Opinion
No. 1 CA-JV 18-0091
01-29-2019
SHIREA D., Appellant, v. DEPARTMENT OF CHILD SAFETY, E.R., TOHONO O'ODHAM NATION, Appellees.
COUNSEL The Stavris Law Firm, PLLC, Scottsdale By Christopher Stavris Counsel for Appellant Arizona Attorney General's Office, Phoenix By JoAnn Falgout Counsel for Appellee Department of Child Safety Law Office of Justin Fernstrom, Mesa By Justin Fernstrom Counsel for Appellee Tohono O'Odham Nation
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. JD28219 JS17553
The Honorable Bruce R. Cohen, Judge
AFFIRMED
COUNSEL The Stavris Law Firm, PLLC, Scottsdale
By Christopher Stavris
Counsel for Appellant Arizona Attorney General's Office, Phoenix
By JoAnn Falgout
Counsel for Appellee Department of Child Safety Law Office of Justin Fernstrom, Mesa
By Justin Fernstrom
Counsel for Appellee Tohono O'Odham Nation
MEMORANDUM DECISION
Judge Randall M. Howe delivered the decision of the Court, in which Presiding Judge Paul J. McMurdie and Judge Jennifer B. Campbell joined. HOWE, Judge:
¶1 Shirea D. ("Mother") appeals the juvenile court's order terminating her parental rights to her child, E.R., who is a Native American child under the Indian Child Welfare Act ("ICWA"). For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Mother and Saul G. ("Father") are eligible to receive disability services because they both have mental-illness and cognitive impairments. They have three children in common, A.D., born in January 2014, O.R., born in April 2015, and E.R., born in December 2016.
Father did not establish paternity of O.R. or E.R. Nonetheless, the court terminated Father's parental rights to all three children and also terminated his rights to an alleged male child, John Doe. Father is not a party to this appeal.
¶3 Mother met Father in a shelter when she was 18 years old and immediately moved into his home. For the next two years, they carried on a relationship fraught with domestic violence. On various occasions, Father had beaten Mother and abused animals. In 2012, Father incurred charges for beating Mother and killing her kitten by throwing it against the wall; he also regularly punched the family dog as a form of "discipline."
¶4 In April 2014, Mother and Father engaged in a heated argument. Mid-argument, Mother went to a friend's home, leaving three-month-old A.D. with Father. When Mother returned, Father had severely injured A.D., causing skull and orbital bone fractures, intracranial bleeding, a swollen eye, and bruising. Father then attacked Mother by punching and biting her, leaving visible marks on her face. Mother brought A.D. to the hospital, and the Office of Child Welfare Investigations ("OCWI") and police investigated the matter for abuse. Father acknowledged that he caused A.D.'s injuries, but claimed they were accidental. Doctors determined that Father's story did not account for all of A.D.'s injuries, however, and that at least some of the injuries resulted from abuse. Mother initially admitted to the facts above, so the Department of Child Safety ("DCS") took custody of A.D., and dependency proceedings ensued.
¶5 DCS offered Mother services, including a psychological evaluation and a parent aide. It also asked her to address her mental health and to obtain counseling through community resources. DCS was prepared to refer Mother for domestic-violence counseling and substance-abuse testing and treatment due to her regular marijuana use, but Mother refused those services. Mother also initially refused most mental-health and counseling services, but eventually began participating in them. In August 2014, Dr. George Bluth conducted Mother's first psychological evaluation. He diagnosed her with mild mental retardation, bipolar disorder, and dependent personality traits. Additionally, he gave her a poor prognosis of being able to parent A.D. DCS also offered Father services, but he failed to participate. Nevertheless, Mother remained in a relationship with him.
¶6 Just before A.D.'s combined dependency and termination hearing in October, and despite evidence to the contrary, Mother claimed that she had secured her own apartment and had cut off contact with Father. Nevertheless, the juvenile court terminated Mother's parental rights under the abuse, mental-deficiency, and mental-illness grounds.
¶7 By February 2015, Mother was again living with Father. That same month, Father incurred more animal abuse charges for keeping dogs in a hole underneath Mother's home. In April, Mother gave birth to O.R., and in July, DCS discovered O.R. and the parents living in a cluttered trailer without electricity. During an investigation, the parents lied to DCS about Mother's identity to prevent O.R.'s removal. DCS eventually took custody of O.R. and petitioned for termination of the parents' parental rights. Around this same time, the parents physically fought with their neighbors and were evicted from their trailer.
