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Theresia F. v. L.G.

ARIZONA COURT OF APPEALS DIVISION TWO
Nov 21, 2019
No. 2 CA-JV 2019-0088 (Ariz. Ct. App. Nov. 21, 2019)

Opinion

No. 2 CA-JV 2019-0088

11-21-2019

THERESIA F., Appellant, v. DEPARTMENT OF CHILD SAFETY, L.G., AND P.G., Appellees.

COUNSEL Harriette P. Levitt, Tucson Counsel for Appellant Mark Brnovich, Arizona Attorney General By Michelle R. Nimmo, Assistant Attorney General, Tucson Counsel for Appellee Department of Child Safety


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NOT FOR PUBLICATION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 Gila County
No. S0400JD201800003
The Honorable Gary V. Scales, Judge
The Honorable Timothy M. Wright, Judge

AFFIRMED

COUNSEL Harriette P. Levitt, Tucson
Counsel for Appellant Mark Brnovich, Arizona Attorney General
By Michelle R. Nimmo, Assistant Attorney General, Tucson
Counsel for Appellee Department of Child Safety

MEMORANDUM DECISION

Judge Brearcliffe authored the decision of the Court, in which Presiding Judge Staring and Chief Judge Vásquez concurred. BREARCLIFFE, Judge:

¶1 Appellant Theresia F. challenges the juvenile court's order of June 24, 2019, terminating her parental rights to two of her children, L.G. and P.G., on grounds of neglect, Theresia's chronic drug use, and her inability to remedy the circumstances causing the children to remain in a court-ordered, out-of-home placement for longer than nine months. See A.R.S. § 8-533(B)(2), (B)(3), (B)(8)(a). Theresia argues that she was denied the right to effective assistance of counsel, that the Department of Child Safety (DCS) failed to make reasonable efforts at reunification, and that the evidence was insufficient to establish that severance was in the children's best interests. Finding no error, we affirm.

¶2 Before it may terminate a parent's rights, a juvenile court must find by clear and convincing evidence that at least one statutory ground for severance exists and must find by a preponderance of the evidence that terminating the parent's rights is in the best interests of the child. See A.R.S. §§ 8-533(B), 8-537(B); Kent K. v. Bobby M., 210 Ariz. 279, ¶ 41 (2005). We will affirm an order terminating parental rights unless we must say as a matter of law that no reasonable person could find those essential elements proven by the applicable evidentiary standard. Denise R. v. Ariz. Dep't of Econ. Sec., 221 Ariz. 92, ¶ 10 (App. 2009). We view the evidence in the light most favorable to upholding the court's order. Manuel M. v. Ariz. Dep't of Econ. Sec., 218 Ariz. 205, ¶ 2 (App. 2008).

¶3 The children were removed from Theresia's home in January 2018 after law enforcement received a report that they had been "locked out of the house for hours." When officers arrived, the children were at a neighbor's house and reported Theresia and her boyfriend were fighting. When they went to the home, officers found marijuana and methamphetamine. DCS also received a report that L.G. had been "tied down and broccoli was being forced down his throat." L.G. also reported that Theresia's boyfriend had "punche[d] him."

¶4 Theresia had been involved in three previous dependency proceedings and has a history of drug use, domestic violence, and arrest. She was incarcerated out-of-state during the summer of 2018. The juvenile court ordered Theresia to complete a hair-follicle drug test, but she refused. Theresia "refuse[d] to work with most service providers" and was "combative and unwilling to cooperate" with DCS. The children were adjudicated dependent in May 2018. DCS also required ninety days of demonstrated sobriety before a psychological evaluation could be completed, allowing for further service referrals, but Theresia did not meet that requirement until March 2019, after DCS had filed a motion to terminate her parental rights.

¶5 A contested severance hearing was scheduled for June 6, 2019, with a second hearing date scheduled for a week later. In April, DCS filed a motion to suspend visitation based on Theresia's "hostile and aggressive" behavior with DCS and other personnel. This included an incident that led to the cancellation of a scheduled psychological evaluation. At a review hearing in May, Theresia was deemed voluntarily absent after she was "detained outside of the courthouse" due to a "disruption in the lobby." The juvenile court granted the motion to suspend visitation. It also granted Theresia's counsel's motion to withdraw and appointed new counsel.

¶6 Theresia thereafter moved to continue the severance hearing, and the juvenile court granted a one-week extension, continuing the matter to the second trial date that had originally been set. Theresia's newly appointed counsel also filed a motion to withdraw days before the hearing. The court denied the motion on the day of the severance hearing, but during the discussion of that and other matters at the start of the hearing, Theresia became disruptive and was removed from the courtroom and held in contempt. After the hearing, the court ordered Theresia's parental rights terminated.

¶7 On appeal, Theresia argues she was denied "the right to effective assistance of counsel." Assuming without deciding that ineffective assistance of counsel provides a basis for reversible error in a severance proceeding, the parent must show "that counsel's representation fell below prevailing professional norms." John M. v. Ariz. Dep't of Econ. Sec., 217 Ariz. 320, ¶¶ 8, 17 (App. 2007) (citing Strickland v. Washington, 466 U.S. 668, 688 (1984), and In re Pima Cty. Severance Action No. S-2397, 161 Ariz. 574, 578 (App. 1989)). Moreover:

[N]o reversal of a termination order is justified by inadequacy of counsel unless, at a minimum, a parent can demonstrate that counsel's alleged errors were sufficient to "undermine confidence in the outcome" of the severance proceeding and give rise to a reasonable probability that, but for counsel's errors, the result would have been different.
Id. ¶ 18 (quoting Strickland, 466 U.S. at 695).

