Kimberly P. v. Ades, T.P. ( 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NOTICE: NOT FOR PUBLICATION.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
KIMBERLY P., Appellant,
v.
ARIZONA DEPARTMENT OF ECONOMIC SECURITY, T.P., Appellees.
No. 1 CA-JV 13-0267
FILED 04/24/2014
Appeal from the Superior Court in Maricopa County
No. JD22221
The Honorable Linda H. Miles, Judge
AFFIRMED
COUNSEL
David W. Bell, Mesa
By David W. Bell
Counsel for Appellant
Arizona Attorney General’s Office, Tucson
By Cathleen E. Fuller
Counsel for Appellee Arizona Department of Economic Security
Kimberly P. v. ADES, T.P.
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Patricia A. Orozco delivered the decision of the Court, in
which Judge Lawrence F. Winthrop and Judge Kenton D. Jones joined.
O R O Z C O, Judge:
¶1 Kimberly P. (Mother) appeals the trial court’s order severing
her parental relationship to her son T.P. (Child). The juvenile court
terminated Mother’s parental rights pursuant to Arizona Revised Statute
(A.R.S.) section 8-533.B.8(b) (Supp. 2013)1, length of time in care. The
juvenile court also found severance to be in Child’s best interests. For the
following reasons we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Child was born in May 2012. At the time of his birth, both
Child and Mother tested positive for methamphetamine. The Arizona
Department of Economic Security (ADES) set up, and Mother agreed to, a
safety plan requiring that maternal grandparents and two friends
supervise all contact between Mother and Child. ADES provided Mother
with referrals for parent aide services, random urinalysis testing through
TASC and substance abuse treatment through TERROS. Because of
Mother’s history of substance abuse, ADES also requested a referral for
the SENSE program.
¶3 Between May 2012 and June 2012, Mother failed to
participate in parent aide services and urinalysis testing. Furthermore,
ADES voided the safety plan after discovering Mother was having
unsupervised visitation with Child. As a result, ADES took Child into
temporary custody, alleging Child was dependent. ADES also referred
Mother to various services. Child was placed with his paternal
grandparents who were willing to allow Mother supervised visitation
with Child. Mother failed to consistently contact TASC to determine if she
needed to provide a urine sample for drug testing. Moreover, Mother
1 We cite to the current version of the applicable statutes when no
revisions material to this decision have since occurred.
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Kimberly P. v. ADES, T.P.
Decision of the Court
tested positive for methamphetamine in July 2012, and in August 2012,
Mother provided a sample for testing that was not her own.
¶4 In November 2012, the paternal grandparents became
concerned with Mother’s substance abuse and were no longer willing to
supervise visitation. As a result, the juvenile court ordered Mother to
complete a drug test within twenty-four hours in order to have visitation
with Child. Mother once again tested positive for methamphetamine.
Mother did not submit to any further drug tests. Moreover, Mother did
not contact ADES again to set up any future visitation with Child.
¶5 ADES filed a motion to terminate Mother’s parental rights
in January 2013. The motion alleged that Child had been in an out-of-
home placement for more than six months and Mother had not remedied
the circumstances that caused Child’s out-of-home placement.
¶6 The juvenile court held a contested severance trial in July
2013. At the time of that hearing, Mother had been participating in
substance abuse treatment for approximately five weeks. Mother
admitted she had provided another person’s urine sample in August 2012,
because she knew that had she submitted her own she would have tested
positive. When asked why she had not tested since November, Mother
testified she had moved to Kingman. Mother stated she did not engage in
treatment during her time in Kingman because the caseworker would not
return her telephone calls. In fact, throughout the hearing, Mother alleged
that ADES was nonresponsive to her telephone calls.
¶7 The caseworker testified Child was adoptable and opined
that severance and adoption was in Child’s best interests because of
mother’s history with substance abuse and lack of participation in
services. Thereafter, the juvenile court terminated Mother’s parental
rights to Child. Specifically, the juvenile court found that because Mother
had failed to fully and actively participate in substance abuse treatment
she had substantially neglected or willfully refused to remedy the
circumstances that caused Child’s out-of-home placement. Moreover, the
juvenile court found severance was in Child’s best interests because it
would allow him the opportunity to achieve permanency through
adoption.
¶8 Mother timely appealed the juvenile court’s final order. We
have jurisdiction pursuant to A.R.S. §§ 8-235(A), 12-2101(A), and
-120.21(A).
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Kimberly P. v. ADES, T.P.
Decision of the Court
DISCUSSION
¶9 The juvenile court, as the trier of fact, is in the best position
to weigh the evidence, observe the parties, judge the credibility of the
witnesses and resolve disputed facts. Ariz. Dep’t of Econ. Sec. v. Oscar O.,
209 Ariz. 332, 334, ¶ 4, 100 P.3d 943, 945 (App. 2004). Accordingly, we do
not reweigh the evidence and accept the juvenile court’s findings unless
no reasonable evidence exists to support its decision. Id.
I. Reunification Efforts
¶10 A.R.S. § 8-533.B.8(b) states the juvenile court may terminate
a parent-child relationship, if:
[t]he child who is under three years of age has been in an
out-of-home placement for a total period of six months or
longer . . . and the parent has substantially neglected or
willfully refused to remedy the circumstances that cause the
child to be in an out-of-home placement, including refusal to
participate in reunification services offered by the
department.
