DONALD SR v. ARIZONA DEPARTMENT OF ECONOMIC SECURITY (2007)

MEMORANDUM DECISION

¶ 1 In this appeal, we determine whether parents have the right to effective assistance of appointed counsel in parental severance hearings and, if so, under which standard we determine whether counsel was ineffective.   We confirm prior Arizona law holding that ineffective assistance of appointed counsel may constitute reversible error in the severance context.   We further hold that for assistance of appointed counsel to withstand constitutional scrutiny, it must satisfy standards of fundamental fairness.

¶ 2 For the reasons stated below, we conclude that Appellant-Mother Robin C. (“Mother”) did not receive effective assistance of counsel.   Accordingly, we affirm the severance order as to Appellant-Father Donald W., Sr. (“Father”), vacate the severance order as to Mother, and remand for further proceedings consistent with this opinion.

FACTUAL AND PROCEDURAL HISTORY

¶ 3 In April 2005, the Arizona Department of Economic Security (“ADES”) filed a petition alleging Appellee Donald W., Jr. (“Child”)-then eighteen months old-was dependent as to Mother and Father.   According to the petition, Mother was arrested on April 25, 2005, and Father was admitted to the hospital on the same day.¹  The petition further alleged that Mother engaged in substance abuse, that the home was unfit, and that Father and Mother engaged in domestic violence.   ADES concurrently filed a temporary custody notice, stating that there was no alternate caregiver present to care for Child.

¶ 4 After mediation in July 2005, Mother pled no contest to the allegations of the dependency petition and agreed to abide by the CPS case plan.   After a trial in August 2005, the court found Child dependent as to Father.

¶ 5 Father underwent a psychological evaluation in January 2006. The psychologist reported that Father had more than sufficient ability to understand any directions imposed by the court or by CPS.   The psychologist, however, characterized Father as conflicted and avoidant, noting that he scored highest on scales measuring avoidant and negativistic personality characteristics.   According to the psychologist, these characteristics were likely to result in conflict with significant others.   The psychologist described a cyclical pattern in Father's behavior in which he would become contrite and express remorse, apologize and overcontrol his actions, but then subsequently act out again.

¶ 6 In February 2006, ADES moved to terminate Mother's and Father's parent-child relationships with Child.   In the motion, ADES alleged Child had been in an out-of-home placement for nine months or longer and Mother and Father had substantially neglected or willfully refused to remedy the circumstances leading to the out-of-home placement.   CPS filed a report with the juvenile court stating that, while Father had undergone a psychological evaluation in January, both Mother and Father were non-compliant with services.   A February report of the Foster Care Review Board recommended that Child be placed in an adoptive placement.²

¶ 7 Mother was not present at a permanency planning hearing in March 2006.   At the beginning of that hearing, the following exchange took place:

The Court:  Mr. Crimmins, you're here for the mother?

Mr. Crimmins:  Yes, your honor.   I'm informed that she is around because she does call the policemen occasionally.   She's the mother who was-how do I say it politely though-

Ms. Avila-Taylor: 3  Under the influence.

Mr. Crimmins:  Not quite with us at the last hearing ․

The Court:  The one I questioned her sobriety?

Ms. Florez: 4  Yes

Mr. Crimmins:  Yes, you did, Judge, and then you ordered that she go get tested.   Apparently she didn't show.   I don't understand why.

The parties then proceeded to schedule a contested severance hearing.   ADES noted it did not think this was a complicated case and that no more than an hour was necessary.   CPS also informed the court that an adoptive placement had been located.

