Jessica H. v. Dcs, C.H.

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
JESSICA H., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, C.H., Appellees.
No. 1 CA-JV 15-0013
FILED 9-1-2015
Appeal from the Superior Court in Maricopa County
Nos. JD21461, JS17421
The Honorable Bradley H. Astrowsky, Judge
AFFIRMED
COUNSEL
Vierling Law Offices, Phoenix
By Thomas A. Vierling
Counsel for Appellant
Arizona Attorney General’s Office, Mesa
By Nicholas Chapman-Hushek
Counsel for Appellee Department of Child Safety
JESSICA H. v. DCS, C.H.
Decision of the Court
MEMORANDUM DECISION
Chief Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Kent E. Cattani joined.
B R O W N, Chief Judge:
¶1 Jessica H. (“Mother”) appeals the juvenile court’s order
terminating her parental rights to her son, C.H. For the following reasons,
we affirm.
BACKGROUND
¶2 C.H., born in December 2013, is the biological child of Mother
and Christopher H. (“Father”).1 Mother and Father also have an older
child, X.H., born in January 2012, who was the subject of an earlier
termination proceeding.2
¶3 One day after C.H.’s birth, DCS responded to a report that
Mother had tested positive for methamphetamines and that C.H. had tested
positive for amphetamines. DCS took C.H. into temporary custody and
filed a dependency petition soon thereafter alleging Mother had neglected
the child due to substance abuse. DCS referred Mother for a mandatory
hair follicle drug test, which Mother did not complete. Mother was
scheduled to undergo a psychological evaluation, but did not attend.
Mother received a TERROS referral, but because she never responded to
outreach calls, her referral was closed out.
1 Father also appealed the juvenile court’s termination of his parental
rights to C.H., but the appeal was dismissed.
2 In July 2014, the juvenile court terminated Mother’s and Father’s
parental rights to X.H. pursuant to Arizona Revised Statutes (“A.R.S.”)
section 8-533(B)(8)(b) (child under age three has been in out-of-home
placement for six months; parent has substantially neglected child or
willfully refused to remedy circumstances leading to placement). Mother
appealed, and this court affirmed. See Jessica H. v. Dep’t of Child Safety, 1
CA-JV 14-0201, 2015 WL 3647569 (Ariz. App. June 11, 2015) (mem.
decision).
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JESSICA H. v. DCS, C.H.
Decision of the Court
¶4 In February 2014, DCS filed a petition for termination of
Mother’s parental rights to C.H. on the grounds of chronic drug abuse
under Arizona Revised Statutes (“A.R.S.”) section 8-533(B)(3). Mother
received and signed a copy of “Form 3 - Notice to Parent in Termination
Action,” which stated that her failure to attend all future hearings could
result in a waiver of legal rights and an admission to the allegations
included in the petition for termination. The form also explained that
hearings could proceed in Mother’s absence, resulting in termination of the
parental rights based on the record and evidence presented.
¶5 The juvenile court set a four-day contested severance hearing
in late January 2015 to be heard in conjunction with the dependency
adjudication and set a pretrial conference for September 12, 2014 at 8:30
a.m. The court’s minute entry indicates that Mother again received a copy
of Form 3. The morning of September 12, Father called to inform the court
that he had taken Mother to the hospital and would be unable to get to the
courthouse on time, but refused the court’s invitation to appear
telephonically. The juvenile court ordered that it would “excuse” the
parents’ nonappearance if they could provide proof of Mother’s
hospitalization by the end of business on October 3, 2014. The pretrial
conference was continued to November 26, 2014. On October 6, 2014,
Mother filed a “Motion to Set Aside Default Finding,” which included an
attachment titled “Emergency Department Discharge Instructions”
(“discharge instructions”). In early November, DCS amended its
termination petition, alleging an additional ground for termination
pursuant to A.R.S. § 8-533(B)(8)(a) (nine months’ out-of-home placement).
