Opinion
1 CA-JV 22-0186
02-28-2023
IN RE TERMINATION OF PARENTAL RIGHTS AS TO K.L.
Thomas Vierling Attorney at Law, Phoenix By Thomas A. Vierling Counsel for Appellant. Arizona Attorney General's Office, Mesa By Amanda Adams 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Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court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 Maricopa County No. JD538360 The Honorable Ashley V. Halvorson, Judge
Thomas Vierling Attorney at Law, Phoenix By Thomas A. Vierling Counsel for Appellant.
Arizona Attorney General's Office, Mesa By Amanda Adams Counsel for Appellee Department of Child Safety.
Presiding Judge Jennifer M. Perkins delivered the decision of the Court, in which Judge James B. Morse Jr. and Judge Michael J. Brown joined.
MEMORANDUM DECISION
PERKINS, Judge.
¶1 Breanna L. ("Mother") appeals the superior court's order terminating her parental rights to her child. For the following reasons, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 In May 2020, Mother suffered a psychotic episode, expressed suicidal ideations, and was admitted to a psychiatric hospital for five days. The Department of Child Safety ("DCS") took custody of her child, Kristen, and filed a dependency petition. We use a pseudonym to protect the child's identity.
¶3 Upon discharge, the hospital recommended that Mother transition to an inpatient psychiatric program. Instead of enrolling in an inpatient program, Mother began an outpatient program through which she received psychiatric services, medication monitoring, and individual therapy. Shortly after the May 2020 incident, Mother denied her mental-health issues and the need for DCS involvement or services - a position she maintained over the almost two-year dependency.
¶4 In July 2020, Mother completed a psychological evaluation and was diagnosed with schizoaffective disorder, bipolar type. Although the psychologist found that Mother had stabilized on medication, he gave her a guarded prognosis of her future ability to parent. He recommended Mother continue participating in psychiatric services, including counseling, medication monitoring, and parenting-skills training.
¶5 During the dependency, Mother's first parent aide closed her service successfully. DCS disputed this determination because while Mother consistently attended her medication appointments, she only attended nine of 28 skill sessions and 32 of 48 visits. Upon closing the referral Mother remained diminished in several parenting goals, causing the parent aide to recommend that Mother receive additional coaching on mood regulation and mental-health management.
¶6 During Mother's second parent-aide service she continued to miss visits and skill sessions. She also denied needing any parenting services. And when Mother attended services, she displayed inappropriate and disruptive behaviors. During a visit in January 2021, Mother began cursing repeatedly at the parent aide and Kristen, refusing to allow the parent aide to return Kristen to the placement. Mother had a stand-off with police after the parent aide could not persuade her to release Kristen.
¶7 Following this incident, DCS moved visits from Mother's home to a supervised visitation center and assigned a new parent aide. Meanwhile, Kristen told the case manager that she feared Mother and did not want to see her again. Kristen also became more defiant and aggressive, so DCS referred her for individual therapy. Kristen later agreed to have phone visits with Mother and in-person visits, provided that the supervisor would end them when Kristen felt unsafe.
¶8 The parent aide ended Mother's first supervised phone call after only 12 minutes because, despite warnings, Mother continued making inappropriate comments. In a follow-up call, Mother denied she had violated the visitation guidelines. Mother repeatedly interrupted, spoke over, and made sarcastic comments to the parent aide, who then cancelled her skill session. Soon afterwards, she closed out of the service unsuccessfully.
¶9 DCS then referred Mother for clinically supervised visits. After these visits, Kristen expressed fear of Mother and exhibited anxious behaviors, refusing additional visits. The superior court suspended Mother's visits for the next two months. During the suspension, Kristen's anxious behaviors subsided.
¶ 10 After the suspension lifted, Mother and Kristen resumed virtual visits. Before the first visit, Mother became upset when the supervisor reminded her of the guidelines and warned her not to talk about the case or placement. During the visit, Mother "did not engage much," "drove around in her car the entire visit," "did not ask many questions," and exhibited no positive emotions towards Kristen until the child stated she wanted to end the visit early.
