Jordan C. v. Dept. of Economic Sec.

• Decision Date: 10 November 2009
• Docket Number: No. 2 CA-JV 2009-0019.,No. 2 CA-JV 2009-0020.,2 CA-JV 2009-0019.,2 CA-JV 2009-0020.
• Citation: 219 P.3d 296
• Parties: JORDAN C., Jesse C., Kailynn C., and Michele C., Appellants, v. ARIZONA DEPARTMENT OF ECONOMIC SECURITY, Kerry C., and Kimberly C., Appellees, and Maureen O., Intervenor.
• Court: Arizona Court of Appeals

219 P.3d 296

JORDAN C., Jesse C., Kailynn C., and Michele C., Appellants, v. ARIZONA DEPARTMENT OF ECONOMIC SECURITY, Kerry C., and Kimberly C., Appellees, and Maureen O., Intervenor.

No. 2 CA-JV 2009-0019.

No. 2 CA-JV 2009-0020.

Court of Appeals of Arizona, Division 2, Department B.

November 10, 2009.

Child Advocacy Clinic By Paul D. Bennett, a clinical professor appearing under Rule 38(d), Ariz. R. Sup.Ct., and Alexandra Lukic and Gemma Zanowski, students certified pursuant to Rule 38(d), Ariz. R. Sup.Ct., Tucson, Attorneys for Appellants Jordan C., Jesse C., and Kailynn C.

Nuccio & Shirly, P.C. By Jeanne Shirly, Tucson, Attorneys for Appellant Michele C.

Terry Goddard, Arizona Attorney General By Pennie J. Wamboldt, Prescott, and Dawn R. Williams, Tucson, Attorneys for Appellee Arizona Department of Economic Security.

Frederick S. Klein, Tucson, Attorney for Appellees Kerry C. and Kimberly C.

Margo Amrit Donaldson, Tucson, Attorney for Intervenor.

OPINION

VÁSQUEZ, Judge.

¶ 1 Michele C. and three of her children, Jesse, Jordan, and Kailynn (the Older Children), appeal the juvenile court's order terminating Michele's parental rights to her two youngest children, six-year-old Kerry and four-year-old Kimberly. The court terminated Michele's parental rights on the ground she had been unable to remedy the circumstances that caused Kerry and Kimberly to remain in an out-of-home placement for fifteen months or longer and there was a substantial likelihood she would be unable to parent them in the near future. See A.R.S. § 8-533(B)(8)(c).¹ The court also found termination to be in the girls' best interests.

¶ 2 Michele and the Older Children argue the Arizona Department of Economic Security (ADES) failed to meet its burden of establishing with clear and convincing evidence that (1) Michele was unable to parent effectively at the time of the hearing, (2) there was a substantial likelihood she would be incapable of exercising proper and effective parental care in the near future, and (3) ADES had made a diligent effort to provide appropriate services to reunify Kerry and Kimberly with Michele.² The Older Children also argue the juvenile court erred in finding termination was in the best interests of Kerry and Kimberly. Because we agree the evidence was insufficient to support any alleged statutory ground for terminating Michele's parental rights to Kerry and Kimberly, we reverse the court's order.

I. Facts and Procedural Background

¶ 3 In March 2007, ADES filed a petition alleging that then nine-year-old Jordan, eight-year-old Jesse, six-year-old Kailynn, three-year-old Kerry C., and two-year-old Kimberly C. were dependent children. The children previously had been the subjects of a dependency proceeding initiated in March 2004, due, in part, to their parents' methamphetamine use. That dependency had been dismissed in March 2006 after the parents successfully completed their case plans.

¶ 4 In May 2007, Michele admitted the allegations in an amended dependency petition, including allegations she had tested positive for methamphetamine use on March 26, but not since; the children's father, Jesse C., Sr. had relapsed into methamphetamine abuse; the couple had recently engaged in domestic violence; and Michele had no stable housing or employment and could not care for the children and, as a result, had left Kerry, who is developmentally delayed, with the children's paternal great-grandmother. The juvenile court adjudicated the children dependent and approved a case plan goal of reunification.³

¶ 5 In July, in compliance with her case plan tasks, Michele participated in a psychological evaluation conducted by Dr. Lorraine Rollins. In her evaluation report, Rollins opined that Michele could not "adequately care for her children at this time due to her high level of defensiveness" and needed "to make genuine change through therapeutic intervention." Rollins emphasized the need for "direct assessment of the parent-child relationships to gauge them and [Michele's] parenting skills." She wrote, "It is quite conceivable that [Michele] may not be able to parent all of her children (and perhaps none of her children) adequately. Her progress and response to [recommended] interventions ... and any intervention recommended by the direct assessment of her parenting relationships with her children will likely determine" her ability to parent one or more of them. As intervention services in addition to the "direct assessment of the mother-child relationship[]" between Michele and each of her children, Rollins recommended Michele be offered and participate in ongoing random drug and alcohol screening, substance abuse treatment and an aftercare support group, parenting instruction, individual therapy, and domestic violence group therapy.

