BROWN, Judge.
¶ 1 Christina G. ("Mother") appeals from the juvenile court's order terminating her parental rights to her son ("the child").
¶ 2 Mother, age sixteen at the time, gave birth to the child in August 2007.
¶ 3 In March 2008, Mother failed to properly strap the child in his stroller and he fell, suffering a bloody nose. Since Mother was close to a hospital, she took him in for an examination. He was treated for the nosebleed and minor scrapes and then sent home with Mother. On another occasion Mother placed the child in a crib with a broken rail; he fell but was not injured. Mother had reported the broken rail to staff the day before but it was not repaired until after the child fell.
¶ 4 In October 2008, Mother was observed "yelling and screaming" at the child after she became upset because she wanted to make
¶ 5 ADES filed a dependency petition, alleging that the child was dependent as to Mother based on her mental deficiencies and physical abuse of the child. Mother initially contested the allegations, but later submitted the issue of dependency to the juvenile court, which granted the petition. The court confirmed the case plan of family reunification and ordered the following: "parent aide services, psychological evaluation with follow-up recommendations, Healthy Families, and transportation in addition to the services Mother already receives through her [own] dependency as a child." In a subsequent mediation agreement and order, additional services listed for Mother were independent living skills training, placement in a teen-mother group home, referrals to obtain updated mental health records, and continuing to work with Touchstone to meet Mother's mental health needs.
¶ 6 Mother completed a psychological evaluation with Dr. James Thal on March 16, 2009. Thal administered two academic assessment tests, and supplemented his findings with prior educational testing reports from 2007. Thal also tested Mother for depression and adaptive skills. He opined that Mother suffered from mild retardation and a mood disorder, not otherwise specified. He believed that these conditions would exist for a prolonged, indeterminate period, that a child in her care would be at risk for neglect and abuse, and that in his opinion "there are no services that could improve [Mother's] condition to the point that it would be reasonable to expect that a child would be safe in her care." He stated further that severance and adoption would be the most appropriate case plan.
¶ 7 Notwithstanding Thal's report, ADES continued to offer services to Mother, including parent aide training, transportation, independent living skills, placement in a teen group home, and counseling. For the most part, Mother participated in the services offered until she turned eighteen in August 2009. At that time, ADES gave her the opportunity to remain in foster care through a voluntary agreement, but Mother declined. She then moved out of the group home and returned to live with her mother, even though she had concerns that her mother might be "using drugs again in the home" along with concerns of domestic violence. According to ADES, if Mother had accepted the agreement, she would have been able to continue to receive services similar to those she had received as a dependent child, including stable housing.
¶ 8 ADES requested a permanency planning hearing in June 2009, but then recommended that the hearing be postponed because the child was not currently in an adoptive placement and the child's father had not been evaluated as a placement option. In its July 2009 report, the Foster Care Review Board stated it was "concerned that [Mother] will not be able to care for [the child]" and noted that her "psychological evaluation did not recommend a case plan goal of family reunification." The Board further indicated that it supported the case manager's intent to continue family reunification for the biological father but that it supported implementing the "concurrent case plan goal of adoption."
¶ 9 A short time later, Mother was advised that she needed to contact Magellan, the regional behavioral health authority for Maricopa County, to set up an intake appointment that would allow Magellan to assist with her mental health needs. Mother made appointments, the first of which was set for November 16, 2009, but she failed to keep "two or three" appointments. Both the caseworker and the independent living skills supervisor testified that they reminded Mother of the need to attend the appointments and the
¶ 10 In October 2009, ADES recommended a change in the case plan to severance and adoption, informing the court that Mother chose not to accept continued foster care services for herself and had decided to reside with her mother. ADES noted that placement in that home would not be appropriate because of issues that were unresolved in Mother's own dependency, including her mother's substance abuse. ADES also believed that pursuing reunification with the biological father was not a viable option. The court approved changing the case plan to severance and adoption, and ADES moved to terminate Mother's parental rights, alleging mental illness and mental deficiency as the grounds for severance under Arizona Revised Statutes ("A.R.S.") section 8-533(B)(3) (Supp. 2010).
