Opinion
No. 1 CA-JV 15-0285
02-02-2016
ASHLEY C., Appellant, v. DEPARTMENT OF CHILD SAFETY, A.M., Appellees.
COUNSEL Denise L. Carroll, Esq., Scottsdale By Denise Lynn Carroll Counsel for Appellant Arizona Attorney General's Office, Phoenix By Michael Valenzuela Counsel for Appellee Department of Child Safety
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. JD22977
The Honorable Connie Contes, Judge
AFFIRMED
COUNSEL Denise L. Carroll, Esq., Scottsdale
By Denise Lynn Carroll
Counsel for Appellant Arizona Attorney General's Office, Phoenix
By Michael Valenzuela
Counsel for Appellee Department of Child Safety
MEMORANDUM DECISION
Judge Donn Kessler delivered the decision of the Court, in which Presiding Judge Peter B. Swann and Judge Lawrence F. Winthrop joined. KESSLER, Judge:
¶1 Ashley C. ("Mother") appeals the juvenile court's order terminating her parental rights to her daughter, AM. For the following reasons, we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 Mother is the biological parent of AM, who was born in May 2014. At the time of AM's birth, Mother had an open dependency case against her as to AM's two older siblings, JM and LM. AM was removed from Mother's custody at the hospital and placed with her siblings in foster care.
¶3 JM and LM were originally removed from Mother's care in November 2012 and found dependent in February 2013 based on neglect due to mental deficiency. Under a case plan of family reunification concurrent with severance and adoption, DCS provided Mother with a psychological evaluation in February 2013, over one year before AM was born. The psychologist, G. Joseph Bluth, found that Mother's assessment "indicated intellectual functioning within the range of mild mental retardation," and stated that her prognosis for independent parenting was poor. Bluth further found that a child in Mother's care would be at significant risk for neglect, Mother would have trouble taking care of even her own needs, and Mother's mental deficiency would not change with the provision of additional services. Ultimately, Bluth recommended that DCS consider alternative permanency plans other than reunification. However, Bluth also recommended Mother receive services regardless of the case plan, including individual counseling to help Mother learn to cope, problem solve, and manage stress and anger; habilitation training through the Department of Developmental Disabilities ("DDD") to learn home and money management skills; and parent skills training. DCS provided Mother with a variety of reunification services including parent-aide services, case-aide visits, a psychiatric evaluation, individual counseling, marital counseling, and habilitation services with the DDD. Mother completed the services but made no behavioral changes. After two years, in February 2015, Mother's parental rights to JM and LM were terminated based on the grounds of mental deficiency and fifteen months' out-of-home placement.
This Court affirmed the juvenile court's severance order in August 2015. See Jurgen M. v. Dep't of Child Safety, 1 CA-JV 15-0058, 2015 WL 4911779 (Ariz. App. Aug. 18, 2015) (mem. decision).
¶4 After AM's birth, and based on on-going concerns regarding Mother's ability to parent, DCS filed a dependency petition as to AM, which was ultimately granted by the juvenile court. Between May 2014 and May 2015, DCS provided Mother with additional services aimed at reunifying her with AM. These services included individual counseling, marital counseling, habilitation services with DDD, parent-aide services, and psychiatric and medication monitoring. In addition, DCS attempted to make accommodations for Mother's cognitive deficiency by keeping services open for longer than is generally required, providing her with cab rides, and holding extra meetings to provide more time to explain Mother's case to her in greater detail. Despite these services, Mother continually exhibited problems retaining basic information, including when and how to feed AM and what constitutes proper supervision. DCS found Mother unable to make the behavioral changes required to reunify with AM.
¶5 In January 2015, based on a motion by DCS, the juvenile court changed AM's case plan to severance and adoption. In April 2015, DCS requested the court to terminate further reunification services as futile. Hearing no objection from Mother, the court granted that request in May 2015. Eight days before the June 2015 severance hearing, DCS filed its first supplemental disclosure statement. AM's Father, Jurgen M. ("Father"), filed a written objection to the statement based on timeliness. Mother did not file a written objection, but orally joined Father's motion at the hearing. DCS conceded to the late disclosure, but argued there was no prejudice because the exhibits had been disclosed and admitted in the record in the prior termination. In response, Mother's counsel argued that she would have a hard time explaining to Mother, in a shortened time frame, why the documents were admitted despite DCS's failure to comply with its obligations, and how the case was going to proceed. After considering the totality of the circumstances and the best interests of AM, and finding no lack of notice, the court overruled the objection and admitted the exhibits.
Father's rights were also terminated, but he is not a party to this appeal.
¶6 Mother's rights to AM were ultimately severed based on the grounds of mental deficiency and prior termination. Mother timely appealed. We have jurisdiction pursuant to Arizona Revised Statutes ("A.R.S.") sections 8-235(A) (2014), 12-120.21(A)(1) (2003), and 12-2101(A)(1) (Supp. 2015).
