Lawrence C. v. ADES, Sumner B.

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE LAWRENCE C. Appellant, v. ARIZONA DEPARTMENT OF ECONOMIC SECURITY, SUMNER B., Appellees. ) ) ) ) ) ) ) ) ) ) ) ) ) No. DIVISION ONE FILED: 02-25-2010 PHILIP G. URRY,CLERK BY: DN 1 CA-JV 09-0152 DEPARTMENT E MEMORANDUM DECISION (Not for Publication 103(G) Ariz.R.P. Juv. Ct. Rule 28 ARCAP) Appeal from the Superior Court in Maricopa County Cause No. JD506707 The Honorable David K. Udall, Judge AFFIRMED Lincoln Green, Jr. Attorney for Appellant Terry Goddard, Attorney General By Amanda Holguin, Assistant Attorney General Attorney for Arizona Department of Economic Security G E M M I L L, Judge Phoenix Mesa ¶1 Lawrence C. ( Father ) appeals the juvenile court s order terminating his parental rights to his minor child, Sumner B. ( S.B. ). Finding no error, we affirm. Facts and Procedural History ¶2 We view the evidence in the light most favorable to upholding the juvenile court s ruling. See Michael J. v. Ariz. Dep t of Econ. Sec., 196 Ariz. 246, 250, ¶ 20, 995 P.2d 682, 686 (2000). ¶3 Father and Carolyn B. ( Mother ) are the biological parents of S.B., who was born on October 29, 2006. ¶4 On March 12, 2007, Child Protective Services ( CPS ) received a report alleging that Mother had been neglecting S.B. A CPS case manager responded to the allegation two days later by visiting Mother and S.B. at Mother s last known address. The responding CPS case manager testified that when she arrived, Father was also at the home. Father reported that he lived in an apartment by himself but that he and Mother were attempting to reconcile their differences. ¶5 Mother and Father told the CPS case manager that they both suffered from mental illness. Mother reported that she suffered from a bipolar disorder, and Father reported that he had been diagnosed with a schizoaffective disorder. They told the case manager that they were receiving mental health services and that they were taking medications 2 to help manage their mental illnesses. Both Mother and Father agreed to participate in family preservation services. ¶6 report A few days after visiting the home, CPS received a that shelter. Mother had checked into to a domestic violence When a CPS case manager arrived at the shelter to investigate, Mother told the case manager that Father had held her by the neck and broken her ribs. Mother s allegation of physical abuse was never substantiated, however. ADES left S.B. in Mother s care and continued to offer her family preservation services. ¶7 The domestic violence shelter inadvertently disclosed the address where Mother was staying to Father, so Mother was asked to leave and go to a different shelter for her protection. A few days after Mother had checked herself into a different shelter, she placed S.B. in the care of her parents and entered an inpatient detoxification facility. ¶8 The maternal grandparents then filed a private dependency petition on April 20, 2007, alleging that S.B. was a dependent section child 8-201(13) under (Supp. Arizona 2009).1 Revised The Statutes petition ( A.R.S. ) alleged that Mother suffered from mental illness and was abusing drugs and that Father had a history of angry outbursts and violence and 1 We cite to the current version of all statutes cited in this decision because no substantive changes have been made to those provisions since 2007. 3 was not taking his prescribed medications. subsequently substituted ADES as petitioner. allegations dependency in to preponderance the the of petition court. the but The evidence juvenile S.B. court Father denied the submitted that The the court was issue found of by dependent a under A.R.S. § 8-201(13). ¶9 The initial plan for the case was to reunify S.B. with Father and Mother. to help fulfill psychological ADES provided Father with several services this exams, plan, including parenting parent-aide classes, services, urinalysis testing, supervised visits with S.B., transportation if necessary, and other services as deemed appropriate. ¶10 On October 8, 2008, the juvenile court held a report and review hearing. Upon motion by ADES, the juvenile court approved a case plan of severance and adoption and ordered ADES to file a motion to terminate Father s parental rights to S.B. ¶11 both On October 16, 2008, ADES filed a motion to terminate Mother and Father s amended, alleged that parental responsibilities parental Father due was to rights.2 unable mental The to motion, discharge illness and as his mental deficiency under A.R.S. § 8-533(B)(3) (Supp. 2009) and that S.B. 2 Mother did not contest the motion, and on April 23, 2009, the juvenile court entered a signed order terminating her parental rights to S.B. Mother did not appeal from the order and is therefore not a party to this appeal. 4 has been in an out-of-home placement for fifteen months or longer under A.R.S. § 8-533(B)(8)(c). ¶12 In May, June, and July 2009, the juvenile court held a four-day contested severance hearing. The court received testimony from five CPS employees, two licensed psychologists, a psychiatrist, grandfather a substance and current clinic supervisor. abuse foster counselor, parent, and S.B. s a maternal mental health As of April 23, 2007, S.B. had been in an out-of-home placement for more than two years. ¶13 Throughout the reunification process and even during the time of the severance hearing, Father had several angry outbursts. For example, in March 2008, Father went to his mental clinic and started yelling at and chasing after his CPS case manager. When the clinic supervisor, L.A.R., intervened and told Father to leave, Father continued to be belligerent and refused to leave. As a result of the incident, Father was no longer allowed to return to the clinic. clinic, however, sometime