Opinion
1 CA-JV 21-0251
02-10-2022
KARI M., Appellant, v. DEPARTMENT OF CHILD SAFETY, B.M., MUSCOGEE CREEK NATION, Appellees.
David W. Bell Attorney at Law, Higley By David W. Bell Counsel for Appellant Arizona Attorney General's Office, Phoenix By Emily M. Stokes 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Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court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. JD531327 The Honorable Jeffrey A. Rueter, Judge
David W. Bell Attorney at Law, Higley By David W. Bell Counsel for Appellant
Arizona Attorney General's Office, Phoenix By Emily M. Stokes Counsel for Appellee Department of Child Safety
Judge Brian Y. Furuya delivered the decision of the Court, in which Presiding Judge Randall M. Howe and Judge Michael J. Brown joined.
MEMORANDUM DECISION
FURUYA, JUDGE
¶1 Kari M. ("Mother") appeals the juvenile court's order granting permanent guardianship of her son, B.M., to his maternal grandparents ("Grandparents"). Because B.M. is an Indian child under the Indian Child Welfare Act ("ICWA"), 25 U.S.C. §§ 1901-1963- where Alex C. ("Father") is a member of Muscogee Creek Nation and, thus, B.M. is eligible for tribal enrollment-these proceedings are subject to ICWA. Mother argues the court abused its discretion in finding beyond a reasonable doubt that further efforts at reuniting B.M. and Mother would be unproductive and that she is unable to safely parent B.M. because of her Joubert Syndrome. For the following reasons, we affirm.
Although B.M.'s Father was included in the juvenile court's order granting the permanent-guardianship motion, he did not participate in the guardianship proceedings and is not a party to the instant appeal.
FACTS AND PROCEDURAL HISTORY
¶2 As an initial matter, the factual and procedural history concerning the instant case has been largely recounted in Kari M. v. Dep't of Child Safety ("DCS"), 1 CA-JV 20-0389, 2021 WL 1696849, at *1-*3, ¶¶ 2-15 (Ariz. App. April 29, 2021) (mem. decision). There, because it was unclear whether DCS was held to the correct burden-proof beyond a reasonable doubt-in establishing the requirements for a guardianship, we remanded to the juvenile court to determine whether DCS satisfied its burden. Id. at *4, ¶¶ 18, 20. After additional argument from the parties, the juvenile court found that DCS had met its burden by proof beyond a reasonable doubt, and Mother filed the instant appeal.
¶3 Mother has Joubert Syndrome, which affects her cognitive functioning, judgment, speech, and balance; she is considered a vulnerable adult by Adult Protective Services and has night blindness. After B.M.'s birth in 2011, Mother and B.M. lived with the boy's Grandparents for about six years, who assisted with B.M.'s care during that time. In November 2016, Mother moved with B.M. into an adult group home for the developmentally disabled. She allowed in-home providers to care for B.M., and he became fearful of them. B.M. reported being yelled at and threatened by one of the providers, and he was left in Mother's room "for hours unsupervised by this individual." Law enforcement investigated, Mother and B.M. moved back in with Grandparents, and when Mother moved out again in April 2017, Grandparents obtained temporary sole legal decision-making authority over B.M. through family court. Id. at *1, ¶ 3.
¶4 In December 2017, B.M.'s best-interests attorney in the family court matter filed a dependency petition, alleging Mother was unable to properly and effectively care for B.M. -who remained in the physical custody of Grandparents. DCS subsequently was substituted as petitioner and the court ordered B.M. to remain with Grandparents.
¶5 Meanwhile, Mother rented an apartment and worked at various times as a caretaker and in a classroom setting. DCS provided her with reunification services, including two psychological evaluations, a neuropsychological evaluation, individual and family counseling, and parent aide services with visitation.
¶6 Between February and August 2018, Mother successfully completed the parent aid service-meeting all goals except for enhancing the capacity to plan/articulate plans for B.M.'s protection. Between April and June, Mother and B.M. participated in family therapy-concurrent with B.M.'s individual trauma therapy. During early sessions, B.M. struggled to focus but Mother was able to engage him towards the end of the service. In June, Mother completed a psychological evaluation with Dr. Alex Levitan. Dr. Levitan diagnosed Mother with an adjustment disorder and borderline intellectual functioning, and he suspected child neglect. He found Mother "to be dependent on others to effectively parent her child" and lacked a non-professional, social support network otherwise necessary "to mitigate deficits" in her ability to responsibly parent. Given the absence of this vital network and Mother's "physical and cognitive limitations," Dr. Levitan opined that B.M. was at an elevated risk of parentification- defined as "placing developmentally inappropriate levels of responsibility" on a child -and harm in her care. Thereafter, in August, the court found B.M. dependent after a contested hearing and set a case plan of family reunification. B.M. remained with Grandparents. Id. at ¶ 7.
