Opinion
No. 1 CA-JV 13-0114
01-16-2014
JONAS C., Appellant, v. ARIZONA DEPARTMENT OF ECONOMIC SECURITY, THOMAS S., I.S., Appellees.
The Stavris Law Firm, P.L.L.C., Scottsdale By Alison Stavris Counsel for Appellant Arizona Attorney General's Office, Mesa By Eric Devany Counsel for Appellee Arizona Department of Economic Security
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
Appeal from the Superior Court in Maricopa County
No. JS 506883
The Honorable Bradley H. Astrowsky, Judge
AFFIRMED
COUNSEL
The Stavris Law Firm, P.L.L.C., Scottsdale
By Alison Stavris
Counsel for Appellant
Arizona Attorney General's Office, Mesa
By Eric Devany
Counsel for Appellee Arizona Department of Economic Security
MEMORANDUM DECISION
Judge Margaret H. Downie delivered the decision of the Court, in which Presiding Judge Kent E. Cattani and Chief Judge Diane M. Johnsen joined. DOWNIE, Judge:
¶1 Jonas C. ("Father") appeals the juvenile court's order terminating his parental rights. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
We view the facts in the light most favorable to sustaining the juvenile court's ruling. See Lashonda M. v. Ariz. Dep't of Econ. Sec., 210 Ariz. 77, 82, ¶ 13, 107 P.3d 923, 928 (App. 2005) (citation omitted).
¶2 I.S. was born in November 2006. He has three half-siblings who live with their maternal grandmother ("Grandmother"). Father first met I.S. in November 2008 and had contact with him for approximately one week before the boy's mother ("Mother") took him away. Mother remained "in hiding" from Father, whom she believed was a "dangerous person," and from Child Protective Services ("CPS"), which had previously investigated Mother.
¶3 Mother was hospitalized after a car accident, and Grandmother contacted CPS, who took custody of I.S. on October 3, 2009. I.S. had "no language development," had not been potty trained, had received only one immunization, and had a bleeding rash covering his entire body. He was also anemic and suffering from a protein deficiency. A physician instructed CPS to ensure that I.S. received adequate dietary protein, such as through meat products. I.S. has remained with Grandmother throughout the juvenile court proceedings.
¶4 Father endorsed a so-called "Democratarian" approach to parenting and wanted to raise I.S. as a "free spirit." He voiced strong opposition to medical care or medication, including immunizations. Father is a strict vegan and declined to feed I.S. meat, explaining that he could obtain adequate protein from a vegan diet.
¶5 The initial case plan was for family reunification. CPS offered supervised visits, one-on-one parenting skills sessions with a parent aide, therapeutic visits, mental health examinations, individual counseling, a bonding assessment, marriage counseling, drug testing, and drug counseling.
Father's drug screens indicated no recent drug use, but he nevertheless completed a substance abuse program.
¶6 Supervised visits began immediately. Mother and Father argued constantly and could not agree on how to raise I.S. or handle his dietary, medical, and developmental needs. CPS continuously redirected the parents to interact with I.S. rather than bickering with one another. Father also had "significant difficulty cooperating with the visit guidelines of not discussing the [CPS] case" in front of I.S.
¶7 The original parent aide eventually refused to continue visits, stating Father was "abusive" and the visits were "out of control." Karen Noggle provided parent aide services thereafter. Because I.S. had speech delays, Ms. Noggle advised the parents to let him speak as much as possible during visits. Nevertheless, Father talked "incessantly," permitting I.S. to speak infrequently. Father was "very high strung" and "all over the place." Ms. Noggle repeatedly advised him to slow down with I.S., but Father could not consistently do so.
¶8 Father was "combative" and rejected many of the parent aide's suggestions. He frequently went into diatribes, explaining the soundness of his views "over and over." In one instance, when Ms. Noggle asked him to reschedule a visit because it conflicted with I.S.'s speech therapy, Father delivered a "lecture" about how he does not approve of speech therapy, public schools, or medical doctors.
