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
PAUL H., LINDA H.,
Appellants,
v.
ARIZONA DEPARTMENT OF ECONOMIC
SECURITY, GLORIA H., JOSIAH H.
Appellees.
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No. 1 CA-JV 10-0248
DIVISION ONE
FILED: 08/30/2011
RUTH A. WILLINGHAM,
CLERK
BY: DLL
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(Not for Publication –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. JD505525
The Honorable, Peter A. Thompson, Judge
AFFIRMED
Robert D. Rosanelli
Attorney for Appellant Paul H.
Phoenix
Sandra L. Massetto
Attorney for Appellant Linda H.
Phoenix
Thomas Horne, Attorney General
By
Amanda Holguin, Assistant Attorney General
Attorney for Arizona Department of Economic Security
Mesa
G E M M I L L, Judge
¶1
Paul H. (“Father”) and Linda H. (“Mother”) appeal the
trial court’s termination of their parental rights as to their
children.
For the following reasons, we affirm.
BACKGROUND
¶2
Father and Mother are the biological parents of Gloria
H., born in 1995, and Josiah H., born in 1998. 1
¶3
In
February
received
a
report
2005,
that
Child
M.H.
Protective
was
Services
displaying
(“CPS”)
inappropriate
behaviors in church, such as licking Father’s neck and putting
her hand in Father’s groin.
¶4
During the subsequent CPS and Mesa Police Department
joint investigation, Josiah reported that he had had sex with
his sister, Gloria, aged nine years at the time.
He stated that
both of his sisters touched his “wee wee” when his clothes were
off, Gloria put his “wee wee” in her “wee wee,” and he had seen
Gloria
having
sex
with
a
seven-year-old
neighborhood
boy.
Josiah reported to CPS that he also had had sex with his sister,
M.H., but “not too much.”
Gloria reported that Josiah had tried
to have sex with her and that “we did, but not really.”
She
also reported that Josiah had put his penis in her face.
When
Gloria
told
Mother
reported
that
Mother
told
her,
addition,
both
about
“That’s
the
incident,
[r]estricted.”
Gloria
In
Josiah and M.H. reported that there was often a lack of food in
1
Father and Mother are also the biological parents of a
third child, M.H.; however, M.H. has reached the age of eighteen
and is not subject to this appeal.
2
the home.
scabbing
All three children were discovered to have lice with
sores
on
their
scalps.
The
children
also
appeared
“disheveled” and their clothing smelled of urine.
¶5
Mother
revealed
that
kissed M.H. on the lips.
a
fifty-year-old
neighbor
once
Father reported that he and Mother
would allow the children to have unsupervised visits with the
neighbor, even though they had only known the neighbor for three
to
five
months.
Following
the
kissing
incident,
Mother
and
Father had a discussion with the neighbor and then continued to
allow the children to have unsupervised visits with him.
¶6
Father revealed that the family had previously lived
in Colorado, but they left Colorado after CPS authorities had
“threatened” to take the children from Mother and Father’s care.
Father reported that he had considered harming the Colorado CPS
worker.
Father also made threatening remarks to the CPS worker
and Mesa police officers during the 2005 investigation.
¶7
In
March
2005,
the
Arizona
Department
of
Economic
Security (“ADES”) filed a dependency petition and petition for
paternity
and/or
child
support.
The
petition
alleged
that
Father and Mother were unable to parent due to: 1) a failure to
protect their children from sexual abuse; and 2) neglect and
having an unfit home.
Later that month, the juvenile court
found the children to be dependent and approved ADES’s plan for
reunification.
Father and Mother began participating in parent
3
aide and counseling services.
¶8
In
changed
2006,
to
the
alternative
court
ordered
planned
that
permanent
the
case
living
plan
be
arrangement
after insufficient progress had been made through reunification
services.
¶9
Gloria reported, in June 2008, that she had been raped
by her Father’s friend, “Tim,” during an unsupervised visit with
her parents.
Later that same year, the court ordered ADES to
conduct a bonding assessment between the parents and children.
