Kandyse A. 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
KANDYSE A., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, Y.A., V.A., Appellees.
No. 1 CA-JV 16-0403
FILED 3-30-17
Appeal from the Superior Court in Maricopa County
No. JD528021
The Honorable Timothy J. Ryan, Judge
AFFIRMED
COUNSEL
The Stavris Law Firm, PLLC, Scottsdale
By Alison Stavris
Counsel for Appellant
Arizona Attorney General’s Office, Mesa
By Nicholas Chapman-Hushek
Counsel for Appellees
KANDYSE A. v. DCS, et al.
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Randall M. Howe delivered the decision of the Court, in
which Judge Lawrence F. Winthrop and Judge Jon W. Thompson joined.
H O W E, Judge:
¶1 Kandyse A. (“Mother”) appeals the juvenile court’s order
terminating her parental rights to her minor children Y.A. and V.A. Mother
argues that the Department of Child Safety (the “Department”) failed to
make diligent efforts to provide her dialectical behavioral therapy (“DBT”)
and that the juvenile court erred by finding that she would be incapable of
exercising proper parental care in the near future. For the following reasons,
we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 The Department initially got involved with Mother when she
left her two children with their grandmother for three months. While
Mother was away, the grandmother obtained temporary guardianship of
the children. Mother returned to Arizona and petitioned the court to revoke
the temporary guardianship, arguing that she never consented to the
guardianship and that she did not “want [the children] raised the way [she]
was.” The court returned the children to Mother.
¶3 The children’s guardian ad litem then petitioned for
dependency. The Department and Mother moved to dismiss the petition,
which the juvenile court granted. After it dismissed the dependency
petition, the juvenile court assigned a court appointed special advocate to
Mother and directed Mother to participate in a Family Preservation Team
and other services. Mother again left the children with their grandmother,
however, and in October 2014, the Department petitioned for dependency.
¶4 The Department alleged that Mother left the children with
their grandmother after the Department told her several times that the
grandmother was an inappropriate caregiver. The Department further
alleged that Mother neglected the children and was unable to parent due to
unstable housing and mental health issues. Mother denied the allegations
but submitted the issue of dependency to the juvenile court, which found
in February 2015 that the children were dependent. Both children were
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Decision of the Court
placed with their maternal great-uncle and great-aunt, where they
remained during the entirety of the juvenile court proceedings.
¶5 To facilitate the goal of family reunification, the Department
offered Mother a variety of services. The Department referred Mother for a
psychological evaluation and offered a parent aide and supervised
visitation. The psychologist noted that Mother had a “personality disorder
with issues involving trust,” and that she would need an array of services
to help her gain “minimally adequate” parenting skills. He recommended
that Mother participate in individual counseling, parenting classes, and
continue with her parent aide. The Department referred Mother to
individual counseling, but when Mother failed to return the counselor’s
calls or to attend any meeting, the referral expired.
¶6 Mother’s first parent aide service closed in April 2015 because
she failed to attend almost all the parenting skills sessions with the parent
aide and missed more than half of her supervised visits. When Mother did
attend supervised visitations, she often had to be told how to effectively
parent the children. The Department referred Mother to another full parent
aide service. In July 2015, the children started showing significant signs of
behavioral problems stemming from their visits with Mother. At visits, the
children would yell and hit Mother and Mother would fail to follow
through with proper discipline. The children also experienced additional
behavioral problems at their great-uncle and great-aunt’s house and at
daycare. Y.A. became aggressive with her teachers and other children at
daycare. When the parent aide and case manager discussed the issues with
Mother, Mother became defensive. Mother stated that all of the services
were useless and that she did not understand why the Department was
involved with her children.