¶ 11 Soon afterwards, DCS moved to terminate Mother's parental rights under the mental-illness and fifteen-month out-of-home placement grounds. A.R.S. § 8-533(B)(3), (B)(8)(c). At this time, Mother was hospitalized for anxiety and chronic psychosis. Upon discharge, Mother was diagnosed with schizophrenia and anxiety and instructed to follow up with outpatient psychiatric services.
¶ 12 At Mother's first outpatient appointment, the provider noted that she had not attended a medication-management appointment for the last five months. Mother maintained that she was incorrectly diagnosed and denied that she had ever suffered from psychosis. At a following visit, Mother asked about the "amount of time she is required to be on medication" and indicated that "DCS wants her to continue medication." Although DCS referred her for a second psychological evaluation, Mother did not complete it.
¶ 13 The superior court held a three-day trial on DCS's motion to terminate Mother's parental rights. After the second day of trial, Mother was hospitalized for mental health issues. The superior court terminated Mother's parental rights on the grounds alleged. Mother timely appealed, and we have jurisdiction under A.R.S. § 8-235(A).
DISCUSSION
¶ 14 We review the termination of parental rights for an abuse of discretion. Titus S. v. Dep't of Child Safety, 244 Ariz. 365, 369, ¶ 15 (App. 2018). On appeal, due process requires us to assess whether a reasonable factfinder could conclude, based on the record, that the state has met its clear and convincing evidentiary burden to sustain the termination of parental rights. See Santosky v. Kramer, 455 U.S. 745, 747-48, 769 (1982). We will uphold the court's findings of fact "if supported by adequate evidence in the record." Christy C. v. Ariz. Dep't of Econ. Sec., 214 Ariz. 445, 451-52, ¶ 19 (App. 2007) (cleaned up). We do not reweigh the evidence, but "look only to determine if there is evidence to sustain the court's ruling," Mary Lou C. v. Ariz. Dep't of Econ. Sec., 207 Ariz. 43, 47, ¶ 8 (App. 2004), and we review questions of law de novo, id. at 309, ¶ 9; Am. Pepper Supply Co. v. Federal Ins. Co., 208 Ariz. 307, 309, ¶ 8 (2004).
¶ 15 Mother challenges the court's order terminating her parental rights under the mental-illness ground. A.R.S. § 8-533(B)(3). The superior court may terminate a parent's parental rights based on mental illness if "the parent is unable to discharge parental responsibilities because of mental illness" and "there are reasonable grounds to believe the condition will continue for a prolonged indeterminate period." A.R.S. § 8-533(B)(3).
¶ 16 Mother first contends the superior court shifted the burden of proof from DCS to her by finding she had not "demonstrated an ability to maintain her mental health" and she was unable "to demonstrate a prolonged period of stable mental health" or "be a safe parent for the child." Mother's contention, however, takes the court's findings out of context.
¶ 17 The superior court's order determined DCS had proven the elements of the mental-illness ground by clear and convincing evidence. The court recited numerous findings over six pages including that: Mother suffered from a pervasive and recurring mental illness that caused her to decompensate without consistent medication; her illness and nonadherence to medication causes her to be irrational and periodically suffer psychosis; she has little impulse control and demonstrated aggressive and threatening behavior throughout the dependency; Mother's condition prevented her from safely parenting Kristen; her condition was ongoing at the time of the termination trial; and Mother minimized her mental-health issues throughout the dependency, including at the time of trial. Thus, the court's findings do not shift the burden of proof, but rather reflect that even with numerous services available to her, Mother demonstrated evidence of ongoing mental illness which prevented her from safely parenting Kristen.
¶ 18 Mother next argues the superior court applied the wrong burden of proof by finding that her "situation is highly likely to continue for a prolonged, indeterminate period." The court's order contradicts Mother's argument.
¶ 19 The superior court expressly recognized DCS must prove the statutory grounds by clear and convincing evidence. It also correctly stated the statutory requirement that there must exist a "[r]easonable belief that [Mother's] mental illness . . . will continue for a prolonged indeterminate period." Its additional findings demonstrate that the court applied the correct burden. The order finds: "Based on Mother's ongoing mental health condition, and her inability to demonstrate a prolonged period of stable mental health, Mother has not demonstrated an ability to be a safe parent for the child and this situation is highly likely to continue for a prolonged, indeterminate period." This finding is supported by Mother's psychologist's decision to downgrade her prognosis from guarded to poor due to her behavior throughout the dependency. A situation that is highly likely to recur, such as Mother's unmanaged psychosis, establishes the requisite reasonable belief expressed in the statute. The juvenile court did not apply the wrong burden.
