Shawanee S. v. Arizona Department of Economic Security , 234 Ariz. 174 ( 2014 )

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
SHAWANEE S., Appellant
v.
ARIZONA DEPARTMENT OF ECONOMIC SECURITY, E.J., J.J., L.S.,
K.S., Appellees
No. 1 CA-JV 13-0186
FILED 2-25-2014
Appeal from the Superior Court in Maricopa County
No. JD21396
The Honorable Aimee L. Anderson, Judge
AFFIRMED
COUNSEL
Law Office of Denise L. Carroll, Scottsdale
By Denise Lynn Carroll
Counsel for Appellant
Arizona Attorney General’s Office, Tucson
By Laura J. Huff
Counsel for Appellees
SHAWANEE S. v. ADES, et al.
Opinion of the Court
OPINION
Judge Michael J. Brown delivered the Opinion of the Court, in which
Presiding Judge Andrew W. Gould and Judge Samuel A. Thumma joined.
B R O W N, Judge:
¶1 Shawanee S. (“Mother”) appeals the juvenile court’s order
terminating her parental rights to her four young daughters (“the
children”). She argues the court erred in finding that (1) the Arizona
Department of Economic Security (“ADES”) made diligent efforts to
provide her with appropriate reunification services, and (2) termination is
in the best interests of the children. Because Mother failed to raise any
objection in the juvenile court to the adequacy of the services ADES
provided, we conclude she waived the right to challenge the court’s
finding on appeal. As to the court’s best interests determination, we find
no error and therefore affirm.
BACKGROUND
¶2 In November 2011, Child Protective Services (“CPS”)
received a referral alleging that one of Mother’s children, age six, was
“exhibiting significant sexual acting out” with other children. The referral
also alleged that the child was hoarding food and displaying various
behavioral issues. CPS’s efforts to contact Mother through phone calls
and letters to the homeless shelter where she resided were unsuccessful.
¶3 In January 2012, CPS was notified that Mother used a knife
to cut her boyfriend’s arm during an altercation that occurred in the
presence of the children. Mother was arrested and the children were
immediately taken into CPS custody. The children had numerous medical
concerns, which, depending on the child, included ringworm, rashes,
malnourishment, staph infection, boils, an ear infection, and severe diaper
rash. One of the children disclosed that she had been sexually abused by
the brother of Mother’s previous boyfriend.
¶4 ADES filed a petition alleging the children were dependent
as to Mother, based on neglect due to domestic violence and failing to
provide the children with the basic necessities of life. Mother denied the
allegations but submitted the matter to the juvenile court, which found the
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Opinion of the Court
children to be dependent. The court approved a case plan of family
reunification and a concurrent case plan of severance and adoption, and
also approved and ordered the “services as agreed upon by the parties.”
Consistent with this ruling, ADES offered Mother a psychological
evaluation and consultation, individual counseling, parent aide services
(including parenting education and supervised visitation), and
transportation.
¶5 In December 2012, the children’s guardian ad litem moved
to terminate Mother’s parental rights, alleging Mother substantially
neglected or willfully refused to remedy the circumstances that caused the
children to remain in a court-ordered out-of-home placement for nine
months or longer pursuant to Arizona Revised Statutes (“A.R.S.”) section
8-533(B)(8)(a). In April 2013, ADES joined in the motion for termination.
¶6 The juvenile court held a two-day contested severance
hearing in June 2013. Mother acknowledged that she cut her boyfriend
with a knife and engaged in other incidents of domestic violence. She
admitted she did not contact the police after learning one of her daughters
had been sexually abused. Mother also admitted she had recently lived in
the same household with the alleged abuser for several months to avoid
becoming homeless. Mother testified she completed more than forty
hours of individual counseling, but acknowledged she did not complete
parent aide services and refused substance abuse treatment even though it
was recommended as a result of the psychological evaluation. Mother
also acknowledged that at one point she refused to participate in further
visits because the children were acting out.
¶7 CPS caseworker Chrystal Thomson testified that Mother’s
participation in services was limited. Mother substantially participated in
individual therapy, but missed numerous visits with the children, stating
she was “tired” and “had a lot going on.” Mother also missed visits for
more than a month because the children had behaved poorly during prior
visits. Although Mother was initially permitted to have in-home visits
with the children, that visitation ceased because Mother was teaching the
children “erotic” dancing during visits and frequently had a boyfriend
present. As a result, all subsequent visits were held at a visitation center.
