Opinion
No. 1 CA-JV 14-0172
01-08-2015
JESSICA P., GEORGE W., Appellants, v. DEPARTMENT OF CHILD SAFETY, J.P., S.W., L.P., Appellees.
COUNSEL Law Office of Florence M. Bruemmer, PC, Anthem By Florence M. Bruemmer Counsel for Appellant Jessica P. Robert D. Rosanelli, Attorney at Law, Phoenix By Robert D. Rosanelli Counsel for Appellant George W. Arizona Attorney General's Office, Mesa By Eric K. Knobloch Counsel for Appellee Department of Child Safety
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Yavapai County
No. P1300JD201000066
The Honorable Anna C. Young, Judge
AFFIRMED
COUNSEL Law Office of Florence M. Bruemmer, PC, Anthem
By Florence M. Bruemmer
Counsel for Appellant Jessica P.
Robert D. Rosanelli, Attorney at Law, Phoenix
By Robert D. Rosanelli
Counsel for Appellant George W.
Arizona Attorney General's Office, Mesa
By Eric K. Knobloch
Counsel for Appellee Department of Child Safety
MEMORANDUM DECISION
Judge Kent E. Cattani delivered the decision of the Court, in which Presiding Judge Jon W. Thompson and Judge Donn Kessler joined. CATTANI, Judge:
¶1 Jessica P. ("Mother") and George W. ("Father") appeal from the superior court's order terminating their parental rights as to their daughter S.W. Mother also appeals from the superior court's order terminating her parental rights as to her daughter J.P. Mother argues the court erred by finding statutory grounds for severance and by finding that severance would be in the children's best interests. Father argues the court erred because he was not offered appropriate reunification services and because the evidence did not support the court's findings of statutory grounds for severance. For reasons that follow, we affirm.
J.P.'s biological father's parental rights were also terminated, but he is not a party to this appeal.
FACTS AND PROCEDURAL BACKGROUND
¶2 J.P. was born in September 2003, and S.W. was born in February 2008. Mother and Father have an additional child together, L.W., who was born in December 2013. L.W. is also subject to a dependency.
¶3 The Department of Child Safety ("DCS") took J.P. and S.W. into care in October 2010 after an investigation of the parents' home revealed multiple safety concerns, including several pieces of drug paraphernalia containing methamphetamine and marijuana residue, piles of human and animal feces, knives and exposed wiring accessible to the children, and a lack of food. Both parents were arrested at that time; Father was later sentenced to 1.75 years' imprisonment for possession of drug paraphernalia.
Pursuant to S.B. 1001, Section 157, 51st Leg., 2nd Spec. Sess. (Ariz. 2014) (enacted), DCS has replaced the Arizona Department of Economic Security ("ADES") for these purposes. For consistency, we refer to DCS even where, at the time, actions were taken by ADES.
¶4 DCS offered Mother reunification services including: drug testing, drug treatment, parenting classes, in-home family support services, literacy and financial education, visitation with the children, domestic violence and co-dependency counseling, individual counseling, couples counseling, and psychological evaluations. Over the course of the dependency, Mother participated in and completed many of these services. In light of Mother's progress, the children were returned to her care in June 2012, although they remained subject to an in-home dependency.
¶5 After Father's release from custody in March 2012, DCS established services for him including: drug testing and treatment, parent aide services, therapeutic and group visitation, individual counseling for domestic violence and anger management, couples counseling, in-home family support services, parenting classes, and psychological evaluations. Father was initially willing to participate in services, and over the second half of 2012, Father gradually transitioned to living with Mother and the children, and moved into a home with them in December 2012.
¶6 Both Mother and Father began to miss certain services in the summer and fall of 2012. They were dropped from couples counseling after completing only one of four required sessions. Both parents missed all but three of their weekly drug tests from September through December 2012. The parents attributed these failures to problems finding transportation. J.P.'s medical coverage through AHCCCS lapsed from November 2012 through January 2013, resulting in J.P. being dropped from her therapy and social groups, as well as preventing her from replacing her broken prescription glasses. Additionally, DCS noted concerns about hygiene and the availability of food in the home notwithstanding assistance provided through in-home services.
