Opinion
No. 2 CA-JV 2013-0117
02-24-2014
JESSIE M., Appellant, v. ARIZONA DEPARTMENT OF ECONOMIC SECURITY AND A.M., Appellees.
Scott W. Schlievert, Tucson Counsel for Appellant Thomas C. Horne, Arizona Attorney General By Cathleen E. Fuller, Assistant Attorney General, Tucson Counsel for Appellee Arizona Department of Economic Security
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND
MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Civ. App. P. 28(c); Ariz. R. P. Juv. Ct. 103(G).
Appeal from the Superior Court in Pima County
No. JD196322
The Honorable Peter W. Hochuli, Judge Pro Tempore
AFFIRMED
COUNSEL
Scott W. Schlievert, Tucson
Counsel for Appellant
Thomas C. Horne, Arizona Attorney General
By Cathleen E. Fuller, Assistant Attorney General, Tucson
Counsel for Appellee Arizona Department of Economic Security
MEMORANDUM DECISION
Judge Espinosa authored the decision of the Court, in which Presiding Judge Kelly and Judge Eckerstrom concurred. ESPINOSA, Judge:
¶1 Jessie M. appeals from the juvenile court's September 2013 order terminating his parental rights to A.M. on the grounds of length of time in court-ordered care, pursuant to A.R.S. § 8-533(B)(8)(c), and termination of his parental rights to another child, pursuant to § 8-533(B)(10). Jessie maintains the Arizona Department of Economic Security (ADES) did not sustain its burden of proving these statutory grounds for termination by clear and convincing evidence. We affirm the court's order for the reasons stated below.
¶2 To terminate a parent's rights, the juvenile court must find that at least one statutory ground for termination exists and that severance of a parent's rights is in the child's best interests. § 8-533(B). The existence of a statutory ground for termination must be proved by clear and convincing evidence; a preponderance of the evidence is required to establish that severance will serve the child's best interests. Kent K. v. Bobby M., 210 Ariz. 279, ¶¶ 16, 41, 110 P.3d 1013, 1017, 1022 (2005). We will affirm the court's order terminating a parent's rights unless we can conclude, as a matter of law, that no reasonable person could find the essential elements proven by the evidentiary standard. See Denise R. v. Ariz. Dep't of Econ. Sec., 221 Ariz. 92, ¶¶ 6, 9-10, 210 P.3d 1263, 1265-66 (App. 2009). And on review, we consider the evidence in the light most favorable to upholding it. Id. ¶ 10. If the record contains sufficient evidence to support at least one of the statutory grounds that are the bases of the court's ruling, "we need not address claims pertaining to the other grounds." Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, ¶ 3, 53 P.3d 203, 205 (App. 2002).
¶3 ADES removed a child from Jessie's and the child's mother's custody in February 2011. In January 2012, at the time set for their parental termination hearing as to that child, the juvenile court terminated the parents' right to the child after the mother and Jessie relinquished those rights and consented to the child's adoption. About a week after A.M.'s birth in January 2012, she was removed from the parents' custody and placed in foster care. ADES filed a dependency petition alleging that A.M.'s removal from the parents' custody had been based on the parents' prior history, the mother's untreated mental health issues, the couple's lack of housing, and their overall instability, despite services provided during the dependency of the other child. A.M. was adjudicated dependent in March 2012 after the mother and Jessie admitted allegations in an amended dependency petition. Almost a year later, at the end of February 2013, ADES filed a motion for termination of the parent-child relationship.
The mother's parental rights to A.M. also were terminated; she appealed, and this court recently affirmed that order. Rosario B. v. Ariz. Dep't of Econ. Sec., No. 2 CA-JV 2013-0116 (memorandum decision filed Jan. 28, 2014).
¶4 With respect to § 8-533(B)(8)(c), ADES alleged as to Jessie that A.M. had been out of the home pursuant to court order for fifteen months or longer and ADES had made a diligent effort to provide Jessie with appropriate reunification services, specifying the kinds of services it had provided, but Jessie had failed to remedy the circumstances that caused A.M. to remain out of the home. And ADES asserted there was a substantial likelihood Jessie would not be capable of exercising proper and effective parental care and control in the near future. In relation to that ground for termination, it also alleged that, in connection with the dependency and ultimate termination of Jessie's rights to the other child, he had failed to participate in reunification services and had not demonstrated he would be able to parent and protect that child or provide suitable housing and stability. ADES further alleged as a separate ground for terminating Jessie's rights to A.M. that his parental rights to the other child had been terminated within the preceding two years for the same cause that rendered him currently unable to parent A.M. Further, in connection with the other child, Jessie had been provided a panoply of services but had "participated minimally and failed to benefit to the extent that he would be able to safely parent and protect a minor."
¶5 After a four-day, contested severance hearing, the juvenile court granted ADES's motion and terminated the parents' rights on both of the grounds alleged. In a thorough under-advisement ruling, the court reviewed the history of the case, identified both alleged statutory grounds for termination, and summarized the evidence establishing the elements of each. The court found A.M. had been out of the home for nineteen months and during that time, ADES and other providers had offered or supplied Jessie a variety of services, "including mental health treatment which included domestic violence groups, healthy relationship groups, individual therapy, and parenting groups; two psychological evaluations and recommended treatment; psycho-sexual evaluation; parent aide and parent instruction; supervised visitation; Child and Family Team Meetings; and on-going case management." The court noted that psychologist Jill Plevell had evaluated Jessie and "saw him as oppositional and uncooperative," as well as "disinterested" and "superficially compliant with the evaluation." And Plevell, the court observed, had concluded Jessie "was not open to change," and did not believe he could parent a child safely "without significant intervention."
