                                                                      FILED BY CLERK
                            IN THE COURT OF APPEALS                       NOV 10 2009
                                STATE OF ARIZONA
                                                                           COURT OF APPEALS
                                  DIVISION TWO                               DIVISION TWO




JORDAN C., JESSE C., KAILYNN C.,             )
and MICHELE C.,                              )
                                             )
                              Appellants,    )          2 CA-JV 2009-0019
                                             )          2 CA-JV 2009-0020
                    v.                       )          (Consolidated)
                                             )          DEPARTMENT B
ARIZONA DEPARTMENT OF                        )
ECONOMIC SECURITY,                           )          OPINION
KERRY C., and KIMBERLY C.,                   )
                                             )
                               Appellees,    )
                                             )
                   and                       )
                                             )
MAUREEN O.,                                  )
                                             )
                              Intervenor.    )
                                             )


           APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

                                  Cause No. 16849100

                          Honorable Virginia C. Kelly, Judge

                                      REVERSED


Child Advocacy Clinic
 By Paul D. Bennett, a clinical professor appearing
     under Rule 38(d), Ariz. R. Sup. Ct., and
     Alexandra Lukic and Gemma Zanowski,
     students certified pursuant to Rule 38(d),
     Ariz. R. Sup. Ct.                                                            Tucson
                                                                Attorneys for Appellants
                                                      Jordan C., Jesse C., and Kailynn C.
Nuccio & Shirly, P.C.
 By Jeanne Shirly
                                                                                     Tucson
                                                          Attorneys for Appellant Michele C.
Terry Goddard, Arizona Attorney General
 By Pennie J. Wamboldt
 and Dawn R. Williams                                                               Prescott
                                                                                     Tucson
                                                             Attorneys for Appellee Arizona
                                                           Department of Economic Security
Frederick S. Klein
                                                                                    Tucson
                                                                     Attorney for Appellees
                                                                   Kerry C. and Kimberly C.
Margo Amrit Donaldson
                                                                                      Tucson
                                                                      Attorney for Intervenor


V Á S Q U E Z, Judge.


¶1                Michele C. and three of her children, Jesse, Jordan, and Kailynn (the Older

Children), appeal the juvenile court’s order terminating Michele’s parental rights to her two

youngest children, six-year-old Kerry and four-year-old Kimberly. The court terminated

Michele’s parental rights on the ground she had been unable to remedy the circumstances that

caused Kerry and Kimberly to remain in an out-of-home placement for fifteen months or

longer and there was a substantial likelihood she would be unable to parent them in the near

future. See A.R.S. § 8-533(B)(8)(c). 1 The court also found termination to be in the girls’

best interests.


       1
        Section 8-533(B)(8) was amended in 2008, and former § 8-533(B)(8)(b) has been
renumbered as § 8-533(B)(8)(c). 2008 Ariz. Sess. Laws, ch. 198, § 2. We refer in this
decision to the provision currently in force.

                                                2
¶2            Michele and the Older Children argue the Arizona Department of Economic

Security (ADES) failed to meet its burden of establishing with clear and convincing evidence

that (1) Michele was unable to parent effectively at the time of the hearing, (2) there was a

substantial likelihood she would be incapable of exercising proper and effective parental care

in the near future, and (3) ADES had made a diligent effort to provide appropriate services

to reunify Kerry and Kimberly with Michele.2 The Older Children also argue the juvenile

court erred in finding termination was in the best interests of Kerry and Kimberly. Because

we agree the evidence was insufficient to support any alleged statutory ground for

terminating Michele’s parental rights to Kerry and Kimberly, we reverse the court’s order.

                          I. Facts and Procedural Background

¶3            In March 2007, ADES filed a petition alleging that then nine-year-old Jordan,

eight-year-old Jesse, six-year-old Kailynn, three-year-old Kerry C., and two-year-old

Kimberly C. were dependent children. The children previously had been the subjects of a

dependency proceeding initiated in March 2004, due, in part, to their parents’

methamphetamine use. That dependency had been dismissed in March 2006 after the parents

successfully completed their case plans.

¶4            In May 2007, Michele admitted the allegations in an amended dependency

petition, including allegations she had tested positive for methamphetamine use on March 26,



       2
        ADES has challenged the standing of the Older Children to appeal the juvenile
court’s ruling. We agree with them, however, that ADES waived this argument by failing
to object to their participation at the termination hearing. See Torrez v. State Farm Mut., 130
Ariz. 223, 225 n.2, 635 P.2d 511, 513 n.2 (App. 1981).