¶10
be
In January 2009, the court ordered that the case plan
changed
to
termination
of
severance
the
and
adoption.
parent-child
ADES
relationship
then
moved
between
for
Father,
Mother, and all three children, on the grounds that the parents
had
failed
to
remedy
the
circumstances
that
caused
their
children to be in an out-of-home placement after fifteen months
time in care.
¶11
ADES withdrew its motion to terminate in June 2009,
and the court ordered that the case plan be changed to family
reunification.
The
court
relieved
ADES
from
conducting
a
bonding assessment but ordered that ADES provide each parent
with an updated psychological and psychiatric evaluation to be
performed by the original evaluators.
The court later ordered
that Father and Mother be provided with individual counseling.
¶12
In February 2010, M.H. reached the age of eighteen
4
years, and the court approved ADES’s case plan for independent
living for M.H.
ADES again moved to terminate the parent-child
relationship between the parents and Gloria and Josiah, on the
grounds
their
that:
1)
parental
Father
and
Mother
responsibilities
were
unable
to
to
mental
illness
due
discharge
and
reasonable grounds existed to believe that the condition would
continue
for
a
prolonged
children
had
been
in
indeterminate
out-of-home
care
period;
for
and,
fifteen
2)
the
months
or
longer.
¶13
Prior to the severance hearing, Father and Mother had
received the following services from ADES: three parent aide
referrals,
psychological
psycho-sexual
supervised
individual
evaluations,
evaluations,
and
counseling,
unsupervised
counseling
psychiatric
with
transportation,
visitation.
Derek
Lofgreen
2005 and concluding in April 2009.
evaluations,
Mother
also
Parker
in
evaluation
both
May
received
2005.
with
Dr.
in
April
Father and
evaluations
participated
Silberman
in
Father attended counseling
psychiatric
Father
attended
beginning
with Lofgreen from April 2005 through August 2007.
Mother
and
in
June
a
2005,
from
Dr.
psychological
and
Mother
participated in a psychological evaluation with Dr. Silberman in
August
2005.
In
September
2005,
Father
and
Mother
completed psychosexual evaluations with Dr. Grey.
Mother
completed
updated
psychological
5
evaluations
also
Father and
with
Dr.
Silberman in August 2009, and, in February 2010, the parents
were
enrolled
psychologist,
in
counseling
interviewed
through
the
Empact.
children
and
Dr.
Pyburn,
conducted
a
a
best
interests evaluation.
¶14
A six-day severance hearing commenced in June 2010 and
concluded in October 2010.
Silberman,
Derek
CPS Case Manager Chuck Cean, Dr.
Lofgreen,
and
Dr.
Pyburn
testified
at
the
hearing.
¶15
as
Dr. Silberman testified that he had diagnosed Mother
having
major
depression,
and
schizoid personality disorder.
“sexualized
behavior”
and
she
showed
symptoms
of
a
He stated that Mother exhibited
“denial,”
and
he
did
not
believe
Mother could make the behavioral changes necessary for her to
effectively parent her children.
Dr. Silberman testified that
Father also exhibited signs of “[v]ery strong denial.”
previously
diagnosed
Father
as
having
schizotypal
He had
personality
disorder, and he did not believe Father could make the changes
necessary to parent his children.
Dr. Silberman opined that
neither Father nor Mother would be capable of parenting in the
foreseeable future and that their conditions would continue for
indeterminate period of time.
¶16
Following the hearing, the court took the matter under
advisement.
In November 2010, the court found that ADES proved,
by clear and convincing evidence, that Father and Mother were
6
unable
to
discharge
their
parental
responsibilities
due
to
mental illness and mental deficiency and there were reasonable
grounds to believe the condition would continue for a prolonged,
indeterminate
period.
The
court
further
found
by
clear
and
convincing evidence that ADES made a diligent effort to provide
reunification services, the children have been in an out-of-home
placement for fifteen months or longer, Father and Mother were
unable to remedy the circumstances which caused the children to
be
in
an
out-of-home
placement,
and
there
was
a
substantial
likelihood that neither parent would be capable of exercising
proper and effective care in the near future.
