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Peggy K. v. Dep't of Child Safety

ARIZONA COURT OF APPEALS DIVISION ONE
Apr 23, 2019
No. 1 CA-JV 18-0346 (Ariz. Ct. App. Apr. 23, 2019)

Opinion

No. 1 CA-JV 18-0346

04-23-2019

PEGGY K., Appellant, v. DEPARTMENT OF CHILD SAFETY, R.K., Appellees.

COUNSEL Harris & Winger, PC, Flagstaff By Chad Joshua Winger 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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 Mohave County
No. B8015JD201704032
The Honorable Rick A. Williams, Judge

AFFIRMED

COUNSEL

Harris & Winger, PC, Flagstaff
By Chad Joshua Winger
Counsel for Appellant

Arizona Attorney General's Office, Tucson
By Laura J. Huff
Counsel for Appellee Department of Child Safety

MEMORANDUM DECISION

Judge Jennifer M. Perkins delivered the decision of the Court, in which Presiding Judge Diane M. Johnsen and Judge Michael J. Brown joined.

PERKINS, Judge:

¶1 Peggy K. ("Mother") appeals a juvenile court order terminating her parental rights to her daughter R.K. For the following reasons, we affirm.

FACTUAL AND PROCEDUAL BACKGROUND

¶2 R.K. came to the attention of the Department of Child Safety ("DCS") on May 18, 2017, when a man brought her to a DCS office claiming he was her father and that Mother had been arrested. DCS determined the man was not the child's father and that he was otherwise unable to care for her.

¶3 DCS petitioned the juvenile court for a dependency on May 23, 2017, alleging Mother neglected R.K. by failing to provide her shelter and medical care, and was unwilling or unable to provide proper parental care due to substance abuse. DCS also alleged R.K.'s father abandoned her. The juvenile court later terminated his parental rights to R.K., but his termination is not at issue in this appeal. Prior to the dependency hearing, DCS reported that Mother stated she lacked stable housing and that she agreed to place R.K. with the child's maternal aunt. DCS later moved R.K. to a licensed foster placement.

¶4 On May 25, DCS and Mother entered an agreement which the juvenile court later approved. They agreed DCS would provide Mother with supervised visitation as well as a parent aide, substance abuse assessment, random urinalyses, psychological evaluation, "MiKid Services," and a counseling assessment. DCS also agreed to provide transportation as needed.

¶5 On May 30, Mother submitted a urine sample that tested positive for amphetamine and methamphetamine. Mother subsequently missed several random urinalysis dates with TASC. In June, DCS referred Mother to Arizona Families First ("AFF"), a service to address substance abuse. After less than a week, however, Mother reportedly told AFF she did

"not have time to meet with AFF and declined services over the phone." DCS again referred Mother to AFF in August 2017, but it closed that referral in September for lack of contact. During this time, Mother participated in supervised visitation and generally acted appropriately with R.K. during those visits.

¶6 After a contested hearing on September 26, 2017, the juvenile court found R.K. dependent as to Mother on the grounds of neglect and substance abuse. On October 4, Mother submitted a hair follicle to TASC that tested positive for methamphetamine.

¶7 Mother completed an intake with Southwest Behavioral Health Services ("Southwest Behavioral") in September 2017 and another intake for AFF in November 2017. On the intake form for AFF, Mother indicated she had not used methamphetamine since May 2017. DCS later reported to the court that AFF closed Mother out unsuccessfully because Mother failed to "actively engage[] in substance abuse services." Similarly, it reported that Mother "failed to follow through and meet with her assigned clinician" at Southwest Behavioral.

¶8 As of December 2017, TASC had closed out seven unsuccessful referrals for Mother, and Mother again tested positive for amphetamine and methamphetamine on December 4. During the next several months, Mother missed over a dozen random drug tests, even missing tests on days she called in to TASC. On April 12, 2018, Mother once again tested positive for amphetamine and methamphetamine.

¶9 On April 13, 2018, the juvenile court changed the case plan from reunification to termination and adoption. DCS then moved to terminate Mother's parental rights to R.K., alleging the grounds of neglect, inability to discharge parental responsibilities due to chronic drug abuse, and nine months' time in care. DCS also alleged termination would be in R.K.'s best interests because she would benefit from adoption and, if Mother's rights were not terminated, R.K. would suffer the detriment of lingering in foster care.

