Amber W. v. Ades, B.W. ( 2014 )

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
AMBER W., Appellant,
v.
ARIZONA DEPARTMENT OF ECONOMIC SECURITY, B.W., Appellees.
No. 1 CA-JV 13-0291
FILED 4-22-2014
Appeal from the Superior Court in Maricopa County
No. JD21534
The Honorable Bradley H. Astrowsky, Judge
AFFIRMED
COUNSEL
John L. Popilek, PC, Scottsdale
By John L. Popilek
Counsel for Appellant
Arizona Attorney General’s Office, Phoenix
By Michael Valenzuela
Counsel for Appellee Arizona Department of Economic Security
AMBER W. v. ADES, B.W.
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Patricia A. Orozco delivered the decision of the Court, in
which Judge Kenton D. Jones and Chief Judge Diane M. Johnsen joined.
O R O Z C O, Judge:
¶1 Amber W. (Mother) appeals the juvenile court’s order
terminating her parental rights to her daughter, B.W. (Child). For the
following reasons we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Mother gave birth to Child in February 2012. While at the
hospital, Mother told nurses she took methamphetamines during her
pregnancy. Mother and Child both tested negative for
methamphetamines. Mother also admitted to having been diagnosed
with schizoaffective and bipolar disorders, and that she was not taking
her medication. Arizona Department of Economic Security (ADES) also
learned Mother’s three-year-old son had been placed into care after she
left him in the sun while she panhandled. Consequently, ADES took
Child into temporary physical custody.
¶3 ADES filed a dependency petition alleging Mother was
unable to care for Child because of her untreated mental illness, substance
abuse, history of child neglect, and lack of income. Mother contested the
petition and requested a hearing. Before the dependency hearing, the
juvenile court ordered Mother to participate in parent aide services,
substance abuse treatment, urinalysis testing, and continued mental
health monitoring through People of Color Network. The juvenile court
also ordered ADES to provide Mother with a full-scale psychological
evaluation.
¶4 Pursuant to the juvenile court’s order, Mother underwent
the psychological evaluation. The psychologist who conducted the
evaluation diagnosed Mother with: amphetamine abuse, in partial
remission; poly-substance abuse, in partial remission; a reading disorder;
receptive language disorder; schizoaffective disorder by reported history;
post-traumatic stress disorder; and bipolar disorder by reported history.
The psychologist opined Mother was not a “parenting candidate” at that
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Decision of the Court
time and, given the totality of her difficulties, there was a poor prognosis
that Mother would be able to parent in the foreseeable future.
¶5 That same month, ADES referred Mother for parent aide
services, urinalysis testing, counseling, and substance abuse treatment.
Mother participated in parent aide services. However, Mother did not
complete her TERROS intake for substance abuse treatment and missed
several urinalysis tests. Based upon this evidence of non-compliance, the
juvenile court found Child dependent. The case plan was set as family
reunification concurrent with severance and adoption.
¶6 After the dependency hearing, Mother finally completed
the intake at TERROS. Upon completion of the intake, TERROS referred
Mother to its Metro Ladder Program (Ladders).1 Mother only attended
one appointment with Ladders despite being offered transportation by
ADES. As a result, the referral was closed. Mother missed several
counseling sessions, which caused her counseling referral to be closed, as
well. Mother did, however, successfully complete her parent aide
services.
¶7 Mother also participated in a psychiatric evaluation. The
psychiatrist diagnosed Mother with schizoaffective disorder, history of
poly-substance abuse, history of developmental learning disorders,
obsessive-compulsive disorder, and traits of post-traumatic stress
disorder. The psychiatrist noted Mother had a “number of psychiatric
hurdles to overcome,” and opined that even with therapy, substance
abuse treatment and medication, Mother would be able to demonstrate
only minimally-adequate parenting skills. He also reported that a child in
Mother’s care would likely be at risk for neglect, and that reasonable
grounds existed to believe Mother’s challenges would continue for a
prolonged, indeterminate period of time.
¶8 At a report and review hearing, ADES moved to change the
case plan to severance and adoption. The juvenile court granted the
request, and ADES subsequently moved to sever Mother’s parental rights
pursuant to Arizona Revised Statutes (A.R.S.) sections 8-533.B.3 and 8-
533.B.8(b).
1 Ladders is a program that focuses on both substance abuse and
mental health issues.
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Decision of the Court
¶9 At the severance hearing, it was reported that Mother had
stopped participating in mandatory urinalysis testing. Mother also failed
to follow through on the second referral for substance abuse treatment
made in February 2013, despite several attempts by ADES to engage her in
services. Moreover, Mother was not fully engaged in her case plan
recommendations from People of Color.
¶10 At the hearing, Mother admitted to not currently taking her
prescribed psychiatric medication because she was pregnant and because
medication does not “work” for her. Mother also testified she would
“probably” begin taking medication again after her pregnancy. Mother
also admitted a long history of mental health issues dating back to
childhood.
