Opinion
No. 1 CA-JV 18-0397
05-02-2019
ASHLEY C., Appellant, v. DEPARTMENT OF CHILD SAFETY, S.M., Appellees.
COUNSEL Law Office of H. Clark Jones LLC, Mesa By H. Clark Jones Counsel for Appellant Arizona Attorney General's Office, Tucson By Laura J. Huff 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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 Scott McCoy, Judge
AFFIRMED
COUNSEL Law Office of H. Clark Jones LLC, Mesa
By H. Clark Jones
Counsel for Appellant Arizona Attorney General's Office, Tucson
By Laura J. Huff
Counsel for Appellee Department of Child Safety
MEMORANDUM DECISION
Judge Randall M. Howe delivered the decision of the Court, in which Presiding Judge Paul J. McMurdie and Judge Jennifer B. Campbell joined. HOWE, Judge:
¶1 Ashley C. ("Mother") appeals the juvenile court's order terminating her parental rights to her child, S.M., on the grounds of mental deficiency and prior termination. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 We view the facts in the light most favorable to sustaining the juvenile court's order. Demetrius L. v. Joshlynn F., 239 Ariz. 1, 2 ¶ 2 (2016). Between 2011 and 2015, Mother gave birth to four children, each of whom was adjudicated dependent. During those dependencies, the Department provided Mother with reunification services, including two psychological evaluations. The psychologist that conducted the evaluations diagnosed Mother with "mild mental retardation[]" and found that her prognosis for independent parenting was poor. The psychologist also found that a child in her care would be at "significant risk of neglect" and that no additional mental-health services could remedy her mental deficiencies.
¶3 The Department also provided Mother with a psychiatric evaluation, parent-aide services, individual counseling, marital counseling, and habilitation training through the Department of Developmental Disabilities ("DDD"). Mother completed the services but was unable to make the necessary behavioral changes to parent the children safely. The juvenile court consequently terminated Mother's parental rights to two of her children—J.M. and L.M.—under the grounds of mental deficiency and 15 months' in an out-of-home placement. The court also terminated Mother's parental rights in August 2015 and March 2016 to her two other children—A.M. and S.R.M.—under the grounds of mental deficiency and prior termination within two years.
¶4 Mother gave birth to S.M. in February 2017. The Department took custody of S.M. two days later based on the prior terminations and Mother's mental-health issues. It then placed S.M. in foster care with a family that was recommended by the adoptive placement of S.M.'s four siblings.
¶5 The court found S.M. dependent as to Mother in May 2017 and set concurrent goals of family reunification and termination and adoption. Under the case plan, the Department again provided Mother with parent-aide services, case-aide services, DDD habilitation services, and supervised visits. The Department also scheduled Mother for a psychological evaluation in September 2017, but she failed to attend the appointment. The Department rescheduled the evaluation and attempted to make accommodations for Mother by providing her with transportation services. Nevertheless, Mother canceled transportation to the appointment because she had other things to do.
¶6 The Department was able to provide Mother a third psychological evaluation referral, which she completed in December 2017. The evaluating psychologist determined that Mother's intellectual deficiencies would prevent her from raising a child independently and that those deficiencies could not reasonably be expected to change even with the provision of additional mental-health services. He further opined that reunification was not feasible and that any services aimed at reunification would likely be futile. He recommended that the Department consider permanency plans other than reunification. Notwithstanding his prognoses, he still indicated that Mother might benefit from individual counseling. Accordingly, the Department provided Mother with individual counseling which, pursuant to the psychologist's recommendation, focused on teaching Mother "to assert herself" but "was not aimed at facilitating reunification."
¶7 The Department also provided Mother supervised visits with S.M. through case-aide and parent-aide services. During the visits, the parent aide was concerned about Mother's ability to parent, explaining that Mother did not properly supervise S.M., put her to sleep, or change her diaper. Furthermore, despite these services, Mother continually exhibited problems retaining basic information. She needed assistance with rudimentary child-rearing practices, was easily distracted, and constantly required redirection. The parent-aide referral was closed unsuccessfully because Mother was unable to make progress towards her goals. The parent aide concluded that Mother would not benefit from more parent-aide services and referred her for supervised visits with a case aide.
¶8 In February 2018, the Department petitioned to terminate the parent-child relationship between Mother and S.M., based on Mother's mental deficiency and her prior terminations. The petition noted that Mother had had her parental rights terminated to four children, in part because of mental-health issues.
¶9 In June 2018, the juvenile court held a contested termination trial. At trial, Mother's case manager testified that Mother was offered visitation throughout the entirety of the case, but she "was not fully involved" and missed many visits. The case manager testified further that terminating Mother's parental rights was in S.M.'s best interests because it would provide her with permanency and ensure that her bond with her placement remained intact. He also stated that S.M. was "easily adoptable" and that her placement was willing to adopt her. Moreover, he noted that the placement diligently tended to her needs, knew her siblings' adoptive placement, and ensured that she maintained a relationship with the siblings. Last, he testified that Mother's retention of her parental rights would be detrimental to S.M. because "[s]he would lose out on the immediate permanency" and "[might] not be able to . . . have a healthy childhood."
¶10 After the three-day trial, the juvenile court terminated Mother's parental rights on the grounds alleged. The court first determined that termination existed under A.R.S. § 8-533(B)(3), finding that Mother was unable to discharge her parental responsibilities because of a mental deficiency and that reasonable grounds existed to believe her condition would persist for a prolonged and indeterminate period. The court then determined that termination also existed under A.R.S. § 8-533(B)(10), finding that Mother's parental rights to J.M., L.M., A.M., and S.R.M. were terminated within the preceding two years and that the underlying cause for those terminations was her mental deficiency. Finally, the court determined that termination was in S.M.'s best interests because she was adoptable and residing in an adoptive placement that met her needs and could provide her with permanency and stability. Mother timely appealed.
