Raquel D. v. Dcs ( 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NOTICE: NOT FOR PUBLICATION.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
RAQUEL D., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, PRISCILLA K., O. D., Appellees.
No. 1 CA-JV 14-0029
FILED 07-03-2014
Appeal from the Superior Court in Maricopa County
No. JD21417
The Honorable Joan M. Sinclair Judge
AFFIRMED
COUNSEL
Maricopa County Public Advocate, Mesa
By Suzanne W. Sanchez
Counsel for Appellant
Arizona Attorney General’s Office, Phoenix
By Michael Valenzuela
Counsel for Appellee
RAQUEL D. v. DCS, et al.
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Kenton D. Jones delivered the decision of the Court, in
which Judge Margaret H. Downie and Judge Donn Kessler joined.
J O N E S, Judge:
¶1 Mother, Raquel D., appeals the termination of her parental
rights to her child, O. 1 For the reasons stated below, we affirm.
FACTS AND PROCEDURAL HISTORY
I. DCS Involvement
¶2 Raquel is the mother of O., who was born in April 2011.
Prior to the birth of O., DCS 2 became involved with Mother due to her
history of substance abuse that resulted in the birth of two substance
exposed newborns. Although DCS offered Mother programs to address
her substance abuse issues, Mother did not participate in the services.
¶3 In December 2011, Mother took eight month old O. to a
hospital where the infant was diagnosed with a fracture of her right tibia.
Given DCS’ prior involvement with Mother, DCS required her to undergo
a drug test in January 2012, which returned a positive result. After
Mother changed her story several times about how the infant injured her
leg, and given the positive drug test result, DCS took custody of O., and
later placed the infant in the care of a maternal aunt.
II. Reunification Services
¶4 To regain custody of O., Mother was required to
demonstrate sobriety, provide a drug free and stable environment,
demonstrate effective parenting skills, and attend visitation sessions. As
part of the permanency plan toward reunification, DCS “offered, made
1 The juvenile court also terminated Father’s parental rights. However,
Father did not appeal the termination order, and is not part of this appeal.
2 Pursuant to S.B. 1001, Section 157, 51st Leg., 2nd Spec. Sess. (Ariz. 2014)
(enacted), the Arizona Department of Child Safety is substituted for the
Arizona Department of Economic Security in this matter. See ARCAP 27.
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Decision of the Court
referrals for and/or [was] requesting” individual counseling, substance
abuse treatment, psychological consultation, psychiatric evaluation,
urinalysis drug testing, and visitation services. In June 2012, December
2012, and June 2013, the juvenile court found DCS had made reasonable
efforts toward reunification of the family through its permanency plan.
III. Substance Abuse Services
A. Psychological and Psychiatric Services
¶5 As part of the reunification services aimed at addressing
Mother’s substance abuse issues, DCS referred Mother to TERROS
Families F.I.R.S.T. outpatient services. Mother participated actively in the
TERROS services beginning with her intake in March 2012, through
September 2012, when Mother transitioned from group to individual
counseling sessions. After graduating from standard outpatient services
(SOP), Mother engaged in trauma group counseling through EMPACT
Tempe, in October 2012, where she received a psychiatric evaluation.
¶6 In March 2013, Mother underwent a DCS referred
psychological evaluation, which indicated Mother experienced anxiety,
and manifested affective and physiological signs of depression. The
evaluating psychologist opined there was a likelihood Mother had a
bipolar disorder, but in order to administer the appropriate diagnostic
tests, Mother was required to be substance free for at least six months.
The psychologist also recommended a master’s level counselor to assist
Mother with her posttraumatic stress in the form of individual therapy
and drug counseling, and recognized TERROS drug counselors as
professionally sufficient to provide substance abuse therapy.
Additionally, after reviewing the case records, the psychologist rated as
poor Mother’s likelihood of demonstrating adequate parenting skills
within the foreseeable future.
¶7 In May 2013, DCS referred Mother to the Arizona Center for
Change (A.C.C.) for individual counseling. Although the case manager’s
attempts to contact Mother to initiate counseling services in August were
unsuccessful, Mother ultimately completed her intake in November 2013.
DCS renewed support services in December 2013, so that Mother could
continue counseling sessions and join a Dialectical Behavior Therapy
(DBT) anger management group.
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Decision of the Court
B. Drug Testing
¶8 DCS provided Mother drug testing, which required her to
undergo urinalysis a total of 209 times from January 2012, to November
2013. Mother did not appear for drug testing on ninety-five occasions
(45%), which DCS considered positive results. In addition, Mother tested
positive on two occasions for THC, three times for amphetamine use, and
once for alcohol; an overall failure rate of 48%. By July 2013, DCS moved
to terminate Mother’s parental rights, as O. had been in an outside
placement for fifteen months or longer, DCS had made diligent efforts to
provide appropriate reunification services, Mother was unable to remedy
the circumstances that caused the child to be placed in DCS custody, there
was a substantial likelihood Mother would not be capable of exercising
proper and effective parenting and control in the near future, and
severance was in the best interests of the child. See Ariz. Rev. Stat.
