Jessica N. v. Dcs ( 2016 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
JESSICA N., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, J.C., J.C., Appellees.
No. 1 CA-JV 15-0339
FILED 03-22-2016
Appeal from the Superior Court in Maricopa County
No. JD506036
The Honorable Karen L. O'Connor, Judge
AFFIRMED
COUNSEL
Denise L. Carroll, Esq., Scottsdale
By Denise Lynn Carroll
Counsel for Appellant
Arizona Attorney General's Office, Phoenix
By Amber E. Pershon
Counsel for Appellee DCS
JESSICA N. v. DCS, et al.
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Diane M. Johnsen delivered the decision of the Court, in
which Judge Patricia A. Orozco and Judge Kenton D. Jones joined.
J O H N S E N, Judge:
¶1 Jessica N. ("Mother") appeals the superior court's order
terminating her parental rights to her two children. For the reasons that
follow, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 Mother and Manuel C. ("Father") are the parents of two
children, born in 2007 and 2010. The Department of Child Safety ("DCS")
took the children into custody in August 2013 because of allegations of
substance abuse and neglect by Mother and Father.1 The superior court
found the children dependent as to Mother and Father in August 2013. For
the next year, Mother and Father participated in various services, including
drug testing, drug treatment, counseling and psychological evaluations.
Although the children were temporarily returned to the parents in August
2014, after that, Mother and Father stopped participating in services and
failed to cooperate with DCS personnel, resulting in the children being
taken into custody a month later. In January 2015, the court changed the
case plan to severance and adoption. After a failed mediation and a
contested severance trial, the superior court terminated both parents'
parental rights due to substance abuse and two years time-in-care.
¶3 Mother timely appealed.2 We have jurisdiction pursuant to
Article 6, Section 9 of the Arizona Constitution, Arizona Revised Statutes
1 Pursuant to S.B. 1001, Section 157, 51st Leg., 2d Spec. Sess. (Ariz.
2014) (enacted), the Department of Child Safety is substituted for the
Arizona Department of Economic Security in this matter. See ARCAP 27.
2 Father is not a party to this appeal.
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("A.R.S.") sections 8-235(A) (2016), 12-2101 (2016) and Rule 103(A) of the
Arizona Rules of Procedure for the Juvenile Court.3
DISCUSSION
A. Legal Principles.
¶4 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). The superior court may terminate a parent-child relationship upon
clear and convincing evidence of at least one of the statutory grounds set
out in A.R.S. § 8–533(B) (2016). Id. at 249, ¶ 12. Additionally, the court must
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 review
a termination order for an abuse of discretion. Mary Lou C. v. Ariz. Dep't of
Econ. Sec., 207 Ariz. 43, 47, ¶ 8 (App. 2004). Because the superior court is in
the best position to "weigh the evidence, observe the parties, judge the
credibility of witnesses, and make appropriate findings," we will accept its
findings of fact unless no reasonable evidence supports them. See Jesus M.
v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, 280, ¶ 4 (App. 2002).
B. Sufficiency of Services Offered.
¶5 On appeal, Mother does not contest the superior court's
findings by clear and convincing evidence of facts permitting severance
under A.R.S. § 8-533(B)(3) and (B)(8)(c).4 Mother instead argues DCS did
not offer her appropriate reunification services.
3 Absent material revision after the relevant date, we cite a statute's
current version.
4 Under A.R.S. § 8-533(B)(3), severance is justified if the "parent is
unable to discharge parental responsibilities because of . . . a history of
chronic abuse of dangerous drugs, controlled substances or alcohol and
there are reasonable grounds to believe that the condition will continue for
a prolonged indeterminate period." Section 8-533(B)(8)(c) permits
severance if the child has been in an out-of-home placement for 15 months
or longer, the agency has made a diligent effort to provide appropriate
reunification services, but the "parent has been unable to remedy the
circumstances that cause the child to be in an out-of-home placement and
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."
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JESSICA N. v. DCS, et al.
Decision of the Court
¶6 When severance is sought on substance-abuse grounds, the
court must find that DCS "made reasonable efforts to reunify the family or
that such efforts would have been futile." Jennifer G. v. Ariz. Dep't of Econ.
Sec., 211 Ariz. 450, 453, ¶ 12 (App. 2005). When severance is sought on time-
in-care grounds pursuant to A.R.S. § 8-533(B)(8)(c), DCS is required to
prove it made diligent efforts to provide appropriate reunification services
and the court must consider the availability of reunification services offered
and the parent's participation in such services. A.R.S. § 8-533(B)(8), (D).