¶ 8 The contested severance hearing was conducted in late March and early April 2006.   ADES presented one witness, the case manager.   The case manager testified that Mother and Father had been offered random drug testing, psychological evaluation, parenting classes, visitation, and a housing subsidy.   She testified that Father had started to engage in the services but then was incarcerated, and that he did not maintain contact with Child.   She also testified Mother had been non-compliant, and, while she did have visits with the child, she did not consistently attend them, and that throughout the case it had been difficult to maintain contact with her, as she resided inconsistently at the address she had provided.   The case manager further testified that the domestic violence between Mother and Father had continued throughout the case.   Finally, the case manager testified that the child was in a prospective adoptive placement, was adoptable, and it was in the child's best interests to sever his existing parent-child relationships.   Counsel for Mother asked what the alleged grounds for termination were before he cross-examined the case manager about a referral for substance abuse counseling.

¶ 9 Mother testified on her own behalf.   Mother testified that she had undergone an assessment, a psychological evaluation, and counseling during February 2006, and that those services were ongoing.   During direct examination, the following exchange occurred between Mother and her counsel:

Q Did you call me before the hearing and ask me to subpoena anybody?

A No.   I didn't.   I didn't understand that I was supposed to subpoena stuff.   I don't understand court things at all.

Q When is the last time you called me at my office?

A I called you-messages twice last week.   I haven't talked to you, personally, until today.

Q Okay.   I don't have any record of any messages last week.   I keep a permanent log of all messages.

A And I talked to your secretary last week.

Q And that could be why because she doesn't necessarily write that down.

A I did talk to her, and she was the one that told me to call the court's secretary and find out today was court;  and, then, yesterday, Arsinia called, and I talked to her yesterday about five, 5:30.

Q You were in court last, I believe, in December, when the judge ordered that your rights be-a petition to sever your rights be filed?

A Yes, I was, sir.

Q And you didn't know that that was going to happen?

A I did know, but I didn't really understand until I started investigating it more on the computer about what exactly was going on.

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Q Before court, I asked you if you were doing U.A.'s and you indicated you have done 23 of them?

A Yes, I have, sir, and I have a box of them that's out in my storage that I should have went through before today, but I've got the copies of them in the file at my storage.

Q The judge indicated before court to me and the other attorneys that he would give you an opportunity before he ruled to provide those documents?

A All right.

Q Do you understand you'll have an obligation to provide them, and you can give them to me or give them to the court?

A Yes, sir, I do.

* * *

Q You've had three counseling sessions and two evaluation sessions?

A And two evaluations;  and, then, they wait two weeks for your appointment, and you got to go two weeks again, and two weeks again.

Excuse me.   I'm sorry

Q You need to go there tomorrow and get them to give you a record of that and provide it to me.

A Okay.

Q You understand that?

A Yes, sir, I do.

Q If you don't do that tomorrow, the judge isn't going to listen to that.

A All right.

Q This is on the record-

A Okay,

Q -So if I don't see it, I'll presume it doesn't exist-

A Okay.

Q -Well, more importantly, the judge will presume that.

ADES, Father, and the court questioned Mother.

¶ 10 Father also testified on his own behalf.   He stated that, while in prison, he had completed a parenting class and an anger management class.

¶ 11 After all witnesses had testified, counsel for Mother requested another hearing before the court ruled.   ADES argued that, regardless of the veracity of Mother's testimony, the grounds for severance had been met, as Mother had done nothing between April and January of the prior year.   The court scheduled a status hearing for the following week, and informed Mother she could present her documentation through counsel, and that he intended to rule at that time.

¶ 12 Mother did not appear at the status hearing.   Instead, she called the court forty-five minutes before the hearing to request a continuance, but did not give a reason.   The court declined to continue the hearing and told her she needed to come to court for the hearing.   When she did not appear at the hearing, the court inquired about her contact with counsel.   Counsel responded:

Your Honor, [Mother] has not contacted me or my office since leaving court.   We left it that she said she had some documentation that might impact the court's ruling.   She has not provided that to me.   Although I do understand from CPS they did check it from Ms. Johnson, that she did do an assessment at Excel I think in January.   But she did do that, but we have no other documentation of anything.