¶6 At the November 26 hearing, DCS introduced into evidence a
certified copy of Mother’s records from the hospital where Mother claimed
she sought treatment. The hospital records did not substantiate Mother’s
claim. Mother testified that she checked into the hospital emergency room
at 8:49 a.m. because she was suffering stomach pains. The hospital
discharge document Mother filed indicated that she was seen at 8:49 a.m.
on September 12 for “abdominal pain [and] stress induced gastritis.”
Mother explained that she was seen by a nurse practitioner who gave her
the discharge instructions and directed her to see her primary care
physician. Mother testified that the 74 pages of certified hospital records
submitted by DCS were not a complete record of her medical history
because, in Mother’s estimate, she had “approximately 1000 pages of
medical documentation” from that particular facility.
¶7 On cross-examination, Mother stated she had paid cash for
her visit but could not produce a receipt. Mother also conceded that the
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JESSICA H. v. DCS, C.H.
Decision of the Court
medical record number on the discharge instructions she submitted to the
court was different than the number attributed to her in the certified copies
obtained from the hospital. Mother acknowledged that she delivered her
discharge instructions to her attorney “very close to the end” of the day on
October 3, admitting it did not give her attorney much time to file the
document with the court.
¶8 Father testified that on the morning of September 12, he drove
Mother to the hospital, returned to their home to call the juvenile court, and
drove back to the hospital to retrieve Mother, paying 50 dollars cash for her
visit. He explained that he and Mother had been on their way to court when
they got stuck in traffic at a railroad crossing and realized they would not
make it to court on time. According to Father, Mother’s abdominal pain
began while they were delayed in traffic, at which point he turned around
and drove her to the hospital.
¶9 The juvenile court determined that the parents did not
establish good cause for their failure to appear at the pretrial conference,
finding that failing to meet the court’s October 3 deadline was “reason
enough” for the court to proceed in the parents’ absence. The court also
found that Father’s testimony was “clouded” and determined that Mother
and Father would have been late for the pretrial conference
notwithstanding their eventual trip to the hospital. Thus, the court
reasoned that even if Mother and Father had timely filed proof of good
cause, the certified hospital records were more credible than the parents’
testimony and the uncertified document provided by Mother.
¶10 The juvenile court proceeded with the combined
dependency/termination hearing.3 DCS presented testimony from Katy
Zaragoza, the case manager assigned to C.H.’s case,4 as well as DCS reports
and evidence of Mother’s April 2014 positive drug test result. Zaragoza,
testified that C.H. came into DCS’s care in January 2014 because he was
born substance-exposed. Regarding DCS’s efforts to provide services to
Mother, Zaragoza testified that, after Z.H. came into DCS’s care in 2012 and
through the duration of the case, Mother had been provided with “TASC
urinalysis testing, TERROS, a psychological evaluation, a psychiatric
evaluation, and parent aide services.” Zaragoza opined that, after Z.H.
came into care, DCS had made diligent efforts to provide Mother with
3 The court gave Mother and Father the option to remain in the
courtroom during termination proceedings and they did so.
4 Zaragoza was also the case manager for X.H.’s case.
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JESSICA H. v. DCS, C.H.
Decision of the Court
services to address her substance abuse, but testified that Mother had not
participated in TERROS substance abuse treatment since she tested positive
for methamphetamines at her first intake appointment in June 2012, nor had
she participated in urinalysis testing since March 2013. According to
Zaragoza, Mother tested positive for methamphetamines in a private hair
follicle test as recently as April 2014. Zaragoza further opined that Mother’s
substance abuse was likely to continue for a prolonged indeterminate
period of time because although DCS had provided Mother with services
for two years, Mother had been unable to comply with the required
services.
