Opinion
No. 2 CA-JV 2015-0078
08-11-2015
LYNELLE A., Appellant, v. DEPARTMENT OF CHILD SAFETY AND E.D., Appellees.
COUNSEL Robert D. Rosanelli, Phoenix 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NOT FOR PUBLICATION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 Gila County
No. JD201300049
The Honorable Gary V. Scales, Judge Pro Tempore
AFFIRMED
COUNSEL Robert D. Rosanelli, Phoenix
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
Presiding Judge Vásquez authored the decision of the Court, in which Judge Howard and Judge Kelly concurred. VÁSQUEZ, Presiding 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 the supreme court.
¶1 Lynelle A. appeals from the juvenile court's April 2015 ruling terminating her parental rights to her child, E.D., born in January 2013, on the ground that the child had been in court-ordered, out-of-home care for nine months or more. See A.R.S. § 8-533(B)(8)(a). Lynelle argues the court's findings that the Department of Child Safety (DCS) provided "appropriate reunification services" and that she had neglected or refused to remedy the circumstances causing E.D. to be in a court-ordered, out-of-home placement are "clearly erroneous."
¶2 Before it may terminate a parent's rights, a juvenile court must find by clear and convincing evidence that at least one statutory ground for severance exists and must find by a preponderance of the evidence that terminating the parent's rights is in the best interests of the child. See A.R.S. §§ 8-533(B), 8-537(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 must say as a matter of law that no reasonable person could find those essential elements proven by the applicable evidentiary standard. Denise R. v. Ariz. Dep't of Econ. Sec., 221 Ariz. 92, ¶ 10, 210 P.3d 1263, 1266 (App. 2009). We view the evidence in the light most favorable to upholding the court's order. Manuel M. v. Ariz. Dep't of Econ. Sec., 218 Ariz. 205, ¶ 2, 181 P.3d 1126, 1128 (App. 2008).
¶3 In November 2013, E.D. was removed from Lynelle's home, along with three siblings, after DCS received a number of reports of abuse relating to one of the siblings. Based on evidence of domestic violence between Lynelle and E.D.'s father and abuse of some of the children, the juvenile court adjudicated E.D. dependent in March 2014, and in October 2014, the case plan was changed to severance and adoption. After a contested severance hearing, the court granted DCS's motion to terminate Lynelle's parental rights.
E.D.'s father's parental rights also were severed. He is not a party to this appeal.
¶4 Parental rights are terminated properly pursuant to § 8-533(B)(8)(a) if DCS demonstrates that the child has been in a court-ordered, out-of-home placement for nine months or longer and the parent has "substantially neglected or wilfully refused to remedy the circumstances that cause the child to be in an out-of-home placement." The statute also requires "the agency responsible for the care of the child [to make] a diligent effort to provide appropriate reunification services." § 8-533(B)(8); Jordan C. v. Ariz. Dep't of Econ. Sec., 223 Ariz. 86, ¶ 17, 219 P.3d 296, 303 (App. 2009). DCS is not required, however, to provide services that would be futile or to provide further services when a parent has failed to benefit from provided services. Bennigno R. v. Ariz. Dep't of Econ. Sec., 233 Ariz. 345, ¶ 20, 312 P.3d 861, 866 (App. 2013).
¶5 In this case, the family's case manager, Jessica Cruz, testified DCS had offered various services to Lynelle including supervised visitation, parenting classes, domestic violence counseling, individual counseling, a psychological consultation and evaluation, case management, and grief counseling. Cruz testified that other than supervised visitation and work with a parent aide, Lynelle had not participated in services.
¶6 On appeal, Lynelle does not dispute that she failed to participate in services other than visitation and parent aide, but rather maintains DCS failed to make a diligent effort to provide those services. She maintains that DCS cannot be found to have met its obligation to provide services because it "insisted that [she] apply for and obtain insurance coverage through AHCCCS" and essentially "insist[ed] that [she] first attempt [t]o secure services" herself before it would provide them.
Arizona Health Care Cost Containment System. --------
¶7 At the time of the preliminary protective hearing, Lynelle apparently still had private insurance, and the juvenile court ordered that DCS was "to identify services eligible for [her] insurance plans" and that "if the particular service requested is outside a given insurance plan, the Department is to provide that service." Shortly after the children were removed, Lynelle left her employment and lost the insurance. Thus, in order to pay for services, Cruz directed Lynelle to apply for AHCCCS. In several letters written to Lynelle, Cruz instructed her to apply for AHCCCS and, if her application was rejected, to provide Cruz with a copy of the rejection letter and a budget statement so that DCS could "contract with another agency for her to get the services that she needed." She also indicated Lynelle would need to select a service provider. Likewise, in April and again in late June or July, Cruz told Lynelle in person "she would have to [attempt to] obtain AHCCCS and be denied and then provide the Department with a budget statement so that we could pay for the services."
¶8 Lynelle was rejected by AHCCCS because she did not provide sufficient proof of income, specifically a letter of termination from the job she had held at the time of removal. She did not provide the rejection letter, but Cruz received a copy from AHCCCS directly. Although Cruz directed Lynelle to reapply for AHCCS, she apparently proceeded without reapplication after Lynelle provided a budget statement in "late July." In November 2014, after Lynelle met with Cruz, she "sent a referral" to a counselor. After that, Cruz had no more contact with Lynelle. By the time of the severance hearing in January 2015, Lynelle had still not participated in individual counseling or any other services beyond visitation and sessions with her parent aide.
¶9 Contrary to Lynelle's assertion that DCS "denied" her services by essentially requiring her to "find [her] own services," the record before us supports the juvenile court's determination that "[t]he remaining services were delayed because [Lynelle] had not completed the necessary documentation . . . so that the appropriate services could be provided." Lynelle specifically relies on the testimony of a therapist from the Easter Seals Blake Foundation in which the therapist discussed having told Cruz that she was "available to engage biological parents in treatment if appropriate." But, as Lynelle acknowledges, the therapist also stated "DCS had indicated [the parents] weren't compliant with case plan." Thus, that services were available through Easter Seals does not change our assessment of the situation—it was again Lynelle's failure to provide required information that prevented the provision of services.
¶10 Lynelle's argument that the juvenile court erred in concluding she had "substantially neglected or wilfully refused to remedy the circumstances which cause[d] the child to be in an out-of-home placement" essentially amounts to a request that we reweigh the evidence presented. She relies on favorable testimony but does not address the contrary evidence cited by the court, including that she had not addressed the issues "of domestic violence in her life," had "continue[d] to maintain a relationship with Father," and had failed to respond to DCS's requests for information. We do not reweigh the evidence, Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, ¶ 12, 53 P.3d 203, 207 (App. 2002), and will defer to the court's resolution of conflicting inferences if supported by the record, In re Pima Cnty. Adoption of B-6355 & H-533, 118 Ariz. 111, 115, 575 P.2d 310, 314 (1978).
¶11 For these reasons, we affirm the juvenile court's order terminating Lynelle's parental rights as to E.D.