Nicole L. v. Dcs, N.B. ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
NICOLE L.,
Appellant,
v.
DEPARTMENT OF CHILD SAFETY, N.B.,
Appellees.
No. 1 CA-JV 18-0031
FILED 9-20-2018
Appeal from the Superior Court in Maricopa County
No. JD32064
The Honorable Jo Lynn Gentry, Judge
AFFIRMED
COUNSEL
David W. Bell, Attorney at Law, Higley
By David W. Bell
Counsel for Appellant
Arizona Attorney General's Office, Phoenix
By Carol A. Salvati
Counsel for Appellee DCS
NICOLE L. v. DCS, N.B.
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Diane M. Johnsen delivered the decision of the Court, in
which Judge Maria Elena Cruz and Judge Randall M. Howe joined.
J O H N S E N, Judge:
¶1 Nicole L. ("Mother") appeals the superior court's order
severing her parental rights. Because sufficient evidence supports the
order, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 In February 2015, the Department of Child Safety ("DCS")
received a report that Mother's daughter, born in 2006, needed medical help
for severe behavioral issues, which included punching, kicking, screaming,
refusing to go to school and "lock[ing] herself into a bathroom stall,"
requiring a school custodian "to crawl under the door" to retrieve her. The
child was living with her grandmother, who did not have legal authority to
obtain treatment for her. DCS asked Mother to provide paperwork
authorizing treatment. After a year passed without Mother authorizing
treatment, DCS petitioned for dependency, alleging Mother was neglecting
her child. The superior court granted DCS's petition in March 2016,
approved a case plan of reunification and ordered DCS to provide Mother
with services to facilitate reunification.
¶3 DCS referred Mother for a psychological evaluation. In June
2016, the psychologist reported Mother had unaddressed past trauma that
affected her ability to parent and to bond with her child. According to the
psychologist, Mother had neglected her daughter's needs and then
minimized her neglect. The psychologist concluded that, due to Mother's
"untreated mental health issues," history of neglecting her child's needs,
limited insight, and financial and housing situation, the prognosis that she
could demonstrate minimally adequate parenting skills in the foreseeable
future was "fair to poor." The psychologist recommended Mother participate
in various activities, including parent-aide services and parenting classes,
"until she can demonstrate age-appropriate expectations" for her daughter
and can meet her needs. The psychologist specifically stated that Mother
required individual therapy to "address her untreated mental health issues
including history of trauma as a child, report of being involved in a
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Decision of the Court
domestic violence incident, limited insight into psychological issues, and
tendency to minimize her role and responsibility in neglecting her child[]."
Accordingly, the psychologist recommended Mother undergo individual
therapy "for a minimum of" one year. He also recommended a bonding
assessment "to clarify the quality of [the] bond" Mother had with her
daughter.
¶4 Through the end of 2016, Mother participated in reunification
services with mixed success. She submitted to a psychiatric evaluation and
successfully passed drug tests. She claimed to have self-referred for
individual counseling, but as of December 2016, the provider had shut
down without forwarding records to verify her participation. Mother was
unsuccessfully closed out of parent-aide services in November 2016, with
the parent aide noting she acted like a friend to her daughter, not a parent.
¶5 On February 1, 2017, DCS notified Mother that it was
referring her to another individual counseling provider and gave her the
provider's telephone number. But Mother did not respond to the provider's
initial attempts to begin services, delaying her intake appointment until
April 10. The child by then had been placed with her aunt, and, with the
parent-aide service closed out, the placement offered to provide Mother
with supervised visits. But the placement rescinded that offer after Mother
began appearing at her home without prior notice. Meanwhile, the DCS
case worker left a telephone message on March 9 for Mother with contact
information for a new therapeutic-visit provider. After Mother did not
respond, the case worker telephoned her again on March 15, but her
voicemail was full. The provider (the same provider assigned for Mother's
individual counseling) finally reached Mother on April 7.
¶6 In May 2017, DCS moved the court to change the case plan to
severance and adoption, and the court did so. DCS then filed a motion for
severance on nine-month and fifteen-month time-in-care grounds under
Arizona Revised Statutes ("A.R.S.") section 8-533(B)(8)(a) and (c) (2018).1 In
December 2017, the superior court held a severance hearing at which
1 Absent material change since the relevant date, we cite the current
version of a statute.
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Decision of the Court
Mother and the DCS caseworker testified. The court severed Mother's
parental rights on both grounds.2
¶7 Mother timely appealed. We have jurisdiction pursuant to
Article 6, Section 9, of the Arizona Constitution, A.R.S. §§ 8-235(A) (2018),
12-120.21(A)(1) (2018), -2101(A)(1) (2018) and Rule 103(A) of the Arizona
Rules of Procedure for the Juvenile Court.
DISCUSSION
A. Legal Principles.
¶8 The right to custody of one's child is fundamental but not
absolute. Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, 248, ¶¶ 11-12
(2000). A party seeking termination of a parent-child relationship must
prove: (1) by clear and convincing evidence, the existence of a statutory
ground under A.R.S. § 8-533(B), Michael J., 196 Ariz. at 249, ¶ 12; and (2) by
a preponderance of the evidence, that termination is in the best interests of
the child. See Kent K. v. Bobby M., 210 Ariz. 279, 288, ¶ 41 (2005).
