Opinion
No. 1 CA-JV 19-0304
06-23-2020
ROBYN M., Appellant, v. DEPARTMENT OF CHILD SAFETY, A.Q., Appellees.
COUNSEL John L. Popilek, PC, Scottsdale By John L. Popilek Counsel for Appellant Arizona Attorney General's Office, Phoenix By Sandra L. Nahigian Counsel for Appellee
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. JD35105
The Honorable Jose S. Padilla, Judge, Retired
AFFIRMED
COUNSEL John L. Popilek, PC, Scottsdale
By John L. Popilek
Counsel for Appellant Arizona Attorney General's Office, Phoenix
By Sandra L. Nahigian
Counsel for Appellee
MEMORANDUM DECISION
Judge James B. Morse Jr. delivered the decision of the Court, in which Presiding Judge David D. Weinzweig and Judge Jennifer M. Perkins joined. MORSE, Judge:
¶1 Robyn M. ("Mother") appeals the juvenile court's order terminating her parental rights to her child, A.Q. For the following reasons, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 Mother and Albert Q. ("Father") are the natural parents of A.Q., born December 2013 (the "Child"). Mother has a history of substance abuse, domestic violence, and mental health issues.
¶3 In November 2017, the Department of Child Safety, ("DCS") received a report that Mother left the Child with his maternal grandmother for extended periods of time but failed to permit the grandmother, or anyone else, to seek medical treatment for the Child. The report also alleged Mother abused the Child. Thereafter, DCS filed a petition alleging that the Child was dependent as to Mother on the grounds of neglect and substance abuse. At the time of removal, the Child required treatment for an upper-respiratory infection and DCS was unable to locate Mother. The Child was placed in the custody of his maternal great aunt ("Great Aunt"). In February 2018, the court found the Child dependent as to Mother.
¶4 From November 2017 to August 2018, Mother did not engage in DCS-provided services, failed to submit to drug testing, and inconsistently attended scheduled visits with the Child. In February 2018, DCS's unit psychologist recommended suspending visitation because the Child exhibited self-harming behavior before and after his visits with Mother. Mother did not contact DCS between April and July 2018. After visits with Mother ceased, the Child stopped self-harming.
¶5 In June 2018, Mother—who was homeless at the time—was hospitalized for psychiatric care after having suicidal ideations and auditory hallucinations. She reported making two prior suicide attempts and was diagnosed with bipolar I disorder with psychosis.
¶6 After her discharge from psychiatric care, Mother engaged with DCS and enrolled in substance-abuse treatment, domestic-violence counseling, and parenting classes. In September 2018, Mother was diagnosed with post-traumatic stress disorder (PTSD), various substance-related disorders, and borderline intellectual functioning. The psychologist opined that Mother was "unable to functionally parent," her conditions would significantly and negatively affect her ability to parent in the foreseeable future, and she was "in dire need of extensive trauma work."
¶7 DCS asked Mother to self-refer for trauma therapy. Mother did not self-refer for trauma therapy, and declined multiple offers from DCS to help get treatment.
¶8 Between August 2018 and May 2019, Mother tested negative for controlled substances. She had visitation with the Child, but his self-harming behavior returned. The Child's therapists reported that he had a strong bond with Mother but viewed his Great Aunt as his protector and was unsure whether to live with Great Aunt or Mother. The therapist also reported that the Child had been exposed to "extreme physical and emotional abuse." In January 2019, the Child's psychologist diagnosed him with PTSD caused by medical neglect and witnessing multiple domestic-violence incidents.
¶9 In February 2019, DCS moved to terminate Mother's parental rights on the grounds of mental deficiency, chronic substance abuse, and fifteen-months time-in-care.
¶10 In April 2019, DCS again moved to end Mother's visits with the child after the DCS psychologist concluded that the visits were "detrimental and harmful." Mother withdrew her objection and the court suspended Mother's visits, finding that they would endanger the Child.