¶11 Mother does not dispute that Child is under three years of
age, has been in an out-of-home placement for six months or longer and
she has not remedied the circumstances that caused Child to be in that
out-of-home placement. Mother’s only argument is that ADES failed to
“make a concerted effort to preserve her relationship with [Child].”
Citing Christina G. v. Ariz. Dep’t of Econ. Sec., ADES argues Mother has
waived this issue. 227 Ariz. 231 n. 8, 256 P.3d 628, 632, n. 8 (App. 2011). In
that case, we declined to affirm the case based upon waiver but noted that
mother may have waived a challenge to the reunification efforts by failing
to raise the issue in the juvenile court proceedings. Id.
¶12 It is well-established that ADES has an affirmative duty to
make all reasonable efforts to preserve the family relationship. Mary Ellen
C. v. Ariz. Dep’t of Econ. Sec., 193 Ariz. 185, 186 ¶ 1, 971 P.2d 1046, 1047
(App. 1999). This duty, however, does not “free a parent from the need to
raise a timely objection if the parent believes services are inadequate.”
Shawanee S. v. Ariz. Dep’t of Econ. Sec., 234 Ariz. 174, 178, ¶13, 319 P.3d 236,
240 (App. 2014). As this court recently held in Shawanee S., there are a
variety of ways a parent can voice an objection pertaining to the
reunification efforts. Id. at 175, 319 P. 3d at 237. For example, Mother
could have raised her challenges to ADES’s efforts at the periodic review
hearings and the permanency planning hearing. See id. Furthermore,
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 Kimberly P. v. ADES, T.P.
Decision of the Court
Mother could have objected to the court’s reasonableness findings. See id.;
see also A.R.S. § 8-846 (Supp. 2013). Mother could have also requested an
evidentiary hearing to address the adequacy of services pursuant to Rule
58(D) of the Rules of Procedure for the Juvenile Court. See Shawanee S.,
234 Ariz. at 179, ¶ 14, 319 P.3d at 240. Additionally, Mother had several
opportunities to object to the reunification efforts or ask for additional
services throughout the dependency but failed to do either.
¶13 On the other hand, at the severance hearing, Mother testified
that she waited for someone from the parent aide services to call her for
over a year. See Id. (“[At a termination hearing, a parent can] dispute
evidence that ADES claims shows a diligent effort to provide appropriate
reunification services, including by testifying about the services actually
provided.”) Mother also made several statements that the caseworker
failed to return her telephone calls; however, the case worker testified that
calls were returned, but that Mother’s phone was not “accepting”
messages. In closing arguments Mother’s counsel argued that ADES
failed to provide Mother with appropriate reunification services. Because
Mother objected at the severance trial, she has not waived this argument
on appeal.
¶14 On this record, we find there was sufficient evidence to
support the juvenile court’s finding that the services offered were
adequate. As the juvenile court pointed out, ADES did not remove the
child immediately after Child tested positive for methamphetamine, but
instead offered her in-home services and a safety plan. Mother violated
the safety plan, which resulted in the dependency petition. After the filing
of the dependency petition, and notwithstanding the availability of
services, Mother continued to test positive for methamphetamines and did
not participate in a substance abuse program until approximately five
weeks before trial. Thus, we find ADES made reasonable reunification
efforts and the juvenile court did not err in terminating the parent-child
relationship pursuant to A.R.S. § 8-533.
II. Child’s Best Interests
¶15 Mother next argues severance was not in Child’s best
interests because Mother is “currently participating in services designed
to demonstrate her sobriety and parenting abilities.” As Mother
acknowledges, however, “the best interests inquiry focuses primarily
upon the interests of the child, as distinct from those of the parent.” Kent
K. v. Bobby M., 210 Ariz. 279, 287, ¶ 37, 110 P.3d 1013, 1021 (2005).
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Kimberly P. v. ADES, T.P.
Decision of the Court
¶16 A determination of a child’s best interests must include a
finding as to how the child will benefit from the severance or that a
continuation of the relationship will harm the child. Maricopa Cnty. Juv.
Act. No. JS-500274, 167 Ariz. 1, 5 804 P.2d 730, 734 (1990). A finding that
an adoption plan exists, or even that the child is adoptable, satisfies the
best interest requirement. Mary Lou C. v. Ariz. Dep’t of Econ. Sec., 207 Ariz.
43, 50 ¶ 19, 83 P.3d, 43, 51 (App. 2004).
¶17 Here, the juvenile court recognized severance would benefit
Child because it would allow him to achieve permanency through
adoption. See Ariz. Dep’t of Econ. Sec. v. Oscar O., 209 Ariz. 332, 337, ¶ 16,
100 P.3d 943, 948 (App. 20014). (recognizing that every child has an
interest in permanency and stablity.) Moreover, the caseworker testified
Child was in a family placement that was meeting his needs and wished
to adopt him. The caseworker further testified that even if Child’s current
family placement did not adopt him, he was adoptable.
¶18 Thus, we find sufficient evidence was presented to show
severance was in Child’s best interests.
CONCLUSION
¶19 For the foregoing reasons, we affirm the juvenile court’s
decision to terminate Mother’s parental rights to Child.
:gsh
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