Opinion
No. 1 CA-JV 12-0217
04-30-2013
FELICIA K., Appellant, v. ARIZONA DEPARTMENT OF ECONOMIC SECURITY, F.K., Appellees.
Thomas C. Horne, Arizona Attorney General By Nicholas Chapman-Hushek, Assistant Attorney General Attorneys for Appellee Denise L. Carroll, Esq. By Denise L. Carroll Attorney for Appellant
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
(Not for Publication -
Rule 103(G), Ariz. R. P.
Juv. Ct.; Rule 28, ARCAP)
Appeal from the Superior Court in Maricopa County
Cause No. JD19293
The Honorable Colleen McNally, Judge
AFFIRMED
Thomas C. Horne, Arizona Attorney General
By Nicholas Chapman-Hushek, Assistant Attorney General
Attorneys for Appellee
Phoenix Denise L. Carroll, Esq.
By Denise L. Carroll
Attorney for Appellant
Scottsdale BROWN, Judge ¶1 Felicia K. ("Mother") appeals the juvenile court's order terminating her parental rights to her daughter ("the child"). Mother argues the court erred because (1) the Arizona Department of Economic Security ("ADES") failed to show by clear and convincing evidence that she would not be capable of caring for the child in the near future; and (2) ADES failed to show by a preponderance of the evidence that severance was in the best interests of the child. For the reasons set forth below, we affirm.
The caption has been amended to safeguard the identity of the juvenile pursuant to Administrative Order 2013-001.
BACKGROUND
¶2 Mother is the biological parent of the child, born in March 2006. In June 2010, Mother called the police but refused to indicate why she was calling or answer pertinent questions. Officers were therefore dispatched to the home for a welfare check. They noticed that Mother was obviously intoxicated and was alone with the child. Mother told the officers she was bipolar and admitted she had been drinking and taking Valium. She also stated that she worked undercover for several government agencies. Eventually, Mother became belligerent and screamed at the officers to leave. The officers arrested Mother and booked her into jail, where she remained for several days. Child Protective Services ("CPS") immediately placed the child in out-of-home, temporary custody with a licensed foster family. ¶3 While investigating Mother's background, CPS learned she had a prior referral for social services in Alabama and a history of substance abuse. CPS also discovered Mother had tested positive for drugs when the child was born and the child was delayed for her age and demonstrated poor motor and cognitive skills. Accordingly, CPS referred the child to the Division of Developmental Disabilities (DDD) for services, including: speech, occupational and physical therapies, room and board, habilitation, special education services, a behavioral treatment plan, and intensive case managers. ¶4 A CPS case manager interviewed Mother while she was in jail and noted concerns regarding Mother's mental health, substance abuse, and domestic violence in the home. Mother denied that the child had any developmental disabilities and therefore had not sought any treatment for her, which concerned CPS. Given these concerns, ADES filed a dependency petition alleging (as relevant here) Mother was neglecting the child and unable to meet her parental responsibilities due to mental illness and domestic violence. After a contested dependency hearing, the juvenile court found the child dependent as to Mother in December 2010. Mother appealed the juvenile court's dependency decision to this court. See Felicia K. v. Ariz. Dep't of Econ. Sec., 1 CA-JV 11-0002, 2011 WL 2206684, at *1-2, ¶ 5 (Ariz. App. June 7, 2011) (mem. decision). Affirming the dependency order, we noted that Mother failed to recognize the child's "significant developmental and physical delays." Id. at *2, ¶ 8. We also explained that the evidence showed Mother had a "history of alcohol and marijuana abuse" and "mental health issues that need to be addressed." Id. ¶5 The juvenile court approved a case plan of reunification, with CPS to continue providing Mother with services including parent aide, counseling, transportation, TERROS, random urinalysis, behavioral health services, a psychological evaluation, and any additional services recommended based on the evaluation. CPS made it clear to Mother that she was expected to obtain stable employment in order to provide for the child. Due to the child's disabilities, CPS also encouraged Mother to attend the Individualized Education Plan ("IEP") and Child and Family Team ("CFT") meetings, which were designed to address the child's educational and developmental needs and progress as well as help parents care for their special-needs children. ¶6 Based on Mother's substantial compliance with the services offered, CPS made a referral for commencement of a family reunification team in February 2011. To achieve