Charlotte G. v. Dcs

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

CHARLOTTE G., Appellant,

v.

DEPARTMENT OF CHILD SAFETY, B.G., W.G., Appellees.

No. 1 CA-JV 14-0102
FILED 12-18-2014

Appeal from the Superior Court in Maricopa County
No. JD21348
The Honorable Susanna C. Pineda, Judge
The Honorable Roland J. Steinle, III, Judge

AFFIRMED

COUNSEL

John L. Popliek, P.C., Scottsdale
By John L. Popilek
Counsel for Appellant

Arizona Attorney General’s Office, Phoenix
By JoAnn Falgout
Counsel for Appellee Department of Child Safety
 CHARLOTTE G. v. DCS, et al.
Decision of the Court

MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Patricia K. Norris and Judge John C. Gemmill joined.

W I N T H R O P, Judge:

¶1 Charlotte G. (“Mother”) appeals the juvenile court’s order
terminating her parental rights to B.G. and W.G. (collectively, “the
children”). The children are members of the Gila River Indian Community
(“Tribe”).1 On appeal, Mother does not contest that the statutory grounds
for severance were proven, that there was a substantial likelihood that she
would not be capable in the near future of exercising proper and effective
parental care and control, and that severance of the relationship was in the
best interests of the children. Mother contends, however, that the juvenile
court erred in terminating her parental rights because the State failed to
prove additional elements necessary to terminate a parent-child
relationship under the Indian Child Welfare Act (“ICWA”). For the
following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Mother is the biological parent of B.G. and W.G. The natural
father of the children is deceased. In June 2011, the children found Mother
extremely intoxicated and unresponsive and called 911. The Arizona
Department of Economic Security (“ADES”) was notified and Mother
subsequently agreed to participate in substance abuse classes through
Native American Connections.2 Mother did not participate in these
services. ADES filed a dependency petition in January 2012 alleging
Mother neglected the children due to her substance abuse. The children

1 Mother is a member of the Navajo Nation. Prior to his death, Father
was a member of the Gila River Indian Tribe.

2 In May 2014, Child Protective Services (“CPS”) was replaced by the
Department of Child Safety (“DCS”), an entity outside of ADES. In its
answering brief, DCS refers to the parties as they existed at the time of the
proceedings, and so do we.

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were removed from Mother’s custody and initially placed with maternal
grandmother. The juvenile court found the children dependent as to
Mother in May 2012 and approved a case plan for family reunification.
ADES offered Mother several services including substance abuse testing
and treatment, parenting classes, parenting aide services, and a
psychological evaluation. In September 2012, the children were placed in
paternal grandmother’s custody.3

¶3 From December 2012 to October 2013, during four separate
report and review hearings, the juvenile court found ADES was making
active efforts to reunify the family. At the same time, however, the juvenile
court noted that Mother was failing to cooperate with TASC and TERROS
and repeatedly found that returning custody of the children to Mother
without modification of Mother’s behaviors was likely to result in serious
emotional and physical danger to the children. Nevertheless, the juvenile
court in March of 2013 granted Mother a six-month extension to participate
and comply with the continuing active efforts by ADES for reunification of
the family.4

¶4 In October 2013, the juvenile court changed the case plan to
severance and adoption. ADES filed a motion for termination of the parent-
child relationship, alleging two specific grounds. First, ADES asserted
Mother was unable to discharge her parental responsibilities because of a
history of controlled substances and/or alcohol abuse and there were
reasonable grounds to believe the condition will continue for a prolonged
indeterminate period. See Ariz. Rev. Stat. (“A.R.S.”) § 8-533(B)(3).5 Next,
ADES alleged the children had been in an out-of-home placement for a
cumulative total period of fifteen months or longer, pursuant to a court
order. See id. at § 8-533(B)(8)(c). ADES also alleged the best interests of the
children would be served by terminating the parent-child relationship. See
id. at § 8-533(B).

3 Paternal grandmother meets the placement preferences under
ICWA.

4 From December 2012 to October 2013, Mother completed
approximately 28% of her required TASC urinalysis testing.

5 We cite the current version of the statutes if no revisions material to
our decision have occurred since the relevant dates.