¶9 Despite frequent admonitions and a contract Father signed agreeing to curtail the practice, the parents continued to argue during visits. They eventually received separate visits with I.S., which led to some improvement. Nevertheless, Father had difficulty respecting Mother's visitation time and generally exhibited the same behavioral patterns. Father was unable to identify child safety issues. Several times, he attempted to feed I.S. snacks so large they constituted choking hazards. During one visit, Father pushed I.S. in a toy car so fast the child fell out of it. On another occasion, he took I.S. to the playground on an extremely hot day, but did not heed the parent aide's directive to avoid the slide because it was too hot and could burn the child.
¶10 After about six months, Ms. Noggle recommended a different parent aide because she believed Father resented her, and she wanted to offer him "every chance to succeed." The same general behaviors continued under the new parent aide, though Father exhibited some improvement. He completed homework assignments and independently studied child rearing. However, Father could not consistently apply concepts he learned. The most recent parent aide labeled him a "mentally abusive" "militant vegan" who "talk[s] excessively" and unnecessarily makes topics such as the dangers of meat the primary focus of visits. The aide concluded Father did not understand how to socialize I.S., define his parental role, or engage in age-appropriate communication.
¶11 CPS staff supervised Father's visits thereafter. Case manager Gail Olson noted that Father could not read I.S.'s cues and proceeded rapidly from one activity to another. Father had to be constantly redirected from making inappropriate comments, including, "[y]ou can come home with daddy." When redirected, Father would argue with the case manager. Father also "did not seem to have . . . a good ability to determine what was safe [and what] was not safe." For instance, he attempted to teach I.S. to skateboard in a busy parking lot. After about eight months, I.S. began resisting visits. CPS-supervised visits were replaced with therapeutic visitations.
¶12 Rebecca Currie facilitated therapeutic visitations for almost a year. Father had difficulty accepting the therapist's role and lost his temper when she questioned his parenting methods. On one occasion, Father became upset, yelled at Ms. Currie, and mocked her in the waiting room as he left. Ms. Currie reported that Father lacked awareness of I.S.'s developmental level, talked "incessantly," and made inappropriate comments, telling I.S. things such as, "I will come for you," and "[Ms. Currie] thinks I am going to poison you." Father had great difficulty following recommendations. Ms. Currie was concerned about his ability to meet I.S.'s needs.
¶13 CPS referred Father to Dr. James Thal for a psychological evaluation. Dr. Thal noted Father's "extreme distractibility," tangential thought processes, "overly rapid" speech, poor judgment and insight, and "apparent hyperactivity." He opined that Father had "some very pronounced deficits" and could not "adequately care for a young child at this time." Dr. Thal made a rule-out diagnosis of Attention-Deficit/ Hyperactivity Disorder ("ADHD").
¶14 Dr. Richard Rosengard conducted a psychiatric evaluation. He also observed ADHD symptoms, including an inability to focus or concentrate, as well as hyperactivity. Father was tangential in his thought processes, could not sit quietly, and talked incessantly. Dr. Rosengard found that Father lacked insight into his interactions with others and testified that he had an "aggressive, in-your-face" style of presenting his beliefs. Dr. Rosengard diagnosed Father with "[r]ule out attention deficit hyperactivity disorder, combined type" and "[p]ersonality disorder, NOS." The personality disorder diagnosis was based on Father's display of traits consistent with narcissistic personality disorder, borderline personality disorder, and obsessive compulsive disorder. Dr. Rosengard concluded that Father's prognosis for demonstrating adequate parenting skills in the foreseeable future was "limited."