¶11 The juvenile court held a three-day severance trial in June and August 2019. It heard testimony from Mother, Great Aunt, the DCS caseworker, and three experts - Dr. Jeremiah Isbell (Mother's psychologist), Dr. Al Silberman (bonding assessment psychologist), and Dr. Sonja Raciti (Child's psychologist). At the time of trial, Mother had not obtained the recommended therapy to address her trauma history.
¶12 DCS submitted its Findings of Fact and Conclusions of Law and Order, which the juvenile court signed and filed on September 6. The court found termination warranted on the time-in-care ground. See A.R.S. § 8-533(B)(8)(c). The court also found severance was in the Child's best interests and terminated Mother's parental rights. The court also terminated Father's parental rights, but he is not a party to this appeal.
¶13 Mother timely appealed, and we have jurisdiction pursuant to A.R.S. §§ 8-235(A), 12-120.21(A)(1), and -2101(A)(1).
DISCUSSION
I. Termination of the Parent-Child Relationship.
¶14 Mother challenges the juvenile court's finding that the statutory grounds for termination were proven by clear and convincing evidence but does not directly contest the court's best interests finding. See Alma S. v. Dep't of Child Safety, 245 Ariz. 146, 151, ¶ 17 (2018). We review the court's termination order for an abuse of discretion. Mary Lou C. v. Ariz. Dep't of Econ. Sec., 207 Ariz. 43, 47, ¶ 8 (App. 2004) (citing Maricopa Cty. Juv. Action No. JV-132905 , 186 Ariz. 607, 609 (App. 1996)). We accept the court's findings of fact unless no reasonable evidence supports them. Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, 280, 282 ¶¶ 4, 12 (App. 2002) (noting that "we do not re-weigh the evidence on review").
¶15 To prove the allegations for the fifteen-months time-in-care ground, DCS had to show that it "made a diligent effort to provide appropriate reunification services" and that:
The child has been in an out-of-home placement for a cumulative total period of fifteen months or longer pursuant to court order or voluntary placement pursuant to [A.R.S.] § 8-806, the parent has been unable to remedy the circumstances that cause the child to be in an out-of-home placement and there is a substantial likelihood that the parent will not be capable of exercising proper and effective parental care and control in the near future.A.R.S. § 8-533(B)(8)(c). The relevant "circumstances" are those "existing at the time of the severance that prevent a parent from being able to appropriately provide for his or her children." Jordan C. v. Ariz. Dep't of Econ. Sec., 223 Ariz. 86, 96, ¶ 34 n. 14 (App. 2009) (quoting Marina P. v. Ariz. Dep't of Econ. Sec., 214 Ariz. 326, 330, ¶ 22 (App. 2007)).
¶16 The record amply supports, and Mother does not dispute, the services offered by DCS, the length of the Child's out-of-home placement, and the failure to remedy circumstances. Instead, Mother argues that the juvenile court erred in determining DCS had shown a substantial likelihood that Mother would not be able to parent effectively in the near future. Reasonable evidence supports the juvenile court's findings and we reject Mother's argument.
¶17 The Child was initially taken into DCS's custody because Mother was not attending to the Child's medical needs. During the dependency, Mother struggled to maintain stable housing and employment. She eventually completed some services, but at the time of trial Mother had not started any treatment for her PTSD. The court found that Mother was unable to parent the Child and "may need months of individual counseling and support" before she would be able to parent the Child safely. The evidence supports this conclusion.
¶18 Mother points to the many services in which she participated, including treatment for domestic violence and substance abuse. She also asserts that she was employed, acquired housing, and passed all drug tests in the year before termination. While these efforts are commendable, marginal improvement by a parent does not require the court to find that the parent will be effective in the near future. See Maricopa Cty. Juv. Action No. JS-501568 , 177 Ariz. 571, 577 (App. 1994) (upholding severance where parent's successful efforts to overcome drug addiction were "too little, too late"); see also Raymond F. v. Ariz. Dep't of Econ. Sec., 224 Ariz. 373, 378, ¶ 25 (App. 2010) (noting that children should not be forced to wait inordinately for a parent to develop necessary parenting skills).