¶11 The juvenile court found C.H. dependent as to Mother and
Father based on the parents’ history of substance abuse and failure to
comply with substance abuse services. The juvenile court then granted
DCS’s petition for termination on both of the alleged grounds, finding that
(1) Mother had been provided services since 2012 to address her substance
abuse issues but had failed to complete any services and tested positive for
methamphetamines in April 2014; and (2) C.H. had been in an out-of-home
placement for a period of nine months or longer and DCS made diligent
efforts to establish reunification, but Mother had “substantially neglected
to change the circumstances” causing C.H. to come into care. The court also
determined that termination was in the child’s best interests. Mother timely
appealed.
DISCUSSION
A. Good Cause Determination
¶12 Mother argues she had good cause for missing the pretrial
conference and the juvenile court denied her due process by proceeding in
her absence. Mother also argues her attorney was ineffective by filing her
hospital discharge instructions three days after the court’s deadline.
¶13 The juvenile court may proceed in a parent’s absence and
terminate parental rights “based on the record and evidence presented” if
the parent failed to appear “without good cause,” had adequate notice of
the hearing, and was admonished that failure to appear could constitute a
waiver of parental rights and an admission of the allegations in the petition.
A.R.S. § 8–537(C); see also Ariz. R.P. Juv. Ct. 64(C). A parent shows good
cause for failing to appear by proving “(1) mistake, inadvertence, surprise
or excusable neglect exists and (2) a meritorious defense to the claim exists.”
Christy A. v. Ariz. Dep’t of Econ. Sec., 217 Ariz. 299, 304, ¶ 16 (App. 2007).
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JESSICA H. v. DCS, C.H.
Decision of the Court
¶14 This court reviews the juvenile court’s finding that a parent
failed to appear without good cause for an abuse of discretion. Adrian E. v.
Ariz. Dep’t of Econ. Sec., 215 Ariz. 96, 101, ¶ 15 (App. 2007). An abuse of
discretion occurs when the juvenile court’s decision is “manifestly
unreasonable, or exercised on untenable grounds, or for untenable
reasons.” Id. (internal quotation omitted).
¶15 Mother argues that the juvenile court lacked an “adequate
evidentiary basis” to conclude that she lacked good cause for her failure to
appear at the pretrial conference. After Father called on the morning of the
scheduled conference to inform the court that he and Mother would be
unable to attend, the court gave them approximately three weeks to provide
proof Mother had been hospitalized. Mother submitted, three days after
the deadline, documentation purporting to show that she received
treatment in the emergency room the morning of September 12.
¶16 At the evidentiary hearing, Mother and Father each testified
that Mother had gone to the emergency room around 8:30 a.m. on
September 12. Father also testified that they were stuck at a railroad
crossing and would have been late to the conference even if they had not
eventually gone to the hospital. But the certified records DCS had obtained
from the hospital did not confirm that Mother visited the emergency room
on September 12.
¶17 The evidence presented to the juvenile court supports the
court’s determination that Mother did not establish good cause for her
failure to appear at the pretrial conference, and this court does not reweigh
evidence on appeal. Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 282,
¶ 12 (App. 2002). Thus, we find no abuse of discretion.
¶18 Mother further argues she was denied effective assistance of
counsel during the termination proceedings because her counsel failed to
timely file the motion to set aside before the juvenile court’s October 3
deadline.
¶19 A parent has a due process right to the effective assistance of
counsel in termination proceedings to ensure the fundamental fairness of
the proceedings and the reliability of the result. See John M. v. Ariz. Dep’t of
Econ. Sec., 217 Ariz. 320, 324, ¶ 14 (App. 2007). To establish ineffective
assistance of counsel, a party must show both that the attorney’s
representation fell below prevailing professional norms and that a
reasonable probability exists that, but for the attorney’s errors, the result of
the proceedings would have been different. Id. at 325, ¶¶ 17–18.
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JESSICA H. v. DCS, C.H.
