Claudia D. v. Dcs, A.B. ( 2021 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
CLAUDIA D., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, A.B., Appellees.
No. 1 CA-JV 21-0133
FILED 9-21-2021
Appeal from the Superior Court in Maricopa County
No. JD17685
JS20657
The Honorable Christopher T. Whitten, Judge
AFFIRMED
COUNSEL
David W. Bell Attorney at Law, Higley
By David W. Bell
Counsel for Appellant
Arizona Attorney General’s Office, Phoenix
By Emily M. Stokes
Counsel for Appellee Department of Child Safety
CLAUDIA D. v. DCS, A.B.
Decision of the Court
MEMORANDUM DECISION
Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Cynthia J. Bailey and Judge Jennifer M. Perkins joined.
C R U Z, Judge:
¶1 Claudia D. (“Mother”) appeals the superior court’s order
terminating her parental rights to her daughter A.B.1 For the following
reasons, we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 A.B. was born in September 2020. Mother tested positive for
methamphetamine upon her admission to the hospital for A.B.’s birth and
A.B. tested positive for exposure to methamphetamine while in utero.
When DCS investigators spoke to Mother at the hospital she declined drug
testing and treatment for substance abuse. DCS had been involved with
Mother since 2009—before A.B. was born Mother’s parental rights to ten
children were terminated based on her substance abuse. A number of those
children were also born substance exposed. The most recent termination
occurred in February 2019, less than two years before A.B.’s birth.
¶3 DCS removed A.B. and put services in place, including drug
testing at Physician Services, Incorporated (“P.S.I.”), case-aide services, and
drug treatment at Terros. Mother completed an intake at Terros in October
2020 and disclosed that she used methamphetamine approximately three
times a week. She claimed to have had a substance abuse problem for only
two or three years. After the intake, Mother failed to attend two out of
seven group counseling sessions at Terros, and received a ten-day closure
letter. In December 2020, Mother attended six out of ten group sessions,
but when she attended she frequently arrived late and appeared
withdrawn. At the end of December, Terros sent Mother a second ten-day
closure letter. In January 2021, Mother went to only two of the eight group
sessions, and in February 2021 she attended six and one-half out of eight
sessions. In March 2021 Mother missed one session and was late for
another. At the end of March, just days before the termination adjudication
1 Mother also filed a notice of appeal from the superior court’s order
finding A.B. dependent but raises no issues concerning the dependency.
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CLAUDIA D. v. DCS, A.B.
Decision of the Court
hearing, Terros sent Mother a third closure letter. On multiple occasions
Terros advised Mother she needed to drug test at PSI. Although DCS
referred Mother to PSI in September 2020, she never went. Between
September 2020 and March 2021, she missed fifty-one scheduled tests.
Mother’s PSI records showed that in 2017, 2018, and 2019 when she was
required to test at PSI for other matters, she missed most of the tests.
Because Mother never demonstrated thirty days of sobriety, DCS did not
refer her for a parent aide.
¶4 From September to December 2020, a case aide supervised
visits between Mother and A.B., but Mother missed multiple visits. In late
December she told the case aide that she had COVID 19 symptoms and
would get tested. After Mother continued missing visits and failed to
provide a negative COVID test, the case aide closed her out. Mother
continued visiting A.B. with A.B.’s placement (A.B.’s paternal aunt)
supervising the visits.
¶5 DCS filed a dependency petition in September 2020. The next
month, it filed a petition to terminate Mother’s parental rights pursuant to
Arizona Revised Statutes (“A.R.S.”) section 8-533(B)(3) (chronic substance
abuse), and (B)(10) (rights to another child terminated within the preceding
two years for the same cause). In April 2021, the superior court held a
combined dependency and termination adjudication hearing. Mother
testified at the hearing that she was unable to test at PSI because she had
lupus and was afraid of COVID, and also because she did not have a photo
identification. The superior court found A.B. dependent and terminated
Mother’s parental rights on the grounds alleged in the termination petition.
The court found that termination was in A.B.’s best interests.
¶6 Mother timely appealed, and we have jurisdiction pursuant
to A.R.S. §§ 8-235(A), 12-120.21(A)(1), -2101(A)(1).
