Opinion
No. 1 CA-JV 18-0450
05-16-2019
CINNAMON R., Appellant, v. DEPARTMENT OF CHILD SAFETY, A.A., Appellees.
COUNSEL Robert D. Rosanelli Attorney at Law, Phoenix By Robert D. Rosanelli Counsel for Appellant Arizona Attorney General's Office, Phoenix By Paula S. Bickett Counsel for Appellee Department of Child Safety
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. JD28646
The Honorable Sara J. Agne, Judge
AFFIRMED
COUNSEL Robert D. Rosanelli Attorney at Law, Phoenix
By Robert D. Rosanelli
Counsel for Appellant Arizona Attorney General's Office, Phoenix
By Paula S. Bickett
Counsel for Appellee Department of Child Safety
MEMORANDUM DECISION
Presiding Judge David D. Weinzweig delivered the decision of the Court, in which Judge Kent E. Cattani and Judge James P. Beene joined. WEINZWEIG, Judge:
¶1 Cinnamon R. ("Mother") appeals the superior court's order terminating her parental rights to A.A. We affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 Mother and Enrique M. ("Father") are the biological parents of A.A., born in November 2012. A.A. was adjudicated dependent at 20-months-old, but not removed from Mother's care, based on Mother's mental health issues and Father's domestic assault of Mother in A.A.'s presence. The dependency proceedings were dismissed in January 2015 based on the Department of Child Safety's ("DCS") request because Mother had "participated in a lot of services."
The court terminated Father's parental rights to A.A. He has not appealed.
¶3 Sixteen months later, in May 2016, A.A. was hospitalized "with violent tantrums." Mother claimed that A.A. "throws temper tantrums all the time at home and urinates on herself." After a mental-health evaluation, A.A. was diagnosed with "post-traumatic stress disorder, attachment issues, and attention deficit hyperactivity disorder." She was then discharged with referrals to multiple services, including "ongoing therapy, high[-]needs case management, a crisis stabilization team and ongoing care with a child psychiatrist." Mother neglected to maintain monthly appointments with the child psychiatrist, never engaged the crisis stabilization team, and "stopped participating in services with the child's therapist and high needs case manager" in July 2016.
¶4 A.A. was again hospitalized in August 2016 after Mother reported "the child had a violent tantrum" during which she "continually pull[ed] her own hair" and had consumed "an unknown amount of beer" from a cup left in the sink. A.A.'s blood pressure was elevated upon admission, which Mother first attributed to Clonidine, a sedative medication, but then changed her story after reminded of the hospital's previous order to stop providing Clonidine to A.A. Hospital staff expressed concern that "the combination of Clonidine and alcohol could have been fatal." Mother also changed her story about A.A.'s purported alcohol consumption.
¶5 A.A. remained hospitalized for three weeks and staff never observed "the behaviors that [Mother] reported," leading the "child psychiatrist and social worker staff" to believe that Mother "exaggerated her child's behaviors" to secure "medication to manage her child" and had continued to administer unprescribed medication.
¶6 Around this time, Mother reported her own mental health issues to DCS, including that she suffered from PTSD, bipolar depression, borderline personality disorder, ADHD and anxiety. She admitted not taking her prescribed medications and she refused to participate in therapy or counseling to address her mental health.
¶7 DCS determined that Mother had neglected A.A. and was unable to provide proper and effective parental care and control due to mental illness and substance abuse. DCS concluded that A.A. was at an "extreme risk of harm" if she remained in Mother's care. DCS thus took temporary custody of A.A. in September 2016 and moved for a second dependency adjudication. The court adjudicated A.A. dependent in January 2017 and set the case plan for family reunification. DCS offered Mother a variety of services throughout the dependency, including drug testing, TERROS substance abuse treatment, parenting classes, parent-aide services, individual counseling, a psychiatric evaluation, a psychological consultation and transportation.
¶8 Mother was "largely inconsistent" and ultimately unsuccessful with substance abuse testing and refused substance abuse treatment. She missed many months of required drug tests and failed the tests when taken, including positive tests for alcohol and methamphetamine in September 2017, October 2017 and April 2018.
¶9 Meanwhile, Mother resisted mental health treatment because she believed it would not help. DCS referred Mother for a psychological evaluation in April 2017, when she was diagnosed with unspecified personality disorder, PTSD, possible schizoaffective disorder, bipolar disorder and persistent depressive disorder. The psychologist, Dr. Stephanie Leonard, concluded it was "unlikely" that Mother could provide minimally adequate parenting skills in the near future and opined "there are reasons to believe [Mother's] conditions will continue for a prolonged, indeterminate period of time, as personality disorders can take several months or even years to accomplish a place where they can form appropriate bonds and behaviors to parent a child." Dr. Leonard recommended, however, that Mother receive parenting and domestic-violence classes, continued psychiatric care, and "[i]ndividual therapy . . . at a Doctoral Level in order for her to gain insight into her mental illness, develop appropriate coping skills, and learn new way[s] of interacting with others. Therapy should focus on her ability to identify, express, tolerate, and regulate her emotions. Long-term therapy should focus on her ability to make connections with others and underlying reasons she is unable to form those connections."
¶10 DCS referred Mother for individual counseling at a Master's Level with Applied Behavioral Interventions ("ABI"). Mother attended ABI services from July to September 2017. DCS then referred Mother for additional therapy to Family Service Agency, but she missed three scheduled intake appointments and her ultimate participation was "[v]ery minimal."
