Shirley R. v. Dcs ( 2018 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
SHIRLEY R., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, J.M., P.M., C.M., Appellees.
No. 1 CA-JV 18-0050
FILED 9-13-2018
Appeal from the Superior Court in Maricopa County
Nos. JD529708
JS518713
The Honorable Janice K. Crawford, Judge
AFFIRMED
COUNSEL
John L. Popilek, P.C., Scottsdale
By John L. Popilek
Counsel for Appellant
Arizona Attorney General’s Office, Mesa
By Lauren J. Lowe
Counsel for Appellee Department of Child Safety
SHIRLEY R. v. DCS, et al.
Decision of the Court
MEMORANDUM DECISION
Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Randall M. Howe joined.
C R U Z, Judge:
¶1 Shirley R. (“Mother”) challenges the superior court’s order
terminating her parental rights to J.M., P.M., and C.M. For the following
reasons, we affirm.
FACTUAL AND PROCEDURAL HISTORY1
¶2 Mother is the biological mother of J.M., born May 2013; P.M.,
born July 2014; and C.M., born August 2015 (collectively, the “Children”).
Tommy M. (“Father”) is their biological father.2 The Children are Indian
children as defined by the Indian Child Welfare Act (“ICWA”) and are
affiliated with the Sault Ste. Marie Tribe of Chippewa Indians.
¶3 In February 2016, the Department of Child Safety (“DCS”)
took the Children into care due to Mother’s ongoing substance abuse and
Father’s inability to care for the Children.3 DCS filed a dependency petition
alleging the Children were dependent as to Mother due to substance abuse,
neglect, and mental illness. A month later, DCS returned the Children to
Mother’s and Father’s care.
¶4 In May 2016, Mother abandoned the home for a period of
weeks and took the State-provided food assistance card, leaving Father and
1 We view the facts in the light most favorable to sustaining the
superior court’s findings. Demetrius L. v. Joshlynn F., 239 Ariz. 1, 2, ¶ 2
(2016).
2 Father’s rights were also terminated. However, he is not a party to
this appeal.
3 DCS had received previous referrals including when J.M. was born
substance-exposed to methamphetamine; when Mother was experiencing
mental health issues on delivery of P.M.; and in May 2014, when the parents
were unable to meet the basic needs of J.M.
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SHIRLEY R. v. DCS, et al.
Decision of the Court
the Children without means to obtain food. As a result, and considering
Mother’s continued untreated substance abuse and mental-health issues,
DCS, the Case Manager, and Father implemented a safety plan. The plan
called for no unsupervised contact between Mother and the Children.
Mother failed to comply with drug testing, however, and Father allowed
her to return to the home in violation of the safety plan. As a result, DCS
removed the children again in June 2016.
¶5 DCS offered Mother numerous TERROS substance abuse
treatment referrals, random drug screens through PSI and TASC, a
psychological evaluation, a psychosexual evaluation, a bonding best
interest assessment, individual counseling, transportation, and supervised
visitation through a parent aide. However, Mother failed to meaningfully
engage in drug testing services, the psychosexual evaluation, or the
bonding and best interest assessment. She did complete a psychological
evaluation in October 2016, but she participated inconsistently in parent
aide services. She completed only the intake and two sessions of individual
counseling.
¶6 The superior court found the Children dependent in
September 2016. At that time, the court also found that DCS had made
active efforts to provide remedial services and rehabilitative programs
designed to prevent the breakup of the Indian family and that the efforts
had been unsuccessful.
¶7 DCS moved for termination of Mother’s parental rights in
September 2017, on the grounds of mental illness, substance abuse, nine
months in an out-of-home placement, and fifteen months in an out-of-home
placement.
¶8 After a termination adjudication hearing, the superior court
terminated Mother’s parental rights on the grounds of substance abuse,
nine months in an out-of-home placement, and fifteen months in an out-of-
home placement. It also found termination was in the Children’s best
interests. Finally, it again found that DCS had made active efforts to
provide remedial services and rehabilitative programs designed to prevent
the breakup of the Indian family and that those efforts had proven
unsuccessful.
¶9 Mother timely appealed. We have jurisdiction pursuant to
Arizona Revised Statutes (“A.R.S.”) sections 8-235(A), 12-120.21(A)(1), and
12-2101(B).
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Decision of the Court
DISCUSSION
I. Indian Child Welfare Act
¶10 Aside from her argument that DCS did not engage in active
efforts to reunify her with the Children, Mother does not challenge the
grounds upon which the superior court terminated her parental rights. She
therefore abandons and waives any contention that the court erred in
granting severance on those bases. Crystal E. v. Dep’t of Child Safety, 241
Ariz. 576, 577, ¶ 5 (App. 2017).
¶11 To terminate parental rights, the superior court must find by
clear and convincing evidence the existence of at least one of the statutory
grounds for termination enumerated in A.R.S. § 8-533(B) and must find by
a preponderance of the evidence that termination would serve the child’s
best interests. Ariz. R.P. Juv. Ct. 66(C); Michael J. v. Ariz. Dep’t of Econ. Sec.,
196 Ariz. 246, 249, ¶ 12 (2000).
¶12 When an Indian child is the subject of a severance petition,
ICWA requires the court to also find “that active efforts have been made to
provide remedial services and rehabilitative programs designed to prevent
the breakup of the Indian family and that these efforts have proved
unsuccessful.” 25 U.S.C. § 1912(d). In addition, the court must find, based
on evidence “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.” 25 U.S.C.
§ 1912(f).
