George R., Hope S v. ADES, C.R

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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.Sup.Ct. 111(c); ARCAP 28(c); Ariz.R.Crim.P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE GEORGE R., HOPE S., DIVISION ONE FILED: 03/01/2012 RUTH A. WILLINGHAM, CLERK BY: DLL 1 CA-JV 11-0166 Appellants, v. ARIZONA DEPARTMENT OF ECONOMIC SECURITY, C.R., DEPARTMENT B MEMORANDUM DECISION (Not for Publication Ariz.R.P.Juv.Ct. 103(G); ARCAP 28) Appellees. Appeal from the Superior Court in Maricopa County Cause No. JD18537 The Honorable Colleen McNally, Judge AFFIRMED John L. Popilek, P.C. By John L. Popilek Attorney for Appellant Father Scottsdale Denise L. Carroll Attorney for Appellant Mother Scottsdale Thomas C. Horne, Attorney General Phoenix By Michael F. Valenzuela, Assistant Attorney General Attorneys for Appellees K E S S L E R, Judge ¶1 George R. ( Father ) and Hope S. ( Mother ) appeal from the juvenile court s order severing their parental rights to their son C.R. ( Son ). For the reasons that follow, we affirm the severance of Mother s and Father s parental rights to Son. FACTS AND PROCEDURAL HISTORY ¶2 Son was born in August 2009. Son has developmental issues with his speech and muscle control. Child Protective Father s mother. Services ( CPS ) In October 2009, received a report from The report alleged that Father and Mother were not providing enough food for Son and that their one-bedroom apartment was unsanitary. The report further alleged that Father shook the seven-week old Son and smothered him in his chest when Son began to cry and that he told Son to shut up multiple times. ¶3 Only Mother and Son were present when a CPS caseworker arrived to investigate the apartment. The CPS caseworker testified that there was a strong stench emanating from the cat feces and urine present in the apartment. She testified that Son and was Mother very informed small, the extremely caseworker pale, that Son had very not dirty. been to a physician since his birth because they could not afford it, and she did not feel it was necessary. 2 The caseworker testified that Son slept in a cardboard box, which had a blanket inside that was dirty, smelly, and covered in cat hair. ¶4 At some point, Father arrived at the apartment and immediately became angry. The caseworker contacted the police because she felt unsafe. When police arrived, Father became aggressive with the officers as the caseworker removed Son from the home. ¶5 Five days later, the Arizona Department of Economic Security ( ADES ) filed a dependency petition. The juvenile court found Son dependent and approved family reunification as the case plan for Father and Mother. As part of the reunification plan, Father and Mother were asked to participate in parent-aide services, supervised visits, drug testing, and psychological evaluations. Drug-testing services for Father and Mother were terminated when it became evident that they did not have substance-abuse issues. ¶6 Dr. Psychologist Thal disorder, opined not schizoid traits. Dr. that Thal Mother otherwise evaluated suffered specified, Mother from with a and Father. personality narcissistic and He explained that these conditions make it difficult for Mother to empathize and form emotional connections with Son. Dr. Thal recommended that Mother participate parent-aide services to teach her how to bond with Son. in Dr. Thal did not recommend psychiatric services because he believed 3 that there is no medication that could address Mother s personality disorder. ¶7 Dr. Father. Dr. Thal opined that Father was impulsive and easily frustrated. Thal also Dr. Thal cautioned noted against that placing Father was Son with chronically unemployed and that he was homeless or living in substandard living Dr. conditions Thal had since no sense CPS at first all became that involved Father with Son. understood his behavioral problems. ¶8 for Parent aides conducted supervised visits twice a week approximately eight months. One of the parent aides testified that he believed Father and Mother were homeless and living in the park where supervised visits with Son were taking place. The parent aide further testified that although Mother and Father never missed a scheduled visitation, they did not always participate in the two-hour supervised visits. Instead, they would speak with some of their friends whom the parent aide believed were living at the park. to open a bank account. During one visit, Father left Father played poker with his friends during one visit and fixed his bike during another. ¶9 The parent aide testified that he warned Father and Mother that they needed to display more physical affection for Son because it was important for them to establish a bond with Son. The parent aide stated that despite his warning, Father 4 and Mother did not display physical affection for Son and never bonded with Son. ¶10 The parent aide offered to help Mother and Father find employment because they were both either unemployed or working only part time, but they did not follow up with him. The parent aide also arranged for the Son s developmental therapist