Opinion
No. 1 CA-JV 20-0192
11-17-2020
INIQUE A., Appellant, v. DEPARTMENT OF CHILD SAFETY, N.R., A.T., Z.T., H.T., and D.R. Appellees.
COUNSEL Vierling Law Offices, Phoenix By Thomas A. Vierling Counsel for Appellant Arizona Attorney General's Office, Tucson By Autumn L. Spritzer 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. JD36344
The Honorable Christopher Whitten, Judge
AFFIRMED
COUNSEL Vierling Law Offices, Phoenix
By Thomas A. Vierling
Counsel for Appellant Arizona Attorney General's Office, Tucson
By Autumn L. Spritzer
Counsel for Appellee Department of Child Safety
MEMORANDUM DECISION
Judge Paul J. McMurdie delivered the Court's decision, in which Presiding Judge James B. Morse Jr. and Judge Maria Elena Cruz joined. McMURDIE, Judge:
¶1 Inique A. ("Mother") appeals the termination of her parental rights to her children, Nathan, born in 2013, Mason, born in 2015, Mary, born in 2016, Hector, born in 2017, and Darrel, born in 2019 (collectively, the "Children"). For the following reasons, we affirm.
To protect the identity of the Children, we refer to them by pseudonyms. --------
FACTS AND PROCEDURAL BACKGROUND
¶2 In June 2018, the Arizona Department of Child Safety ("DCS") contacted Mother after learning that Mary had not received treatment for a burn on her hand. Shortly thereafter, police began investigating whether Mary had been the victim of physical abuse.
¶3 In August 2018, DCS again spoke with Mother about Mary's burn. During this conversation, Mother indicated that Darrius R., the purported father of Nathan and Darrel, had burned Mary's hand. Darrius R. was living with the family at the time of Mary's injury. Mother previously reported that she had been the victim of several domestic violence incidents committed both by Darrius R. and by Harvey T., the father of Mason and Mary and purported father of Hector. Mother had reported previously that Nathan's eye had become swollen due to an injury caused by Darrius R. Shortly after Mary's injury was reported to DCS, Darrius R. moved out of the home at Mother's request. As a result of DCS's visit, Mother agreed to a safety plan with the Children's maternal great grandmother providing supervision.
¶4 On September 7, 2018, DCS learned that Mother had left the maternal great grandmother's home with the Children, violating the safety plan. In response to Mother's violation of the safety plan, DCS petitioned to place the Children in DCS's temporary custody to protect them from suffering abuse or neglect. The petition alleged Mother allowed the Children to be in the care of Darrius R. with knowledge of his violent tendencies. The petition also alleged that Mother had failed to address Nathan's special needs adequately. On September 18, 2018, the juvenile court placed the Children temporarily in the legal and physical custody of DCS.
¶5 After Mother's loss of custody, DCS recommended resources to Mother to ameliorate the circumstances that caused the Children to be removed. Specifically, DCS recommended that Mother: (1) work with a parent aide, (2) obtain a psychological evaluation, (3) participate in counseling with a domestic violence component, and (4) find and maintain a safe and stable living environment.
¶6 In November 2018, DCS referred Mother to counseling with a domestic violence component, and Mother completed the program in May 2019. DCS also referred Mother to a parent aide in December 2018. Mother used the resource as recommended until DCS deemed the services complete in June 2019.
¶7 Based on DCS's referral, a psychologist evaluated Mother. Following the assessment, the psychologist recommended Mother continue to participate in a counseling program with a domestic violence component. DCS did not refer Mother for additional counseling but instructed Mother to "self-refer." Mother did not participate in the additional counseling as instructed.
¶8 Darrel was born in April 2019 and placed in DCS's legal custody, but Mother's physical custody. Darrel and Mother lived with a relative who had been given Nathan's physical custody. DCS assigned a safety monitor role to this relative. In June 2019, Mother moved out of the relative's home and informed DCS she wanted Darrel to stay with the relative.
¶9 Between December 2018 and May 2019, Mother attended 27 of 28 scheduled visits with the Children under DCS's supervision. By July 2019, all five children were living with kinship placements. So, DCS shifted the responsibility of supervising Mother's visits to the kinship placement with their physical custody.
