Opinion
No. 1 CA-JV 15-0144
10-29-2015
NANCY O., Appellant, v. DEPARTMENT OF CHILD SAFETY, R.O., Appellees.
COUNSEL Czop Law Firm, PLLC, Higley By Steven Czop Counsel for Appellant Arizona Attorney General's Office, Mesa By Nicholas Chapman-Hushek Counsel for Appellees
NOTICE: NOT FOR PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED. Appeal from the Superior Court in Maricopa County
Case Nos. JS17661, JD27466
The Honorable Bradley H. Astrowsky, Judge
AFFIRMED
COUNSEL Czop Law Firm, PLLC, Higley
By Steven Czop
Counsel for Appellant
Arizona Attorney General's Office, Mesa
By Nicholas Chapman-Hushek
Counsel for Appellees
MEMORANDUM DECISION
Judge Jon W. Thompson delivered the decision of the Court, in which Presiding Judge Randall M. Howe and Judge Lawrence F. Winthrop joined. THOMPSON, Judge:
¶1 Nancy O. (mother) appeals from the juvenile court's order terminating her parental rights to R.O. (child). For the reasons that follow, we affirm.
FACTS AND PROCEDURAL HISTORY
We review the evidence and draw all reasonable inferences in the light most favorable to upholding the juvenile court's factual findings. Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, 282, ¶ 13, 53 P.3d 203, 207 (App. 2002).
¶2 Child, born in May 2012, is the biological son of mother. A month after child's birth, DCS responded to a report that mother was unable to care for child due to her mental and physical health limitations. DCS investigated, but closed the initial report after child's maternal aunt established guardianship of child.
¶3 In November 2013, DCS received a report that shortly after the guardianship was established, mother took child from the guardian's residence and was living with him at child's grandmother's house. Upon investigation, DCS discovered that the grandmother's home had no running water and unsanitary conditions due to clogged toilets and dog feces in the bedrooms. DCS observed that mother did not respond to many of child's cues, and child did not seek mother primarily for comfort. Although maternal grandmother provided for most of child's care, she suffered from a seizure condition and was not taking her prescribed medication.
¶4 DCS took child into temporary custody and filed a dependency petition, alleging that mother neglected child and was unable to parent due to mental deficiency and substance abuse. The court found child dependent and set the case plan as reunification concurrent with severance and adoption. Child was eventually again placed with his maternal aunt after her completion of a psychological and psychiatric evaluation and approved home study.
¶5 DCS began providing numerous rehabilitative services to mother, including rule out substance abuse testing, supervised visitation, transportation; parent aide services; parenting classes; psychological and psychiatric evaluations. In November 2013, mother provided a hair follicle and urine sample for substance abuse testing, both of which tested negative. Mother also completed a psychiatric evaluation with TERROS, which found her to not be in need of treatment.
¶6 In March 2014, mother completed a psychological evaluation with Dr. James Thal. Dr. Thal noted that mother had difficulty understanding instructions and had never lived independently, been employed, or driven a car. Dr. Thal administered three intellectual/academic assessment tests. Mother's scores on these tests placed her in the mentally deficient range and placed her in the first percentile of comparable adults. Mother's math and reading skills were equivalent to a mid-first grade level. Dr. Thal stated that mother's marked deficiencies rendered her unable to provide minimally adequate parenting to a young child. He also believed that these conditions would exist for a prolonged, indeterminate period, that a child in her care would be at risk for physical and emotional neglect, and that in his opinion "there are no mental health services which could be provided to [mother] with a reasonable expectancy that she would benefit to the extent that she would be able to minimally parent her child in the foreseeable future."
¶7 Notwithstanding Dr. Thal's report, DCS continued to offer services to mother, including parent aide, supervised visitation, transportation, contact information for department of developmental disabilities (DDD), and an individual counseling referral. From August 2014 through December 2014, mother did not attend seventeen of the thirty-eight visits scheduled. Although DCS reported that mother often interacted and bonded appropriately with child during the supervised visits, DCS also reported that at times mother appeared detached and would not interact with child.