¶19 Citing Marina P., Mother argues that the law only requires "good faith efforts to comply with remedial programs outlined by" DCS. But Marina P. addressed different grounds for termination—nine-months time-in-care. 214 Ariz. at 329, ¶ 19 (citing A.R.S. § 8-533(B)(8)(a)). That ground contains different elements than the fifteen-months time-in-care ground found by the juvenile court. Compare A.R.S. § 8-533(B)(8)(a) (parent must have "substantially neglected or willfully refused to remedy the circumstances that cause the child to be in an out-of-home placement"), with A.R.S. § 8-533(B)(8)(c) (parent must be "unable to remedy the circumstances" and "there is a substantial likelihood" that parent will be unable to properly and effectively parent in the near future). Thus, Mother's reliance on Marina P. is misplaced.
¶20 Viewing the complete record in the light most favorable to sustaining the juvenile court's findings, Jordan C., 223 Ariz. at 93, ¶ 18, we cannot say the court abused its discretion in finding a substantial likelihood that Mother would not be capable of proper and effective parenting in the near future.
II. Evidentiary Issues.
¶21 Mother also contends that the juvenile court erred by allowing Dr. Isbell and Dr. Silberman to give updated expert testimony and that DCS failed to timely disclose Dr. Raciti and her psychological report. Because of the juvenile court's "broad discretion in admitting or excluding evidence," we review evidentiary rulings for an abuse of discretion and resulting prejudice. Lashonda M. v. Ariz. Dep't of Econ. Sec., 210 Ariz. 77, 82-83, ¶ 19 (App. 2005). "A court abuses its discretion if it exercises its discretion 'on untenable grounds, or for untenable reasons,'" or "when it commits an error of law." James A. v. Dep't of Child Safety, 244 Ariz. 319, 321, ¶ 7 (App. 2018) (citations omitted). The juvenile court may impose a sanction, including preclusion, for untimely disclosed evidence, but in so doing, the court must act in accordance with the best interests of the child. Id. at ¶ 8.
A. Testimony of Dr. Isbell and Dr. Silberman.
¶22 As an initial matter, DCS argues that Mother waived her objections to Dr. Isbell and Dr. Silberman's testimony by failing to properly object at trial. In our discretion, we assume Mother preserved the issues. See Aleise H. v. Dep't of Child Safety, 245 Ariz. 569, 573, ¶ 12 (App. 2018) (finding waiver discretionary).
¶23 Mother asserts that DCS failed to disclose Dr. Silberman's and Dr. Isbell's updated testimony before the hearing pursuant to Arizona Rules of Procedure for the Juvenile Courts 44. That rule requires each party to disclose its witnesses, along with a "description of the substance of the witness's expected testimony." Ariz. R.P. Juv. Ct. 44(B)(2)(d). DCS's disclosure stated that the doctors would testify to "opinions, conclusions, recommendations and observations, and any other relevant matters." Dr. Isbell testified that the updated reports showing Mother had completed domestic violence counseling and parenting classes did not change his opinion that Mother's untreated trauma history would make it difficult for Mother to function as an individual or as a parent. Likewise, Dr. Silberman testified that the new reports did not change his opinion that giving the Child back to Mother would cause the Child harm. Both statements fit the description of the testimony that DCS disclosed. Mother fails to articulate why allowing this testimony was error. Nor does Mother show prejudice; indeed, her counsel cross-examined both doctors at length about her substance abuse and domestic violence treatment. Both doctors maintained that the new information had not changed their opinions. The juvenile court did not abuse its discretion by allowing the testimony.
