Opinion
1 CA-JV 12-0209
04-16-2013
STEPHANIE J., ANTHONY D., Appellants, v. ARIZONA DEPARTMENT OF ECONOMIC SECURITY, et al., Appellees.
Denise L. Carroll, Esq. by Denise L. Carroll Attorney for Appellant Mother John L. Popilek, P.C. by John L. Popilek Attorney for Appellant Father Thomas C. Horne, Attorney General by Michael F. Valenzuela, Assistant Attorney General Attorneys for Appellee Arizona Department of Economic Security
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
(Not for Publication - 103(G), Ariz. R.P. Juv. Ct.;
Rule 28, ARCAP)
Appeal from the Superior Court in Maricopa County
Cause Nos. JD18969 and JD18970
The Honorable Aimee L. Anderson, Judge
AFFIRMED
Denise L. Carroll, Esq.
by Denise L. Carroll
Attorney for Appellant Mother
Scottsdale John L. Popilek, P.C.
by John L. Popilek
Attorney for Appellant Father
Scottsdale Thomas C. Horne, Attorney General
by Michael F. Valenzuela, Assistant Attorney General
Attorneys for Appellee Arizona Department of Economic Security
Phoenix PORTLEY, Judge ¶1 Stephanie J. ("Mother") and Anthony D. ("Father") appeal from the order terminating their parental rights to: (1) their child; (2) Mother's five children; and (3) Father's two children. For the reasons that follow, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 The children came to the attention of the Arizona Department of Economic Security ("ADES") following reports of neglect and an unsanitary home. After a home inspection, ADES placed the children with relatives and filed a dependency petition. The court found the children dependent as to the parents in June 2010 and adopted a case plan of family reunification. Despite the parents' participation in supervised visits, counseling, and parenting aide services, ADES learned that the children had been physically abused in their parents' care and Mother and Father had failed to keep a clean, livable home throughout the dependency period. ¶3 At the permanent placement hearings for Mother's children and Father's children, the court granted ADES's request for myriad case plans based on each child's needs. ADES then moved to terminate Mother and Father's parental rights to the children, alleging out-of-home placement for fifteen months or longer under Arizona Revised Statutes ("A.R.S.") section 8-533(B)(8)(c) (West 2013). ¶4 At the outset of the severance hearing, ADES made a motion to amend the dependency and termination motions because it had recently learned that three of Mother's five children were subject to the Indian Child Welfare Act of 1978 ("ICWA"), 25 U.S.C. §§ 1901 et al. (West 2013), and the tribe had been properly served with notice of the hearings. Following a seven-day contested hearing, the court made its findings of fact and conclusions of law, and terminated Mother and Father's parental rights. We have jurisdiction over the consolidated appeal of the parents pursuant to A.R.S. §§ 8-235(A), 12-2101(A)(1), and -2101(B) (West 2013).
Father's two children were initially placed with Stephanie's mother and shortly thereafter, moved to foster care.
ADES later amended the motion, alleging Mother was unable to parent due to mental illness.
The court also terminated the parental rights of the biological father to one of Mother's children. He is not a party to this appeal.
DISCUSSION
¶5 Mother and Father argue several evidentiary claims seeking to reverse the order terminating their parental rights. We address each argument in turn, but view the evidence in the light most favorable to sustaining the juvenile court's findings. Christy C. v. Ariz. Dep't of Econ. Sec., 213 Ariz. 445, 449, ¶ 12, 153 P.3d 1074, 1078 (App. 2007). And, we will not disturb the judgment "unless there is no reasonable evidence to support the findings." Pima Cnty. Juvenile Severance Action No. S-113432, 178 Ariz. 288, 292, 872 P.2d 1240, 1244 (App. 1993).
I. Mother ¶6 Mother contends that the court erred by determining that ADES had made "active efforts" as required by ICWA to prevent the breakup of her family. We review the court's factual findings for an abuse of discretion. Maricopa Cnty. Juvenile Action No. JS-8287, 171 Ariz. 104, 107, 828 P.2d 1245, 1248 (App. 1991). ¶7 "ICWA requires a state court to make two particular findings before terminating the parental rights for an Indian child." Valerie M. v. Ariz. Dep't of Econ. Sec., 219 Ariz. 331, 333, ¶ 3, 198 P.3d 1203, 1205 (2009). First, the court must find that "active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family" and those "efforts have proved unsuccessful." 25 U.S.C. § 1912(d). Second, there must be "a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child." Id. at § 1912(f). Because Mother does not contest the court's determination that returning custody to her is "likely to result in serious emotional and physical damages to the children," we focus our discussion on the first finding. ¶8 To satisfy "active efforts" under § 1912(d), ADES must "provide parents with the necessary time and opportunity to participate in programs designed to help [them] become effective parents." Id. (internal quotation marks omitted) (alteration in original). It need not, however, "provide every imaginable service or program" designed to prevent the family's breakup. Id. We also consider the parent's own efforts and participation in the services provided. Id. (balancing "what services were needed . . . and arranged for them, [and] the extent of [the parent]'s participation" while the children were in foster care). ¶9 Here, ADES provided Mother with parenting aide sessions, psychological and psychiatric evaluations, individual and couple's counseling, supervised visits, transportation, and frequent home inspections. Despite the myriad offered services for more than two years, Mother failed to maintain a clean, suitable home and continued to blame the children for the filthy living conditions. She also failed to seek treatment for her self-diagnosed physical conditions, which the psychologist testified placed her children at risk of abuse and neglect. Most significantly, both Mother and the psychologist testified that there were no additional services ADES could offer that could further improve Mother's parenting or remedy the current circumstances. Consequently, the court did not abuse its discretion by finding that ADES provided active, although unsuccessful, efforts to attempt to prevent the family's breakup.