                                              3
but not since; the children’s father, Jesse C., Sr. had relapsed into methamphetamine abuse;

the couple had recently engaged in domestic violence; and Michele had no stable housing or

employment and could not care for the children and, as a result, had left Kerry, who is

developmentally delayed, with the children’s paternal great-grandmother. The juvenile court

adjudicated the children dependent and approved a case plan goal of reunification.3

¶5            In July, in compliance with her case plan tasks, Michele participated in a

psychological evaluation conducted by Dr. Lorraine Rollins. In her evaluation report, Rollins

opined that Michele could not “adequately care for her children at this time due to her high

level of defensiveness” and needed “to make genuine change through therapeutic

intervention.” Rollins emphasized the need for “direct assessment of the parent-child

relationships to gauge them and [Michele’s] parenting skills.” She wrote, “It is quite

conceivable that [Michele] may not be able to parent all of her children (and perhaps none

of her children) adequately. Her progress and response to [recommended] interventions . . .

and any intervention recommended by the direct assessment of her parenting relationships

with her children will likely determine” her ability to parent one or more of them. As

intervention services in addition to the “direct assessment of the mother-child relationship[]”

between Michele and each of her children, Rollins recommended Michele be offered and

participate in ongoing random drug and alcohol screening, substance abuse treatment and an




       3
        Jesse C., Sr. was incarcerated at the time of the termination hearing. He relinquished
his parental rights to Kerry and Kimberly on November 19, 2008, and the juvenile court
terminated his parental rights on December 19, 2008. He is not a party to this appeal.

                                              4
aftercare support group, parenting instruction, individual therapy, and domestic violence

group therapy.

¶6             In August 2007, Child Protective Services (CPS) case manager Michael

Joosten, who had also been assigned as the family’s case manager during the previous

dependency proceeding, reported his concerns that Michele “[might] not be able to solely

care for all five children,” particularly in light of “the issues that Kerry, Jord[a]n and Jesse

Jr. continue to have.” 4 But, he wrote, “On the positive side . . . , there are relative placements

that are willing and able to care for the children and still keep a relationship with both

parents.” 5 After reviewing Joosten’s report following a September dependency review

hearing, the court again approved the case plan goal of reunification and directed that ADES

“will have discretion with respect to all aspects of visitation.”

¶7             In November, Joosten reported he had made a referral for a Family Group

Decision Making (FGDM) meeting and again expressed “concerns about [Michele]’s ability

to care for all the children at this time.” He informed the juvenile court that, although

relatives were “willing to become permanent placement[s] . . . [,] there is also a lot of

mistrust between the parents and relatives as well as among some of the relatives,” and


       4
        In addition to Kerry’s developmental delays, Jordan had been “diagnosed with
[attention deficit hyperactivity disorder], anger issues, insecure attachment and
depressive/manic tendencies,” and Jesse had been found to have anger management issues.
       5
       As of August 2007, Jordan was placed with his maternal grandparents; Jesse,
Kailynn, and Kerry were placed with their paternal great-grandmother; and Kimberly was
placed with Michele’s cousin and his wife. In September, Jordan and Jesse were moved to
therapeutic foster care. Kailynn joined Jesse in his therapeutic foster home in February 2008.
Thus, by March 2008, only Kerry and Kimberly remained with relatives.

                                                5
therefore, he “would like to get a FGDM meeting together as soon as possible to work out

a plan that would be best for the children.” He further stated that family members and foster

families had agreed “to participate in a FGDM meeting [on November 2], where a permanent

agreement for the children can be made by the family.”

¶8             At the December 2007 dependency review hearing, the juvenile court found

Michele in compliance with her case plan. Joosten reported Michele was employed, had

completed a twelve-hour substance abuse pre-treatment program, and was attending

parenting classes and substance abuse prevention groups. ADES told the court a FGDM

session had been scheduled to address permanency for the children, and the court granted

ADES discretion to place the children in accordance with that process. The court again

approved a case plan goal of family reunification.

¶9            The FGDM meeting was held on January 5, 2008. A plan was made to reunify

the family by transitioning the children, one by one, from their current placements into

Michele’s care, beginning with Jordan and proceeding in order to Kailynn, Jesse, Kimberly,

and Kerry. The transitions were to begin with longer visits and overnight stays, with the time

frame “to be determined by the children’s needs and accl[i]mation to the change.”

¶10           In a report he prepared at the end of February, Joosten explained to the juvenile

court, “If at any time the team felt that it was becoming to[o] much for the children or the

mother to handle, the second plan would be that the children would stay in their current

placements.” He also reported that Alden Carroll, a counselor who had been seeing Jordan,

Jesse, and Kailynn individually and in family therapy sessions with Michele for several


                                              6
months, had also just begun seeing Michele and Jordan together on a weekly basis. As he

had previously, Joosten expressed his concern that it would “be too much” for Michele to

care for all five of her children, particularly when both Jordan and Kerry had been diagnosed

with special needs. He wrote:

              This case manager feels that at this time, with the mother’s work
              schedule, having two children who have special needs and her
              being a single mother even with the support of her family would
              be too much for her. She would not be able to care for all of the
              children, but possibly would be able to care for Jordan and
              maybe Kailynn or Jesse.

¶11           Jordan was returned to Michele’s care on April 14, 2008, and CPS retained

psychologist Diana Indigas to provide intensive in-home therapy for Jordan and Michele

during this transition. In a report prepared for a permanency hearing in May, Joosten

explained there had been delays in placing the other children with Michele “because of the

concern that the mother will not be able to care for all five children.” 6 He recommended the

plan be changed to reflect family reunification for Kailynn and Jesse, with a target date of

September 30, but severance and adoption by a relative for Kerry and Kimberly. The

juvenile court approved the transition of Kailynn and Jesse to Michele’s care, found that

Kimberly and Kerry could not be returned to Michele then, and continued the permanency

hearing until September 18 without changing the plan goal of reunification.




