Yvonne L. v. Ariz. Dep't of Econ. Sec.
| Decision Date | 16 June 2011 |
| Docket Number | No. 1 CA–JV 10–0233.,1 CA–JV 10–0233. |
| Citation | 227 Ariz. 415,610 Ariz. Adv. Rep. 27,258 P.3d 233 |
| Parties | YVONNE L., Appellant,v.ARIZONA DEPARTMENT OF ECONOMIC SECURITY, Emily L., Leona L. and David L., Appellees,Tohono O'Odham Nation, Intervenor. |
| Court | Arizona Court of Appeals |
OPINION TEXT STARTS HERE
Thomas C. Horne, Attorney General by Michael F. Valenzuela, Assistant Attorney General, Phoenix, and Michelle R. Nimmo, Assistant Attorney General, Tucson, Attorneys for Arizona Department of Economic Security.The Law Office of Denise L. Carroll by Denise L. Carroll, Scottsdale, Attorney for Appellant.Tohono O'Odham Nation, Office of Attorney General by Samuel F. Daughety, Assistant Attorney General, Sells, Attorneys for Intervenor.
¶ 1 Yvonne L. (“Mother”) appeals from the superior court's order severing her parental rights to E.L., L.L., and D.L.1 Because the children are members of the Tohono O'Odham Nation, these proceedings are subject to the Indian Child Welfare Act (“ICWA”).2 In addition to the Arizona Department of Economic Security (“ADES”), the Nation was a party to the termination proceedings and requested leave to file a brief in this appeal. We granted that request. For reasons that follow, we affirm the judgment and the superior court's conclusion that clear and convincing evidence is the standard of proof for finding that ADES had made “active efforts” to prevent the breakup of this Indian family as required by ICWA.
¶ 2 After L.L. was born exposed to marijuana and cocaine in 2006, Child Protective Services (“CPS”) took custody of her and an older sister, E.L. ADES filed a dependency petition based upon Mother's substance abuse. In addition to drug abuse treatment, Mother received parent aide services covering instruction in such things as child care, discipline, and nutrition. In March 2007, ADES dismissed the dependency and returned the children to Mother.
¶ 3 On April 23, 2008, CPS responded to a report of physical abuse of L.L. and visited the home of Mother and David M., father of E.L. Alarmed at L.L.'s appearance, the CPS case manager urged Mother to take L.L. to a doctor. When that had not occurred by April 28, the case worker asked Mother to take L.L. to an emergency room. David M. took L.L. to a hospital, and the examining doctor noted that she was malnourished, had bruises all over her body, and a skull fracture.3 CPS then took E.L., L.L., and a third child, D.L., into temporary custody. Mother and David M. agreed to submit to urinalysis (“UA”) testing, and because Mother's test showed dilution, CPS did not return the children.
¶ 4 In May 2008, ADES filed a dependency petition alleging grounds of physical abuse, neglect, domestic violence, and substance abuse. Mother began submitting to random UA testing, and she was offered TERROS drug abuse counseling in June 2008 but did not complete the program.
¶ 5 In July, the court allowed the Nation to intervene in the dependency. CPS arranged for Mother to receive drug testing and counseling, parent aide services, visitation, and a psychological evaluation. Mother initially failed to participate in intake for a parent aide but received a second referral in September 2008 and participated until she was incarcerated in November. Mother declined to participate in intensive outpatient services with TERROS and complied sporadically with drug testing. In August, the court found the children dependent and approved family reunification as the case plan.
¶ 6 In October, Mother was again referred for drug treatment but did not participate. Mother's parent aide reported that during visits with L.L., Mother did “not make significant efforts to connect with [L.L.] and instead focused her time on [the other children].” In November 2008, Mother was incarcerated for aggravated driving while under the influence, and as a result, parent aide services were discontinued. Mother also had been referred to Magellan Health Services4 for counseling but apparently did not ever seek or obtain services there.
¶ 7 In a January 2009 report, the CPS caseworker noted that Mother had missed more than a third of her scheduled drug screenings. Mother also could not attend a scheduled psychological evaluation due to her incarceration, and the evaluation had to be rescheduled a second time because of Mother's illiteracy and the need for additional time. Upon Mother's release from jail in February 2009, CPS again referred her for parent aide services and for TERROS. Although Mother did not have a parent aide, she attended parenting classes and participated with TERROS until April. Mother sporadically complied with UA testing until June.