¶15 CPS offered Father individual psychotherapy with Thomas Aubrey for approximately two years to help overcome his "cognitive rigidity" and to learn to accept change. Mr. Aubrey initially found that Father "was very tangential, derailed off topics," and could not "stay focused on what we were discussing." Father, though, was compliant with therapy and had "great determination" to be reunified with I.S. Even so, he made "slow progress." Near the end of the therapy sessions, Mr. Aubrey concluded Father had grasped some basic tenets, but still had "poor insight" in terms of applying the principles and remained unaware of his rigidity, continuing to demonstrate "immature projection[] toward others."
¶16 Dr. Glenn Moe conducted a bonding assessment. He interviewed Father and Grandmother, observed them (and other members of Grandmother's household) interact with I.S., and reviewed parent aide reports. Father frequently offered long, tangential responses that got "further and further" from Dr. Moe's questions. Dr. Moe concluded that I.S. and Father had a "playful relationship," but that Father would have difficulty parenting "in a manner that would provide for [I.S.'s] best interest and needs." Dr. Moe cautioned that Father "does not represent an appropriate choice for [I.S.'s] placement."
¶17 Father self-referred to Dr. John Moran for a psychological evaluation. Dr. Moran found Father "mildly to moderately tangential," but easy to redirect. Father's style of speech, Dr. Moran concluded, suggested a deficit in attention. However, he could only make a rule-out diagnosis of ADHD. Dr. Moran did not diagnose Father with a personality disorder. He concluded that although I.S. required "more skillful parenting than many children," Father's responsiveness was "in the acceptable range," Father was willing to improve, and, therefore, he "appear[ed] to be fit to parent." Dr. Moran further opined that, "if [Father] is given the opportunity to play a meaningful role in [I.S.'s] life[,] he will [likely] embark on a course of continuous improvement as a parent."
¶18 More than two years into the case, Dr. Thal re-evaluated Father. He was struck by how little progress Father had made, despite the numerous services provided. Dr. Thal deemed Father "very limited" in insight and emotional intelligence. However, he noted that Father had apparently reversed his view of medical care, stating that a child should be seen by a doctor "every six months for routine checkups or sooner if ill." Dr. Thal diagnosed Father with ADHD and deferred diagnosis of a personality disorder, noting his obsessive-compulsive traits. Dr. Thal concluded that although Father would not intentionally harm a child in his care and clearly loved I.S., he could not adequately care for I.S. He noted Father's "hypomanic style of communicating, his obsessiveness, and his rigidity," all of which would "interfere significantly with his ability to parent." Dr. Thal viewed Father's prognosis for demonstrating adequate parenting skills in the foreseeable future as "poor" and recommended severance and adoption.
¶19 Father also pursued a psychiatric evaluation with Dr. Joel Parker. Dr. Parker noted that, "[o]n mental status examination, [Father] is quite unusual." Father required "significant structure to stay on task" and was "highly tangential and made numerous unusual gratuitous comments." Dr. Parker's diagnosis included "Probable Schizotypal Personality Features," but he excluded ADHD.
¶20 The Guardian ad Litem filed a severance petition on May 9, 2011, which the Arizona Department of Economic Security ("ADES") later joined. The petition alleged: (a) inability to parent due to mental illness, see Arizona Revised Statutes ("A.R.S.") section 8-533(B)(3); and (b) failure to remedy the circumstances that caused the child to be in an out-of-home placement for at least 15 months, see A.R.S. § 8-533(B)(8)(c). After a contested severance trial, the juvenile court granted the severance on both grounds and found severance to be in I.S.'s best interest.
¶21 Father timely appealed, challenging the evidence supporting the statutory grounds for severance, as well as the finding that ADES made reasonable efforts to reunify him with I.S. We have jurisdiction pursuant to A.R.S. §§ 8-235(A), 12-120.21(A)(1), and -2101(A)(1).
DISCUSSION
¶22 The juvenile court may terminate parental rights if it finds one of the statutory grounds for severance by clear and convincing evidence. A.R.S. §§ 8-533(B), -537(B). The court must also find by a preponderance of the evidence that termination is in the child's best interest. Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 22, 110 P.3d 1013, 1018 (2005). "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." Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, 280, ¶ 4, 53 P.3d 203, 205 (App. 2002). Therefore, we will affirm the juvenile court's severance order unless it is clearly erroneous. Id. (citation omitted).