reunification, CPS required Mother to demonstrate she could satisfy the child's special needs, remain sober, address and remedy her own mental health issues, and maintain stable employment and housing. In June 2011, the team was on the verge of recommending that the juvenile court approve family reunification, but Mother changed her residence for the fourth time since the dependency was filed, triggering additional concerns for CPS about Mother's stability. ¶7 In September 2011, CPS recommended re-establishing a family reunification team. This second referral closed out unsuccessfully as well, however, because (1) Mother failed to consistently attend the IEP and CFT meetings and (2) the functional behavioral assessment specialist concluded Mother was not ready for reunification. CPS noted that Mother's behavior became erratic; she would yell at the child and those attending the CFT meetings. She also stopped her counseling, arrived late to visitations, and was no longer consistently participating in drug testing. ¶8 In October 2011, when the foster mother went on vacation, CPS agreed to leave the child with Mother because she was already participating in unsupervised visits with the child. During that time, however, Mother failed to administer the child's medication, causing the child to suffer a seizure. Due to this incident, the child was prescribed an anti-seizure medication. In November 2011, while in Mother's care, Mother again failed to administer medication to the child. CPS therefore terminated Mother's unsupervised visits. ¶9 Because of Mother's unwillingness to administer the child's medicine and Mother's increased erratic behavior, CPS instituted other services, strongly recommending another psychological examination by a different doctor. In January 2012, Mother saw Dr. DeSoto, who diagnosed Mother with "delusional disorder and a mood disorder" and a substance disorder; she also noted concern with Mother's ability to parent her child independently and concluded "[a] child in the care of this parent would likely be at risk of neglect and/or abuse." Accordingly, DeSoto recommended Mother participate in individual and/or group therapy, support groups for parents with special-needs children, parent aide services to monitor the interaction between mother and the child, a psychiatric evaluation, physical examination, and continued random urinalysis testing. Mother did not follow up with any of these recommendations. ¶10 ADES moved to terminate Mother's parental rights in February 2012. As grounds, ADES alleged the child had spent a cumulative period of fifteen months' time in out-of-home placement pursuant to Arizona Revised Statutes ("A.R.S.") section 8-533(B)(8)(c) (2013). ¶11 At the severance hearing, held over the course of several days, ADES presented the testimony of DeSoto and various CPS caseworkers involved in Mother's case. As pertinent here, DeSoto testified as to her diagnosis and conclusions regarding Mother's inability to parent in the near future "unless a whole bunch of stuff [got] done." DeSoto testified that Mother needed to commit herself to doing drug and alcohol treatment and certain therapy, including seeing a psychiatrist. Of particular concern to DeSoto, however, was Mother's unwillingness or inability to acknowledge the severity of the child's special needs. She emphasized that Mother needs to understand the child's special needs and be able to feel capable of attending to them. Finally, DeSoto opined that Mother's conditions, if not remedied, would prevent her from parenting, resulting in lack of consistency and structure for the child. The CPS caseworkers testified as to the services provided to Mother, her lack of full compliance, concerns with Mother's ability to parent, and that severance would be in the best interests of the child. Mother presented the testimony of Dr. Magier, a psychologist who started seeing Mother in July 2012. He expressed concern with DeSoto's evaluation and opined that his style of therapy would help Mother parent effectively. ¶12 After consideration of the testimony, exhibits, and the parties' written closing arguments, the juvenile court granted ADES' motion for termination, finding that ADES established the statutory ground by clear and convincing evidence. The court also determined that termination was in the child's best interests. Mother timely appealed. We have jurisdiction pursuant to A.R.S. § 8-235(A) (2013).
The rights of the child's father were also terminated, but he is not a party to this appeal. Mother has three older children who do not reside with her and are not parties to this case.
Due to the child's extensive special needs, the initial foster care family did not qualify to care for the child. CPS therefore removed the child and placed her in a DDD qualified home.