       6
         The record is not clear as to why Jordan’s return to Michele was delayed from
January 5, the date of the FGDM meeting, until mid-April, or why joint counseling sessions
to assist his transition did not begin until the end of February.

                                             7
¶12           Kailynn was returned to Michele’s care in June. In September, Joosten

reported to the juvenile court that both Jordan and Kailynn were doing well after placement

with Michele and that Jesse was scheduled to be returned on September 12. Joosten praised

Michele’s “hard work” with Jordan and reported that Indigas had told him Michele “does

very well” with Jordan and Kailynn, parenting them in a consistent and structured manner,

and that Carroll had said Michele had been “very appropriate” with the Older Children in

family therapy. Although Joosten was supportive of Michele’s efforts, he opined “it would

be better for Kimberly and Kerry to remain in their current placements so that the mother can

focus on the three older children’s needs and issues.” He noted that Jesse and Jordan had a

history of conflicts with each other that would require Michele’s attention. Kimberly and

Kerry had remained in their original placements, Kimberly with Michele’s cousin and his

wife, and Kerry with her paternal great-grandmother, Maureen O.7 Joosten reported that each

of these foster parents wished to adopt their respective charges and were “more th[a]n

willing” to promote a relationship between the children, their siblings, and Michele.

¶13           Jesse was returned to Michele in September as planned, and at the

September 18 permanency hearing, the court approved ADES’s recommendation that the

plan goal for Kerry and Kimberly be changed to severance and adoption. At the court’s

direction, ADES filed a motion to terminate Michele’s parental rights to her two youngest




       7
        Maureen intervened in the termination adjudication and has filed an intervenor’s brief
in response to appellants’ briefs and in support of the juvenile court’s termination order.

                                              8
children on grounds of disabling mental illness or chronic drug abuse, see § 8-533(B)(3), and

fifteen-month, time-in-care, see § 8-533(B)(8)(c).

¶14           After a four-day hearing, the juvenile court issued a lengthy and detailed order

in which it summarized some of the family’s history. The court found ADES had failed to

prove Michele was an unfit parent because of chronic substance abuse or disabling mental

illness, see § 8-533(B)(3), the alternative grounds ADES had alleged, stating:

                      The evidence indicated that [Michele] had demonstrated
              sobriety for fourteen months and had progressed to the point
              where her three oldest children were returned to her. Therefore,
              the Department did not prove by clear and convincing evidence
              that the condition would continue for a prolonged indeterminate
              period.

                      With respect to mental illness, there was evidence that
              the mother’s denial and/or defensiveness may have prevented
              genuine progress in therapy. However, her in-home therapist
              indicated that the mother had made sufficient progress to safely
              parent the three oldest children presently in her care. Therefore,
              the Department did not prove by clear and convincing evidence
              that the condition would continue for a prolonged indeterminate
              period.

¶15           In addressing the motion to terminate Michele’s rights pursuant to § 8-

533(B)(8)(c), the juvenile court wrote:

                     The circumstance which caused the children to be placed
              out-of-home was neglect. The parents’ methamphetamine use
              was the primary reason for the neglect. Following removal [in
              2004], Kerry . . . was diagnosed as failure to thrive and placed
              at Casa de los Ninos where global developmental delays were
              noted. Kimberly was small for her age, developmentally behind
              in walking and talking and not expressive of her needs. . . .

                     During the dependency, [Michele] maintained sobriety.
              She also addressed some of the denial/defensiveness concerns

                                              9
identified in her psychological evaluation. However, she still
does not appear to fully understand Kerry[’s] developmental
delays.

       The Department offered many services to assist the
mother, including drug testing, therapy, supervised visitation,
and parenting classes. Despite these services, [Michele] still has
significant challenges in managing the behaviors of her three
oldest children, particularly the interaction between Jordan and
Jesse. . . . Jordan has made progress in dealing with his
behaviors. Kailynn’s transition to her mother’s care went well,
but created jealousy issues for Jordan. Jesse’s transition has
been more difficult. Jesse needs much monitoring due to his
behavior problems, apparent depression, sleep problems and
guilt over an incident in foster care. [Michele] will need an
indeterminate amount of time to stabilize the current family
dynamic. Although it was always the plan to transition the
children home one by one as each addition achieved stability,
even [Michele] acknowledges now that she does not know how
much time that would take.

        Kerry . . . and Kimberly were placed out-of-home
initially because they and their older siblings were neglected by
their parents. The neglect was largely due to methamphetamine
use by both parents. Although the mother now appears to be
clean, Kerry . . . and Kimberly remain at risk for neglect due to
circumstances in the home. The mother works full-time and
relies on her parents for child care in the evenings. She still
requires the regular assistance of an in-home therapist to deal
with behavior issues with the three oldest children.

