Opinion
No. 2 CA-JV 2017-0076
09-14-2017
REBECCA R., Appellant, v. DEPARTMENT OF CHILD SAFETY AND L.A., Appellees.
COUNSEL Peter G. Schmerl, P.C., Tucson By Peter G. Schmerl Counsel for Appellant Mark Brnovich, 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, Tucson By John Walters Counsel for Minor
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f); Ariz. R. P. Juv. Ct. 103(G). Appeal from the Superior Court in Pima County
No. JD20150822
The Honorable K.C. Stanford, Judge
AFFIRMED
COUNSEL Peter G. Schmerl, P.C., Tucson
By Peter G. Schmerl
Counsel for Appellant Mark Brnovich, 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, Tucson
By John Walters
Counsel for Minor
MEMORANDUM DECISION
Presiding Judge Staring authored the decision of the Court, in which Judge Espinosa and Judge Kelly concurred. STARING, Presiding Judge:
The Hon. Virginia C. Kelly, a retired judge of this court, is called back to active duty to serve on this case pursuant to orders of this court and our supreme court.
¶1 Rebecca R. appeals from the juvenile court's order appointing permanent guardians for her daughter, L.A., born July 2003. Finding no error, we affirm.
¶2 The party moving for the appointment of a permanent guardian "has the burden of proof by clear and convincing evidence." A.R.S. § 8-872(G). We will not disturb the juvenile court's order establishing a permanent guardianship unless its factual findings are clearly erroneous, see Jennifer B. v. Ariz. Dep't of Econ. Sec., 189 Ariz. 553, 555, 944 P.2d 68, 70 (App. 1997), that is, unless 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). When a child is in the custody of the Department of Child Safety (DCS), the court may establish a permanent guardianship if, among other things, it is in the child's best interests and DCS "has made reasonable efforts to reunite the parent and child and further efforts would be unproductive." A.R.S. § 8-871(A)(3). A court must "give primary consideration to the physical, mental and emotional needs and safety of the child." § 8-871(C).
Both §§ 8-871 and 8-872 were recently amended. See 2017 Ariz. Sess. Laws, ch. 338, §§ 3-4. These revisions are immaterial to the disposition of this appeal; we therefore cite the current versions of the statutes. --------
¶3 Viewed in the light most favorable to sustaining the juvenile court's ruling, see Lashonda M. v. Ariz. Dep't of Econ. Sec., 210 Ariz. 77, ¶ 13, 107 P.3d 923, 928 (App. 2005), the evidence established that DCS had received a report of neglect in December 2015. Rebecca was leaving L.A., then twelve, to care for her six-year-old sister "for extended periods of time," often not returning home directly after work, and sometimes not returning until after L.A. was asleep. L.A. was diagnosed with post-traumatic stress disorder and emotional abuse. She was adjudicated dependent in April 2016.
¶4 Rebecca was offered various services as part of her case plan, including parenting and relationship classes, drug testing, individual therapy, and family therapy. Rebecca was "an active participant in her services," but "progress [was] extremely slow." In February 2017, L.A. filed a motion for the appointment of permanent co-guardians—her paternal grandparents, with whom she had been placed during the dependency. After a contested hearing, the juvenile court concluded a guardianship with her grandparents was in L.A.'s best interest, noting she had been in their care for more than nine months and DCS's reasonable efforts at reunification were "unproductive."
¶5 On appeal Rebecca argues the juvenile court erred in granting L.A.'s motion because DCS "did not make reasonable efforts to reunite the child with [her,] and the child did not prove further efforts would be unproductive." She contends "none of the expert members of the team opined that their further services would be unproductive." Her argument, however, amounts to a request for this court to reweigh the evidence. She relies on favorable testimony but does not address the contrary evidence cited by the court. We do not reweigh the evidence, Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, ¶ 12, 53 P.3d 203, 207 (App. 2002), and will defer to the court's resolution of conflicting inferences when they are, as here, supported by the record, In re Pima Cty. Adoption of B-6355 & H-533, 118 Ariz. 111, 115, 575 P.2d 310, 314 (1978).
¶6 As Rebecca suggests, her individual therapist's testimony was generally positive. The therapist testified that their sessions were productive, but indicated additional sessions beyond those currently remaining would be helpful.
¶7 The balance of the testimony, however, substantially supports the juvenile court's conclusion that the standards for granting L.A.'s motion for guardianship had been met. L.A.'s individual therapist testified that reunification, "if [it] continued to happen[,] . . . would take a very long time" and that L.A. felt she "tried really hard" and found it "frustrating to keep waiting." The therapist agreed that "continued reunification efforts . . . would take a toll on [L.A.]." The therapist also testified that "some of [L.A.'s] stress and anxiety would be relieved if she knew that she had a permanent home with her grandparents." She further attested that the services provided to date had been reasonable.
¶8 The family therapist, who had been working with Rebecca, testified, "[T]his is going to be a long-term process," and she characterized Rebecca's progress as "limited, but productive." She also acknowledged that therapy could continue as the guardianship proceeded. And she was "unsure" whether further efforts toward reunification would be productive, noting that L.A. wanted "to stay with her grandparents" and the therapist "would want to defer to what [L.A.] would want." She stated that based on the "limited progress" of the family sessions to date, the prognosis for reunification "appear[ed] poor." She also affirmed that the necessary services were being provided and did not think there was "anything missing."
¶9 Additionally, the family's case manager testified he did not "believe that further reunification efforts would be productive." He further stated that providing L.A. "with a permanent home" while allowing her to "participate in ongoing therapeutic services with th[e] guardianship in place," was in her best interest. Another therapist, providing L.A. with eye movement desensitization reprocessing therapy for post-traumatic stress disorder, also stated she did not believe any other services should be added.
¶10 In sum, because the juvenile court's findings of facts were not clearly erroneous, see Jennifer B., 189 Ariz. at 555, 944 P.2d at 70, and because we conclude a reasonable fact finder could have found the evidence satisfied the burden of proof, see Denise R., 221 Ariz. 92, ¶ 10, 210 P.3d at 1266, we affirm the court's ruling.