Opinion
No. 2 CA-JV 2017-0004
08-15-2017
ADEANA J., Appellant, v. DEPARTMENT OF CHILD SAFETY, J.J., AND R.R., Appellees.
COUNSEL Harriette P. Levitt, Tucson Counsel for Appellant Mark Brnovich, Arizona Attorney General By Laura J. Huff, 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NOT FOR PUBLICATION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. S1100JD201200232
The Honorable Henry G. Gooday Jr., Judge
AFFIRMED
COUNSEL Harriette P. Levitt, Tucson
Counsel for Appellant Mark Brnovich, Arizona Attorney General
By Laura J. Huff, Assistant Attorney General, Tucson
Counsel for Appellee Department of Child Safety
MEMORANDUM DECISION
Judge Espinosa authored the decision of the Court, in which Presiding Judge Staring and Judge Kelly concurred. ESPINOSA, Judge:
The Hon. Virginia C. Kelly, a retired judge of this court, is called back to active duty to serve on this case pursuant to orders of this court and our supreme court.
¶1 Adeana J. appeals from the juvenile court's order terminating her parental rights to her sons J.J., born in February 2012, and R.R., born in December 2014, based on the grounds of mental illness and length of time in court-ordered care (fifteen months). See A.R.S. § 8-533(B)(3), (B)(8)(c). We affirm.
The juvenile court also terminated the parental rights of the children's fathers, who are not parties to this appeal.
¶2 We view the evidence in the light most favorable to upholding the juvenile court's ruling. Manuel M. v. Ariz. Dep't of Econ. Sec., 218 Ariz. 205, ¶ 2, 181 P.3d 1126, 1128 (App. 2008). The Department of Child Safety (DCS) took J.J. into temporary custody in April 2013, and the court appointed a guardian ad litem (GAL) on behalf of Adeana in May 2013. J.J. was adjudicated dependent as to Adeana in July 2013. R.R. was taken into custody in January 2015, shortly after he was born, and was adjudicated dependent in March 2016.
¶3 DCS offered Adeana various services for more than three years, including substance abuse and parenting classes, individual and family counseling, team decision making, a safety plan, supervised visits, and multiple psychiatric and psychological evaluations. The evaluations established that Adeana has a mental deficiency and that she is unable to discharge her parental responsibilities due to cognitive limitations that will continue for a prolonged, indeterminate period, even with the provision of services. Adeana was essentially non-compliant with the services DCS offered, repeatedly failing to participate in or complete them.
¶4 In April 2016, DCS filed a motion to terminate Adeana's rights to J.J. based on mental illness and time-in-care grounds, and amended that motion to include R.R. in August 2016. See § 8-533(B)(3), (B)(8)(c). At the end of a two-day severance hearing held in October and December 2016, the juvenile court granted DCS's motion to terminate Adeana's rights to the children based on the "overwhelming" evidence supporting the asserted grounds. On appeal, Adeana asserts DCS failed to provide her with services to meet her special needs and maintains her due process rights were violated because her GAL was absent during part of the trial and failed to protect her best interests when he was present.
¶5 A juvenile court may terminate a parent's rights if it finds both clear and convincing evidence of one of the statutory grounds for termination and a preponderance of evidence that termination of the parent's rights is in the children's best interests. A.R.S. §§ 8-533(B), 8-863(B); Kent K. v. Bobby M., 210 Ariz. 279, ¶ 41, 110 P.3d 1013, 1022 (2005). We will affirm an order terminating parental rights unless we can say as a matter of law that no reasonable person could find the essential elements proven by the applicable evidentiary standard. See Denise R. v. Ariz. Dep't of Econ. Sec., 221 Ariz. 92, ¶¶ 9-10, 210 P.3d 1263, 1265-66 (App. 2009).
