Melissa M. v. Dcs, J.A.

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
MELISSA M., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, J.A., Appellees.
No. 1 CA-JV 17-0408
FILED 3-20-2018
Appeal from the Superior Court in Yavapai County
No. V1300JD201280006
The Honorable Anna C. Young, Judge
AFFIRMED
COUNSEL
Yavapai County Public Defender’s Office, Camp Verde
By Gary H. Horton
Counsel for Appellant
Arizona Attorney General’s Office, Mesa
By Amanda Adams
Counsel for Appellee Department of Child Safety
MELISSA M. v. DCS, J.A.
Decision of the Court
MEMORANDUM DECISION
Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Michael J. Brown and Judge Patricia A. Orozco1 joined.
C R U Z, Judge:
¶1 Melissa M. (“Mother”) appeals the superior court’s
September 1, 2017 order terminating her parental rights to her child, J.A.
FACTUAL AND PROCEDURAL HISTORY2
¶2 Mother is the biological mother of J.A., born in September
2014. Mother tested positively for methamphetamine in April 2014 while
four months pregnant with J.A., and the Department of Child Safety
(“DCS”) removed J.A. from Mother’s care. DCS alleged J.A. was dependent
due to neglect from Mother’s substance abuse and mental health issues and
because Mother had her parental rights terminated as to her other children
in November 2013. The superior court found J.A. dependent in December
2014.
¶3 DCS moved to terminate Mother’s parental rights to J.A. in
April 2017 on the grounds of neglect, Arizona Revised Statutes (“A.R.S.”)
section 8-533(B)(2); inability to discharge parental responsibilities because
of a mental deficiency, A.R.S. § 8-533(B)(3); and being in an out-of-home
placement for a period of fifteen months or longer, A.R.S. § 8-533(B)(8)(c).3
¶4 Before the termination hearing, DCS listed the exhibits and
witnesses it planned to present, pursuant to Arizona Rules of Procedure for
the Juvenile Court (“Rule”) 44. It listed Dr. Bluth, a psychologist who
1 The Honorable Patricia A. Orozco, retired Judge of the Court of
Appeals, Division One, has been authorized to sit in this matter pursuant
to Article 6, Section 3, of the Arizona Constitution.
2 We view the facts in the light most favorable to affirming the
superior court’s decision. Denise R. v. Ariz. Dep’t of Econ. Sec., 221 Ariz. 92,
95, ¶ 10 (App. 2009).
3 DCS had previously moved for termination in June 2016 on the same
grounds. However, the superior court found at a November 2016 hearing
that DCS had failed to prove the alleged grounds.
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MELISSA M. v. DCS, J.A.
Decision of the Court
performed psychological evaluations of Mother in April 2015 and
December 2016, as a witness. It also listed Dr. Bluth’s April 2015 and
December 2016 psychological evaluations as exhibits. Mother did not file a
written objection to the exhibits as required by Rule 44.
¶5 The day of the termination hearing, DCS informed the court
Dr. Bluth would not be testifying. Mother objected to the admission of Dr.
Bluth’s April 2015 evaluation because Dr. Bluth would not be testifying to
lay foundation for the evaluation, but the court overruled Mother’s
objection.
¶6 After the termination hearing in July 2017, the superior court
terminated Mother’s parental rights. It found DCS proved neglect because
J.A. was exposed to methamphetamine while in utero, there was recent
evidence Mother was using alcohol, and Mother had been involved in
domestic violence incidents in front of her other child, L.A., which led to
L.A.’s removal by DCS shortly after the first termination hearing in
September 2016. It found Mother had continued to engage with the
perpetrator of the domestic violence even after L.A.’s removal, and J.A.
would accordingly be at risk of neglect if he were returned to Mother’s care.
¶7 The superior court also found DCS had proven the ground of
inability to discharge parental responsibilities because of a mental
deficiency. It found Mother suffered from depression and anxiety that
affected her ability to provide a safe home for J.A. It further found that
Mother had dependent traits and had continued to associate herself with
individuals with whom she had domestic violence incidents and did not
seem to be willing to break that pattern. It noted Mother had been receiving
services for the same issues since approximately 2012 and had been unable
to maintain the services long enough to get J.A. out of DCS custody.
¶8 With regards to the ground of J.A. being in an out-of-home
placement for fifteen months or longer, the court found Mother had been
unable to remedy the circumstances causing J.A. to be in an out-of-home
placement. It found DCS had made a diligent effort to provide appropriate
services to Mother, but that Mother’s mental condition caused her to
struggle with unhealthy relationships and her unhealthy relationships
hindered her ability to parent.
¶9 Finally, the superior court found termination was in J.A.’s
best interests because it would further the case plan of adoption which
would provide J.A. with permanency and stability; J.A. had been in care for
almost three years and was in need of permanency; Mother had been
unable to provide him with a safe and stable home free from neglect; J.A.
