Opinion
No. 2 CA-JV 2014-0042
10-15-2014
JACQUELINE K., Appellant, v. ARIZONA DEPARTMENT OF CHILD SAFETY AND A.K., Appellee.
COUNSEL Peter G. Schmerl, P.C., Tucson By Peter G. Schmerl Counsel for Appellant Thomas C. Horne, Arizona Attorney General By Cathleen E. Fuller, Assistant Attorney General, Tucson Counsel for Appellee Department of Child Safety Pima County Office of Children's Counsel By Jillian F. Aja, Assistant Chief Counsel, Tucson Counsel for Appellee A.K.
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Civ. App. P. 28(c); Ariz. R. P. Juv. Ct. 103(G).
Appeal from the Superior Court in Pima County
No. JD198728
The Honorable Catherine M. Woods, Judge
AFFIRMED
COUNSEL Peter G. Schmerl, P.C., Tucson
By Peter G. Schmerl
Counsel for Appellant
Thomas C. Horne, Arizona Attorney General
By Cathleen E. Fuller, Assistant Attorney General, Tucson
Counsel for Appellee Department of Child Safety
Pima County Office of Children's Counsel
By Jillian F. Aja, Assistant Chief Counsel, Tucson
Counsel for Appellee A.K.
MEMORANDUM DECISION
Judge Howard authored the decision of the Court, in which
Presiding Judge Kelly and Judge Vásquez concurred.
HOWARD, Judge:
¶1 Jacqueline K. appeals from the juvenile court's order terminating her parental rights to her daughter, A.K., born in October 2010, on grounds of neglect pursuant to A.R.S. § 8-533(B)(2), mental illness pursuant to § 8-533(B)(3), and court-ordered time in care pursuant to § 8-533(B)(8)(c). Jacqueline argues that insufficient evidence supported the court's finding of neglect, that her mental illness had stabilized and did not inhibit her ability to parent, and that the Department of Child Safety (DCS) had provided inadequate services. We affirm.
The juvenile court also severed the parental rights of A.K.'s father. He is not a party to this appeal.
The Department of Child Safety is substituted for the Arizona Department of Economic Security (ADES) in this decision. See 2014 Ariz. Sess. Laws 2nd Spec. Sess., ch. 1, § 20. For simplicity, our references to DCS in this decision encompass ADES, which formerly administered child welfare and placement services under title 8, and Child Protective Services, formerly a division of ADES.
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¶2 A juvenile court may terminate a parent's rights if it finds clear and convincing evidence of one of the statutory grounds for severance and finds by a preponderance of the evidence that termination of the parent's rights is in the child's best interests. A.R.S. §§ 8-533(5), 8-537(B); Kent K. v. Bobby M., 210 Ariz. 279, ¶ 41, 110 P.3d 1013, 1022 (2005). "[W]e view the evidence and reasonable inferences to be drawn from it in the light most favorable to sustaining the [juvenile] court's decision, and we will affirm a termination order that is supported by reasonable evidence." Jordan C. v. Ariz. Dep't of Econ. Sec., 223 Ariz. 86, ¶ 18, 219 P.3d 296, 303 (App. 2009) (citations omitted). That is, we will not reverse a termination order for insufficient evidence unless, as a matter of law, no reasonable fact-finder could have found the evidence satisfied the applicable burden of proof. See Denise R. v. Ariz. Dep't of Econ. Sec., 221 Ariz. 92, ¶ 10, 210 P .3d 1263, 1266 (App. 2009).
¶3 A.K. was removed from Jacqueline's custody in July 2011, when Jacqueline was checked into a hospital for psychiatric treatment. DCS then filed a dependency petition alleging Jacqueline was in need of inpatient psychiatric treatment. A.K. was adjudicated dependent in November 2011. In September 2011, Jacqueline resumed parent-child relationship therapy that she had begun before A.K. had been removed from her custody. She also began participating in parenting classes, a domestic-violence support group, and individual therapy. During this time, she was undergoing court-ordered treatment for post-traumatic stress disorder (PTSD) and bipolar disorder. Although she made progress, and her relationship with A.K. improved, she continued to have limited insight into her ability to address her mental health needs and plan for A.K.'s care if she was unable to do so due to her mental health concerns.
