Opinion
2 CA-JV 2023-0154
05-10-2024
In re Termination of Parental Rights as to L.G.,
E.M. Hale Law, Lakeside By Elizabeth M. Hale Counsel for Appellant Kristin K. Mayes, Arizona Attorney General By Autumn Spritzer, Assistant Attorney General, Tucson Counsel for Appellee Department of Child Safety
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pinal County No. S1100JD201800284 The Honorable Delia R. Neal, Judge
E.M. Hale Law, Lakeside By Elizabeth M. Hale Counsel for Appellant
Kristin K. Mayes, Arizona Attorney General By Autumn Spritzer, Assistant Attorney General, Tucson Counsel for Appellee Department of Child Safety
Vice Chief Judge Staring authored the decision of the Court, in which Judge Sklar and Judge O'Neil concurred.
MEMORANDUM DECISION
STARING, Vice Chief Judge:
¶ 1 Appellant Tyler K. challenges the juvenile court's order filed December 14, 2023, terminating his parental rights to his son, L.G., born February 2020, on the grounds of abuse of another child, mental illness or mental deficiency, and L.G. having been in court-ordered, out-of-home placement for fifteen months or more. See A.R.S. § 8-533(B)(2), (3), (8)(c). On appeal, Tyler challenges the sufficiency of the evidence to sustain the abuse ground; contends the Department of Child Safety (DCS) "failed to make reasonable efforts to preserve the family relationship," making severance on mental-illness grounds improper; and argues that because "evidence showed that [he] was making progress in his therapy," severance on time-in-care grounds was inappropriate as well. We affirm.
¶ 2 Before it may terminate a parent's rights, a juvenile court must find by clear and convincing evidence that at least one statutory ground for severance exists and must find by a preponderance of the evidence that terminating the parent's rights is in the best interests of the child. See A.R.S. §§ 8-533(B), 8-537(B); Kent K. v. Bobby M., 210 Ariz. 279, ¶ 41 (2005). We will affirm an order terminating parental rights unless we must say as a matter of law that no reasonable person could find those essential elements proven by the applicable evidentiary standard. Denise R. v. Ariz. Dep't of Econ. Sec., 221 Ariz. 92, ¶ 10 (App. 2009).
¶ 3 We view the evidence in the light most favorable to upholding the juvenile court's order. Manuel M. v. Ariz. Dep't of Econ. Sec., 218 Ariz. 205, ¶ 2 (App. 2008). In May 2018, DCS received a report that Tyler had abused one of his girlfriend's children. Tyler pled guilty to one count of child abuse, but no dependency proceeding was started because his girlfriend, Lisa, asked him to leave the home. He later moved back in with Lisa, and another of her children was found with bruising. The children were removed, and DCS began reunification services for Tyler and Lisa. A psychological evaluation by Dr. Carlos Vega showed that Tyler had a "general personality disorder with salient paranoid and passive aggressive characteristics"; "display[ed] substantial impairment of empathy"; and was, as a result of these conditions and his "denial of his volatile disposition," not an "adequate parent."
¶ 4 DCS removed L.G. from Tyler's and Lisa's custody after his birth in February 2020 and adjudicated him dependent as to Tyler in March 2020. After a staffing with Tyler's therapist and parenting class coordinator, Dr. Vega concluded that continued services were "unlikely . . . [to] have a significant impact" on Tyler's attitude or behavior. Dr. Vega recommended that in any attempt for reunification with L.G., Tyler would need a "Master's/Doctorate level clinician" to treat him and that his existing parenting class coordinator would need to be replaced. DCS attempted to provide therapeutic visitation, but it could not find a provider to replace the parenting class coordinator who had previously overseen the visitation. Tyler was, however, referred for individual and couples counseling as recommended.
¶ 5 In April 2021, Dr. James Thal completed another psychological evaluation. Dr. Thal diagnosed Tyler with an unspecified personality disorder with grandiose, borderline, and schizoid features. He also opined that there was a "poor" prognosis that Tyler would "demonstrate the ability to safely parent a child in the indeterminate future" due to his "lack of remorse, failure to accept responsibility, and the severity of his psychological issues." Over the following year, Tyler was aggressive and threatening toward providers, and they refused to treat him.
¶ 6 In August 2022, Tyler began therapy with Derek Lofgreen, a licensed professional counselor, with whom Tyler made some progress in "articulating how to protect a child" and gaining "insight." Dr. Thal, however, again evaluated Tyler in August 2023, and concluded that due to "[t]he persisting and pervasive nature" of Tyler's psychological issues, he was "incapable of providing a consistent, safe, secure, and nurturing environment for a child."