¶8 DCS again offered the parents services. Father did not participate, save for a single visit with O.R. DCS referred Mother for a hair-follicle test (which returned positive for marijuana), a second psychological evaluation, and a parent aide. DCS asked Mother to continue counseling and mental-health services through her own providers. Mother claimed she was attending counseling, but after July 2015 she did not disclose any mental-health records to verify her claims. In March 2016, she was evicted from her apartment for growing a marijuana plant.
Mother later presented a medical marijuana card.
¶9 Dr. Bluth evaluated Mother again in May 2016. He concluded that she still suffered from mild mental retardation, bipolar disorder, and dependent personality traits; he also diagnosed her with an anxiety disorder and cannabis abuse. Dr. Bluth gave Mother a poor prognosis for parenting O.R. in the future and concluded that a child in her care would be at risk for abuse and neglect. At the termination hearing later that same month, Mother testified that she would protect O.R. from Father. Although the parents had conceived E.R. two months earlier, Mother also claimed she had not had any contact with Father in about nine months. The juvenile court terminated Mother's parental rights to O.R. under the abuse, mental-deficiency, mental-illness, and prior-termination grounds.
¶10 After this hearing, Mother still carried on a relationship with Father and gave birth to E.R. in December 2016. DCS, OCWI, and police located E.R. three months later. As DCS took custody of E.R., the parents attacked police officers and an OCWI representative and were arrested. DCS then petitioned for a dependency determination and termination of Mother's rights under the abuse, mental-deficiency, mental-illness, and prior-termination grounds. During the next few weeks, Mother denied her own identity and denied that Father was E.R.'s biological father, but eventually admitted both. She was also evicted from her apartment in June 2017 and remained homeless through September 2017. All the while, Mother continued her contact with Father.
¶11 Mother initially refused all services except visitation and only agreed to participate in additional services in July 2017—a few months before the termination hearing began. DCS then referred her for a third psychological evaluation, a bonding assessment, and a parent aide and again requested that she engage in mental-health services and counseling through her own provider. In August 2017, Mother attempted to break up with Father; he then came looking for her but found her aunt, whom he assaulted with a taser and a box cutter and was arrested. Mother called and visited him in jail, and she stated at a bonding and best-interests assessment that she wanted to co-parent E.R. with Father. Father moved in with Mother after his release.
¶12 That same month, Mother's termination hearing began. In November, she completed a third psychological evaluation. The evaluating psychologist, Dr. Kathryn Menendez, testified that Mother was still minimizing Father's abusiveness. Further, her psychological testing reflected that she lacked insight into her problems, had poor judgment and poor impulse control, and identified as a victim. Dr. Menendez diagnosed Mother with borderline intellectual functioning, post-traumatic stress disorder, and dependent personality traits. Dr. Menendez opined that Mother's conditions would continue into the foreseeable future and recommended that she engage in counseling for at least another year. Additionally, Dr. Bluth testified that Mother needed additional years of consistent mental-health services and that her conditions were pervasive and would continue for the foreseeable future.
¶13 Based on the facts concerning Mother, the DCS case manager testified that returning E.R. to Mother's care would "put him at risk [of] sustain[ing] physical abuse in the . . . future." Mother's tribal case manager testified that although DCS had made active efforts to provide Mother rehabilitative services, those efforts were unsuccessful. She expressed concerns with Mother's instability and Father's repeated presence in her home and concluded that E.R. could be at risk for abuse or serious emotional or physical harm if returned to Mother's care. Finally, the tribal case manager confirmed that the Tohono O'Odham Nation agreed with the case plan of termination and adoption.
¶14 During her testimony, Mother was asked how she would protect E.R. from Father, and she responded that she would set up cameras and call Father's probation officer if he came near her home. But after counsel confirmed that Father had been living with her, Mother offered no further ideas on how she could protect E.R. from potential harm, other than promising to "never let him around my son."
¶15 The termination hearing concluded in February 2018, and the court terminated Mother's parental rights to E.R. on the grounds alleged. Mother timely appealed.
DISCUSSION
¶16 Mother argues that insufficient evidence supports the termination grounds. Because reasonable evidence supports the court's order under the prior-termination ground, we need not consider the remaining grounds. See Seth M. v. Arienne M., 245 Ariz. 245, 249 ¶ 13 (App. 2018) (stating that if reasonable evidence supports termination under one ground, this Court need not consider others).
