Christina G. v. Ariz. Dep't of Econ. Sec.

• Decision Date: 10 May 2011
• Docket Number: No. 1 CA–JV 10–0143.,1 CA–JV 10–0143.
• Citation: 227 Ariz. 231,256 P.3d 628,608 Ariz. Adv. Rep. 16
• Parties: CHRISTINA G., Appellant,v.ARIZONA DEPARTMENT OF ECONOMIC SECURITY, H.G., Appellees.
• Court: Arizona Court of Appeals

227 Ariz. 231

256 P.3d 628

608 Ariz. Adv. Rep. 16

CHRISTINA G., Appellant,

v.ARIZONA DEPARTMENT OF ECONOMIC SECURITY, H.G., Appellees.

No. 1 CA–JV 10–0143.

Court of Appeals of Arizona, Division 1, Department B.

May 10, 2011.

The Stavris Law Firm, PLLC By Alison Stavris, Scottsdale, Attorney for Appellant.Thomas C. Horne, Arizona Attorney General By Michael F. Valenzuela, Assistant Attorney General, Phoenix, Attorneys for Appellee Arizona Department of Economic Security.BROWN, Judge.

¶ 1 Christina G. (“Mother”) appeals from the juvenile court's order terminating her parental rights to her son (“the child”).¹ For the following reasons, we affirm.

BACKGROUND

¶ 2 Mother, age sixteen at the time, gave birth to the child in August 2007. ² They lived together in a group home licensed by the Arizona Department of Economic Security (“ADES”). In November, Child Protective Services (“CPS”) received a report that Mother was “observed or overheard repeatedly striking [the child] or treating him in a rough manner.” A week later, it was reported that Mother was sitting on the floor and dropped the child a “couple of inches” such that his head and body struck the floor. On another occasion, Mother hit the child on the head with a plastic hanger. No injuries were reported from any of these incidents.

¶ 3 In March 2008, Mother failed to properly strap the child in his stroller and he fell, suffering a bloody nose. Since Mother was close to a hospital, she took him in for an examination. He was treated for the nosebleed and minor scrapes and then sent home with Mother. On another occasion Mother placed the child in a crib with a broken rail; he fell but was not injured. Mother had reported the broken rail to staff the day before but it was not repaired until after the child fell.

¶ 4 In October 2008, Mother was observed “yelling and screaming” at the child after she became upset because she wanted to make more than one phone call, in violation of her group home restrictions. She threw the phone at staff members and the child “was observed to be afraid and huddled in a little ball in his crib.” Staff at the group home indicated their concern that they would not be able to ensure the child's safety. The child was taken into the temporary physical custody of CPS in December 2008.

¶ 5 ADES filed a dependency petition, alleging that the child was dependent as to Mother based on her mental deficiencies and physical abuse of the child. Mother initially contested the allegations, but later submitted the issue of dependency to the juvenile court, which granted the petition. The court confirmed the case plan of family reunification and ordered the following: “parent aide services, psychological evaluation with follow-up recommendations, Healthy Families, and transportation in addition to the services Mother already receives through her [own] dependency as a child.” In a subsequent mediation agreement and order, additional services listed for Mother were independent living skills training, placement in a teen-mother group home, referrals to obtain updated mental health records, and continuing to work with Touchstone to meet Mother's mental health needs.

¶ 6 Mother completed a psychological evaluation with Dr. James Thal on March 16, 2009. Thal administered two academic assessment tests, and supplemented his findings with prior educational testing reports from 2007. Thal also tested Mother for depression and adaptive skills. He opined that Mother suffered from mild retardation and a mood disorder, not otherwise specified. He believed that these conditions would exist for a prolonged, indeterminate period, that a child in her care would be at risk for neglect and abuse, and that in his opinion “there are no services that could improve [Mother's] condition to the point that it would be reasonable to expect that a child would be safe in her care.” He stated further that severance and adoption would be the most appropriate case plan.³

¶ 7 Notwithstanding Thal's report, ADES continued to offer services to Mother, including parent aide training, transportation, independent living skills, placement in a teen group home, and counseling. For the most part, Mother participated in the services offered until she turned eighteen in August 2009. At that time, ADES gave her the opportunity to remain in foster care through a voluntary agreement, but Mother declined. She then moved out of the group home and returned to live with her mother, even though she had concerns that her mother might be “using drugs again in the home” along with concerns of domestic violence. According to ADES, if Mother had accepted the agreement, she would have been able to continue to receive services similar to those she had received as a dependent child, including stable housing.

