Opinion
No. 1 CA-JV 20-0092 No. 1 CA-JV 20-0099 (Consolidated)
04-01-2021
AMANDA A., Appellant, v. DEPARTMENT OF CHILD SAFETY, L.R., S.R., A.R. Appellees.
COUNSEL Maricopa County Legal Defender's Office, Phoenix By Jamie R. Heller Counsel for Appellant Arizona Attorney General's Office, Mesa By Eric Devany Counsel for Appellee DCS
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. JD531087
The Honorable Jeffrey A. Rueter, Judge
AFFIRMED
COUNSEL Maricopa County Legal Defender's Office, Phoenix
By Jamie R. Heller
Counsel for Appellant Arizona Attorney General's Office, Mesa
By Eric Devany
Counsel for Appellee DCS
MEMORANDUM DECISION
Judge David D. Weinzweig delivered the decision of the Court, in which Presiding Judge Samuel A. Thumma and Judge D. Steven Williams joined. WEINZWEIG, Judge:
¶1 Amanda A. ("Mother") appeals the superior court's order terminating her parental rights to L.R. and S.R., along with its finding that a third child, A.R., was dependent. Because reasonable evidence supports the superior court's decisions, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 Mother and Travious R. ("Father") are the biological parents of L.R., born in 2016, S.R., born in 2017, and A.R., born in 2019. L.R. has muscular dystrophy and other significant physical and developmental special needs. S.R. has severe asthma.
¶3 Mother, Father and L.R. moved from Texas to Arizona in early 2017. They were joined by Mother's two older children; S.R. and A.R. had not been born. The Texas Department of Family and Protective Services informed the Arizona Department of Child Safety ("DCS") about an open child-welfare case against Mother in Texas. Although no children had been removed from Mother's care, Texas officials cautioned that Mother sometimes left the children with Maternal Grandmother, who had pleaded guilty to criminal assault of Mother's older children, and that Mother struggled with substance abuse issues. Maternal Grandmother now lived in Arizona.
Father's parental rights to L.R., S.R. and A.R. have also been terminated. He is not a party to this appeal. --------
¶4 DCS investigated but found no evidence of abuse and closed the investigation. Even so, the investigator reported concern about the children's hygiene and that Mother had not yet found an Arizona neurologist for L.R., who also needed vaccines. Mother conceded the children needed new doctors in Arizona, but she had been putting it off. Maternal Grandmother was not present during the investigation.
¶5 S.R. was born "substance exposed to marijuana" in July 2017; Mother tested negative for drugs. DCS investigated and discovered that Maternal Grandmother lived with Mother and the children, and that Mother would leave Maternal Grandmother alone with the children. Maternal Grandmother tested positive for methamphetamine. DCS also learned that Mother had still not found a doctor for L.R.'s muscular dystrophy.
¶6 DCS removed L.R. and S.R. in August 2017 and petitioned the superior court to find them dependent based on neglect. Mother did not contest the dependency allegations. L.R. and S.R. were found dependent in June 2018. The superior court adopted a family reunification case plan and ordered that Mother receive various services, including hair follicle testing, random urine testing, substance abuse treatment, psychological and psychiatric evaluations, individual counseling, bonding and best-interest assessment, parent-aide services, supervised visits and transportation.
¶7 A clinical psychologist, Dr. Alan Silberman, then evaluated Mother. He concluded that Mother had a "[p]oor to cautious" chance of demonstrating adequate parenting skills in the near future, citing her long history with child-welfare agencies, poor judgment in selecting caretakers and dependence on Maternal Grandmother. Dr. Silberman was most concerned, however, about Mother's inattention to L.R.'s muscular dystrophy. For her part, Mother admitted the children had not seen a doctor since March 2017 and she was waiting for a referral. Dr. Silberman recommended that Mother receive counseling, drug testing and outpatient drug-treatment services.
¶8 DCS arranged for supervised visitation at Mother's home. The DCS representatives who observed the visits reported that Mother's home was unsanitary, pointing to "black [floors that] were supposed to be white," a pungent ammonia smell, dead roaches, unsafe chemicals near the food preparation area, soiled outfits and dirty blankets. They also noted that Mother did not intervene when S.R. placed small objects into her mouth. DCS suspended the in-home visits.