       The past neglect of all of the mother’s children has left
her with a complicated family dynamic. There has been slow
improvement. To the extent that the mother’s past neglect of
her children has contributed to the current situation, as it most
certainly has, she has not been able to remedy the circumstances
which caused Kerry . . . and Kimberly to be removed.

       ....

. . . Kerry . . . has been out-of-home for about two-thirds of her
five and a half years. Kimberly has been out-of-home for

                               10
              almost half of her four years. At the time of trial, no witness
              could predict when the mother’s situation at home with the three
              oldest children would be stable enough for either Kerry . . . or
              Kimberly to return home.

              . . . The mother has been offered services for four of the past
              five years, throughout most of the girls’ lives, but still has been
              unable to remedy the circumstances that caused them to be
              out-of-home for over fifteen months. Because of this, there is
              a substantial likelihood that she will not be able to exercise
              proper and effective parental care and control for them in the
              near future. This is particularly true for Kerry . . . [who has]
              developmental delays and special needs . . . .

                    Therefore, the Court finds that [ADES] proved the
              ground of length of time in care, as provided by A.R.S.
              § 8-533(B)(8)[(c)] by clear and convincing evidence.8

                                        II. Discussion

                                               A.

¶16           This appeal raises the novel issue of whether a juvenile court may terminate

parental rights under § 8-533(B)(8)(c), based on fifteen months or longer in court-ordered,

out-of-home placement, when ADES’s plan of reunification contributed to and contemplated




       8
        After Michele and the Older Children filed their opening briefs, counsel for Kerry
and Kimberly filed a “motion to strike or dismiss appeals” with regard to Kerry on the
ground that Kerry had been adopted while this appeal was pending and her adoption had
allegedly rendered the appeals by Michele and the Older Children moot. We denied the
motion. We conclude any arguments about the effect of our decision on an order authorizing
Kerry’s adoption are best addressed, in the first instance, to the juvenile court, and we decline
to render an advisory opinion on the issue.

                                               11
the length of time the children would remain in care and the parent was in full compliance

with the plan.9

                                              B.

¶17           For the juvenile court to terminate Michele’s parental rights pursuant to

§ 8-533(B)(8)(c), ADES was required to prove it had made a “diligent effort to provide

appropriate reunification services” for Michele and her children, but, despite that effort,

Michele had been unable to remedy the circumstances causing Kerry and Kimberly to be in

court-ordered, out-of-home care for fifteen months or longer. In addition, ADES had to

establish there was “a substantial likelihood that [Michele would] not be capable of

exercising proper and effective parental care and control in the near future.” Id. Each of

these elements required proof by clear and convincing evidence. See A.R.S. § 8-863(B);

Mary Ellen C. v. Ariz. Dep’t of Econ. Sec., 193 Ariz. 185, ¶ 25, 971 P.2d 1046, 1051 (App.

1999). In deciding whether ADES sustained its burden, the court was also required to

“consider the availability of reunification services to the parent and the participation of the

parent in these services.” § 8-533(D).10 Michele and the Older Children contend ADES

failed to sustain its burden of proving that: (1) ADES diligently had provided appropriate

services designed to reunite Michele with Kerry or Kimberly, (2) Michele had failed to



       9
       Because this question has not been squarely addressed in published opinions, we
ordered supplemental briefing to afford the parties an opportunity to address it.
       10
       ADES was also required to prove, by a preponderance of evidence, that termination
of Michele’s parental rights was in the best interests of Kerry and Kimberly. See Kent K. v.
Bobby M., 210 Ariz. 279, ¶ 22, 110 P.3d 1013, 1018 (2005).

                                              12
remedy the circumstances causing Kerry and Kimberly to remain in out-of-home care, or

(3) there was a substantial likelihood that Michele would be unable to parent either of the

girls in the near future. We address each of these arguments in turn.

                                             C.

¶18           The juvenile court, as the trier of fact in a termination proceeding, “is in the

best position to weigh the evidence, observe the parties, judge the credibility of witnesses,

and resolve disputed facts.” Ariz. Dep’t of Econ. Sec. v. Oscar O., 209 Ariz. 332, ¶ 4, 100

P.3d 943, 945 (App. 2004). Accordingly, we view the evidence and reasonable inferences

to be drawn from it in the light most favorable to sustaining the court’s decision, Jesus M.

v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, ¶ 13, 53 P.3d 203, 207 (App. 2002), and we will

affirm a termination order that is supported by reasonable evidence. Jennifer B. v. Ariz.

Dep’t of Econ. Sec., 189 Ariz. 553, 555, 944 P.2d 68, 70 (App. 1997). We do not reweigh

the evidence. See Lashonda M. v. Ariz. Dep’t of Econ. Sec., 210 Ariz. 77, ¶ 13, 107 P.3d

923, 927 (App. 2005). When the statutory grounds for termination are challenged, we will

affirm a termination order “‘unless we must say as a matter of law that no one could

reasonably find the evidence [supporting statutory grounds for termination] to be clear and

convincing.’” Denise R. v. Ariz. Dep’t of Econ. Sec., 221 Ariz. 92, ¶ 10, 210 P.3d 1263, 1266

(App. 2009), quoting Murillo v. Hernandez, 79 Ariz. 1, 9, 281 P.2d 786, 791 (1955).