¶13 Mother argues for the first time on appeal that the superior
court abused its discretion by terminating her parental rights because DCS
failed to prove that it had made active efforts to prevent the breakup of the
Indian family and that such active efforts had been unsuccessful. Though
Mother admits DCS had provided her with services, she argues her
substance abuse issues were so severe that DCS should have referred her to
an inpatient drug-abuse program. However, at no time during her
extended dependency proceedings did Mother object to the sufficiency of
the drug treatment services DCS provided, nor did she at any time request
inpatient services. A parent who does not object to the sufficiency of
reunification services in the superior court is precluded from later
challenging that finding on appeal. See State v. Georgeoff, 163 Ariz. 434, 437
(1990) (explaining that “[e]ven constitutional rights may, of course, be
waived”). Therefore, Mother has waived any argument that DCS had failed
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Decision of the Court
to make active efforts to prevent the breakup of her family. Shawanee S. v.
Ariz. Dep’t of Econ. Sec., 234 Ariz. 174, 178-79, ¶¶ 16, 18 (App. 2014).
¶14 Waiver notwithstanding, when Mother had the opportunity
to participate in rehabilitative services, she did not. Instead, Mother
consistently failed to submit to drug testing, with five TERROS referrals
closing due to Mother’s lack of attendance. When Mother was scheduled
to commence a 90-day inpatient treatment program in December 2016, she
left the facility after the first ten minutes. Additionally, after her fifth
referral, TERROS reported Mother had not attended drug screens and was
not making progress toward treatment goals. Instead, in December 2017,
Mother was arrested after methamphetamine and a used syringe were
found in her purse. In addition, Mother failed to fully participate in the
October 2016 psychological evaluation—she discontinued, after completing
just a quarter of the assessment. According to Dr. Brimlow, the qualified
expert witness tasked with administering Mother a psychological
evaluation, he encouraged Mother to return and complete testing, but
Mother responded that she was “just going to click random buttons,” and
“just wanted to get it done and over with.” As a result of this evaluation,
Mother was referred for a psychosexual evaluation and a bonding
assessment. Mother did not participate in either evaluation. Likewise, the
parent-aide services and supervised visitation referral were closed due to
Mother’s inconsistent attendance and unwillingness to accept guidance on
matters such as age-appropriate behaviors for the Children. The record
supports the superior court’s findings that DCS made active efforts to
prevent the breakup of the Indian family and that those efforts have proven
unsuccessful.4
II. Assistance of Counsel
¶15 Mother argues for the first time on appeal that the court erred
by failing to grant her trial-day request for a continuance and to appoint
new counsel when, according to her, it became clear there was a conflict
between the two. When considering an indigent parent’s request for new
counsel, courts should consider the rights and interests of the requesting
parent against the necessity of judicial economy. See State v. LaGrand, 152
Ariz. 483, 486 (1987). We review a court’s denial of a request for substitute
4 The superior court also found, and Mother does not contest,
pursuant to 25 U.S.C. § 1912(f), that the continued custody of the Children
by Mother is likely to result in serious emotional or physical damage to the
Children.
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Decision of the Court
counsel for an abuse of discretion. State v. Paris-Sheldon, 214 Ariz. 500, 504,
¶ 8 (App. 2007).
¶16 Although one may ask for a change of appointed counsel
based on the presence of an irreconcilable conflict, an indigent parent must
first present specific factual allegations that raise a colorable claim of such
a conflict with appointed counsel. See State v. Torres, 208 Ariz. 340, 343, ¶ 9
(2004). Here, Mother did not raise a colorable claim that necessitated
further inquiry by the court. Between the months of February and
September of 2016, Mother attended seven dependency hearings with her
court-appointed counsel. A review of the record before us reflects that at
no time during those court proceedings did Mother raise any concerns or
dissatisfaction with her counsel’s performance. Then, between December
and September of 2017, Mother stopped coming to court. She failed to
appear at any of the seven hearings conducted during that time, and the
record is devoid of any excuse for her absences. More than a year after her
last court appearance, on the first day of trial, Mother appeared in court
and, without more, requested new court-appointed counsel and a delay of
proceedings. Neither Mother, nor counsel, advised the court of any
justification for either request. The superior court advised Mother of the
dangers of self-representation and allowed her to choose whether to go
forward with counsel or represent herself. Presumably Mother chose the
former as evidenced by counsel’s continued representation throughout the
proceedings without further objection from Mother. Given the record and
the fact that granting Mother’s request at such a late stage of the
proceedings would have caused a significant delay, the superior court did
not abuse its discretion in denying Mother’s requests.
¶17 Mother also seems to assert, without specifics, that her court-
appointed counsel was ineffective. Indigent parents facing severance
proceedings have the statutory right under A.R.S. § 8–221(B) and the Due
Process Clause to court-appointed counsel. Daniel Y. v. Ariz. Dep’t of Econ.
Sec., 206 Ariz. 257, 260, ¶¶ 14-15 (App. 2003). Assuming without deciding
that ineffective assistance of counsel may constitute an independent ground
for appealing a termination order, the parent must first establish “that
counsel’s representation fell below prevailing professional norms and that
a reasonable probability exists that, but for counsel’s errors, the result of the
proceeding would have been different.” John M. v. Ariz. Dep’t of Econ. Sec.,
217 Ariz. 320, 323-25, ¶¶ 8, 17 (App. 2007). Although Mother now claims,
without explanation, that she was unable to communicate with her lawyer
in the weeks before trial and as a result, she could not participate in trial
preparation, she does not claim her counsel’s trial performance was
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SHIRLEY R. v. DCS, et al.
Decision of the Court
deficient or that she suffered any resulting prejudice. Accordingly, this
claim also fails.
CONCLUSION
¶18 For the foregoing reasons, we affirm the superior court’s
order terminating Mother’s parental rights.
AMY M. WOOD • Clerk of the Court
FILED: AA
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