¶11 On January 18, 2018, DCS moved to terminate Mother's parental rights based on four grounds, including mental illness, chronic substance abuse, nine-months out-of-home placement and 15-months out-of-home placement. A.R.S. § 8-533(B)(3), (8)(a), (8)(c). A contested termination hearing was held on September 5, 2018. The DCS caseworker testified that Mother had not participated in any substance-abuse treatment and opined that Mother's substance abuse prevented her from discharging her parental responsibilities. The caseworker also testified that Mother made "minimal progress" with mental health services and had been referred to Mental Health Court, where her "very minimal" participation led to an arrest warrant. The court found DCS established all four statutory grounds and terminated Mother's parental rights on November 1, 2018.
¶12 Mother timely appealed, and we have jurisdiction pursuant to A.R.S. § 8-235(A) and § 12-2101(A)(1).
DISCUSSION
¶13 To terminate parental rights, the superior court must find at least one statutory ground for severance under A.R.S. § 8-533(B), and that termination is in the child's best interests. Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, 249, ¶ 12 (2000). We accept the court's factual findings if reasonable evidence supports them and will affirm its severance ruling unless it is clearly erroneous. Demetrius L. v. Joshlynn F., 239 Ariz. 1, 3, ¶ 9 (2016).
¶14 Mother only argues the superior court erred in finding that DCS made a "diligent effort to provide appropriate reunification services" as required before parental rights can be severed on grounds of time in out-of-home care, substance abuse and mental illness. A.R.S. § 8-533(B)(8) (out-of-home care); Jennifer G. v. Ariz. Dep't of Econ. Sec., 211 Ariz. 450, 453, ¶ 12 (App. 2005) (history of chronic substance abuse); Mary Ellen C. v. Ariz. Dep't of Econ. Sec., 193 Ariz. 185, 192, ¶¶ 34, 37 (App. 1999) (mental illness). To satisfy this requirement, DCS must show it made reasonable efforts to preserve the family, "undertook measures with a reasonable prospect of success," and provided parents "with the time and opportunity to participate in programs designed to improve [their] ability to care for the child," but DCS need not provide every conceivable service. Id. at 192, ¶¶ 34, 37.
¶15 The record includes reasonable evidence supporting the court's finding. Mother was offered abundant services, including drug testing, substance abuse treatment, parenting classes, parent-aide services, individual counseling, a psychiatric evaluation, psychological consultation and transportation. She did not, however, take advantage of them. She frequently ignored and then failed drug and alcohol tests, refused substance abuse treatment, resisted mental health treatment and often missed scheduled appointments. On this record, we cannot find clear error. See Lashonda M. v. Ariz. Dep't of Econ. Sec., 210 Ariz. 77, 81, ¶ 13 (App. 2005) (appellate court does not reweigh the evidence "with respect to the state's diligence").
¶16 Citing Mary Ellen C., Mother argues that DCS did not provide "appropriate reunification services" because Dr. Leonard recommended that she receive Doctoral level counseling, but she only received Master's level counseling. We disagree. Mary Ellen C. is different in at least three critical respects. First, the parent in Mary Ellen C. was not offered any meaningful services for almost one year after the child's removal and, even then, the services were sporadic and insubstantial. 193 Ariz. at 192-193, ¶¶ 35-36, 38 (describing agency's efforts as "belated, fitful, and indifferent"). Here, by contrast, DCS offered an array of services to Mother, monitored her progress under the services and only moved to terminate parental rights in January 2018, more than a year after services were in place.
We note that Mother never complained to the superior court about DCS's reunification efforts or contested whether DCS made diligent efforts when the superior court could have addressed any deficiencies. Indeed, DCS asked the court to find that it made "diligent efforts" at least six times between June 2017 and August 2018, which the court did, and Mother never objected or argued otherwise. Mother's silence likely waives the argument on appeal, Bennigno R. v. Ariz. Dep't of Econ. Sec., 233 Ariz. 349, 349, ¶ 19 (App. 2013), but we choose to address the merits in our discretion. --------
¶17 Second, the present record includes reasonable evidence that higher-level counseling services would have been futile, unlike the additional services in Mary Ellen C., 193 Ariz. at 193, ¶ 39. After all, Mother was unable to resolve her substance abuse issues even with her mother-daughter relationship on the line. See Raymond F. v. Ariz. Dep't of Econ. Sec., 224 Ariz. 373, 379, ¶ 29 (App. 2010) (parent had not overcome dependence on drugs where abuse continued "despite knowing the loss of his children was imminent"). She often tested positive for drugs and alcohol. The case manager testified that drug abuse prevented Mother from discharging her parental responsibilities. Yet, Mother continued to deny her substance abuse was a problem, and still refused to attend substance abuse treatment when the termination hearing was held.
¶18 Third, the reunification services at issue in Mary Ellen C. could have restored the "parent's ability to care for a child within a reasonable time." 193 Ariz. at 191, ¶ 31 (emphasis added). Here, Dr. Leonard herself had concluded that Mother's "conditions will continue for a prolonged, indeterminate period of time" as treatment for personality disorders can take "several months or even years." The record provides more support for her opinion, including Mother's lack of improvement over the long dependency process and refusal to participate in other services.
CONCLUSION
¶19 We affirm. The record includes reasonable evidence to support the superior court's finding that DCS made diligent efforts to provide appropriate reunification services.