                                             13
                                              D.

1. Diligent efforts to reunify.

¶19           As the agency responsible for the care of Michele’s children, ADES had

statutory and constitutional obligations to make reasonable efforts to reunify this family. See

Marina P. v. Ariz. Dep’t of Econ. Sec., 214 Ariz. 326, ¶ 37, 152 P.3d 1209, 1216 (App.

2007); Mary Ellen C., 193 Ariz. 185, ¶ 33, 971 P.2d at 1053 (“Arizona courts have long

required the State . . . to demonstrate that it has made a reasonable effort to preserve the

family.”); § 8-533(B)(3). Neither Michele nor the Older Children dispute that ADES

provided appropriate services to reunite the four of them. But the Older Children argue that,

“by design,” ADES failed to make a diligent effort to reunite Kerry and Kimberly with the

rest of the family. Michele agrees, citing CPS’s failure to include Kerry and Kimberly in

counseling with Indigas, whom CPS had retained to help Michele effectively parent her

children as they were returned to her care, and its failure to expand visitation between

Michele and the two girls to include longer and unsupervised visits, as contemplated by the

case plan adopted at the FGDM meeting.

¶20           Citing Mary Ellen C., ADES responds that it is not required to “provide ‘every

conceivable service’” or to “undertake rehabilitative measures that are futile.” 193 Ariz. 185,

¶¶ 34, 37, 971 P.2d at 1053, quoting In re Maricopa County Juv. Action No. JS-501904, 180

Ariz. 348, 353, 884 P.2d 234, 239 (App. 1994). Although these are correct statements of

law, they are incomplete. As Mary Ellen C. also made clear, when the state has a duty to

provide reunification services, “it must provide a parent with the time and opportunity to


                                              14
participate in programs designed to improve the parent’s ability to care for the child.” And,

although futile efforts are not required, ADES must “undertake measures with a reasonable

prospect of success” in reuniting the family. Id.

¶21           We reject ADES’s apparent suggestion that attempts to reunify Michele with

Kerry or Kimberly were futile because “as early as August 2007,” Joosten had “expressed

concern that [Michele] would never be able to handle all five children.” Joosten’s concern,

even if it proved to be an accurate prediction, was not clear and convincing evidence that

reunification services ADES did not provide would have been “futile.” See id. ¶ 42

(requiring ADES to “prove by clear and convincing evidence that it ha[s] made a reasonable

effort to provide [the parent] with rehabilitative services or that such an effort would be

futile”).

¶22           Joosten acknowledged at the termination hearing that he had not provided any

services designed to reunify Kerry and Kimberly with Michele, stating he “was taking each

child a step at a time into the home.” Indeed, Indigas testified that when she was retained to

assist in reuniting the family in the spring of 2008, her work was limited to the Older

Children and she had “known from the beginning” that ADES had planned to recommend

termination of Michele’s rights to Kerry and Kimberly.

¶23           Based on the reunification plan adopted at the FGDM meeting, ADES argues

it was not required to provide reunification services for Kerry and Kimberly because “[b]y

the time the older children were transitioned home, the girls had again been out of

[Michele’s] care for eighteen months, and there was no reasonable assurance of their


                                             15
reunification.” Quoting In re Maricopa County Juvenile Action No. JS-501568, ADES

asserts, “‘[l]eaving the window of opportunity for remediation open indefinitely . . . [was not]

in [Kerry and Kimberly]’s best interests.’” 177 Ariz. 571, 577, 869 P.2d 1224, 1230 (App.

1994).11 In its supplemental brief, ADES further contends that “stabilizing the older children

was a prerequisite to returning Kerry or Kimberly,” and therefore, “services directed at

addressing [Michele]’s needs . . . and at stabilizing the older children were reunification

services provided to effectuate Kerry’s and Kimberly’s return to [Michele]’s care.”

¶24           But the Older Children contend ADES controlled the timetable for its plan to

reunify Michele with each child in succession and had contemplated that reunification could

not be completed without some of the children remaining in an out-of-home placement for

longer than fifteen months.12 They argue ADES fails “to undertake measures with a

reasonable prospect of success when it creates a timetable for reunification in excess of




       11
         In Maricopa County No. JS-501568, the court considered whether a mother’s rights
could be terminated because she substantially had neglected or willfully refused to remedy
circumstances that caused her child to remain in a court-ordered, out-of-home placement
during the first year of a dependency proceeding, see § 8-533(B)(8)(a) (now nine months),
even though, by the time of the termination hearing, she appeared nearly ready to parent her
child, precluding termination under what is now § 8-533(B)(8)(c). 177 Ariz. at 577, 577 n.2,
869 P.2d at 1230,1230 n.2. The case has little relevance to the sufficiency of ADES’s effort
to provide appropriate reunification services to a mother who was fully compliant with her
case plan, the issue raised here.
       12
         The record supports the Older Children’s assertion that Michele had been able to
reunite with Jordan, Kailynn, and Jesse more quickly than ADES had expected. In February
2008, Joosten had suggested a review hearing be held in August 2008, more than fifteen
months after the children had been placed in out-of-home care, “to determine if any of the
other children,” in addition to Jordan, could be reunited with Michele.

