Shawanee S. v. Ariz. Dep't of Econ. Sec.

• Decision Date: 25 February 2014
• Docket Number: No. 1 CA-JV 13-0186,1 CA-JV 13-0186
• Parties: SHAWANEE S., Appellant v. ARIZONA DEPARTMENT OF ECONOMIC SECURITY, E.J., J.J., L.S., K.S., Appellees
• Court: Arizona Court of Appeals

SHAWANEE S., Appellant v. ARIZONA DEPARTMENT OF ECONOMIC SECURITY, E.J., J.J., L.S., K.S., Appellees

No. 1 CA-JV 13-0186

ARIZONA COURT OF APPEALS DIVISION ONE

FILED: February 25, 2014

Appeal from the Superior Court in Maricopa County

No. JD21396

The Honorable Aimee L. Anderson, Judge

AFFIRMED

COUNSEL

Law Office of Denise L. Carroll, Scottsdale

By Denise Lynn Carroll

Counsel for Appellant

Arizona Attorney General's Office, Tucson

By Laura J. Huff

Counsel for Appellees

OPINION

Judge Michael J. Brown delivered the Opinion of the Court, in which Presiding Judge Andrew W. Gould and Judge Samuel A. Thumma joined.

BROWN, Judge:

¶1 Shawanee S. ("Mother") appeals the juvenile court's order terminating her parental rights to her four young daughters ("the children"). She argues the court erred in finding that (1) the Arizona Department of Economic Security ("ADES") made diligent efforts to provide her with appropriate reunification services, and (2) termination is in the best interests of the children. Because Mother failed to raise any objection in the juvenile court to the adequacy of the services ADES provided, we conclude she waived the right to challenge the court's finding on appeal. As to the court's best interests determination, we find no error and therefore affirm.

BACKGROUND

¶2 In November 2011, Child Protective Services ("CPS") received a referral alleging that one of Mother's children, age six, was "exhibiting significant sexual acting out" with other children. The referral also alleged that the child was hoarding food and displaying various behavioral issues. CPS's efforts to contact Mother through phone calls and letters to the homeless shelter where she resided were unsuccessful.

¶3 In January 2012, CPS was notified that Mother used a knife to cut her boyfriend's arm during an altercation that occurred in the presence of the children. Mother was arrested and the children were immediately taken into CPS custody. The children had numerous medical concerns, which, depending on the child, included ringworm, rashes, malnourishment, staph infection, boils, an ear infection, and severe diaper rash. One of the children disclosed that she had been sexually abused by the brother of Mother's previous boyfriend.

¶4 ADES filed a petition alleging the children were dependent as to Mother, based on neglect due to domestic violence and failing to provide the children with the basic necessities of life. Mother denied the allegations but submitted the matter to the juvenile court, which found thechildren to be dependent. The court approved a case plan of family reunification and a concurrent case plan of severance and adoption, and also approved and ordered the "services as agreed upon by the parties." Consistent with this ruling, ADES offered Mother a psychological evaluation and consultation, individual counseling, parent aide services (including parenting education and supervised visitation), and transportation.

¶5 In December 2012, the children's guardian ad litem moved to terminate Mother's parental rights, alleging Mother substantially neglected or willfully refused to remedy the circumstances that caused the children to remain in a court-ordered out-of-home placement for nine months or longer pursuant to Arizona Revised Statutes ("A.R.S.") section 8-533(B)(8)(a). In April 2013, ADES joined in the motion for termination.

¶6 The juvenile court held a two-day contested severance hearing in June 2013. Mother acknowledged that she cut her boyfriend with a knife and engaged in other incidents of domestic violence. She admitted she did not contact the police after learning one of her daughters had been sexually abused. Mother also admitted she had recently lived in the same household with the alleged abuser for several months to avoid becoming homeless. Mother testified she completed more than forty hours of individual counseling, but acknowledged she did not complete parent aide services and refused substance abuse treatment even though it was recommended as a result of the psychological evaluation. Mother also acknowledged that at one point she refused to participate in further visits because the children were acting out.

¶7 CPS caseworker Chrystal Thomson testified that Mother's participation in services was limited. Mother substantially participated in individual therapy, but missed numerous visits with the children, stating she was "tired" and "had a lot going on." Mother also missed visits for more than a month because the children had behaved poorly during prior visits. Although Mother was initially permitted to have in-home visits with the children, that visitation ceased because Mother was teaching the children "erotic" dancing during visits and frequently had a boyfriend present. As a result, all subsequent visits were held at a visitation center. Ultimately, Mother was removed from the parent aide program because she did not maintain contact for more than thirty days and she repeatedly failed to attend scheduled meetings to discuss the children's therapy and treatment.

