Vanessa T. v. Dcs

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
VANESSA T., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, C.G, A.T, M.T, J.T, J.T., Appellees.
Nos. 1 CA-JV 14-0319 and 1 CA-JV 14-0340
Consolidated
FILED 6-16-2015
Appeal from the Superior Court in Maricopa County
No. JD506680
The Honorable Brian K. Ishikawa, Judge Retired
AFFIRMED
COUNSEL
Maricopa County Public Advocate, Mesa
By Suzanne W. Sanchez, David C. Lieb
Counsel for Appellant
Arizona Attorney General’s Office, Mesa
By Amanda L. Adams
Counsel for Appellee Department of Child Safety
VANESSA T. v. DCS, et al.
Decision of the Court
MEMORANDUM DECISION
Judge Kent E. Cattani delivered the decision of the Court, in which
Presiding Judge Patricia K. Norris and Judge Patricia A. Orozco joined.
C A T T A N I, Judge:
¶1 Vanessa T. (“Mother”) appeals from the superior court’s
order terminating her visitation rights prior to the conclusion of a pending
severance proceeding involving her five children, C.G., A.T., M.T., J.C.T.,
and J.T.1 For reasons that follow, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 The children were taken into temporary custody in January
2014 after Mother tested positive for methamphetamine at J.T.’s birth. The
superior court found the children dependent as to Mother. The Department
of Child Safety (“DCS”) provided reunification services for Mother,
including random drug testing and treatment as well as visitation with the
children for two hours twice weekly.
¶3 In April 2014, DCS reported that Mother was not complying
with reunification services or with visitation requirements. Specifically,
Mother was not consistent with visits and she discussed the status of the
case with the children, even though she had been instructed not to do so.
The court reduced visitation to a single two-hour period each week, with
an additional condition that Mother call to confirm her attendance 24 hours
before the visit. Mother’s visitation pattern remained inconsistent,
however, and she missed five visits in May and June. As a result of this
inconsistency, DCS required Mother to “double call” to confirm her
attendance: a first call 24 hours before the scheduled visit and a second on
the morning of the visit.
¶4 At the September 2014 report and review hearing, both DCS
and the children’s guardian ad litem (“GAL”) asked the court to terminate
visitation. The GAL noted Mother’s inconsistent attendance at scheduled
visits and that the children were experiencing trauma resulting from the
visits. The GAL further noted that Mother had failed to comply with
1 The children’s fathers are not parties to this appeal.
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VANESSA T. v. DCS, et al.
Decision of the Court
substance abuse testing requirements. DCS’s counsel read into the record
portions of an appointed therapist’s recommendation against continued
visitation if Mother was not consistent for 30 days and if Mother did not
refrain from discussing with the children the dependency case or when they
would be returning home. Mother opposed the recommendation that
visitation be terminated, but she did not dispute the information in the
therapist’s report.
¶5 The court found that Mother’s continued methamphetamine
use and her inconsistent attendance at scheduled visits had endangered the
children. The court nevertheless did not terminate Mother’s visitation
rights at that time, but told Mother that if she were “even one minute late”
or failed to appear for a visit, her visitation rights would be terminated. The
court also changed the case plan to severance and adoption.
¶6 At a report and review hearing in October 2014, DCS notified
the court that Mother was 25 minutes late for her most recent scheduled
visitation. Mother asserted that she had been only three minutes late
because the parent aide had agreed to start the visitation at a later time. The
court terminated Mother’s visitation rights, noting its prior admonitions
and finding that further visitation with Mother “would endanger the
children because of the inconsistency” and it “would endanger and be
detrimental to the children’s well being.”
¶7 Mother filed a motion to reconsider and requested an
evidentiary hearing on endangerment, arguing that the record did not
provide sufficient evidentiary support for an endangerment finding and
that the court therefore lacked grounds to terminate visitation. The court
summarily denied Mother’s requests.
¶8 Mother timely appealed the superior court’s order
terminating her visitation rights and an order denying her motion to
reconsider. Because the order terminating Mother’s visitation rights is a
final, appealable order, see Francisco F. v. Ariz. Dep’t of Econ. Sec., 228 Ariz.