¶7 After consulting with the unit psychologist about the
children’s behavioral problems and Mother’s failure to address her mental
health issues, the Department moved to suspend visitation. In September
2015, the juvenile court ordered that the visits be suspended until the
children’s behavioral problems and Mother’s mental health issues and lack
of parenting skills could be addressed. The unit psychologist also
recommended that Mother participate in DBT because she failed to
participate in individual counseling. Mother participated in the DBT from
October 2015 until March 2016 when the authorization period ended. The
DBT therapist reported that Mother canceled the first two sessions, three
sessions in December, and one in January.
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¶8 Although Mother told the DBT therapist that she was living
on a friend’s couch, she refused to notify the Department itself of where she
was living. Mother also seemed confused about what the Department
expected of her. She stated to the therapist that all she needed to do to get
her children back was to complete the DBT. The DBT therapist reminded
Mother to think about housing and employment stability and emotional
regulation. The therapist believed that an extension of therapy would be
necessary to make up for the lack of consistency. The Department sought
an extension for the DBT.
¶9 In the meantime, the juvenile court changed the case plan at
the Department’s request to severance and adoption. The Department
therefore moved to terminate Mother’s parental rights to the children on
two grounds: (1) mental illness under A.R.S. § 8–533(B)(3) and (2) 15 months
in an out-of-home placement pursuant to court order under A.R.S.
§ 8–533(B)(8)(c).
¶10 In May 2016, Mother began therapeutic visitations with the
children. The Department’s goals for Mother were for her to properly
redirect the children, maintain their safety throughout the visits, give the
children positive reinforcement and encouragement, and get the children
to obey the playroom’s rules. Instead, Mother allowed the children to
misbehave and disobey the rules at visits and refused to properly redirect
or discipline the children. Mother would often have the therapist redirect
or discipline the children because she did not want them to be mad at her.
Although the therapist would model how to effectively do this, Mother
failed to do so herself. Oftentimes, Mother seemed disinterested in
interacting with the children, failed to ever bring a diaper bag, and only
brought activities occasionally. The children again started experiencing
behavior problems when visiting with Mother and started exhibiting signs
of aggression after leaving visits.
¶11 Mother began attending DBT again in June 2016. During DBT
sessions, Mother expressed her frustrations with having to redirect and
discipline the children during visits. The DBT therapist consulted with the
visitation therapist to help Mother better understand what was expected of
her during visitations. In August 2016, the DBT therapist discussed the
issues occurring in therapeutic visitations and Mother became defensive,
“shut down, and left the session early.”
¶12 At the September 2016 severance hearing, the case manager
testified that Mother failed to remedy the circumstances that caused the
children to be in the Department’s care and that Mother would be unlikely
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to effectively parent the children in the near future. She stated that although
Mother had stable housing and employment at the time of the trial,
throughout the entirety of the case Mother had moved at least ten times and
had several short term jobs. The case manager admitted that a possibility
existed that with more time Mother might be able to make the necessary
behavioral changes, but that “the amount of time [the children] have been
in care and the lack of behavior changes” by Mother warranted severing
Mother’s parental rights.
¶13 The case manager testified further that the children had
consistency and stability with their great-uncle and great-aunt and were
doing very well with them. At the time of the trial, the children had lived
there for almost two years—the majority of their lives. The case manager
stated that the great-uncle and great-aunt were meeting the children’s
needs and that they were willing to adopt.
¶14 The visitation therapist discussed Mother’s performance at
visitations and the children’s attitudes. The children continued to behave
aggressively towards Mother and themselves while in visits. The therapist
stated that the children only acted this way when visiting with Mother and
not when she saw them with the great-uncle and great-aunt. Additionally,
the therapist explained that Mother had only minimally progressed in
learning how to effectively parent the children and that serious concerns
still existed. The children were often very aggressive with each other,
climbed on the couch and table, and tried to run out of the sessions. The
DBT therapist also testified that Mother had started to make some progress
in the months leading up to the severance hearing but that Mother would
still need another six months if she remained consistent to fully benefit from
the DBT.