Father has not challenged the best interest finding, so we do not address it. See, e.g., Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, 249, ¶ 13, 995 P.2d 682, 685 (2000).
¶23 The record supports the severance order based on mental illness. As such, we need not address the other independent ground for severance. See id. at ¶ 3 ("If clear and convincing evidence supports any one of the statutory grounds . . . we need not address claims pertaining to the other grounds.").
I. Mental Illness
¶24 To terminate parental rights under A.R.S. § 8-533(B)(3), the court must find by clear and convincing evidence that: (1) the parent suffers from a mental illness or mental deficiency; (2) the parent is unable to discharge parental responsibilities as a result; and (3) there are reasonable grounds to believe that the condition will continue for a prolonged, indeterminate period.
¶25 Relying on the diagnosed personality disorder, as well as the ADHD diagnosis, the juvenile court found clear and convincing evidence that Father was unable to discharge parental responsibilities due to mental illness, stating:
Father's personality disorder prevents him from having empathy towards others, from
reading and anticipating the needs of another, and inhibits his ability to engage in typical human interactions. This illness combined with Father's ADHD forces him to focus on nothing but his own needs, ideas, thoughts, and concerns. Father is narcissistic and inelastic in his thoughts. Therefore, Father is unable to focus on the needs of another. Father's incessant speech, his tangential thinking, and his general inability to successfully interact with others prevent him from being able to provide for the needs of a child. A child in his care will be at risk for abuse or neglect because Father would be too focused on himself to even notice a child's needs. Father would not be able to manage the daily schedule of a child.
¶26 The record supports the court's conclusions and refutes Father's suggestion he was never formally diagnosed with a mental illness. Dr. Rosengard specifically diagnosed him with a personality disorder, and Dr. Thal diagnosed a "personality disorder with prominent schizotypal features." Dr. Parker's assessment of "[p]robable [s]chizotypal [p]ersonality [f]eatures" is not inconsistent with those diagnoses. Dr. Thal's initial "rule-out" diagnosis of ADHD was made because he believed Father might simply have been "tense" during his first evaluation. On re-evaluation, though, Dr. Thal formalized the ADHD diagnosis. By that time, there was "an abundance of observations by a variety of people," all of whom commented on Father's ADHD symptoms. Dr. Rosengard testified that Dr. Thal's ADHD diagnosis was generally consistent with his own impressions. Dr. Moran's rule-out diagnosis of ADHD was not inconsistent. Dr. Parker did not believe Father suffered from ADHD, but he had not reviewed parent aide reports, and the juvenile court found Dr. Rosengard's testimony to be more persuasive than Dr. Parker's. Based on the evidence presented, the juvenile court could reasonably conclude that Father suffered from a mental illness.
The juvenile court also noted that during his trial testimony, Father "often provided rambling answers that had little to no relation to the question asked."
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¶27 The record must also establish that a parent's mental illness deprives him of the ability to effectively care for his child. Yavapai County Juv. Action No. J-9956, 169 Ariz. 178, 179, 818 P.2d 163, 164 (App. 1991) (citation omitted). Severance of parental rights is not appropriate merely because a child would be better off in a different environment. Maricopa County Juv. Action No. JS-5209 & No. JS-4963, 143 Ariz. 178, 185, 692 P.2d 1027, 1034 (App. 1984) (citation omitted). Rather, a danger to the child's welfare must be established. Id. (citation omitted).
