Opinion
1 CA-JV 12-0029
02-05-2013
DARRELL S., LEANNA S., Appellants, v. ARIZONA DEPARTMENT OF ECONOMIC SECURITY, J.S., Appellees.
Thomas C. Horne, Attorney General By Michelle R. Nimmo, Assistant Attorney General Attorneys for Appellee ADES Jennifer Perkowski, Attorney at Law By Jennifer Perkowski Attorneys for Appellant/Father Darrell S. Denise L. Carroll, Esq. By Denise L. Carroll Attorney for Appellant/Mother Leanna S.
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY
NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
(Not for Publication -
Rule 103(G), Ariz.R.P. Juv.
Ct.; Rule 28 ARCAP)
Appeal from the Superior Court in Maricopa County
Cause Nos. JD17200
JS9877
The Honorable Margaret R. Mahoney, Judge
AFFIRMED
Thomas C. Horne, Attorney General
By Michelle R. Nimmo, Assistant Attorney General
Attorneys for Appellee ADES
Tucson
Jennifer Perkowski, Attorney at Law
By Jennifer Perkowski
Attorneys for Appellant/Father Darrell S.
Mesa
Denise L. Carroll, Esq.
By Denise L. Carroll
Attorney for Appellant/Mother Leanna S.
Scottsdale
GOULD, Judge ¶1 Darrel S. ("Father") and Leanna S. ("Mother") appeal the termination of their parental rights to their child, J.S. For the following reasons, we affirm.
We have amended the caption to delete the name of the minor child.
Facts and Procedural Background
¶2 After J.S.'s older sister, C.R., was removed from Mother's care, a pediatrician who evaluated C.R. expressed concern for J.S.'s welfare. A psychologist who evaluated Mother in connection with C.R.'s case likewise expressed concern for J.S.'s safety. As a result, the juvenile court ordered an investigation into J.S.'s welfare in May 2010. ¶3 On May 21, 2010, J.S. confided to her caseworker that when she got in trouble, both parents would spank her with a belt. She also was "constantly pulling at her underwear," and complained that it "hurt." ADES took temporary custody of J.S. and filed a dependency petition alleging that Father and Mother had physically abused her. ¶4 During one of Mother's subsequent supervised visits with J.S., J.S. displayed "extraordinary fear" when she was told that Father was coming soon and realized that Father would see her wearing flip flops. She had an emotional outburst and repeatedly stated that she needed to throw away the flip flops. Mother calmed her down by telling her that Father was not coming that day and that she would bring J.S. some other shoes. ¶5 After the visit, J.S.'s foster mother reported that J.S. had tantrums all weekend involving "thrashing, kicking, hitting, and spitting." She also reported that J.S. kept repeating that Mother and Father were going to be "so mad" that she was wearing flip flops. Foster mother later observed J.S. masturbating in her bedroom after one of these tantrums. ¶6 In August 2010, foster mother reported that J.S. became emotionally unstable after each visit with her parents. J.S. would also increase her masturbatory behavior by touching, pulling, picking, and rubbing her vaginal area to the point that the area became sore and red. She told foster mom that her "other mom" (meaning Mother) would rub the area with a stuffed rabbit and a hard toy, which would cause her pain and make her cry. She also reported that Father had seen what happened, "counted to five, and made [Mother] wash the toy because it was dirty." While in foster care, J.S. attempted to place a plastic bowl and even rocks in her own vagina. She also became very aggressive at school after the visits, punching and kicking classmates as well as her teacher. ¶7 In October 2010, while being evaluated by a psychologist (Dr. Moe), J.S. stated that Mother had touched her vaginal area with her hand and with a toy animal. She explained that she did not want to live with Mother and Father because they spanked her. She was diagnosed with posttraumatic stress disorder, sexual abuse, neglect, a history of pinworms and vaginal irritation, and psychosocial stressors. The psychologist reported that she was continuing to adapt to foster care but had "major negative reactions following visitation with birth parents." ¶8 C.R. also reported to Dr. Moe that Mother and Father would often hit J.S. and would use an incense burner or their hands to spank her. When J.S. would cry, they would hold their hands over her mouth to stop the crying and screaming. ¶9 J.S. disclosed several events and stories of abuse during her time in therapy. To help J.S. with her anxiety, her therapist, Laura Gonzales, wrote a note to J.S. stating that her "team of helpers" had decided that she would not go on any more parental visits that month. J.S. wanted to sign her own name to the note (and did so), kept the note where she could see it, and asked her foster parents to read it to her several times. ¶10 At trial, Dr. Moe testified that it was his clear impression that J.S. had been abused in the care of Mother and Father and that she had suffered serious emotional injury as a result of this abuse. ¶11 After trial, the court found that Mother and Father had neglected and willfully abused J.S.; their parental rights were terminated. Both parents timely appeal.