¶6 A court may terminate a parent's rights pursuant to § 8-533(B)(8)(c) if it finds clear and convincing evidence "[t]he child has been in an out-of-home placement for a cumulative total period of fifteen months or longer pursuant to court order . . . , the parent has been unable to remedy the circumstances that cause the child to" remain outside the home, and "there is a substantial likelihood that the parent will not be capable of exercising proper and effective parental care and control in the near future." Pursuant to § 8-533(B)(3), termination may be warranted if a parent "is unable to discharge parental responsibilities because of mental illness[ or] mental deficiency . . . and there are reasonable grounds to believe that the condition will continue for a prolonged indeterminate period." To justify terminating the parent-child relationship on both of these grounds, DCS was required to show it had made a diligent effort to provide Adeana with appropriate services designed to reunify her with her children. See Jennifer G. v. Ariz. Dep't of Econ. Sec., 211 Ariz. 450, ¶ 12 & n.3, 123 P.3d 186, 189 & n.3 (App. 2005); see also Mary Ellen C. v. Ariz. Dep't of Econ. Sec., 193 Ariz. 185, ¶ 26, 971 P.2d 1046, 1051-52 (App. 1999).
¶7 On appeal, Adeana does not contest she is unable to discharge her parental responsibilities due to the asserted grounds. Instead, she argues termination was not warranted because DCS did not conduct "the necessary [neuropsychological] evaluation" to determine the type of reunification services she needed based on her special needs and instead used other evaluations "as a justification for termination rather than as a treatment tool." See Mary Ellen C., 193 Ariz. 185, ¶ 33, 971 P.2d at 1053 (DCS must provide appropriate services addressing parent's mental illness when termination sought on that ground). The record establishes the many services DCS provided to Adeana, as well as the fact she consistently failed to participate in those services. And, significantly, Adeana has not specifically identified what effect, if any, DCS's failure to ensure she receive a neuropsychological evaluation may have had on her treatment or the services provided. Nor has she established how the services she received were deficient.
Although "the evaluation [performed by one of the psychologists] was originally supposed to be a neuropsychological battery[,] . . . it was mistakenly scheduled as a psychological evaluation instead."
¶8 Psychologist Robert Mastikian, who evaluated Adeana in October 2015, testified that although DCS had not directed him to perform a neuropsychological evaluation, in light of the fact that Adeana had "made absolutely no reference to a head injury," the psychological evaluation he performed was "the proper way to do it." He also testified that both types of evaluations contain the same "core" elements. Mastikian explained that a neuropsychological evaluation would not have "chang[ed his] opinion" and added that he was "still sticking with [his] conclusion that there[ was] enough" from the psychological evaluation he performed to support his conclusions regarding Adeana. In a March 2016 written addendum to his report, Mastikian similarly stated that the evaluation he had performed was appropriate and that a neuropsychological examination was not called for.
¶9 At the conclusion of the termination hearing, the juvenile court referred to Mastikian's testimony, noting that he had remained "very confident that none of his conclusions would [have] change[d]" even had he performed a neuropsychological evaluation. The court also stated in its written ruling that providing Adeana with additional services would be "futile." DCS's duty to make reasonable efforts to reunify the family does not require it to "provide 'every conceivable service,'" or "undertake rehabilitative measures that are futile." Id. ¶¶ 34, 37, quoting Maricopa Cty. Juv. Action No. JS-501904, 180 Ariz. 348, 353, 884 P.2d 234, 239 (App. 1994); see Mary Lou C. v. Ariz. Dep't of Econ. Sec., 207 Ariz. 43, ¶ 15, 83 P.3d 43, 49 (App. 2004). DCS is only required to "provide [the] parent with the time and opportunity to participate in programs designed to improve the parent's ability to care for [her] child." Mary Ellen C., 193 Ariz. 185, ¶ 37, 971 P.2d at 1053. In summary, Adeana has not demonstrated the services DCS provided were insufficient.