Mother does not challenge the court's finding that DCS made active efforts to provide rehabilitative programs designed to prevent the breakup of the family or that the facts here fall within the two-year statutory time frame. --------
1. Statutory Ground for Termination
¶17 The prior-termination ground is met if a parent "has had [her] parental rights to another child terminated within the preceding two years for the same cause and is currently unable to discharge parental responsibilities due to the same cause[.]" A.R.S. § 8-533(B)(10). The phrase "same cause" refers to the same underlying factual cause that led to the prior termination. Mary Lou C. v. Ariz. Dep't of Econ. Sec., 207 Ariz. 43, 48 ¶ 11 (App. 2004).
¶18 Here, the court found that Father's "abuse [of A.D.], [Mother's] failure to protect [A.D.] from abuse and [Mother's] mental health issues all contributed" to the termination order involving O.R., and "those same issues" support the current termination order. It also found that despite Mother's progress in basic parenting skills, she was still unable to discharge other critical responsibilities, such as "ensuring both [the] physical and emotional safety of a child[.]" Reasonable evidence supports the court's findings.
¶19 Both Drs. Bluth and Menendez diagnosed Mother with several mental illnesses, coupled with permanent cognitive limitations. At the termination hearing, they opined that Mother needed additional years of consistent mental-health services. They also concluded that Mother's conditions were pervasive and would continue for the foreseeable future. Mother's actions are in accord with the experts' conclusions. During three dependencies over four years, Mother participated only sparingly in psychotherapy. She also never complied with DCS's request that she address domestic violence through counseling. And even as E.R.'s dependency unfolded, Mother refused critical services, such as mental-health treatment and individual counseling until the time of the termination hearing. Therefore, she had not consistently engaged in the therapy that she needed. Nor did she make the required behavioral changes on her own.
¶20 Despite Father's well-documented history of violence, Mother repeatedly returned to him and exposed O.R. and E.R. to potential harm from him. Mother had, at times, verbally acknowledged the danger Father posed to the children, but she still tried to hide the children's existence from DCS so that they could remain with her and Father. Mother and Father went so far as to deny their own identities to avoid dependency proceedings. Father's abusiveness still poses a risk of harm to the children. In August 2017, when E.R.'s termination hearing was just beginning, police arrested Father for violently attacking Mother's aunt. Then, one day after his arrest, at a bonding and best-interests assessment, Mother stated that she wanted to co-parent E.R. with Father, and she repeatedly called him or visited him in jail thereafter. Furthermore, Mother allowed him to move into her apartment upon his release from jail. Thus, reasonable evidence supports the court's finding that Mother's actions fundamentally belie her assertions that she can protect E.R.
2. Best Interests
¶21 Mother next argues that insufficient evidence supports the court's finding that terminating her parental rights was in E.R.'s best interests. Terminating parental rights is in a child's best interests if the child will benefit from the termination or will be harmed if the relationship continues. Shawanee S. v. Ariz. Dep't of Econ. Sec., 234 Ariz. 174, 179 ¶ 20 (App. 2014). Relevant factors in this determination include whether the current placement is meeting the child's needs, an adoption plan is in place, and the child is adoptable. Demetrius L. v. Joshlynn F., 239 Ariz. 1, 3-4 ¶ 12 (2016). "Of course, a court need not automatically conclude that severance is in a child's best interests just because the child is adoptable; there may be other circumstances indicating that severance is not the best option." Id. at 4 ¶ 14. Before terminating parental rights in an ICWA case, the court must also find beyond a reasonable doubt that a parent's continued custody will likely result in serious emotional or physical damage to the child. 25 U.S.C. § 1912(f).
¶22 Here, the court found that maintaining the parent-child relationship would be detrimental to E.R. because "[t]here is a significant risk that [E.R.] would be exposed to domestic violence or abuse. Further, Mother's cognitive limitations could pose a risk to [E.R.] if circumstances arise that Mother is not equipped to address." Reasonable evidence supports these findings. Moreover, DCS had identified an ICWA-compliant placement for E.R.—the same placement that had adopted his two siblings. That placement also wished to adopt E.R. and would provide him with permanency and stability. Additionally, the juvenile court determined beyond a reasonable doubt that due to Mother's emotional or intellectual vulnerability combined with Father's violent history as well as the parents' continued covert relationship, Mother's continued custody would likely result in serious emotional and physical harm to E.R. Beyond failing to address her mental-health issues or to make the necessary behavioral changes required to safely parent E.R., Mother also repeatedly denied her ongoing contacts with Father to her service providers, DCS, and the court. Ultimately, Mother still could not recognize the danger that Father posed to young children. Therefore, sufficient evidence supports the court's finding that terminating Mother's parental rights was in E.R.'s best interests.
CONCLUSION
¶23 For the foregoing reasons, we affirm.