disorder, and a
mild intellectual disability. The evaluating psychologist recommended
certain services (some of which DCS was already providing), individual
counseling, and a psychiatric evaluation. DCS requested Mother self-refer
for individual counseling and the recommended psychiatric treatment.
¶11 Mother contends that DCS failed to provide her with the
recommended psychiatric evaluation. But the record reflects that after
DCS asked Mother to self-refer, Mother reported that she was receiving
in-patient care and counseling services through Southwest Garden Lakes
(“Southwest”). And when Mother later indicated she was no longer
receiving these services, DCS offered to have a child-safety specialist help
her with the self-referral process. On multiple occasions, Mother’s case
manager also requested that Mother come to the office for self-referral
assistance. However, Mother declined these offers, claiming first that she
did not need the services and later that she was already receiving the
services independent of DCS.
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CHARLES P., STARLENE M. v. DCS et al.
Decision of the Court
¶12 At trial, Mother testified that she underwent a psychiatric
evaluation through Southwest in December 2019 and received treatment.
She further testified that she was receiving services through Southwest,
had a psychiatrist visit her at home, and had participated in individual
counseling in 2020. The ICWA expert stated that DCS had made active
efforts towards family reunification but requested that Mother be given
additional time to participate in services. Given this history, the court’s
finding that DCS made “diligent and active efforts by providing an array
of reunification services” is supported by sufficient evidence. Mother has
shown no abuse of discretion.
II. Evidence and Likelihood of Potential Emotional or Physical
Damage to the Children
¶13 Father does not dispute that the children were placed in out-
of-home care for more than fifteen months, nor that DCS made active
efforts towards reunification. Rather, Father contends the evidence does
not support the court’s finding that his continued parental custody would
likely cause serious emotional or physical harm to the children.
¶14 In termination proceedings involving an Indian child, “the
moving party or petitioner must prove, beyond a reasonable doubt,
including testimony from a qualified expert witness, that continued
custody of the child by the parent or Indian custodian is likely to result in
serious emotional or physical damage to the child.” Ariz. R.P. Juv. Ct.
66(C); accord 25 U.S.C. § 1912(f). Evidence must show “that the parent’s
conduct is likely to harm the child and that the parent is unlikely to
change [his or] her conduct.” Steven H. v. Ariz. Dep’t of Econ. Sec., 218 Ariz.
566, 571–72, ¶ 21 (2008).
¶15 The record supports the court’s finding that Father would
likely cause the children serious emotional or physical damage due to his
“unaddressed issues related to domestic violence and substance abuse.”
Under his care, the children experienced periodic homelessness and
unsanitary living conditions. Father became violent when intoxicated and
at times drove the children in his car while under the influence. As a result
of having witnessed prior domestic violence, S.M. feared calling the police
when Father was choking Mother. Father missed all but three of his
scheduled drug tests, tested positive for alcohol twice, and failed to
engage in multiple substance-abuse treatment referrals throughout the
two-and-a-half-years of proceedings.
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Decision of the Court
¶16 The record also supports the court’s finding that Father’s
problematic behavior is likely to continue. Failure to complete
reunification services is reasonable evidence that a parent’s issues will
persist for an indeterminate period. Raymond F. v. Ariz. Dep’t of Econ. Sec.,
224 Ariz. 373, 379, ¶ 29 (App. 2010). Here, Father did not complete parent-
aide services, had not engaged in domestic-violence treatment, and failed
to secure stable housing. Moreover, at trial, Father denied having any
issues with substance abuse or domestic violence. DCS presented
evidence that Father was still unable to protect the children despite
providing services over a two-year period. Finally, the ICWA expert
opined that returning the children to Mother or Father could result in
emotional or physical harm to the children.
¶17 The record supports the court’s finding beyond a reasonable
doubt that Father’s renewed custody would likely result in serious
emotional or physical damage to the children, and he was unlikely to
change. Therefore, Father has shown no error.
III. Good Cause to Deviate from ICWA Placement Preferences
¶18 Father argues that the court lacked good cause to deviate
from ICWA placement preferences. “We review a finding of good cause to
deviate from ICWA preferences for an abuse of discretion.” Navajo Nation
v. Ariz. Dep’t of Econ. Sec., 230 Ariz. 339, 343, ¶ 14 (App. 2012). The order of
preferential placement of an Indian child under 25 U.S.C. § 1915(b) is as
follows:
(i) a member of the Indian child’s extended family;
(ii) a foster home licensed, approved, or specified by the
Indian child’s tribe;
(iii) an Indian foster home licensed or approved by an
authorized non-Indian licensing authority; or
(iv) an institution for children approved by an Indian
tribe or operated by an Indian organization which has
a program suitable to meet the Indian child’s needs.
¶19 Father claims that “the record is devoid on the factors that
caused the court to make the finding that there was good cause to deviate
from the ICWA placement preferences.” To the contrary, the court
referenced the Bureau of Indian Affairs Guidelines for State Courts and
Agencies in Indian Child Custody Proceedings (the “Guidelines”), in its
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Decision of the Court
finding of good cause. The court detailed the following four factors it used
from the Guidelines to determine good cause to deviate from placement
preferences:
(1) [T]he parents’ requests; (2) the child’s requests; (3)
‘extraordinary physical or emotional needs of the child,’
which ‘does not include ordinary bonding or attachment
that may have occurred as a result of a placement or the fact
that the child has, for an extended amount of time, been in
another placement that does not comply with the Act;’ and
(4) unavailability of a placement after a showing by the
agency and a determination by the court ‘that active efforts
have been made to find placements meeting the preference
criteria, but none have been located.’
(quoting Guidelines, 80 Fed. Reg. 10146-02 at 10158).
¶20 The court provided a detailed discussion justifying why
good cause existed to deviate from preferred placement. The court noted
that the children were initially placed with their maternal aunt and uncle
until the aunt indicated she could no longer care for all of the children.
T.D.M. was the only child left in the aunt’s care but later requested to be
with his siblings in foster care. DCS made active efforts to locate ICWA-
compliant family members, but all were either unwilling or inappropriate
placements. Family members also indicated that they were willing to
ensure the children’s continued exposure to Hopi culture while in foster
care. Finally, the court noted that the children had a strong bond with
their current placement, and the Hopi Tribe expressed no objection to it.
The record also demonstrates that DCS attempted to locate a preferred
placement through a family friend but found no suitable home. Having
detailed the unavailability of a preferential placement after active efforts
by DCS, the court found good cause to deviate from the placement
criteria, and Father has shown no abuse of discretion.
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CHARLES P., STARLENE M. v. DCS et al.
Decision of the Court
CONCLUSION
¶21 Because Mother and Father have shown no abuse of
discretion or error, we affirm the order terminating their parental rights.
AMY M. WOOD • Clerk of the Court
FILED: AA
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