Opinion
No. 1 CA-JV 11-0161
02-28-2012
AISHA J., RANDY G., Appellants, v. ARIZONA DEPARTMENT OF ECONOMIC SECURITY, M.G., B.G., Appellees.
The Stavris Law Firm, PLLC By Alison Stavris Attorneys for Appellant Mother Scottsdale Denise L. Carroll Attorney for Appellant Father Thomas C. Horne, Arizona Attorney General By Jamie R. Heller, Assistant Attorney General Attorneys for Appellee Arizona Department of Economic Security
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz.R.Sup.Ct. 111(c); ARCAP 28(c);
Ariz.R.Crim.P. 31.24
MEMORANDUM DECISION
(Not for Publication -Ariz. R.P. Juv. Ct. 103(G) ARCAP 28)
Appeal from the Superior Court in Maricopa County
Cause No. JD18207
The Honorable Margaret R. Mahoney, Judge
AFFIRMED
The Stavris Law Firm, PLLC By Alison Stavris Attorneys for Appellant Mother
Scottsdale
Denise L. Carroll Attorney for Appellant Father
Scottsdale
Thomas C. Horne, Arizona Attorney General By Jamie R. Heller, Assistant Attorney General Attorneys for Appellee Arizona Department of Economic Security
Phoenix TIMMER, Judge
¶1 Randy G. ("Father") and Aisha J. ("Mother") separately appeal the juvenile court's order appointing a permanent guardian for their daughters, M.G. and B.G. (collectively, "Daughters"). For the reasons that follow, we affirm.
BACKGROUND
¶2 Mother has lived with Father since late 1994 or early 1995. Soon after entering this arrangement, Mother became the legal guardian of her four-year-old brother and his twin sister, M.M. Mother and Father also had Daughters: M.G., born in 1995, and B.G., born in 2001.
Mother's siblings are now adults and are not parties to this appeal.
Mother and Father also have a biological son, R.G., born in 2011, who is not a party to this appeal.
¶3 In 2006, fourteen-year-old M.M. informed Mother that Father was sexually abusing her. In Father's presence, she stated Father had forced her to perform oral sex on him. After Mother reported the matter to Child Protective Services ("CPS") at M.M.'s counselor's urging, the police were contacted. When M.M. spoke with detectives, she recanted her story and denied Father had ever done anything inappropriate with her. Because M.M. recanted, none of the children were removed from the home.
¶4 In June 2009, seventeen-year-old M.M. told her
boyfriend that Father had been sexually abusing her and having sexual intercourse with her at their home. M.M.'s boyfriend convinced her to report the sexual abuse to police that same day. M.M. told police Father had been sexually abusing her since she was twelve. She disclosed that Father had touched her breasts, inserted his fingers into her vagina, forced her to perform oral sex on him, and had sexual intercourse with her multiple times. M.M. also disclosed that Father had tried to make her become a stripper, talked about selling her virginity on the Internet, and took her to a house where he sold crack cocaine.
¶5 Following the interview, CPS removed M.M., her brother, and Daughters from Father's and Mother's home. CPS informed Mother it would place Daughters in her care if she left Father or if Father left the home. Mother remained with Father, and CPS ultimately placed Daughters with their maternal relative, Rachel M.
¶6 In July 2009, the Arizona Department of Economic Security ("ADES") filed a dependency petition. Following a trial, the juvenile court found Daughters dependent and approved family reunification as the case plan for Father and Mother. As part of the reunification plan, Father and Mother agreed to participate in psychological evaluations, parent-aide services, individual and couples counseling, and supervised visits.
¶7 Father and Mother only partially participated in services, and in November 2010, ADES filed a motion to appoint a permanent guardian. ADES identified Rachel as Daughters' prospective guardian and alleged she had been caring for them since October 2010.
¶8 At the hearing on the motion, Mother testified she did not have any concerns about leaving female children with Father. She stated CPS had told her for more than two years she could get Daughters back if she moved away from Father. Mother admitted she chose to stay with Father because she did not believe M.M. was telling the truth.