¶7 On the night of December 31, 2012, there was an incident of domestic violence in which Father threw a can at Mother, hitting her in the face and injuring her nose and the side of her face. Father claimed that he had not hit Mother intentionally, but DCS required Father to leave the home. Although Father moved out, he later sneaked into the house through a window and took meat from the freezer. Mother also told DCS that she was receiving "intimidating, possessive, controlling" phone calls from Father. DCS suggested that Mother seek an order of protection, but she did not do so.
¶8 Both Mother and Father claimed that their relationship ended when the Father moved out, even though their son, L.W., was born 12 months later. And records show that Father called in for his drug test from Mother's house over one year after the domestic violence incident. One DCS case manager characterized the couple as "always want[ing] to present as separated, yet [DCS] keeps finding them together."
¶9 Mother did not enter a domestic violence counseling and education program until almost one year after the New Year's Day incident, despite two prior requests from DCS. Mother completed the program's education groups in approximately seven weeks, but did not stay for the additional nine weeks available to her. The program director considered this to be a successful completion of the education groups, but it could not offer an opinion on whether Mother had learned to avoid domestic violence in the future. A psychologist who evaluated Mother testified that, although the program "was a great start," Mother would need significantly more education and treatment to mitigate the risk of repeating the cycle of domestic violence with Father or another partner. The psychologist opined that, in combination with Mother's dependent personality traits, insufficient treatment increased the likelihood of future domestic violence or neglect.
¶10 In early February 2013, Mother was stopped for several traffic violations, including swerving both within and across traffic lanes. Mother was arrested for driving under the influence on a suspended license after she performed poorly on field sobriety tests. She tested negative on a breathalyzer and a field urine screen, but although a phlebotomist twice attempted to draw blood for testing, Mother's veins collapsed and the police were unable to collect a blood sample. A drug recognition expert opined, based on Mother's performance on the field sobriety tests, that she was under the influence of an unspecified central nervous system stimulant. DCS again removed J.P. and S.W. following Mother's DUI arrest.
¶11 Mother was not charged. She missed two scheduled drug tests in the following three weeks, but she tested negative for specified substances on a hair follicle test in early March.
¶12 The psychologist who examined Mother noted that testing indicated an inability to make independent judgments about child safety and general parenting responsibilities. Similarly, the parent aide who worked with Mother noted that, even after more than three years, Mother was still unable to independently recognize, assess, and prevent dangerous situations for the children. Mother would intervene if prompted by the parent aide, but she did not recognize dangerous situations without prompting. The parent aide also noted that Mother was unable to effectively supervise all of the children at once. The case manager opined that Mother's lack of supervision and failure to recognize dangers represented an ongoing safety issue.
¶13 After the New Year's domestic violence incident, DCS offered Father additional services, including domestic violence and anger management counseling. Father informed DCS that he would have trouble finding transportation to reach the services from the rural area where he was living, and DCS suggested he look into a shelter in town that could provide housing closer to the services. Instead of seeking a solution to the transportation issue, Father broke contact with DCS and disappeared for several months.
¶14 After Father resurfaced, DCS offered therapeutic visitation between Father and S.W. beginning in July 2013. But Father did not complete a visit until February 2014, seven months later. Visitation was stopped after three visits because S.W. had nightmares and began acting out after each visit. At the time of the severance hearing, Father was participating in services, but had not completed any, including the recommended domestic violence and anger management classes.
¶15 After a four-day hearing beginning in March 2014, the superior court found grounds to sever Mother's parental rights to J.P. and S.W. and Father's parental rights to S.W. based on both nine months' and 15 months' time in care. The court further found that, as the children were adoptable and living in a potential adoptive placement, severance would be in their best interests.
¶16 Both Mother and Father timely appealed. We have jurisdiction under Arizona Revised Statutes ("A.R.S.") § 8-325(A).
Absent material revisions after the relevant date, we cite a statute's current version.
DISCUSSION
¶17 The superior court may terminate the parent-child relationship if clear and convincing evidence establishes at least one statutory ground for severance and a preponderance of the evidence shows severance to be in the child's best interests. A.R.S. § 8-533(B); Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 22, 110 P.3d 1013, 1018 (2005). We review the superior court's severance ruling for an abuse of discretion, accepting the court's factual findings unless clearly erroneous and viewing the evidence in the light most favorable to sustaining the court's findings. Mary Lou C. v. Ariz. Dep't of Econ. Sec., 207 Ariz. 43, 47, ¶ 8, 83 P.3d 43, 47 (App. 2004); Manuel M. v. Ariz. Dep't of Econ. Sec., 218 Ariz. 205, 207, ¶ 2, 181 P.3d 1126, 1128 (App. 2008). We similarly defer to the superior court's credibility judgments. Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, 280, ¶ 4, 53 P.3d 203, 205 (App. 2002).