¶7In September 2018, supervised visitation began. But in October, Mother fell, hit her head, and required hospitalization. She did not remember what happened or that she had a child. Further, she instructed DCS not to inform Grandparents of her fall. In November, Mother completed a neuropsychological evaluation with Dr. Kelly Rodriguez. The evaluation confirmed Mother has Joubert Syndrome, impairing her speech, cognitive flexibility, motor coordination, and memory. Dr. Rodriguez further diagnosed her with a neurodevelopmental disorder, likely associated with Joubert Syndrome, which "impacts [Mother's] parenting abilities in several manners, such as decision-making, problem-solving, adaptation to environmental changes to her environment, and providing a safe environment." Thus, Dr. Rodriguez recommended Mother participate in individual counseling with a doctorate-level therapist.
¶8 In February 2019, DCS sent Mother a list of doctorate-level therapists covered by her insurance and offered to help schedule the intake appointment. Mother declined DCS's help. Instead, she sought counseling through the Family Involvement Center, which did not provide her with a doctorate-level therapist. Nevertheless, Mother began partially unsupervised visits with B.M. in February and began unsupervised visits in April. In June, DCS referred Mother to Dr. Elizabeth Capps-Conkle for doctorate-level individual therapy and Mother began seeing her in July. Mother and Grandparents also started participating in family therapy.
¶9 Around September 2019, Mother faced financial difficulties and her church paid her rent in November. While Mother began having overnight visits with B.M. in November, B.M. displayed anxiety and troublesome behaviors each time DCS increased Mother's visits, such that overnight visits became infeasible. During this time, Mother also completed an updated psychological evaluation with Dr. Rodriguez, who noted Mother had recently been diagnosed with PTSD in March and she "lack[ed] insight into her own limitations," such as "knowing when to accept guidance and/or assistance in important decision-making situations."
¶10 In January 2020, DCS moved to appoint Grandparents as permanent guardians of B.M. (later amended in November). In March, Mother was evicted from her apartment for failure to pay rent- though she communicated to DCS at the time "she moved into a friend's home . . . to save money." With assistance from the Department of Developmental Disabilities ("DDD"), Mother shortly thereafter moved into an assisted-living facility that did not allow children. Mother did not inform DCS of her eviction; rather, DCS only became aware of Mother's move upon receipt of records from the DDD. In April, upon agreement of the parties, family therapy services ended because progress stalled. Twice between May and June, Mother went to the hospital for heat exhaustion. And as of June, Mother's visits with B.M. were held within the community and the Grandparents' home-though they did not need to be supervised.
¶11 The court held a permanent guardianship adjudication hearing over four days between June and November 2020. Witnesses included the ongoing DCS child safety specialist, Dr. Rodriguez, Dr. Capps-Conkle, ICWA-expert Cassandra Johnson, and Mother. Ultimately, the court granted permanent guardianship of B.M. to Grandparents.
¶12 The court determined that DCS had satisfied its burden beyond a reasonable doubt, specifically finding:
The Court heard testimony from a qualified ICWA expert that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and those efforts have proven unsuccessful. The ICWA expert also testified that continued custody of the child by the parents is likely to result in serious physical or emotional damage to the child. The ICWA expert also testified that current placement, the proposed guardians[, ] is consistent with ICWA placement preferences.
The court further found: guardianship is in B.M.'s best interests; B.M. had previously been adjudicated dependent; B.M. had been in the custody of Grandparents for nine months or longer; DCS had made reasonable efforts to reunify the family-in fact, "offered a litany of services" - and further efforts would be unproductive; and termination of Mother's parental rights would not be in B.M.'s best interests.