in the Father returned to the summer of walking around L.A.R. s car, staring at her. 2008 and began Father then left the clinic premises without any further incident. ¶14 June Father returned to the mental health clinic again on 16, clinic s 2009. This employees time, from Father across the started street. shouting When at the L.A.R. intervened, Father shouted that he was going to sue her and that 5 he was going to kill her. L.A.R. contacted the police, but Father left before the police could arrive. obtained a restraining order against L.A.R. successfully Father following the incident. ¶15 After a status conference hearing on April 21, 2009, Father began yelling and screaming at the maternal grandfather, A.B., at the courthouse. Case manager, E.L., witnessed the altercation and reported that Father got in the grandfather s face and pulled his fist back and was going to hit the grandfather. ¶16 CPS arranged for several doctors to conduct evaluations of Father s ability to parent effectively. Dr. G.B. conducted two bonding assessments between Father and S.B. in March 2008 and May 2009. At the outset of the first bonding assessment, Dr. G.B. observed Father arguing loudly with Mother and her parents in the lobby of his office. that Father became quite agitated and Dr. G.B. testified upset because the grandparents had referred to S.B. as Sandy when they said goodbye. Dr. G.B. opined that Father s outburst was significant because parents are typically on their best behavior when they participate in reunification services. Dr. G.B. opined that Father s schizoaffective disorder prevents him from being able to minimally parent S.B. because 6 [i]ndividuals with schizoaffective disorders are extremely sensitive to stress, and it causes them to have these kind of outbursts. ¶17 In July 2007, evaluation of Father. Dr. S.G. conducted a psychological Dr. S.G. diagnosed Father with a mood disorder, not otherwise specified; depression; and a passiveaggressive personality disorder. Dr. S.G. opined that Father did not have a schizoaffective disorder. Dr. S.G. recommended that treatment, Father undergo further psychiatric parenting classes, and supervised visitations with S.B. before she would consider issuing a recommendation that Father was capable of parenting S.B. ¶18 In August 2008 and May 2009, Dr. updated psychological evaluations of Father. S.G. conducted Dr. S.G. opined that during the August 2008 evaluation, Father s mood disorder had worsened. She testified that Father was more agitated, more frantic, [and] more depressed than he had been during her first evaluation. Following her third evaluation in May 2009, Dr. S.G. opined that Father had responded significantly to . . . his own hard work and to the . . . professionals working with him that [she] felt [his mood disorder] was in partial remission. ¶19 When asked whether Father would be able to effectively parent S.B., Dr. S.G. testified that she could not offer her opinion because she had never observed Father interact with S.B. 7 Dr. S.G. opined that Father has a ways to go and that he will always have the residuals of this personality disorder. Dr. S.G. testified that Father s outburst in Dr. G.B s office was of particular concern to her because it was so self-sabotaging. ¶20 Dr. R.R. also conducted a psychiatric evaluation of Father on November 16, 2007. Dr. R.R. testified that Father had a history going back to 1982 of rather serious psychiatric conditions. Father told Dr. R.R. that psychotic episodes since the early 1980s. he has been having Dr. R.R. diagnosed Father with schizoaffective disorder, a history of polysubstance abuse, traits of posttraumatic generalized anxiety disorder. stress disorder, and a Dr. R.R. opined that more often than not, these conditions are permanent and irreversible. ¶21 his Dr. R.R. testified that Father s inability to control anger at the concerned him. courthouse and the mental health clinics He testified that when somebody is at risk of losing their child and has a history of anger and knows that every action that they do is going to be scrutinized, they would generally hold their anger in check. Dr. R.R. opined that S.B. would be at risk both emotionally and physically if left in Father s care. Dr. R.R. further opined that Father s mental illness would continue for a prolonged indeterminate period. ¶22 At the conclusion of the termination hearing, the court took the matter under advisement and later found that ADES 8 had proven both grounds for termination by clear and convincing evidence. The court also found that termination was in S.B. s best interest. ¶23 Father timely appealed, and we have jurisdiction pursuant to A.R.S. §§ 8-235(A) (2007) and 12-2101(B) (2003). Analysis ¶24 A parent s right to care, custody, and control of his child is fundamental, Linda V. v. Ariz. Dep t of Econ. Sec., 211 Ariz. 76, 78, ¶ 6, 117 P.3d 795, 797 (App. 2005), but it is not absolute. Michael J., 196 Ariz. at 248, ¶ 12, 995 P.2d at 684. In Arizona, termination of parental rights is governed by A.R.S. § 8-533. Id. at 248-249, ¶ 12, 995 P.2d at 684-85. To justify termination of the parent-child relationship, the trial court must find, by clear and convincing evidence, at least one of the statutory grounds set out in section 8-533. 995 P.2d at 685. the evidence Id. at 249, ¶ 12, The court must also find by a preponderance of that the termination of the parent-child relationship is in the best interest of the child.3 Id. ¶25 The juvenile court found severing Father s parental rights. two statutory grounds for If clear and convincing evidence supports any one of the statutory grounds on which the 3 Father does not challenge the court s finding that severance was in the child s best interest, and we therefore do not address that finding. 