¶28 Dr. Rosengard testified that a child raised by a parent with untreated ADHD and a personality disorder would not "learn consistent objective thought processes to think and attend in a sequential fashion." He expressed concern about missed appointments, unavailability of food or clothing, and a household "in disarray." Dr. Thal testified that Father's mental conditions render him unable to parent inasmuch as he is unable to respond to a child's basic needs or make necessary modifications to his own behaviors and attitudes. I.S.'s speech delays compound these problems. Dr. Thal concluded Father "is not able to adequately care for his child." Dr. Moe agreed, opining that Father "does not represent an appropriate choice for [I.S.'s] placement."
¶29 Although Dr. Moran disagreed, the juvenile court found his conclusions "inherently flawed and unreliable." A reasonable trier of fact could reach this conclusion based on the evidence presented. Dr. Moran did not review parent aide records and did not observe Father interact with I.S. Dr. Moran also acknowledged that Father was "defensive" regarding a test upon which Dr. Moran's opinion was partially based, and Father resisted admitting personal shortcomings. Dr. Moran's report concedes that "[t]he reliability and validity of this evaluation depends in large part on the accuracy and completeness of the assessment data."
¶30 Finally, the record must demonstrate reasonable grounds for believing that Father's condition will continue for a prolonged, indeterminate period. A.R.S. § 8-533(B)(3); see JS-5209 & JS-4963, 143 Ariz. at 184, 692 P.2d at 1033. The juvenile court found that Father "still has little if any insight into his mental illness" and its effects on the parent-child relationship. It also found that "Father's rigidity and inelastic personality created a circumstance in which no amount of services could be successful." The record supports these findings.
¶31 Despite extensive services, Father was unable to define his parental role, remained argumentative, could not engage in age-appropriate communication with his son, had little insight into I.S.'s needs, and poorly implemented ideas discussed in one-on-one skills sessions. Even therapeutic visitations did not lead to consistent, positive changes. In fact, CPS found that Father "ha[s] become more and more difficult to deal with as time has gone on." When Dr. Thal re-evaluated Father, he was struck by how little Father had changed over the course of the dependency and severance proceedings and labeled his prognosis for demonstrating adequate parenting skills in the foreseeable future as "poor." Dr. Rosengard testified that Father had not gained insight into his condition. Ample evidence supports the juvenile court's conclusion that Father's mental health conditions will continue for a prolonged, indeterminate period.
II. Reasonable Efforts to Reunify
¶32 ADES is required to establish by clear and convincing evidence that it provided the parent with adequate reunification services. See A.R.S. § 8-537(B); Mary Ellen C. v. Ariz. Dep't of Econ. Sec., 193 Ariz. 185, 192, ¶¶ 33-34, 971 P.2d 1046, 1053 (App. 1999) (citations omitted). However, ADES "is not required to provide every conceivable service." Maricopa County Juv. Action No. JS-501904, 180 Ariz. 348, 353, 884 P.2d 234, 239 (App. 1994). It need not provide services that are futile. Mary Lou C. v. Ariz. Dep't of Econ. Sec., 207 Ariz. 43, 49, ¶ 15, 83 P.3d 43, 49 (App. 2004). ADES must only "provide [the] parent with the time and opportunity to participate in programs designed to improve the parent's ability to care for the child." Mary Ellen C., 193 Ariz. at 192, ¶ 37, 971 P.2d at 1053.
¶33 The juvenile court found clear and convincing evidence of diligent and reasonable reunification services. Father received a multitude of services over more than three years. Dr. Thal opined that providing further psychiatric services was "likely to be futile" because Father was steadfastly opposed to taking psychiatric medications. Dr. Moe agreed that no amount of further services would improve Father's parenting abilities.
¶34 Father argues ADES failed to make diligent efforts at reunification because it did not implement Mr. Aubrey's recommendation that he and I.S. participate in therapy to develop a bond. However, the severance order was based on Father's mental illness, which would not have been ameliorated by such therapy. Moreover, Father had ample opportunity to bond with I.S. during visits, but often elected instead to argue with Mother and supervising professionals.
CONCLUSION
¶35 We affirm the juvenile court's severance order.