Opinion
No. 1 CA-JV 16-0056
11-29-2016
SCHUYLER D., Appellant, v. DEPARTMENT OF CHILD SAFETY, E.D., Appellees.
COUNSEL Gillespie, Shields, Durrant & Goldfarb, Phoenix By DeeAn Gillespie Strub 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. JD528102
The Honorable James P. Beene, Judge
AFFIRMED
COUNSEL Gillespie, Shields, Durrant & Goldfarb, Phoenix
By DeeAn Gillespie Strub
Counsel for Appellant Arizona Attorney General's Office, Mesa
By Amanda Adams
Counsel for Appellee Department of Child Safety
MEMORANDUM DECISION
Presiding Judge Peter B. Swann delivered the decision of the court, in which Judge Jon W. Thompson and Judge Donn Kessler joined. SWANN, Judge:
¶1 The father of a child with acute special needs appeals the juvenile court's determination of child dependency based on the father's inability to provide effective parental care and control. We affirm. The court reasonably found that the father had not seen the child in almost five years, that the child had serious mental health issues, that the child did not wish to see the father, and that the child's service providers did not recommend parental contact. The breakdown in the parent-child relationship supported the court's dependency determination.
FACTS AND PROCEDURAL HISTORY
¶2 E.D. was born to Talia D. ("Mother") and Schuyler D. ("Father") in June 2000. Mother and Father decided to homeschool E.D. starting in the third grade because he had experienced behavioral difficulties. Father took responsibility for the homeschooling and developed an individualized teaching strategy that he believed benefited E.D. He also developed a strategy that he believed effectively forestalled and minimized E.D.'s emotional outbursts.
¶3 In early 2011, Father petitioned for dissolution of his marriage to Mother. That April, he visited with E.D. for the last time — the day after that visit, Mother filed a police report accusing Father of having sexually abused E.D. and his sibling, and she soon thereafter obtained an order of protection that precluded Father from contacting the children.
Father has moved for an order striking certain portions of the Answering Brief that address this issue. We deny the motion.
¶4 In the December 2012 decree of dissolution, the court found that Father had not sexually abused the children but had committed domestic violence against Mother in the children's presence. The court further found that the children had "thoroughly 'sided with' Mother in the dissolution," did not wish to see or spend time with Father, and "are estranged from Father now." The court concluded that "[a]lthough Father does not deserve to be shut out of the children's lives, he is so estranged from them and from Mother that there is no workable alternative to sole custody with Mother at this time." The court appointed a therapeutic-intervention clinician to support "the goal of reunifying the children with Father," and ordered that Father's parenting time would temporarily be limited to the context of the therapeutic intervention. But Father did not successfully participate in the therapy, and therefore did not regain parenting time with E.D.
¶5 In 2014, Child Protective Services received several reports alleging that Mother had neglected E.D. by responding inappropriately to his emotional and physically aggressive outbursts. In August 2014, E.D. assaulted Mother, and she called the police. The police arrested E.D. and the state filed a delinquency petition. E.D. was held at a juvenile detention facility for three months, during which time a psychologist diagnosed him with Major Depressive Disorder and Autism Spectrum Disorder without accompanying intellectual or language impairment. In accordance with the psychologist's recommendation, E.D. was transferred to a residential treatment program at Youth Development Institute in Arizona.
Pursuant to S.B. 1001, Section 157, 51st Leg., 2nd Spec. Sess. (Ariz. 2014) (enacted), the Department of Child Safety is substituted for the Arizona Department of Economic Security in this matter. See ARCAP 27. In the text of our decision, we refer to the agencies that were involved at the relevant times.
¶6 Meanwhile, E.D.'s guardian ad litem had filed a dependency petition. The petition alleged, in relevant part, that E.D. was dependent because Mother and Father were unable to parent him due to his own needs. Mother waived her right to contest that allegation, and she submitted the issue of dependency to the court for prompt determination. The court found that E.D. was dependent as to Mother in October 2014. Father, however, contested the allegations of the petition, and E.D.'s dependency as to Father was not tried until December 2015.
