Opinion
No. 1 CA-JV 16-0092
11-22-2016
SARAH L. Appellant, v. DEPARTMENT OF CHILD SAFETY, A.S., V.S., A.D., I.D., S.L., Appellees.
COUNSEL Robert D. Rosanelli, Phoenix Counsel for Appellant Arizona Attorney General's Office, Mesa By Amanda Adams 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. JD22185
The Honorable Susanna C. Pineda, Judge
AFFIRMED
COUNSEL Robert D. Rosanelli, Phoenix
Counsel for Appellant Arizona Attorney General's Office, Mesa
By Amanda Adams
Counsel for Appellee Department of Child Safety
MEMORANDUM DECISION
Judge Jon W. Thompson delivered the decision of the Court, in which Presiding Judge Diane M. Johnsen and Judge Thomas C. Kleinschmidt joined. THOMPSON, Judge:
Pursuant to Article VI, Section 3 of the Arizona Constitution, the Arizona Supreme Court designated the Honorable Thomas C. Kleinschmidt, Retired Judge of the Court of Appeals, Division One, to sit in this matter.
¶1 Appellant Sarah L. (Sarah) appeals from the juvenile court's order severing her parental rights to her children A.S., V.S., A.D., I.D. and S.L. For the following reasons, we affirm the decision of the juvenile court.
FACTUAL AND PROCEDURAL HISTORY
¶2 Sarah is the biological mother of E.S. (born in August 2002), A.S. (born in August 2004), V.S. (born in March 2006), A.D. (born in December 2007), I.D. (born in December 2008), and S.L. (born in January 2011). In July 2012, DCS took E.S., A.S., V.S., I. D. and A.D. into custody after S.L. was hospitalized for a non-accidental injury to his scrotum which required surgery. Sarah denied knowing how S.L.'s injuries were sustained. She admitted to a history of mental illness including post-traumatic stress disorder, bipolar disorder, anxiety, and panic disorder. DCS had received numerous reports about the children since 2007, including a report in 2007 that Sarah had held three of the children underwater in a bathtub. Other reports between 2007 and 2012 included reports that Sarah had neglected the children and hit them when she was angry.
E.S., aka E.Z., is not subject to this appeal. He remains a dependent child. Although E.S. was initially included in the termination motion, DCS withdrew its motion as to him prior to the severance trial.
Sarah's children were fathered by A.D., A.S., and John Doe. None of the fathers had any contact with the children during the dependency and the juvenile court severed their parental rights on the basis of abandonment. The fathers are not parties to this appeal.
In 2007 Sarah admitted that she held E.S., A.S., and V.S. underwater "only for a second" because she was frustrated and that she had done so once before when she and the children were living in South Carolina. Sarah reportedly had also attempted suicide six times prior to 2007. DCS did not file a dependency petition then but referred Sarah to Family Builders to address her mental health issues. Around this time, Sarah placed E.S., A.S., and V.S. with her mother, who was later appointed as the children's permanent guardian. Subsequently, however, DCS removed E.S., A.S. and V.S. from their grandmother's custody after she allowed Sarah to have unsupervised contact with the children.
¶3 DCS filed dependency petitions as to all of the children and the juvenile court adjudicated them dependent as to Sarah in August 2012 after she entered into a mediation agreement with DCS. Sarah agreed to participate in parent aide services, substance abuse testing, and domestic violence counseling, and to undergo a psychological evaluation and follow any reasonable recommendations of the evaluator. She also agreed to continue with services she was already receiving through Southwest Behavioral Health, including counseling and medication monitoring. The juvenile court approved a case plan of family reunification.
¶4 Sarah underwent a psychological evaluation with Dr. James Thal in March 2013. Dr. Thal diagnosed Sarah with bipolar disorder, panic disorder, and borderline personality disorder. He opined that there were reasonable grounds to believe Sarah's mental illness, which he described as severe, would continue for a prolonged, indeterminate period of time. He concluded that the children could not safely be returned to Sarah and that Sarah's prognosis was "quite guarded," because "[e]ven with the existing/proposed interventions, it is not clear at all that [Sarah] will be able to discharge her parental responsibilities in a foreseeable timeframe." Dr. Thal recommended that Sarah undergo a psychiatric evaluation so that she could be placed on appropriate psychotropic medication.