Discussion
¶12 "We view the evidence in a severance case in the light most favorable to sustaining the juvenile court's findings." Christina G. v. Ariz. Dep't of Econ. Sec., 227 Ariz. 231, 234, ¶ 13, 256 P.3d 628, 631 (App. 2011). The juvenile court is in the best position to weigh the evidence, observe the parties, judge the credibility of witnesses, and make appropriate findings; we will only reject the court's findings if no reasonable evidence supports them. Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, 280, ¶ 4, 53 P.3d 203, 205 (App. 2002). ¶13 We address each parent's arguments in turn.
I. Father
A. Sufficiency of the Evidence¶14 Father argues that there is no evidence that he physically or sexually abused J.S. He contends that her anxiety developed only after she was placed in foster care. ¶15 However, the abuse or neglect sufficient to terminate a parental relationship under A.R.S. § 8-533(B)(2) (West 2012) need not be physical injury; it includes "serious physical or emotional injury" as well as "situations in which the parent knew or reasonably should have known that a person was abusing or neglecting a child." Id.¶16 Here, there is ample evidence of J.S.'s emotional abuse by Father, including her "extraordinary fear" that Father would see her wearing flip flops, her refusal to calm down until she was told that Father would not see her wearing flip flops, and the fact that this fear lasted all weekend. J.S.'s psychologist Dr. Moe opined that J.S. had been abused in the care of Mother and Father and that for many different reasons she had suffered serious emotional injury as a result of this abuse. ¶17 Even if we were to agree with Father's premise that termination requires proof of physical or sexual abuse, the record contains evidence that Father physically abused J.S., and further, that he did nothing to stop Mother from sexually abusing her. J.S. and C.R. both reported that Father had spanked J.S. with a belt. In addition, J.S. reported that Father had witnessed Mother sexually abusing her but had done nothing but ask that the toy Mother had been using be cleaned because it was "dirty." ¶18 Contrary to Father's assertion that J.S.'s sister coached her to report abuse, J.S. reported the abuse on the day of her removal before having the opportunity to interact with her sister, as the juvenile court correctly pointed out. The trial court's finding of willful abuse/neglect is sufficiently supported by the evidence.
B. Diligent Efforts at Reunification¶19 Father argues that ADES failed to provide diligent efforts at reunification with this daughter; however, there is no requirement that such services be provided in terminations based on willful abuse or neglect pursuant to A.R.S. § 8-533(B)(2). ¶20 There are two possible sources for such a requirement; the statute and case law. However, neither support Father's argument. The plain language of the statute supports an inference that diligent efforts at reunification are required when the relationship is being terminated under subsection (B)(8) (time-in-care) or (B)(11) (repeated out-of-home placements). Both subsections specifically require a diligent efforts finding. A.R.S. § 8-533(B)(8) ("that the agency responsible for the care of the child has made a diligent effort to provide appropriate reunification services"); 533(B)(11)(b) ("The agency responsible for the care of the child made diligent efforts to provide appropriate reunification services."). Subsection (D) confirms this interpretation by explaining that "[i]n considering the grounds for termination prescribed in subsection B, paragraph 8 or 11 of this section, the court shall consider the availability of reunification services to the parent and the participation of the parent in these services." A.R.S. § 8-533(D). Under the plain language of the statute, only subsections (B)(8) and (B)(11) require diligent efforts. ¶21 Case law has applied the requirement to subsection (B)(3) (mental illness) as well. Mary Ellen C. v. Ariz. Dep't of Econ. Sec., 193 Ariz. 185, 191, ¶¶ 30, 33, 42, 971 P.2d 1046, 1052 (App. 1999) (noting that the plain language of the statute imposes no such requirement but relying on Arizona case law to add the requirement to mental health cases under subsection (B)(3)). However, we are unaware of any case applying the diligent efforts requirement to a willful abuse/neglect (subsection (B)(2)) case, and Father cites none. ¶22 Given that Father has neither referenced such a case nor argued that willful abuse/neglect cases are analogous to mental health cases, we reject Father's argument that diligent efforts are required in terminations based on willful abuse or neglect.
