                     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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                            AMBER M., Appellant,

                                        v.

    DEPARTMENT OF CHILD SAFETY, A.M., K.M., C.M., Appellees.

                             No. 1 CA-JV 19-0031
                               FILED 8-8-2019


           Appeal from the Superior Court in Maricopa County
                             No. JD 529981
                  The Honorable David B. Gass, Judge

                                  AFFIRMED


                                   COUNSEL

Maricopa County Public Advocate, Mesa
By Suzanne W. Sanchez
Counsel for Appellant

Arizona Attorney General’s Office, Mesa
By Laurie Blevins
Counsel for Appellee, DCS
                          AMBER M. v. DCS, et al.
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Jennifer M. Perkins and Judge Samuel A. Thumma joined.


B R O W N, Judge:

¶1            Amber M. (“Mother”) appeals the juvenile court’s order
terminating her parental rights to her children—A.M., born in 2008, K.M.,
born in 2012, and C.M., born in 2014 (collectively, “the children”).1 The only
issue before us is whether the court’s diligent efforts finding regarding the
provision of appropriate reunification services is supported by reasonable
evidence. For the following reasons, we affirm.

                             BACKGROUND

¶2             Between February 2013 and March 2016, the Department of
Child Safety (“DCS”) received several reports alleging Mother was abusing
and neglecting the children, two of whom have special needs. In May 2016,
DCS received additional reports alleging Mother had physically abused
K.M. When a daycare worker received a report that Mother hurt K.M. by
hitting her on the back with a cord, the worker notified DCS. A forensic
investigator then received a report that Mother hit the children with her
fists, cords, and a paddle; the report described the hitting as “really bad.”
Soon thereafter, DCS removed the children from the home and filed a
dependency petition, alleging the children were dependent as to Mother
due to abuse, neglect, and Mother’s untreated mental health issues.

¶3            When DCS removed the children from the home, Mother was
enrolled in counseling at Focused Family Services (“FFS”). In June 2016,
Mother participated in a psychological evaluation with Dr. G. Joseph Bluth,
who diagnosed her with some “Unspecified Bipolar and Related
Disorder[s]” and post-traumatic stress disorder. Bluth was doubtful that
Mother could properly parent her children and opined that Mother’s ability
to demonstrate minimally adequate parenting skills in the foreseeable
future was “guarded to poor” because her mental health condition causes
her to be sensitive to stress in her life—something that could be triggered


1      Each of the children has a different father. The fathers’ parental
rights were also terminated, but they are not parties to this appeal.


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                          AMBER M. v. DCS, et al.
                           Decision of the Court

by parenting a child with special needs. Bluth also opined there may be a
risk of neglect and abuse given Mother’s history of abuse as well as
concerns regarding her ability to provide for and care for the children
without a great deal of assistance from others. Bluth did, however,
recommend that Mother could benefit from a psychiatric evaluation,
counseling, anger management skills training, and parenting training.

¶4            As reflected in a September 2016 dependency mediation
order, it was agreed that DCS would offer Mother the following services:
parent aide, psychological evaluation, psychiatric evaluation, parenting
classes, and anger management. As to counseling services, the parties
agreed that Mother had “self-referred.” The court found the children
dependent as to Mother in December 2016 and approved a case plan of
family reunification. In April 2018, the court approved changing the case
plan to severance and adoption. DCS then moved to terminate Mother’s
parental rights, alleging the children had been in an out-of-home placement
for more than 15 months, Mother had not remedied the circumstances that
caused the placement, and the lack of Mother’s behavior changes made it
unlikely she could properly parent in the near future. See Ariz. Rev. Stat.
(“A.R.S.”) § 8-533(B)(8)(c).

¶5            The juvenile court conducted a termination hearing, receiving
testimony from Mother, a DCS case manager, Dr. Bluth, and Dr. James Thal,
who performed a bonding and best-interests assessment. In a detailed
minute entry, the court granted DCS’s motion, finding that Mother was not
credible and “continues to lack insight into the skills she needs to care for
the children” due in large part to her failure to fully participate in services
and because she “does not have a fundamental understanding of what she
needs to do as a parent of children who have special needs.” The court
further emphasized that Mother prematurely stopped treatment in
programs designed to help her. This timely appeal followed.

                               DISCUSSION

¶6            To terminate parental rights, the juvenile court must find, by
clear and convincing evidence, the existence of at least one statutory ground
for termination enumerated in A.R.S. § 8-533(B). Michael J. v. Ariz. Dep’t of
Econ. Sec., 196 Ariz. 246, 249, ¶ 12 (2000). As a necessary element to
overcome a parent’s fundamental right to custody of his or her child, the
court must also find that DCS made diligent efforts to provide appropriate
reunification services before it can terminate parental rights under A.R.S.
§ 8-533(B)(8)(c). See Mary Ellen C. v. Ariz. Dep’t of Econ. Sec., 193 Ariz. 185,
192, ¶ 32 (App. 1999).