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 CHARLOTTE G. v. DCS, et al.
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¶5 The juvenile court conducted a termination hearing in March
2014, during which Mother, two caseworkers from CPS, and one
caseworker from the Tribe testified. Mother testified she began drinking at
age 14, stating that the current period of sobriety stemming from her then
current inpatient treatment was the longest period she had been sober aside
from her pregnancies. Mother also admitted to using methamphetamine in
2010, but maternal grandmother’s early intervention led Mother to enter an
inpatient program. Mother explained she relapsed with alcohol in June
2011, which prompted ADES’ involvement and attempts to engage Mother
in services. Mother testified that over the course of approximately two
years, she successfully completed two inpatient programs, but failed to
engage in either aftercare program, and subsequently relapsed each time.
In early 2013, TERROS assisted Mother in finding another inpatient
treatment facility, but she failed to attend four separate scheduled intakes
at such facility. At the time of the hearing, Mother was receiving inpatient
treatment at a tribal community-based treatment facility.

¶6 The tribal caseworker testified that, because Mother was now
in a tribal community-based treatment program, the Tribe was, pending
completion of that treatment and successful completion of some after-care
program, no longer in favor of severance and adoption. The tribal
caseworker agreed, however, that returning custody of the children to
Mother at this time would likely result in serious emotional or physical
damage to the children. In addition, the tribal caseworker agreed that
ADES had previously made active efforts “[at] giving Mo[ther] the help that
she needed, specifically inpatient treatment.” The tribal caseworker stated
she assisted Mother in entering Mother’s then current inpatient program
located on the reservation because the tribal caseworker had “close
connections” with this facility. According to the tribal caseworker, CPS did
not assist her in this placement effort.

¶7 A CPS supervisor for the ICWA unit testified that ADES
offered Mother several services, including substance abuse treatment with
TERROS, urinalysis testing with TASC, and inpatient referrals for
substance abuse treatment facilities. The CPS ICWA supervisor further
testified regarding Mother’s failure to engage in offered services, including
Mother’s failure to participate in TERROS referrals and her “sporadic”
testing at TASC. The CPS ICWA supervisor testified that ADES made
active efforts under ICWA and that returning custody of the children to
Mother would likely result in serious emotional or physical damage to the
children.

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 CHARLOTTE G. v. DCS, et al.
Decision of the Court

¶8 The CPS case manager assigned to Mother’s case beginning
in June 2013 testified that Mother was unable to discharge her parental
responsibilities due to her chronic abuse of drugs and alcohol and this
condition was likely to continue for an indeterminate period of time. Based
on Mother’s failure to maintain sobriety or participate in ADES’ offered
programs, the CPS case manager opined that Mother had failed to remedy
the circumstances causing out-of-home placement and was not capable of
exercising care and control of the children. The juvenile court terminated
Mother’s parental rights on April 10, 2014.6 Mother timely appealed. We
have appellate jurisdiction pursuant to the Arizona Constitution, Article 6,
Section 9; A.R.S. § 8-235(A); and Rule 103(A) of the Arizona Rules of
Procedure for the Juvenile Court.

ANALYSIS

¶9 On appeal, Mother raises several issues regarding ADES’
alleged failure to prove the necessary elements to terminate a parent-child
relationship under ICWA. Specifically, Mother argues (1) the juvenile court
erred in holding the State had by clear and convincing evidence proved it
made active efforts to maintain and restore the Indian family unit; (2) the
juvenile court erred in holding that the State proved beyond a reasonable
doubt that continued custody of the children by the parent or Indian
custodian is likely to result in serious emotional or physical damage to the
children; (3) the State did not prove the likely serious emotional or physical
damage to the children though the testimony of a “qualified expert;” (4) the
juvenile court erred as a matter of law in relying upon pronouncements by
the children’s paternal grandmother (the current placement) that she would
accept only “severance and adoption” and not guardianship as a remedy in
this matter. This court will not substitute our opinion for that of the juvenile
court unless the juvenile court’s findings are clearly erroneous. Pima Cnty.
Dependency Action No. 93511, 154 Ariz. 543, 545, 744 P.2d 455, 457 (App.
1987) (citation omitted).

I. The juvenile court did not err in finding ADES proved it made active
efforts to maintain and restore the family unit.

¶10 Mother contends ADES failed to make “active efforts” for
reunification. We disagree. On appeal, Mother argues “active efforts,” as

6 The juvenile court found by clear and convincing evidence that
Mother was unable to discharge her parental responsibilities under A.R.S.
§ 8-533(B)(3). This was the sole basis for terminating Mother’s parental
rights.