The Court:  All right.   Let me hear from-

Mr. Crimmins:  Also, [Mother], I just checked my messages again, has not contacted my office all day about a continuance or for any other purpose.

The Court:  Ms. Taylor?

Ms. Taylor:  Judge, we did try to verify what-some of what mom said.   We do know that she did get an assessment done in January, that she was supposed to-

* * *

-start services coming up.   Hasn't started any group services.   She has not done any UAs though CCS, Excel, or through CPS.

The Court:  Okay.   All right.

Mr. Crimmins:  The mother claim[s] she had records of 23 UAs.   She did not bring forth those records, Judge.

The parties then proceeded to closing arguments.   Mother's counsel presented closing argument as follows:

Your honor, I think there was some evidence that [Mother] did comply to some extent and did attempt to do some services so the nine month time in care should not apply.   It should have been the 12 month, therefore I request that severance been [sic] denied as to the grounds alleged.

¶ 13 The court granted the motion to sever as to both parents.   The court specifically found that neither parent had remedied the problems leading to Child's out-of-home placement and there had been virtually no contact between the parents and Child since that time.   The court further found that severance was in Child's best interests because it would allow Child to move into a permanent situation-the adoptive placement.   Mother and Father timely appealed.   This Court has jurisdiction pursuant to section 8-235 of the Arizona Revised Statutes (Supp.2006).

ANALYSIS

 ¶ 14 In its motion to terminate Mother's and Father's parent-child relationships with Child, the sole grounds alleged by ADES for termination were that Child had been in an out-of-home placement for at least nine months, and Mother and Father had substantially neglected or willfully refused to remedy the circumstances leading to that placement.   Likewise, the juvenile court based its order terminating their parental relationship solely on those grounds.   We review the juvenile court's findings of fact in support of severance for clear error.  Anonymous v. Anonymous, 25 Ariz.App. 10, 12, 540 P.2d 741, 743 (1975).   We will reverse only if there is no reasonable evidence to support the court's findings.  Id.

 ¶ 15 The juvenile court may sever a parent-child relationship if ADES can show by clear and convincing evidence that:  the child has been in an out-of-home placement under the supervision of the juvenile court for a period of nine months or longer, ADES has made a diligent effort to provide appropriate reunification services, and the parent has substantially neglected or willfully refused to remedy the circumstances that cause the out-of-home placement.   A.R.S. § 8-533(B)(8)(a) (Supp.2006);  Pima County Juv. Action No. S-919, 132 Ariz. 377, 377, 646 P.2d 262, 262 (1982).   The circumstances causing the out-of-home placement for the purposes of section 8-533(B) are those in effect at the time of severance.  Marina P. v. Arizona Dep't of Econ. Sec., 214 Ariz. 326, 330, ¶ 22, 152 P.3d 1209, 1213 (App.2007).

 ¶ 16 Before the parent-child relationship may be terminated, ADES must undertake measures to reunify the parent and child that offer a reasonable opportunity of success.  Mary Ellen C. v. Arizona Dep't of Econ. Sec., 193 Ariz. 185, 192, ¶ 34, 971 P.2d 1046, 1053 (App.1999).   ADES is not, however, required to undertake futile rehabilitative measures.  Id.  Severance under section 8-533(B)(8)(a) is not appropriate when a parent has made “appreciable, good faith efforts to comply with remedial programs outlined by ADES,” but may be appropriate in cases where the parent “disappears for months at a time and makes only sporadic, aborted attempts to remedy,” the circumstances during the nine-month period.  In re Maricopa County Juv. Action No. JS-501568, 177 Ariz. 571, 576, 869 P.2d 1224, 1229 (App.1994).   At minimum, to avoid severance the parent should have demonstrated “something more than trivial or de minimus efforts at remediation.”  Id. at n.1.