                                              16
[fifteen] months—and then moves for severance based on the [children’s] excess time [in

care].” Under the circumstances in this case, we agree.

¶25           For eighteen months, the only case plan goal approved by the juvenile court

for each of Michele’s children was family reunification. We appreciate the merit of the

FGDM plan to place the children with Michele in succession, as a placement plan. But we

are not persuaded there was sufficient evidence to support the finding that ADES made a

diligent effort to reunify this family when it decided to provide reunification services

successively as well. And, although stabilizing the Older Children one at a time was

consistent with the case plan ADES had created and with which Michele had complied, it

was only a “prerequisite” in the context of that plan. It was not empirical evidence that

Michele was unable to parent Kimberly or Kerry at the time of the hearing, that there was a

substantial likelihood she would be unable to parent them in the near future, or that it was

futile to provide the family further reunification services.

¶26           At most, Joosten’s testimony established the plan had been based on what he

believed would be in the children’s best interests, not whether, in the absence of ideal

circumstances, Michele would be capable of parenting Kimberly or Kerry in addition to her

other three children. When asked why he had recommended termination and adoption for

Kerry, for example, Joosten cited Kerry’s special needs and her long placement with

Maureen. Asked directly whether he believed Michele had been unable to remedy the

circumstances that caused Kerry to be in an out-of-home placement and whether there was

a substantial likelihood Michele would not be capable of parenting her in the near future,


                                              17
Joosten answered, “I think that Kerry . . . would be another challenge for Michele on top of

the other kids,” and he feared returning her to Michele’s care might possibly cause Michele’s

parenting abilities to backslide. He also opined that, although he believed Michele “knows

what’s going on with Kerry[,] . . . working with Kerry [would] be a new stressor” in

Michele’s life.

¶27           Joosten did not express the same fears about returning Kimberly to Michele’s

care, however, stating she is “a normal little [three]-year-old child who needs to have

connections with mom and her brothers and sisters and her extended family.” He added,

“Kimberly and Kerry are the princesses of the family” and Jordan and Jesse are “very

protective of the two little girls . . . .” His recommendation of termination and adoption for

Kimberly was based on the length of her placement and his belief that Michele “needed to

put a lot of emphasis on the three older kids and support for them.” When asked about

Michele’s ability to parent her youngest child, Joosten stated that Kimberly “would probably

[be] affect[ed] . . . somehow” by “being taken away from a placement that she’s been in for

so long . . . .” And, when asked whether he thought it would be possible to reunify all of the

children with Michele if her plan were extended for an additional six months, Joosten

responded, “[A]nything is possible, but I think the best interests of the children lie in having

Kimberly and Kerry where they are and having the older kids with the really one-to-one

support that they need from their mom.”

¶28           Joosten’s observations may have been relevant to the issue of whether

termination of Michele’s rights was in the children’s best interests, which the court could


                                              18
only consider if there was sufficient evidence to establish a statutory ground for termination.

But those observations did not provide a basis for withholding unsupervised visitation and

other services designed to reunify Michele with her two youngest children. Cf. In re

Maricopa County Juvenile Action No. JS-6831, 155 Ariz. 556, 558, 748 P.2d 785, 787 (App.

1988) (“[T]ermination cannot be predicated solely on the best interests of the child.”). Nor

did they render such services futile.

¶29            Moreover, as the court noted in Mary Ellen C., ADES fails to make a sufficient

effort to reunify a family “when it neglects to offer the very services that its consulting expert

recommends.” 193 Ariz. 185, ¶ 37, 971 P.2d at 1053. Although Rollins had plainly

recommended that ADES retain a therapist who could provide a “direct assessment of the

mother-child relationship[]” between Michele and each of her children, ADES failed to

follow that recommendation and instead limited Indigas’s in-home counseling, as well as

Carroll’s therapy sessions, to the Older Children.13 As noted below, this failure not only

impaired ADES’s ability to prove the adequacy of its reunification efforts, but other elements

of the time-in-care ground it had alleged as well.

¶30            ADES had an obligation to make diligent efforts to reunify Michele with all

of her children, including the two youngest, during the entire time the plan goal was

reunification. Instead, ADES withheld services designed to facilitate Michele’s reunification



       13
        In its supplemental brief, ADES argues it had provided family counseling with
Alden Carroll to “the entire family.” But, although Joosten refers to Carroll’s work with “the
children” in his reports, his testimony, as well as the testimony of foster care licensing agent
Anabeli Miranda, clarified that these services were only provided to the Older Children.

                                               19
with Kerry and Kimberly, including expanded visitation and family counseling, while waiting

to see whether the Older Children could be returned successfully to her care. And, after the

first three placements were made, ADES foreclosed all efforts to reunite Michele with her

two youngest children by seeking to terminate her parental rights to them on the ground that,

under § 8-533(B)(8)(c), the children had already been out of the home for too long. The

record does not support the juvenile court’s finding, by clear and convincing evidence, that

ADES made a diligent effort to reunify this family.