¶ 11 Mother's contested severance hearing was held in June 2010. At the outset, ADES withdrew its request for termination under A.R.S. § 8-533(B)(8)(a) (nine months time in care). After taking the matter under advisement, the juvenile court granted the motion, finding that ADES had proven all three statutory grounds by clear and convincing evidence. The court also determined that ADES had proven by clear and convincing evidence that "given Mother's condition, it would be futile to continue to offer rehabilitative services to Mother to promote reunification," and that even if it were not futile, ADES had made diligent efforts to provide appropriate services for the Mother and the child. Mother timely appealed.
¶ 12 To justify termination of Mother's parental rights, the juvenile court was required to find the existence of at least one statutory ground by clear and convincing evidence.
¶ 13 We view the evidence in a severance case in the light most favorable to sustaining the juvenile court's findings. Ariz. Dep't of Econ. Sec. v. Matthew L., 223 Ariz. 547, 549, ¶ 7, 225 P.3d 604, 606 (App. 2010). The juvenile court is in the best position to weigh the evidence, observe the parties, judge the credibility of witnesses, and make appropriate findings. Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, 280, ¶ 4, 53 P.3d 203, 205 (App.2002). We accept the juvenile court's findings of fact unless no reasonable evidence supports them. Id.
¶ 14 Mother argues that the juvenile court erred in finding that ADES made reasonable efforts to provide appropriate services to Mother to allow reunification.
¶ 15 ADES is not required, however, "to provide every conceivable service or to ensure that a parent participates in each service it offers." Maricopa Cnty. Juv. Action No. JS-501904, 180 Ariz. at 353, 884 P.2d at 239. It is not required to provide services that are futile, Mary Lou C. v. Ariz. Dep't of Econ. Sec., 207 Ariz. 43, 50, ¶ 18, 83 P.3d 43, 50 (App.2004), and need only "undertake measures with a reasonable prospect of success." Mary Ellen C., 193 Ariz. at 192, ¶ 34, 971 P.2d at 1053. Assuming, without deciding, that ADES failed to make diligent efforts to provide sufficient reunification services,
¶ 16 At the severance hearing, Thal's testimony was consistent with his written report. He explained that he had diagnosed Mother with an unspecified mood disorder based on reviewing previous test results, descriptions from the group home, and other settings, but he stopped short of diagnosing Mother as bipolar.
¶ 17 Thal opined further that the child would be at risk under Mother's care because of her intellectual limitations, noting that "learning and forgetting are going to be the major obstacles for her." He testified that even if Mother's mood disorder was treated with medication, and she was participating in counseling, he would still have concerns about her ability to parent because the mental deficiency would not go away. Ultimately, Dr. Thal stated that it was "highly unlikely that [Mother] could function autonomously and independently as a full time caregiver to a young child" and he did not believe that she would ever be able to do so.
¶ 18 On cross-examination, Thal acknowledged that some people with mental retardation and a diagnosis similar to Mother's "are able to effectively parent their child" and that certain services such as job training and individual therapy would help under those circumstances. Thal further testified that Mother's ability to function and adapt might be improved, and that she would be able to learn better through some means rather than others. Thal also acknowledged that Mother may be capable of assisting someone to parent. However, he did not believe "those efforts would result in her being a capable and competent parent in the foreseeable future, but at least in theory there are things that certainly would help."
¶ 19 Thal also recognized that his evaluation of Mother had occurred fifteen months prior to the severance hearing, and that it "might have been helpful" to have re-evaluated Mother near the time of the hearing to assess whether the services provided actually addressed his concerns. He added: "I would have been happy to try to look at that. I mean, I think it's pretty obvious from the reports. This is an awfully pessimistic report."