Ultimately, Mother was removed from the parent aide program because
she did not maintain contact for more than thirty days and she repeatedly
failed to attend scheduled meetings to discuss the children’s therapy and
treatment.
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Opinion of the Court
¶8 Following the presentation of evidence and closing
arguments, the juvenile court granted the motion for termination, finding
that Mother “substantially neglected, and at times, willfully refused to
remedy the circumstances that caused each of these children to be in their
out-of-home placement.” The court also made detailed findings regarding
the reunification services provided by ADES, and Mother’s compliance (or
lack thereof) with the services offered, concluding that ADES “has made
more than diligent efforts to provide appropriate reunification services.”
The court also found that termination of Mother’s parental rights would
be in the children’s best interests. The court later confirmed its findings in
a signed order and Mother timely appealed.
DISCUSSION
¶9 To terminate parental rights, the juvenile 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, 995 P.2d 682, 685 (2000). As applicable here,
ADES was required to prove by clear and convincing evidence that (1) the
children had been in an out-of-home placement for at least nine months
under a court order; (2) the parent had “substantially neglected or
willfully refused to remedy the circumstances causing the out-of-home
placement;” and (3) ADES had “made a diligent effort to provide
appropriate reunification services.” A.R.S. § 8-533(B)(8)(a).
A. Waiver
¶10 Mother challenges the court’s finding that ADES had made a
diligent effort to provide appropriate reunification services, claiming she
was not given the time and services necessary to enable her to reunify
with the children. Specifically, she asserts that ADES should have
provided her with a second psychological evaluation to assess her
progress and determine whether additional services were necessary.
Because Mother failed to raise any objection in the juvenile court
regarding the adequacy of services provided to her, as a threshold issue,
we consider whether she waived that argument on appeal. See Kimu P. v.
Ariz. Dep’t of Econ. Sec., 218 Ariz. 39, 44 n.3, 178 P.3d 511, 516 n.3 (App.
2008) (noting that parent waives an argument by failing to raise it in the
juvenile court); Christy C. v. Ariz. Dep’t of Econ. Sec., 214 Ariz. 445, 452, ¶
21, 153 P.3d 1074, 1081 (App. 2007) (concluding that parent waived claim
that juvenile court failed to make statutorily required findings by failing
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Opinion of the Court
to object in the juvenile court); see also Trantor v. Fredrikson, 179 Ariz. 299,
300, 78 P.2d 657, 658 (1994) (“[A]bsent extraordinary circumstances, errors
not raised in the trial court cannot be raised on appeal” because “a trial
court and opposing counsel should be afforded the opportunity to correct
any asserted defects[.]”).
¶11 There is no Arizona case law resolving this precise issue. In
Christina G. v. Arizona Department of Economic Security, we noted that a
parent may waive the right to challenge on appeal the adequacy of
ADES’s reunification efforts by failing to raise the issue in the juvenile
court proceedings. 227 Ariz. 231, 235 n.8, ¶ 15, 256 P.3d 628, 632 n.8 (App.
2011). We explained that the mother in that case had not “requested
additional services or raised an objection to the manner in which court-
ordered services were being provided, despite multiple opportunities to
do so at various stages of the proceedings.” Id. We also noted that the
mother had failed to object to the juvenile court’s explicit findings “that
ADES was making reasonable efforts” in providing reunification services.
Id. We declined to affirm the case based on waiver, however, because
ADES did not raise it as an argument on appeal. Id. Here, ADES does
assert that Mother waived her challenge to the juvenile court’s diligent
effort finding.
¶12 Generally, when a child is removed from the home, ADES is
presumptively obligated to make reasonable efforts to “provide services
to the child and the child’s parent.” See A.R.S. § 8-846(A) (requiring the
juvenile court to “order the department to make reasonable efforts to
provide services to the child and the child’s parent,” unless the court finds
by clear and convincing evidence that an A.R.S. § 8-846(B) exception
applies). When a dependency case plan includes family reunification,
ADES is obligated to provide services reasonably geared toward family
reunification. See Ariz. R.P. Juv. Ct. 56(E)(1) (requiring juvenile court, at
disposition after a dependency finding, to “determine the appropriate
case plan and . . . [e]nter orders concerning appropriate services required
to achieve the case plan”). Furthermore, when ADES seeks severance
based on length of time in care, ADES must prove that it “has made a
diligent effort to provide appropriate reunification services.” A.R.S. § 8-
533(B)(8); see also Mary Ellen C. v. Ariz. Dep’t of Econ. Sec., 193 Ariz. 185,
192, ¶¶ 32-34, 971 P.2d 1046, 1053 (App. 1999) (finding constitutional right
to reunification services when ADES sought termination of parental rights
based on mental illness). In this case, there is no question that ADES was
obligated to make diligent efforts to provide appropriate reunification
services to Mother.
