Vanessa T. v. Dcs ( 2017 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
VANESSA T.,
Appellant,
v.
DEPARTMENT OF CHILD SAFETY,
B.T., R.T., M.T.,
Appellees.
No. 1 CA-JV 16-0190
FILED 2-16-2017
Appeal from the Superior Court in Apache County
No. S0100JD201400010
The Honorable C. Allan Perkins, Judge Pro Tempore
AFFIRMED
COUNSEL
Law Office of Bryce M. Hamblin, PLC, Eagar
By Bryce M. Hamblin
Counsel for Appellant
Arizona Attorney General's Office, Mesa
By Nicholas Chapman-Hushek
Counsel for Appellee DCS
VANESSA T. v. DCS, et al.
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Diane M. Johnsen delivered the decision of the Court, in
which Judge Margaret H. Downie and Judge James P. Beene joined.
J O H N S E N, Judge:
¶1 Vanessa T. ("Mother") appeals from the superior court's order
severing her parental rights to B.T., R.T. and M.T. For the following
reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 B.T. was born in May 2008 and R.T. in January 2010. The
statutory predecessor to the Department of Child Safety ("DCS") first was
called to the family home in July 2011 after Desi-Lee T. ("Father"), angry at
something B.T. had done, shoved him into a wall, causing the child to drop
to the floor.1 At that time, the agency initiated a case plan that allowed B.T.
and R.T. to remain with Mother and Father while the parents completed the
services required under the plan. But in October 2011, Father hit B.T. and
R.T., leaving bruises on B.T.'s head and R.T.'s back. Two months later, the
agency removed B.T. and R.T.; according to the agency, Mother and Father
not only failed to comply with the provided services, their home was
"filthy." The superior court found B.T. and R.T. dependent as to Mother
and Father in January 2012.
¶3 In October 2013, B.T. and R.T. were returned to Mother and
Father after each parent completed parenting classes. A month later, M.T.
was born.
¶4 In June 2014, however, violence resumed in the family home.
The DCS case manager received a report on June 13, 2014 concerning
Mother's Facebook posts. Per the report, on May 1, 2014, Mother posted,
"[W]hat a lonely night I am having got into a fight with kids dad he called
me a no good bitch." Then, on June 8, 2014, Mother posted, "I can't take this
1 Pursuant to S.B. 1001, Section 157, 51st Leg., 2d Spec. Sess. (Ariz.
2014) (enacted), the Department of Child Safety ("DCS") is substituted for
the Arizona Department of Economic Security in this matter. See ARCAP
27.
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VANESSA T. v. DCS, et al.
Decision of the Court
anymore someone please do something to my husband if he keeps hitting
the kids and hurting them in ways he can't imagine."
¶5 On the morning of June 14, 2014, the case manager received
an emergency report that Father had physically abused B.T. While B.T. and
R.T. were playing with their new puppy, the dog fell off the bed. Upon
hearing the puppy's cry, Father entered the bedroom "yelling and cussing;"
he then grabbed B.T. by the arms and smacked him in the face with an open
hand. Meanwhile, Mother remained in the living room. Later she admitted
that soon after she heard Father enter the bedroom, she heard B.T. scream.
But, as she later told the case manager, she was unable to protect B.T.
because she was "tending to the puppy and could not tend to both at the
same time." Minutes later, B.T. emerged from the bedroom with
thumbprint-sized bruises on his arms, scratches and bruises on his back and
a bloody nose.
¶6 The same morning, Mother and B.T. went to the police,
sidestepping Father as he attempted to keep them from leaving the home.
Father was arrested and taken to jail. When Mother was asked what she
and the children would do after Father was released, Mother suggested B.T.
and R.T. stay on the reservation in Kayenta with their grandmother, while
Mother, Father and M.T. remain at the family home. DCS took B.T., R.T.
and M.T. into physical custody, and the superior court found the children
dependent as to Mother and Father on August 12, 2014.
¶7 Before reunification could take place, DCS required Mother to
show she could and would parent her children in an age-appropriate
manner, protect them from harm and maintain her sobriety. To help
Mother reach those goals, DCS provided the following services: Visitation,
a psychological evaluation, individual counseling, four rounds of parent-
aide services, a substance abuse assessment, random drug testing, one-on-
one parenting skills classes and transportation as needed. Additionally,
because Mother believed that Father would harm the children if they were
returned—indeed, even a year after the children were removed from the
home, both Mother and Father stated the children would not be safe in their
care—DCS informed Mother that it could not return the children to her so
long as she remained with Father and the children remained unsafe in his
care.