¶9 Nineteen-year-old M.M. testified Father had been sexually abusing her since she was twelve and that Father had sexual intercourse with her multiple times. M.M. repeated that Father had tried to make her become a stripper and a prostitute and sell her virginity on the Internet. She further said he wanted to move in together so he could keep her as his "side girl." M.M. also testified Father had choked her in 2006 in front of Mother after she first reported the abuse to Mother. She explained she had recanted her story in 2006 because Father had threatened to cut her into pieces, put her in a garbage bag, and hide her remains, and because she was only fourteen and did not believe the police could protect her. Finally, M.M. stated Father had never stopped sexually abusing her, and that he continuously threatened and intimidated her from 2006 to 2009. Father testified and denied all these allegations.
¶10 The court granted ADES's motion for appointment of a permanent guardian. The court found that M.M. was a credible witness, Father's denial of the sexual abuse was not credible, and a guardianship was in Daughters' best interests because Mother failed to demonstrate an ability or willingness to protect them. These timely appeals followed.
DISCUSSION
¶11 The right to custody of one's child is fundamental, but it is not absolute. Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, 248, ¶¶ 11-12, 995 P.2d 682, 684 (2000). The juvenile court may establish a permanent guardianship if ADES proves by clear and convincing evidence: the prospective guardianship is in the children's best interests; the children have been adjudicated dependent and living in the guardian's care for at least nine months; ADES made reasonable reunification efforts and further efforts would be unproductive; and the likelihood that the children would be adopted is remote or termination of parental rights would not be in the children's best interests. Ariz. Rev. Stat. ("A.R.S.") §§ 8-871(A), -872(F) (West 2012) . An order vesting permanent guardianship with an individual divests the biological parents of legal custody over the children, but it does not terminate the parents' rights. A.R.S. § 8-872(G).
We cite the current version of applicable statutes because no material revisions have occurred.
¶12 Father and Mother argue the juvenile court erred in ordering a permanent guardianship because (1) ADES did not make reasonable efforts to reunify them with Daughters, and (2) the guardianship is not in Daughters' best interests. "[T]he juvenile court was in the best position to weigh the evidence, judge the credibility of the parties, observe the parties, and make appropriate factual findings." Pima County Dependency Action No. 93511, 154 Ariz. 543, 546, 744 P.2d 455, 458 (App. 1987). Accordingly, we do not reweigh the evidence but determine only whether there is evidence to sustain the juvenile court's ruling. Maricopa County Juv. Action No. JV-132905, 186 Ariz. 607, 609, 925 P.2d 748, 750 (App. 1996). With these principles in mind, we address each issue in turn.
A. Reunification efforts
¶13 ADES must make reasonable efforts to reunite parents with their children. A.R.S. § 8-871(A)(3). ADES fulfills its duty when it gives a parent "the time and opportunity to participate in programs designed to help [him or] her become an effective parent." Maricopa County Juv. Action No. JS-501904, 180 Ariz. 348, 353, 884 P.2d 234, 239 (App. 1994). The services provided must have a "reasonable prospect of success," but ADES is not required to provide rehabilitative services when it establishes by clear and convincing evidence that such services would be futile. Mary Ellen C. v. Ariz. Dep't of Econ. Sec., 193 Ariz. 185, 192-93, ¶¶ 34, 42, 971 P.2d 1046, 1053-54 (App. 1999).
1. Father
¶14 For a period of fifteen months, ADES offered Father psychological and psychosexual evaluations, individual and couples counseling, supervised visits, drug testing, parent-aide services, and behavioral self-referral. The juvenile court found these services were necessary and appropriate to facilitate reunification. Although Father participated in many of these services, he failed to participate in others.
Among other things, Father missed approximately twenty visits with Daughters because he was "protesting the whole thing." Along with Mother, he quit individual and couples counseling before it could progress to family counseling with Daughters. Finally, on the advice of counsel, he refused a psychosexual evaluation.
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¶15 Father argues ADES acted in bad faith because the services offered - particularly psychosexual counseling - were not designed to reunify him with Daughters but to further inculpate him for sexually abusing M.M. and/or convince Mother to leave him. We disagree.