2. Inability to remedy circumstances.

¶31           As this case illustrates, ADES’s duty to provide appropriate reunification

services and its burden of proving a parent’s failure to remedy circumstances that precluded

her reunification with her children are often related.14 The purpose of providing reunification

services is to afford a parent “the time and opportunity to participate in programs designed

to improve the parent’s ability to care for the child.” Mary Ellen C., 193 Ariz. 185, ¶ 37, 971

P.2d at 1053. Such efforts also enable ADES to evaluate a parent’s progress, or lack thereof,

toward making reunification possible. Without such evaluative evidence, ADES may fall

short of sustaining its burden of proving that termination of a parent’s rights is warranted.

See id., ¶¶ 20-21, n.7 (failure to provide appropriate services resulted in witnesses’ “inability


       14
         We construe § 8-533(B)(8)(c)’s reference to “circumstances that cause the child to
be in an out-of-home placement,” id., “‘to mean those circumstances existing at the time of
the severance’ that prevent a parent from being able to appropriately provide for his or her
children.” Marina P., 214 Ariz. 326, ¶ 22, 152 P.3d at 1213 (discussing termination based
on § 8-533(B)(8)(a)), quoting In re Maricopa County Juv. Action No. JS-8441, 175 Ariz.
463, 468, 857 P.2d 1317, 1322 (App. 1993), overruled in part on other grounds by Kent K.
v. Bobby M., 210 Ariz. 279, ¶¶ 8-22, 110 P.3d 1013, 1016-18 (2005).

                                               20
to assess [mother’s] current circumstances” and ADES’s inability to prove “‘reasonable

grounds to believe the parent’s condition will continue for a prolonged, indeterminate

period,’” under § 8-533(B)(3)).

¶32           Here, ADES’s failure to involve either of the younger children in therapy with

Carroll or Indigas—both counselors who worked with the family individually or as a

unit—prevented ADES from obtaining what Rollins had recommended and ADES needed:

a direct assessment of Michele’s present parenting abilities and capacities with respect to

Kimberly or Kerry. Like Michele, we are not certain of the evidentiary basis for the juvenile

court’s finding that “Kerry . . . and Kimberly remain at risk for neglect due to circumstances

in the home.” Indigas, the only therapist who testified about Michele’s parenting abilities,

stated her progress with the Older Children had been “miraculous, on a lot of levels.”

Although the court found Michele “still requires the regular assistance of an in-home

therapist to deal with behavior issues with the three oldest children,” Indigas testified

Michele “ha[d] met all treatment goals and objectives and [was] ready to be discharged from

the in-home program.” Based only on her experience with Michele and the three older

children, Indigas opined Michele would be able to parent additional children. But Indigas

acknowledged that she could express no opinion about Michele’s ability to parent Kimberly

or Kerry, because she had never worked with those children. And, although Joosten offered




                                             21
his opinion of what would be best for the family and challenges they might face, he never

opined that Michele was unable to parent Kerry or Kimberly effectively.

3. Ability to parent in the near future.

¶33           There was even less evidence to support the juvenile court’s determination that

there was a substantial likelihood Michele “[would] not be able to exercise proper and

effective parental care and control . . . in the near future.” The court stated in its order that

“no witness could predict when the mother’s situation at home with [the] three oldest

children would be stable enough for either Kerry and or Kimberly to return home.” The only

evidence of an unstable situation at home related to Jesse’s progress in making a suitable

adjustment. We agree with the Older Children that the inability to predict how long Jesse’s

adjustment might take falls short of clear and convincing evidence of a substantial likelihood

that Michele would be unable to care for Kimberly or Kerry, or both, in the near future. It

is not a parent’s burden to prove she will be capable of parenting effectively in the near

future, but ADES’s burden to prove there is a substantial likelihood she will not. At most,

the evidence established only that no one could predict when Jesse would be stabilized and

when Kimberly, and later Kerry, could be returned to Michele’s care in accordance with the

FGDM plan. We conclude that, as a matter of law, this did not constitute clear and

convincing evidence there was a substantial likelihood Michele would be unable to care for

Kimberly or Kerry, or both, in the near future.

¶34           At oral argument, ADES asserted Michele had “freely admitted that she was

not able to take on another child” when the termination hearing was held in December 2008.


                                               22
But the only testimony that supports this assertion was made in the context of ADES’s plan

to return Kimberly, and then Kerry, only after Jesse appeared to be stable. During cross-

examination by ADES, Michele stated:

                   Q.      Jordan was returned to you this year about April
             of 2008?

                    A.     Yes.

                   Q.      And he seemed to have stabilized pretty well, do
             you agree?

                    A.     Yes.

                    Q.     And then Kailynn came home to you about July of
             this year?

                    A.     Yes.

                    Q.     And you feel she has stabilized?

                    A.     Yes.

                   Q.   And then Jesse came home to you in about
             September?

                    A.     Yes.

                    Q.     Do you believe that he has stabilized yet?

                    A.     No, not at this point.

                    Q.      How much longer do you think it will take for
             Jesse to stabilize to the family of four that you have now?