¶13 The court acknowledged Mother's love for her son, but the evidence nonetheless indicated she is unable to safely parent B.M. on her own because of limitations resulting from her Joubert Syndrome. The court noted her syndrome has caused neurological deficits and limited intellectual functioning, which impact her problem-solving and decisionmaking abilities and increases the risk of parentification of her child. Indeed, "[i]n the short duration of time in which Mother attempted to parent the child full time on her own, the evidence demonstrated that she was unable to meet the child's needs." Ultimately, the court found that "[a]ll the evidence supports the conclusion that Mother is unable to safely parent the child independently on a full[-]time basis" despite "the many interventions" DCS offered. Moreover, the court considered Mother's history of unstable housing, B.M.'s desire to live with Grandparents, and his expression of fear and his regressive behaviors when confronted with the prospect of residing with Mother.
¶14 Mother timely appealed the permanent guardianship order. We have jurisdiction pursuant to Arizona Revised Statutes ("A.R.S.") § 8-235(A) and Arizona Rule of Procedure for the Juvenile Court 103(A).
DISCUSSION
¶15 In a case involving an Indian child, a party moving for the appointment of a permanent guardianship must prove the allegations contained in their motion "beyond a reasonable doubt." A.R.S. § 8-872(G); Ariz. R.P. Juv. Ct. 63(C). A permanent guardianship between a child and a guardian may be established if the moving party demonstrates it would be in the child's best interests and, as relevant here, the following apply:
(1) the child has been adjudicated dependent,
(2) the child has been in the custody of the prospective permanent guardian for at least nine months,
(3) DCS has made reasonable efforts to reunite the parent and child and further efforts would be unproductive, and
(4) termination of parental rights would not be in the child's best interests.See A.R.S. § 8-871(A).
¶16 Additionally, in ICWA cases, the moving party, through the testimony of a qualified expert witness, must prove beyond a reasonable doubt "that continued custody of the child by the parent . . . is likely to result in serious emotional or physical damage to the child." Ariz. R.P. Juv. Ct. 63(C). And the moving party must "satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that those efforts have proven unsuccessful." Id. The court's "primary consideration" in ruling on a motion for permanent guardship must be "the physical, mental and emotional needs and safety of the child." A.R.S. § 8-871(C); see also Ariz. R.P. Juv. Ct. 63(D)(3).
Although ICWA "does not explicitly recognize permanent guardianships," we have clarified that "ICWA applies to Arizona's permanent guardianship proceedings." Navajo Nation v. DCS, 246 Ariz. 463, 467, ¶ 13 (App. 2019) (internal quotation marks omitted); see, e.g., Kari M., 1 CA-JV 20-0389, at *4, ¶ 21.
¶17 We will not "reverse a guardianship order unless it is clearly erroneous." Navajo Nation, 246 Ariz. at 466, ¶ 9. As in all such cases, the juvenile court "is in the best position to weigh the evidence, judge the credibility of the parties, observe the parties, and make appropriate factual findings." Mary Lou C. v. Ariz. Dep't of Econ. Sec, 207 Ariz. 43, 47, ¶ 8 (App. 2004). Therefore, when reviewing a court's order for permanent guardianship, "we accept its findings of fact unless reasonable evidence does not support them." Id. We do not reweigh the evidence but determine only whether there is evidence to sustain the court's ruling. Id.
¶18 Here, Mother challenges only the third statutory element under A.R.S. § 8-871(A), the court's finding that further reunification efforts would be unproductive and the court's general finding that she is unable to safely parent B.M. Though presented as an individual challenge to each finding on a point-by-point basis, Mother's brief generally amounts to a request to reweigh the evidence, which we will not do. See Mary Lou C, 207 Ariz. at 47, ¶ 8. The court's findings are supported by the record, thus permitting the establishment of a guardianship between B.M. and Grandparents. Mother also maintains, correctly, that Arizona law does not authorize imposition of a guardianship solely on the basis that a parent is unable to perform "all parenting duties on their own." But here, as the court noted, this case has been open for more than three years. During this time, as illustrated by the specific findings supported by this record, see supra ¶¶ 12-13, Mother has been unable to demonstrate a consistent ability to plan financially for and safely parent B.M. The court's primary consideration in a guardianship proceeding must be, as it was here, the child's safety. See A.R.S. § 8-871(C); Ariz. R.P. Juv. Ct. 63(D)(3).
¶19 Mother also generally disputes the court's findings that guardianship is in B.M.'s best interests and that B.M. will suffer serious emotional or physical harm if returned to Mother's care. She disputes such findings on the basis that the court improperly weighed B.M.'s "wishes" to be with Grandparents. But the record is clear, as recounted above, the court relied on more than B.M.'s desires to live with Grandparents in entering its guardianship order.
CONCLUSION
¶20 For the foregoing reasons, we affirm.