Opinion
No. 2 CA-JV 2017-0060
09-25-2017
TRISHA C., Appellant, v. DEPARTMENT OF CHILD SAFETY, A.C.-F., AND T.F., Appellees.
COUNSEL The Stavris Law Firm, P.L.L.C., Scottsdale By Alison Stavris Counsel for Appellant Mark Brnovich, Arizona Attorney General By Cathleen E. Fuller, 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NOT FOR PUBLICATION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 Pinal County
No. S1100JD201300158
The Honorable Brenda E. Oldham, Judge
AFFIRMED
COUNSEL The Stavris Law Firm, P.L.L.C., Scottsdale
By Alison Stavris
Counsel for Appellant Mark Brnovich, Arizona Attorney General
By Cathleen E. Fuller, Assistant Attorney General, Tucson
Counsel for Appellee Department of Child Safety
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 Trisha C. appeals from the juvenile court's order terminating her parental rights to her children, A.C.-F., born in May 2011, and T.F., born in April 2012, based on time-in-care grounds under A.R.S. § 8-533(B)(8)(c). She argues on appeal that the court erred in finding the Department of Child Safety (DCS) had provided adequate reunification services and in finding she had not remedied the circumstances leading to the children's removal. She further argues that insufficient evidence supports the court's finding that termination was in the children's best interests. We affirm.
DCS has replaced the Arizona Department of Economic Security (ADES) as the agency responsible for administering child welfare and placement services under title 8, A.R.S. See 2014 Ariz. Sess. Laws 2d Spec. Sess., ch. 1, § 20. For simplicity, our references to DCS in this decision encompass both ADES and Child Protective Services, formerly a division of ADES.
¶2 "On review of a termination order, we view the evidence in the light most favorable to sustaining the juvenile court's decision." Jade K. v. Loraine K., 240 Ariz. 414, ¶ 2, 380 P.3d 111, 112 (App. 2016). DCS first became involved with the family following A.C.-F.'s birth, after she tested positive for methamphetamine and Trisha tested positive for amphetamine. Trisha completed services, but she resumed methamphetamine abuse shortly thereafter. A.C.-F. and T.F. were removed from their parents' custody in 2013, following an incident of domestic violence occurring in circumstances where both parents were intoxicated and Trisha had been smoking methamphetamine.
¶3 DCS filed a dependency petition in October 2013, and the children were adjudicated dependent as to both parents. The dependency continued for over two-and-a-half years until the state filed a motion to terminate Trisha's parental rights in May 2016. During that time, Trisha regularly missed required urinalysis or provided diluted samples—despite being advised by the court that a missed test or a diluted sample would be treated as a positive test. In September 2015, she tested positive for opiates, and she tested positive for alcohol in March 2016. She also persistently refused alcohol testing and was caught attempting to cheat on a urine test.
¶4 Although Trisha participated in some counseling, she attended sporadically, denied having issues with substance abuse and was resistant to treatment. She also denied the presence of domestic violence in her home. In April 2015, the DCS unit psychologist recommended that DCS pursue severance due to Trisha's "resistan[ce] to change." By September 2015, Trisha had met only one of three goals with parent-aide services. By October 2015, Trisha was refusing to participate in counseling or treatment services.
¶5 Efforts to transition the children back to the parents' home were complicated by Trisha's behavior toward service providers—including sending an e-mail to the DCS supervisor stating she would contact the police and news outlets about DCS holding her children "hostage," and hostile conduct toward parent aides—and the parents' failure to comply with conditions for overnight stays. In March 2015, the children's court-appointed advocate reported they no longer wanted to visit their parents. And, the children's therapist concluded visitation was not benefitting them, reporting they exhibited behavioral problems after visits, including "self-injury" and other indications of "severe emotional distress." By March 2016, parent-aide services and family therapy were no longer occurring in the parents' home due to Trisha's behavior; the children's advocate reported Trisha "ha[d] made no progress from the beginning of this case [and,] [i]f anything, [she] is more combative and more unstable."
¶6 In April 2016, the juvenile court changed the case plan to severance and adoption. DCS moved to terminate Trisha's parental rights in May 2016 on the ground the children had been in court-ordered, out-of-home care for longer than fifteen months. See § 8-533(B)(8)(c). After a contested severance hearing, the court granted the motion to terminate in April 2017. The court found, among other things, that DCS had provided appropriate reunification services from which Trisha had not meaningfully benefitted, noting she was "resistant to counseling," blamed others for the children being out of her custody, failed to demonstrate sobriety, and was hostile and aggressive toward service providers. The court further found termination was in the children's best interests. This appeal followed.