The child was eventually diagnosed with ADHD, autism, a seizure disorder, speech impairment, and Williams Syndrome, a genetic disorder typically causing learning disabilities and other cognitive issues.
The juvenile court found that throughout the entire case, Mother missed over one-third of her required drug tests.
Mother had previously met with Dr. Hunt, who believed mother "would be capable of parenting if she remained free from drugs and alcohol" and participated in therapy.
Absent material revisions after the relevant date, we cite a statute's current version.
In light of all the evidence presented to the court, in its closing argument, the Guardian ad Litem urged the court to terminate Mother's parental rights, stating "[the child] deserves a home where her medical, emotional and developmental issues will be appropriately and consistently met."
DISCUSSION
¶13 To justify termination of Mother's parental rights, ADES had to prove and the juvenile court had to find the existence of at least one statutory ground by clear and convincing evidence. Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, 249, ¶ 12, 995 P.2d 682, 685 (2000). The court was also required to find by a preponderance of the evidence that termination was in the child's best interests. Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 22, 110 P.3d 1013, 1018 (2005). "We view the evidence in a severance case in the light most favorable to sustaining the juvenile court's findings." Christina G. v. Ariz. Dep't of Econ. Sec., 227 Ariz. 231, 234, ¶ 13, 256 P.3d 628, 631 (App. 2011). "[W]e will accept the juvenile court's findings of fact unless no reasonable evidence supports those findings, and we will affirm a severance order unless it is clearly erroneous." Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, 280, ¶ 4, 53 P.3d 203, 205 (App. 2002) (citation omitted).
A. Ability to Parent in the Near Future ¶14 The juvenile court could properly terminate Mother's parental rights if ADES proved: (1) the child was in an out-of-home placement for at least fifteen months; (2) ADES made diligent efforts to provide appropriate reunification services; (3) Mother was unable to remedy the circumstances which caused the child to be in out-of-home placement; and (4) a substantial likelihood exists that the parent will not be capable of exercising proper and effective parental control in the near future. A.R.S. § 8-533(B)(8)(c). Mother only challenges the fourth element and thus we confine our analysis to that issue. See Christina G., 227 Ariz. at 234 n.6, ¶ 14, 256 P.3d at 631 n.6 (declining to consider "general argument" that the court erred in terminating based on fifteen months' time-in-care). ¶15 Mother argues the juvenile court abused its discretion in finding she would be unable to properly parent in the near future because the evidence was "contradictory and inconclusive." She contends that the psychologists who conducted her psychological evaluations, Hunt and DeSoto, gave conflicting opinions and that testimony of the parent aide supervisor supported Mother's parenting strengths. Thus, Mother concludes that the evidence does not establish clear and convincing evidence that she lacked the ability to effectively parent in the near future. ¶16 Even assuming discrepancies and inconsistencies in the evidence, such matters are properly resolved by the juvenile court. See Jesus M., 203 Ariz. at 280, ¶ 4, 53 P.3d at 205 ("The juvenile court, as the trier of fact in a termination proceeding, is in the best position to weigh the evidence, observe the parties, judge the credibility of witnesses, and make appropriate findings."). Moreover, we find logical reasons for the alleged inconsistencies. For example, Hunt performed his evaluation in November 2010, only fourth months after Mother and the child initially became involved with CPS. He had little information to rely on as to Mother's compliance and progress with services. Thus, much of Mother's behavior and lack of compliance that informed DeSoto's evaluation, which occurred more than a year later, had not yet occurred at the time of Hunt's evaluation. Furthermore, after Hunt's evaluation, he expressed concern that "[t]he reliability of the information [Mother] gave [was] questionable as [Mother] appeared to be well guarded and [] blame[d] others for the problems that she now faces." He further indicated that Mother's personality profile is "highly likely to be invalid due to her unwillingness to admit to having any difficulties." Given Mother's failure to fully cooperate in Hunt's evaluation process, and because only DeSoto testified at the hearing, the juvenile court was in the best position to weigh the significance of the respective psychological opinions in determining whether Mother could effectively parent the child. ¶17 Mother also challenges the juvenile court's "unable to parent" finding on the basis