¶10 The juvenile court held a termination hearing on August 2, 2018, at which the only witness was Tracy Stevens, Mother's DCS case manager. Stevens testified DCS provided Mother with substance abuse treatment and urinalysis testing. She also stated Mother did not complete an AFF intake until her third referral in November 2017 and that, although Mother enrolled with Southwest Behavioral, she did not engage in any services there. Stevens told the court it was difficult to communicate with Mother throughout the dependency, which made "it difficult to provide

reunification services." Finally, Stevens stated Mother did not successfully complete any part of her case plan.

¶11 The juvenile court issued an order terminating Mother's parental rights to R.K. on August 23, 2018. The court found DCS proved each of the alleged grounds by clear and convincing evidence. The court also found by a preponderance of the evidence that termination was in R.K's best interests. Mother timely appeals from this order.

DISCUSSION

¶12 A parent's right to the care, custody, and management of her child is "fundamental, but not absolute." Dominique M. v. Dep't of Child Safety, 240 Ariz. 96, 97-98, ¶ 7 (App. 2016) (citation omitted). To justify termination of parental rights, the court must first find, by clear and convincing evidence, that the parent is unfit within the meaning of Arizona Revised Statutes ("A.R.S.") section 8-533(B). Alma S. v. Dep't of Child Safety, 245 Ariz. 146, 150, ¶¶ 9-10 (2018). After the court has found parental unfitness, it "shall also consider the best interests of the child." A.R.S. § 8-533(B). The court may not terminate a parent's rights unless it finds, by a preponderance of the evidence, that termination will be in the child's interests given the totality of the circumstances. Kent K. v. Bobby M., 210 Ariz. 279, 288, ¶ 41 (2005) (burden of proof); Alma S., 245 Ariz. at 151-52, ¶ 13 (totality of the circumstances).

¶13 Under A.R.S. § 8-533(B)(8)(a), a court is justified in terminating a parent-child relationship upon a clear and convincing showing that: (1) the child has been in an out-of-home placement for a cumulative period of nine months or longer; (2) DCS "has made a diligent effort to provide appropriate reunification services;" and (3) "the parent has substantially neglected or wilfully refused to remedy" the circumstances causing the child's out-of-home placement. See Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, 248-49, ¶ 12 (2000). Mother does not challenge the finding that R.K. was in an out-of-home placement for a cumulative period of nine months or longer at the time of the termination hearing, and it is otherwise supported by reasonable evidence.

I. Diligent Efforts

¶14 Mother argues DCS failed to make a diligent effort to provide her with appropriate reunification services as required by statute. Specifically, Mother argues DCS failed to provide her with a psychological evaluation as it agreed to do in May 2017, and it failed to provide her with appropriate urinalysis testing. We address each in turn.

¶15 Mother waived her argument about the absence of a psychological evaluation by failing to raise the issue before the juvenile court. There is no question that DCS agreed to provide Mother with a psychological evaluation. But DCS's obligation to provide reunification services "does not free a parent from the need to raise a timely objection if the parent believes services are inadequate." Shawanee S. v. Ariz. Dep't of Econ. Sec., 234 Ariz. 174, 178, ¶ 13 (App. 2014). A parent may raise an objection to the juvenile court concerning DCS's efforts to provide appropriate services at any of the periodic review hearings or at the permanency hearing. Id. at ¶ 14. A parent may also challenge any evidence of services at the termination hearing, "including by testifying about the services actually provided." Id.

¶16 Mother, however, did not complain about DCS's failure to arrange for a psychological evaluation at the review hearings in November 2017 or February 2018. Nor did she raise the issue at the permanency hearing in April 2018 even though her counsel addressed the juvenile court regarding other services from Southwest Behavioral. Importantly, Mother did not object to the absence of a psychological evaluation at the termination hearing in August 2018. In our discretion, we conclude Mother has waived any challenge to DCS's failure to provide a psychological evaluation. See Aleise H. v. Dep't of Child Safety, 245 Ariz. 569, 573, ¶ 12 (App. 2018) (waiver is a discretionary doctrine).

¶17 As to urinalysis testing, Mother first argues the testing services at TASC were inadequate because TASC was open for testing only during Mother's regular work hours. She points out that DCS expected her to maintain employment and contends she would have had to miss work to test at TASC. Mother also argues that after the local TASC location closed, DCS failed to open another referral for testing.