The juvenile court also terminated the parental rights of the children's father. He is not a party to this appeal.
¶7 A juvenile court may terminate a parent's rights if it finds clear and convincing evidence of a statutory ground for severance and finds by a preponderance of the evidence that termination is in the child's best interests. A.R.S. §§ 8-533(B), 8-537(B); Kent K. v. Bobby M., 210 Ariz. 279, ¶ 41, 110 P.3d 1013, 1022 (2005). "[W]e will affirm a termination order that is supported by reasonable evidence." Jordan C. v. Ariz. Dep't of Econ. Sec., 223 Ariz. 86, ¶ 18, 219 P.3d 296, 303 (App. 2009). That is, we will not reverse a termination order for insufficient evidence unless, as a matter of law, 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). ¶8 To terminate Trisha's parental rights pursuant to § 8-533(B)(8)(c), DCS was required to demonstrate the children "ha[d] been in an out-of-home placement for a cumulative total period of fifteen months or longer pursuant to court order," Trisha "has been unable to remedy the circumstances that cause the child to be in an out-of-home placement and there is a substantial likelihood that [she] will not be capable of exercising proper and effective parental care and control in the near future." Additionally, DCS was required to demonstrate that it "has made a diligent effort to provide appropriate reunification services." § 8-533(B)(8); see also Jennifer G. v. Ariz. Dep't of Econ. Sec., 211 Ariz. 450, ¶ 12, 123 P.3d 186, 189 (App. 2005).
¶9 Trisha first asserts DCS did not show it provided appropriate reunification services. To provide sufficient services, DCS must offer parents "the time and opportunity to participate in programs designed to help [them] become . . . effective parent[s]." In re Maricopa Cty. Juv. Action No. JS-501904, 180 Ariz. 348, 353, 884 P.2d 234, 239 (App. 1994). However, DCS is not required to provide every conceivable service, and a parent's failure or refusal to participate in the services offered or recommended by DCS does not foreclose termination of the parent's rights. Id. Additionally, DCS need not undertake futile rehabilitative measures, but only those that offer a reasonable possibility of success. Mary Ellen C. v. Ariz. Dep't of Econ. Sec., 193 Ariz. 185, ¶ 1, 971 P.2d 1046, 1047-48 (App. 1999). And, a parent who fails to object to the adequacy of services waives review of the issue. Shawanee S. v. Ariz. Dep't of Econ. Sec., 234 Ariz. 174, ¶ 16, 319 P.3d 236, 240-41 (App. 2014).
¶10 Trisha claims DCS failed to provide sufficient family therapy beginning in April 2016, asserting DCS was required to offer weekly sessions but failed to do so because of scheduling issues with the counselor and, thus, provided fewer than a dozen family therapy visits over a five- or six-month period. But she has not provided a citation to a court order requiring DCS to provide weekly sessions. Nor has she cited any authority or developed any argument that a lack of family therapy sessions, after the state had moved to terminate her parental rights, would support a finding that DCS had failed to provide adequate reunification services. Melissa W. v. Dep't of Child Safety, 238 Ariz. 115, ¶ 9, 357 P.3d 150, 152-53 (App. 2015) (argument unsupported by authority is waived); City of Tucson v. Clear Channel Outdoor, Inc., 218 Ariz. 172, ¶ 88, 181 P.3d 219, 242 (App. 2008) (argument on appeal waived by party's failure to adequately develop it).
Nor has Trisha identified in the record any objection to DCS's decision to reduce the frequency of family therapy sessions. --------
¶11 In any event, the record shows that, although DCS intended to provide weekly sessions, it temporarily reduced the number of services because, despite the scheduling issues, the case manager did not believe it was prudent to change therapists. And, as DCS points out, the therapist determined that ongoing family therapy would not be productive. See Mary Ellen C., 193 Ariz. 185, ¶ 1, 971 P.2d at 1047-48 (state only required to offer services with reasonable chance of success). The reduction in family therapy in this case does not support a finding that DCS failed to provide appropriate reunification services.
¶12 Trisha also contends that DCS did not "offer[]" an updated psychological profile for her. As DCS points out, however, Trisha apparently did not raise this issue below and has therefore waived it on review. See Shawanee S., 234 Ariz. 174, ¶ 16, 319 P.3d at 240-41. Nor has she identified any evidence or authority suggesting an updated profile was required or necessary. Thus, we do not address this issue further. See Melissa W., 238 Ariz. 115, ¶ 9, 357 P.3d at 152-53; Clear Channel Outdoor, Inc., 218 Ariz. 172, ¶ 88, 181 P.3d at 242.
