Appeal in Maricopa County Juvenile Action No. JS-501904, Matter of

• Decision Date: 19 July 1994
• Docket Number: JS-501904,CA-JV,No. 1,1
• Citation: 884 P.2d 234,180 Ariz. 348
• Parties: In the Matter of the APPEAL IN MARICOPA COUNTY JUVENILE ACTION NO.94-0001.
• Court: Arizona Court of Appeals

Page 234

884 P.2d 234

180 Ariz. 348

In the Matter of the APPEAL IN MARICOPA COUNTY JUVENILE ACTION NO. JS-501904.

No. 1 CA-JV 94-0001.

Court of Appeals of Arizona Division 1, Department A.

July 19, 1994.

Review Denied Nov. 29, 1994.

[180 Ariz. 350] Grant Woods, Atty. Gen. by David J. Martin, Asst. Atty. Gen., Phoenix, for appellee.

Mary C. McDonald, Glendale, for Children.

Joanne Landfair, Phoenix, for appellant.

OPINION

McGREGOR, Judge.

The juvenile court terminated the mother's parental rights with respect to three of her minor children. The mother appeals, alleging that the juvenile court erred (1) in finding that termination of the parent-child relationship was in the children's best interest, (2) in finding that the Arizona Department of Economic Security (DES) made appropriate efforts to provide services to the mother, (3) in admitting the social study report into evidence, and (4) in allowing DES to amend the petition to terminate to include a new ground for termination. We affirm the severance order.

I.

The mother has six children; this severance action concerns only her three youngest children, born in 1985, 1987, and 1989. In April 1991, Child Protective Services (CPS) took the three children into custody and filed a dependency petition. The dependency petition alleged that the mother was being arrested for an outstanding warrant and that no relatives were willing or able to care for the children. The mother's apartment was "filthy and in a state of disrepair with broken windows and exposed electrical wiring." The mother has a history of drug abuse, and her youngest child was born addicted to cocaine. CPS had received many referrals from different sources alleging that the mother left the children alone for several hours at a time. Furthermore, the mother had refused to participate in the drug rehabilitation and other services that various agencies offered.

After DES filed the dependency petition, CPS continued to attempt to provide services for the mother. According to the social study CPS filed before the severance hearing, CPS referred the mother to Friendly House for parenting skills training, scheduled a psychological evaluation, suggested drug treatment programs the mother could attend, and scheduled several appointments for the mother to visit with the children. CPS explained to the mother that she must participate in these programs to regain custody of her children. The mother, however attended only part of one parenting class and was "hostile" to the parent aides from Friendly House who came to her residence. She also refused to allow the psychologist to conduct any tests, failed to complete any drug treatment program, and often missed scheduled appointments to visit with her children. When she visited the children, she sometimes interacted appropriately with them, but other times she appeared tired and disinterested in them. After the dependency petition was filed, she visited the children approximately four times in 1991, and apparently only once during 1992.

Meanwhile, in September 1991, the mother was arrested for possession of narcotic drugs. In October 1991, the children were made wards of the court. In November 1991, the mother again was arrested for possession of narcotics, possession of drug paraphernalia, and failure to appear. In February 1992, the court sentenced her to a three year term of probation for the drug offenses. In January 1993, the mother again was arrested for possession of narcotic drugs. The court imposed a sentence of intensive probation and ordered her to serve a three month jail term as a condition of probation.

In February 1993, DES filed a petition to terminate the mother's parental rights. The severance petition alleged as grounds for termination that the children had been in an out-of-home placement for a period in excess of one year pursuant to a court order and that the mother had willfully refused or substantially neglected to remedy the circumstances that caused the children to be in out-of-home placement. See Ariz.Rev.Stat.Ann. ("A.R.S.") § 8-533.B.6. (a) (1989). Alternatively, the petition alleged that the mother had abandoned the children. ¹

In May 1993, the mother was released from jail. She called the CPS caseworker to schedule an appointment to visit her children. The caseworker scheduled the appointment, but required that the mother call to confirm the appointment in advance. CPS cancelled the appointment when the mother failed to confirm it.