¶ 6 In August 2007, Child Protective Services (CPS) case manager Michael Joosten, who had also been assigned as the family's case manager during the previous dependency proceeding, reported his concerns that Michele "[might] not be able to solely care for all five children," particularly in light of "the issues that Kerry, Jord[a]n and Jesse Jr. continue to have."⁴ But, he wrote, "On the positive side ..., there are relative placements that are willing and able to care for the children and still keep a relationship with both parents."⁵ After reviewing Joosten's report following a September dependency review hearing, the court again approved the case plan goal of reunification and directed that ADES "will have discretion with respect to all aspects of visitation."

¶ 7 In November, Joosten reported he had made a referral for a Family Group Decision Making (FGDM) meeting and again expressed "concerns about [Michele]'s ability to care for all the children at this time." He informed the juvenile court that, although relatives were "willing to become permanent placement[s] ... [,] there is also a lot of mistrust between the parents and relatives as well as among some of the relatives," and therefore, he "would like to get a FGDM meeting together as soon as possible to work out a plan that would be best for the children." He further stated that family members and foster families had agreed "to participate in a FGDM meeting [on November 2], where a permanent agreement for the children can be made by the family."

¶ 8 At the December 2007 dependency review hearing, the juvenile court found Michele in compliance with her case plan. Joosten reported Michele was employed, had completed a twelve-hour substance abuse pre-treatment program, and was attending parenting classes and substance abuse prevention groups. ADES told the court a FGDM session had been scheduled to address permanency for the children, and the court granted ADES discretion to place the children in accordance with that process. The court again approved a case plan goal of family reunification.

¶ 9 The FGDM meeting was held on January 5, 2008. A plan was made to reunify the family by transitioning the children, one by one, from their current placements into Michele's care, beginning with Jordan and proceeding in order to Kailynn, Jesse, Kimberly, and Kerry. The transitions were to begin with longer visits and overnight stays, with the time frame "to be determined by the children's needs and accl[i]mation to the change."

¶ 10 In a report he prepared at the end of February, Joosten explained to the juvenile court, "If at any time the team felt that it was becoming to[o] much for the children or the mother to handle, the second plan would be that the children would stay in their current placements." He also reported that Alden Carroll, a counselor who had been seeing Jordan, Jesse, and Kailynn individually and in family therapy sessions with Michele for several months, had also just begun seeing Michele and Jordan together on a weekly basis. As he had previously, Joosten expressed his concern that it would "be too much" for Michele to care for all five of her children, particularly when both Jordan and Kerry had been diagnosed with special needs. He wrote:

This case manager feels that at this time, with the mother's work schedule, having two children who have special needs and her being a single mother even with the support of her family would be too much for her. She would not be able to care for all of the children, but possibly would be able to care for Jordan and maybe Kailynn or Jesse.

¶ 11 Jordan was returned to Michele's care on April 14, 2008, and CPS retained psychologist Diana Indigas to provide intensive in-home therapy for Jordan and Michele during this transition. In a report prepared for a permanency hearing in May, Joosten explained there had been delays in placing the other children with Michele "because of the concern that the mother will not be able to care for all five children."⁶ He recommended the plan be changed to reflect family reunification for Kailynn and Jesse, with a target date of September 30, but severance and adoption by a relative for Kerry and Kimberly. The juvenile court approved the transition of Kailynn and Jesse to Michele's care, found that Kimberly and Kerry could not be returned to Michele then, and continued the permanency hearing until September 18 without changing the plan goal of reunification.

¶ 12 Kailynn was returned to Michele's care in June. In September, Joosten reported to the juvenile court that both Jordan and Kailynn were doing well after placement with Michele and that Jesse was scheduled to be returned on September 12. Joosten praised Michele's "hard work" with Jordan and reported that Indigas had told him Michele "does very well" with Jordan and Kailynn, parenting them in a consistent and structured manner, and that Carroll had said Michele had been "very appropriate" with the Older Children in family therapy. Although Joosten was supportive of Michele's efforts, he opined "it would be better for Kimberly and Kerry to remain in their current placements so that the mother...