Lisa H. 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NOTICE: NOT FOR PUBLICATION.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
LISA H., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, 1 M.H., J.H., D.H., V.H., Appellees.
No. 1 CA-JV 13-0325
FILED 09-04-2014
Appeal from the Superior Court in Maricopa County
No. JS12349
The Honorable Connie Contes, Judge
AFFIRMED
COUNSEL
John L. Popilek, P.C., Scottsdale
By John L. Popilek
Counsel for Appellant
Arizona Attorney General's Office, Phoenix
By JoAnn Falgout
Counsel for Appellee Department of Child Safety
1 Pursuant to S.B. 1001, Section 157, 51st Leg., 2nd Spec. Sess. (Ariz. 2014)
(enacted), the Department of Child Safety is substituted for the Arizona
Department of Economic Security in this matter. See ARCAP 27.
LISA H. v. DCS, et al.
Decision of the Court
MEMORANDUM DECISION
Judge Maurice Portley delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge Margaret H. Downie
joined.
P O R T L E Y, Judge:
¶1 Lisa H. “(Mother”) challenges the order terminating her
parental relationship to four of her children, M.H., J.H., D.H., and V.H.,
based on fifteen months in out-of-home placement. Because we find no
abuse of discretion, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 This case started out as an in-home dependency with services
in March 2010. Mother submitted the issue of whether the children were
dependent to the juvenile court after a mediation session, and the children
were found dependent. After the maternal grandmother then physically
abused M.H., the children were removed from Mother’s physical care and
placed in a foster home in August 2010, and the court subsequently
approved the out-of-home placement.
¶3 The Department of Child Safety (“Department”) provided a
variety of services to attempt to reunify the family. During a July 2011
hearing, the court modified the case plan to add a concurrent plan of
severance and adoption. The court changed the case plan to severance and
adoption in October 2011, and the Department subsequently filed a motion
to terminate Mother’s rights to the four children. At the contested
severance trial in May 2012, the court denied the Department’s motion to
terminate Mother’s parental rights based on fifteen months in out-of-home
placement because the court was unable to conclude that the Department
had provided Mother with “sufficient time and opportunity to participate
in reunification services under the circumstances of this case.”2 Because the
children were still dependent, the court ordered the Department to
continue offering services to Mother.
2 The court, however, terminated the parental rights of any father of the four
children in its May 2012 ruling.
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LISA H. v. DCS, et al.
Decision of the Court
¶4 The Department continued to provide services. The
Department, however, was sanctioned by the juvenile court for
discontinuing some services that had been provided before the severance
trial. Specifically, the court ordered the Department to restore services to
Mother and the children that were in place in October 2011, and to ensure
visitation with Mother and between the children. Subsequently, the court
denied the Department’s February 2013 request to change the case plan to
severance and adoption, continuing with concurrent plans of reunification,
and severance and adoption.
¶5 Although the Department continued to provide services, it
also filed a petition in February 2013 to terminate Mother’s parental rights
to the four children. Prior to the severance hearing, the court held an
evidentiary hearing and suspended visits between the children and Mother
pending the severance trial. The court conducted the termination trial in
October 2013, and entered its findings of fact and conclusions of law and
terminated Mother’s parental rights to the four children in December 2013.
DISCUSSION
¶6 Mother challenges the juvenile court’s determination that the
Department provided reasonable services to attempt to reunify the family
given her low intellectual functioning. She also challenges the court’s
determination that the evidence supported termination based on fifteen
months in out-of-home placement.3
¶7 To justify the termination of Mother’s parental rights, the
court had to find that the Department proved by clear and convincing
evidence that the children were in an out-of-home placement for fifteen
months or longer, Mother had been unable to remedy the circumstances
that caused the children to be removed “and there is a substantial likelihood
that [she] will not be capable of exercising proper and effective parental care
and control in the near future.” Ariz. Rev. Stat. (“A.R.S.”) section 8-533
(B)(8)(c);4 Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, 249, ¶ 12, 995
P.2d 682, 685 (2000). On review, we accept the juvenile court's “findings of
fact unless no reasonable evidence supports those findings, and we will
affirm a severance order unless it is clearly erroneous.” Jesus M. v. Ariz.