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required by ICWA, require more than “reasonable efforts.” Mother
supports this contention by citing other jurisdictions that have found
“active efforts” to be a higher standard than “reasonable efforts.” Mother
further asserts that ADES “did little more than make its ‘usual’ substance
abuse referrals (i.e., TERROS), and did little to nothing to find a competent
inpatient treatment program for Mother.” Despite Mother’s contentions,
the juvenile court specifically found on several occasions that ADES had
made active efforts as required under ICWA, “including providing Mother
detoxification programs, in-patient programs, and repeatedly offering
aftercare substance abuse programs.” On this record, we see no reason to
further parse the meaning of “active efforts” when the juvenile court
specifically found that ADES had met this standard in the present case.

¶11 The record demonstrates the juvenile court had ample
evidence to substantiate its finding, including testimony from the CPS
ICWA supervisor, the CPS caseworker, and Mother regarding Mother’s
failure to meaningfully participate in services and to maintain sobriety.

¶12 Mother alleges ADES failed to engage in active efforts when
it failed to find her appropriate inpatient treatment, leaving it to the tribal
caseworker to find the latest inpatient program for Mother. In this regard,
the tribal caseworker testified that getting Mother admitted to the inpatient
program on the reservation was due to the caseworker’s “close
connections” to that inpatient unit. The tribal caseworker’s assistance in
finding another inpatient program for Mother does not diminish ADES’
active efforts to engage Mother in services, including ADES’ scheduling of
four separate intakes to another inpatient facility, all of which Mother failed
to attend. See Yvonne L. v. Ariz. Dep’t of Econ. Sec., 227 Ariz. 415, 423, ¶ 34,
258 P.3d 233, 241 (App. 2011) (stating “neither ICWA nor Arizona law
mandates that ADES provide every imaginable service or program
designed to prevent the breakup of the Indian family before the court may
find that ‘active efforts’ took place”). Accordingly, the juvenile court did
not abuse its discretion when it found ADES had made active efforts at
reunification as required under ICWA.

II. The juvenile court did not err in finding ADES proved beyond a
reasonable doubt, through the testimony of a “qualified expert,” that
continued custody of the children by Mother is likely to result in serious
emotional or physical damage to the children.

¶13 Mother first argues ADES failed to provide sufficient
foundation for the testimony of any expert; therefore, the opinion testimony
of the various caseworkers, as described above, must be disregarded.

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 CHARLOTTE G. v. DCS, et al.
Decision of the Court

During the termination hearing, however, Mother did not object to any
opinion testimony given by CPS’ two caseworkers or the Tribe’s
caseworker. Accordingly, Mother has waived this issue on appeal. See
Estate of Reinen v. N. Arizona Orthopedics, Ltd., 198 Ariz. 283, 286, ¶ 9, 9 P.3d
314, 317 (2000) (stating “[a]n objection to proffered testimony must be made
either prior to or at the time it is given, and failure to do so constitutes a
waiver”). To the extent Mother argues the tribal caseworker and CPS
caseworkers do not qualify as experts, we find that all three caseworkers
qualify as expert witnesses as required under ICWA.

¶14 An individual may qualify as an expert witness regardless of
whether that individual has expertise with Indian children. Rachelle S. v.
Ariz. Dep’t of Econ. Sec., 191 Ariz. 518, 520, ¶ 11, 958 P.2d 459, 461 (App.
1998). In an effort to assist state courts in interpreting ICWA, the United
States Department of the Interior Bureau of Indian Affairs issued a set of
guidelines. Guidelines for State Courts; Indian Child Custody Proceedings
(“Guidelines”), 44 Fed. Reg. 67,584 (Dep’t of Interior Nov. 26, 1979).7
Arizona courts have previously relied on these Guidelines when
interpreting sections of ICWA. Rachelle S., 191 Ariz. at 520, ¶ 12, 958 P.2d
at 461. Section D.4 entitled “Qualified Expert Witnesses” states in relevant
part:

(b) Persons with the following
characteristics are most likely to meet the
requirements for a qualified expert witness for
purposes of Indian child custody proceedings:
(i) A member of the Indian child’s
tribe who is recognized by the tribal community
as knowledgeable in tribal customs as they
pertain to family organization and childrearing
practices.
(ii) A lay expert witness having
substantial experience in the delivery of child
and family services to Indians, and extensive
knowledge of prevailing social and cultural
standards and childrearing practices within the
Indian child’s tribe.
(iii) A professional person having
substantial education and experience in the area
of his or her specialty.
Guidelines, 44 Fed. Reg. 67,584.