Lastly, the court
found, by a preponderance of the evidence, that termination of
the parental rights was in the children’s best interests.
court
noted
that
“no
witness
testified
at
trial
that
The
either
parent is able to discharge their parental responsibilities now
or would likely be able to do so in the future.”
¶17
Father
jurisdiction
and
pursuant
Mother
to
timely
Arizona
appealed,
Revised
and
Statutes
we
have
(“A.R.S.”)
sections 8-235 (2007) and 12-120.21 (2003).
ANALYSIS
¶18
Father’s sole issue on appeal is that the trial court
erred in finding that ADES made a diligent effort to provide him
with appropriate reunification services.
appealing
the
severance
based
on
7
Mother joins Father in
insufficient
reunification
services, plus Mother also appeals on the ground that the trial
court erred in finding that severance was in the children’s best
interests.
¶19
Pursuant to A.R.S. § 8-533(B) (Supp. 2010), an order
terminating
parental
rights
must
be
supported
by
clear
and
convincing evidence showing at least one statutory ground for
severance and by a preponderance of the evidence indicating 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). We
view
the
facts
in
a
light
most
favorable
to
affirming
the
court’s order, and we do not reweigh the evidence on appeal.
Maricopa County Juv. Action No. JS-8490, 179 Ariz. 102, 106, 876
P.2d 1137, 1141 (1994); Jesus M. v. Ariz. Dep’t of Econ. Sec.,
203
Ariz.
278,
282,
¶
12,
53
P.3d
203,
207
(App.
2002).
Furthermore, “[w]e will not disturb the juvenile court’s order
severing parental rights unless [the court’s] 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).
¶20
ADES must “prove by clear and convincing evidence that
it had made a reasonable effort to provide [Mother and Father]
with rehabilitative services or that such an effort would be
futile.”
Mary Ellen C. v. Ariz. Dep’t of Econ. Sec., 193 Ariz.
185, 193, ¶ 42, 971 P.2d 1046, 1054 (App. 1999); see also A.R.S.
8
§ 8–533(B)(8) (ADES is required to make
provide
appropriate
termination).
undertake
In
a diligent effort to
reunification
addition,
rehabilitative
while
measures
services
ADES
that
is
prior
to
not
required
to
be
“futile,”
it
would
must “undertake measures with a reasonable prospect of success.”
Mary
Ellen
C.,
193
Ariz.
at
192,
¶
34,
971
P.2d
at
1053.
“Although CPS need not provide ‘every conceivable service,’ it
must
provide
a
parent
with
the
time
and
opportunity
to
participate in programs designed to improve the parent’s ability
to care for the child.” Id. at ¶ 37 (quoting Maricopa County
Juv. Action No. JS–501904, 180 Ariz. 348, 353, 884 P.2d 234, 239
(App. 1994)).
¶21
Father argues that he was not provided with PhD level
counseling, a bonding assessment, or updated evaluations by a
psychiatrist and psychologist.
not
provided
with
PhD
Mother also argues that she was
level
counseling,
PTSD
counseling,
or
reasonable accommodations for her hearing disability.
¶22
ADES
services:
provided
three
Father
parent
and
aide
Mother
with
the
referrals,
following
psychological
evaluations, psychiatric evaluations, psycho-sexual evaluations,
counseling,
transportation,
and
supervised
and
unsupervised
visitation.
¶23
In
June
2009,
the
court
relieved
ADES
from
its
previously imposed obligation to provide a bonding assessment
9
and PhD level counseling.
Further, pursuant to court orders,
ADES provided Father and Mother with an updated evaluation with
Dr. Silberman, a psychologist, in August 2009.
¶24
Additionally, at the severance hearing, Dr. Silberman
testified
that
a
“higher
level
of
counseling[,]
such
as
PhD
level counseling” would not be beneficial to Father nor Mother.
Specifically, he stated that individuals with Father’s diagnoses
do not “see their problems,” and he stated that it was “very
difficult, if not impossible” for individuals with personality
disorders, such as Mother, “to make any kind of major changes.”