3 The court also was required to find, and did find, that termination was in
the best interests of the child by a preponderance of the evidence. Kent K.
v. Bobby M., 210 Ariz. 279, 288, ¶ 41, 110 P.3d 1013, 1022 (2005). Because
Mother does not challenge the best interest finding, we need not address
the finding.
4 We cite the current version of the statute unless otherwise noted.
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LISA H. v. DCS, et al.
Decision of the Court
Dep't of Econ. Sec., 203 Ariz. 278, 280, ¶ 4, 53 P.3d 203, 205 (App. 2002)
(citation omitted).
¶8 In Shawanee S. v. Ariz. Dep’t of Econ. Sec., we noted that when
children are removed, the Department “is presumptively obligated to make
reasonable efforts to provide services to the child[ren] and the . . . parent.”
234 Ariz. 174, 177, ¶ 12, 319 P.3d 236, 239 (App. 2014) (internal quotations
and citation omitted). In fact, “[w]hen a dependency case plan includes
family reunification, [the Department] is obligated to provide services
reasonably geared toward family reunification” and when the Department
“seeks severance based on length of time in care, [the Department} must
prove that it has made a diligent effort to provide appropriate reunification
services.” Id. (citations omitted).
¶9 The juvenile court, however, had to determine whether the
Department met its burden. The court is in the best position to evaluate the
effectiveness and impact of the services provided because credibility
determinations may be required to weigh the evidence presented. See Jesus
M., 203 Ariz. at 282, ¶ 12, 53 P.3d at 207. In fact, the court is required to be
active throughout the dependency process to ensure that all parties not only
receive notice of the periodic hearings and various reports, but also receive
meaningful opportunities for input and objection at the hearings. Shawanee
S., 234 Ariz. at 178, ¶ 15, 319 P.3d at 240; see generally National Council of
Juvenile and Family Court Judges, Resource Guidelines: Improving Court
Practice in Child Abuse & Neglect Cases 15 (1995) (“The juvenile court . . .
judge is required to remain actively involved over a period of time in child
welfare litigation. The judge does not simply make a one-time decision . . .
but rather makes a series of decisions over time.”). And, it is at those
hearings, including the termination trial, when a parent dissatisfied with
the services actually being provided needs to raise the issue with the court.
Shawanee S., 234 Ariz. at 178, ¶ 14, 319 P.3d at 240.
¶10 Mother first contends that she had resolved the issues that
resulted in the dependency, but the Department developed a “whole new
list of concerns” that did not relate to the reasons the children were
removed. However, in Marina P. v. Ariz. Dep’t of Econ. Sec., we stated that
the “circumstances which cause the child to be in an out-of-home
placement” included “those circumstances existing at the time of the
severance that prevent a parent from being able to appropriately provide
for his or her children.” 214 Ariz. 326, 330, ¶ 22, 152 P.3d 1209, 1213 (App.
2007) (internal quotes omitted). The proposition remains good law.
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LISA H. v. DCS, et al.
Decision of the Court
¶11 Moreover, since the passage of state legislation to conform to
the federal policy in the Adoption and Safe Families Act of 1997, Pub. L.
No. 105-89, 111 Stat. 2115 (1997), see Veronica T. v. Ariz. Dep’t of Econ. Sec.,
212 Ariz. 7, 9-10, ¶ 15, 126 P.3d 154, 156-57 (App. 2005); Toni W. v. Ariz. Dep’t
of Econ. Sec., 196 Ariz. 61, 64, ¶ 9, 993 P.2d 462, 465 (App. 1999), the focus of
the child welfare policy after the filing of a dependency has been to expedite
finding a permanent placement for dependent children. Kenneth T. v. Ariz.
Dep’t of Econ. Sec., 212 Ariz. 150, 152, ¶ 12, 128 P.3d 773, 775 (App 2006).
Consequently, we, like the juvenile court, look beyond the initial reason for
removal to determine whether the court abused its discretion by concluding
that the Department had made reasonable efforts to reunify the family.