 ¶ 17 Additionally, a parent-child relationship may only be severed upon a showing that termination is in the best interests of the child.  A.R.S. § 8-533(B).  ADES has the burden of proving severance is in the child's best interests by a preponderance of the evidence.  Kent K. v. Bobby M., 210 Ariz. 279, 288, ¶ 41, 110 P.3d 1013, 1022 (2005).   In determining whether severance is in the child's best interests, the court may consider, among other factors, whether the child is adoptable, and whether the child's current placement is meeting the child's needs.  Audra T. v. Arizona Dep't of Econ. Sec., 194 Ariz. 376, 377, ¶ 5, 982 P.2d 1290, 1291 (App.1998).   The court is not required to consider alternative placements to determine which might be better.  Id.

¶ 18 Father and Mother both argue there was insufficient evidence to support the juvenile court's order severing their parent-child relationships with Child.   Mother additionally argues she was denied effective assistance of counsel.   We first address Father's appeal and then address Mother's appeal.

Father's Appeal

¶ 19 On appeal, Father argues there was insufficient evidence to support that ADES engaged in diligent reunification efforts or that he substantially neglected or willfully failed to remedy the circumstances leading to Child's out-of-home placement.⁵

 ¶ 20 The record reflects ADES made a diligent effort to provide reasonable reunification services to Father.   In its order, the court specifically noted that CPS had offered urinalysis screening, substance abuse treatment, parenting classes, psychological evaluations, domestic violence counseling, housing assistance, transportation, visitation, and DNA testing.   The record supports this finding;  all of these services were listed in the Family Reunification Plan and the case manager testified the services were offered to Father.   As noted in the Family Reunification Plan, these services were targeted toward reunifying Father with Child, as the goals of the services included giving Father the skills necessary to parent Child effectively in a safe environment and maintaining a healthy relationship with Child.   Thus, the record supports that ADES engaged in diligent efforts to reunify Father and Child.

 ¶ 21 The record further reflects sufficient evidence to support a finding of Father's substantial neglect or willful refusal to remedy the circumstances causing the out-of-home placement.   Father argues the record demonstrates that, when Father went to prison, he became committed to changing his life, and therefore completed services in prison.   Even assuming the truth of this statement, the record reflects that Father was sentenced to imprisonment on February 9, 2006.   Thus, Father did not commence these services ⁶ until February 2006, almost ten months after Child was removed to an out-of-home placement and less than two months before the severance trial commenced.   On the other hand, there is a wealth of evidence in the record to support that, during that initial ten-month period, Father substantially neglected or willfully refused to remedy the circumstances causing Child's out-of-home placement.   There is no evidence in the record of any visitation between Father and Child at any point in this case, despite that the case manager twice scheduled supervised visits, both of which Father did not attend.   Further, Father did not even make contact with CPS despite multiple requests to do so until October 2005, six months after Child was put in an out-of-home placement.   Even when Father was in contact with CPS, he showed no interest in cooperating with CPS to complete services.   Indeed, he initially refused to participate in services without DNA evidence of his paternity.

¶ 22 The record indicates that CPS made diligent efforts to reunify Father and Child, and that Father substantially neglected or willfully refused to remedy the circumstances leading to Child's out-of-home placement.   We find no clear error in the court's order severing Father's parental relationship with Child.

FOOTNOTES

1.   The petition alleges Mother hit Father and kicked him in groin, leading to the arrest and hospitalization.   Later reports indicate Mother was arrested on outstanding warrants for failure to appear, and that Father was having a “hernia attack.”

2.   The family with whom Child was placed maintained consistently throughout the proceedings that they were not interested in adopting Child.

3.   Counsel for ADES.

4.   Counsel for Child.

5.   Father does not argue that there is insufficient evidence that severance is in Child's best interests.

6.   We need not and do not express any opinion as to whether the programs Father participated in while in prison were sufficient to remedy the cause of Child's out-of-home placement.

KESSLER, Judge.

CONCURRING:  MAURICE PORTLEY, Presiding Judge and PATRICK IRVINE, Judge.