¶9 The superior court is the trier of fact in a termination
proceeding. Jordan C. v. Ariz. Dep't of Econ. Sec., 223 Ariz. 86, 93, ¶ 18 (App.
2009). We view the evidence and reasonable inferences drawn from the
evidence in the light most favorable to sustaining the superior court's
decision. Id. We will not reweigh the evidence and will not reverse unless
no reasonable evidence supports the court's factual findings. Id.
B. 15-Months' Out-of-Home Care.
¶10 To establish the 15-months' out-of-home placement ground
for severance under § 8-533(B)(8)(c), DCS must show that (1) the child has
been in an out-of-home placement under its supervision for a cumulative
total of at least 15 months; (2) DCS has made "a diligent effort to provide
appropriate reunification services"; (3) "the parent has been unable to
remedy the circumstances that cause the child to be in an out-of-home
placement"; and (4) "there is a substantial likelihood that the parent will not
be capable of exercising proper and effective parental care and control in
the near future." On appeal, Mother does not dispute that her daughter has
2 The court also severed the rights of the child's father, who is not a
party to this appeal. The court's severance order incorrectly stated that the
child's grandmother was the placement at the time of severance. The court
later issued a correction to reflect that the child's placement was the child's
paternal aunt and uncle.
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Decision of the Court
been in care for 15 months, but contests each of the other elements of
severance.
1. DCS's efforts at providing reunification services.
¶11 Mother first argues DCS failed to provide her with adequate
reunification services. Her argument is based on a challenge DCS raised at
the severance hearing to a report from a therapeutic visitation provider that
Mother had successfully completed that service. DCS's position at the
hearing was that the provider had closed Mother out without affirming that
she had made the required behavioral changes.
¶12 The superior court found that Mother had waived any
challenge to the adequacy of DCS services by failing to object at any point
in the dependency. On appeal, DCS likewise argues Mother has waived
any argument about the adequacy of the therapeutic visitation services.
¶13 We will consider Mother's argument about the visitation
services because it is not clear she had the opportunity to raise the issue
before the termination hearing. The therapeutic visitation provider closed
Mother out in September 2017, stating she had successfully completed
services. The record does not clearly disclose that DCS questioned the
provider's determination at the time. Indeed, there is no evidence Mother
learned more than a few days before the severance hearing of DCS's
concern about the provider's conclusion that Mother had successfully
completed the service. Finally, after learning of DCS's concern, Mother
cross-examined the DCS case worker on the topic at the hearing.
¶14 To satisfy DCS's obligation to provide reunification services
under § 8-533(B)(8), DCS must prove it "made a reasonable effort to
preserve the family." Mary Ellen C. v. Ariz. Dep't of Econ. Sec., 193 Ariz. 185,
192, ¶ 33 (App. 1999). This requires DCS to "undertake measures with a
reasonable prospect of success" and "provide a parent with the time and
opportunity to participate in programs designed to improve the parent's
ability to care for the child." Id. at 192, ¶¶ 34, 37. It does not require DCS
to provide "every conceivable service." Id. at 192, ¶ 37 (quoting Maricopa
Cty. Juv. Action No. JS-501904, 180 Ariz. 348, 353 (App. 1994)).
¶15 The DCS case worker testified that, after determining the
therapeutic visitation reports were deficient, she attempted to contact the
provider. When the provider did not respond, DCS reassigned Mother to
another provider. Although Mother had little time before the severance
hearing to begin working with the new provider, DCS's efforts to remedy
the problem it identified with the prior provider might have been successful
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NICOLE L. v. DCS, N.B.
Decision of the Court
if Mother had begun therapeutic visitation in early March 2017, when she
was first referred to the provider, rather than three months later in late
June 2017.
¶16 Moreover, as the superior court noted in detail, DCS provided
Mother numerous other services, including parenting classes, parent aide,
supervised visitation, individual counseling and psychological evaluations.
Those services gave Mother opportunities to develop her parenting skills
and for professionals to assess her parenting skills and her temperament for
parenting. On this record, sufficient evidence supported the superior
court's finding that DCS provided Mother "with the time and opportunity
to participate in programs designed to improve [Mother's] ability to care
for the child." Mary Ellen C., 193 Ariz. at 192, ¶ 37.
2. Circumstances causing the out-of-home placement.
¶17 DCS was required to show Mother was unable to remedy the
circumstances existing at the time of the severance hearing that
"prevent[ed] [Mother] from being able to appropriately provide" for her
child. See Marina P. v. Ariz. Dep't of Econ. Sec., 214 Ariz. 326, 330, ¶ 22 (App.
2007). In support of its conclusion that Mother had failed to remedy the
circumstances that caused the out-of-home placement, the superior court
found Mother did not have "housing appropriate for the child" and had not
"made the behavioral changes . . . [or] demonstrated appropriate parenting
skill[s] despite the services that were offered."
