Opinion
No. 2 CA-JV 2018-0008
05-03-2018
NELL J., Appellant, v. DEPARTMENT OF CHILD SAFETY, A.R., P.J.-R., A.E.R., AND A.A.R., Appellees.
COUNSEL Harriette P. Levitt, Tucson Counsel for Appellant Mark Brnovich, Arizona Attorney General By Michelle R. Nimmo, Assistant Attorney General, Tucson Counsel for Appellee Department of Child Safety
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f); Ariz. R. P. Juv. Ct. 103(G). Appeal from the Superior Court in Pinal County
No. S1100JD201600054
The Honorable DeLana J. Fuller, Judge Pro Tempore
AFFIRMED
COUNSEL Harriette P. Levitt, Tucson
Counsel for Appellant Mark Brnovich, Arizona Attorney General
By Michelle R. Nimmo, Assistant Attorney General, Tucson
Counsel for Appellee Department of Child Safety
MEMORANDUM DECISION
Presiding Judge Staring authored the decision of the Court, in which Chief Judge Eckerstrom and Judge Brearcliffe concurred. STARING, Presiding Judge:
¶1 Nell J. appeals from the juvenile court's order terminating her parental rights to her children, A.R. (born January 2009), P.J.-R. (born May 2012), A.E.R. (born January 2014), and A.A.R. (born May 2015) on chronic mental illness, substance abuse, and time-in-care grounds. See A.R.S. § 8-533(B)(3), (8). She argues the court erred by finding the Department of Child Safety (DCS) had provided adequate reunification services. We affirm.
The juvenile court also terminated the parental rights of the children's father, Nell's husband. He is not a party to this appeal. --------
¶2 We view the facts in the light most favorable to sustaining the juvenile court's ruling. Demetrius L. v. Joshlynn F., 239 Ariz. 1, ¶ 2 (2016). The children were removed from the home in March 2016, based on their parents' domestic violence, drug abuse, and untreated mental illness. DCS filed a dependency petition, which the court granted in May 2016, when the parents failed to appear for the initial dependency hearing. Over the next year, Nell was provided an array of services. However, her participation was limited. Her substance-abuse treatment was terminated "for lack of contact," and she missed numerous drug tests resulting in her suspension from drug testing, attended only one parenting class, and failed to attend individual counseling despite being provided transportation.
¶3 In July 2017, the juvenile court changed the case plan to severance and adoption, and DCS filed a motion to terminate Nell's parental rights on mental health, substance abuse, and time-in-care grounds. After a contested hearing, the court granted the motion on all grounds alleged, additionally finding that termination of Nell's parental rights was in the children's best interests. This appeal followed.
¶4 A juvenile court may terminate a parent's rights if it finds clear and convincing evidence of a statutory ground for severance and finds by a preponderance of the evidence that termination is in the child's best interests. A.R.S. §§ 8-533(B), 8-537(B); Kent K. v. Bobby M., 210 Ariz. 279, ¶ 41 (2005). "[W]e will affirm a termination order that is supported by reasonable evidence." Jordan C. v. Ariz. Dep't of Econ. Sec., 223 Ariz. 86, ¶ 18 (App. 2009). That is, we will not reverse a termination order for insufficient evidence unless, as a matter of law, no reasonable fact-finder could have found the evidence satisfied the applicable burden of proof. See Denise R. v. Ariz. Dep't of Econ. Sec., 221 Ariz. 92, ¶ 10 (App. 2009).
¶5 For the juvenile court to terminate Nell's rights on the grounds alleged here, DCS must have provided appropriate and reasonable reunification services. See § 8-533(B)(8) (termination of parental rights on time-in-care grounds requires "agency responsible for the care of the child" to have made "a diligent effort to provide appropriate reunification services"); Jennifer G. v. Ariz. Dep't of Econ. Sec., 211 Ariz. 450, ¶ 12 (App. 2005) (to terminate parental rights on grounds of chronic substance abuse, state must show it made "reasonable efforts to reunify the family"); Mary Ellen C. v. Ariz. Dep't of Econ. Sec., 193 Ariz. 185, ¶¶ 31-34 (App. 1999) (state must make "reasonable effort to preserve the family" before terminating parental rights on mental-health grounds). Nell's sole argument on appeal is that DCS failed to do so here because it did not provide services "tailored to her special[ ]needs." Nell relies on a psychological evaluation concluding that, due to her "limited intellectual capacity, poor insight, and memory deficits," although she "may benefit from parenting classes," she "does not have the capacity to appropriately integrate the feedback received from [those] classes." The evaluating psychologist recommended, among other services, that Nell should complete parenting classes, have individual therapy "with a Ph.D. level therapist," participate in drug testing and substance abuse treatment, and undergo a neuropsychological evaluation.
¶6 As DCS points out, it provided the bulk of the recommended services, including Ph.D.-level therapy, but Nell did not meaningfully participate. The only services DCS did not provide were visitation (due to the negative effect visitation had on the children) and a neuropsychological evaluation (because Nell did not demonstrate thirty days of sobriety as required). We thus reject Nell's claim that the services DCS provided were insufficient.
¶7 In any event, DCS "is not required . . . 'to provide every conceivable service or to ensure that a parent participates in each service it offers.'" Christina G. v. Ariz. Dep't of Econ. Sec., 227 Ariz. 231, ¶ 15 (App. 2011), quoting In re Maricopa Cty. Juv. Action No. JS-501904, 180 Ariz. 348, 353 (App. 1994). Nor is it "required to provide services that are futile." Id. Here, the chief issue leading to termination of Nell's parental rights was not that she participated in services but could not benefit, but that she failed to meaningfully participate in services at all. Although Nell complains that she was unfairly "penalized when she failed to participate" in services due to delays in obtaining the psychological evaluation, she has not established any connection between the evaluation and her decision to forego services. Given Nell's failure to participate, DCS's provision of different services would have been futile.
¶8 We affirm the juvenile court's order terminating Nell's parental rights to her children.