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                          AMBER M. v. DCS, et al.
                           Decision of the Court

¶7             DCS must provide services and give the parent an
opportunity to engage in the services, id. at ¶ 37, but it is not required to
wait an indefinite period before requesting termination of parental rights,
Maricopa Cty. Juv. Action No. JS-501568, 177 Ariz. 571, 577 (App. 1994). Nor
is DCS required to provide services that would be futile or ensure parents
participate in the services offered; however, DCS must at least provide “the
parent[s] ‘with the time and opportunity to participate in programs
designed to help [them] to become an effective parent.’” Christina G. v. Ariz.
Dep’t of Econ. Sec., 227 Ariz. 231, 235, ¶¶ 14–15 (App. 2011) (citation
omitted). DCS does not meet its obligation, however, “when it neglects to
offer the very services that its consulting expert recommends.” Mary Ellen
C., 193 Ariz. at 192, ¶ 37. We will accept the court’s findings of fact unless
no reasonable evidence supports them. Christina G., 227 Ariz. at 234, ¶ 13.

¶8             Mother challenges only the juvenile court’s finding that DCS
made a diligent effort to provide appropriate reunification services, arguing
DCS failed to timely and adequately provide counseling—a family
reunification service recommended by Dr. Bluth. Specifically, Mother
challenges DCS’s nine-month delay in referring her to counseling services
between February 2017, after she informed DCS she had stopped attending
FFS, and October 2017, when DCS referred her to counseling at Arizona
Center for Change (“ACC”). DCS counters, in part, that Mother waived her
ability to challenge DCS’s efforts at reunification services because she failed
to object in the juvenile court. Shawanee S. v. Ariz. Dep’t of Econ. Sec., 234
Ariz. 174, 179, ¶ 16 (App. 2014).

¶9             The juvenile court found Mother did not challenge the
adequacy of services provided or offered by DCS until “the end of the
process” and that the record establishes both reasonable and diligent efforts
on the part of DCS to effectuate reunification of Mother and the children.
Although the record shows that Mother raised the issue of services during
at least two review hearings and filed a motion asking the court to find DCS
failed to make diligent efforts to provide Mother reunification services,
these objections were made in 2016, at a time when she was attending FFS.
Nothing in the record indicates that Mother objected to the court’s
reasonable efforts findings during the nine-month gap when she was not
offered counseling, even though Mother attended three report and review
hearings in that time period. See id. at 178, ¶¶ 13–14 (explaining a parent
dissatisfied with the adequacy of services can raise an objection in many
ways, including at a pre-hearing conference, at a preliminary hearing, or at
periodic report and review hearings).




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                          AMBER M. v. DCS, et al.
                           Decision of the Court

¶10           We recognize that Mother’s counsel objected to the juvenile
court’s diligent efforts finding at the end of the first day of the termination
hearing, but that related only to an October 2018 counseling referral. We
also recognize that counsel raised concerns during closing arguments of the
termination hearing about DCS’s nine-month delay in referring Mother to
counseling, claiming she was left “high and dry” due to the delay. But this
objection, made at the very end of the hearing and raised approximately
two years after her self-referred counseling was discontinued, cannot be
reasonably construed as a timely objection because it did not give the court
a reasonable opportunity to address the matter. See id. at ¶ 18 (explaining
that if mother thought DCS “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 [DCS] was in compliance with its obligation to provide appropriate
reunification services as ordered”). Thus, Mother has waived the issue of
whether DCS made diligent efforts to provide appropriate counseling
based on the nine-month gap that occurred in 2017 due to DCS’s failure to
timely submit a referral. See id. at ¶ 16 (noting the termination process
“demands that parents voice their concerns about services to the juvenile
court in a timely manner”).

¶11           Waiver aside, any delay caused by DCS does not mean the
court’s termination order is legally deficient. Instead, after consideration of
all the circumstances in this record relating to diligent efforts, we conclude
that DCS offered Mother reunification services that would reasonably allow
her the time to become an effective parent.

¶12            The juvenile court made specific findings for a variety of
services to Mother. Significantly, the court found that Mother’s explanation
for her failure to participate in counseling with ACC was not credible and
that her participation in services with FFS was sporadic. The court also
found Mother continued to lack the insight into the skills she needed to care
for the children, due in large part to her failure to fully participate in the
offered services. As a result, the court found Mother had not resolved the
issues that led to the children being in DCS custody and it was substantially
unlikely she would be able to resolve them in the foreseeable future. These
findings are supported by the record.

¶13         We first note that Mother had extensive involvement with
DCS before this case. DCS received approximately 17 reports of physical
abuse and neglect involving Mother and her children dating back to 2006,
and in December 2010, the juvenile court terminated her parental rights to


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                         AMBER M. v. DCS, et al.
                          Decision of the Court

her older child (born in 2005) under the same ground and an additional
ground of Mother’s mental illness. See A.R.S. § 8-533(B)(3). During the
prior dependency, DCS offered Mother counseling services at Terros,
transportation, drug testing, two psychological evaluations, parenting
skills classes, and a parent aide. Mother declined services at Terros and
instead chose a separate counseling service where she failed to timely
complete the program offered. The court found Mother was provided with
the time and opportunity to participate in appropriate services to reunify
her with her child and that providing further services would be futile.

