Opinion
1 CA-JV 11-0216
04-19-2012
WILLIAM M., JESSICA M., Appellants, v. ARIZONA DEPARTMENT OF ECONOMIC SECURITY, WILLIAM M., Appellees.
Thomas C. Horne, Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section And Amanda Holguin, Assistant Attorney General Attorneys for Appellee Mesa The Brewer Law office By Benjamin M. Brewer Attorneys for Appellant/Father William M. Showlow Diane S. Mccoy, Mohave County Appellate Defender Attorney for Appellant/Mother Jessica M. Kingman
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(Not for Publication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 Mohave County
Cause No. S8015JD201000032
The Honorable Richard Weiss, Judge
AFFIRMED
Thomas C. Horne, Attorney General
By Kent E. Cattani, Chief Counsel
Criminal Appeals/Capital Litigation Section
And Amanda Holguin, Assistant Attorney General
Attorneys for Appellee
Mesa
The Brewer Law office
By Benjamin M. Brewer
Attorneys for Appellant/Father William M.
Showlow
Diane S. Mccoy, Mohave County Appellate Defender
Attorney for Appellant/Mother Jessica M.
Kingman GOULD , Judge
¶1 Jessica M. ("Mother") and William M. ("Father") (collectively "Parents") appeal from the juvenile court's order terminating their parental rights to William M. ("Child"). For the reasons that follow, we affirm.
Factual and Procedural Background
¶2Child was removed from Parents' care at birth, in December 2010, because their three older children were currently involved in a dependency proceeding. The older children had been removed due to neglect and failure to protect. In January 2011, the Arizona Department of Economic Security ("ADES") filed a supplemental dependency petition to initiate a dependency proceeding for Child. In February, ADES moved to terminate the parent-child relationships between Mother and Father and their three older children. In the midst of the severance trial to the three older children, ADES filed a motion to terminate Mother's and Father's parental rights as to Child.
¶3 In August 2011, the juvenile court terminated Mother's and Father's parent-child relationships with their three older children. We provide a summary of the facts relevant to the terminations of Mother's and Father's parent-child relationship with Child below.
¶4 Law enforcement conducted a search of Parents' home to investigate allegations of child pornography. Because of the unsafe, unhygienic living conditions found in the home, the children were removed from Parents' care. Mother and Father were arrested and pled guilty to felony child abuse. After being removed from the home, the children participated in a forensic interview and sexual assault forensic exam; the exam revealed that all three of the older children had been sexually abused. The court terminated Mother's and Father's parental rights to their three older children.
¶5 Shortly after the severance of the three older children, ADES filed an amended motion for termination of Mother's and Father's parental rights to Child. The juvenile court held a severance trial on October 3, 2011. The court took judicial notice of the record in the prior severance of Mother's and Father's three older children. The current CPS case manager testified that Child had been removed because the situation requiring removal of Parents' three older children had not been remedied at the time of Child's birth. She testified that neither parent had made any behavior changes. Mother continued to live with Father despite having been told the case plan would become severance and adoption if she did not find a place to live away from Father. Father did not participate in services offered beyond parenting classes, and neither he nor Mother took responsibility for the circumstances that brought Child into care. A Child Protective Services ("CPS") case manager testified severance was in Child's best interests and that because of Child's young age, he would be more vulnerable to harm than his three older siblings if returned to the home.
¶6 The CPS case manager stated, and Mother acknowledged, that Mother living separately from Father was a requirement of the case plan. On the date of the trial, Mother was still living in the same home with Father from which her children were removed. Mother testified that she planned to move into a different house within two weeks of the severance trial. Mother stated the house needed some repairs - drywall, insulation, and carpet installation - and it would not be ready for her to move into for two weeks. She intended to move into the house without Father if her parental rights to Child were not severed but Father's were. She stated, though, that if both hers and Father's parental rights were not severed, Father would move into the house with her.
¶7 At the conclusion of the trial, the juvenile court found by clear and convincing evidence that termination of Mother's and Father's parental rights was appropriate under Arizona Revised Statutes ("A.R.S.") sections 8-533(B)(2) (neglect), (B)(2) (abuse), (B)(8)(b), (B)(10). The court also found that ADES had made diligent efforts to provide appropriate reunification services, and Mother and Father failed to remedy the circumstances that caused Child to be placed in care. Finally, the court found by a preponderance of the evidence that termination was in Child's best interests. Mother and Father timely appealed.