C. Alleged Disclosure Violations¶23 Finally, Father argues that the agency failed to disclose certain documents that he contends "could have changed the Court's mind at trial." However, Father fails to identify or describe the documents or explain how they would have affected the outcome of the case. Without more detail, we cannot meaningfully address these arguments. See State v.Carver, 160 Ariz. 167, 175, 771 P.2d 1382, 1390 (1989) (opening briefs must present significant arguments, setting forth appellant's position on issues on appeal, and failure to argue a claim usually constitutes waiver and abandonment). ¶24 In addition, the one detail Father does provide about the documents -- that they were attached to Mother's Rule 60 Motion -- makes clear that they are not properly the subject of this appeal. Mother's Rule 60 motion was not filed until June 28, 2012, several months after Father's notice of appeal was filed on February 14, 2012. Thus, any improper disclosure would be properly analyzed in a post-trial motion, and any disagreement with the trial court's ruling on a post-trial motion would itself be the subject of a separate appeal.See China Doll Rest., Inc. v. Schweiger, 119 Ariz. 315, 316-17, 580 P.2d 776, 777-78 (App. 1978) (explaining that we have no jurisdiction to review acts occurring after a notice of appeal is filed).
It appears that Father has separately appealed from the court's order denying Mother's Rule 60(c)(5), (6) motion for relief in Darrell S. v. Arizona Department of Economic Security, Maricopa County case number JV 12-0255, filed on November 16, 2012.
II. Mother
¶25 Mother contends that (1) certain records were not timely disclosed by ADES, (2) that the State failed to prove by clear and convincing evidence that the child was subjected to physical and sexual abuse warranting severance, and (3) that it was not in J.S.'s best interests to sever the relationship.
A. Alleged Disclosure Violations¶26 Mother argues that she was denied a fair trial because ADES failed "to provide documentation to its own experts[,]" which she alleges caused them to "misevaluate the case and provide false testimony to the court." However, ADES had no duty to disclose information to its own experts; its duty was to disclose information to the parties. Ariz. R.P. Juv. Ct 44(B) (explaining that the disclosure rules apply to the parties). If ADES's experts were not provided with certain information, Mother was free to impeach their testimony based on their lack of knowledge regarding the omitted information. ¶27 Most of Mother's objections to the alleged disclosure violations that the State failed to provide to her relate to information about C.R.'s medical records. However, the termination of Mother's parental rights with respect to J.S. was not based on a finding that Mother "overmedicalized" C.R., or that Mother suffered from mental illness, but on the fact that there was an abundance of evidence that J.S. had been physically, sexually, and emotionally abused and/or neglected. Thus, even assuming for the sake of argument that the documents were untimely disclosed, because they relate to C.R.'s welfare (not J.S.'s), this error would be immaterial to the outcome of the termination of parental rights to J.S. ¶28 Moreover, upon close examination, it appears Mother's counsel failed to object to the information Mother's counsel claimed not to have previously received, waiving any error. Rhue v. Dawson, 173 Ariz. 220, 230, 841 P.2d 215, 225 (App. 1992) ("An objection to the admission of evidence raised for the first time on appeal is deemed to be waived."). For example, when Dr. Thal (the State's psychiatrist) referred to a copy of Dr. DiBacco's initial consultation, Mother's counsel made no objection, contrary to her claim that her counsel "strenuously objected." Similarly, when Dr. Coffman testified regarding a letter from Dr. Rekate, instead of objecting, Mother's counsel stated that he "ha[d] no objection to the exhibit" but merely asked that a copy be provided to him. ¶29 With regard to the allegedly missing records that were provided to Dr. Bursch, Mother's counsel simply delayed their admission until the records were made complete; he then stipulated to the admission of all four exhibits, Exhs. 20, 21, 22, and 23. Having stipulated to the admission of these exhibits below, Mother cannot argue that these documents were "hidden" from her. Moreover, the fact that these exhibits were initially incomplete is not grounds for objection on appeal given that the parties had generally agreed that any incomplete portions of these documents would also be admitted in evidence. ¶30 Finally, Mother contends that the State failed to timely disclose the police reports it used in attempting to impeach her, Exhs. 91, 92, and 93. However, the court granted Mother's motion to strike these exhibits, rendering any error harmless.