379, 381, ¶ 8, 266 P.3d 1075, 1077 (App. 2011) (citing Maricopa Cnty. Juv.
Action No. JD-5312, 178 Ariz. 372, 374–75, 873 P.2d 710, 712–13 (App. 1994)),
we have jurisdiction under Arizona Revised Statutes (“A.R.S.”) § 8-235.2
2 Absent material revisions after the relevant date, we cite a statute’s
current version.
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VANESSA T. v. DCS, et al.
Decision of the Court
DISCUSSION
¶9 Mother argues the superior court erred by terminating her
visitation rights with the children without sufficient evidence to support a
finding of endangerment.
¶10 We review an order terminating visitation for an abuse of
discretion and will affirm if the order is supported by sufficient evidence.
JD-5312, 178 Ariz. at 375–76, 873 P.2d at 713–14. The superior court has
broad discretion relating to parental visitation and should consider whether
“visitation would endanger seriously the child’s physical, mental, moral or
emotional health.” Id. The court should deny visitation only under
extraordinary circumstances and only if visitation is endangering the child.
See id.; see also Michael M. v. Ariz. Dep’t of Econ. Sec., 202 Ariz. 198, 200, ¶ 9,
42 P.3d 1163, 1165 (App. 2002).
¶11 Mother argues that the court’s endangerment finding lacked
any evidentiary support because the therapist’s report, which
recommended against further visitation, was not offered or admitted into
evidence. Under Rule 58(E)(2) of the Arizona Rules of Procedure for the
Juvenile Court, “[a]ll documents which the parties wish the court to
consider as evidence shall be marked and admitted prior to the conclusion
of the hearing.” However, “[a]bsent any objection by a party, the court may
consider the oral or written reports of the parties, documents previously
entered into evidence at prior proceedings, documents agreed upon by the
parties and any other reports, pursuant to Rule 45.” Ariz. R.P. Juv. Ct.
58(E)(1).
¶12 Here, DCS’s counsel informed the court of the therapist’s
recommendation and read into the record a portion of the report stating
that “[t]herapist suggests that visits be . . . reconsidered if Mother is not
consistent for at least 30 days.” Mother did not dispute receiving the
therapist’s report and did not object to the court’s consideration of its
content at the hearing. By failing to object, Mother waived her current
argument regarding the report’s admissibility. See Christy C. v. Ariz. Dep’t
of Econ. Sec., 214 Ariz. 445, 452, ¶ 21, 153 P.3d 1074, 1081 (App. 2007).
¶13 Waiver notwithstanding, reasonable evidence in addition to
the therapist’s report supports the superior court’s endangerment finding
and the resulting order terminating visitation. J.C.T.’s foster parents
reported he “had a lot of setbacks, just from the last two visits from the
inconsistency.” A.T. and M.T.’s foster parents reported that the two
children “[suffered from] emotional issues when visits have been
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Decision of the Court
cancelled” and had started “withdrawing and being sad” following visits.
The foster parents also reported that A.T. and M.T. struggled with
behavioral issues following visits with Mother, including “aggressive
behavior” and “sobbing.” C.G.’s placement reported that C.G. had been
exhibiting “sadness” at home and at school resulting from the visits.
¶14 Mother was adequately informed that her inconsistency in
attending visits with the children was harming them and that future
visitation was contingent upon her compliance with the “double call”
procedure and timely arrival. Mother nevertheless missed multiple visits,
and despite clear admonitions from the court, Mother did not arrive on time
for her last scheduled visitation. Substantial evidence showed that the
children suffered adverse emotional and behavioral consequences
stemming both from time spent with Mother and from Mother’s
inconsistency in attending visits. Given Mother’s continued drug abuse
and the evidence of harm to the children, the record supports the superior
court’s endangerment finding and its conclusion that terminating visitation
was in the children’s best interests. See Michael M., 202 Ariz. at 201, ¶ 11–
12, 42 P.3d at 1163.
CONCLUSION
¶15 We affirm the termination of Mother’s visitation rights.
:ama
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