¶11 An ADES case manager testified that despite diligent efforts
made by ADES to provide Mother with appropriate reunification services,
Mother failed to fully engage or otherwise participate in those services
and, as a result, had not remedied the circumstances that caused Child to
be in an out-of-home placement. The case manager also opined severance
was in Child’s best interests because Child was thriving in her current
family placement, her current placement was the least restrictive, and was
meeting her needs. The case manager also reported Child’s current
placement wanted to adopt Child and adoption would provide Child with
stability and permanency.
¶12 The juvenile court terminated Mother’s parental rights to
Child. Mother timely appealed. We have jurisdiction pursuant to A.R.S.
sections 8-235, 12-120.21.A.1, and -2101.A.1.
DISCUSSION
¶13 A parent has a fundamental liberty interest in the “care,
custody, and management” of her children. See Maricopa Cnty. Juv. Action
No. JS-6520, 157 Ariz. 238, 241, 756 P.2d 335, 338 (App. 1988). This right,
however, is not absolute. Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz.
246, 248, ¶ 12, 995 P.2d 682, 684 (2000). Pursuant to A.R.S. § 8-533, the
juvenile court may terminate the parent-child relationship if it finds that
any one of the statutory grounds exists and that termination is in the
child’s best interests. See Michael J., 196 Ariz. at 249, ¶ 12, 995 P.2d at 685.
We do not reweigh the evidence and accept the juvenile court’s findings
unless no reasonable evidence exists to support them. Ariz. Dept. of Econ.
Sec. v. Oscar O., 209 Ariz. 332, 334, ¶ 4, 336 ¶ 14, 100 P.3d 943, 945, 947
(App. 2004).
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AMBER W. v. ADES, B.W.
Decision of the Court
¶14 Termination of a parent’s rights to a child younger than
three years of age pursuant to A.R.S. § 8-533.B.8(b) requires the juvenile
court find the child has been placed out of the parent’s home pursuant to a
court order for a total of six months or longer and the parent has
“substantially neglected or willfully refused” to remedy the circumstances
which caused the child to be in the out-of-home placement. This includes
a parent’s refusal to “participate in reunification services offered by”
ADES. See A.R.S. § 8-533.B.8(b).
¶15 Mother concedes Child is under three years of age and has
been in an out-of-home placement for more than six months. Mother’s
contention on appeal is that ADES failed to prove that Mother
“substantially neglected or willfully refused[] to remedy the
circumstances that caused [Child’s] out-of-home placement.”
¶16 Severance under A.R.S. § 8-533.B.8(b) is not reserved for only
those parents who completely neglect remedial services. Maricopa Cnty.
Juvenile Action No. JS-501568, 177Ariz. 571, 576, 869 P.2d 1224, 1227 (App.
1994). Parents who only make “sporadic, aborted attempts to remedy” the
circumstances may also face severance of their parental relationship. Id. at
576-77, 869 P.2d at 1229-30.
¶17 While Mother successfully completed parent aide services,
her overall participation in reunification services was sporadic, at best.
The record demonstrates Mother made minimal efforts to participate in
substance abuse therapy and mental health services. In fact, Mother
admitted she did not complete the requirements set forth in the case plan.
Furthermore, when asked about her lack of participation, Mother stated
she did not believe she had a substance abuse problem and that she did
not like attending therapy, and even agreed on cross examination that she
had considered the services an inconvenience.
¶18 Mother seems to argue her failure to participate in services is
excusable because she became discouraged when ADES requested the
juvenile court change the case plan to severance and adoption. In support
of this argument, Mother states all she needed was “some positive
reinforcement.”
¶19 However, we have expressly held that enforcement of A.R.S.
§ 8-533.B.8 provides parents with an incentive to overcome addiction and
assume parental responsibilities as soon as possible. See J-501568, 177
Ariz. at 576, 869 P.2d at 1229. Mother does not cite any authority, and we
cannot find any, that excuses a parent’s lack of participation based upon
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Decision of the Court
discouragement. The record, on the other hand, demonstrates ADES
made several attempts to engage Mother in services. Throughout this
case, ADES provided Mother with transportation and repeatedly called
urging her to engage in services. Mother’s case manager also offered to
help Mother in applying for Social Security benefits to generate income.
¶20 We find sufficient evidence supports the juvenile court’s
decision severing Mother’s parental relationship to Child under A.R.S. § 8-
533.B.8(b). Because sufficient evidence supports severance based upon the
length of time of Child’s out-of-home placement, we need not discuss the
juvenile court’s order terminating Mother’s rights pursuant to A.R.S. § 8-
533.B.3. See Michael J., 196 Ariz. at 251, ¶27, 995 P.2d at 687. Mother does
not dispute the court’s finding that termination was in Child’s best
interests; we therefore do not address it.
CONCLUSION
¶21 For the above stated reasons, we affirm the juvenile court’s
order terminating Mother’s relationship with the Child.
:MJT
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