Terisa C., Lawrence E. v. Dcs ( 2015 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
TERISA C., LAWRENCE E., Appellants,
v.
DEPARTMENT OF CHILD SAFETY, A.E., S.E., Appellees.
No. 1 CA-JV 14-0182
FILED 6-25-2015
Appeal from the Superior Court in Maricopa County
No. JD509416
The Honorable David J. Palmer, Judge
AFFIRMED
COUNSEL
Vierling Law Offices, Phoenix
By Thomas A. Vierling
Counsel for Appellant Terisa C.
Robert D. Rosanelli, Attorney at Law, Phoenix
By Robert D. Rosanelli
Counsel for Appellant Lawrence E.
Arizona Attorney General’s Office, Mesa
By Eric K. Knobloch
Counsel for Appellee
TERISA C., LAWRENCE E. v. DCS, et al.
Decision of the Court
MEMORANDUM DECISION
Judge Maurice Portley delivered the decision of the Court, in which
Presiding Judge Andrew W. Gould and Judge Jon W. Thompson joined.
P O R T L E Y, Judge:
¶1 Terisa C. (“Mother”) and Lawrence E. (“Father”) appeal the
judgment terminating their parental rights to their two minor children, A.
and S. Specifically, they argue that the juvenile court erred when it found
that the Arizona Department of Economic Security (“the Department”)1
made diligent efforts to provide them with appropriate family reunification
services. Because we find no abuse of discretion, we affirm.
FACTS2 AND PROCEDURAL HISTORY
¶2 The Department, and other agencies, received a report in June
2011 that the family was panhandling on a street corner and holding up a
sign that stated “Need Help No Food.” As a result, Father was arrested on
an outstanding traffic warrant and Mother, who was not on her medication,
was transported to a psychiatric center for a mental health evaluation. The
children were placed in foster care and, after the filing of a dependency
petition, found to be dependent.3
¶3 Because the case plan was family reunification, the
Department provided services to the parents. The plan, however, was
ordered changed at the May 2013 report and review/permanency planning
hearing to severance and adoption. The Department, as a result, filed and
served a motion to terminate the parental rights of both parents to their
1 The Department of Child Safety has replaced Arizona Department of
Economic Security. See S.B. 1001, 51st Leg., 2d Spec. Sess. (Ariz. 2014). We
will refer to the agency as “the Department.”
2 We view the facts in the light most favorable to upholding the juvenile
court’s ruling. Raymond F. v. Ariz. Dep’t of Econ. Sec., 224 Ariz. 373, 376,
¶ 13, 231 P.3d 377, 380 (App. 2010).
3 Mother filed an untimely appeal of the dependency determination and
this court summarily dismissed her appeal.
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TERISA C., LAWRENCE E. v. DCS, et al.
Decision of the Court
children alleging fifteen months out-of-home placement under Arizona
Revised Statutes (“A.R.S.”) section 8-533(B)(8)(c).4
¶4 After a five-day contested severance trial, the court
terminated the parental rights of both parents to their two children. In
addition to finding the Department had proven the statutory basis for the
fifteen-month time-in-care provision after “a diligent effort to provide
appropriate reunification services,” the court also found that termination
was in the children’s best interests because it would allow them to be
adopted and provide them “a safe, stable, and loving home free of
substance abuse.”
¶5 Both parents filed a timely notice of appeal. We have
jurisdiction under A.R.S. §§ 8-235, 12-120.21(A)(1), and -2101(A)(1).
DISCUSSION
¶6 On appeal, both parents contend the juvenile court erred in
finding that the Department made a diligent effort to provide them with
appropriate reunification services.5 Although the Department argues that
both parents waived the issue, our review of the record supports the
argument that Mother never challenged the adequacy of the reunification
services. Because she failed to object or otherwise challenge the adequacy
of the services at the time they were provided, at any report and review
hearing, or during trial, she has waived the issue. See Shawanee S. v. Ariz.