I. Adequacy of Reunification Services.
¶18 Severance based on the statutory grounds of time in care requires proof that DCS "made a diligent effort to provide appropriate reunification services." A.R.S. § 8-533(B)(8). Accordingly, DCS must make "all reasonable efforts" to preserve the family before proceeding to termination. See Christina G. v. Ariz. Dep't of Econ. Sec., 227 Ariz. 231, 234-35, ¶ 14, 256 P.3d 628, 631-32 (App. 2011). These efforts may include providing transportation to attend substantive reunification services. See, e.g., id. at 233-34, ¶¶ 5, 7, 9, 256 P.3d at 630-31. DCS is not required to offer all conceivable services; rather, the touchstone is whether DCS "provide[d] a parent with the time and opportunity to participate in programs designed to improve the parent's ability to care for the child." Mary Ellen C. v. Ariz. Dep't of Econ. Sec., 193 Ariz. 185, 192, ¶ 37, 971 P.2d 1046, 1053 (App. 1999).
¶19 Father argues that DCS failed to provide adequate reunification services because it did not provide him with transportation assistance. The record reflects that Father periodically struggled with finding transportation to attend services. For instance, Father missed multiple drug tests in the fall of 2012, citing difficulties in obtaining transportation. But DCS did not move to sever Father's rights at that time, instead continuing with reunification and with transitioning Father back into the home. DCS recognized the transportation challenge and worked with Father, recommending community services that might furnish transportation assistance.
Father argues that federal law requires DCS to provide transportation as a reunification service. See 42 U.S.C. § 629a(a)(7)(B)(viii) (defining "time-limited family reunification services" under the Adoption and Safe Family Act of 1997, Pub. L. No. 105-89, § 305(b)(2), 111 Stat. 2115, to include transportation to or from other services). This definition, however, applies to a federal grant program and describes an eligibility requirement, not a matter of substantive law. See 42 U.S.C. § 629d(a). Nevertheless, appropriate reunification services under Arizona law may in certain circumstances include transportation assistance, even though transportation is not otherwise an enumerated requirement. See, e.g., Donald W. v. Ariz. Dep't of Econ. Sec., 215 Ariz. 199, 205, ¶ 20, 159 P.3d 65, 71 (App. 2007) (as amended) (describing transportation as one service "targeted toward reunifying Father with Child").
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¶20 Father also suggests DCS failed to provide necessary transportation to facilitate his participation in services in the spring of 2013, after the New Year's domestic violence incident. Father initially informed DCS that he would have difficulty finding transportation from the rural area where he was staying at the time. But rather than work with DCS to find a solution to the transportation issue—whether by moving to a shelter in town as DCS suggested or by other means—Father broke contact with DCS and disappeared for several months. In these circumstances, and despite Father's acknowledged challenges acquiring adequate transportation, the superior court did not err by concluding DCS had made a diligent effort to provide appropriate reunification services.
II. Grounds for Severance: 15 Months' Time in Care.
¶21 The superior court may terminate a parent's rights based on the child's time in care under A.R.S. § 8-533(B)(8)(c) if: (1) the child has been in an out-of-home placement for at least 15 months, (2) "[DCS] has made a diligent effort to provide appropriate reunification services," (3) "the parent has been unable to remedy the circumstances" necessitating the out-of-home placement, and (4) "there is a substantial likelihood that the parent will not be capable of exercising proper and effective parental care and control in the near future." The relevant circumstances are those existing at the time of severance. Jordan C. v. Ariz. Dep't of Econ. Sec., 223 Ariz. 86, 96 n.14, ¶ 31, 219 P.3d 296, 306 n.14 (App. 2009).