¶10 After Mother moved out of the residence where she had lived with Nathan and Darrel in June 2019, she stopped visiting the Children. In August 2019, Mother informed DCS that she was dissatisfied with the kinship placement's supervision of the visits because she was being left alone with the Children and feared the consequences of violating DCS's policy. So, DCS referred Mother to a case aide who would supervise future visits. However, between August 2019 and November 2019, Mother attended only 3 out of 21 scheduled visits; and between December 2019 and January 2020, Mother did not visit the Children.
¶11 At a hearing in February 2020, DCS moved to change the case plan from reunification to severance and adoption. After the change, Mother requested another case aide so she could re-engage in visitation. Mother missed two visits in February and March 2020. In April 2020, DCS stopped offering in-person visitation in response to the COVID-19 pandemic.
¶12 On February 13, 2020, DCS moved to terminate the parent-child relationship between Mother and the Children under the fifteen and six months' time-in-care grounds, Arizona Revised Statutes ("A.R.S.") section 8-533(B)(8)(b), (c). In its motion, DCS noted that Nathan, Mason, Mary, and Harvey had been in an out-of-home placement for at least fifteen months. DCS alleged that it had diligently provided appropriate reunification services, Mother had been unable to remedy the circumstances causing the Children to remain in its care, and there remained a substantial likelihood that Mother would be unable to exercise proper and effective parental care and control in the near future. In support, DCS claimed it had removed the Children because of Mother's "untreated mental health issues, domestic violence concerns, and life and housing instability." DCS claimed it had diligently offered Mother case-management services, case-plan staffing, individual counseling, parent-aide services, psychological evaluation, transportation, and visitation. DCS alleged that even though it had provided Mother with these services, she had not addressed the mental health and domestic violence issues that caused the Children to be removed, and Mother had stopped visiting the Children and failed to progress toward reunification for several months.
¶13 Concerning Darrel, DCS contended that the child had been in an out-of-home placement for at least six months. DCS again maintained that it had diligently provided appropriate reunification services, and Mother substantially neglected or willfully refused to remedy the circumstances that caused Darrel to be in an out-of-home placement. Specifically, DCS claimed it had offered case-management services, case-plan staffing, individual counseling, parent-aide services, psychological evaluation, transportation, and visitation. DCS alleged Mother was provided with these services but refused to participate. In support, DCS claimed that Mother voluntarily left Darrel at the residence where he had been placed in an in-home dependency. Mother did not visit the child in the three months preceding DCS's termination motion.
¶14 Following a hearing, the juvenile court terminated Mother's parental rights. The court concluded that DCS had not made diligent efforts to provide Mother with the counseling services it recommended in May 2019 but found DCS's diligence in providing other services designed to improve Mother's parenting skills was sufficient to meet the requirements of A.R.S. § 8-533(b)(8). The court further found that DCS had sufficiently proved the other required elements of A.R.S. § 8-533(B)(8)(b) and (c). Mother appealed, and we have jurisdiction under A.R.S. § 8-235(A).
DISCUSSION
¶15 On appeal, Mother argues the juvenile court erred by concluding DCS had made a diligent effort to provide her with appropriate reunification services. We view the evidence and draw all reasonable inferences from it in the light most favorable to sustaining the court's decision. Jordan C. v. ADES, 223 Ariz. 86, 93, ¶ 18 (App. 2009). We will affirm a termination order supported by reasonable evidence. Id.
¶16 DCS argues Mother waived the adequacy of DCS's reunification efforts by failing to raise the issue before the termination proceeding. See Shawanee S. v. ADES, 234 Ariz. 174, 178-79, ¶ 16 (App. 2014) (a parent who fails to timely object to the adequacy of services waives review of the issue because it "needlessly injects uncertainty and potential delay into the proceedings"); Christina G. v. ADES, 227 Ariz. 231, 235, ¶ 15, n.8 (App. 2011) (the parent had not requested additional services or raised an objection to how the court-ordered services were being provided, despite multiple opportunities to do so at various stages of the proceedings). Because we find the services provided were adequate, we need not address whether Mother waived the right to raise the issue. See Gila River Indian Cmty. v. DCS, 238 Ariz. 531, 534, ¶ 9 (App. 2015); City of Tempe v. Fleming, 168 Ariz. 454, 456 (App. 1991) (whether a litigant can raise on appeal an argument not made in the superior court is procedural, not jurisdictional, and may be suspended at the appellate court's discretion).