B. Sufficiency of the Evidence¶31 Mother contends that there was insufficient evidence to support the court's finding that J.S. was abused by Mother. Mother's primary contention is that in reaching its decision, the court disregarded evidence allegedly showing that C.R. had manipulated J.S. into making false claims of abuse against Mother. ¶32 However, Mother's arguments are not borne out by the evidence, which clearly supports the court's finding that Mother willfully abused J.S. On the day she was removed, prior to interacting with C.R. (who had previously been placed in foster care), J.S. reported that Mother would spank her with a belt when she got in trouble. After a visit with Mother, J.S.'s foster mother reported that J.S. had tantrums all weekend and was "thrashing, kicking, hitting, and spitting." J.S. told foster mom that her "other mom" (meaning Mother) would rub J.S.'s vaginal area with a stuffed rabbit and a hard toy, which would cause her pain and make her cry. In October 2010, while being evaluated by Dr. Moe, J.S. stated that Mother had touched her vaginal area with her hand and with a toy animal. She also stated that she did not want to live with Mother because Mother spanked her. J.S. disclosed several other stories of abuse during her time in therapy, leading Dr. Moe to testify at trial that it was his clear impression that J.S. had been abused in the care of Mother and that she had suffered serious emotional injury as a result of this abuse. ¶33 All of this evidence supports the court's finding. While Mother, Father, and Cordell (Mother's adult son) may have testified to the contrary, we do not second-guess the trial court's resolution of mere conflicts in the evidence.See In re Estate of Pouser, 193 Ariz. 574, 580, 975 P.2d 704, 711 (1999) (explaining that the presence of conflicting evidence does not render a court's decision clearly erroneous).
Mother claims that "[t]he Court never took into account that [C.R.'s] statements were of recent fabrication and invented after pressure from her therapists to 'rethink past events . . . entertaining an alternative story.'" This statement strongly implies that C.R. admitted to having made up the allegations of abuse. However, the citation provided does not support such a conclusion. Exh. 80 at 000150 does not purport to document anything that C.R. said, but rather contains case notes documenting a telephone conversation between one of C.R.'s therapists and a consulting therapist from UCLA. The documenting therapist explains that during the conversation, either she or the other therapist "[s]uggested integration of old medical records into treatment, which may allow [client C.R.] to re-think past events, entertaining an alternate story." However, Mother does not provide any evidence that such a suggestion was actually made to C.R., or that she ever reported the abuse based on such a suggestion.
Contrary to Mother's assertion, she was not prejudiced by her inability to cross-examine C.R. because Mother could have called C.R. as a witness herself but made no attempt to do so.
C. Best Interests¶34 Instead of explaining how it would be contrary to J.S.'s best interests for her relationship with Mother to be terminated, Mother argues (again) that J.S. and C.R.'s testimony was not credible and that the "court should have focused on whether the evidence presented to J.S.'s health and well-being was credible." According to Mother, J.S. had no signs of anxiety or abuse until she was removed from Mother's home, and that prior to her removal, J.S. was "playful and happy." Mother contends that J.S. "continually deteriorated" after her removal "as a result of lies and inserted memories by her sister, and possibly her [f]oster [m]other." ¶35 However, the juvenile court rejected Mother's theory of the case because it found J.S., C.R., and their therapists more credible than Mother, Father, and Cordell. The court noted that none of the "hallmarks of coaching" were present because J.S. and C.R.'s accounts of the abuse were not identical, C.R.'s details were careful and concrete, and J.S.'s reports remained consistent over time, events, people, and modalities. As explained above, given that the juvenile court is in the best position to weigh the evidence, observe the parties, and judge the credibility of witnesses, we view the facts and all reasonable inferences in the light most favorable to affirming the juvenile court's findings. Christina G., 227 Ariz. at 234, ¶ 13, 256 P.3d at 631. We will reject the court's findings only if no reasonable evidence exists to support them. Jesus M., 203 Ariz. at 280, ¶ 4, 53 P.3d at 205. ¶36 Here, an abundance of evidence supports the conclusion that J.S. was willfully abused and neglected by Mother. We agree with the trial court that "[i]t is contrary to the best interests of J.S. to return her to parents who have harmed her and placed her at such a risk of harm," given that "J.S. is safe, healthy and happy in her foster placement," that "[a]ll of her needs are being met by the foster parents," and that the foster parents "are potential adoptive parents." See Maricopa Cnty. Juv. Action No. JS-6831, 155 Ariz. 556, 559, 748 P.2d 785, 788 (App. 1988) (explaining that "[i]n most cases, the presence of a statutory ground [for severance] will have a negative effect on the [child]"). Accordingly, we reject this argument as well.
See section II.B, above.
Conclusion
¶37 For the reasons above, we affirm the juvenile court's order severing Mother and Father's parental rights to their child J.S.
_______________
ANDREW W. GOULD, Judge
CONCURRING: _______________
PATRICIA K. NORRIS, Presiding Judge
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RANDALL M. HOWE, Judge