Decision of the Court
¶20 Even assuming that Mother’s counsel’s alleged delay in filing
fell below an objective standard of reasonableness, Mother cannot
demonstrate a reasonable probability that, but for her counsel’s errors, the
outcome would have been different. Despite finding that the untimeliness
of Mother’s filing alone would warrant proceeding in Mother’s absence, the
juvenile court found that the substance of the documentation provided by
Mother did not establish good cause. Because the record indicates that the
outcome of the court’s good-cause determination would have been no
different, Mother has failed to demonstrate that she was prejudiced by
counsel’s alleged ineffectiveness.
B. Grounds for Termination
¶21 Mother argues that the evidence presented does not support
the juvenile court’s finding that she substantially neglected to remedy the
circumstances that brought C.H. into DCS care. 5 We review the evidence
and draw all reasonable inferences in the light most favorable to upholding
the court’s factual findings, Jesus M., 203 Ariz. at 282, ¶ 13, and will affirm
a court’s order terminating a parent’s rights unless we conclude that no
reasonable person could find the essential elements proven by the
prescribed evidentiary standard. See Denise R. v. Ariz. Dep’t of Econ. Sec.,
221 Ariz. 92, 94–95 ¶¶ 6, 9–10 (App. 2009). Finally, if “clear and convincing
evidence supports any one of the statutory grounds on which the juvenile
court ordered severance, we need not address claims pertaining to the other
grounds.” Jesus M., 203 Ariz. at 280, ¶ 3.
¶22 To terminate parental rights pursuant to A.R.S. § 8-
533(B)(8)(a), the juvenile court must find by clear and convincing evidence
that (1) the agency responsible for the care of the child has made a diligent
effort to provide appropriate reunification services; (2) the child has been
in an out-of-home placement for a cumulative total period of nine months
or longer; and (3) the parent has been unable to remedy the circumstances
that caused the child to be in an out-of-home placement.
5 Mother also challenges the court’s finding that DCS made reasonable
efforts to reunify the family because she was not afforded sufficient time to
reunify with C.H. But Mother does not direct us to any portion of the record
showing that she objected in the juvenile court to DCS’s efforts. She has
thus waived this argument on appeal. See Shawanee S. v. Ariz. Dept. of Econ.
Sec., 234 Ariz. 174, 179, ¶ 16 (App. 2014).
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JESSICA H. v. DCS, C.H.
Decision of the Court
¶23 At the time of the termination hearing, C.H. had been in
DCS’s care for approximately eleven months. Zaragoza testified that C.H.
was placed in care after Mother tested positive for methamphetamines
shortly after the child was born. Zaragoza further testified that Mother had
been offered services since X.H. came into DCS’s care in early 2012. Despite
being offered services, Mother continued to test positive for
methamphetamines.
¶24 We conclude that reasonable evidence supports the juvenile
court’s findings that DCS made diligent efforts to reunify Mother and C.H.
and that Mother failed to remedy the circumstances causing C.H.’s out-of-
home placement. The court therefore did not err in ordering termination of
Mother’s parental rights to C.H. pursuant to A.R.S. § 8-533(B)(8)(a).
C. Best Interests
¶25 Mother also challenges the juvenile court’s best interests
finding. To establish that termination is in a child’s best interests, the court
must find that “the child will benefit from termination of the relationship
or that the child would be harmed by continuation of the parental
relationship.” James S. v. Ariz. Dep’t of Econ. Sec., 193 Ariz. 351, 356, ¶ 18,
(App. 1998). Zaragoza testified that C.H. had been in an out-of-home
placement for more than nine months, and the placement was meeting his
needs and was willing to adopt him. Zaragoza opined that C.H. would
benefit from termination because it would enable him to stay in a safe and
stable home free of any substance abuse, and any delay in termination
would deprive him of permanency and stability. The record supports the
court’s determination that terminating Mother’s parental rights was in
C.H.’s best interests.
CONCLUSION
¶26 We affirm the juvenile court’s order terminating Mother’s
parental rights to C.H.
:ama
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