¶16 Reasonable evidence supports the court's finding that
the offered services were necessary and appropriate for reunification and not offered for an improper purpose. M.M. offered credible evidence of Father's continuous sexual abuse and threats toward her. Dr. Elliot Salk, who performed a psychological evaluation of Father, diagnosed Father with a personality disorder bearing antisocial and paranoid features. He opined Father presented a risk for sexually, physically, or emotionally abusing children, and stated ADES and the court should be concerned about placing children in his care. In light of this evidence, ADES properly offered counseling and required a psychosexual evaluation to determine what risk, if any, Father posed to Daughters if they were returned to his care. Minh T. v. Ariz. Dep't of Econ. Sec., 202 Ariz. 76, 79, ¶ 14, 41 P.3d 614, 617 (App. 2001) ("The State has a right to protect children from abusive parents. And to protect children from abusive parents, the State may require therapy and counseling for the parents." (internal citation omitted)). The juvenile court also had reason to conclude CPS requested the psychosexual evaluation to facilitate reunification rather than to inculpate Father or compel Mother to leave him: Crystal Diaz, a CPS caseworker, testified ADES would have returned Daughters to Father had he participated in the psychosexual evaluation and it showed he presented no risk to Daughters. We defer to the court's assessment of Diaz's credibility. The court did not err by finding that ADES made reasonable efforts to reunify Father with Daughters.
2. Mother
¶17 Mother argues the court erred by finding ADES made reasonable efforts to offer reunification services because it had no intention of returning Daughters to her unless she left Father. She points out she substantially complied with all services and further demonstrated through her testimony that she was willing and able to protect Daughters from Father if required.
¶18 Like Father, Mother fails to provide any authority for the notion that ADES cannot condition return of Daughters on the parents' completion of services to ensure Daughters' safety. As explained, see supra ¶ 16, ADES had a right to satisfy itself that Father was not a risk to Daughters before placing them in his care. Because Father refused to undergo the psychosexual evaluation to assess that risk, ADES justifiably refused to return Daughters to Mother as long as she resided with him. The juvenile court did not err by finding ADES made reasonable efforts to reunite Mother with Daughters.
B. Best interests
¶19 Father and Mother finally argue the juvenile court erred because a permanent guardianship was not in Daughters' best interests. They point to evidence that they are able and willing to care for Daughters and Daughters' testimony that they wish to return to their parents' care.
¶20 When determining the best interests of children in a permanent guardianship proceeding, the court must give primary consideration to their physical, mental, and emotional needs. A.R.S § 8-871(C). ADES must show that the children would receive an affirmative benefit from the guardianship or incur a detriment by not being placed with the prospective guardian. Jennifer B. v. Ariz. Dep't of Econ. Sec., 189 Ariz. 553, 557, 944 P.2d 68, 72 (App. 1997).
¶21 Although evidence supports the parents' position, other evidence permitted the court to find that a guardianship served Daughters' best interests. First, despite the parents' denial of M.M.'s allegations, the juvenile court found her credible. Coupled with Dr. Salk's opinions, Father's refusal to participate in the psychosexual evaluation, and both parents' failure to complete individual and couples counseling aimed at changing negative behaviors, the court justifiably found that returning Daughters to a home where Father resided would place them at risk for sexual abuse.
¶22 Second, although Daughters testified they were not afraid of Father and wanted to return home to live with their parents, other evidence supported a finding that Daughters were not candid. Father and Mother were present during this testimony, which may have influenced Daughters. Diaz testified Daughters had previously told her they were happy with Rachel and did not want to deal with Father; Diaz stated the hearing testimony was the first time she had heard Daughters say they wished to return to their parents' home. Indeed, Daughters acknowledged they were happy living with Rachel, who was providing for their needs. Based on this evidence, the juvenile court could have reasonably found that Daughters were happy in their current placement with Rachel and did not wish to return to their parents' home. See Jesus M. v. Ariz. Dep't of Econ. Sec. , 203 Ariz. 278, 282, ¶ 12, 53 P.3d 203, 207 (App. 2002) (noting juvenile court in best position to weigh credibility of witnesses and resolve conflicts in evidence).
¶23 In sum, the juvenile court did not err by finding that a permanent guardianship was in Daughters' best interests.
CONCLUSION
¶24 For the foregoing reasons, we affirm the juvenile
court's order appointing a permanent guardian for Daughters.
_____________________
Ann A. Scott Timmer, Judge
CONCURRING:
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Patricia K. Norris, Presiding Judge
_____________________
Margaret H. Downie, Judge