¶14           As to this termination proceeding, DCS began providing
Mother with services in June 2016. Case manager Destenie Staples testified
that the services were intended to assist Mother in making behavioral
changes and informed her she would need to show such changes by
“[developing] an increased understanding of child development and
milestones, especially with children with high needs; implementing
nonphysical discipline and appropriately addressing concerns and cues by
the children; maintaining stable housing, as well as employment;
identifying suitable caregivers; and gaining insight into how her actions
have negatively impacted her children.” Dr. Bluth recommended that
Mother should participate in services including continued counseling, a
psychiatric evaluation, and an ongoing evaluation of Mother’s parenting
skills. Mother testified that she participated in some services with DCS in
connection with this dependency, but acknowledged she was not fully
compliant.

¶15           Mother’s participation in counseling started to decline in
2017. Mother self-referred to counseling services at FFS, where she was
participating when the case began. Mother notified DCS in February 2017
she had stopped attending counseling sessions at FFS due to scheduling
issues with her employer. After Mother reported to DCS that she was
unable to continue attending counseling sessions at FFS, DCS referred her
to ACC for individual counseling in November 2017. DCS did not provide
an explanation for the nine-month delay in referring Mother to ACC.
Though the unexplained delay is striking, we do not find it prejudiced
Mother because once she was finally referred for individual counseling, her
participation at ACC was almost nonexistent. After Mother’s first intake
appointment at ACC, she attended only one subsequent appointment and
either canceled or failed to attend her other appointments. Mother was
closed out of ACC for failing to attend and communicate her absences. She
returned to FFS in February 2018. In October 2018, Mother emailed her
caseworker informing her she was leaving FFS because her insurance
lapsed. That same month, Mother requested an additional counseling


                                    6
                          AMBER M. v. DCS, et al.
                           Decision of the Court

referral, and DCS implemented the counseling referral approximately three
weeks later.

¶16           Despite Mother’s sporadic participation in counseling, we
reject her contention that DCS failed to provide her services recommended
by Dr. Bluth by waiting nine months to give her a referral for additional
counseling after she stopped attending FFS in February 2017. Although we
are troubled by DCS’s lack of an explanation for the nine-month delay, once
Mother was assigned to ACC, she failed to adequately participate, and the
court found her explanation for doing so lacked credibility. DCS “is not
required to . . . ensure that a parent participates in each service it offers.”
Maricopa Cty. Juv. Action No. JS-501904, 180 Ariz. 348, 353 (App. 1994).
Moreover, DCS provided Mother with a variety of other services for more
than two years. Its decision to not wait longer to see whether Mother would
fail to participate in subsequent services does not render its efforts
unreasonable.

¶17            Mother also challenges the juvenile court’s finding that
services from FFS “were not at the level necessary to address the concerns
raised in this matter.” The court noted that FFS provided primarily group
therapy, not higher-level, focused individual therapy and that Mother
“participated in those [FFS] services sporadically.” Mother argues, with
some force, it was “fundamentally unfair for the court to wait until it filed
its termination order to communicate to Mother that it thought the [FFS]
counseling was inadequate.” Not surprisingly, a termination hearing may
provide the court more detail about services provided than at intermediate
hearings, which may explain the basis for the court’s conclusion about FFS
counseling after trial. The record does not explain why the court made the
finding about FFS counseling, and, if FFS was the only entity providing
counseling services to Mother, this finding would have significantly
undercut the court’s ultimate conclusion that DCS provided appropriate
reunification services. That said, the trial record shows that DCS referred
Mother for counseling services through ACC a year before the court
granted termination, that she failed to participate in that counseling in a
way that altered her behavior—and in fact only attended at most two
sessions after her intake before cancelling or failing to attend the rest—and
that her explanation for that failure was not credible. Mother also reported
to her counselors that she was attending FFS because she was “referred by
her DCS worker to complete individual counseling,” showing Mother was
aware DCS required her to participate in individual counseling. Mother
attended a few individual counseling sessions at FFS, but mainly attended
group sessions, despite her acknowledgment to counselors that DCS
required individualized counseling. For these reasons, any inaccuracy or


                                      7
                         AMBER M. v. DCS, et al.
                          Decision of the Court

error in the court’s findings regarding FFS counseling did not result in the
court erroneously concluding DCS provided appropriate reunification
services.

¶18           Based on this record, reasonable evidence supports the
juvenile court’s finding that DCS made diligent efforts to provide Mother
with reunification services.

                              CONCLUSION

¶19            The juvenile court’s order terminating Mother’s parental
rights is affirmed.




                        AMY M. WOOD • Clerk of the Court
                         FILED: AA




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