Opinion
No. 1 CA-JV 14-0339
06-02-2015
TRINA C., Appellant, v. DEPARTMENT OF CHILD SAFETY, H.G., C.W., Appellees.
COUNSEL Hamilton Law Office, Mesa By Lynn T. Hamilton Counsel for Appellant Arizona Attorney General's Office, Mesa By Nicholas Chapman-Hushek 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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 Yuma County
No. S1400JD20080323 S1400JD20110574
The Honorable Mark W. Reeves, Judge
AFFIRMED
COUNSEL Hamilton Law Office, Mesa
By Lynn T. Hamilton
Counsel for Appellant
Arizona Attorney General's Office, Mesa
By Nicholas Chapman-Hushek
Counsel for Appellee Department of Child Safety
MEMORANDUM DECISION
Judge Donn Kessler delivered the decision of the Court, in which Presiding Judge Lawrence F. Winthrop and Judge Samuel A. Thumma joined. KESSLER, Judge:
¶1 Trina C. ("Mother") appeals from the juvenile court's order terminating her parental rights to H.G. and C.W. (collectively "the children"). For the following reasons, we affirm.
The children's father's parental rights were also terminated, but are not at issue in this appeal.
FACTUAL AND PROCEDURAL HISTORY
¶2 Mother is the biological parent of H.G., born in 2006, and C.W., born in 2008. In December 2011, DCS filed a dependency petition alleging Mother was unable to parent the children based on substance abuse and failure to provide basic necessities. In June 2012, the court found the children dependent and adopted a case plan of family reunification. Mother was provided with a variety of reunification services including counseling, substance abuse assessment, substance abuse treatment, supervised visits, parenting classes, behavioral health services, and random drug testing. Mother successfully completed the services, the children were returned to her, and the case was dismissed in February 2013.
¶3 In July 2013, DCS received a report indicating that Mother was arrested for violating probation after missing several drug tests and testing positive for methamphetamine. Mother had made arrangements for her neighbors to care for the children, but after discovering the neighbors had an extensive criminal history, DCS reassumed the children's care and filed a reactivated dependency petition. The juvenile court adjudicated the children dependent and set the case plan as family reunification with a concurrent plan of severance and adoption.
¶4 Prior to her release from custody, it was recommended that Mother remain in jail until a psychiatric evaluation could be completed. Mother was classified as seriously mentally ill and diagnosed with bipolar disorder, hypomania, and ADHD. Although she was receiving medication for her disorders, there was a concern that she was simultaneously using methamphetamines along with her prescribed psychotropic medication. Based on the assessment, at the end of August, Mother was transferred to Community Bridges, Inc. for a month of inpatient substance abuse treatment. Mother, however, failed to complete the program and was given the option of resuming her probation or serving a prison sentence. Mother chose the latter and was incarcerated from December 2013 to February 2014.
¶5 Upon her release, Mother was offered supervised visits, substance abuse assessment and treatment, random drug testing, and a psychological evaluation. Mother completed her substance abuse assessment but did not follow up on the recommendation for substance abuse counseling, completed her psychological evaluation but chose not to participate in the recommended psychotherapy, and was inconsistent with drug testing.
Between February 18, 2014 and June 11, 2014, Mother tested negative twice, failed to test on six occasions, and tested positive for either methamphetamine, amphetamine, or alcohol on three occasions.
¶6 In May 2014, Mother stated she no longer wanted to participate in services and would relinquish her parental rights. Consequently, DCS filed a motion to terminate her parental rights based on nine and fifteen months out-of-home placement, and prior removal. See Ariz. Rev. Stat. ("A.R.S.") § 8-533(B) (Supp. 2014).
¶7 Mother relocated to Tennessee for approximately five weeks and returned to Arizona in mid-September. Upon her return, Mother began to comply with some suggested reunification services. Mother attended three therapeutic counseling sessions, participated in substance abuse classes and random drug screenings, and attended supervised visits. Mother, however, still failed to provide the children with appropriate supervision, and had yet to find stable housing or employment. Ultimately the court terminated Mother's parental rights based on all three grounds alleged in DCS's motion. See id.