¶5 Dr. Richard Rosengard, a psychiatrist, evaluated Sarah in July 2013. Dr. Rosengard diagnosed Sarah with bipolar disorder, panic disorder, and a personality disorder not otherwise specified with borderline and dependent traits. Dr. Rosengard opined that the prognosis for Sarah's ability to demonstrate minimally adequate parenting skills in the foreseeable future was poor, in part because of her lack of current treatment and lack of insight and/or a lack of willingness to admit to problems including psychiatric pathology. Dr. Rosengard recommended that Sarah participate in psychiatric treatment and be prescribed psychotropic medication. After receiving the results of her psychiatric examination, Sarah's case manager referred her to Magellan Health Services for a serious mental illness (SMI) assessment.
¶6 Sarah was evaluated at Magellan in November 2013. Sarah told the evaluator that she did not have mental health issues, and that someone else who was seriously mentally ill had stolen her Social Security number and her identity. Based on Sarah's self-report that she did not have mental health issues, the evaluator determined that Sarah did not qualify for SMI services. The evaluator, who apparently did not have copies of Sarah's previous evaluations, noted that Sarah was "somewhat hostile, provides very limited information and is overall vague and evasive." Sarah told the evaluator that her difficulties were caused by DCS.
¶7 Also in the fall of 2013, Sarah's referral for parent-aide services ended after Sarah had been unable to make progress in providing the children with structure and age-appropriate discipline during supervised visits, even after repeated instruction during one-on-one sessions with the parent aide. The parent aide was also concerned that Sarah often became frustrated with the children during the visits. The parent aide did not recommend a second referral for parent aide services. Thereafter, DCS provided Sarah only with visitation supervised by a parent aide until 2015 when DCS made another referral for parent aide services.
¶8 In May 2014, Sarah completed an intake at Southwest Behavioral Health Services (Southwest). Southwest provided Sarah with medication treatment and monitoring, another psychiatric evaluation, and individual therapy. Southwest discharged Sarah after a few months, however, after she missed several appointments and did not respond to its repeated letters and phone calls.
¶9 In February 2015 Sarah began counseling at Chicanos Por La Causa. In March 2015, DCS filed a severance motion alleging grounds for severance pursuant to Arizona Revised Statutes (A.R.S.) sections 8-533(B)(3) (2014) (mental illness), (B)(8)(a) (nine months' time in care), and (B)(8)(c) (fifteen months' time in care). In April 2015, Dr. Thal reevaluated Sarah. Dr. Thal found that Sarah was defensive and that she had "regressed in terms of recognizing and addressing her mental health issues." Dr. Thal was concerned that Sarah seemed to have little awareness of the children's many special needs and issues. Dr. Thal again opined that the children could not safely be returned to Sarah.
¶10 Sarah did not give her DCS case manager permission to speak with her therapist at Chicanos Por La Causa until the summer of 2015. Only then did the case manager learn that Sarah's therapist was unaware of Sarah's diagnoses and unaware about the reasons her children had been removed by DCS. Sarah expressed to her therapist that she believed DCS had a personal vendetta against her and told her therapist that the information in her psychological and psychiatric evaluations consisted of lies. Sarah agreed to start taking her medication but missed a medication management appointment in August 2015. Sarah consistently attended her therapy sessions from April 2015 until October 2015, when she missed an appointment. Sarah reported that she ran out of her medication in September. The therapist rescheduled the therapy session but Sarah missed the rescheduled appointment and did not attend any sessions in November 2015. Sarah missed both of her scheduled therapy appointments in December. She attended an appointment in January 2016.
¶11 Sarah contested the severance, and the juvenile court held a trial over the course of three days in late January and early February 2016. The juvenile court terminated Sarah's parental rights on grounds of mental illness, nine months' time in care, and fifteen months' time in care. The court further found that severance was in the children's best interests. Sarah timely appealed. We have jurisdiction pursuant to A.R.S. §§ 8-235 (2014), 12-120.21(A)(1) (2016), and -2101 (A)(1) (2016).
DISCUSSION
¶12 "We will not disturb the juvenile court's order severing parental rights unless its factual findings are clearly erroneous, that is, unless there is no reasonable evidence to support them." Audra T. v. Ariz. Dep't of Econ. Sec., 194 Ariz. 376, 377, ¶ 2, 982 P.2d 1290, 1291 (App. 1998) (citations omitted). We view the facts in the light most favorable to sustaining the juvenile court's ruling. Lashonda M. v. Ariz. Dep't of Econ. Sec., 210 Ariz. 77, 82, ¶ 13, 107 P.3d 923, 928 (App. 2005). We do not reweigh the evidence, because "[t]he 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) (citation omitted). The juvenile court may terminate a parent-child relationship if the petitioner proves by clear and convincing evidence at least one of the statutory grounds set forth in § 8-533(B). Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, 249, ¶ 12, 995 P.2d 682, 685 (2000). The court must also find by a preponderance of the evidence that severance is in the child's best interests. Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 22, 110 P.3d 1013, 1018 (2005).