¶13 Next, Trisha complains that DCS did not secure a bonding assessment, pointing to the case manager's testimony that such an assessment "would have been significant." But, as Trisha recognizes, the case manager later corrected that testimony after being reminded each child had received a behavioral health assessment, which contained similar guidance. Although Trisha attempts to characterize this testimony as "conflicting," there is nothing remarkable or improper about a witness revising earlier testimony during redirect examination and, in any event, it was for the juvenile court to resolve any purported conflict. See Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, ¶¶ 4, 12, 53 P.3d 203, 205, 207 (App. 2002).
¶14 Trisha further claims DCS provided insufficient services because she was "not offered a parent aide for a year and a half into the case" and because she was not taught specific parenting techniques during "the family's final four visits with their children." The juvenile court acknowledged in its ruling that there had been delays in providing Trisha a parenting aide. It further noted, however, that Trisha had been hostile to service providers and made no progress when parent-aide services were provided. Trisha identifies no error in this determination. Nor has she identified any evidence that the delay in providing the services reduced her chances of reunifying with her children, much less that the delay rendered DCS's efforts insufficient in the context of the entire case. Similarly, she has not developed any argument that the failure to teach two parenting techniques required the juvenile court to find DCS's reunification efforts were insufficient. We therefore do not address these arguments further. See Clear Channel Outdoor, Inc., 218 Ariz. 172, ¶ 88, 181 P.3d at 242.
¶15 Trisha additionally argues that DCS provided insufficient services because she was "unilaterally excluded from [Child and Family Team (CFT) meetings]" after her visitation rights were suspended. The record shows two meetings were held without her, based on DCS's determination that her presence would not have been "beneficial for the children." Again, Trisha has not developed any meaningful argument that DCS is not permitted to exclude a parent from a CFT meeting on that basis, particularly after that parent's visitation rights have been suspended because visitation was harmful to the children. Thus, we need not address this issue. See id.
¶16 Citing her own testimony, Trisha further asserts she repeatedly sought, but was not provided with, individual counseling services. But Trisha's testimony contradicts other evidence in the record—specifically, that she informed a counselor she no longer needed the service and, despite claiming she would pursue her own counseling through her insurance provider, had never demonstrated to DCS that she had done so. It was for the juvenile court to resolve this conflict in the evidence. Jesus M., 203 Ariz. 278, ¶¶ 4, 12, 53 P.3d at 205, 207.
¶17 Trisha also argues the juvenile court erred in finding, pursuant to § 8-533(B)(8)(c), that she "ha[d] been unable to remedy the circumstances that cause the child to be in an out-of-home placement and there is a substantial likelihood that [she] will not be capable of exercising proper and effective parental care and control in the near future." In support of this argument, she cites evidence that she was not substance-addicted and had completed substance-abuse treatment, and her own testimony that her diluted tests were explained by her "high potassium" and her consumption of water due to a lack of air conditioning at her workplace. She also identifies evidence purportedly demonstrating her positive interaction with her children during visits.
¶18 But, as described above, the record contains ample evidence supporting the juvenile court's finding that Trisha had failed to resolve the issues preventing the return of her children. Trisha's argument on appeal amounts to nothing more than a request that we reweigh the evidence; something we will not do. Jesus M., 203 Ariz. 278, ¶¶ 4, 12, 53 P.3d at 205, 207.
¶19 Lastly, Trisha argues the juvenile court erred in determining termination was in the children's best interests. "A finding that the best interests of the child will be served by removal from a custodial relationship may be established by either showing an affirmative benefit to the child by removal or a detriment to the child by continuing in the relationship." Jennifer B. v. Ariz. Dep't of Econ. Sec., 189 Ariz. 553, 557, 944 P.2d 68, 72 (App. 1997).
¶20 Trisha relies primarily on her testimony claiming she is able to parent and has a bond with her children and that they would be harmed because they would be separated from half-siblings they have known since birth. Again, she ignores contrary evidence in the record that amply supports the court's best-interest finding. Notably, there was the substantial evidence discussed above showing that continued contact with Trisha was harming the children emotionally. See id. And there was evidence the children were doing well in the current placement and were adoptable. See Tina T. v. Dep't of Child Safety, 236 Ariz. 295, ¶ 19, 339 P.3d 1040, 1045 (App. 2014) (fact child "thriving in her current placement" supports juvenile court's best interests finding); Mario G. v. Ariz. Dep't of Econ. Sec., 227 Ariz. 282, ¶ 26, 257 P.3d 1162, 1168 (App. 2011) ("evidence that the child is adoptable" supports best interests).
¶21 For all of the foregoing reasons, we affirm the juvenile court's order terminating Trisha's parental rights to A.C.-F. and T.F.