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MELISSA M. v. DCS, J.A.
Decision of the Court
was adoptable; and J.A. was residing in a placement that was able to meet
all of his needs.
¶10 Mother timely appealed. We have jurisdiction pursuant to
A.R.S. §§ 8-235, 12-120.21(A)(1), and 12-2101(A)(1).
DISCUSSION
¶11 Mother argues the superior court abused its discretion by: (1)
terminating her parental rights on the grounds of neglect and inability to
discharge parental responsibilities; and (2) admitting a psychological
evaluation over her objection. However, because Mother does not
challenge the superior court’s findings regarding the ground of fifteen
months in an out-of-home placement,4 we affirm the court’s findings on
that ground and do not address the other grounds. See Crystal E. v. Dep’t of
Child Safety, 241 Ariz. 576, 577, ¶ 5 (App. 2017) (“By failing to challenge the
time-in-care ground, [m]other has abandoned and waived any contention
that the court erred in granting severance on that basis.”).
¶12 “A trial court has broad discretion in admitting or excluding
evidence, and we will not disturb its decision absent a clear abuse of its
discretion and resulting prejudice.” Lashonda M. v. Ariz. Dep’t of Econ. Sec.,
210 Ariz. 77, 82-83, ¶ 19 (App. 2005). An abuse of discretion “is discretion
manifestly unreasonable, or exercised on untenable grounds, or for
untenable reasons.” Id. at 83, ¶ 19.
¶13 Unless otherwise ordered by the court, the parties must
disclose a list of witnesses they intend to call at trial. Rule 44(B)(2)(d). They
must also disclose a list of and copies of all exhibits they intend to use at
trial. Rule 44(B)(2)(e). If a party objects to the admission of an exhibit, it
must file a notice of objection and specific grounds for each objection within
ten days of receipt of the list of exhibits. Id. “Specific objections or grounds
not identified in the notice of objection shall be deemed waived, unless
otherwise ordered by the court.” Id. Mother failed to timely object to the
admission of Dr. Bluth’s psychological evaluation by filing a notice of
objection as required by Rule 44 and has thereby waived her objection to its
admission. Although Mother objected to the evaluation’s admission at trial,
4 In her reply brief, Mother raises for the first time a challenge to the
finding that J.A. was in out-of-home care for fifteen months or more, when
Mother argues she has remedied the circumstances that caused J.A. to be
placed in care. We do not address arguments raised for the first time in a
reply brief. Marco C. v. Sean C., 218 Ariz. 216, 219 n.1, ¶ 8 (App. 2008).
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MELISSA M. v. DCS, J.A.
Decision of the Court
she did not file a notice of objection as required by Rule 44. She accordingly
waived any objection to the evaluation’s admission.
¶14 Mother also argues her counsel’s failure to file a timely
objection to Dr. Bluth’s psychological evaluation denied her of effective
assistance of counsel. Ineffective assistance of counsel does not support
reversal of a termination of parental rights unless the aggrieved parent can
demonstrate that counsel’s deficient performance undermines confidence
in the outcome of the proceedings and gives rise to a reasonable probability
that, but for counsel’s errors, the result would have been different, and that
parent can also show prejudice flowing from such lacking performance. See
John M. v. Ariz. Dep’t of Econ. Sec., 217 Ariz. 320, 325, ¶ 18 (App. 2007).5
¶15 Mother cannot show that but for the admission of Dr. Bluth’s
psychological evaluation the superior court would not have terminated her
parental rights. In fact, independent of Dr. Bluth’s evaluation, the superior
court found Mother had exposed J.A. to methamphetamine in utero, that
Mother was using alcohol, that she was involved in domestic violence
incidents in the presence of her youngest child, leading to DCS’ removal of
that child, Mother continued to engage with the perpetrator of the domestic
violence which led to removal of her youngest child, and her unhealthy
relationships have impeded her ability to parent. Mother has failed to show
that absent the admission of Dr. Bluth’s evaluation the superior court
would not have terminated her parental rights. Mother has failed to show
prejudice.
5 Arizona courts have not explicitly decided whether a claim of
ineffective assistance of counsel may justify relief in a termination
proceeding. See John M. v. Ariz. Dep’t of Econ. Sec., 217 Ariz. 320, 322-24,
¶¶ 8-12 (App. 2007). Here, we assume without deciding that Arizona law
would permit relief based on a claim of ineffective assistance of counsel. Id.
at 325, ¶ 17.
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MELISSA M. v. DCS, J.A.
Decision of the Court
CONCLUSION
¶16 For the foregoing reasons, we affirm the superior court’s
termination order.
AMY M. WOOD • Clerk of the Court
FILED: AA
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