¶7 DCS's obligation to provide services, however, "does not free
a parent from the need to raise a timely objection if the parent believes
services are inadequate." Shawanee S. v. Ariz. Dep't of Econ. Sec., 234 Ariz.
174, 178, ¶ 13 (App. 2014). If a parent does not object at the time to a
perceived failure by DCS to provide required services, he or she waives the
opportunity to do so on appeal. Id. at 178-79, ¶ 16. In the superior court,
Mother never objected to the adequacy of services DCS offered her despite
multiple opportunities to do so. The superior court held review hearings
every two or three months over a two-year period, and Mother never raised
any concerns regarding services. Accordingly, she has waived her right to
argue for the first time on appeal that DCS failed to offer appropriate
services. See id. at 178-79, ¶¶ 13-18.
¶8 Even if we were to address the merits of Mother's argument
regarding the sufficiency of the services provided by DCS, we would find
that the services were adequate. Mother argues DCS should have offered
her more intensive substance-abuse treatment, noting that she had been
successful with an intensive outpatient treatment plan, but relapsed when
DCS provided her standard outpatient treatment. Mother relies on Mary
Ellen C. v. Arizona Department of Economic Security, 193 Ariz. 185, 192, ¶¶ 33,
37 (App. 1999), arguing that the particular services offered must be
"designed to improve the parent's ability to care for the child." Mother's
reliance on Mary Ellen C., however, is misplaced. In Mary Ellen C., the
parent was not offered any meaningful services for almost a year after the
child's initial removal, and the services finally offered were few and far
between. See Mary Ellen C., 193 Ariz. at 193, ¶ 38 (agency's efforts were
"belated, fitful, and indifferent"). Here, by contrast, DCS promptly and
repeatedly offered Mother a variety of services designed to address her
substance-abuse issues.
¶9 The case worker testified Mother was offered psychological
evaluations, full parent-aide services, and substance-abuse treatment and
testing. Mother also was given a bus pass to facilitate transportation to and
from various services. The case worker testified he repeatedly reminded
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JESSICA N. v. DCS, et al.
Decision of the Court
Mother to complete drug testing and other services, but Mother repeatedly
failed to contact treatment referrals. Mother was informed of the services
that she needed to complete on multiple occasions, through phone calls,
emails, letters, and in-person discussions. The court also received extensive
documentation regarding Mother's inconsistent drug testing and
substance-abuse treatment over a two-year period. The case worker
testified Mother failed to continue services, failed to complete testing and
treatment, and failed to maintain contact with DCS personnel. Therefore,
on this record, the court did not err in finding that DCS made reasonable
efforts to provide Mother with reunification services.
C. Best-Interests Determination Under § 8-533(B).
¶10 Mother also argues insufficient evidence supported the
court's finding that severance was in the children's best interests. See A.R.S.
§ 8-533(B). A best-interests finding may be supported by evidence of an
affirmative benefit or a detriment to the child if the parental relationship
were to continue. Jennifer B. v. Ariz. Dep't of Econ. Sec., 189 Ariz. 553, 557
(App. 1997). Being available for adoption is an affirmative benefit that can
support a finding that termination is in a child's best interests. See Maricopa
County Juv. Action No. JS-501904, 180 Ariz. 348, 352 (App. 1994). Whether
severance is in a child's best interests is a question of fact, and we view the
evidence and draw all reasonable inferences from the evidence in favor of
supporting the superior court's findings. Jesus M., 203 Ariz. at 282, ¶ 13.
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JESSICA N. v. DCS, et al.
Decision of the Court
¶11 Notwithstanding Mother's arguments to the contrary, the
court heard evidence that the children are adoptable and would benefit
from being adopted. The DCS case worker opined that severance is in the
children's best interests and that the current placement is willing to adopt
them. The case worker testified that visits with their parents had been very
emotionally disruptive for the children, and that the children's emotional
and behavioral issues had been improving as the children spent more time
away from the parents. He testified that severance would allow the
children to be adopted, which would provide stability, safety and security.
Accordingly, sufficient evidence supported the court's determination that
termination of Mother's rights would be in the children's best interests.
CONCLUSION
¶12 Because sufficient evidence supported the superior court's
order terminating Mother's parental rights, we affirm.
:rt
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