¶9 In August 2018, Dr. George Bluth performed a bonding and best-interest assessment. He concluded that L.R. and S.R. had "very little, if any, attachment" to Mother and "were minimally responsive to her direction." He also found that Mother "was only somewhat responsive to the children," while, by contrast, L.R. and S.R. appeared primarily attached to their foster mother. Dr. Bluth opined that L.R. and S.R. needed permanency and stability and that "given [their] special needs, they [were] going to need a more than minimally adequate parent to follow through with all of their needed appointments and the parent would need to be able to adhere to medical recommendations."
¶10 During a second round of parent-aide services, Mother improved her parenting skills and, by January 2019, she completed parent-aide services and was following medical instructions. She also attended individual counseling and progressed toward her treatment goals. Still, Mother continued to overlook L.R.'s serious medical problems. As one example, L.R.'s kidney was prone to urinary tract infections if he consumed sugary drinks, but Mother dismissed the concern as "ridiculous." Mother was also diagnosed with cannabis-use disorder, but successfully completed drug-treatment services and consistently passed drug tests.
¶11 A.R. was born in February 2019. DCS removed A.R. and petitioned for a dependency finding on the grounds of neglect, citing the condition of Mother's home and open dependency proceedings with her other children.
¶12 Two months later, Dr. Jessica Leclerc, a second psychologist, performed a second evaluation of Mother. Dr. Leclerc found that Mother "ha[d] been given reasonable service opportunities" and "successfully completed services," but concluded that Mother had "not demonstrated the ability to maintain implementation of [parenting] skills," and opined that "continued services would be futile because she ha[d] exhausted all services and continue[d] to make choices that place[d] her children at risk for severe medical neglect and neglect of their basic needs." Dr. Leclerc stressed Mother's "poor insight" into her children's needs and concluded that Mother's "ability to care for several children with significant medical and mental health issues remains a concern if her children were placed in her care," warning that Mother "may continue to minimize or not follow through due to personal choice or her dependent personality traits."
¶13 In April and May 2019, DCS moved to terminate Mother's parental rights to L.R. and S.R.
¶14 Over four days in February 2020, the superior court held a contested severance and dependency trial. The court then terminated Mother's parental rights to L.R. on the ground of neglect, A.R.S. § 8-533(B)(2), terminated her parental rights to both L.R. and S.R. on the ground of fifteen months in out-of-home placement, A.R.S. § 8-533(B)(8)(c), and found A.R. dependent as to Mother on the ground of neglect. The court also found that termination was in L.R.'s and S.R.'s best interests under A.R.S. § 8-533(B). Mother timely appealed. We have jurisdiction. A.R.S. §§ 8-235(A), 12-120.21, and -2101(A)(1).
DISCUSSION
I. L.R. and S.R.
¶15 Parents have a liberty interest in the "care, custody, and management" of their children, but this interest is not absolute. Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 24 (2005). To terminate parental rights, the superior court must find clear and convincing evidence of at least one statutory ground in A.R.S. § 8-533(B), and find that termination is in a child's best interests by a preponderance of the evidence, Jeffrey P. v. Dep't of Child Safety, 239 Ariz. 212, 213, ¶ 5 (App. 2016). We will accept the court's factual findings unless no reasonable evidence supports them and affirm a severance order unless it is clearly erroneous. Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, 280, ¶ 4 (App. 2002). We do not reweigh the evidence presented to the superior court. Maricopa Cty. Juv. Action No. JV-132905, 186 Ariz. 607, 609 (App. 1996).
¶16 The court found clear and convincing evidence to terminate Mother's parental rights over L.R. on the ground of neglect, see A.R.S. § 8-533(B)(2), citing Mother's "failing to understand [L.R.'s] medical needs and/or being able to implement knowledge she has learned regarding his medical needs." Neglect includes a parent's inability to provide for a child's special needs if that inability causes an unreasonable risk of harm to the child's health or welfare. A.R.S. § 8-201(25)(a).
¶17 The record contains ample evidence to support the court's finding. L.R. has special medical needs that require constant attention, and medical professionals questioned Mother's ability to meet L.R.'s heightened medical needs. L.R.'s kidney problems alone require a caretaker to catheterize him four times per day in a sterile environment. Mother did not believe she could perform the catheterization herself. L.R. also has unique dietary restrictions, which Mother dismissed. The record also shows that Mother attended only a handful of L.R.'s monthly appointments and questioned the advice of medical professionals.