¶7 E.D.'s condition deteriorated in the time leading up to the trial. After a serious outburst at Youth Development Institute in November 2014, that facility recommended that he be transferred to a specialized program for autistic children. Father's motion that he be allowed therapeutic visitation with E.D. was denied.
¶8 In December 2014, the court placed E.D. at Copper Hills Youth Center in Utah. But in March 2015, the state dismissed the delinquency charges based on E.D.'s lack of progress toward competency. And a month later, the Copper Hills staff informed E.D.'s court-appointed special advocate that the facility was unable to properly care for E.D. based on his behavioral issues and his refusal to take medication. Starting that same month, Father repeatedly but unsuccessfully requested that the clinical director of the Autism Spectrum Disorder Clinic at the University of Utah be allowed to consult with the Copper Hills staff. Meanwhile, E.D. continued to decompensate.
¶9 Department of Child Safety ("DCS") endeavored to find an appropriate residential placement for E.D. in Arizona. But those attempts proved unsuccessful. Father advocated that E.D. be placed at the University Neuropsychiatric Institute in Utah. The court, however, granted DCS's eventual motion to transfer physical custody to Mother subject to around-the-clock-services coverage by Highland Behavioral Health.
¶10 E.D. was transferred to Mother's physical custody in late June 2015. But only a few days later, E.D. had a severe emotional outburst and was hospitalized. He was then placed at a Department of Developmental Disabilities group home. Around this time, E.D. told his DCS case manager that he wanted no contact with either of his parents. He maintained that position throughout the duration of the dependency proceedings.
¶11 The court denied Father's renewed motion to transfer E.D. to the University Neuropsychiatric Institute in Utah. The court also denied Father's motions to have contact with E.D. and be involved in his treatment, his motions to appoint reunification providers, and his motion for an additional psychological evaluation. The court did, however, direct DCS to "seek out a counselor that would tailor services for Father that the Department deems appropriate if and when [E.D.] is integrated back into Father's life." And Father, who had taken several steps to educate himself regarding E.D.'s condition and care — including participating for over a year in a brain-injury support group, attending a conference on how to care for special-needs children, meeting with the head of the Autism Spectrum Disorder Clinic at the University of Utah, touring an autism-only high school in California, meeting with autistic adults, and reading literature and watching videos — did participate in some of the Child Family Team meetings for E.D. and was able to offer several helpful suggestions to the service providers.
¶12 At the conclusion of a three-day trial, the juvenile court found that E.D. was dependent as to Father. After noting that Father had been absent from E.D.'s life since 2011 and that none of E.D.'s service providers recommended immediate reunification, the court held that Father was "not capable of exercising proper care and control of the minor child at this time." The court explained:
Although Father presented evidence at the hearing regarding his laudable efforts to educate himself on his son's condition and how he might best prepare himself to parent his son, the Court finds that the child's psychological condition is too fragile and too complex for Father to adequately handle at this time. Every mental health expert that has evaluated the child has recommended against reuniting the child with his parents. The Court finds that returning the minor child to Father's care would not be in the child's best interest and could potentially cause the child to psychologically decompensate even further.
¶13 Father appeals. We deny his request to take notice of subsequent developments in E.D.'s treatment plan.
DISCUSSION
¶14 "[W]e afford broad discretion to the juvenile court, [and w]e view the evidence adduced in dependency proceedings in the light most favorable to sustaining the juvenile court's findings." Joshua J. v. Ariz. Dep't of Econ. Sec., 230 Ariz. 417, 424, ¶ 29 (App. 2012). The allegations of the dependency petition must, however, be supported by a preponderance of the evidence and "specific findings of fact." Ariz. R.P. Juv. Ct. 55(C), (E)(3).
¶15 A child is dependent if he or she is "[i]n need of proper and effective parental care and control and . . . has no parent or guardian willing to exercise or capable of exercising such care or control." A.R.S. § 8-201(15)(i) (renumbered from § 8-201(14)(i) by 2016 Ariz. Legis. Serv. Ch. 300, § 1). As the juvenile court noted at trial, Father's willingness to parent E.D. was undisputed. The only disputed issue was his capability.