¶6 The juvenile court pointed to additional evidence presented at the severance hearing, including the psycho-sexual evaluation and testimony of Dr. Carlos Vega, a therapist, the individual counselor, and the caseworker. The latter testified that neither parent had benefitted from the various services they were provided and that the same circumstances existing at the beginning of the case still existed. The court found that although the parents had participated in some of the services that were provided, "they did not benefit from those services," adding that Jessie "was never able to accept that he needed help and refused to truly participate and benefit from those services offered." The court added that Jessie "attended his services because he knew he had to but never engaged appropriately in those services."
¶7 The juvenile court also found neither Jessie nor the mother had been able to remedy the circumstances that caused A.M. to remain out of the home and "there is a substantial likelihood that they will not be capable of exercising proper and effective parental care and control in the near future." The court thus concluded ADES had sustained its burden of presenting clear and convincing evidence that termination of both parents' rights was warranted pursuant to § 8-533(B)(8)(c). The court made additional findings related to § 8-533(B)(10), concluding termination was justified under that subsection of the statute as well. Finally, the court made additional factual findings and concluded a preponderance of the evidence established termination was in A.M.'s best interest.
¶8 Jessie contends on appeal there was insufficient evidence to support the juvenile court's ruling. He asserts he had "special needs" and that ADES did not provide him with appropriate services. He maintains ADES merely provided "a standard case plan, one psychological evaluation done a year before the trial with no follow-up, one psychosexual evaluation a year before the trial with no follow-up, visitations that were grossly inadequate," finding fault with additional services and insisting that he needed further services and a particular kind of case plan.
¶9 We agree with ADES that Jessie has, in part, waived any argument that the services provided to him over an extended period of time were appropriate and that additional or different services should have been provided. See Bennigno R. v. Ariz. Dep't of Econ. Sec., 233 Ariz. 345, ¶ 19, 312 P.3d 861, 865 (App. 2013); Christina G. v. Ariz. Dep't of Econ. Sec., 227 Ariz. 231, n.8, 256 P.3d 628, 632 n.8 (App. 2011). We disagree, however, that he raises the issue for the first time on appeal. It appears that during closing argument at the severance hearing, Jessie suggested the services were not reasonable and that given his low intelligence he should not have been required to come up with therapeutic goals on his own. Nevertheless, throughout the dependency of the parents' other child and during A.M.'s dependency, when things could have been done differently, Jessie did not object or insist he was entitled to additional or different services.
¶10 At the time Jessie admitted A.M. was a dependent child, he had been receiving services for at least a year in connection with his other child. During that child's dependency, the court conducted an initial dependency hearing, dependency review hearings, and a permanency hearing, and found ADES had made reasonable efforts to achieve the case plan of reunification by offering a variety of services. And in the present matter, which involved A.M. directly, Jessie had at least three opportunities to either object to ADES's efforts or request additional or different services but failed to do so. Following those proceedings, the court found ADES had made reasonable efforts to reunify the family by providing a variety of services, which the court identified. As ADES points out, the terms "reasonable" and "diligent" in terms of ADES's efforts, the latter of which is an element of § 8-533(B)(8)(c), are synonymous. See Marina P. v. Ariz. Dep't of Econ. Sec., 214 Ariz. 326, ¶ 37, 152 P.3d 1209, 1216 (App. 2007). It does not appear that at any point Jessie challenged these rulings or demanded additional or different services, or claimed the plethora of services he was receiving were inadequate.
Indeed, Jessie's individual therapist testified she and Jessie were unable to establish treatment goals in part because "he did not feel that there was anything that needed to be changed."
¶11 There was, in any event, reasonable evidence supporting the findings upon which the juvenile court's ruling was based, including that ADES had made a diligent effort to provide appropriate services designed to reunify the family. We therefore adopt the court's ruling. See Jesus M., 203 Ariz. 278, ¶¶ 4, 16, 53 P.3d at 205, 207-08, citing State v. Whipple, 177 Ariz. 272, 274, 866 P.2d 1358, 1360 (App. 1993). The court did not abuse its discretion by terminating Jessie's parental rights to A.M. based on the length of time she was in court-ordered care. And, because the record contains sufficient evidence to support this ground for termination pursuant to § 8-533(B)(8)(c), we need not address whether there was sufficient evidence for termination under § 8-533(B)(10). Id. ¶ 3.
We again note the testimony of Jessie's therapist that he did not progress during the four months of therapy, October 27, 2012, through February 2013. She did not see him after the last session in February because Jessie failed to follow through and make another appointment to discuss treatment goals, which was a condition of continuing therapy. She stated he would not admit there were problems, and "simply was unwilling to engage." Finally, she stated she considered Jessie's apparent intellectual limitations in evaluating and treating him, pointing out she had been a special education teacher and she and Jessie discussed his learning difficulties and disabilities "on a regular basis." Although psychologist Carlos Vega opined Jessie had a personality disorder rather than intellectual issues such as learning disabilities, he, too, noted Jessie refused to admit there were issues that needed to be addressed and blamed others for his difficulties.
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¶12 The juvenile court's order terminating Jessie's parental rights to A.M. is affirmed.