The case manager's records showed that Mother attended two sessions, and Mother claimed that she attended ten.
Between September 10, 2014 and October 8, 2014, Mother tested negative on two occasions and failed to test on two occasions. Although she tested positive for amphetamine at three screenings, Mother had a prescription for Adderall (amphetamine).
¶8 Mother timely appealed. We have jurisdiction pursuant to A.R.S. §§ 8-235(A) (2014), 12-120.21(A)(1) (2003), and 12-2101(A)(1) (Supp. 2014).
DISCUSSION
¶9 A parent's right to custody and control of his or her own child is fundamental, Santosky v. Kramer, 455 U.S. 745, 753 (1982), but not absolute, Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, 248, ¶¶ 11-12, 995 P.2d 682, 684 (2000). To justify the severance of a parental relationship, one of the statutory grounds provided in A.R.S. § 8-533(B) must be found by clear and convincing evidence. Michael J., 196 Ariz. at 249, ¶ 12, 995 P.2d at 685. In addition, the court must find by a preponderance of the evidence that severance of the relationship is in the child's best interest. Kent K. v. Bobby M, 210 Ariz. 279, 288, ¶ 41, 110 P.3d 1013, 1022 (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). We do not reweigh the evidence, but "look only to determine if there is evidence to sustain the court's ruling." Mary Lou C. v. Ariz. Dep't of Econ. Sec., 207 Ariz. 43, 47, ¶ 8, 83 P.3d 43, 47 (App. 2004).
I. REUNIFICATION SERVICES
A. Waiver of Argument On the Juvenile Court's Diligent Efforts Finding.
¶10 Mother argues that the court erred in finding that DCS made diligent efforts towards family reunification because it failed to provide appropriate mental health care. "Generally, when a child is removed from the home, [DCS] is presumptively obligated to make reasonable efforts to 'provide services to the child and the child's parent.'" Shawanee S. v. Ariz. Dep't of Econ. Sec., 234 Ariz. 174, 177, ¶ 12, 319 P.3d 236, 239 (App. 2014) (quoting A.R.S. § 8-846(A) (Supp. 2014)). "[W]hen [DCS] seeks severance based on length of time in care, [DCS] must prove that it 'has made a diligent effort to provide appropriate reunification services.'" Id. Because DCS sought to terminate Mother's parental rights based on nine and fifteen months out-of-home placement, it was required to make diligent efforts to provide Mother with appropriate reunification services.
¶11 "[DCS's] obligation, however, does not free a parent from the need to raise a timely objection if the parent believes services are inadequate." Id. at 178, ¶ 13, 319 P.3d at 240. "[Absent] extraordinary circumstances, errors not raised in the trial court cannot be raised on appeal" because "a trial court and opposing counsel should be afforded the opportunity to correct any asserted defects." Trantor v. Fredrickson, 179 Ariz. 299, 300, 878 P.2d 657, 658 (1994). Accordingly, "when the juvenile court record reflects that [DCS] has been ordered to provide specific services in furtherance of the case plan, and the court finds that [DCS] has made reasonable efforts to provide such services (including a finding that [DCS] made a diligent effort to provide appropriate reunification services pursuant to A.R.S. § 8-533(B)(8)), a parent who does not object in the juvenile court is precluded from challenging that finding on appeal." Shawanee S., 234 Ariz. at 179, ¶ 16, 319 P.3d at 241.
¶12 DCS relies on Shawanee S. to argue that Mother waived any argument on inadequate reunification services because she did not raise that issue until the last day of the severance trial. We recognized in Shawanee S. that a challenge to DCS's efforts to provide adequate reunification services can be raised during any number of proceedings including a dependency hearing, periodic review hearings, the permanency planning hearing, and the termination hearing. Id. at 178, ¶ 14, 319 P.3d at 240. However, we concluded the parent in Shawanee S. waived that objection because it was never raised in the juvenile court. Id. at 179, ¶ 18, 319 P.3d at 241. Here, Mother raised the objection, albeit on the last day of the severance trial. Given the nature of her objection that DCS failed to ensure she had the proper medications to treat her mental health conditions several months before the severance trial, we will address the merits of Mother's claim that DCS did not make diligent efforts to provide her with appropriate reunification services.