¶ 7 DCS filed a motion to terminate Tyler's parental rights to L.G. After a contested severance hearing in October 2023, the juvenile court determined DCS had established the grounds of abuse of another child, mental illness or mental deficiency, and L.G. having been in court-ordered, out-of-home placement for fifteen months or more. It also concluded that severance was in L.G.'s best interests.
¶ 8 On appeal, Tyler first argues there was insufficient evidence to support the juvenile court's determination that DCS had proven termination of his parental rights to L.G. was appropriate based on his abuse of another child. Under § 8-533(B)(2), a court may extrapolate parental unfitness based on abuse of another child, so long as there is "a demonstrable connection between the ground for termination and the harm or risk of harm to a child." Sandra R. v. Dep't of Child Safety, 248 Ariz. 224, ¶¶ 23-24 (2020).
¶ 9 In finding the ground of abuse proven, the juvenile court cited Tyler's assault of Lisa's other child, which had resulted in a child abuse conviction. The court explained that although L.G. had not yet been born at the time of that abuse, Dr. Vega and Dr. Thal, who had performed psychological evaluations of Tyler, continued to have "significant concerns about his ability to safely parent any other child" due to his lack of "insight into his own behavior." Tyler points to contradictory testimony from Lofgreen that was more positive about his progress. But even Lofgreen acknowledged that if Tyler "were to have his child and engage in the level of conflict he currently engages in," it would "hav[e] an impact on abuse of the child." He further agreed that he could not "say without qualification that [Tyler] is able to safely parent at this moment." Rather, he explained that, taking an "optimistic and hopeful" view, Tyler could potentially parent safely in six to twelve months. As a whole, Tyler's argument on this point asks us to reweigh the evidence as to the risk of harm to L.G., which we will not do. See Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, ¶ 12 (App. 2002). We instead defer to the court's resolution of conflicting evidence as it is supported by the record. In re Pima Cnty. Adoption of B-6355 &H-533, 118 Ariz. 111, 115 (1978).
¶ 10 Tyler also maintains that because "DCS failed to make reasonable efforts to preserve" his relationship with L.G., severing his parental rights on mental-illness grounds violated his right to due process. Before severing parental rights on the ground of mental illness, DCS must make reasonable reunification efforts. See Mary Ellen C. v. Ariz. Dep't of Econ. Sec., 193 Ariz. 185, ¶ 33 (App. 1999). DCS is not, however, required to provide futile efforts, only those "with a reasonable prospect of success." Id. ¶ 34.
¶ 11 Tyler specifically contends DCS failed in its obligation to provide services because it did not follow through with Dr. Vega's recommendations. He asserts that Vega recommended therapeutic parenting sessions and "a doctorate level therapist," but DCS failed to provide visitation and sent him to Lofgreen for counseling. But, as the state points out, Vega was not generally favorable toward reunification because he believed it was unlikely that further services would create the behavioral change needed to allow Tyler to safely parent. Rather, Vega made recommendations because Tyler nonetheless would "be given the opportunity and services to try and make the necessary changes."
¶ 12 In that context, Dr. Vega recommended that someone other than the existing provider oversee therapeutic visitation. Vega also suggested that any provider of individual therapy should be "a Master's/Doctorate level clinician." DCS attempted to provide visitation, but no other provider was available. And, a number of providers refused services because, as Dr. Vega explained, Tyler had "not been able to cooperate and appropriately participate with any of the numerous providers assigned and the services provided." According to Vega's report, Tyler "made hateful remarks towards the professionals," including "wish[ing] harm and death would come to the children of the professional staff that was working with him." In view of this evidence on the record before us, we cannot say the juvenile court erred in determining DCS had provided reasonable reunification services.
Although Dr. Vega's report refers to both master and doctorate level providers, at trial the DCS case worker testified Vega had recommended doctorate level providers. As the state points out, and Tyler notes in his brief on appeal, Lofgreen was a "master's level" provider, and therefore arguably met Vega's recommendation.
¶ 13 Finally, Tyler contends the juvenile court "abused its discretion in severing [his] parental rights" on the ground that L.G. had been in court-ordered, out-of-home placement for fifteen months or more. He asserts that, contrary to the court's finding, he "was making progress in his therapy and would be able to parent in the near future." But this argument again asks us to reweigh the evidence presented to the court as to Tyler's parenting ability. Again, that is not our role; because reasonable evidence supports the court's findings, we accept them. See Jesus M., 203 Ariz. 278, ¶ 4. And we cannot say the court's ruling is clearly erroneous. See id.
¶14 For these reasons, and because Tyler does not otherwise challenge the trial court's conclusion that mental illness or mental deficiency provided an independent ground for termination, we affirm the juvenile court's order terminating Tyler's parental rights to L.G.