Dr. Silberman, in his more recent evaluation, did not recommend
Father and Mother undergo PhD counseling.
¶25
Although Mother and Father did not receive an updated
psychiatric evaluation, the record supports the conclusion that
the court ultimately found the psychological evaluation by Dr.
Silberman to be sufficient.
the
court
ordered
psychiatric
that
evaluation,
In August 2009, two months after
Mother
the
and
court
Father
found
receive
that
an
ADES
updated
had
reasonable efforts to finalize the permanency plan.
made
In that
ruling, the court crossed “psychiatric evaluation” off of the
list of services that ADES had requested or provided to Father
and
Mother.
scheduled
to
The
meet
court
with
also
Dr.
noted
that
Silberman
on
“[t]he
8/13/2009
their psychological and psychiatric evaluations.”
10
parents
to
are
update
Dr. Silberman
did re-evaluate the parents, produce a report, and then testify
at the severance hearing in 2010.
that
CPS
was
psychiatric
prevented
evaluation
from
because
Additionally, Cean testified
complying
with
“[t]here
was
for a psychiatric re-evaluation.”
the
no
order
for
a
recommendation
It is clear from this record
that the court was aware that an evaluation with a psychiatrist
would not be provided and that the evaluation with Dr. Silberman
was sufficient, in combination with the totality of evaluations,
reports, testimony, and information.
¶26
Further, while Mother alleges that ADES should have
provided
her
with
PTSD
counseling,
Cean
testified
that
the
counseling offered to Mother was “all encompassing” and would
have “address[ed] any such traumatic symptoms.”
¶27
It is unclear from Mother’s opening brief what types
of accommodations Mother wished ADES to provide in regard to her
hearing disability.
Specifically, it appears Mother was able to
participate in all counseling and parent aide services.
¶28
Upon this record, we conclude that the evidence is
sufficient to support the trial court’s finding that ADES made a
diligent effort to provide reasonable reunification services.
¶29
Mother further appeals on the grounds that the trial
court erred in finding that severance was in the children’s best
interests.
When considering the children’s best interests, the
court must make a “finding as to how the child would benefit
11
from
a
severance
or
be
harmed
[parental] relationship.”
by
the
continuation
of
the
Maricopa County Juv. Action No. JS-
500274, 167 Ariz. 1, 5, 804 P.2d 730, 734 (1990) (citations
omitted;
emphasis
in
original).
Evidence
of
an
existing
adoptive plan, or that a child is adoptable, supports a finding
of termination of the parental relationship.
Mary Lou C. v.
Ariz. Dep’t of Econ. Sec., 207 Ariz. 43, 50, ¶ 19, 83 P.3d 43,
50 (App. 2004).
The juvenile court may also consider whether
the children’s needs are being met.
Maricopa County Juv. Action
No. JS-8490, 179 Ariz. 102, 107, 876 P.2d 1137, 1142 (1994).
¶30
At the severance hearing, Dr. Pyburn testified that
severance and adoption was in the children’s best interests.
Dr. Pyburn had been asked by CPS to do a consultation with
Father and Mother’s children in November 2008, and she met with
the children individually and as a group.
She stated that the
children informed her that they wanted to live with their foster
parents,
and
the
children
had
“significant”
concerns
about
returning to live with Father and Mother because they “did not
feel safe.”
¶31
Additionally,
Cean
testified
at
the
hearing
that
Gloria and Josiah had been in an adoptive placement since 2005.
He
opined
that
the
children
were
doing
very
well
in
the
placement and the placement was meeting all of their needs.
¶32
Based on the evidence in this record, the juvenile
12
court
did
not
err
in
finding
that
termination
was
in
the
children’s best interests.
CONCLUSION
¶33
For the foregoing reasons, we affirm the trial court’s
termination of Paul H.’s and Linda H.’s parental rights to these
two children.
_____/s/__________________________
JOHN C. GEMMILL, Presiding Judge
CONCURRING:
___/s/____________________________
PATRICK IRVINE, Judge
___/s/____________________________
DONN KESSLER, Judge
13