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SHAWANEE S. v. ADES, et al.
Opinion of the Court
¶13 ADES’s obligation, however, does not free a parent from the
need to raise a timely objection if the parent believes services are
inadequate. A parent must raise such a challenge in the juvenile court and
may do so in one of many ways. At a pre-hearing conference (the first
dependency proceeding with all parties present), the participants are to
discuss and seek resolution on various issues, including “the provision of
services to the child and family.” Ariz. R.P. Juv. Ct. 49(A), (D). At a
preliminary protective hearing (often the first court hearing in a
dependency), the juvenile court “shall . . . [d]etermine whether a proposed
case plan for services has been submitted and is appropriate” and ”shall
enter appropriate orders as to . . . the provision of services to the child and
family.” Ariz. R.P. Juv. Ct. 50(A), (B)(8), (C)(4). At a disposition hearing
following a dependency finding, the juvenile court “shall determine the
appropriate case plan and shall . . . [e]nter orders concerning appropriate
services required to achieve the case plan.” Ariz. R.P. Juv. Ct. 56(E)(1). A
parent has a right to be present, to be represented by counsel and to be
heard regarding services at each of these proceedings. See Ariz. R.P. Juv.
Ct. 49(B) (listing participants at pre-hearing conference); Ariz. R.P. Juv. Ct.
50(B)(2) (appointment of counsel).
¶14 After services have been identified by the participants and
ordered by the juvenile court, a parent dissatisfied with the services
actually being provided can raise the issue with the juvenile court in a
variety of ways. At periodic review hearings, as well as the permanency
planning hearing, a parent can object to the adequacy of services and “[a]t
the conclusion of the hearing, the court shall . . . [e]nter appropriate
orders concerning . . . services to be provided to the family.” Ariz. R.P.
Juv. Ct. 58(F)(3). A parent may also object to the juvenile court’s
“reasonable efforts” finding, see A.R.S. § 8-846(A), or request an
evidentiary hearing by motion to address the adequacy of services. See
Ariz. R.P. Juv. Ct. 58(D) (noting, in the context of a review hearing, that
“[a]ny party seeking an evidentiary hearing on any issue shall file a
motion requesting that the matter be set for a contested hearing”). And, at
a termination hearing, a parent can dispute evidence that ADES claims
shows a diligent effort to provide appropriate reunification services,
including by testifying about the services actually provided. See A.R.S. §
8-533(B)(8).
¶15 In determining whether the grounds for termination have
been satisfied, the juvenile court is in a much better position than this
court to evaluate the effectiveness and impact of the services provided, as
credibility determinations may be required to weigh the evidence
presented. See Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 282, ¶ 12,
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Opinion of the Court
53 P.3d 203, 207 (App. 2002). The juvenile court’s role in the dependency
process is just as critical—the court ensures that all parties receive proper
notice of court proceedings and are given meaningful opportunities for
input and objection. The court is also tasked with reviewing ADES’s case
reports, which must include an update as to the services provided to the
family. See Ariz. R.P. Juv. Ct. 58(C)(2) (requiring ADES to “provide a
report to the court and the parties at least fifteen (15) days prior to” a
review hearing addressing “[t]he services being provided to the child and
family”). The court holds review hearings at least once every six months.
A.R.S. § 8-847(A). In doing so, the court necessarily evaluates the reports
and related information, the purpose of which is to give the court an
opportunity to “review the progress of the parties in achieving the case
plan goals and determine whether the child continues to be dependent.”
Ariz. R.P. Juv. Ct. 58(A). The court is also authorized to consider “oral or
written reports of the parties,” which may implicate credibility
assessments, particularly when the participants disagree on what
happened or what services were provided. Ariz. R.P. Juv. Ct. 58(E)(1).