DISCUSSION
¶7 Under Arizona law, before the superior court may terminate
parental rights it must find that the moving party has proven one or more
of the statutory grounds for termination by clear and convincing evidence.
A.R.S. § 8-537(B). The court must also find by a preponderance of the
evidence that termination is in the child’s best interests. Kent K. v. Bobby M.,
210 Ariz. 279, 284, ¶ 22 (2005). We view the evidence and the reasonable
inferences to be drawn from it in the light most favorable to affirming the
superior court’s termination order. Jordan C. v. Ariz. Dep’t of Econ. Sec., 223
Ariz. 86, 93, ¶ 18 (App. 2009). We will not reverse the superior court’s order
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CLAUDIA D. v. DCS, A.B.
Decision of the Court
unless reasonable evidence does not support the superior court’s factual
findings. Ariz. Dep’t of Econ. Sec. v. Matthew L., 223 Ariz. 547, 549, ¶ 7 (App.
2010).
¶8 Mother argues that the superior court erred by finding that
DCS made diligent efforts to provide her with reunification services. She
claims that her lack of progress in services was caused by a lack of
communication on DCS’s part.
¶9 Before seeking to terminate parental rights pursuant to A.R.S.
§ 8-533(B)(3) or (B)(10), DCS must make reasonable efforts to provide
appropriate reunification services. Mary Ellen C. v. Ariz. Dep’t of Econ. Sec.,
193 Ariz. 185, 192, ¶ 33 (App. 1999); Mary Lou C. v. Ariz. Dep’t of Econ. Sec.,
207 Ariz. 43, 49, ¶¶ 14-15 (App. 2004). DCS makes reasonable efforts to
provide reunification services when it provides a parent with the time and
opportunity to participate in programs designed to help the parent become
an effective parent. Maricopa Cnty. Juv. Action No. JS-501904, 180 Ariz. 348,
353 (App. 1994). DCS need not provide “every conceivable service” or
ensure that the parent actually participates in the services offered. Id. Nor
is it required to provide a parent with unlimited time to take positive steps
toward rehabilitation. Maricopa Cnty. Juv. Action No. JS-501568, 177 Ariz.
571, 577 (App. 1994). DCS is not required to undertake futile reunification
efforts and is required to undertake only those measures with a reasonable
prospect of success. Mary Ellen C., 193 Ariz. at 192, ¶ 34.
¶10 DCS argues that Mother waived her claims about services by
failing to timely challenge the adequacy of services in the superior court.
See Shawanee S. v. Ariz. Dep’t of Econ. Sec., 234 Ariz. 174, 178-79, ¶¶ 16-18
(App. 2014) (any claim that DCS is failing to provide appropriate
reunification services must be timely raised in the superior court or the
issue is waived). Mother takes issue with the superior court’s finding that
she did not challenge the adequacy of services, arguing that she repeatedly
attempted to communicate with DCS because she “was concerned about
various services.” As noted by the superior court, Mother attended
periodic report and review hearings and pretrial conferences and had the
opportunity to raise any obstacles to her progress or the need for additional
services, but she did not do so.
¶11 Even if Mother did not waive her argument concerning
services, sufficient evidence supported the superior court’s finding that
DCS made diligent and/or reasonable reunification efforts. The record
shows that DCS offered Mother drug testing, substance abuse treatment,
and case-aide services. Mother’s participation in services was inconsistent,
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CLAUDIA D. v. DCS, A.B.
Decision of the Court
but even so, her substance abuse and drug testing services were still in place
at the time of the termination adjudication hearing and had never been
interrupted or discontinued, despite the ongoing case manager’s admitted
failure to consistently communicate with Mother. Further, the record
shows that some of the communication issues between Mother and DCS
were attributable to Mother, who failed to provide DCS with updated
contact information and failed to timely respond to the case manager by
email after the case manager obtained Mother’s email address. Nor did
Mother ever email the case manager about her alleged barriers to
participating in drug testing and treatment. Because reasonable evidence
supported the court’s finding that DCS made reasonable reunification
efforts, we affirm its order terminating Mother’s parental rights pursuant
to A.R.S. § 8-533(B)(3) and (B)(10).
CONCLUSION
¶12 For the foregoing reasons, we affirm the superior court’s
order terminating Mother’s parental rights to A.B.
AMY M. WOOD • Clerk of the Court
FILED: AA
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