¶ 20 Viewing the evidence in a light most favorable to sustaining the juvenile court, we conclude that the record supports the court's finding that continuation of reunification efforts would have been futile. See Vanessa H. v. Ariz. Dep't of Econ. Sec., 215 Ariz. 252, 256, ¶ 20, 159 P.3d 562, 566 (App.2007) (finding that reunification services on behalf of the mother would have been futile based on "abundant evidence showing that no amount of `reasonable efforts' in providing services would have enabled [her] to function as a minimally adequate parent"); Pima Cnty. Severance Action No. S-2397, 161 Ariz. 574, 577, 780 P.2d 407, 410 (App.1989) (severance on grounds of mental illness upheld where evidence established "that no other services could be offered that had not already been offered that might preserve the family"); In re Maricopa Cnty. Juv. Action No. JS-5209 & No. JS-4963, 143 Ariz. 178, 189, 692 P.2d 1027, 1038 (App.1984) (recognizing the duty of ADES to attempt to preserve the family does not go so far as to "require it to undertake efforts which are futile").
¶ 21 In supplemental briefing,
¶ 22 Section 8-846 provides in pertinent part as follows:
A.R.S. § 8-846(A), (B)(1)(b) (emphasis added).
¶ 23 Rule 57 imposes similar obligations on ADES and the juvenile court:
Ariz. R.P. Juv. Ct. 57. Because Mother did not ask the juvenile court to conduct a hearing to determine whether ADES could suspend services or refrain from providing them, she has waived the argument absent fundamental error. See Monica C. v. Ariz. Dep't of Econ. Sec., 211 Ariz. 89, 94, ¶ 22-23, 118 P.3d 37, 42 (App.2005).
¶ 24 We find no error, much less fundamental error. Although ADES did not provide all of the services that Mother now contends should have been given, it is undisputed that ADES provided at least some services to Mother throughout the dependency and the termination proceedings. The juvenile court recognized as much each time it made a finding that ADES had made diligent efforts to provide reunification services.
¶ 25 We recognize, based on the plain language of § 8-846 and Rule 57, that in cases to which those provisions apply, ADES should not suspend services or refrain from offering them before the court changes the case plan to severance and adoption. In our view, the purpose behind these two provisions is to encourage ADES to seek a determination on futility when it appears that reunification services will no longer assist the parent. See Mary Ellen C., 193 Ariz. at 191, ¶ 31, 971 P.2d at 1052 (noting that services must be provided before ADES seeks to terminate the parent-child relationship on mental illness grounds). Thus, when applicable under § 8-846, if ADES intends to stop providing reunification services, it is then obligated to bring the issue to the attention of the juvenile court to permit the parents to be heard on the matter. But nothing in the statute or rule requires ADES to request such a hearing if it intends to continue to provide services, as was the case here. Nor does any language in § 8-846 or Rule 57 suggest that the juvenile court is prohibited from making a determination after the severance hearing that additional services would have been futile.
¶ 26 Mother also argues that the juvenile court erred in concluding severance was in the child's best interests. To establish that severance of a parent's rights would be in a child's best interests, "the court must find either that the child will benefit from termination of the relationship or that the child would be harmed by continuation of the
¶ 27 Mother acknowledges that the child's needs are being met by the out-of-home placement, but asserts generally that termination of her rights "may pose a long term psychological effect on the child." The record reflects otherwise. At the time of the severance hearing, the child had been living in foster care for eighteen months. A case manager testified that severance would offer the child a stable environment and the child's current placement was willing to adopt. ADES also presented evidence of potential harm to the child if Mother's parental rights were not terminated. Thal opined that in that event, the child would be at risk for physical and emotional abuse. He testified that Mother's mental condition would affect her ability to parent the child, not in an emotional sense, but in a "wide ranging number of activities where parents have to remember, learn, think, and problem solve." He then noted his concerns about Mother's ability to provide "daily care" such as properly administering medicine, reading a thermometer, understanding good nutrition, and helping to stimulate the child to help him learn and develop language skills. He also explained that if Mother declined to take her prescribed medicine,
¶ 28 Based on the foregoing, we affirm the juvenile court's order terminating Mother's parental rights.
CONCURRING: DIANE M. JOHNSEN, Presiding Judge, and JOHN C. GEMMILL, Judge.