¶ 20 Mother next asserts that insufficient evidence supports the court's order under the mental-illness ground because the evidence showed she participated in services, including counseling and medication. The court considered Mother's participation but found that she had "ongoing mental health issues, including the initial psychotic episode, altercations during visits, and two inpatient psychiatric hospitalizations," and that despite services, she had "not demonstrated an ability to maintain her mental health and provide the child with protection and stability." Likewise, the court found, based on the case manager's testimony, that even though Mother "has taken medication and engaged in counseling, this has not mitigated the safety threat" and that despite taking medication, "Mother does not believe there is a safety concern with her parenting, does not believe her mental health diagnoses are accurate, and is not consistent with treatment." Adequate evidence in the record supports these findings.
¶ 21 Mother also suggests she was not given a fair chance because the parenting services failed her, and she was merely standing up for herself against biased providers and a powerful system. Mother had two years to participate in services designed to address her mental health and parenting deficits, but she made minimal progress in that time. And multiple providers witnessed Mother's intense emotional reactions and irrational and aggressive behaviors. Her evaluating psychologist opined that these incidents were consistent with the manic phase of her disorder, which the superior court found persuasive. Jesus M. v. Ariz. Dep't of Econ. Sec, 203 Ariz. 278, 282, ¶ 12 (App. 2002) ("The resolution of such conflicts in the evidence is uniquely the province of the juvenile court as the trier of fact; we do not re-weigh the evidence on review.").
¶22 Finally, Mother challenges the court's finding that termination was in Kristen's best interests. After finding a statutory ground for termination, the superior court must determine what is in the child's best interests by a preponderance of the evidence. Alma S. v. Dep't of Child Safety, 245 Ariz. 146, 149, ¶ 8 (2018). Once the court finds a statutory ground for termination, "the interests of the parent and child diverge," and "the focus shifts to the interests of the child as distinct from those of the parent." Id. at 150, ¶ 12 (quoting Kent K. v. Bobby M., 210 Ariz. 279, 285, ¶ 31 (2005)). Termination is in the child's best interests "if the child will benefit from severance" or be harmed if the relationship continued. Id. at 150, ¶ 13. Courts "must consider the totality of the circumstances existing at the time of the severance determination, including the child's adoptability and the parent's rehabilitation." Id. at 148, ¶ 1.
¶ 23 The court may find a child would benefit from termination if the child is adoptable, Titus S., 244 Ariz. at 370, ¶ 19, or if the child "would benefit psychologically from the stability an adoption would provide," Maricopa Cnty. Juv. Action No. JS-501904, 180 Ariz. 348, 352 (App. 1994). Conversely, the court may find a child would be harmed by the continuation of the parent-child relationship "where there is clear and convincing evidence of parental unfitness, which has not been remedied notwithstanding the provision of services by [DCS] and which detrimentally affects the child's well-being." Pima Cnty. Juv. Action No. S-2460, 162 Ariz. 156, 158 (App. 1989).
¶ 24 Mother argues the superior court did not give enough weight to her participation in services or the degree to which her relationship with Kristen can be nurtured. The superior court weighed these factors but determined that even if Mother's mental illness was being treated through her services, it remained unmanaged. And Mother's unstable mental health harmed Kristen, as evidenced by the child's fear, anxiety, and need for therapy after Mother's outbursts. Kristen was thus subject to ongoing harm absent termination. The superior court also found termination would benefit Kristen for many reasons, including her prospective adoption by a foster family who has bonded with Kristen and is meeting her needs. Because reasonable evidence supports these findings, we will not reweigh the evidence on appeal. Jesus M., 203 Ariz. at 282, ¶ 12.
¶ 25 Because we affirm the termination order under the mental-illness ground, we need not address Mother's arguments under the fifteen-month out-of-home placement ground. Id. at 280, ¶ 3 ("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.").
CONCLUSION
¶ 26 For the foregoing reasons, we affirm.