¶12 The record supports the juvenile court’s conclusion that the
Department made diligent efforts to provide appropriate reunification
services. Between the removal of the children in October 2010 and the first
termination hearing in May 2012, Mother was provided myriad services
(case management assistance, child and family team meetings,
psychological evaluation and assessments, parent-aide services, parent
education services, individual counseling, visits with the children and
services for the children) and had made some progress — she had stable
housing and a stable job. She, however, had not learned to manage her
children appropriately. In fact, despite additional services to Mother and
the children prior to the October 2013 termination trial, Mother did not
demonstrate that she had learned to manage the children and their special
needs. Instead, as the psychologist, Dr. James S. Thal, noted, she was only
able to marginally function on her own and was not capable of
independently caring for the four younger children. And, just prior to the
2013 termination trial, following an evidentiary hearing, the court
suspended visits between Mother and the children because “continued
visits will . . . be harmful to the children.”
¶13 Moreover, the Department tried to accommodate Mother’s
intellectual abilities. Mother admitted that “I can’t say that [the
Department] haven’t helped me.” In fact, Mother had many parent-aides
over the life of the case, and some read everything to her to attempt to help
her understand parenting information. Although Mother appeared to
understand the information, she did not consistently demonstrate that she
had learned the related skills. In fact, the parent-aide who met with Mother
beginning in February 2103 testified at the evidentiary hearing that led to
visits being discontinued that Mother had missed nearly half of their one-
on-one sessions, she appeared to be learning at the sessions she attended,
but she did not consistently apply the information.
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LISA H. v. DCS, et al.
Decision of the Court
¶14 Mother testified at trial that she learned information from the
parent-aide sessions, but the materials were hard to understand and did not
seem to help her to discipline her children. She also testified that she had
attended counseling sessions but did not believe the sessions would help
her to become a better parent.
¶15 Despite the myriad services the Department provided to
Mother during the three years the children had been out of her care, she
contends that the services were not tailored to meet her intellectual abilities.
We disagree.
¶16 The Department does need not provide every conceivable
service but must provide a parent with the time and opportunity to
participate in programs designed to improve the parent’s ability to care for
the children. Mary Ellen C. v. Ariz. Dep’t of Econ. Sec., 193 Ariz. 185, 192, ¶
37, 971 P.2d 1046, 1053 (App. 1999). There is little doubt that the
Department provided reasonable services designed to help Mother
improve her parenting skills and more than sufficient time without much
success. Although she claimed at the June 2013 hearing that the services
had to be tailored to meet her needs, she never identified what should have
been done differently or needed to be done from that time onward.
Consequently, the juvenile court did not abuse its discretion by finding that
the Department had provided reasonable services during the time the
children were in out-of-home placement.
¶17 Mother also contends that the evidence does not support the
termination of her parental rights to the four children. Again, the record
indicates otherwise.
¶18 Mother does not challenge the fact that the children had been
out of her care since October 2010. Moreover, the juvenile court properly
concluded that the Department provided reasonable services designed to
reunify the family. In fact, the court had the report of Dr. Thal who opined
that Mother would not be able to learn to be an effective parent in the
foreseeable future because she could not make the necessary and
meaningful changes to ensure that the children would not be at risk. His
opinion and the other evidence satisfy the statutory requirement that the
court has to find that there is a substantial likelihood that Mother will not
be capable of exercising proper and effective parental care and control in
the near future. Consequently, the evidentiary record supports the court’s
findings that the Department met its burden of proof to demonstrate that
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LISA H. v. DCS, et al.
Decision of the Court
there was a statutory basis for the termination of parental rights. As a
result, we find no abuse of discretion.5
CONCLUSION
¶19 We affirm the termination of Mother’s parental rights to M.H.,
J.H., D.H., and V.H.
:gsh
5 In her reply brief, Mother urges us to follow State ex rel. Dep’t of Human
Ser. v. Smith, 106 P.3d 627 (Ore. 2005). We decline the invitation given the
record in this case, the governing statutory and case law, and our standard
of review.
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