Lashonda M. v. Arizona Dept. of Economic SEC.

107 P.3d 923, 210 Ariz. 54
CourtCourt of Appeals of Arizona
DecidedMarch 1, 2005
Docket2 CA-JV 2004-0022
StatusPublished
Cited by1 cases

This text of 107 P.3d 923 (Lashonda M. v. Arizona Dept. of Economic SEC.) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lashonda M. v. Arizona Dept. of Economic SEC., 107 P.3d 923, 210 Ariz. 54 (Ark. Ct. App. 2005).

Opinion

107 P.3d 923 (2005)
210 Ariz. 54

LASHONDA M., Appellant,
v.
ARIZONA DEPARTMENT OF ECONOMIC SECURITY and Elijah M., Appellees.

No. 2 CA-JV 2004-0022.

Court of Appeals of Arizona, Division 2, Department A.

January 27, 2005.
Redesignated as Opinion March 1, 2005.

*925 Curtis & Cunningham, by George Haskel Curtis, Tucson, for Appellant.

Terry Goddard, Arizona Attorney General, by Dawn R. Williams, Tucson, for Appellee Arizona Department of Economic Security.

OPINION

BRAMMER, J.

¶ 1 Appellant Lashonda M., born September 13, 1987, appeals from the juvenile court's order of March 16, 2004, terminating her parental rights to her son, Elijah M., born November 26, 2001.[1] The court entered its order following a four-day jury trial at which the jury found by clear and convincing evidence that severance was warranted on the dual grounds of neglect, A.R.S. § 8-533(B)(2), and length of time in a court-ordered, out-of-home placement, § 8-533(B)(8)(a). The juvenile court denied a motion for new trial, and Lashonda now raises on appeal the same five issues she unsuccessfully urged in her motion.

Background

¶ 2 Lashonda gave birth to Elijah ten weeks after her fourteenth birthday. She initially, but inaccurately, identified the baby's father as Quintin R., the forty-year-old boyfriend or former boyfriend of Lashonda's mother.[2] A Child Protective Services (CPS) investigator testified that Quintin had molested Lashonda when the family lived in Texas and that Texas authorities had sought to prevent any further contact between Quintin and Lashonda's mother. The family then moved from Texas to Arizona, where Quintin remained involved with Lashonda's mother and the family.

¶ 3 Lashonda came to the attention of CPS in Arizona briefly in April 2001, soon after the family arrived from Texas.[3] Later, CPS *926 received another report about Lashonda in 2002, when Elijah was ten months old. Lashonda reported being distressed by Quintin's continued, frequent presence in her mother's life, and Lashonda's mother asked to have Lashonda removed from the home because of stress and conflict between them. In September 2002, the Arizona Department of Economic Security (ADES) filed roughly simultaneous petitions alleging that both Lashonda and Elijah were dependent children. Elijah was adjudicated dependent on October 4, 2002, and ADES filed its motion to terminate parental rights thirteen months later.

¶ 4 In the interim, Elijah and Lashonda had moved through a succession of placements. They were initially placed together in a group home for teenaged mothers, but Lashonda's noncompliant and irresponsible behavior led ADES to remove Elijah from her custody in January 2003. Elijah was placed in two successive foster homes followed by a group home where he remained as ADES attempted to find a permanent, adoptive home for him. The ongoing caseworker testified that, since the inception of this dependency action, Lashonda had been placed in nine different group homes, some more than once, and had run away, either from school or from her placement, more than forty times. Lashonda had been offered an array of services and had participated to some extent in many of them, but she was never more than partially compliant with her case plan. Her frequent running away, the case manager wrote, had "prevented her from moving forward and making progress."

¶ 5 By its verdict, the jury found Lashonda had neglected Elijah and had substantially neglected or willfully refused to remedy the circumstances that had caused him to be in an out-of-home placement, despite diligent efforts by CPS to provide appropriate reunification services. Additionally, the jury found specifically that terminating Lashonda's parental rights was in Elijah's best interest.

Legal Issues

¶ 6 Lashonda first contends the juvenile court erred by refusing to give the following three jury instructions she had requested:

The right to the custody and control of one's child is a fundamental constitutional right that does not evaporate simply because the natural parents have not been model parents or have lost temporary custody of their child to the State.
Termination of the parent-child relationship should not be considered a panac [e]a but should be resorted to only when concerted efforts to preserve the relationship fail.
Termination of parental rights is not a favored result and should be considered only as a last resort.

¶ 7 We review a trial court's refusal to give a jury instruction for an abuse of the court's discretion "and will reverse only if the instructions, taken as a whole, misled the jurors." State v. Petrak, 198 Ariz. 260, ¶ 9, 8 P.3d 1174, 1178 (App.2000).[4] On review we consider jury instructions in their entirety and will not find error if the trial court has "refuse[d] to give a requested instruction that is covered adequately by the given instructions." Haynes v. Syntek Fin. Corp., 184 Ariz. 332, 341, 909 P.2d 399, 408 (App.1995). "In determining whether the instructions given were correct, the test is whether, considering the instructions as a whole, the jury was properly guided in arriving at a correct decision." Pima County v. Gonzalez, 193 Ariz. 18, ¶ 7, 969 P.2d 183, 185 (App.1998). That test was met in this case.

¶ 8 Although Lashonda's requested instructions are correct statements of law from appellate decisions, we find no abuse of discretion in the juvenile court's refusal to give them. The court properly instructed the jury on each element of the statutory grounds alleged for termination, on the correct standard of proof, and on the meaning of pertinent terms including neglect, clear and *927 convincing evidence, and diligent effort to provide reunification services. The refused instructions were correct but unnecessary statements of law, providing broader, contextual information that arguably had already been legislatively factored into the higher standard of proof required to terminate a parent's rights. "Every correct statement of law from appellate decisions need not be included in an instruction so long as the instruction accurately communicates the law." State v. Rosas-Hernandez, 202 Ariz. 212, ¶ 35, 42 P.3d 1177, 1185 (App.2002). "The test is whether the instructions, viewed in their entirety, adequately set forth the law applicable to the case." Id. ¶ 31, 42 P.3d at 1185. Because the juvenile court's instructions to the jury did so in this case, we find no abuse of its discretion in refusing to give the three instructions at issue.

¶ 9 Second, Lashonda contends the court did not properly instruct the jury on the meaning of neglect for purposes of § 8-533(B)(2). She argues the juvenile court should have given her proposed instruction, drawn from language in In re Pima County Juvenile Action No. S-111, 25 Ariz.App. 380, 543 P.2d 809 (1975), stating that terminating parental rights on the basis of neglect requires a showing of "serious harm to the child, be it physical, mental or `moral.'" Id. at 390, 543 P.2d at 819.

¶ 10 At the time Pima County No.

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107 P.3d 923, 210 Ariz. 54, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lashonda-m-v-arizona-dept-of-economic-sec-arizctapp-2005.