(A.R.S.) § 8-533(B)(8)(c) (2014). 3 After DCS moved to terminate parental
rights, Mother tested positive for THC on two additional occasions.
IV. Termination of Parental Rights
¶9 At the December 20, 2013 severance trial, Mother testified
she had used marijuana on a daily basis since she was eighteen, and her
last use occurred in October 2013. Mother also admitted using
methamphetamine after DCS removed O., and again in June 2012. Given
his review of the records, the evaluating psychologist determined Mother
continued to abuse cannabis, had not remedied her substance abuse
issues, and failed to see the seriousness of needing to resolve her drug
problem. The psychologist further asserted there was a substantial
likelihood Mother’s substance abuse problems would continue for a
prolonged, indeterminate period.
¶10 In January 2014, the juvenile court terminated Mother’s
parental rights, and found DCS had proven by clear and convincing
evidence the allegations of the severance motion, which included DCS’s
assertion it made diligent efforts to provide appropriate reunification
services. The juvenile court also found Mother had failed to resolve her
substance abuse issues, noting in particular that Mother’s positive test
results occurred as recently as two months prior to the severance trial.
The juvenile court further found that her positive test results, coupled
with her inconsistent testing at TASC, indicated she had failed to rectify
3Absent material revisions, we cite the current version of the statutes and
rules unless otherwise indicated.
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Decision of the Court
the issues that existed when DCS took custody of O., twenty-one months
prior to the severance hearing. Finally, the juvenile court determined, by
a preponderance of the evidence, that termination was in the best interest
of the child as credible evidence demonstrated “the child would benefit
from the severance or be harmed by the continuation of the relationship;”
noting O. could “have the stability she needs” and “[was] adoptable.”
Mother timely appealed. We have jurisdiction pursuant to A.R.S. §§ 8-
235(A) (2014), 12-120.21(A)(1) (2014), and 12-2101(A) (2014).
DISCUSSION
¶11 “The juvenile court, as the trier of fact in a termination
proceeding, is in the best position to weigh the evidence, observe the
parties, judge the credibility of witnesses, and make appropriate
findings.” Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 280, ¶ 4, 53
P.3d 203, 205 (App. 2002). Therefore, we will uphold the juvenile court’s
termination of parental rights “unless its factual findings are clearly
erroneous, that is, unless there is no reasonable evidence to support
them.” Audra T. v. Ariz. Dep’t of Econ. Sec., 194 Ariz. 376, 377, ¶ 2, 982 P.2d
1290, 1291 (App. 1998). To carry its burden on a petition to terminate
parental rights, the petitioner must prove at least one statutory ground for
termination under A.R.S. § 8-533(B) by clear and convincing evidence.
Valerie M. v. Ariz. Dep’t of Econ. Sec., 219 Ariz. 331, 334, ¶ 9, 198 P.3d 1203,
1206 (2009). The petitioner must also prove by a preponderance of the
evidence that severance is in the best interests of the child. Lawrence R. v.
Ariz. Dep’t of Econ. Sec., 217 Ariz. 585, 587, ¶ 7, 177 P.3d 327, 329 (App.
2008). We review interpretations of court rules de novo. Ruben M. v. Ariz.
Dep’t of Econ. Sec., 230 Ariz. 236, 240, ¶ 20, 282 P.3d 437, 441 (App. 2012).
¶12 On appeal, Mother asserts the juvenile court order
terminating her parental rights was invalid because 1) DCS failed to make
diligent efforts toward reunification; and 2) the juvenile court did not find
DCS had made diligent efforts to reunify the family.
A. DCS Reunification Services
¶13 Once a child is placed in custody, A.R.S. § 8-533(B)(8)
requires the agency responsible for the child’s care to make a “diligent
effort to provide appropriate reunification services.” In providing
services, the agency is “not required to offer every conceivable service or
to ensure that a parent participates in each service it offers.” In re Appeal in
Maricopa Cnty. Juvenile Action No. JS-501904, 180 Ariz. 348, 353, 884 P.2d
234, 239 (App 1994). The agency, however, must “undertake measures
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Decision of the Court
with a reasonable prospect of success.” Mary Ellen C. v. Arizona Dep’t of
Econ. Sec., 193 Ariz. 185, 192, ¶ 34, 971 P.2d 1046, 1053 (App. 1999).
¶14 Mother asserts DCS failed to make diligent efforts to provide
reunification services because it failed to offer the DBT anger management
therapy recommended by her counselor to assist Mother in addressing her
emotional issues connected with past trauma. Mother relies upon Mary
Ellen C., for the proposition that DCS must offer “the very services that its
consulting expert recommends” in order to meet the threshold
requirement of making diligent efforts toward reunification. Id. at 192, ¶
37, 971 P.2d at 1053. We read Mary Ellen C. differently.