¶16 Parental capability is assessed based not on whether the parent has legal custody of the child, but on whether the parent is fit to parent the child. Meryl R. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 24, 26, ¶ 5 (App. 1999). The paramount concern in any dependency action is the child's best interests. Joshua J., 230 Ariz. at 424, ¶ 29. Accordingly, the parental-fitness inquiry focuses on the needs and rights of the child. Maricopa Cnty. Juv. Action No. J-75482, 111 Ariz. 588, 590 (1975). A parent may be unfit even if he or she is not neglectful or otherwise at fault. Id. A parent may be unfit based on a breakdown in his or her relationship with the child that renders the parent unable to provide appropriate care and control. Santa Cruz Juv. Action No. JD-89-006, 167 Ariz. 98, 101-02 (App. 1990).
¶17 Father contends that the court could not find E.D. dependent based solely on his need for mental health services and his expressed desire not to see Father. With that, we agree. A court cannot deem a parent incapable merely because the child requires mental health intervention. A parent may effectively parent a mentally ill child by engaging specialized third-party caregivers — and indeed, such providers may represent the only feasible alternative by which the parent may ensure that the child receives proper care. In such circumstances, the fact that a parent relies on expert assistance is actually indicative of assiduity, not deficiency. Further, a parent is not unfit merely because his or her child would prefer no parental contact. Cf. Desiree S. v. Ariz. Dep't of Econ. Sec., 235 Ariz. 532, 535, ¶ 12 (App. 2014) ("[E]ven though R.S. does not want to attend counseling with Mother, his reluctance to participate cannot by itself support the court's finding that Mother will be unable to parent her child in the near future.").
¶18 But here the court did not find E.D. dependent based solely on his mental health status or his personal preference. The court found that E.D. suffered from serious and persistent mental health issues, did not want contact with Father, and, significantly, had not seen Father in almost five years. The court further found that none of E.D.'s service providers currently recommended that E.D. resume contact with Father. These findings were supported by the evidence. And viewed cumulatively, the court's findings were sufficient to support the conclusion that Father was incapable at the time of trial of exercising proper parental care and control over E.D. Viewed in the context of the findings, the court's conclusion that Father was unable to manage E.D. because of his "fragile" and "complex" condition effectively encompassed not only the fact of E.D.'s illness but the breakdown of the familial relationship — whether or not because of any malicious intent by Father. The breakdown of Father's relationship with E.D., especially in view of the child's special needs, provided sufficient grounds to support the dependency determination.
We therefore do not address Father's contention that E.D. was ineligible for dependency based on incorrigibility under the age limitation prescribed by A.R.S. § 8-201(15)(a)(iv). We note, however, that the juvenile court found E.D. dependent under § 8-201(15)(a)(i) only. --------
¶19 Father complains that the juvenile court was responsible for the breakdown of the parent-child relationship, alleging that his due process rights were violated because the court blocked his attempts to have contact E.D., participate in his care, or otherwise demonstrate parental capability. As an initial matter, Father overlooks his failure to comply (for whatever reason) with the family court's visitation prerequisites for over three years before the dependency action commenced. Further, the record reveals that Father was afforded a full and fair opportunity to present his arguments for visitation to the juvenile court, and that the juvenile court reasonably determined, based on the evidence available to it, that it would not serve E.D.'s best interests to immediately reintroduce him to his parents or probe into his reasons for not wanting to see them. Contrary to Father's contention, on this record these decisions did not run afoul of A.R.S. § 8-846.
¶20 Father was also given ample opportunity to present his views on service providers and placements to the court, and he was able to communicate with the providers and make treatment suggestions. We discern no denial of due process or other error in the dependency proceedings.
¶21 We hold that the juvenile court did not err by finding E.D. dependent as to Father.
CONCLUSION
¶22 For the reasons set forth above, we affirm.