DISCUSSION
¶7 A parent's right to custody and control of his or her own child is fundamental, Santosky v. Kramer, 455 U.S. 745, 753 (1982), but not absolute, Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, 248, ¶ 12 (2000). To justify severance of a parental relationship, the State must prove one of the statutory grounds in A.R.S. § 8-533(B) by clear and convincing evidence. Michael J., 196 Ariz. at 249, ¶ 12. In addition, the court must find by a preponderance of the evidence that severance of the relationship is in the child's best interest. Kent K. v. Bobby M., 210 Ariz. 279, 288, ¶ 41 (2005). Because the juvenile court is in the best position to weigh evidence and judge credibility, "we will accept the juvenile court's findings of fact unless no reasonable evidence supports those findings, and we will affirm a severance order unless it is clearly erroneous." Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, 280, ¶ 4 (App. 2002). We do not reweigh the evidence, but "look only to determine if there is evidence to sustain the court's ruling." Mary Lou C. v. Ariz. Dep't of Econ. Sec., 207 Ariz. 43, 47, ¶ 8 (App. 2004). I. LATE DISCLOSURE OF DOCUMENTS
¶8 Mother argues the juvenile court denied her a right to a fair trial by allowing DCS to offer evidence into the record that was improperly disclosed. She argues that DCS's discovery violation should have resulted in either a continuance or the exclusion of the exhibits at trial. In admitting the evidence, Mother states she was not given adequate time to prepare her defense.
¶9 We review the juvenile court's rulings regarding the admissibility of evidence for an abuse of discretion. Ruben M. v. Ariz. Dep't of Econ. Sec., 230 Ariz. 236, 239, ¶ 13 (App. 2000). "[W]e will not reverse unless unfair prejudice resulted or the court incorrectly applied the law." Larsen v. Decker, 196 Ariz. 239, 241, ¶ 6 (App. 2000) (internal citation omitted).
¶10 Rule 44 of the Arizona Rules of Procedure for the Juvenile Court, which governs disclosure in adjudication hearings, provides in part that parties shall disclose, among other things, a list and copies of all exhibits the parties intend to use at trial. Ariz. R.P. Juv. Ct. 44(B)(2)(e), (D)(2). In addition, any supplementation to the list of exhibits must be submitted no later than ten days prior to the hearing. Ariz. R.P. Juv. Ct. 44(F). If a party fails to abide by the disclosure rules, the trial court has discretion to issue sanctions. Ariz. R.P. Juv. Ct. 44(G). Possible sanctions include "precluding the evidence, granting a continuance or entering any order against a party as deemed appropriate." Id. All sanctions imposed, however, "should be in accordance with the intent of these rules, as set forth in Rule 36." Id. Rule 36 provides that "[t]he rules should be interpreted in a manner designed to protect the best interests of the child, giving paramount consideration to the health and safety of the child." Because "[t]he primary consideration in a dependency case is always the best interest of the child, . . . the juvenile court is vested with 'a great deal of discretion.'" Ariz. Dep't of Econ. Sec. v. Superior Court, 178 Ariz. 236, 239 (App. 1994) (quoting Cochise Cty. Juv. Action No. 5666-J, 133 Ariz. 157, 161 (1982)).
¶11 The court had ordered all exhibits to be disclosed no later than twenty days prior to the date of trial. Although DCS's supplemental disclosure was untimely, nothing in Rule 44(G) requires the court to impose sanctions. Instead, Rule 44(G) only states that the court "may impose sanctions" when a party fails to disclose information in a timely manner. (Emphasis added.)
¶12 We conclude the court did not err in admitting the exhibits. In deciding whether to impose sanctions, the juvenile court correctly considered the "totality of the circumstances" and AM's best interests. Accordingly, we find no improper application of the law.
¶13 We also find that Mother has not established that she suffered prejudice from DCS's late disclosure. The exhibits admitted had been disclosed and discussed in prior proceedings, were directly relevant to the grounds for termination alleged in the petition, and presented no new information that would have surprised Mother or affected her presentation at the adjudication hearing. Exhibits 6 through 10 are progress reports filed with the juvenile court from May 2014 through February 2015, which were known to Mother's counsel and dealt with any progress or lack of progress in reunifying the family. Exhibit 11 was a progress report prepared less than one month before the hearing so it could not have been produced pursuant to the court's deadline. Exhibit 12 was the 2013 Bluth report which had been previously disclosed and was part of the progress reports. And finally, Exhibit 13 related only to Father, and not to Mother. Ultimately, the record does not support Mother's claim that in admitting the evidence Mother "did not have adequate time to prepare a defense." Based on the record, the juvenile court did not abuse its discretion in overruling the objection and admitting the exhibits. II. TERMINATION OF PARENTAL RIGHTS
¶14 Mother argues the juvenile court erred in finding there was clear and convincing evidence to support termination based on mental illness pursuant to A.R.S. § 8-533(B)(3) (Supp. 2015). We disagree.