¶8 In this case, Theresia's primary argument that counsel was ineffective arises out of a one-week continuance granted after her trial counsel withdrew and new counsel was appointed. Theresia asserts that counsel "should not have been forced to proceed to trial" in such a short time and that, as a result of that short time, counsel did not "adequately address" her mental health issues and "behaviors." This argument, however, is not one of ineffective assistance of counsel, but rather a claim that the juvenile court improperly denied her motions for continuance and new counsel. But she has not supported any such argument with relevant law or explained how the court abused its discretion in denying the motions. See In re Yavapai Cty. Juv. Action No. J-9365, 157 Ariz. 497, 499 (App. 1988) (motion to continue "addressed to the sound discretion" of the juvenile court); cf. Ariz. R. P. Juv. Ct. 46(F) ("Any motion to continue shall be made in good faith and shall state with specificity the reasons for the continuance."); State v. Lee, 142 Ariz. 210, 220 (1984) (decision whether to permit counsel in criminal case to withdraw rests in trial court's discretion). We therefore decline to address this argument.

¶9 In a related argument, however, Theresia also argues counsel should have "ask[ed] for a recess in order to try to calm [her] down" and objected when she was ultimately removed from the courtroom. But Theresia has cited no authority to suggest counsel was ineffective because he "did not know how to adequately address" her "behaviors at the severance trial" or otherwise lacked the expertise to address her mental health issues. Nor has she established that counsel's failure to address that behavior in a way she deems adequate was a result of lack of "time to prepare the case." Indeed, as the state points out, "even the professional psychologist who had worked with [Theresia] multiple times" over the years required "the assistance of security personnel" during an incident at a scheduled psychological evaluation. In sum, on the record before us, we cannot say there is a reasonable probability that had counsel objected or otherwise attempted to intervene during Theresia's courtroom outbursts that the result of the proceeding would have been different. See John M., 217 Ariz. 320, ¶ 18.

¶10 Theresia next contends DCS "failed to make reasonable efforts at reunification." She asserts that DCS acted improperly by "insist[ing] on a new psychological evaluation, preceded by proof of 90 days sobriety," and therefore denied her the "opportunity to get to see a doctor and get some medication." She argues there was no "legitimate basis" for DCS's requirement. But this requirement was not solely set by DCS—the psychologist also stated that an evaluation was not recommended until Theresia could "demonstrate 30-60 days of sustained sobriety." Thus, evidence before the juvenile court supported DCS's requirement, and we cannot say the court abused its discretion in determining reasonable reunification efforts had been made. See Denise R., 221 Ariz. 92, ¶ 10.

¶11 Furthermore, we have never required DCS to undertake measures that are futile. See, e.g., Christina G. v. Ariz. Dep't of Econ. Sec., 227 Ariz. 231, ¶ 25 (App. 2011) (affirming termination even though DCS did not request a hearing to determine if services were futile); In re Maricopa Cty. Juv. Action No. JS-501904, 180 Ariz. 348, 353 (App. 1994) (the department "fulfilled its statutory mandate" to make diligent efforts to provide reunification services, despite the parent's failure or refusal to participate in the programs or services offered). The record before us supports the court's conclusion that the services provided were reasonable in view of Theresia's behavior. Theresia rejected parent aid services, did not participate in behavioral health services or drug testing, was incarcerated in another state for several months, and would not "cooperate with Visitation Guidelines."

DCS argues "[t]he juvenile court was not required to find that DCS made reasonable and diligent efforts before finding that mother neglected a child." But we need not resolve this legal issue, because we conclude the court properly determined, before it terminated Theresia's parental rights, that DCS's efforts had been sufficient. --------

¶12 Finally, Theresia asserts "[t]ermination was not in the best interests of the children." "[T]ermination is in the child's best interests if either: (1) the child will benefit from severance; or (2) the child will be harmed if severance is denied." Alma S. v. Dep't of Child Safety, 245 Ariz. 146, ¶ 13 (2018). In this case, the case manager testified the children were adoptable and would benefit from "permanency and a calm stable home." The children's guardian ad litem also noted the certainty of continued trauma and "potential danger" if they were returned to Theresia and supported severance because it would give them "the opportunity to heal and have permanency." Theresia's argument on this point amounts to a request for us to reweigh the evidence as to the children's interests; we will not do so. See Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, ¶ 12 (App. 2002).

¶13 We affirm the juvenile court's order terminating Theresia's parental rights.


Summaries of

Theresia F. v. L.G.

ARIZONA COURT OF APPEALS DIVISION TWO
Nov 21, 2019
No. 2 CA-JV 2019-0088 (Ariz. Ct. App. Nov. 21, 2019)
Case details for

Theresia F. v. L.G.

Case Details

Full title:THERESIA F., Appellant, v. DEPARTMENT OF CHILD SAFETY, L.G., AND P.G.…

Court:ARIZONA COURT OF APPEALS DIVISION TWO

Date published: Nov 21, 2019

Citations

No. 2 CA-JV 2019-0088 (Ariz. Ct. App. Nov. 21, 2019)