¶ 8 In February 2009, the court by the clear and convincing weight of the evidence made findings under ICWA that if Mother had custody of the children, serious emotional and physical danger to the children was likely, that “active efforts [had] been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that [the] efforts have proved unsuccessful.” 25 U.S.C. § 1912(d). At the request of the children's guardian ad litem (“GAL”), the court ordered ADES to provide Mother and L.L. with bonding therapy. On February 20, Mother's case manager attempted to arrange such therapy but was unsuccessful until she finally arranged for services through AmeriPsych. On two occasions in June, however, Mother failed to attend intake and never participated in bonding therapy.
¶ 9 In March 2009, Dr. James Thal conducted a psychological evaluation and diagnosed Mother with alcohol, cannabis, and cocaine abuse; physical abuse and neglect of a child; parent-child relational problem; borderline intellectual functioning; and dependent traits. He noted that Mother had been unemployed for over a year. Furthermore, he concluded that her lack of attachment to L.L. could imperil the child, who remained at risk for abuse and neglect. He was uncertain about Mother's ability to care “for any child at the present time” given her “exceedingly limited” resources. He recommended a bonding assessment and that L.L. remain in foster care; he thought individual counseling might be helpful to Mother but that “the probability for successfully reintegrating L.L. with [Mother] seems minimal.”
¶ 10 In July 2009, Mother was again incarcerated until September 2009. At a July report and review hearing, the court found that Mother was not compliant with services and that David M. had moved out of the home. At an August report and review hearing, the GAL moved to change the case plan to severance and adoption. Mother opposed the change, but the Nation did not. The court ordered the GAL to file a motion for severance and made findings from the clear and convincing weight of the evidence and pursuant to ICWA that parental custody was “likely to result in serious emotional and physical damage” to the children5 and that ADES had made “active efforts” to provide remedial services and that they had been unsuccessful.
¶ 11 GAL's severance motion alleged the statutory grounds of neglect, substance abuse, nine months out-of-home, fifteen months out-of-home, and prior dependency under Arizona Revised Statutes (“A.R.S.”) section 8–533(B)(2), (3) and (8)(a), (8)(c), and (11) (Supp. 2010).6 Mother contested the allegations, but the Nation neither opposed nor supported the motion. At the initial severance hearing, ADES agreed to continue to provide services once Mother was released from jail.
¶ 12 Upon her release in September 2009, Mother was referred to TERROS and completed classes. In October, she was referred for domestic violence classes and counseling to New Horizons, and she still was participating in domestic violence services during the severance trial in May 2010. In November, Mother identified a half-sister, N., as a possible placement, and ADES conducted an evaluation of N. and her home.
¶ 13 In February 2010, Dr. Glenn Moe, a licensed psychologist, conducted a bonding assessment of the children, Mother, and N. He concluded that L.L. and D.L. were primarily attached to their foster parents and that E.L.'s attachment to Mother had “dysfunctional and anxious components.” Dr. Moe was concerned about N.'s ability to be a fit guardian because N. said that she would return the children to Mother and thought that Mother already was capable of parenting them. He also concluded that Mother “ha[d] not proven [herself] capable of correcting her deficiencies” and that severance and adoption were in the children's best interests.
¶ 14 A severance hearing began in April and concluded on May 10, 2010. ADES supported the GAL's motion; counsel for the Nation said that it did not support termination but would support guardianship in the current placements. The GAL, Mother, the Nation,7 and David M., but not ADES, submitted written closing arguments.
¶ 15 In September, the court issued a lengthy ruling terminating Mother's parental rights on the grounds of neglect, the children's prior dependency, and both nine and fifteen months in out-of-home placement.8 It later issued separate findings of fact and conclusions of law. It found, as Arizona law requires, that clear and convincing evidence supported each ground. It also found by clear and convincing evidence that “active efforts [had] been made ... to prevent the breakup of the Indian family,” as required by ICWA, and that beyond a reasonable doubt, returning the children to Mother was likely to cause them serious physical or emotional damage. The court concluded that severance was in the children's best interests and that they were adoptable. Finally, it found good cause to deviate from ICWA's placement preferences and to order that the children remain in their foster homes.
¶ 16 Mother timely appealed. We have jurisdiction pursuant to A.R.S. §§ 8–235 (2007) and 12–120.21(A)(1) (2003).
¶ 17 Although she did not raise this contention below, on appeal Mother...
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