9 juvenile court ordered severance, we need not address claims pertaining to the other grounds. Jesus M. v. Ariz. Dep t of Econ. Sec., 203 Ariz. 278, 280, ¶ 3, 53 P.3d 203, 205 (App. 2002). ¶26 The juvenile court first warranted under § 8-533(B)(3). found that severance was Under that subsection, parental rights can be terminated when the parent is unable to discharge parental responsibilities because of mental illness . . . and there are reasonable grounds to believe that the [mental illness] will continue for a prolonged indeterminate period. A.R.S. § 8-533(B)(3). ¶27 Father contends that there is insufficient evidence to support the juvenile court s finding that his mental illness renders him unable to discharge his parental responsibilities. Father argues that despite his occasional emotional outbursts, he is able to effectively discharge his parental responsibilities. ¶28 Despite demonstrates that Father s Father s progress, mental however, illnesses difficult for him to control his emotions. day of attacked a status S.B. s conference maternal the made record it very For example, on the preceding trial, grandfather at Father the verbally courthouse. According to a CPS case manager who witnessed the altercation, Father came within a few steps of the grandfather and had his 10 fist up. The CPS case manager testified that Father was very angry and was sweating profusely. Father again yelled at S.B. s maternal grandfather in Dr. G.B. s office because the grandfather referred to S.B. as Sandy when he said goodbye. On June 16, 2009, Father returned to the mental health clinic that he had been banned from, and he threatened to kill the clinic supervisor. ¶29 Dr. R.R. testified that these anger incidents were of concern because they took place under conditions where Father would be involved expected to be on his scrutiny by best individuals who behavior had because the ability influence whether he would be reunified with his child. they to Dr. R.R. testified that he had concerns about Father s ability to parent safely because of Father s inability to control his anger. ¶30 Dr. G.B. opined that Father could not minimally parent S.B. because of his mental illness. Dr. G.B. testified that [i]ndividuals disorder with schizoaffective are extremely sensitive to stress, and it causes them to have these kinds of outbursts, and the evidence that I was provided indicated that it has continued over the years. And this is a big concern with regard to parenting. Dr. G.B. was concerned that Father would not be able to control his angry impulses and . . . modulate 11 his emotions in an effective way to be able to parent a child, particularly a child as young as [S.B.] ¶31 Dr. S.G. testified that Father s mental illness would not necessarily prohibit someone from parenting a child. Dr. S.G. also testified that Father has responded very well to his treatment, but he needed to make further progress. ¶32 After reviewing the record, we conclude that there was sufficient evidence to support the juvenile court s finding. do not reweigh the evidence. We See Lashonda M. v. Ariz. Dep t of Econ. Sec., 210 Ariz. 77, ¶ 13, 107 P.3d 923, 927 (App. 2005). The 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 resolve disputed facts. Ariz. Dep t of Econ. Sec. v. Oscar O., 209 Ariz. 332, 334, ¶ 4, 100 P.3d 943, 945 (App. 2004). We do not review the record on appeal to determine if we would have reached different conclusions if we were the triers of fact. Instead, we review to see if sufficient evidence supports the findings of the juvenile court. The juvenile court did not err in finding by clear and convincing evidence that Father s mental illness would render him unable to discharge his parental responsibilities. ¶33 Father also contends that there is insufficient evidence to support the juvenile court s finding that his mental 12 illness will continue for a prolonged indeterminate period. Father points out that Dr. S.G. conducted three psychological evaluations of him over the course of three years and that after the third evaluation, Dr. S.G. opined that Father had responded significantly to . . . his own hard work and to the . . . professionals working with him that disorder] was in partial remission. [she] felt [his mood Father argues that Dr. S.G. s testimony is proof that he can overcome the effects of his mental illness. ¶34 We conclude that sufficient supports the juvenile court s finding evidence on this of record issue. For example, Dr. R.R. testified that Father has a history going back to 1982 of rather serious psychiatric conditions. Dr. R.R. diagnosed Father with schizoaffective disorder, a history of polysubstance abuse, traits of posttraumatic stress disorder, and a generalized anxiety disorder. often than Dr. R.R. opined that more not, irreversible. these conditions are permanent He opined specifically that Father s and mental illness would continue for a prolonged indeterminate period. In addition, Dr. S.G. opined that Father has a ways to go and that he will always have the residuals of this personality disorder. Dr. S.G. further opined that Father may never be able to learn to deal with authority. 13 ¶35 Having concluded that the evidence supports the juvenile court s findings under A.R.S. § 8-533(B)(3), we need not address the other statutory basis for severance. See Jesus M., 203 Ariz. at 280, ¶ 3, 53 P.3d at 205. Conclusion ¶36 For the foregoing reasons, we affirm the juvenile court s order terminating Father s parental rights to S.B. ____/s/______________________ JOHN C. GEMMILL, Judge CONCURRING: ____/s/_____________________________ SHELDON H. WEISBERG, Presiding Judge ____/s/_____________________________ PHILIP HALL, Judge 14

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