Opinion
No. 1 CA-JV 18-0279
02-21-2019
DELMY F., Appellant, v. DEPARTMENT OF CHILD SAFETY, A.F., Appellees.
COUNSEL John L. Popilek, Scottsdale Counsel for Appellant Arizona Attorney General's Office, Phoenix By Sandra L. Nahigian 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. JD15224
The Honorable Sara J. Agne, Judge
AFFIRMED
COUNSEL
John L. Popilek, Scottsdale
Counsel for Appellant
Arizona Attorney General's Office, Phoenix
By Sandra L. Nahigian
Counsel for Appellee Department of Child Safety
MEMORANDUM DECISION
Judge Jennifer M. Perkins delivered the decision of the Court, in which Presiding Judge Diane M. Johnsen and Judge Michael J. Brown joined.
PERKINS, Judge:
¶1 Delmy F. ("Mother") appeals the juvenile court's order terminating her parental rights to A.F. For the following reasons, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 We view the facts in the light most favorable to upholding the juvenile court's order. Ariz. Dep't of Econ. Sec. v. Matthew L., 223 Ariz. 547, 549, ¶ 7 (App. 2010).
¶3 Mother gave birth to A.F. in November 2013. Child Protective Services ("DCS" as Child Protective Services was the predecessor of the Department of Child Safety) filed a dependency petition and soon thereafter took physical custody of A.F. at the hospital. Mother first came to the attention of DCS because of a dependency for a different child; no child but A.F. is subject to this appeal. During an earlier dependency, a psychologist diagnosed Mother with schizophrenia. Mother had stopped taking her oral schizophrenia medication during her pregnancy with A.F. because, according to Mother, she talked to the unborn baby, who told her she "didn't like the medication" and asked Mother to stop taking it.
¶4 In the dependency petition, DCS alleged that Mother neglected A.F. because of mental illness and by failing to provide a safe and stable home. The juvenile court found A.F. dependent as to Mother in February 2014. The court then appointed a guardian ad litem for Mother in March. Mother identified one potential father for A.F., but a paternity test showed he was not A.F.'s father. No putative father is party to this appeal.
¶5 DCS referred Mother to a parent aide with Chicanos Por La Causa in early 2014, but the agency closed Mother out of the service unsuccessfully in December of that year. Mother's psychiatrist changed the delivery method of Mother's medications from oral to injection, apparently due to concerns that Mother was not reliably taking her medications orally. After that, Mother received her medications through bi-weekly injections.
¶6 In April 2015, the juvenile court increased Mother's supervised visitation to twice a week, and DCS referred her to another parent aide. Mother successfully completed a parenting class in June. Mother also had some success with her mental health treatment at Lifewell during this time, but DCS began to harbor concerns that Mother did not take her mental illness issues seriously. Specifically, DCS was concerned because Mother would not create an emergency plan in case she decompensated again and began to have hallucinations. DCS approved Mother's home for visitation with a parent aide in October 2015, but Mother was again closed out of the service unsuccessfully that December.
¶7 On November 4, 2016, Dr. Kathryn Menendez, a licensed psychologist, performed a psychological evaluation of Mother. For this evaluation, Menendez reviewed Mother's mental health history and performed several tests. Menendez diagnosed Mother with mild intellectual disability and unspecified schizophrenia "by prior diagnosis."
¶8 Mother continued her mental health treatment through Lifewell. Dr. Diana Havill, a psychiatrist, diagnosed Mother with Bipolar I, although she noted that "it is difficult to ascertain if [Mother] has bipolar disorder, schizophrenia with depression, or [Major Depressive Disorder] with psychosis." Mother also carried a diagnosis of Bipolar II at some points. Mother missed many of her appointments at Lifewell between 2016 and 2018. She would sometimes fail to answer the door when transportation arrived, then claim that it had never come for her. Mother also missed numerous medication injections and was late for many others. Mother resisted talking to mental health workers about her psychiatric symptoms and would sometimes become visibly annoyed when they asked her about hallucinations.
¶9 In January 2017, DCS moved to terminate Mother's parental rights based on mental illness, mental deficiency, and 15 months' time in care. DCS alleged that Mother's illness and deficiency would prevent her from providing for A.F.'s needs and therefore it could not reunite A.F. with Mother. DCS also alleged that termination was in A.F.'s best interests because A.F. would be at risk of harm in Mother's care.