¶15 After the severance trial concluded, the juvenile court
conducted a report and review hearing. The Department moved for a
reasonable efforts finding and although Mother had never objected to a
reasonable efforts finding before, objected to the requested finding. The
juvenile court made the reasonable efforts finding and terminated Mother’s
parental rights under both the mental illness and 15 months in an
out-of-home placement grounds. The juvenile court also found that
termination was in the children’s best interests because the great-uncle and
great-aunt were meeting all the children’s needs and severance would
further the plan of adoption and provide permanency and stability for the
children. Mother timely appealed.
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DISCUSSION
1. Statutory Ground for Termination
¶16 Mother argues that the Juvenile Court erred by finding that
the Department made diligent efforts to provide her with reunification
services and that she would be incapable of exercising proper parental care
in the near future. We review a juvenile court’s termination order for an
abuse of discretion. E.R. v. Dep’t of Child Safety, 237 Ariz. 56, 58 ¶ 9, 344 P.3d
842, 844 (App. 2015). Further, “if clear and convincing evidence supports
any one of the statutory grounds on which the juvenile court ordered
severance, we need not address claims pertaining to the other grounds.”
Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 280 ¶ 3, 53 P.3d 203, 205
(App. 2002).
¶17 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, and find by a preponderance of the evidence that
termination is in the child’s best interests. See A.R.S. §§ 8–533(B), –537(B);
Jennifer S. v. Dep’t of Child Safety, 240 Ariz. 282, 286 ¶ 15, 378 P.3d 725, 729
(App. 2016). To terminate parental rights for 15 months in an out-of-home
placement, the juvenile court must find that (1) the children have been in
an out-of-home placement for a cumulative period of 15 months or longer
pursuant to court order, (2) the parent has been unable to remedy the
circumstances that caused the children to be in an out-of-home placement,
(3) a substantial likelihood exists that the parent will not be capable of
exercising proper and effective parental care and control in the near future,
and (4) the Department had “made a diligent effort to provide appropriate
reunification services.” A.R.S. § 8–533(B)(8)(c); see also Shawanee S. v. Ariz.
Dep’t of Econ. Sec., 234 Ariz. 174, 177 ¶ 9, 319 P.3d 236, 239 (App. 2014).
¶18 Mother does not discuss the first two requirements in her
appeal but the record supports the juvenile court’s finding that the elements
were satisfied. The children were removed from Mother’s care in October
2014 and the severance trial occurred in September 2016—a span of 23
months. Further, the juvenile court found that Mother failed to remedy the
circumstances that led to the Department taking custody of the children.
Mother was initially provided a parent aide to supervise visitations with
the children and help Mother learn parenting skills. Mother was unable to
effectively parent during visitations even with the help of the parent aide.
This parent aide service closed out after Mother failed to attend any
parenting skills sessions and missed the majority of her visits. At the time
of the severance trial, Mother had been participating in therapeutic
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Decision of the Court
visitations with the children for four months. The therapist reported that
Mother made little progress in redirecting and disciplining the children and
often showed up unprepared for visits. Thus, the record supports these two
findings.
¶19 The record also supports the juvenile court’s finding that a
substantial likelihood existed that Mother would be unable to effectively
parent in the near future. At the beginning of the therapeutic visitations, the
Department had specific goals for Mother to accomplish. Mother needed to
effectively parent during visits by redirecting and disciplining the children,
giving the children positive reinforcement, maintaining the children’s
safety, and helping the children obey the playroom rules. The therapist
testified that Mother rarely redirected the children and often asked her to
do it instead. She further explained that when Mother did try to redirect the
children, the redirection was at a very basic level and Mother rarely
followed through. Although the DBT therapist and case manager
mentioned that Mother could continue progressing if she remained
consistent in services, she still was not effectively parenting after receiving
services for almost two years. Therefore, sufficient evidence supports the
juvenile court’s finding that a substantial likelihood existed that Mother
would be unable to effectively parent in the near future.
¶20 When seeking termination of parental rights under the 15
months in an out-of-home placement ground, the Department has an
obligation to make diligent efforts to provide reunification services. A.R.S.