¶22 Father argues the superior court erred by finding he had been unable to remedy the circumstances requiring an out-of-home placement. Specifically, he suggests that DCS implicitly acknowledged he had successfully remedied the circumstances by allowing him to move back into the home in December 2012, and that the subsequent domestic violence incident on New Year's was insufficient to undermine this conclusion. Although Father describes this as a "minor incident," substantial evidence supports a contrary conclusion. Despite Father's testimony that he inadvertently hit Mother with an empty soda can he was throwing toward a garbage bin, he did not offer an explanation for how this act resulted in injuries to Mother's face. Nor did he address Mother's reports to DCS that she was receiving "intimidating, possessive, controlling" phone calls from Father.
¶23 In this context, Father's failure to complete anger management or domestic violence education support the superior court's conclusion that Father failed to remedy domestic violence concerns. Additionally, Father's multiple-month disappearance after the New Year's incident, as well as the subsequent seven-month delay in beginning therapeutic visitation with S.W., underscore his failure to timely address parenting concerns. Accordingly, the superior court did not err by finding Father had been unable to remedy the circumstances necessitating out-of-home placement and that severance was warranted based on 15 months' time in care.
¶24 Mother argues the superior court erred by finding she (1) had been unable to remedy the circumstances causing an out-of-home placement and (2) was unlikely to be able to exercise parental care and control in the near future. First, Mother claims she remedied the domestic violence issue by ending her relationship with Father and completing seven weeks in a domestic violence counseling and education program in early 2014. But substantial record evidence calls into question Mother's assertion that she ended the abusive relationship with Father; their son was born almost 12 months after she claimed the relationship ended, and phone records indicate Father was present in Mother's home over one year after the New Year's incident. Additionally, although Mother did enter a domestic violence education program (albeit almost one year after the New Year's incident and after multiple requests from DCS) the psychologist testified that Mother's short-term participation was only a start and that she (and consequently the children) remained at significant risk of future domestic violence, either with Father or with a different partner.
¶25 Mother also contends that her low intellectual functioning scores do not support severance. As Mother correctly notes, DCS did not allege mental deficiency under A.R.S. § 8-533(B)(3) as an independent ground for severance. Nevertheless, Mother's low intellectual functioning was relevant to the 15 months' time in care ground to the extent it affected her ability to safely parent the children. The psychologist testified that low verbal functioning was associated with an inability to make independent, rational judgments about child safety. The parent aide noted that Mother had ongoing problems independently recognizing and preventing situations that were potentially dangerous to the children, as well as effectively supervising multiple children at once. The case manager indicated that, even when assisted by in-home services, Mother placed the children at risk of neglect, allowed J.P.'s AHCCCS (and thus counseling services, social groups, and medical care) to lapse, and failed to provide enough food. Accordingly, the superior court did not err by considering evidence of Mother's intellectual functioning.
¶26 Finally, even accepting, as Mother argues, that she successfully remedied any substance abuse issues, the superior court did not err by finding severance of Mother's parental rights was warranted based on 15 months' time in care in light of the ongoing domestic violence risks and the unresolved risk of neglect. Because the court properly found this statutory ground supported severance of both Mother's and Father's parental rights, we need not address the alternative ground of nine months' time in care. See Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, 251, ¶ 27, 995 P.2d 682, 687 (2000).
III. Best Interests.
¶27 In considering best interests, the superior court must determine "how the child would benefit from a severance or be harmed by the continuation of the relationship" with the biological parent. Maricopa Cnty. Juv. Action No. JS-500274, 167 Ariz. 1, 5, 804 P.2d 730, 734 (1990). Evidence that a child is adoptable or of a current adoptive plan may support a finding that termination is in the child's best interests, as may evidence that the current placement is meeting the child's needs. Lawrence R. v. Ariz. Dep't of Econ. Sec., 217 Ariz. 585, 587, ¶ 8, 177 P.3d 327, 329 (App. 2008); Mary Lou C., 207 Ariz. at 50, ¶ 19, 83 P.3d at 50.
¶28 Father does not challenge the superior court's best interests finding. Mother argues the court erred in its consideration of best interests because the children were bonded to her and because she could provide a stable home. The case manager testified that the children were adoptable and living in a possible adoptive placement. Their placement was safe, nurturing, and stable, and the children were "doing wonderfully" there. Despite the children's bond to Mother and Mother's love for them, the adoptive placement provided stability and permanency without the risks of neglect and domestic violence to which the children were exposed while in Mother's care. Accordingly, ample evidence supports the superior court's best interests finding.
CONCLUSION
¶29 For the foregoing reasons, we affirm.