7 The Guidelines have not been revised.

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 CHARLOTTE G. v. DCS, et al.
Decision of the Court

¶15 In the present case, the CPS ICWA caseworker had substantial
education and experience to qualify as an expert witness under the
Guidelines, including 20 years’ experience with ADES, two of those as the
ICWA unit supervisor, and a bachelor’s and master’s degree. Next, the CPS
case manager had 18 months experience at CPS, managed over 20 ICWA
cases, and had offered similar opinion testimony at three prior severance
trials for ICWA cases. We find this experience, coupled with his bachelor’s
degree and then current enrollment in a master’s degree program, qualified
the CPS case manager as an expert witness. Last, the tribal caseworker
qualified as an expert witness due to her membership in the children’s tribe,
the Gila River Indian Community.8 The Tribe’s caseworker’s testimony
fairly indicates that she is a member of the Tribe. Accordingly, even had
Mother preserved an objection as to foundation, the juvenile court did not
err when it considered the testimony of the CPS caseworker, the CPS ICWA
supervisor, and the Tribe’s caseworker, as each of these individuals
constitutes a “qualified expert” under ICWA.9

¶16 Mother next contends the juvenile court’s “single finding”
that Mother’s custody of the children would result in serious emotional or
physical harm not only misstates the testimony of Tribe’s caseworker, but
also fails to establish proof of such potential harm beyond a reasonable
doubt. Here, Mother’s assertion is unfounded, as nothing in the record
demonstrates the juvenile court only considered the testimony of the Tribe’s
caseworker. In addition, the juvenile court made several relevant findings
that substantiate its ruling. First, the juvenile court stated “[t]he tribe
opined that to return the children to Mother would cause a substantial risk
of emotional or physical harm because Mother has a history of relapse.”
Next, the juvenile court expressly found “beyond a reasonable doubt that
return of the children to Mother would likely [] cause both physical and
emotional harm to the children.”10 Nothing in the record indicates that the
juvenile court improperly or solely relied on the Tribe’s caseworker’s

8 Mother did not contend at trial and does not argue on appeal that
the Tribe’s caseworker is not a member of the Tribe.

9 All three caseworkers testified that returning custody of the children
to Mother at the time of the hearing would place them at risk of serious
emotional or physical harm.

10 The juvenile court reasoned that Mother is a lifetime alcoholic who
fails to maintain sobriety, despite numerous opportunities to do so. In
addition, the juvenile court reiterated that Mother cannot provide the basic
needs of the children, including food, clothing, and housing.

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 CHARLOTTE G. v. DCS, et al.
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testimony. Mother’s reliance on selected portions of this caseworker’s
testimony misstates the overall context of her testimony, as she ultimately
agreed that Mother is not currently able to safely parent the children. It is
clear from this record that the juvenile court acted well within its discretion
in finding that the children would likely be harmed if returned to Mother’s
custody.

III. The juvenile court did not rely upon pronouncements made by the
children’s paternal grandmother when it terminated Mother’s parental
rights.

¶17 Mother contends the juvenile court relied on statements made
by the children’s paternal grandmother that she would not be willing to
serve as the children’s guardian and would agree to further participate only
if the case plan was for adoption. In support of her argument, Mother cites
the juvenile court’s factual statement in its minute entry ruling that
“[p]aternal grandmother does not wish to be the guardian of the children;
however, she is willing to adopt the children.” Despite Mother’s assertion,
we find nothing in the record that demonstrates the juvenile court relied on
grandmother’s statements in deciding to terminate Mother’s parental
rights; instead, the only relevant finding made with regard to placement
states: “[t]he children are doing well in their current placement with
Paternal Grandmother. They are flourishing in their current environment.
The placement is also ICWA compliant.” We find no error as this is an
appropriate finding for the juvenile court to make during termination
proceedings.

CONCLUSION

¶18 For the foregoing reasons, we affirm.

:gsh

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