                    A.     I cannot say that because I don’t know. But I’m
             sure, with the proper services in place, he’ll get evaluated and




                                            23
              find out what actually is going on in his mind and we’ll take it
              from there.15

In contrast, when asked directly about her ability to parent Kimberly and Kerry, Michele

responded as follows:

                      Q.     Do you think, with the responsibilities that you
              have with your other three children and if Kerry were in the
              home, that you would be able to give Kimberly the kind of
              attention that she needs to keep her safe—

                      A.    Oh, yes.

                      Q.    —and nurtured?

                      A.    Yes.

And, although ADES asserted at oral argument that there had been “extensive testimony that

[Michele] was not going to be able to meet Kerry’s special needs,” the witnesses whose

testimony ADES relied on had testified only generally about the challenges any parent would

face in raising Kerry and offered no opinion about whether Michele, specifically, could meet

those challenges.16


       15
        Michele stated she had requested an evaluation for Jesse, but her telephone calls to
arrange the evaluation and additional services had not been returned. Maureen testified
Michele had requested a psychiatric evaluation for Jesse at a child and family team meeting
in October 2008, but the evaluation had not yet been performed by the following meeting in
December, “even though it[ had] been [two] months since the mother brought it up.”
       16
         At oral argument, ADES relied on the testimony of Maureen; Kerry’s kindergarten
teacher, Wendy Parks; and her speech pathologist, Barbara Pickard. But although there was
testimony that the challenges of parenting Kerry might be greater for a parent who worked
outside the home or had other children to raise, none of them opined that Michele would be
an inadequate parent. For example, when asked whether Michele could parent Kerry with
the other children in the home, Maureen responded,


                                            24
¶35           As ADES points out, this court has held in other cases that a parent’s ability

“to meet the needs of one or more of her children . . . does not establish that she is able to

parent all of her children.” See In re Pima County Juv. Action No. S-2460, 162 Ariz. 156,

158-59, 781 P.2d 634, 636-37 (App. 1989) (finding parent “barely capable of parenting the

. . . children presently in her care and [was] incapable of dealing with the [other children’s]

special needs”); In re Maricopa County Juv. Action Nos. JS-5209 and JS-4963, 143 Ariz.

178, 187, 692 P.2d 1027, 1036 (App. 1984) (finding stress of parenting additional children

would exacerbate mother’s mental illness). But in those cases, substantial evidence had been

presented to establish an inability to parent effectively. See Pima County Juv. Action No.

S-2460, 162 Ariz. at 157, 781 P.2d at 635 (“The common thread of the witnesses’ testimony

was that the natural mother could barely cope with the five children presently living with her,

and that she was unable to meet the special needs of G. and V.”); Maricopa County Juv.

Action Nos. JS-5209 and JS-4963, 143 Ariz. at 186-87, 692 P.2d at 1035-36 (juvenile court

relied on expert medical testimony that “mother’s mental condition and . . . ability to


              Quite frankly, I don’t think I could handle [Kerry’s] needs . . .
              with the other children in the home. I think [she] needs a lot of
              one-on-one attention, and with the kind of attention that she
              needs, it would be a strain for anyone, more of a strain for a
              full-time working mother, so I think it would be difficult for any
              mother to handle that.

Similarly, when foster care licensing agent, Anabeli Miranda, was asked whether Kerry
would benefit from being in a family having five children, she stated, “[T]he caregiver has
to be really on top of any little changes . . . .” But she expressed no opinion about Michele’s
ability or inability to do so. And Parks and Pickard testified about Kerry’s need for one-on-
one attention and their daily communications with Maureen, but they offered no opinion
about Michele’s abilities.

                                              25
discharge her parental responsibilities would deteriorate under even moderate stress” and

“stress . . . would increase with the number of children in her care,” creating high potential

for abuse and neglect if children returned). No such evidence has been presented here.

¶36           Our conclusion is unchanged by the juvenile court’s concern that, because this

is the second dependency proceeding for this family, the children have been in out-of-home

placements for far longer than the fifteen cumulative months required to terminate a parent’s

rights under § 8-533(B)(8)(c). Although this history is indisputably unfortunate, we cannot

agree that it provides clear and convincing evidence of a substantial likelihood Michele will

be unable to parent Kimberly or Kerry in the near future. The mere passage of time during

which a child is in care, without more, is not a ground for terminating the parent’s rights

under § 8-533(B)(8)(c). And we do not believe additional time in care may be considered

a proxy for the independent findings the statute requires.

                                      III. Conclusion

¶37           For the foregoing reasons, we conclude the juvenile court erred in finding

ADES had presented clear and convincing evidence that it had made a diligent effort to

reunify Michele with Kerry or Kimberly or that there is a substantial likelihood that Michele

will be unable to parent either of the girls in the near future. Accordingly, we reverse the

court’s order terminating Michele’s parental rights to Kerry and Kimberly.



                                               ____________________________________
                                               GARYE L. VÁSQUEZ, Judge




                                             26
CONCURRING:



____________________________________
PETER J. ECKERSTROM, Presiding Judge



____________________________________
J. WILLIAM BRAMMER, JR., Judge




                                   27