¶8 Following the presentation of evidence and closing arguments, the juvenile court granted the motion for termination, finding that Mother "substantially neglected, and at times, willfully refused to remedy the circumstances that caused each of these children to be in their out-of-home placement." The court also made detailed findings regarding the reunification services provided by ADES, and Mother's compliance (or lack thereof) with the services offered, concluding that ADES "has made more than diligent efforts to provide appropriate reunification services." The court also found that termination of Mother's parental rights would be in the children's best interests. The court later confirmed its findings in a signed order and Mother timely appealed.

DISCUSSION

¶9 To terminate parental rights, the juvenile court must find by clear and convincing evidence the existence of at least one of the statutory grounds for termination enumerated in A.R.S. § 8-533(B) and must find by a preponderance of the evidence that termination would serve the child's best interests. Ariz. R.P. Juv. Ct. 66(C); Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, 249, ¶ 12, 995 P.2d 682, 685 (2000). As applicable here, ADES was required to prove by clear and convincing evidence that (1) the children had been in an out-of-home placement for at least nine months under a court order; (2) the parent had "substantially neglected or willfully refused to remedy the circumstances causing the out-of-home placement;" and (3) ADES had "made a diligent effort to provide appropriate reunification services." A.R.S. § 8-533(B)(8)(a).

A. Waiver

¶10 Mother challenges the court's finding that ADES had made a diligent effort to provide appropriate reunification services, claiming she was not given the time and services necessary to enable her to reunify with the children. Specifically, she asserts that ADES should have provided her with a second psychological evaluation to assess her progress and determine whether additional services were necessary. Because Mother failed to raise any objection in the juvenile court regarding the adequacy of services provided to her, as a threshold issue, we consider whether she waived that argument on appeal. See Kimu P. v. Ariz. Dep't of Econ. Sec., 218 Ariz. 39, 44 n.3, 178 P.3d 511, 516 n.3 (App. 2008) (noting that parent waives an argument by failing to raise it in the juvenile court); Christy C. v. Ariz. Dep't of Econ. Sec., 214 Ariz. 445, 452, ¶ 21, 153 P.3d 1074, 1081 (App. 2007) (concluding that parent waived claim that juvenile court failed to make statutorily required findings by failingto object in the juvenile court); see also Trantor v. Fredrikson, 179 Ariz. 299, 300, 78 P.2d 657, 658 (1994) ("[A]bsent extraordinary circumstances, errors not raised in the trial court cannot be raised on appeal" because "a trial court and opposing counsel should be afforded the opportunity to correct any asserted defects[.]").

¶11 There is no Arizona case law resolving this precise issue. In Christina G. v. Arizona Department of Economic Security, we noted that a parent may waive the right to challenge on appeal the adequacy of ADES's reunification efforts by failing to raise the issue in the juvenile court proceedings. 227 Ariz. 231, 235 n.8, ¶ 15, 256 P.3d 628, 632 n.8 (App. 2011). We explained that the mother in that case had not "requested additional services or raised an objection to the manner in which court-ordered services were being provided, despite multiple opportunities to do so at various stages of the proceedings." Id. We also noted that the mother had failed to object to the juvenile court's explicit findings "that ADES was making reasonable efforts" in providing reunification services. Id. We declined to affirm the case based on waiver, however, because ADES did not raise it as an argument on appeal. Id. Here, ADES does assert that Mother waived her challenge to the juvenile court's diligent effort finding.

¶12 Generally, when a child is removed from the home, ADES is presumptively obligated to make reasonable efforts to "provide services to the child and the child's parent." See A.R.S. § 8-846(A) (requiring the juvenile court to "order the department to make reasonable efforts to provide services to the child and the child's parent," unless the court finds by clear and convincing evidence that an A.R.S. § 8-846(B) exception applies). When a dependency case plan includes family reunification, ADES is obligated to provide services reasonably geared toward family reunification. See Ariz. R.P. Juv. Ct. 56(E)(1) (requiring juvenile court, at disposition after a dependency finding, to "determine the appropriate case plan and . . . [e]nter orders concerning appropriate services required to achieve the case plan"). Furthermore, when ADES seeks severance based on length of time in care, ADES must prove that it "has made a diligent effort to provide appropriate...