B. Testimony of Dr. Raciti.
¶24 Mother also asserts the juvenile court erred in permitting Dr. Raciti to testify and in admitting her expert report. Great Aunt hired Dr. Raciti to perform a psychological evaluation of the Child in January 2019. DCS did not disclose Dr. Raciti or her expert report prior to trial. On the second day of trial, DCS moved to admit the report and claimed it "did not learn of it until just early last week." DCS also asked the court if it could call Dr. Raciti to testify on the third day of trial, which was eight days later. Over Mother's objection, the court permitted Dr. Raciti to testify about her psychological assessment of the Child and admitted her expert report. The court noted that the evidence went to the best interest inquiry and that, under Gama, the preclusion of such "evidence is frowned upon." See Hays v. Gama, 205 Ariz. 99 (2003) (finding abuse of discretion when precluding, as a contempt sanction, testimony of a child's therapist in a custody dispute). But compare Johnson v. Provoyeur, 245 Ariz. 239, 243, ¶ 16 (App. 2018) (holding that Gama does not prevent exclusion of untimely evidence as a discovery sanction), with James A., 244 Ariz. at 322, ¶ 13 (finding abuse of discretion when precluding "the potentially outcome-determinative bonding assessment report" in a severance case).
¶25 We need not address whether the court abused its discretion because Mother fails to argue that the court's ruling prejudiced her. See Kimu P. v. Ariz. Dep't of Econ. Sec., 218 Ariz. 39, 42, ¶ 11 (App. 2008) ("We will not disturb a trial court's ruling on the admission or exclusion of evidence unless a clear abuse of discretion is present and prejudice resulted therefrom."). When asked by the juvenile court on the second day of trial what prejudice Mother faced if the testimony and report were admitted, Mother's counsel responded: "I'd like [the] opportunity to [] review it, as well as cross-examine a witness if necessary." The court ruled that the report was inadmissible unless Dr. Raciti testified. Mother did not request a continuance. Mother's counsel had eight days to review the four-page report and then cross-examined Dr. Raciti about her report and evaluation of the Child.
¶26 Further, reversal is not required if the alleged error was harmless. Alice M. v. Dep't of Child Safety, 237 Ariz. 70, 73, ¶ 12 (App. 2015). Even without Dr. Raciti, the record shows that DCS presented sufficient evidence for the juvenile court to conclude that termination of Mother's parental rights was in the Child's best interest. See Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 22 (2005) (noting preponderance of the evidence standard for best interests finding). The court found that: (1) the Child's self-harming stopped after visitation with Mother was suspended, (2) the Child had bonded with Great Aunt, (3) Great Aunt met the Child's special needs and was willing to adopt the Child, (4) termination would provide the Child with permanency, and (5) continuing the parent-child relationship could harm the Child. These findings are supported by the record and are sufficient to justify the juvenile court's conclusion that termination was in the Child's best interests. See id. at 286, ¶ 34 (finding of foremost concern is "protect[ing] a child's interest in stability and security") (citing Pima Cty. Juv. Severance Action No . S-114487 , 179 Ariz. 86, 101 (1994)); Demetrius L. v. Joshlynn F., 239 Ariz. 1, 4-5, ¶ 16 (2016) ("It is well established in state-initiated cases that the child's prospective adoption is a benefit that can support a best-interests finding.") (citing Raymond F., 224 Ariz. at 379, ¶ 30)); see also Maricopa Cty. Juv. Action No. JS-6831 , 155 Ariz. 556, 559 (App. 1988) (finding the existence of a statutory ground for severance that negatively effects a child to be relevant to the best-interests analysis). Because the record supports the court's best interest finding, even without the evidence Mother challenges, we will not disturb it on appeal. See Alice M., 237 Ariz. at 74, ¶ 12.
¶27 Accordingly, we find no reversable error in the admission of the disputed evidence and testimony.
CONCLUSION
¶28 For the foregoing reasons, we affirm the juvenile court's order terminating Mother's parental relationship with the Child.