¶ 8 ADES requested a permanency planning hearing in June 2009, but then recommended that the hearing be postponed because the child was not currently in an adoptive placement and the child's father had not been evaluated as a placement option. In its July 2009 report, the Foster Care Review Board stated it was “concerned that [Mother] will not be able to care for [the child]” and noted that her “psychological evaluation did not recommend a case plan goal of family reunification.” The Board further indicated that it supported the case manager's intent to continue family reunification for the biological father but that it supported implementing the “concurrent case plan goal of adoption.”

¶ 9 A short time later, Mother was advised that she needed to contact Magellan, the regional behavioral health authority for Maricopa County, to set up an intake appointment that would allow Magellan to assist with her mental health needs. Mother made appointments, the first of which was set for November 16, 2009, but she failed to keep “two or three” appointments. Both the caseworker and the independent living skills supervisor testified that they reminded Mother of the need to attend the appointments and the caseworker offered her transportation if Mother would let her know beforehand that she needed it.

¶ 10 In October 2009, ADES recommended a change in the case plan to severance and adoption, informing the court that Mother chose not to accept continued foster care services for herself and had decided to reside with her mother. ADES noted that placement in that home would not be appropriate because of issues that were unresolved in Mother's own dependency, including her mother's substance abuse. ADES also believed that pursuing reunification with the biological father was not a viable option. The court approved changing the case plan to severance and adoption, and ADES moved to terminate Mother's parental rights, alleging mental illness and mental deficiency as the grounds for severance under Arizona Revised Statutes (“A.R.S.”) section 8–533(B)(3) (Supp. 2010).⁴ In March 2010, ADES submitted an amended motion alleging two additional grounds based on the child's out-of-home placement for greater than nine months and fifteen months, respectively, pursuant to A.R.S. § 8–533(B)(8)(a) and (c).

¶ 11 Mother's contested severance hearing was held in June 2010. At the outset, ADES withdrew its request for termination under A.R.S. § 8–533(B)(8)(a) (nine months time in care). After taking the matter under advisement, the juvenile court granted the motion, finding that ADES had proven all three statutory grounds by clear and convincing evidence. The court also determined that ADES had proven by clear and convincing evidence that “given Mother's condition, it would be futile to continue to offer rehabilitative services to Mother to promote reunification,” and that even if it were not futile, ADES had made diligent efforts to provide appropriate services for the Mother and the child. Mother timely appealed.

DISCUSSION

¶ 12 To justify termination of Mother's parental rights, the juvenile court was required to find the existence of at least one statutory ground by clear and convincing evidence.⁵ Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, 249, ¶ 12, 995 P.2d 682, 685 (2000). The court must also find by a preponderance of the evidence that termination is in the best interests of the child. Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 22, 110 P.3d 1013, 1018 (2005).

¶ 13 We view the evidence in a severance case in the light most favorable to sustaining the juvenile court's findings. Ariz. Dep't of Econ. Sec. v. Matthew L., 223 Ariz. 547, 549, ¶ 7, 225 P.3d 604, 606 (App.2010). The juvenile court is in the best position to weigh the evidence, observe the parties, judge the credibility of witnesses, and make appropriate findings. Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, 280, ¶ 4, 53 P.3d 203, 205 (App.2002). We accept the juvenile court's findings of fact unless no reasonable evidence supports them. Id.

I. Reasonable Efforts

¶ 14 Mother argues that the juvenile court erred in finding that ADES made reasonable efforts to provide appropriate services to Mother to allow reunification.⁶ “It is well established that [ADES], before acting to terminate parental rights, 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 means that ADES must provide services to the parent “with the time and opportunity to participate in programs designed to help her to become an effective parent.” In re Maricopa Cnty. Juv. Action No. JS–501904, 180 Ariz. 348, 353, 884 P.2d 234, 239 (App.1994). The juvenile court is to consider the availability of reunification services to the parent and his or her participation in those services, and must find that ADES made a diligent effort to provide such services. A.R.S. § 8–533(B)(8), (D).

¶ 15 ADES is not required, however, “to provide every conceivable service or to ensure that a parent participates in each service it offers.”...