¶10 In her second argument, Adeana relies on Strickland v. Washington, 466 U.S. 668 (1984), to assert that "[t]he right to counsel, along with the right to a [GAL,] implicates the right to due process," and further maintains she "was entitled to competent representation" by her GAL. She asserts her due process rights were violated because the juvenile court permitted portions of the termination hearing to proceed in the absence of the GAL, and contends the GAL did not protect her interests even when he was present.
The case Adeana cites for this proposition, Daniel Y. v. Ariz. Dep't of Econ. Sec., 206 Ariz. 257, 77 P.3d 55 (App. 2003), addresses a parent's right to counsel, but does not mention, much less address, a parent's right to effective representation by a GAL at a termination hearing. Nor, as DCS correctly points out, does Adeana provide any legal support for this proposition. We further note that Adeana was represented by appointed counsel at the termination hearing.
¶11 At the beginning of the termination hearing, the juvenile court stated that Adeana's GAL had informed the court he had "other cases and he w[ould] be coming in and out" of the hearing. The GAL left the courtroom near the end of the cross-examination of Mastikian and was absent during a portion of the direct examination of Adeana's therapist. Counsel for DCS and the children asked the court to recess until the GAL returned, a request the court denied, noting that the GAL "can float in and out all he wants" and the court "can't tether him to the courtroom," but "[i]f he chooses to leave, that's on him."
Although it does not change the outcome in this instance, we question the trial court's conclusions concerning its ability to control the attendance of a GAL. Moreover, it is not difficult to envision circumstances in which the absence of a GAL would not be "on him" but instead would prejudice the party. --------
¶12 Although the GAL did not question any witnesses during the hearing, he did participate in the closing argument, stating Adeana's case "presents a conundrum that is very, very difficult to address institutionally. Namely, the lack of insight into [Adeana's] lack of insight." The GAL reminded the juvenile court that he had requested a neuropsychological evaluation, and explained that because Adeana does not perceive there is a problem, her issues cannot "be remedied through the normal process of services that she doesn't really see any benefit to." He further asserted that, although Adeana "loves and adores her children," her "cognitive conundrum makes parenting highly problematic as all the providers have said, but which is really sad."
¶13 Absent a finding of a parent's incompetency, which did not occur here, "'a GAL's role [of protecting the parent's interests] must be limited to investigating the best interests of the parent and communicating those interests to the court.'" Cecilia A. v. Ariz. Dep't of Econ. Sec., 229 Ariz. 286, ¶ 9, 274 P.3d 1220, 1223 (App. 2012), quoting Maricopa Cty. Juv. Action No. JD-6982, 186 Ariz. 354, 359, 922 P.2d 319, 324 (App. 1996) (modification in Cecilia A.); see A.R.S. § 8-531(7) (GAL is person appointed by court to protect "interest of a minor or an incompetent"); A.R.S. § 8-535(F) (court shall appoint GAL if it finds reasonable grounds to believe party to proceeding is mentally incompetent or in need of GAL).
¶14 On appeal, Adeana generally argues her GAL did not "participate in any way which might have assisted [her] interests." However, she does not explain what her GAL could have done differently had he been present during the entire hearing or what he failed to do when he was present, nor has she established how she was prejudiced by her GAL's absence or explained how her constitutional rights were violated. Assuming, without deciding, that the juvenile court erred by permitting the hearing to proceed in the GAL's absence, any error was harmless. Cf. Monica C. v. Ariz. Dep't of Econ. Sec., 211 Ariz. 89, ¶ 22, 118 P.3d 37, 42 (App. 2005) (failure to comply with juvenile procedure rules "does not necessarily require a reversal"; noncompliance instead reviewed for harmless error if objection made below). Reversal would be warranted only if the error was prejudicial to Adeana's substantial rights, an injury she has not asserted, much less proven. See Creach v. Angulo, 186 Ariz. 548, 550, 925 P.2d 689, 691 (App. 1996).
¶15 For all of these reasons, the juvenile court's order terminating Adeana's parental rights to J.J. and R.R. is affirmed.