¶15 In Mary Ellen C., this Court addressed the preliminary
question of whether DCS was obliged to make reasonable efforts to
preserve the family relationship before seeking termination of parental
rights on mental illness grounds, pursuant to A.R.S. § 8-533(B)(3). 4 Id. at
191, ¶¶ 28-29, 971 P.2d at 1052. Finding DCS did not “prove by clear and
convincing evidence that it had made a reasonable effort to provide Mary
with rehabilitation services or that such an effort would be futile,” id. at
193, ¶ 42, 971 P.2d at 1054, this Court reasoned:
[DCS] offered Mary no significant reunification services for
almost a year after removing [the child] from her care. It
waited more than a year after removing the child before
referring a mother with a serious mental illness for a
psychological evaluation and did not steer her to ComCare
for treatment until three months more had passed. As for
steering Mary to Comcare [sic], which was the sum total of
[DCS’s] response to Dr. Bencomo’s recommendation of
intensive psychiatric services, [DCS] gave Mary a phone
number, encouraged her to self-refer, and never followed up
sufficiently to secure ComCare records of her progress.
. . . Mary received six sessions of counseling at ComCare.
This level of intervention obviously fell short of Dr.
Bencomo’s recommendation.
4 A.R.S. § 8-533(B)(3) states, in pertinent part: “Evidence sufficient to
justify the termination of the parent-child relationship shall include . . .
[t]hat the parent is unable to discharge parental responsibilities because of
mental illness [or] mental deficiency . . . and there are reasonable grounds
to believe that the condition will continue for a prolonged indeterminate
period.”
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Decision of the Court
Id. at 192, ¶¶ 35-36, 971 P.2d at 1053.
¶16 The case at bar, however, differs from Mary Ellen C. In the
immediate case, when DCS assumed custody of O., it began providing a
wide range of services aimed at assisting Mother in attaining and
maintaining sobriety. Some of those services included group and
individual counseling at TERROS, as well as trauma group counseling at
EMPACT Tempe where Mother received a psychiatric evaluation and
medication for anxiety and depression. Further addressing Mother’s
mental health needs, DCS provided two psychological consultations, a
psychological evaluation, and additional individual counseling sessions at
A.C.C., where the counselor recommended DBT anger management
group therapy.
¶17 We disagree with Mother’s assertion DCS failed to provide
reasonable reunification services because Mother did not receive the DBT
anger management therapy that is the subject of her appeal. The record
indicates DCS renewed Mother’s referral for services for the express
purpose that she join a DBT anger management therapy group. Moreover,
DCS approved the DBT recommendation expeditiously: Mother began
counseling sessions at A.C.C. in late November 2013, and, either at that
time or shortly thereafter, the counselor recommended the DBT therapy.
Prior to the December 20, 2013 termination hearing, DCS renewed the
services to allow Mother to continue individual counseling and to join a
DBT anger management group. Even with DCS’ response, Mother
testified she needed several additional sessions of individual counseling to
prepare for DBT therapy. Though, arguably, the juvenile court’s
severance of Mother’s parental rights on January 9, 2014, may have
precluded Mother’s involvement in DBT therapy, we cannot agree with
Mother’s contention that DCS did not make diligent efforts to reunify the
family by failing to offer “the very services that its consulting expert
recommends.” Mary Ellen C., 193 Ariz. at 192, ¶ 37, 971 P.2d at 1053.
B. The Juvenile Court’s Findings
¶18 Mother also asserts the termination order is invalid because
the juvenile court failed to specifically find DCS made diligent efforts to
reunify the family. Mother asserts the juvenile court failed to meet the
requirements of A.R.S. § 8-533(B)(8)(c) and Arizona Rule of Procedure for
the Juvenile Court 66(F)(2)(a) because rather than specifically finding DCS
made diligent efforts to provide reunification services, the juvenile court
merely made legal findings pertaining to Mother’s inability to resolve
issues present at the time DCS assumed custody of O.
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RAQUEL D. v. DCS, et al.
Decision of the Court
¶19 The record, however, indicates the juvenile court made the
appropriate findings. On three occasions prior to the termination hearing;
in June 2012, December 2012, and June 2013, the juvenile court found DCS
had made reasonable efforts toward reunification of the family.
Furthermore, although the juvenile court did not specifically engage in
reasonable efforts analysis in granting the termination motion, it did find
DCS met its burden of proof regarding the allegations in its severance
motion; those allegations included DCS’ assertion it had made diligent
efforts, as required by A.R.S. § 8-533(B)(8), in providing services.
¶20 Most importantly, however, when sufficient evidence exists
to support a termination order, we presume the juvenile court made the
necessary findings even though the juvenile court did not explicitly
engage in reasonable efforts analysis under A.R.S. § 8-533(B)(8). Mary Lou
C. v. Ariz. Dep’t of Econ. Sec., 207 Ariz. 43, 49-50, ¶¶ 16-17, 83 P.3d 43, 49-50
(App. 2004) (citations omitted). Here, the record clearly indicates DCS
provided services necessary toward Mother regaining custody of her
child. In addition to the drug testing and psychological and psychiatric
services aimed at addressing Mother’s substance abuse issues, parenting
classes, supervised visitation, and transportation services were made
available. With that, we are satisfied sufficient evidence was presented to
support a “diligent effort” finding.
CONCLUSION
¶21 For the foregoing reasons, we affirm the juvenile court’s
termination of Mother’s parental rights.
:gsh
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