¶18 The record also supports the best-interest finding. Termination is in a child's best interests if the child will benefit from severance or the child will be harmed if severance is denied. Jesus M., 203 Ariz. at 207, ¶ 14. The court heard testimony that the children had little attachment to Mother. Dominique M. v. Dep't of Child Safety, 240 Ariz. 96, 98, ¶ 12 (App. 2016) (holding that the bond between a biological parent and child is a factor to consider, though not dispositive). The court also heard testimony that the children were in a stable placement with a potential adoptive home. And again, the record showed that Mother was unable to meet L.R.'s extensive medical needs.
¶19 The court found clear and convincing evidence to terminate Mother's parental rights over S.R. based on fifteen months in out-of-home care, see A.R.S. § 8-533(B)(8)(c), which has four elements: (1) the child has been placed in out-of-home care for at least fifteen months, (2) DCS "has made a diligent effort to provide appropriate reunification services," (3) the parent has "been unable to remedy the circumstances that cause the child to be in an out-of-home placement," and (4) there is "substantial likelihood that the parent will not be capable of exercising proper and effective parental care and control in the near future."
¶20 Mother concedes that S.R. has been in an out-of-home placement for over fifteen months, but she claims that DCS failed to provide her with "appropriate reunification services regarding the children's medical and special needs." DCS must provide Mother with the "time and opportunity to participate in programs designed to help her become an effective parent." Maricopa Ct. Juv. Action No. JS-501904, 180 Ariz. 348, 353 (App. 1994).
¶21 The record contains reasonable evidence to support the court's finding. As explained above, DCS offered an array of services to Mother over an extended period. The evidence also showed that Mother refused to participate in the Cradles-to-Crayons program, which provided coaching on parenting children with special medical needs. Mother had little interest in or knowledge about the special needs of her children, resisted follow-up instructions regarding their special needs and rarely attended doctor appointments, even when she knew about them. Moreover, a psychologist concluded she "ha[d] been given reasonable service opportunities" and "successfully completed services," but had "not demonstrated the ability to maintain implementation of [parenting] skills," and opined that "continued services would be futile because she ha[d] exhausted all services and continue[d] to make choices that place[d] her children at risk for severe medical neglect and neglect of their basic needs."
¶22 Mother also contests whether she remedied the circumstances that caused the out-of-home placement and would be able to effectively parent in the near future. See A.R.S. § 8-533(B)(8)(c). Although a closer call than with L.R., the record contains reasonable evidence to support the superior court's findings. S.R. has special medical needs that require constant attention. For instance, S.R. has breathing equipment for her respiratory condition that requires regular cleaning, which Mother struggled with. More generally, Mother waited six months after moving to Arizona to obtain medical specialists for the children, she sporadically attended their monthly doctor's appointments and resisted the advice of medical professionals. A pair of psychologists also examined Mother. The first concluded that Mother's chances of demonstrating adequate parenting skills in the near future were "[p]oor to cautious," and raised serious concerns about Mother's inattentiveness to her children's medical needs. The second concluded that Mother had "not demonstrated the ability to maintain implementation of [parenting] skills."
¶23 The record also supports the court's best-interest finding. The court heard concerns about Mother leaving the children with Maternal Grandmother, who had plead guilty to assaulting one of Mother's older children. The record also included evidence that S.R. had little attachment to Mother, was primarily attached to his foster mother, and suffered from asthma when visiting Mother, possibly because of Mother's smoking. Mother has shown no error. See Alma S. v. Dep't of Child Safety, 245 Ariz. 146, 150, ¶ 7 (2018).
II. A.R.
¶24 The court found A.R. dependent as to Mother on the ground of neglect. We review the superior court's dependency order for an abuse of discretion, accepting its findings of fact unless clearly erroneous and affirming a dependency finding unless unsupported by reasonable evidence. Joelle M. v. Dep't of Child Safety, 245 Ariz. 525, 527, ¶ 9 (App. 2018). A child may be dependent because of a parent's neglect. A.R.S. § 8-201(15)(a)(iii). Neglect includes a parent's inability or unwillingness to supervise a child, causing an unreasonable risk of harm to the child's health or welfare. A.R.S. § 8-201(25)(a).
¶25 Reasonable evidence supports the court's finding. DCS was concerned about Mother's lack of supervision. DCS representatives also described Mother's home as "[f]ilthy," "cluttered," and "dirty," raising concerns about the safety and welfare of the children. Rat droppings and roaches were observed on the floor and the home smelled of urine. Meanwhile, the record had "no evidence" to "indicate[] Mother had taken any remedial actions to address the concerns of the home."
CONCLUSION
¶26 We affirm.