¶10 Dr. Menendez performed another psychological evaluation on April 5, 2018. Menendez noted that she had to reschedule the appointment twice because Mother had not appeared the first two scheduled times. She once again reviewed Mother's mental health history and administered tests. Menendez diagnosed Mother with mild intellectual disability and Bipolar I "by prior diagnosis." Menendez then noted
The results indicate that [Mother] is largely stationary in her progress toward parenting independently. This means that [Mother] continues to demonstrate cognitive deficits despite compliance with mental health treatment. [Mother] continues to show limited insight regarding her mental health. She does not sufficiently understand her mental illness and believes that because she has not had a relapse, that her mental illness has subsided. [Mother] does not understand that her mental illness is managed and stability is due to her continued medical attention.
* * *
She has not shown initiative to use her services to form a relationship with her daughter. Additionally, [Mother] continues to miss or confuse appointments. Multiple efforts are required to enlist [Mother's] participation at appointments related to her reunification services. Even after the number of services were reduced, [Mother] continued to miss or be absent from appointments.
Dr. Menendez concluded that "there is little change since [Mother's] last evaluation" in 2016.
¶11 The juvenile court held a termination hearing on May 15, 2018. The court heard from Menendez, Dorianne Vance of Lifewell, and Mary Casas, the DCS case manager. Menendez opined that although she had expected Mother's cognitive abilities to improve once her mental illness stabilized, Mother's cognitive abilities by and large stayed the same, and would not likely improve even with another year of mental stability.
¶12 Vance testified that Mother regularly missed appointments, missing a total of nine in the 90 days preceding the termination hearing, including several medication injections. According to Vance, if Mother does not receive her medication injections, she could have a psychotic episode and be a danger to herself or others.
¶13 Casas testified that DCS offered Mother the following services: supervised visitation; parent-aide services; three psychological evaluations; two bonding assessments; transportation; parenting classes; couples counseling; "and multiple counseling referrals and referrals for supervised visits." She also stated that she had to make several counseling referrals for Mother because "it was just really hard to get [Mother] to follow through." Casas testified that DCS would send out referrals and
Mother would never complete an intake at the counseling agency. Finally, she testified that despite the services offered Mother, she had not seen "any discernable improvement of Mother in her ability to parent this child" in over two years.
¶14 The juvenile court granted the motion for termination, finding that DCS met its burden on the mental illness, mental deficiency, and 15 months' time in care grounds. It additionally found that termination would be in A.F.'s best interests. Mother timely appealed.
DISCUSSION
¶15 We review termination proceedings for an abuse of discretion. Titus S. v. Dep't of Child Safety, 244 Ariz. 365, 369, ¶ 15 (App. 2018). The juvenile court abuses its discretion if its findings of fact are clearly erroneous "or upon a determination that, as a matter of law, no reasonable fact-finder could have found the evidence satisfied the applicable burden of proof." Id.
¶16 A parent's right in the care, custody, and management of her child is fundamental, but not absolute. Dominique M. v. Dep't of Child Safety, 240 Ariz. 96, 97-98, ¶ 7 (App. 2016). The juvenile court is justified in terminating the parent-child relationship if it finds that the "child has been in an out-of-home placement for a cumulative total period of fifteen months or longer," that "the parent has been unable to remedy the circumstances" that caused the out-of-home placement, that DCS "has made a diligent effort to provide appropriate reunification services," and that, despite those services, "there is a substantial likelihood that the parent will not be capable of exercising proper and effective parental care and control in the near future." Ariz. Rev. Stat. ("A.R.S.") § 8-533(B)(8)(c).
¶17 Reasonable evidence supports the juvenile court's termination of Mother's parental rights to A.F. Initially, Mother does not contest that A.F. has been in an out-of-home placement for 15 months or longer and, indeed, A.F. had been in foster placement for over four years at the time of the termination hearing.
¶18 Instead, Mother contends that DCS failed to show by clear and convincing evidence she was unable to remedy the circumstances that brought A.F. into foster care or there is a substantial likelihood she will be incapable of exercising proper and effective parental care in the near future. The record belies each of these contentions.
¶19 In its dependency petition, DCS alleged that A.F. was dependent as to Mother because "Mother has a history of mental health issues and not getting mental health treatment and not taking her medication." (Emphasis added). This pattern continued throughout the dependency. Mother's Lifewell records are replete with missed appointments, including many of her medication injections. For example, in February 2018, the nurse commented that Mother "is overdue for her injection. Patient has missed many appointments, she states that she forgets." Reasonable evidence thus supports the juvenile court's conclusion that Mother was unable to remedy the circumstances that brought A.F. into foster care. See Alma S. v. Ariz. Dep't of Child Safety, 245 Ariz. 146, ___, ¶ 18 (2018).