¶18 DCS need not provide every conceivable service, or futile services, but rather only those services with a reasonable prospect of success. Jordan C. v. Ariz. Dep't of Econ. Sec., 223 Ariz. 86, 94, ¶ 20 (App. 2009). "[P]rolonged, painstaking, yet futile efforts" are diligent, In re Appeal in Yuma Cty. J-88-201, J-88-202, J-88-203, 172 Ariz. 50, 54 (App. 1992), whereas "belated, fitful, and indifferent" efforts are not, Mary Ellen C. v. Ariz. Dep't of Econ. Sec., 193 Ariz. 185, 192-93, ¶ 38 (App. 1999).

¶19 Here, DCS made a diligent effort to provide urinalysis. The record indicates DCS opened "[a]t least" seven referrals for Mother for urinalysis with TASC while the local office remained open. Stevens testified DCS did not refer Mother for urinalysis after TASC closed because Mother had not kept in contact with DCS and had not complied with the prior

urinalysis referrals. This reasonably supports a conclusion that further urinalysis referrals would have been futile. And, although Mother complains she was unable to regularly test at TASC due to conflicts with her work schedule, Stevens testified Mother could have obtained random urinalysis testing at her jobsite through AFF—a service with which Mother never engaged. The record thus contains reasonable evidence that DCS's efforts were diligent and appropriate.

II. Substantial Neglect or Willful Refusal

¶20 Finally, Mother argues the record contains insufficient evidence to conclude she substantially neglected or willfully refused to remedy the circumstances causing R.K.'s placement. In particular, Mother claims "DCS placed the burden on Mother to prove her participation at Southwest Behavioral." But apart from any issue with her participation in services at Southwest Behavioral, reasonable evidence supports the juvenile court's findings.

¶21 In determining whether a parent substantially neglected or willfully refused to remedy the circumstances causing out-of-home placement, the focus is "on the level of the parent's effort to cure the circumstances rather than the parent's success in actually doing so." Marina P. v. Ariz. Dep't of Econ. Sec., 214 Ariz. 326, 329, ¶ 20 (App. 2007). The court considers the circumstances existing at the time of the termination hearing. Id. at 330, ¶ 22.

¶22 DCS removed R.K. from Mother's care and agreed to provide services in May 2017. At the time, Mother tested positive for methamphetamine, so DCS referred Mother to AFF to address Mother's drug abuse. Mother declined AFF over the phone, a willful refusal. DCS again referred Mother to AFF, which closed out the second referral unsuccessfully for a lack of contact from Mother. AFF unsuccessfully closed Mother out of yet a third referral for a failure to engage. Finally, as addressed above, Mother was unsuccessfully closed out of at least seven urinalysis referrals to TASC, and tested positive for methamphetamine in every drug test she submitted during the dependency. R.K. was in an out-of-home placement because Mother abused methamphetamine; the record reasonably supports the court's conclusion that Mother substantially neglected or willfully refused to remedy her drug abuse.

¶23 Because we affirm the juvenile court's ruling on the nine months' time in care ground, we decline to address its findings concerning neglect and history of chronic drug abuse. Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, 280, ¶ 3 (App. 2002) ("If clear and convincing evidence

supports any one of the statutory grounds on which the juvenile court ordered severance, we need not address claims pertaining to the other grounds."). Mother does not challenge the juvenile court's best interests finding, and thus we do not address it. Ariz. R. Civ. App. P. 13(a)(7); Ariz. R. P. Juv. Ct. 106(a); In re J.U., 241 Ariz. 156, 161, ¶ 18 (App. 2016).

CONCLUSION

¶24 Because reasonable evidence supports the juvenile court's conclusion that Mother substantially neglected or willfully refused to engage in appropriate reunification services, we affirm the court's order terminating Mother's parental rights to R.K.


Summaries of

Peggy K. v. Dep't of Child Safety

ARIZONA COURT OF APPEALS DIVISION ONE
Apr 23, 2019
No. 1 CA-JV 18-0346 (Ariz. Ct. App. Apr. 23, 2019)
Case details for

Peggy K. v. Dep't of Child Safety

Case Details

Full title:PEGGY K., Appellant, v. DEPARTMENT OF CHILD SAFETY, R.K., Appellees.

Court:ARIZONA COURT OF APPEALS DIVISION ONE

Date published: Apr 23, 2019

Citations

No. 1 CA-JV 18-0346 (Ariz. Ct. App. Apr. 23, 2019)