¶8 DCS filed a motion to terminate the parent-child relationship, alleging that mother was unable to discharge her parental responsibilities due to mental illness and mental deficiency, and there were reasonable grounds to believe that the condition would continue for a prolonged indeterminate period. See Ariz. Rev. Stat. (A.R.S.) § 8-533(B)(3), (Supp. 2014). DCS also argued that termination would be in child's best interests. See A.R.S. § 8-533(B). After a contested severance hearing, the juvenile court found that DCS had established the grounds for severance, and that termination was in the best interest of child. Accordingly, the juvenile court terminated mother's parental rights to child.
The identity of child's father is unknown. Accordingly, the court has severed the parental rights of any man claiming paternity of child pursuant to A.R.S. 8-533(B)(1). --------
¶9 Mother timely appealed. We have jurisdiction pursuant to A.R.S. §§ 8-235, 12-120.21(A)(1), and -2101 (A)(1).
DISCUSSION
¶10 The juvenile court may terminate the parent-child relationship only upon finding that clear and convincing evidence demonstrates at least one statutory ground for severance; the court must also determine that severance is in the child's best interests. A.R.S. § 8-533(B); Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 22, 110 P.3d 1013, 1018 (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, 53 P.3d 203, 205 (App. 2002).
¶11 Termination of the parent-child relationship is justified when "the parent is unable to discharge the parental responsibilities because of mental illness [or] mental deficiency . . . and there are reasonable grounds to believe that the condition will continue for a prolonged indeterminate period." A.R.S. § 8-533(B)(3). Additionally, the state must prove that it made reasonable efforts to provide the parent with rehabilitative services in an attempt to preserve the family or that such efforts would be futile. A.R.S. § 8-533(B)(3); see also Mary Ellen C. v. Ariz. Dep't of Econ. Sec., 193 Ariz. 185, 192, ¶¶ 33-34, 971 P.2d 1046, 1053 (App. 1999).
Reasonable Efforts
¶12 Mother argues that the juvenile court erred in finding that DCS made reasonable efforts to provide appropriate services to mother to allow reunification. "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, 971 P.2d at 1047. DCS must provide a parent "with the time and opportunity to participate in programs designed to help her to become an effective parent." Christina G. v. Ariz. Dep't of Econ. Sec., 227 Ariz. 231, 235, ¶ 14, 256 P.3d 628, 632 (App. 2011) (internal citation and quotations omitted). DCS is not required, however, "to provide every conceivable service or to ensure that a parent participates in each service it offers.'" Id. at ¶ 15 (quoting Maricopa Cty. Juv. Action No. JS-501904, 180 Ariz. 348, 353, 884 P.2d 234, 239 (App. 1994)). Similarly, DCS is not required to provide services that are futile, Mary Lou C. v. Ariz. Dep't of Econ. Sec., 207 Ariz. 43, 50, ¶ 18, 83 P.3d 43, 50 (App. 2004), and need only "undertake measures with a reasonable prospect of success." Mary Ellen C., 193 Ariz. at 192, ¶ 34, 971 P.2d at 1053.
¶13 Mother argues that DCS should have placed a referral to DDD and granted mother additional services and educational programs. Without deciding whether DCS failed to make diligent efforts to provide sufficient reunification services, we conclude that the record supports the juvenile court's determination that continuation of services would have been futile. See Vanessa H. v. Ariz. Dep't of Econ. Sec., 215 Ariz. 252, 257, ¶ 22, 159 P.3d 562, 567 (App. 2007) (finding that reunification services on behalf of the mother would have been futile based on "abundant evidence showing that no amount of 'reasonable efforts' in providing services would have enabled [her] to function as a minimally adequate parent"); Pima Cnty. Severance Action No. S-2397, 161 Ariz. 574, 577, 780 P.2d 407, 410 (App. 1989) (severance on grounds of mental illness upheld where evidence established "that no other services could be offered that had not already been offered that might preserve the family").