DISCUSSION
¶11 Mother argues that the Department failed to make diligent efforts to provide appropriate reunification services and that insufficient evidence supports the juvenile court's finding that termination was in S.M.'s best interests. We review a juvenile court's termination order for an abuse of discretion. E.R. v. Dep't of Child Safety, 237 Ariz. 56, 58 ¶ 9 (App. 2015). Additionally, we will affirm an order terminating parental rights so long as reasonable evidence supports the order. Jordan C. v. Ariz. Dep't of Econ. Sec., 223 Ariz. 86, 93 ¶ 18 (App. 2009). To terminate parental rights, the juvenile court must find, by clear and convincing evidence, at least one of the statutory grounds for termination and find by a preponderance of the evidence that termination is in the child's best interests. Jennifer S. v. Dep't of Child Safety, 240 Ariz. 282, 286 ¶ 15 (App. 2016).
1. Statutory Grounds for Termination
¶12 Mother's only challenge to the juvenile court's findings regarding the statutory grounds of mental deficiency and prior termination within two years is that the Department did not make diligent efforts to provide appropriate reunification services. On the grounds asserted here, the Department must make reasonable efforts to preserve the family as a necessary predicate to terminating parental rights. Mary Ellen C. v. Ariz. Dep't of Econ. Sec., 193 Ariz. 185, 192 ¶ 32 (App. 1999). Although the Department must provide a parent with the opportunity to participate in services designed to help her become a better parent, it is not required to provide every conceivable service or ensure that a parent engages in the offered services. Maricopa Cty. Juv. Action No. JS-501904, 180 Ariz. 348, 353 (App. 1994). Additionally, the Department is not obligated to undertake futile measures. Christina G. v. Ariz. Dep't of Econ. Sec., 227 Ariz. 231, 235 ¶ 15 (App. 2011).
¶13 Sufficient evidence supports the finding that the Department made diligent efforts to provide Mother with appropriate reunification services. The record shows that the Department provided Mother with numerous reunification services, including case-aide visits, parent-aide services, DDD habilitation services, and a psychological evaluation. The Department also provided her with transportation to and from her service appointments. Notwithstanding the Department's diligent attempts, Mother failed to attend two psychological-evaluation appointments and missed many scheduled visits. Moreover, Mother's December 2017 evaluation revealed that no mental-health services could reasonably have been expected to remedy her intellectual deficiencies or parenting shortfalls. Indeed, the record shows that services beyond those offered to Mother would be futile because Mother continued to display many of the same issues with supervising and caring for S.M. throughout the dependency. The court thus did not err in finding that the Department provided adequate reunification services to Mother.
¶14 Mother asserts that the Department had provided an "essential service far too late" in the reunification process, primarily because "the Department did not succeed in providing Mother with an updated psychological evaluation until December 2017." But the record reflects that Mother caused a four-month delay to her psychological evaluation. The Department scheduled Mother an appointment for an evaluation in September and October 2017. Nevertheless, she failed to attend both appointments, despite the transportation accommodations the Department had provided her.
2. Best Interests
¶15 Mother also argues that insufficient evidence supports the juvenile court's ruling that terminating her parental rights was in S.M.'s best interests. Terminating parental rights is in a child's best interests if the child will benefit from the termination or will be harmed if the relationship continues. Shawanee S. v. Dep't of Econ. Sec., 234 Ariz. 174, 179 ¶ 20 (App. 2014). Relevant factors in this determination include whether the current placement is meeting the child's needs, an adoption plan is in place, and the child is adoptable. Demetrius L., 239 Ariz. at 3-4 ¶ 12. Moreover, "[i]n a best interests inquiry . . . we can presume that the interest of the parent and child diverge because the court has already found the existence of one of the statutory grounds for termination by clear and convincing evidence." Kent K. v. Bobby M, 210 Ariz. 279, 286 ¶ 35 (2005).
¶16 Mother's argument focuses on her bond with S.M. But the court must consider other factors as well in determining a child's best interests. See Dominique M. v. Dep't of Child Safety, 240 Ariz. 96, 99 ¶ 12 (App. 2016). Here, the juvenile court found that terminating Mother's parental rights would benefit the child because it would further the plan of adoption and provide S.M. with stability and permanency. It also found that S.M. was adoptable and in an adoptive placement that met her needs. Furthermore, a case manager testified that S.M. was bonded to her placement. Thus, sufficient evidence supports the court's finding that terminating Mother's parental rights was in S.M.'s best interests.
¶17 Mother nevertheless suggests that, in light of S.M.'s placement with a non-relative, the court erred in finding that termination would provide S.M. with permanency. But Mother provides no authority to support this claim. Accordingly, Mother has waived the argument that the juvenile court erred by terminating her parental rights on that basis. See ARCAP 13(a)(7)(A) (stating that opening briefs must contain an "[a]ppellant's contentions concerning each issue presented for review, with supporting reasons for each contention, and with citations of legal authorities and appropriate references to the portions of the record on which the appellant relies"); see also Ness v. W. Sec. Life Ins. Co., 174 Ariz. 497, 503 (App. 1992) ("Arguments unsupported by any authority will not be considered on appeal.").
CONCLUSION
¶18 For the foregoing reasons, we affirm.