Shawanee S. v. Arizona Department of Economic Security

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

SHAWANEE S., Appellant

v.

ARIZONA DEPARTMENT OF ECONOMIC SECURITY, E.J., J.J., L.S.,

K.S., Appellees

No. 1 CA-JV 13-0186

FILED 2-25-2014

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

SHAWANEE S. v. ADES, et al.

Opinion of the Court

OPINION

Judge Michael J. Brown delivered the Opinion of the Court, in which

Presiding Judge Andrew W. Gould and Judge Samuel A. Thumma joined.

B R O W N, 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 the

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Opinion of the Court

children 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.

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Opinion of the Court

¶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 failing

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Opinion of the Court

to 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 reunification services.” A.R.S. § 8-

533(B)(8); see also Mary Ellen C. v. Ariz. Dep’t of Econ. Sec., 193 Ariz. 185,

192, ¶¶ 32-34, 971 P.2d 1046, 1053 (App. 1999) (finding constitutional right

to reunification services when ADES sought termination of parental rights

based on mental illness). In this case, there is no question that ADES was

obligated to make diligent efforts to provide appropriate reunification

services to Mother.

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Opinion of the Court

¶13 ADES’s obligation, however, does not free a parent from the

need to raise a timely objection if the parent believes services are

inadequate. A parent must raise such a challenge in the juvenile court and

may do so in one of many ways. At a pre-hearing conference (the first

dependency proceeding with all parties present), the participants are to

discuss and seek resolution on various issues, including “the provision of

services to the child and family.” Ariz. R.P. Juv. Ct. 49(A), (D). At a

preliminary protective hearing (often the first court hearing in a

dependency), the juvenile court “shall . . . [d]etermine whether a proposed

case plan for services has been submitted and is appropriate” and ”shall

enter appropriate orders as to . . . the provision of services to the child and

family.” Ariz. R.P. Juv. Ct. 50(A), (B)(8), (C)(4). At a disposition hearing

following a dependency finding, the juvenile court “shall determine the

appropriate case plan and shall . . . [e]nter orders concerning appropriate

services required to achieve the case plan.” Ariz. R.P. Juv. Ct. 56(E)(1). A

parent has a right to be present, to be represented by counsel and to be

heard regarding services at each of these proceedings. See Ariz. R.P. Juv.

Ct. 49(B) (listing participants at pre-hearing conference); Ariz. R.P. Juv. Ct.

50(B)(2) (appointment of counsel).

¶14 After services have been identified by the participants and

ordered by the juvenile court, a parent dissatisfied with the services

actually being provided can raise the issue with the juvenile court in a

variety of ways. At periodic review hearings, as well as the permanency

planning hearing, a parent can object to the adequacy of services and “[a]t

the conclusion of the hearing, the court shall . . . [e]nter appropriate

orders concerning . . . services to be provided to the family.” Ariz. R.P.

Juv. Ct. 58(F)(3). A parent may also object to the juvenile court’s

“reasonable efforts” finding, see A.R.S. § 8-846(A), or request an

evidentiary hearing by motion to address the adequacy of services. See

Ariz. R.P. Juv. Ct. 58(D) (noting, in the context of a review hearing, that

“[a]ny party seeking an evidentiary hearing on any issue shall file a

motion requesting that the matter be set for a contested hearing”). And, at

a termination hearing, a parent can dispute evidence that ADES claims

shows a diligent effort to provide appropriate reunification services,

including by testifying about the services actually provided. See A.R.S. §

8-533(B)(8).

¶15 In determining whether the grounds for termination have

been satisfied, the juvenile court is in a much better position than this

court to evaluate the effectiveness and impact of the services provided, as

credibility determinations may be required to weigh the evidence

presented. See Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 282, ¶ 12,

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Opinion of the Court

53 P.3d 203, 207 (App. 2002). The juvenile court’s role in the dependency

process is just as critical—the court ensures that all parties receive proper

notice of court proceedings and are given meaningful opportunities for

input and objection. The court is also tasked with reviewing ADES’s case

reports, which must include an update as to the services provided to the

family. See Ariz. R.P. Juv. Ct. 58(C)(2) (requiring ADES to “provide a

report to the court and the parties at least fifteen (15) days prior to” a

review hearing addressing “[t]he services being provided to the child and

family”). The court holds review hearings at least once every six months.

A.R.S. § 8-847(A). In doing so, the court necessarily evaluates the reports

and related information, the purpose of which is to give the court an

opportunity to “review the progress of the parties in achieving the case

plan goals and determine whether the child continues to be dependent.”