¶16 This process demands that parents voice their concerns
about services to the juvenile court in a timely manner. It serves no one to
wait to bring such concerns to light for the first time on appeal, when
months have passed since the severance order was entered. Instead, a
parent’s failure to assert legitimate complaints in the juvenile court about
the adequacy of services needlessly injects uncertainty and potential delay
into the proceedings, when important rights and interests are at stake and
timeliness is critical. Accordingly, we hold that when the juvenile court
record reflects that ADES has been ordered to provide specific services in
furtherance of the case plan, and the court finds that ADES has made
reasonable efforts to provide such services (including a finding that ADES
made a diligent effort to provide appropriate reunification services
pursuant to A.R.S. § 8-533(B)(8)), a parent who does not object in the
juvenile court is precluded from challenging that finding on appeal. See
State v. Georgeoff, 163 Ariz. 434, 437, 788 P.2d 1185, 1188 (1990) (explaining
that “[e]ven constitutional rights may, of course, be waived”); In re Eddie
O., 227 Ariz. 99, 103 n.2, 253 P.3d 296, 300 n.2 (App. 2011) (explaining
individuals may forfeit or waive some constitutional rights through their
conduct).
¶17 Here, the juvenile court conducted six review hearings over
the course of a year (April, June, October, and December 2012; and
February and May 2013). Six progress reports submitted by CPS to the
juvenile court described the services offered to Mother and her progress
with such services. Each of the minute entries from the review hearings
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Opinion of the Court
included the court’s finding that ADES had made reasonable efforts to
provide appropriate reunification services. The minute entries do not
reflect any objections by Mother to the CPS progress reports or the court’s
findings, nor is there any indication in the record that Mother questioned
the appropriateness of the services being provided to her in any way.
Finally, at the termination hearing, Mother did not argue that ADES failed
to make reasonable efforts to provide appropriate reunification services.
¶18 If Mother believed ADES was not making diligent efforts to
provide appropriate reunification services at any point, it was incumbent
on her to promptly bring those concerns to the attention of the juvenile
court, thereby giving that court a reasonable opportunity to address the
matter and ensure that ADES was in compliance with its obligation to
provide appropriate reunification services as ordered by that court. If
Mother had done so, the juvenile court could have addressed Mother’s
concerns and (1) made additional findings as to why ADES’s efforts were
sufficient or (2) directed ADES to make appropriate changes to its current
offering of services. But in the absence of an objection challenging the
type or manner of services, Mother has waived the right to argue for the
first time on appeal that ADES failed to offer appropriate reunification
services.
B. Best Interests
¶19 Mother also argues that the juvenile court erred by finding
that termination of her parental rights was in the children’s best interests.
We disagree.
¶20 Termination of the parent-child relationship is in the child’s
best interest if the child will benefit from the termination or would be
harmed if the relationship continued. Bobby G. v. Ariz. Dep’t of Econ. Sec.,
219 Ariz. 506, 511, ¶ 15, 200 P.3d 1003, 1008 (App. 2008). We review the
evidence and draw all reasonable inferences in the light most favorable to
upholding the juvenile court’s factual findings, Jesus M., 203 Ariz. at 282, ¶
13, 53 P.3d at 207, and we will affirm unless the court abused its discretion
by making clearly erroneous factual findings, Audra T. v. Ariz. Dep’t of
Econ. Sec., 194 Ariz. 376, 377, ¶ 2, 982 P.2d 1290, 1291 (App. 1998). Here,
the juvenile court found that it would be detrimental to the children to
remain with Mother in light of the trauma they had experienced under her
care, and that the children would benefit from the permanency and
stability that a safe, violence-free home could provide.
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Opinion of the Court
¶21 The record supports these findings. Case manager Thomson
opined that termination is in the children’s best interests based on
Mother’s lack of stability and her history of exposing the children to
neglect and abuse. After visits with Mother, the children “regressed” and
engaged in self-harm and other aggressive behaviors. Thomson testified
that the three younger children are in adoptive placements that are
meeting their physical, social, and emotional needs. Thomson explained
that because the oldest child has unique needs, she is not in an adoptive
placement but the present plan is to help her stabilize, which will then
permit her to be placed in an adoptive home. Therefore, the juvenile court
did not abuse its discretion in determining that termination of the parent-
child relationship is in the children’s best interests.
CONCLUSION
¶22 We affirm the juvenile court’s order terminating Mother’s
parental rights.
:mjt
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