Discussion
¶8 On appeal, "[w]e view the evidence in a severance case in the light most favorable to sustaining the juvenile court's findings." Christina G. v. Ariz. Dep't of Econ. Sec., 227 Ariz. 231, 234, ¶ 13, 256 P.3d 628, 631 (App. 2011). The juvenile court is in the best position to weigh the evidence, observe the parties, judge the credibility of witnesses, and make appropriate findings; we will only reject the court's findings if no reasonable evidence supports them. Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, 280, ¶ 4, 53 P.3d 203, 205 (App. 2002). If we find one of the statutory grounds on which the court ordered severance is supported by clear and convincing evidence, we will affirm. See Id. at ¶ 3.
I. Father
¶9 Father appeals the juvenile court's termination of his parental rights to Child claiming that (1) he was denied effective assistance of counsel throughout the proceedings, (2) the court abused its discretion by admitting exhibits from a prior severance trial, (3) substantial evidence did not support the severance of his parental rights pursuant to A.R.S. § 8-533 (B)(2), (4) the court abused its discretion in finding ADES was diligent in providing services to Father, and (5) the court abused its discretion in finding Father substantially failed to comply with services.
a. Father's Ineffective Assistance of Counsel Claim is Meritless
¶10 We reject Father's claim that ineffective assistance of counsel denied him an opportunity to be heard meaningfully at the severance trial because Father has not shown any resulting prejudice. We will not review an ineffective assistance of counsel claim on direct appeal unless "we may clearly determine from the record that the ineffective assistance claim is meritless." State v. Whalen, 192 Ariz. 103, 110, 961 P.2d 1051, 1058 (App. 1997) (quoting State v. Carver, 160 Ariz. 167, 175, 771 P.2d 1382, 1390 (1989)). To prevail on an ineffective assistance claim, a party must show that the representation fell below prevailing professional norms and that the party was prejudiced by the deficient representation. John M. v. ADES, 217 Ariz. 320, 323, ¶ 8, 173 P.3d 1021, 1024 (App. 2007). Father claims he was denied the opportunity to be heard meaningfully because his counsel failed to call any witnesses and did not timely object to ADES' disclosure. We need not inquire into counsel's performance because Father has not demonstrated any resulting prejudice. Id. Father has not identified witnesses that counsel should have called. Father also claims that counsel's deficiencies permitted "potentially inadmissible evidence to be placed before the trier of fact," but he does not indicate what specific inadmissible evidence was considered.
We address Father's ineffective assistance of counsel claim assuming without deciding that such a claim is properly raised in the context of a dependency proceeding. See In re Santa Cruz Cnty. Juv. Dependency Action Nos. JD-89-006 and JD-89-007, 167 Ariz. 98, 101, 804 P.2d 827, 830 (App. 1990).
b. The Court Properly Took Judicial Notice of the Prior Severance Trial
¶11 Father next argues the juvenile court abused its discretion by taking judicial notice of the record in the severance trial of Father's three older children. Generally, a court may take judicial notice of procedural facts reflected in the record of another superior court action, but it may not take judicial notice of "the truth of testimony received in that other action." State v. Lynch, 115 Ariz. 19, 22, 562 P.2d 1386, 1389 (App. 1977). However, "[a] court may take judicial notice of the record in another action tried in the same court." Reidy v. O'Malley Lumber Co., 92 Ariz. 130, 132, 374 P.2d 882, 884 (1962); see also Pierpont v. Hydro Mfg. Co., 22 Ariz. App. 252, 254, 526 P.2d 776, 778 (1974). The juvenile court properly took judicial notice of the record in the prior severance of Father's three older children because both matters took place in the same court, under the same cause number. See Visco v. Universal Refuse Removal Co., 11 Ariz. App. 73, 74, 462 P.2d 90, 91 (1969) ("In Arizona it is proper for a court to take judicial notice of the record in another action tried in that same court.").
c. Reasonable Evidence Supports Severance of Father's Parental Rights Pursuant to A.R.S. § 8-533(B)(8)(b)
¶12 Father challenges the juvenile court's findings supporting severance of his parental rights for the following reasons: (1) substantial evidence did not support the severance of his parental rights pursuant to A.R.S. § 8-533 (B)(2), (2) the court abused its discretion in finding ADES was diligent in providing services to Father, and (3) the court abused its discretion in finding Father substantially failed to comply with services. Because we find one of the statutory grounds on which the court ordered severance is supported by clear and convincing evidence, "we need not address claims pertaining to the other grounds." Jesus M., 203 Ariz. at 280, ¶ 3, 53 P.3d at 205 (citing Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, 251, ¶ 27, 995 P.2d 682, 687 (2000)).