At the June 15, 1993 pretrial conference, over the mother's objection, the court allowed DES to amend the severance petition to allege that the children had been in an out-of-home placement for more than two years and the mother had been unable to remedy the circumstances leading to the out-of-home placement. See A.R.S. § 8-533.B.6. (b) (1989). The court also allowed DES to file a supplemental social study and allowed the mother to file objections to the contents of the social study. Subsequently, DES filed a redacted social study, which eliminated the portions to which the mother had objected.

The court held the severance hearing in August 1993 and terminated the parent-child relationship between the mother and her three youngest children in October 1993. The minute entry stated as follows:

The evidence clearly and convincingly establishes that the children are being cared for in an out-of-home placement under the supervision of the Arizona Department of Economic Security, that the agency responsible for their care has made a diligent effort to provide appropriate remedial services for the children and that they have been in an out-of-home placement for an accumulative total period of two years or longer pursuant to Court Order, and that the children's mother has substantially abandoned, neglected, willfully refused or has been unable to remedy the circumstances which have caused the children to be in an out-of-home placement, and there is substantial likelihood that she will not be capable of exercising proper and effective parental care and control in the near future.

The evidence clearly and convincingly establishes that the termination of the parent-child relationship between the mother and her children is in the best interest of the children.

The mother timely appealed. This court has jurisdiction pursuant to A.R.S. section 8-236 and Rule 24 of the Arizona Rules of Procedure for the Juvenile Court.

II.

A.

We first consider whether the trial court erred in finding that termination of the parent-child relationship was in the children's best interest. This court will not set aside the juvenile court's findings of fact if reasonable evidence supports the findings. Pima County Juvenile Action No. S-139, 27 Ariz.App. 424, 427, 555 P.2d 892, 895 (1976).

The mother asserts that, because DES did not have an immediate adoption placement for all three children, the children's best interest required leaving the parent-child relationship intact. She asserts that the small number of African-American placements available will make it difficult for DES to place the children and that "there is no way of predicting the long term psychological effects of any as-of-yet unknown adoption." She contends that the court should "wait until an adoption is a real possibility before terminating parental rights."

DES need not show that it has a specific adoption plan before terminating a parent's rights; DES must show that the children are adoptable. See Yavapai County Juvenile Action No. J-9956, 169 Ariz. 178, 180, 818 P.2d 163, 165 (App.1991); Maricopa County Juvenile Action No. JS-6520, 157 Ariz. 238, 243-44, 756 P.2d 335, 340-41 (App.1988). At the severance hearing, a DES caseworker testified that the children would benefit from termination of the parent-child relationship with their mother because the children then would be legally free to be adopted. She stated that the oldest child's foster mother was interested in adopting her, although the foster mother had not yet been certified for adoption. The caseworker also testified that the two younger children were adoptable and that, although DES had not yet located an adoption placement for them, DES had assigned all three children to an adoptions caseworker. She stated that the children would benefit psychologically from the stability an adoption would provide.

Furthermore, the caseworker testified that the current situation created "a lot of questions, uncertainty, and instability for these children" and that they would benefit psychologically from the severance. The evidence revealed that the mother had missed several appointments to visit with the children and had interacted inappropriately with them during several other visits, leading to emotional distress for the children. The evidence presented at the hearing amply supported the conclusion that the children are adoptable and the juvenile court's determination that severance is in the children's best interests.

B.

We next consider whether the trial court erred in finding that DES made appropriate efforts to provide services to the mother. The mother asserts that DES "did not make every reasonable effort to reunite this family." She complains that Friendly House prematurely closed her case after making three visits to the mother's home with no contact, that Friendly House did not offer help with her substance abuse problem, and that the DES caseworkers did not maintain contact with her when she was in jail.

Under A.R.S. section 8-533.B.6, DES must show that it has made a "diligent" effort to provide appropriate remedial services before it can sever a parent-child relationship based on the child's continuing out-of-home placement. Furthermore, "[t]ermination of the parent-child relationship should not be considered a panacea but should be resorted to only when concerted effort to preserve the relationship fails." Arizona State Dep't of Economic Sec. v. Mahoney in and for the County of Pima, 24...