¶18 Sufficient evidence supports the court's findings. Mother
testified at the hearing that she recently moved in with a friend because
there wasn't "enough room" for her at her prior residence.
¶19 As for the court's finding that Mother had not made the
behavioral changes required to demonstrate she could properly parent her
daughter, Mother delayed in beginning counseling and had not completed
the psychologist's recommended year of counseling by the time of the
termination hearing. Mother's parent-aide provider closed her out
unsuccessfully, noting that she acted more as the child's friend than her
parent. Although DCS referred her for visitation in March 2017, Mother
had no visits with her child between March 2017 and the beginning of
therapeutic visitation in June 2017, and from the closure of her therapeutic
visitation in September 2017 until late November 2017.
¶20 Further, when DCS notified her that it had made an
appointment with the psychologist for a second assessment in September
2017, just a few months before the severance hearing was to begin, Mother
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Decision of the Court
did not show up for the appointment, explaining after the fact that she
"couldn't find the time." The follow-up assessment would have allowed the
psychologist to evaluate her progress over the 15 months since the first
assessment in addressing the mental-health issues that were preventing her
from properly parenting her daughter. It also could have triggered a
bonding assessment that likewise would have allowed Mother to
demonstrate her progress.
¶21 In sum, substantial evidence supported an inference that
Mother had not changed her behavior or demonstrated proper parenting
skills, and so had not remedied the circumstances causing the out-of-home
placement. Although the record contains countervailing evidence, we will
not reweigh the evidence and will not reverse unless no reasonable
evidence supports the superior court's factual findings. Jordan C., 223 Ariz.
at 93, ¶ 18.
3. The likelihood of Mother being capable of properly
parenting the child in the near future.
¶22 Sufficient evidence also supports the superior court's
determination that there was a substantial likelihood Mother would not be
capable of "exercising proper and effective parental care and control in the
near future." A.R.S. § 8-533(B)(8)(c).
¶23 The superior court based its determination in part on
Mother's lack of stable housing, which is supported by the evidence. But
other evidence also shows that Mother did not take advantage of the
opportunities DCS offered her over the course of the dependency to
demonstrate she had overcome her parenting challenges. As noted, the
psychologist initially concluded that the prognosis that Mother could
adequately parent the child in the near future was "fair to poor." He
observed that Mother's history of trauma likely impaired her ability to bond
with or parent her child and opined that there were "reasonable grounds to
believe" Mother's inability to properly parent her child would continue "for
an indeterminate amount of time," especially if Mother's condition remained
untreated. The psychologist recommended Mother receive individual
therapy for at least a year and participate in a bonding assessment. Mother
failed to complete a year of individual therapy, however, and did not show
up for a second psychological evaluation scheduled before a bonding
assessment.
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Decision of the Court
C. Child's Best Interests.
¶24 DCS can establish that severance is in the best interests of the
child "by either showing an affirmative benefit to the child by removal or a
detriment to the child by continuing in the relationship." Jesus M. v. Ariz.
Dep't of Econ. Sec., 203 Ariz. 278, 282, ¶ 14 (App. 2002). When the superior
court severs a parent-child relationship, the court "must include a finding
as to how the child[] would benefit from a severance or be harmed by the
continuation of the relationship." Xavier R. v. Joseph R., 230 Ariz. 96, 99-100,
¶ 11 (App. 2012); see also A.R.S. § 8-538(A) (2018) (order terminating
parental rights "shall recite the findings on which the order is based").
¶25 "In combination, the existence of a statutory ground for
severance and the immediate availability of a suitable adoptive placement
for [a child] frequently are sufficient to support a severance order." Ariz.
Dep't of Econ. Sec. v. Oscar O., 209 Ariz. 332, 335, ¶ 8 (App. 2004). The
superior court found "there is a plan for adoption" by the paternal aunt and
uncle, and "if the current case plan cannot for any reason move forward, the
child is adoptable." The caseworker testified she believes the child is
adoptable based on her improved behavior, and that the child's current
placement, her paternal aunt, is willing to adopt the child.
¶26 The superior court also found that the placement with her
aunt aided the child in "maintaining relationships with extended family
members." Furthermore, the court found the child's aunt and uncle
"provid[e] the child with a loving and nurturing home environment and the
child has been thriving in [their] care." These findings are supported by the
caseworker's testimony that she had personally observed that the child had
bonded with the aunt and uncle and that the aunt and uncle had been
instrumental in improving the child's behavior. In particular, the
caseworker attributed the behavioral improvements to the child's aunt
taking the child to behavioral coaching, individual counseling and
monitoring the child's medication. The caseworker further testified that the
child does not object to permanent placement with the aunt and uncle. The
evidence in the record reasonably supports the superior court's finding that
severance was in the child's best interests.
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Decision of the Court
CONCLUSION
¶27 Because the superior court's ruling terminating Mother's
parental rights under the 15 months' time-in-care ground is reasonably
supported by the evidence, we affirm. We need not address Mother's
arguments regarding the nine-month out-of-home placement ground for
termination. See Michael J., 196 Ariz. at 251, ¶ 27.
AMY M. WOOD • Clerk of the Court
FILED: AA
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