A. Reasonable Evidence Supports the Juvenile Court's Finding that DCS Made a Diligent Effort to Provide Reunification Services.
¶17 Before the court may terminate parental rights, DCS must establish that it made a diligent effort to provide appropriate reunification services. A.R.S. § 8-533(B)(8). "[W]hat constitutes a diligent effort will vary by case based on the family's unique circumstances." Donald W. v. DCS, 247 Ariz. 9, 23, ¶ 50 (App. 2019). Still, DCS must, at least, "identify the conditions causing the child's out-of-home placement, provide services that have a reasonable prospect of success to remedy the circumstances as they arise throughout the time-in-care period, maintain consistent contact with the parent, and make reasonable efforts to assist the parent in areas where compliance proves difficult." Id.; see also Mary Ellen C. v. ADES, 193 Ariz. 185, 192, ¶ 34 (App. 1999).
¶18 Here, the juvenile court determined DCS did not diligently provide Mother with the counseling services recommended by the psychological evaluation in May 2019. While the juvenile court expressed serious concerns about DCS's failure to provide Mother with the counseling services she needed, it ultimately concluded DCS had sufficiently proven its diligent efforts to provide other appropriate reunification services—specifically, the visitation services facilitated by a case aide.
¶19 Mother claims the outcome here is controlled by our holding in Mary Ellen C. There, we concluded that before the court could terminate a parent's rights on the statutory basis that the parent had a mental illness of prolonged and indefinite duration, the state was obliged to provide the mental health services recommended by its consulting expert. Mary Ellen C., 193 Ariz. at 188, 192, ¶¶ 12, 37.
¶20 But here, the services DCS failed to provide were not services directed at remedying the circumstance that caused the Children to be maintained out of home. The juvenile court did not base its order to terminate parental rights on Mother's failure to attend the recommended counseling. Instead, the court found DCS had been diligent in providing case-aide facilitated visitation and that "Mother seemingly ignored these services." The court explained:
The most glaring circumstance which brought these children into care, and which kept them there for such a long time, was Mother's inability to effectively supervise and manage them given her diagnosed limited capacity as described above and the special needs some of the children were exhibiting.
Although Mother was doing a fantastic job addressing this issue up until the summer of 2019, her progress sharply dropped off, to almost nil, around that time. She moved out of the in-home placement she had with [Darrel] in June or July
2019, and has never consistently seen any of the children since then.Because Mother's rights were not ultimately terminated as a result of her failure to protect the Children from the dangers of domestic violence, the court could reasonably conclude that DCS met its burden in showing it had made a diligent effort to provide appropriate reunification services even if it did not act diligently in providing Mother with other services.
¶21 Mother also argues DCS's reunification efforts were inadequate because its failure to provide the recommended counseling may have contributed to her inability to attend visitations. She maintains that had she received the counseling, she may have become "more stable, less withdrawn, less depressed, and more capable of completing services." While DCS need not provide every possible service, the requirements of A.R.S. § 8-533(B)(8) are not satisfied if DCS's lack of diligence creates the circumstances that caused a child to be maintained out of home. Donald W., 247 Ariz. at 23, ¶ 51. However, "[t]he juvenile court, as the trier of fact in a termination proceeding, is in the best position to weigh the evidence, observe the parties, judge the credibility of witnesses, and resolve disputed facts." Jordan C., 223 Ariz. at 93, ¶ 18 (quotation omitted).
¶22 Under the facts of this case, it was within the court's discretion to conclude the lack of counseling did not cause Mother to miss the scheduled visitation appointments. This appears to be the conclusion arrived at by the juvenile court, which ultimately concluded that DCS had met its burden after acknowledging that DCS did not make diligent efforts to provide Mother with the recommended counseling. We do not reweigh the evidence on review. Jordan C., 223 Ariz. at 93, ¶ 18. On this record, we conclude the termination order was supported by reasonable evidence.
CONCLUSION
¶23 We affirm the court's termination judgment.