DCS also relies on Bennigno R. v. Ariz. Dep't of Econ. Sec., 233 Ariz. 345, 312 P.3d 861 (App. 2013). However, similarly, the parent in Bennigno R. never asked the juvenile court for more services before the severance hearing and did not raise the issue of services at the severance hearing. 233 Ariz. at 349-50, ¶ 19, 312 P.3d at 865-66.
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B. The Juvenile Court's Finding that DCS Made Diligent Efforts to Provide Mother with Reunification Services.
¶13 DCS makes a diligent effort to provide services when it provides 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). "The juvenile court is to consider the availability of reunification services to the parent and his or her participation in those services, and must find that [DCS] made a diligent effort to provide such services." Id. "[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 Cnty. Juv. Action No. JS-501904, 180 Ariz. 348, 353, 884 P.2d 234, 239 (App. 1994)).
¶14 Mother's main argument is that she was not on appropriate medication during part of the second dependency and DCS should have waited for Mother to stabilize on medications prior to evaluating her for completion of remedial services. However, on this record, we hold the evidence supports the juvenile court's finding that DCS provided Mother with adequate reunification services.
¶15 Based on a psychiatric evaluation, Mother was transferred from custody to complete inpatient substance abuse treatment at Community Bridges. When Mother failed to complete the treatment she opted to serve a prison sentence from December 2013 to February 2014. Upon her release, Mother was offered numerous services including supervised visits, substance abuse assessment and treatment, random drug testing, and a psychological evaluation. Mother completed her substance abuse assessment but did not follow up on the recommendation for substance abuse counseling, completed her psychological evaluation but chose not to participate in the recommended psychotherapy, and was inconsistent with drug testing. Thereafter, Mother elected to relinquish her parental rights and moved to Tennessee for five weeks before returning to Arizona and complying with some of the suggested reunification services.
¶16 Mother contends that she was not appropriately provided with reunification services as she was not prescribed the correct medication to treat her mental conditions, which affected her ability to partake in services. We disagree. Mother testified she was missing the correct medications for about one month, June 2014. There is no evidence that the lack of such medication for this short period of time resulted in Mother's failure and refusal to participate and succeed in services provided over the course of the second dependency, which lasted from July 2013 until the severance trial, which took place in November 2014.
¶17 "[Mother's] failure or refusal to participate in the programs and services [DCS] offered or recommended does not foreclose termination of her parental rights." Maricopa Cnty. Juv. Action No. JS-501904, 180 Ariz. at 353, 884 P.2d at 239. Furthermore, "[l]eaving the window of opportunity for remediation open indefinitely is not necessary, nor do we think that it is in the child's or parent's best interests." Maricopa Cnty. Juv. Action No. JS-501568, 177 Ariz. 571, 577, 869 P.2d 1224, 1230 (App. 1994). Therefore, based on this record, the juvenile court did not err in finding that DCS made a diligent effort to provide Mother with reunification services without giving her more time to be on the proper medication.
II. TERMINATION OF PARENTAL RIGHTS
¶18 Mother also argues that the juvenile court erred in terminating her parental rights based on nine and fifteen months out-of-home placement. See A.R.S. § 8-533(B)(8)(a), (c). Mother does not contest, however, that the court erred in granting severance under prior removal. See A.R.S. § 8-533(B)(11). To justify the severance of a parental relationship, one of the statutory grounds provided in A.R.S. § 8-533(B) must be found by clear and convincing evidence. Michael J., 196 Ariz. at 249, ¶ 12, 995 P.2d at 685. Even assuming the court erred in granting severance under either nine and fifteen months out-of-home placement, because Mother does not contest the juvenile court's finding under prior removal, we agree with DCS that Mother's argument about out-of-home placement is moot.
CONCLUSION
¶19 For the foregoing reasons, we affirm.