¶20 Contrary to Mother's assertion, the juvenile court did not terminate her parental rights to A.F. "simply because she has some mental health issues." Instead, the basis for severance is Mother's inability to "remedy the circumstances" that led DCS to remove A.F. A.R.S. § 8-533(B)(8)(c). Namely, Mother was inconsistent in obtaining treatment for her mental health issues and made no apparent progress in taking her medication as prescribed or forming a backup plan in case she decompensated. Menendez stated in her 2018 report that Mother had made no progress since 2016 and that Mother failed to understand that her "stability is due to her continued medical attention." Furthermore, Mother was closed out of two parent aides unsuccessfully, and Mother failed to complete intake on several counseling referrals. Although the record shows Mother had some successes, including successful completion of one parenting class, we cannot say the juvenile court abused its discretion in finding that Mother failed to remedy the circumstances that caused A.F.'s out-of-home placement. Cf. Desiree S. v. Dep't of Child Safety, 235 Ariz. 532, 534-35, ¶¶ 10-13 (App. 2014) (juvenile court abused its discretion in finding parent failed to remedy circumstances where she completed all reasonable services offered).
¶21 The same issues affect whether Mother will be capable of exercising proper and effective care and control in the near future. In its order, the juvenile court cited Menendez's 2018 report that Mother's mental stability had not led to improvement in her ability to parent and Vance's testimony that Mother had missed nine appointments in the 90 days preceding the hearing. Over the course of the dependency, Mother regressed from taking her medication orally to needing bi-weekly injections; by the time of the hearing, Mother had not progressed back to oral medication and was not fully compliant with her injections. This evidence shows Mother was inconsistent in her own care, from which the juvenile court could reasonably infer she would likewise be inconsistent
with A.F.'s care. See Crystal E. v. Dep't of Child Safety, 241 Ariz. 576, 580, ¶ 16 (App. 2017) (Thumma, J., concurring) (substantial likelihood mother would be unable to exercise parental care and control in the near future because mother was inconsistent with urinalysis testing and counseling).
¶22 Mother finally contends that DCS failed to provide appropriate reunification services because it did not coordinate additional services with the Department of Developmental Disabilities ("DDD"). Before the juvenile court may terminate parental rights, it must find that DCS, by clear and convincing evidence, "made a diligent effort to provide appropriate reunification services." A.R.S. § 8-533(B)(8); Marina P. v. Ariz. Dep't of Econ. Sec., 214 Ariz. 326, 329, ¶ 18 (App. 2007). DCS "is not required to provide services that are futile," but only those "with a reasonable prospect of success." Christina G. v. Ariz. Dep't of Econ. Sec., 227 Ariz. 231, 235, ¶ 15 (App. 2011) (citing Mary Lou C. v. Ariz. Dep't of Econ. Sec., 207 Ariz. 43, 50, ¶ 18 (App. 2004)) (quoting Mary Ellen C. v. Ariz. Dep't of Econ. Sec., 193 Ariz. 185, 192, ¶ 34 (App. 1999)). Specifically, Mother argues the services provided by DDD would have allowed her to attend more of her appointments, thereby remedying the issue of her inconsistent treatment efforts. See supra ¶ 20. Although some evidence supports this contention, the record also contains contradictory evidence. According to DCS, Mother stated "that she engages in services simply because DCS requires her to do so and that there is nothing wrong with her." Reasonable evidence thus supports the juvenile court's implicit conclusion that DDD services would not have had a reasonable prospect of success. Cf. Vanessa H. v. Ariz. Dep't of Econ. Sec., 215 Ariz. 252, 256-57, ¶¶ 20-22 (App. 2007) (within trial court's discretion to find that no amount of reasonable efforts would enable mother to function as a minimally adequate parent; we do not reweigh such evidence).
¶23 The record otherwise supports the court's finding that DCS made a diligent effort to provide appropriate reunification services. Casas, Mother's DCS case manager, testified that DCS provided Mother with parenting classes, parent aides, supervised visitation (both in-home and out-of-home), counseling, psychological evaluations, and transportation. Mother also received mental health treatment from Lifewell.
¶24 Because we affirm the juvenile court's ruling on the 15 months' time in care ground, we decline to address the findings concerning mental illness or mental deficiency. Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, 280, ¶ 3 (App. 2002) ("If clear and convincing evidence supports any one of the statutory grounds on which the juvenile court ordered severance, we need not address claims pertaining to the other grounds."). Mother does not appeal the juvenile court's best interests finding, and thus
we do not address it. Ariz. R. Civ. App. P. 13(a)(7); Ariz. R. P. Juv. Ct. 106(a); In re J.U., 241 Ariz. 156, 161, ¶ 18 (App. 2016).
CONCLUSION
¶25 For the foregoing reasons we affirm the juvenile court's termination order.