ADES points out that Father failed to challenge the juvenile court's finding that termination of his parental rights was justified under A.R.S. § 8-533(B)(10). We may assume that findings of fact not challenged on appeal are conceded. See Schabel v. Deer Valley Unified Sch. Dist. No. 97, 186 Ariz. 161, 167, 920 P.2d 41, 47 (App. 1996). However, because we find the court's finding that severance was justified under A.R.S. § 8-533(B)(8)(b) is supported by reasonable evidence, we affirm the termination of Father's parental rights on that basis.
¶13 Arizona Revised Statutes § 8-533(B)(8)(b) provides for termination of the parent-child relationship on the following grounds:
8. That the child is being cared for in an out-of-home placement under the supervision of the juvenile court, the division or a licensed child welfare agency, that the agency responsible for the care of the child has made a diligent effort to provide appropriate reunification services and thatChild was under three years of age and had been in an out-of-home placement for longer than six months at the time of the severance trial. Child was originally removed and found dependent due to the abuse, neglect and sexual abuse of his three older siblings. When CPS removed the three older children the condition of the home was unfit. Additionally, beyond the dirty and disrepaired home, the children exhibited behaviors indicating severe abuse and neglect. All three "were almost feral." They would hoard food and stuff themselves, they ate out of the dog bowls and drank out of toilets, they were unable to communicate, and they were found to have parasites. The three older children had been sexually abused, and they exhibited symptoms of severe trauma. They suffered from night terrors, reported fear of monsters, displayed parentified behaviors, and experienced disrupted sleep and behavioral relapses with any change in their daily routine. Based on the condition of the three older children ADES alleged Father would not be able to nurture or protect Child, and Child was removed.
...
(b) The child who is under three years of age has been in an out-of-home placement for a cumulative total period of six months or longer pursuant to court order and the parent has substantially neglected or wilfully refused to remedy the circumstances that cause the child to be in an out-of-home placement, including refusal to participate in reunification services offered by the department.
¶14 Father substantially neglected or wilfully refused to remedy the circumstances that caused Child to be in an out-of-home placement, including refusal to participate in reunification services offered by ADES. Throughout the dependency proceedings beginning with the three older children, and culminating in the severance of Father's parental rights to Child, Father was noncompliant with services. Father was primarily concerned about the criminal charges filed against him and did not comply with CPS' recommendations regarding the children.
¶15 Father argues on appeal that he only refused to participate in services that would "require him to admit to all his alleged wrong-doings" and subject him to criminal liability. He claims the court's finding that he had substantially failed to comply with services improperly forced him to choose between his right to be free from compelled self-incrimination, and his right to parent. The Fifth Amendment privilege against compelled self-incrimination can be claimed in any proceeding; it operates so that "the State cannot, 'expressly or by implication,' impose 'a penalty for the exercise of the privilege.'" Minh T. v. Ariz. Dep't of Econ. Sec., 202 Ariz. 76, 79, ¶ 13, 41 P.3d 614, 617 (App. 2001) (quoting In re Amanda W., 705 N.E.2d 724, 727 (App. 1997)); see also U.S. Const. amend. V. The Fifth Amendment did not exempt Father from participating in reunification services. Requiring Father to participate in reunification services did not necessarily mean he would be required to incriminate himself. See Minh T., 202 Ariz. at 80, ¶ 16, 41 P.3d at 618. Father was informed that participation in the reunification services offered was necessary to reunite with Child, but he was never ordered, as part of the case plan, to admit to any criminal acts. See id.