Futility
¶14 Here, the juvenile court heard testimony that further services would be futile given mother's mental limitations. Dr. Thal testified that after his psychological evaluation of mother, he diagnosed her as mildly mentally impaired. Dr. Thal opined that mother "suffers from a mental deficiency such that she is unable to learn, retain, and implement basic parenting skills and knowledge." Dr. Thal stated that consequently, under mother's care, a child "could be neglected physically and emotionally, albeit inadvertently." Ultimately, Dr. Thal concluded that he did not believe there were any services "that would result in [mother] rising to the level of parenting confidence, even to the minimally adequate standard."
¶15 Although mother presented evidence that she was often loving and attentive towards child during the supervised visitation, the juvenile court had to resolve any conflicts in the evidence, and we decline to re-weigh that evidence. See Jesus M., 203 Ariz. at, 282, ¶ 12. Viewing the evidence in a light most favorable to sustaining the juvenile court, we conclude that the record supports the court's finding that continuation of reunification efforts would have been futile. See Vanessa H., 215 Ariz. at 256, ¶ 20, 159 P.3d at 566.
Best Interest
¶16 Mother also argues that the juvenile court erred in concluding severance was in the child's best interests. To establish that termination is in a child's best interests, the record must contain proof that the child either would benefit from the severance or be harmed if the parental relationship continues. Mary Lou C., 207 Ariz. at 50, ¶ 19, 83 P.3d at 50. Making a best interests determination requires the juvenile court to balance the fundamental liberty interest a parent has to control and care for his or her child and the child's fundamental interest in a "normal family home." Kent K., 210 Ariz. at 286, ¶ 34, 110 P.3d at 1020 (quoting Santosky v. Kramer, 455 U.S. 745, 759 (1982)). Relevant factors to the best interest determination include whether: "1) an adoptive placement is immediately available; 2) the existing placement is meeting the needs of the child; and 3) the [child is] adoptable." Raymond F. v. Ariz. Dep't of Econ. Sec., 224 Ariz. 373, 379, ¶ 30, 231 P.3d 377, 383 (App. 2010) (citations omitted).
¶17 Mother contends that the juvenile court erred in considering the adoptability of child in its best interest determination because it was unresolved as to whether child's current placement would adopt him. Mother further asserts that DCS presented no evidence that child would be harmed if mother's parental rights were not terminated. We disagree. DCS need not show that it has a specific adoption plan before terminating parent's rights; DCS must show that the child is adoptable. See Audra T. v. Ariz. Dep't of Econ. Sec., 194 Ariz. 376, 377, ¶ 5, 982 P.2d 1290, 1291 (App. 1998). Here, the DCS case manager testified that child's maternal aunt was willing to adopt him, and if she was unable to adopt him, child was adoptable. The record also shows that child was attached to his aunt, she was meeting all of child's needs, and child was progressing well in the care of his aunt.
¶18 Moreover, reasonable evidence supports the finding that child would be harmed by the continuation of the parental relationship and benefited by severance and adoption. As previously noted, Dr. Thal testified that mother's mental deficiency rendered her unable to adequately parent to a young child; that this condition would exist for a prolonged, indeterminate period; and that child was at risk for physical and emotional neglect in her care. Notwithstanding mother's acknowledged love for her son, child's need for stability and security outweighed mother's interests in trying to parent him. Therefore, the court's determination that DCS had established that severance was in child's best interests was not an abuse of discretion. See Jesus M., 203 Ariz. at 280, ¶ 4, 53 P.3d at 205 (stating that in termination proceedings, the juvenile court "is in the best position to weigh the evidence, observe the parties, judge the credibility of witnesses, and make appropriate findings").
CONCLUSION
¶19 Based on the foregoing, we affirm the juvenile court's order terminating mother's parental rights.