Sarah does not appeal the juvenile court's determination that severance was in the children's best interests.
¶13 Sarah argues that the juvenile court's findings that she was unable to discharge parental responsibilities because of mental illness and there were reasonable grounds to believe the condition would continue for a prolonged, indeterminate period of time were clearly erroneous and not supported by substantial evidence. Section 8-533(B)(3) provides, in relevant part:
B. Evidence sufficient to justify the termination of the parent-child relationship shall include any one of the following, and in considering any of the following grounds, the court shall also consider the best interests of the child:
. . .
3. That the parent is unable to discharge parental responsibilities because of mental illness, mental deficiency or a history of chronic abuse of dangerous drugs, controlled substances or alcohol and there are reasonable grounds to believe that the condition will continue for a prolonged indeterminate period.
¶14 Substantial evidence supports the juvenile court's findings. Dr. Thal diagnosed Sarah with bipolar disorder, panic disorder, and borderline personality disorder in 2013 and described her mental illness as severe and likely to continue for a prolonged, indeterminate period of time. He concluded that the children could not safely be returned to Sarah. In April 2015, Dr. Thal reevaluated Sarah and found that she had regressed. He again concluded that the children could not safely be returned to Sarah. Dr. Rosengard diagnosed Sarah with bipolar disorder, panic disorder, and borderline personality disorder. Dr. Rosengard concluded that Sarah's prognosis for minimally adequate parenting was poor. Additionally, the record shows that Sarah's participation in therapy was inconsistent throughout the dependency as well as in the months just prior to the severance trial, and she did not consistently take her medication. Sarah's therapist, Ana Keck, testified that she was concerned that Sarah would stop taking her medication if the children were returned to her because Sarah did not believe she had bipolar disorder. Further, Sarah's supervised visits with the children did not go well. During visits in 2015, Sarah had difficulty dealing with the children's negative behaviors and frequently became frustrated with them. On this record, the juvenile court properly could conclude that DCS met its burden for severance on the mental illness ground.
Sarah argues "[w]hen Dr. Thal testified and reported that [Sarah] was not capable of effective parenting, he was not informed of [her] progress during the year before the trial," and "[w]hen he was informed, he testified that his opinion would be different . . .." On cross-examination, Sarah's attorney asked Dr. Thal whether his opinion about Sarah's prognosis would change if he knew she had been "medicine compliant" for the ten months prior to trial. Dr. Thal agreed that it would, stating "Certainly, that would alter my opinion. I think . . . that's much better - I don't know that she's ever done that in the past. So, that's much better and it would be foolish to ignore that. So that . . . obviously represents an improvement without me really knowing the details." On redirect, the state's attorney asked Dr. Thal whether he would find it important to know that Sarah had not been medically compliant. Dr. Thal agreed because "it's the same old pattern. And again, these are not medications that a person can start and stop. [A]gain, my concern has been . . . compliance. I think I noted that . . . in the very first report almost three years ago. So, that's a pattern that is . . . going to be a major issue unless [Sarah] can overcome that and be absolutely consistent." Similarly, Sarah's attorney asked Dr. Thal on cross-examination whether it would "bode a positive outcome" if Sarah been consistent with counseling at Chicanos Por La Causa for a year prior to trial. Dr. Thal answered in the affirmative: "Yes, it does. I mean, if she's coming to her appointments consistently, not no-showing or suspending therapy as she has in the past, . . . that's one part of it. The second part of it is what she has accomplished in therapy." As we note supra paragraph 10, Sarah's participation in counseling in the year preceding the severance trial was not consistent. Further, the evidence showed that Sarah was not consistently medically compliant in the months prior to the trial. Dr. Thal's testimony on cross-examination was based on scenarios that were hypothetical and did not reflect the evidence, and the juvenile court did not err by giving the testimony the weight it deserved. --------
¶15 Because sufficient evidence supports the § 8-533(B)(3) finding, we need not consider whether the juvenile court properly severed Sarah's parental rights on the grounds of nine months' or fifteen months' time in care. See Michael J., 196 Ariz. at 251, ¶ 27, 995 P.2d at 687.
CONCLUSION
¶16 For the foregoing reasons, the juvenile court's severance order is affirmed.