Ariz. R.P. Juv. Ct. 58(A). The court is also authorized to consider “oral or

written reports of the parties,” which may implicate credibility

assessments, particularly when the participants disagree on what

happened or what services were provided. Ariz. R.P. Juv. Ct. 58(E)(1).

¶16 This process demands that parents voice their concerns

about services to the juvenile court in a timely manner. It serves no one to

wait to bring such concerns to light for the first time on appeal, when

months have passed since the severance order was entered. Instead, a

parent’s failure to assert legitimate complaints in the juvenile court about

the adequacy of services needlessly injects uncertainty and potential delay

into the proceedings, when important rights and interests are at stake and

timeliness is critical. Accordingly, we hold that when the juvenile court

record reflects that ADES has been ordered to provide specific services in

furtherance of the case plan, and the court finds that ADES has made

reasonable efforts to provide such services (including a finding that ADES

made a diligent effort to provide appropriate reunification services

pursuant to A.R.S. § 8-533(B)(8)), a parent who does not object in the

juvenile court is precluded from challenging that finding on appeal. See

State v. Georgeoff, 163 Ariz. 434, 437, 788 P.2d 1185, 1188 (1990) (explaining

that “[e]ven constitutional rights may, of course, be waived”); In re Eddie

O., 227 Ariz. 99, 103 n.2, 253 P.3d 296, 300 n.2 (App. 2011) (explaining

individuals may forfeit or waive some constitutional rights through their

conduct).

¶17 Here, the juvenile court conducted six review hearings over

the course of a year (April, June, October, and December 2012; and

February and May 2013). Six progress reports submitted by CPS to the

juvenile court described the services offered to Mother and her progress

with such services. Each of the minute entries from the review hearings

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Opinion of the Court

included the court’s finding that ADES had made reasonable efforts to

provide appropriate reunification services. The minute entries do not

reflect any objections by Mother to the CPS progress reports or the court’s

findings, nor is there any indication in the record that Mother questioned

the appropriateness of the services being provided to her in any way.

Finally, at the termination hearing, Mother did not argue that ADES failed

to make reasonable efforts to provide appropriate reunification services.

¶18 If Mother believed ADES was not making diligent efforts to

provide appropriate reunification services at any point, it was incumbent

on her to promptly bring those concerns to the attention of the juvenile

court, thereby giving that court a reasonable opportunity to address the

matter and ensure that ADES was in compliance with its obligation to

provide appropriate reunification services as ordered by that court. If

Mother had done so, the juvenile court could have addressed Mother’s

concerns and (1) made additional findings as to why ADES’s efforts were

sufficient or (2) directed ADES to make appropriate changes to its current

offering of services. But in the absence of an objection challenging the

type or manner of services, Mother has waived the right to argue for the

first time on appeal that ADES failed to offer appropriate reunification

services.

B. Best Interests

¶19 Mother also argues that the juvenile court erred by finding

that termination of her parental rights was in the children’s best interests.

We disagree.

¶20 Termination of the parent-child relationship is in the child’s

best interest if the child will benefit from the termination or would be

harmed if the relationship continued. Bobby G. v. Ariz. Dep’t of Econ. Sec.,

219 Ariz. 506, 511, ¶ 15, 200 P.3d 1003, 1008 (App. 2008). We review the

evidence and draw all reasonable inferences in the light most favorable to

upholding the juvenile court’s factual findings, Jesus M., 203 Ariz. at 282, ¶

13, 53 P.3d at 207, and we will affirm unless the court abused its discretion

by making clearly erroneous factual findings, Audra T. v. Ariz. Dep’t of

Econ. Sec., 194 Ariz. 376, 377, ¶ 2, 982 P.2d 1290, 1291 (App. 1998). Here,

the juvenile court found that it would be detrimental to the children to

remain with Mother in light of the trauma they had experienced under her

care, and that the children would benefit from the permanency and

stability that a safe, violence-free home could provide.

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Opinion of the Court

¶21 The record supports these findings. Case manager Thomson

opined that termination is in the children’s best interests based on

Mother’s lack of stability and her history of exposing the children to

neglect and abuse. After visits with Mother, the children “regressed” and

engaged in self-harm and other aggressive behaviors. Thomson testified

that the three younger children are in adoptive placements that are

meeting their physical, social, and emotional needs. Thomson explained

that because the oldest child has unique needs, she is not in an adoptive

placement but the present plan is to help her stabilize, which will then

permit her to be placed in an adoptive home. Therefore, the juvenile court

did not abuse its discretion in determining that termination of the parent-

child relationship is in the children’s best interests.

CONCLUSION

¶22 We affirm the juvenile court’s order terminating Mother’s

parental rights.

:mjt

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