¶8 To help Mother leave Father, DCS offered to call anyone
Mother thought could support her, including a domestic violence hotline,
which Mother knew could have provided her with housing and financial
assistance, but Mother refused the offer. On a separate occasion, a DCS
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VANESSA T. v. DCS, et al.
Decision of the Court
parent aide stressed to Mother that she needed to call police if Father
became angry, and offered to call a "safe house" for Mother, where she
could stay and get help. Still, even though Mother recognized domestic
violence was an issue in the home and admitted she knew that Father
would hurt the children again, Mother remained with Father.
¶9 DCS moved to sever Mother and Father's parental rights in
October 2015. The trial took place in April 2016. After hearing the evidence,
the superior court terminated Mother's parental rights on grounds of
neglect and failure to protect from willful abuse under Arizona Revised
Statutes ("A.R.S.") section 8-533(B)(2) (2017) and 15 months' time-in-care
under A.R.S. § 8-533(B)(8)(c).2 Mother timely appealed. We have
jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution,
A.R.S. § 8-235(A) (2017) and Arizona Rule of Procedure for the Juvenile
Court 103(A).
DISCUSSION
¶10 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). Michael J., 196 Ariz. at 249, ¶ 12.
¶11 Because each child is an Indian child, these proceedings are
subject to the Indian Child Welfare Act of 1978 ("ICWA"). Under ICWA,
any party seeking to terminate parental rights to an Indian child under state
law must satisfy the court, by clear and convincing evidence, that "active
efforts have been made to provide remedial services and rehabilitative
programs designed to prevent the breakup of the Indian family and that
these efforts have proved unsuccessful." 25 U.S.C. § 1912(d) (2012); accord
Ariz. R.P. Juv. Ct. 66(C); Yvonne L. v. Ariz. Dep't of Econ. Sec., 227 Ariz. 415,
421, ¶ 26 (App. 2011). Under the law, the parent need not be provided with
every imaginable service or program designed to prevent the breakup of
the Indian family before the court may find that "active efforts" took place.
Maricopa County Juv. Action No. JS-501904, 180 Ariz. 348, 353 (App. 1994).
Furthermore, a petitioner is not required to "force a parent to participate in
recommended services." Yvonne L., 227 Ariz. at 423, ¶ 34. Rather, parents
2 Absent material revision after the relevant date, we cite a statute's
current version. Father's parental rights were terminated on grounds of
willful abuse under A.R.S. § 8-533(B)(2) and 15 months' time-in-care under
§ 8-533(B)(8)(c). Father is not a party to this appeal.
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VANESSA T. v. DCS, et al.
Decision of the Court
must be provided with the necessary "time and opportunity to participate
in programs designed to help [them] become" effective parents. JS-501904,
180 Ariz. at 353.
¶12 We review a termination order for an abuse of discretion and
will affirm unless no reasonable evidence supports the court's findings.
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. Jesus M. v. Ariz. Dep't of Econ. Sec., 203
Ariz. 278, 280, ¶ 4 (App. 2002).
¶13 Mother argues DCS failed to make active efforts to provide
remedial services and rehabilitative programs because, as Mother alleges,
DCS did not provide her treatment for a personality disorder.
¶14 Contrary to Mother's arguments, reasonable evidence
supports the superior court's findings that active efforts were made to
provide remedial services and rehabilitative programs designed to prevent
the breakup of the Indian family. In January 2015, Dr. Carlos Vega
performed a psychological evaluation of Mother. At that time, Dr. Vega
diagnosed Mother with a personality disorder and recommended
psychotherapy as treatment. Although Mother argues she never received
the recommended treatment, Devon Pinkard, Mother's mental health
counselor, testified that Mother was referred to a psychotherapist and
offered medication, but she refused the services.
¶15 Similarly, Mother argues DCS failed to make active efforts to
help her leave Father. But, as Mother admits on appeal, the court heard
testimony that DCS gave Mother the phone number of a domestic violence
hotline that could have provided Mother with housing and financial
assistance, and even offered to call the hotline for her. DCS also offered to
call a "safe house" for Mother so she could have shelter if she chose to leave
Father. Each time DCS offered these services, however, Mother chose
instead to stay with Father. In fact, she chose to stay with Father knowing
that DCS had told her that it could not return the children to her as long as
she remained with Father. Based on this record, sufficient evidence
supported the superior court's finding that DCS made active efforts to
provide remedial services and rehabilitative programs designed to prevent
the breakup of the Indian family.
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VANESSA T. v. DCS, et al.
Decision of the Court
CONCLUSION
¶16 For the foregoing reasons, we affirm the superior court's order
severing Mother's parental rights to B.T., R.T. and M.T.
AMY M. WOOD • Clerk of the Court
FILED: AA
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