Dep’t of Econ. Sec., 234 Ariz. 174, 179, ¶¶ 17–18, 319 P.3d 236, 241 (App. 2014)
(noting that parent waived right to challenge the Department’s reasonable
efforts to provide family reunification services when the parent failed to
raise the argument at the review hearings or at the termination hearing).
¶7 Father, however, challenged the adequacy of the services
during his closing argument, which preserved the issue for appeal. See id.In considering his argument, we will affirm the ruling unless it is clearly
erroneous; that is, we will affirm the ruling unless there is no reasonable
evidence to support the factual finding. Jesus M. v. Ariz. Dep’t of Econ. Sec.,
203 Ariz. 278, 280, ¶ 4, 53 P.3d 203, 205 (App. 2002).
¶8 When the Department seeks to terminate a parent’s rights
based on a child’s time in out-of-home placement, whether nine months or
fifteen months, the Department must prove that it made a “diligent” effort
4 We cite to the current version of the statute unless otherwise noted.
5 Because neither parent challenges the statutory finding of fifteen months-
in-care nor the best interest determination, we affirm those determinations.
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TERISA C., LAWRENCE E. v. DCS, et al.
Decision of the Court
to provide appropriate remedial services designed to attempt to reunify the
family. See Ariz. State Dep’t of Econ. Sec. v. Mahoney, 24 Ariz. App. 534, 537,
540 P.2d 153, 156 (App. 1975) (“Termination of the parent-child relationship
should not be considered a panacea but should be resorted to only when
concerted effort to preserve the relationship fails.”). Specifically, the
Department is required to demonstrate that it provided the parent with “the
time and opportunity to participate in programs designed to help [him or]
her become an effective parent,” but “is not required to provide every
conceivable service or to ensure that a parent participates in each service”
that it offers. Maricopa Cnty. Juv. Action No. JS-501904, 180 Ariz. 348, 353,
884 P.2d 234, 239 (App. 1994).
¶9 Here, the evidence supports the juvenile court’s finding that
the Department made diligent efforts to reunify the family. As part of the
reunification case plan, Father was required to “provide a stable, safe, and
nurturing living environment for [his] children;” meet the children’s basic
needs; remain sober and free from criminal activity; find and maintain
regular employment; and refrain from abusive or neglectful behavior. To
help Father meet his goals, the Department offered him substance-abuse
treatment, substance-abuse testing, both a psychological evaluation and a
psychiatric evaluation, individual and family counseling, parenting classes,
parent-aide services, supervised visitation, and transportation.
¶10 Father contends that the services were inappropriate because
they assumed he was a drug abuser. Although he initially tested negative
and the juvenile court dismissed the substance-abuse allegation from the
dependency proceeding, the Department later suspected that Father was
abusing substances. As a result, Father was ordered to participate in drug
testing to demonstrate he was drug free, but he tested positive for
methamphetamine. He then refused to submit to further testing or comply
with the court’s order for hair-follicle testing. Consequently, the substance
abuse testing and treatment, and related services, were not inappropriate
reunification services.
¶11 Father also argues the individual counseling was
inappropriate because he found the therapist’s office was not an
appropriate setting for individual and family therapy. The Department,
however, listened to his concerns and referred him to a different therapist.
Father attended the intake session, but refused to participate in any further
counseling services and did not explain his refusal to take advantage of that
service.
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TERISA C., LAWRENCE E. v. DCS, et al.
Decision of the Court
¶12 The evidence, as a result, demonstrates that the Department
provided Father with the time and opportunity to participate in programs
designed to address issues in order to help him become an effective parent.
The Department fulfilled its statutory mandate. See A.R.S. § 8–533(B)(8).
Although Father initially complied with the case plan, he later failed or
refused to participate in the programs and services the Department offered
or recommended. Consequently, the record supports the juvenile court’s
finding that the Department made reasonable diligent efforts to reunite the
family.
CONCLUSION
¶13 Based on the foregoing, we affirm the juvenile court’s order
terminating Mother and Father’s parental rights to their two minor
children.
:ama
5