that at least twice, CPS took the position that Mother was capable of reunifying with the child, which demonstrates that Mother could effectively parent. Pursuant to its duties and consistent with the court-approved case plan, CPS diligently sought to permanently reunify Mother and the child. In that process, Mother controlled her own destiny. Although she was successful in reaching some of the goals established through the case plan, she was unable to remedy the circumstances that caused her daughter to be in out-of-home placement for over two years, a finding she does not challenge on appeal. Unfortunately, each time it appeared Mother was close to achieving the goal of reunification with the child, she engaged in conduct that was detrimental to the goal of learning to effectively parent. As the juvenile court found, in the fall of 2011, Mother missed appointments, CFT meetings, and was inconsistent with her drug testing, notwithstanding that the case manager had provided Mother with a calendar to help her keep track of all the appointments. ¶18 Considering the dependency and termination proceedings in their entirety, the attempts CPS made to reunify the family did not foreclose ADES' ability to properly seek termination of Mother's parental rights given her inability to consistently comply with the goals of the case plan. We therefore conclude sufficient evidence exists to support the juvenile court's finding of a substantial likelihood Mother will not be capable of exercising proper and effective parental control in the near future.
Similarly, the juvenile court was in the best position to weigh the testimony provided by the parent aide supervisor and evaluate its significance within the context of all of the evidence presented at the severance hearing.
B. Best Interests of the Child. ¶19 Mother challenges the juvenile court's best interests finding, arguing the evidence shows she has a strong bond with the child and ADES failed to prove the child would accrue a benefit as a result of severance. When ruling on a termination petition, a juvenile court must consider the best interests of the child. A.R.S. § 8-533(B). In assessing what is in the child's best interests, the court "must include a finding as to how the child would benefit from a severance or be harmed by the continuation of the relationship." Matter of Appeal in Maricopa County Juv. Action No. JS-500274, 167 Ariz. 1, 5, 804, P.2d 730, 734 (1990) (citation omitted). Evidence of an adoption plan or that the child is "adoptable" supports a finding that a child would benefit from the termination of parental rights. Id. at 6, 804 P.2d at 735. The juvenile court may also consider whether the existing placement is meeting the child's needs in making its best interests' finding. Audra T. v. Ariz. Dep't of Econ. Sec., 194 Ariz. 376, 377, ¶ 5, 982 P.2d 1290, 1291 (App. 1998). A "best interest inquiry focuses primarily upon the interests of the child, as distinct from those of the parent." Kent K., 210 Ariz. at 287, ¶ 37, 110 P.3d at 1021. ¶20 Here, the juvenile court found that the "foster placement has been providing for all of the child's needs, including her special needs[,] for the last two years." The court also found that termination would benefit the child because it would allow her to be adopted by a "family that is willing and able to meet her special needs on a permanent basis." The court reasoned further that if termination did not occur, then the child "could suffer regression in her skills and even medical harms if she received inconsistent care or medications." ¶21 One of Mother's case managers testified that the child was in a potential adoptive placement, was bonded to that placement, and it would be in the child's best interests to allow her to be adopted to provide her with permanency, safety, and stability. Another case manager testified the child would be at risk if placed with Mother because Mother has made little progress and has "not demonstrated that she can take care of herself sometimes, much less a child with multiple, severe disabilities." And, DeSoto testified that Mother would not be able to provide the consistency, structure, or care the child needs. We therefore conclude the record supports the juvenile court's findings.
To the extent Mother suggests that the best interests' determination was error because of the foster parent's age, Mother has cited no authority to support her concern. Accordingly, the record supports the court's conclusion that severance was in the child's best interests.
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CONCLUSION
¶22 For the foregoing reasons, we affirm the juvenile court's order terminating Mother's parental rights.
____________________________
MICHAEL J. BROWN, Judge
CONCURRING: ____________________________
SAMUEL A. THUMMA, Presiding Judge
____________________________
DIANE M. JOHNSEN, Judge