§ 8–533(B)(8). The Department “must provide services to the parent with
the time and opportunity to participate in programs designed to help her
to become an effective parent.” Christina G. v. Ariz. Dep’t of Econ. Sec., 227
Ariz. 231, 235 ¶ 14, 256 P.3d 628, 632 (App. 2011). The Department,
however, is not required to provide every conceivable service or provide
services that are futile. Id.
¶21 The Department argues that Mother waived the diligent
efforts argument because she failed to timely raise it below. A parent who
does not object to the Department’s efforts to provide reunification services
at the juvenile court waives that argument on appeal. Shawanee S., 234 Ariz.
at 178 ¶ 13, 319 P.3d at 240. After the evidentiary phase of the severance
trial ended, the juvenile court held a report and review hearing where the
Department moved for a reasonable efforts finding. Mother had previously
failed to raise the issue or otherwise object before, but objected to such a
finding at that time. The Department contends that this objection was
untimely and therefore waived on appeal. Because the record supports a
conclusion that the Department made diligent efforts to provide
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Decision of the Court
reunification services, however, we need not determine whether waiting
until the last day of juvenile court proceedings to object to a reasonable
efforts finding waives that argument on appeal.
¶22 The Department provided Mother with services before it
petitioned for dependency in October 2014. After the dependency was
determined, the Department provided Mother with a court appointed
special advocate, supervised visitations, parent aides, transportation, a
psychological evaluation, individual counseling, DBT counseling, and
therapeutic visitations. After Mother’s psychological evaluation
recommended that she participate in individual counseling, the
Department submitted a referral for Mother. Mother failed to attend. Then,
when supervised visitations with the children were suspended, the unit
psychologist recommended that Mother participate in DBT. The DBT
therapist reported that an extension would likely be needed because of
Mother’s inconsistency and defensiveness in the sessions. The Department
submitted a request for the extension, but the DBT stopped for three months
before the extension received approval. Although Mother contends
otherwise, this short break in the DBT sessions, without more, is not enough
to find diligent efforts were not made. Further, even after the Department
requested a change in the case plan and moved to terminate parental rights,
it provided Mother with therapeutic visitations. Thus, on this record, the
juvenile court did not err by finding that the Department made diligent
efforts to provide family reunification services. Accordingly, the juvenile
court did not err by finding by clear and convincing evidence the 15 months
in an out-of-home placement ground under A.R.S. § 8–533(B)(8)(c).
2. Best Interests
¶23 Mother fails to discuss the best interests finding and
accordingly has waived any objection to the court’s finding; however, the
record more than adequately demonstrates that termination of Mother’s
parental rights was in the children’s best interests. Termination of parental
rights is in a child’s best interests if the child will benefit from the
termination or will be harmed if the relationship continues. Mario G. v. Ariz.
Dep’t of Econ. Sec., 227 Ariz. 282, 288 ¶ 26, 257 P.3d 1162, 1168 (App. 2011).
Factors the juvenile court look at in determining whether a child will benefit
from severance include whether: (1) the current placement is meeting the
child’s needs, (2) an adoptive placement is immediately available, and (3)
the child is adoptable. Raymond F. v. Ariz. Dep’t of Econ. Sec., 224 Ariz. 373,
379 ¶ 30, 231 P.3d 377, 383 (App. 2010).
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Decision of the Court
¶24 Here, the record supports the juvenile court’s finding that
termination was in the children’s best interests. The case manager testified
that the children’s great-uncle and great-aunt were meeting all the
children’s needs and that the children were doing very well there. The case
manager further testified that if severance were to occur the great-uncle and
great-aunt were willing to adopt. This evidence is sufficient to support the
juvenile court’s finding that severance was in the children’s best interests.
CONCLUSION
¶25 For the foregoing reasons, we affirm.
AMY M. WOOD • Clerk of the Court
FILED: JT
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