DCS contends that Mother's argument on termination based on mental illness is moot because she has not challenged the court's decision terminating her rights based on a prior termination within one year for the same cause. See A.R.S. § 8-533(B)(10). We disagree. Section 8-533(B)(10) provides that parental rights may be severed if DCS proves that the parent "had parental rights to another child terminated within the preceding two years for the same cause and is currently unable to discharge parental responsibilities due to the same cause." (Emphasis added.) By challenging the court's finding that she cannot provide parental responsibilities because of mental deficiency, which was the basis for the prior termination, Mother is effectively also challenging the basis for termination under section (B)(10) because under either section, the court has to find the parent cannot provide parental responsibilities because of mental impairment.
¶15 Termination pursuant to A.R.S. § 8-533(B)(3) requires evidence that Mother suffers from a mental deficiency which prevents her from discharging her parental responsibilities, and that there are reasonable grounds to believe the condition will continue for a prolonged period of time. Section 8-533(B)(3) contains "a statutory requirement that implicitly incorporates the obligation to make reasonable efforts to preserve the family before seeking a severance on mental illness grounds." Mary Ellen C. v. Ariz. Dep't of Econ. Sec., 193 Ariz. 185, 191, ¶ 31 (App. 1999).
¶16 First, Mother argues the court erred in its determination that DCS made reasonable efforts to provide appropriate reunification services. "It is well established that [DCS], before acting to terminate parental rights, has an affirmative duty to make all reasonable efforts to preserve the family relationship." Mary Ellen C., 193 Ariz. at 186, ¶ 1. This means that DCS must provide parents with both time and opportunities to participate in programs intended to help them become better parents. Maricopa Juv. Action No. JS-501904, 180 Ariz. 348, 353 (App. 1994).
¶17 Here, after AM's birth, Mother was provided with opportunities to participate in individual counseling, marital counseling, habilitation services with DDD, parent-aide services, and psychiatric and medication monitoring. See supra ¶ 4. In addition, DCS attempted to make accommodations for Mother's cognitive deficiency by keeping services open for longer than is generally required, providing her with cab rides, and holding extra meetings to provide more time to explain Mother's case to her in greater detail. See id. These services were consistent with those recommended by Bluth in his psychological evaluation report. Based on the record, there is sufficient evidence to support a finding that DCS made diligent efforts to provide Mother with appropriate reunification services.
While DCS provided habilitation services through DDD, one exhibit revealed that DDD could not provide intensive services to Mother. Mother does not claim that the lack of such intensive habilitation services made the services inadequate and there is no evidence in the record as to what constitutes intensive habilitation services.
¶18 This is a stronger case for severance than Vanessa H. v. Arizona Department of Economic Security, where a divided court affirmed the termination of rights of a parent who had a similar mental impairment. 215 Ariz. 252, 253-54, ¶¶ 3-5 (App. 2007). In Vanessa H, the mother was in a State home where assistance in caring for the child was readily available and she was able to provide some level of care with assistance. 215 Ariz. at 267, ¶¶ 70-71. Vanessa H. argued that the State had an obligation to find an assisted living situation for her where she could care for her child with supervision, an argument the juvenile court rejected. Id. at 262, ¶¶ 50-51. This is not the case here.
¶19 Mother also relies on Marina P. v. Arizona Department of Economic Security to argue severance is improper based on her good-faith efforts to comply with the remedial programs provided by DCS. 214 Ariz. 326, 329, ¶ 30 (App. 2007) ("[P]arents who make appreciable, good faith efforts to comply with remedial programs outlined by [DCS] will not be found to have substantially neglected to remedy the circumstances that caused the out-of-home placement, even if they cannot completely overcome their difficulties." (quoting Maricopa Cty. Juv. Action No. JS-501568, 177 Ariz. 571, 576 (App. 1994)). That case, however, involved parental severance under A.R.S. § 8-533(B)(8)(a), which requires finding "the parent has substantially neglected or willfully refused to remedy the circumstances that cause the child to be in an out-of-home placement." Section 8-533(B)(3), on the other hand, requires only that "there are reasonable grounds to believe the condition will continue for a prolonged indeterminate period." We therefore find Marina P. to be inapposite.
¶20 Finally, Mother argues that DCS failed to prove that her mental deficiency kept her from raising AM. There was no contention below that Mother did not love AM and was trying to comply with services provided by DCS. There was, however, evidence that because of her mental deficiency, Mother continually exhibited problems retaining basic information, was unable to properly feed AM, and was unable to provide appropriate supervision. See supra ¶ 4. This evidence was consistent with reports pertaining to JM and LM. Based on the record, DCS provided sufficient evidence that Mother suffers from a mental deficiency which prevents her from discharging her parental responsibilities, and that there are reasonable grounds to believe the condition will continue for a prolonged period of time.
Despite the sufficiency of the evidence, it is of some concern that most of the documentary evidence dealt with Mother's inability to provide parental care to her two other children before or shortly after AM was born, and that DCS was relying on a 2013 psychological evaluation of Mother. However, DCS did provide sufficient evidence that the same concerns which led to the termination of Mother's rights to JM and LM continued after a year of providing services to Mother for AM. --------
CONCLUSION
¶21 Having found there is sufficient evidence to support the juvenile court's findings, we affirm its order to terminate Mother's parental rights to AM pursuant to A.R.S. § 8-533(B)(3).