Neither ICWA nor Arizona law defines "active efforts." See Yvonne L. v. Ariz. Dep't of Econ. Sec., 227 Ariz. 415, 423, ¶ 34, 258 P.3d 233, 241 (App. 2011). The Bureau of Indian Affairs Guidelines suggest, however, that the efforts "take into account the prevailing social and cultural conditions and the way of life of the Indian child's tribe . . . [and] involve and use the available resources of the extended family, the tribe, Indian social service agencies and individual Indian care givers." Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed. Reg. 67,584, 67,592 (Nov. 26, 1979).
II. Father ¶10 Father contends that ADES presented insufficient evidence to support termination of his parental rights under A.R.S. § 8-533(B)(8)(c). We disagree. ¶11 Parental rights may be terminated if ADES has made a diligent effort to provide appropriate reunification services and "the parent has been unable to remedy the circumstances that cause the child to be in an out-of-home placement" for a cumulative period of fifteen months or longer pursuant to court order. A.R.S. § 8-533(B)(8)(c). Additionally, there must be "a substantial likelihood that the parent will not be capable of exercising proper and effective parental care and control in the near future." Id. ¶12 Here, clear and convincing evidence supported the finding that Father was unable to remedy the neglect and abuse that caused out-of-home placement and to exercise proper parental care over his children. Despite being aware of the reasons for the children's removal, Father failed to secure a clean, suitable home and blamed the home's unsanitary environment on Mother and the children. He also continuously denied that he had excessively disciplined or physically harmed the children. The psychologist who evaluated Father testified that his failure to acknowledge and change his harsh disciplinary techniques posed a risk for the children and prevented him from effectively discharging his parental duties. And, although Father argues that evidence presented demonstrated that he was capable of parenting his children, the court was "in the best position to weigh the evidence, observe the parties, judge the credibility of witnesses, and resolve disputed facts," Ariz. Dep't of Econ. Sec. v. Oscar O., 209 Ariz. 332, 334, ¶ 4, 100 P.3d 943, 945 (App. 2004), and we will not second-guess its findings. ¶13 Additionally, the preponderance of the evidence supported the finding that termination of Father's rights was in the best interests of the children. The case manager testified that the behavior of Father's two children significantly improved when they were not visiting with Father, and termination would allow them to be free of abuse and fear. She also testified that the biological child of Mother and Father was adoptable, and Father's two children would be adoptable once their behavior stabilized. Because there was evidence to show that the children would benefit from severance, the court did not abuse its discretion when determining that termination was in the best interests of the children. See Raymond F. v. Ariz. Dep't of Econ. Sec., 224 Ariz. 373, 379, ¶¶ 30-31, 231 P.3d 377, 383 (App. 2010). Consequently, the court did not err when it terminated Father's parental rights. ¶14 Father also contends that the court abused its discretion by denying his motion to reopen the evidence based on allegations that his daughter had been abused in her foster placement. We disagree. ¶15 Following the hearing, Father filed a motion to reopen the termination trial seeking "the opportunity to elicit brief testimony regarding the circumstances of [his daughter's removal from her foster placement] and any subsequent findings from a forensic interview [of] the child." The court stayed the motion and held a status conference after the youngster had been interviewed. At the status conference, however, Father identified no specific evidence or testimony he wished to present to make his offer of proof. Consequently, we find no error.
Father's daughter was removed from her foster placement following a report by Glendale Police that her foster father had allegedly molested a neighborhood child. However, during her forensic interview she did not report that she had been sexually abused by her foster father.
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CONCLUSION
¶16 Based on the foregoing, we affirm the termination of the parents' parental rights to their children.
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MAURICE PORTLEY, Judge
CONCURRING: ________________
MARGARET H. DOWNIE, Presiding Judge
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PHILIP HALL, Judge