¶4 However, based on Jacqueline's continuing progress, A.K. was returned to her custody in November 2012. Near that time, however, she began missing parent-child therapy sessions and, in January 2013, told her therapist she no longer wanted to attend therapy, later informing her case manager "she had outgrown her therapist" and wanted to change to a different therapist. Before this time, her parent-child therapist had noticed an increase in her mental-health symptoms. Additionally, Jacqueline failed to communicate with her case manager about her changes of address, moving several times without informing DCS. DCS again removed A.K. from Jacqueline's custody in late January 2013. Approximately one month later, Jacqueline was admitted to an inpatient behavioral health hospital; she was released in April. In November 2013, Jacqueline was referred for resumed child-parent therapy but, after conducting a parent-child assessment, the therapist did not recommend further therapy but instead recommended severance and adoption.
¶5 In April 2013, the juvenile court changed the case plan to severance and adoption, and DCS filed a motion for termination of Jacqueline's parental rights on the grounds of neglect, mental illness, and time-in-care grounds. After a nine-day contested severance hearing ending in January 2014, the court found that severance was warranted on all three grounds and was in A.K.'s best interests. This appeal followed.
¶6 To terminate parental rights based on § 8-533(B)(8)(c), DCS was required to prove that A.K. had "been in an out-of-home placement for a cumulative total period of fifteen months or longer pursuant to court order . . . , the parent has been unable to remedy the circumstances that cause the child to be in an out-of-home placement and there is a substantial likelihood that the parent will not be capable of exercising proper and effective parental care and control in the near future." Additionally, DCS must show it "made a diligent effort to provide appropriate reunification services." § 8-533(B)(8). On appeal, Jacqueline asserts only that DCS failed to meet the diligent efforts requirement, arguing the services provided were insufficient because DCS refused her requests for a new therapist and for permission "to restart parent-child relationship therapy in April/May 2013."
¶7 To provide sufficient services, DCS must offer parents "the time and opportunity to participate in programs designed to help [them] become . . . effective parent[s]." In re Maricopa Cnty. Juv. Action No. JS-501904, 180 Ariz. 348, 353, 884 P.2d 234, 239 (App. 1994). However, DCS is not required to provide every conceivable service, and a parent's failure or refusal to participate in the services offered or recommended by ADES does not foreclose termination of the parent's parental rights. Id. Additionally, DCS need not undertake futile rehabilitative measures, but only those that offer a reasonable possibility of success. Mary Ellen C. v. Ariz. Dep't Econ. Sec., 193 Ariz. 185, ¶ 1, 971 P.2d 1046, 1048 (App. 1999).
¶8 DCS provided Jacqueline with parent-child therapy for nearly eighteen months. She chose to terminate the service, claiming she needed a different therapist because the therapy had become "repetitive and redundant." Jacqueline cites no authority suggesting DCS is required to provide a new therapist merely because the parent believes the therapy is no longer effective. And, in any event, DCS again referred Jacqueline for parent-child therapy a few months after Jacqueline had terminated it. But, after assessing Jacqueline's history in therapy and her interactions with A.K., the therapist determined that further treatment would not be beneficial. And a clinical social worker suggested that parent-child therapy would not benefit Jacqueline because she had not successfully addressed the underlying developmental trauma that contributed to her post-traumatic stress disorder. As we noted above, DCS is not required to provide futile services, and Jacqueline has identified nothing in the record contradicting DCS's conclusion that further parent-child therapy would not have been beneficial. Nor does she otherwise assert the services provided by DCS were insufficient.
¶9 Because we have rejected Jacqueline's argument that the juvenile court erred by terminating her parental rights on time-in-care grounds, we need not address her arguments that the court erred in finding termination also was warranted on the grounds of neglect and mental illness. See Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, ¶ 3, 53 P.3d 203, 205 (App. 2002) (appellate court need not consider challenge to alternate grounds for severance if evidence supports any one ground).
¶10 Jacqueline further asserts the juvenile court erred in finding termination was in A.K.'s best interests because "there was no evidence of an actual plan for an adoptive home" and "a placement fight was about to ensue." However, she cites no authority in support of this argument, much less authority supporting the notion that severance can only be in a child's best interest if there is an adoptive placement available—an argument contrary to established law. Maricopa County Juv. Action No. JS-501904, 180 Ariz. at 352, 884 P.2d at 238 ("[A]DES need not show that it has a specific adoption plan before terminating a parent's rights; [A]DES must show that the children are adoptable.") Accordingly, we do not address this argument further. See Polanco v. Indus. Comm'n, 214 Ariz. 489, n.2, 154 P.3d 391, 393 n.2 (App. 2007) (undeveloped and unsupported argument waived on appeal).
¶11 We therefore affirm the juvenile court's order terminating Jacqueline's parental rights.