Father was required to participate in a psycho-sexual evaluation before ADES would permit supervised visitation with Child. The difficult choices Father faced in complying with ADES' requirements are "a consequence of [his] actions, and the difficulty is not removed by the Fifth Amendment." Minh T., 202 Ariz. at 80, ¶ 16, 41 P.3d at 618 (quoting In re M.C.P., 571 A.2d 627, 641 (Vt. 1989)). The State "may require the parents to . . . undergo treatment" including therapy, even if therapy that does not include incriminating disclosures would be considered ineffective. In re M.C.P., 571 A.2d 627, 640 (quoting In re J.W., 415 N.W.2d 879, 883 (Minn. 1987)). The resulting consequence that "ineffective therapy may hurt the parents' chances of regaining their children . . . lie[s] outside the protective ambit of the Fifth Amendment." Id. It is Father's burden "to show that [he] ha[s] become [a] good parent[], without admitting to any misconduct." Id. at 641. Father did not satisfy his burden; in addition to his refusal to participate in a psycho-sexual evaluation, he also minimally attended individual counseling, never participated in family counseling, and eventually disenrolled from mental health services.
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¶16 Father next challenges the juvenile court's finding that ADES made a diligent effort to provide Father appropriate reunification services. ADES must "undertake measures with a reasonable prospect of success" of reuniting the family. Mary Ellen C. v. Ariz. Dep't of Econ. Sec., 193 Ariz. 185, 192, ¶ 34, 971 P.2d 1046, 1053 (App. 1999). However, ADES is not required to make efforts that would be futile. Jordan C. v. Ariz. Dep't of Econ. Sec., 223 Ariz. 86, 94, ¶ 20, 219 P.3d 296, 304 (App. 2009). Child was removed in the midst of the dependency and termination proceedings of Father's three older children, thus, Father had been receiving reunification services prior to the removal that were also considered services to prevent Child's removal and promote reunification. ADES provided Father with transportation, psychological evaluations, psycho-sexual evaluations, individual counseling, family counseling, parenting classes, and supervised visitations upon completion of a psycho-sexual evaluation. Father only attended two sessions of individual counseling and never participated in family counseling. In May 2011 Father disenrolled from Mohave Mental Health Center and declined further services. Father never participated in the court-ordered psycho-sexual evaluation; as a result, he was not offered visitation with Child. Father complains that ADES denied him visitation with Child; however, ADES is not required to provide parent visitation that could adversely affect the child. See Maricopa Cnty. Juv. Action No. JD-5312, 178 Ariz. 372, 376, 873 P.2d 710, 714 (App. 1994). The record supports the juvenile court's finding that ADES made a diligent effort to provide Father with appropriate reunification services.
¶17 Father does not challenge the juvenile court's finding that severance of his parental rights would be in Child's best interests. Because we find reasonable evidence supports severance of Father's parental rights pursuant to A.R.S. § 8-533(B)(8)(b); we will not address Father's claims pertaining to the other grounds. Jesus M., 203 Ariz. at 280, ¶ 3, 53 P.3d at 205.
II. Mother
¶18 Mother appeals the juvenile court's termination of her parental rights to Child claiming that (1) there was insufficient evidence to support termination for neglect under A.R.S. § 8-533(B)(2), (2) there was insufficient evidence to support termination for abuse under A.R.S. § 8-533(B)(2), (3) the juvenile court abused its discretion in finding Mother substantially neglected or wilfully refused to remedy the circumstances that caused Child to be in an out-of-home placement and in terminating her parental rights under A.R.S. § 8-533(B)(8)(b), (4) there was insufficient evidence to support termination under A.R.S. § 8-533(B)(10), and (5) the juvenile court erred in finding termination of Mother's parental rights was in Child's best interests. Because we find one of the statutory grounds on which the court ordered severance is supported by clear and convincing evidence, "we need not address claims pertaining to the other grounds." Jesus M., 203 Ariz. at 280, ¶ 3, 53 P.3d at 205 (citing Michael J., 196 Ariz. at 251, ¶ 27, 995 P.2d at 687 (2000)).
a. Reasonable Evidence Supports Termination of Mother's Parental Rights on Grounds of Abuse Pursuant to A.R.S. § 8-533(B)(2)
¶19 Mother challenges the juvenile court's finding that her parental rights be terminated on grounds of abuse. Mother argues that she could not have been aware of the abuse to her three older children because signs of sexual abuse were not readily observable. She claims that she was unaware of Father's child pornography addiction and that she did not know - and no one could know - if Father had sexually abused the three older children. She challenges the court's reliance on her conviction of felony child abuse as a factual basis for termination of her parental rights. Mother further reasons that there is no nexus between the abuse to the three older children and the risk of abuse to Child.
