¶ 1 It is well established that the State, before acting to terminate parental rights, has an affirmative duty to make all reasonable efforts to preserve the family relationship. See Maricopa County Juv. Action No. JS-6520, 157 Ariz. 238, 241, 756 P.2d 335, 338 (App. 1988); see also Maricopa County Juv. Action No. JA 33794, 171 Ariz. 90, 91-92, 828 P.2d 1231, 1232-33 (App. 1991). The case law has been inconsistent, however, in establishing whether this affirmative duty entails an obligation to make a reasonable effort to rehabilitate a parent who suffers from a disabling mental illness.
The natural mother first argues that the juvenile court erred in ordering severance under subsection (B)(6)(b) because the present plan for the minors is not adoption, but rather long-term foster care, citing two recent decisions of Division One of this court. Appeal in Maricopa County Juvenile Action No. JS-7359, 159 Ariz. 232, 766 P.2d 105 (App. 1988); Appeal in Maricopa County Juvenile Action No. JS-6520, 157 Ariz. 238, 756 P.2d 335 (App. 1988). In the latter case, Division One noted that "[t]he express purpose of [subsection (B)(6)] is to `expedite the adoption of numerous children who remain in temporary foster care with no hope of being returned to their natural parents and in so doing promote a stable and long term family environment for these children.'"
But the best interests of the child could be a sufficient reason for a denial of termination. Action No. JS-6831, 155 Ariz. at 559, 748 P.2d at 788; Appeal of Maricopa County Juvenile Action No. JS-6520, 157 Ariz. 238, 245, 756 P.2d 335, 342 (App. 1988); see Pima County Juvenile Action No. S-2460, 162 Ariz. 156, 157, 781 P.2d 634, 635 (App. 1989). The important consideration here is that there are fundamental constitutional rights involved in severance cases.
¶21 Because the provision authorizing termination based upon a child's time in out-of-home care was adopted to address the growing number of children lingering in foster care while "parents maintain parental rights but refuse to assume their parental responsibilities," severance on this ground is not limited to those who have completely neglected to remedy the circumstances or completely failed to participate in services. Maricopa Cty. Juv. Action No. JS-501568, 177 Ariz. 571, 577 (App. 1994) (quoting Maricopa Cty. Juv. Action No. JS-6520, 157 Ariz. 238, 243 (App. 1988)). Thus, a parent who makes "appreciable, good faith efforts" at reunification "will not be found to have substantially neglected to remedy the circumstances that caused [the] out-of-home placement."
For example, in In re Maricopa County Juvenile Action No. JS–501904 , the court stated that DCS "need not show that it has a specific adoption plan before terminating a parent's rights," but must "show that the children are adoptable." 180 Ariz. 348, 352, 884 P.2d 234 (App. 1994), citing In re Yavapai Cty. Juv. Action No. J-9956 , 169 Ariz. 178, 818 P.2d 163 (App. 1991)and In re Maricopa Cty. Juv. Action No. JS-6520, 157 Ariz. 238, 756 P.2d 335 (App. 1988). And, in reliance on that statement, we have said the best-interests requirement may be met by proof "that the child is adoptable."
Jennifer G. v. Ariz. Dep't of Econ. Sec., 211 Ariz. 450, 453, ¶ 12 (App. 2005) (citing Mary Ellen C. v. Ariz. Dep't of Econ. Sec., 193 Ariz. 185, 191-92, ¶¶ 31-34 (App. 1999)). DCS has an affirmative duty "to make all reasonable efforts to preserve the family relationship," Mary Ellen C., 193 Ariz. at 186, ¶ 1 (citing Maricopa Cnty. Juv. Action No. JA 33794, 171 Ariz. 90, 91-92 (App. 1991), and Maricopa Cnty. Juv. Action No. JS-6520, 157 Ariz. 238, 241 (App. 1988)), and must provide a parent "with the time and opportunity to participate in programs designed to help her to become an effective parent." Maricopa Cnty. Juv. Action No. JS-501904, 180 Ariz. 348, 353 (App. 1994).
See Maricopa Cnty. Juv. Action No. JS–6520, 157 Ariz. 238, 242, 756 P.2d 335, 339 (App.1988) (affirming finding of abandonment where the father's efforts to develop and maintain a relationship with his child—visiting him six times in three years—failed to “demonstrate any participation by or presence” in the child's life).
This section was written "in response to the increasing number of children in foster care whose parents maintain parental rights but refuse to assume their parental responsibilities." In re Appeal in Maricopa County Juvenile Action No. JS-6520, 157 Ariz. 238, 243, 756 P.2d 335, 340 (App. 1988). Its express purpose is to "expedite the adoption of numerous children who remain in temporary foster care . . . and in so doing promote a stable and long term family environment for these children."
The statutory prerequisites to termination of parental rights create an affirmative duty on the part of DES to make all efforts to preserve the family relationship. Appeal in Maricopa County Juv. Action No. JS-6520, 157 Ariz. 238, 241, 756 P.2d 335, 338 (App. 1988). We have held that termination pursuant to section 8-533(B)(6) should be granted only if the court finds, by clear and convincing evidence, that DES has made a concerted and diligent effort to preserve the family relationship.
See Appeal of Maricopa Cnty. Juv. Action No. JS-6520, 157 Ariz. 238, 254 (App. 1988) ("[T]he parents' inability to care for the child must show a danger to the child's welfare.").