¶20 The parent-child relationship can be terminated when a "parent has neglected or wilfully abused a child." A.R.S. § 8-533(B)(2). The statute defines abuse to include "serious physical or emotional injury or situations in which the parent knew or reasonably should have known that a person was abusing or neglecting a child." Id. Under this statutory ground "parents who abuse or neglect their children, or who permit another person to abuse or neglect their children, can have their parental rights to their other children terminated even though there is no evidence that the other children were abused or neglected." Linda V. v. Ariz. Dep't of Econ. Sec., 211 Ariz. 76, 79, ¶ 14, 117 P.3d 795, 798 (App. 2005). An adequate nexus must be established between abuse to another child and the current termination of the child. Mario G. v. Ariz. Dep't of Econ. Sec., 227 Ariz. 282, 287, ¶ 22, 257 P.3d 1162, 1167 (App. 2011).
¶21 Mother's three older children were originally removed due to deplorable conditions in the home. The home "was cluttered with dirty clothes and diapers, molded and spoiled food, feces, and several rabbits' feet and a snake's tail in the sink of the kitchen, which had no food." The children were "almost feral" and unable to communicate. Even after being placed in foster care and receiving counseling and treatment, the children were traumatized and sensitive to change; any alteration in their routine would cause them to suffer from night terrors, have trouble sleeping, and regress to drinking out of toilets and hoarding food. Beyond the physical signs of sexual abuse, these behaviors should have alerted Mother that the children had suffered serious emotional injury. Throughout the dependency of the three older children the juvenile court emphasized to Mother the importance of protecting the children from harm, a major source of which was Father, and the need for Mother to separate from Father in order to provide a safe environment.
¶22 An adequate nexus was established between the abuse of the three older children and the risk of abuse to Child. At the severance trial the CPS case manager testified that there had been no known behavior changes by the parents when Child was removed, and that Child would be more vulnerable to abuse than his siblings due to his young age. Mother participated in a psycho-sexual evaluation in July 2010 that indicated she lacked sufficient identity with and did not understand the protectiveness of the maternal role. The report sought to address Mother's issues of passivity, dependence and codependence through therapy. Mother was reevaluated in January 2011. Despite Mother's participation in individual counseling and parenting services, Mother did not display any measurable progress. Mother was still living with Father, she had failed to develop behaviors associated with protective parenting and she remained unsuitable for reunification. The report stated that although "[Mother] may be maintaining a clean and orderly dwelling at this point . . . there were numerous other behaviors associated with traumatization to her children which cannot be ignored and for which there is little evidence that change has occurred."
¶23 Mother's actions throughout the dependency and eventual severance of her children indicate she is unable to protect Child from abuse. Throughout counseling Mother continued to support and aggressively defend Father and continually stated that she would not separate from Father because of religious reasons. At the severance trial in October, Mother was still living with Father in the home despite the fact that she had been told this would result in the case plan being changed to severance and adoption. Mother testified she would be moving into a house about two weeks after the severance trial once drywall, insulation, and carpet were installed. However, when questioned whether Father would be living with her, Mother stated that if Father's parental rights were severed she would move in without him, but if his parental rights were not severed, he would move into the home with her and Child.
b. Severance Is in Child's Best Interests
¶24 Mother challenges the juvenile court's finding that termination of Mother's relationship with Child is in Child's best interests. The court found that continuation of the relationship "would be a detriment to the child due to the continued risk of abuse and neglect as well as the lack of safety and stability in the home." Mother's unresolved issues of depression and passivity, in addition to her continued adherence to Father, as evidenced by the fact that she was continuing to live with Father at the time of the severance trial, indicate that Mother could not adequately protect Child. The CPS case manager testified that the dangers in the home had not been remedied and Child would suffer potential danger in the future if Mother's parental rights were not terminated. The evidence supports the court's finding by a preponderance of the evidence that termination of Mother's relationship is in Child's best interests.
Conclusion
¶25 For the foregoing reasons, we affirm the juvenile court's order terminating Father's and Mother's parental rights to Child.
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ANDREW W. GOULD, Judge
CONCURRING:
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MAURICE PORTLEY, Presiding Judge
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ANN A. SCOTT TIMMER, Judge