to meet with Father and Mother to provide advice on how to help Son improve his speech and muscle-control issues. Father did not participate in all of the developmental-therapy sessions and did not display physical affection for Son. On a few occasions, Father read books during the therapy sessions. ¶11 In February 2011, ADES filed a motion to terminate Mother s and Father s parental rights. The juvenile court held a contested severance hearing on ADES s motion to terminate in July and August 2011. At the hearing, Dr. Thal opined that Father would not be capable of minimally parenting Son in the near future. Dr. Thal also opined that Mother s personality disorder would prevent her from providing proper and effective parental care indeterminate and period that it because would such continue for personality a prolonged disorders are deeply ingrained. ¶12 granted parental After taking the matter under advisement, the court ADES s rights. motion The to terminate juvenile 5 court Father s severed and Mother s Mother s and Father s parental rights pursuant to Arizona Revised Statutes ( A.R.S. ) section 8-533(B)(8)(c) (West 2012) 1 because Son had been cared for in an out-of-home placement for a total period of fifteen months substantial pursuant likelihood to that court order, Mother and and Father there will is not a be capable of exercising proper and effective parental care and control in the future. ¶13 Additionally, the juvenile court severed Mother s parental rights pursuant to A.R.S. § 8-533(B)(3) because there was clear and convincing evidence that Mother was unable to discharge her parental responsibilities due to mental illness, and there were reasonable grounds to believe the condition will continue for a prolonged indeterminate period. ¶14 Mother jurisdiction and pursuant Father to timely A.R.S. §§ appeal. 2 This 8-235(A), 12-120.21(A)(1), court has and 12-2101(B). DISCUSSION ¶15 The right to custody of one s child is fundamental, but it is not absolute. Michael J. v. Ariz. Dep t of Econ. Sec., 196 Ariz. 246, 248, ¶¶ 11-12, 995 P.2d 682, 684 (2000). 1 We cite the current version of the applicable statutes where no revisions material to this decision have since occurred. 2 Mother filed her appeal one day late, but the juvenile court excused her untimely filing. 6 To justify termination of parental rights, a juvenile court must find, by clear and convincing evidence, at least one statutory basis for termination pursuant to A.R.S. § 8-533. 12, 995 P.2d at 685. The court must Id. at 249, ¶ also find by a preponderance of the evidence that the termination is in the child s best interest. Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 22, 110 P.3d 1013, 1018 (2005). ¶16 in In reviewing a severance order, we view the evidence the light most favorable to sustaining the order. See Maricopa County Juv. Action No. JS-8490, 179 Ariz. 102, 106, 876 P.2d 1137, 1141 (1994). [T]he juvenile court was in the best position to weigh the evidence, judge the credibility of the parties, observe findings. the parties, and make appropriate factual Pima County Dependency Action No. 93511, 154 Ariz. 543, 546, 744 P.2d 455, 458 (App. 1987). reweigh the evidence to evidence sustain but the determine juvenile Accordingly, we do not only whether court s ruling. there is Maricopa County Juv. Action No. JV-132905, 186 Ariz. 607, 609, 925 P.2d 748, 750 unless it (App. is 1996). clearly [W]e will erroneous, affirm and we a severance will accept order the juvenile court s findings of fact unless no reasonable evidence supports those findings. Jesus M. v. Ariz. Dep t of Econ. Sec., 203 Ariz. 278, 280, ¶ 4, 53 P.3d 203, 205 (App. 2002). 7 I. Father ¶17 Father argues that the trial court abused its discretion when it found that there is a substantial likelihood that he will not be capable of exercising proper and effective parental care and control in the future. Father contends he is now gainfully employed and pays for his own apartment. He notes that his apartment is clean and safe for children. ¶18 Reasonable findings. evidence supports the juvenile court s Although Father obtained housing and employment prior to the severance hearing, he failed to establish a bond with Son. Instead of spending time with Son during visits, Father played poker and fixed his bike. left one visit to open a bank account. supervised Father even The parent aide warned Father that he needed to display more physical affection for Son, but Father failed to do so. ¶19 Father also failed to fully participate in the therapy sessions with Son s developmental therapist. Father read books during some of the therapy sessions and did not display physical affection Parent-aide for the Son reports, when bonding the Son climbed evaluations, and on his lap. psychological evaluations all revealed that Father had difficulty bonding with Son and that he did not provide the affection Son needed to develop properly. Accordingly, the trial court did not abuse its discretion. 8 ¶20 We also find no support for Father s argument that the trial court abused its discretion when it found that severance was in Son s best interest. interest must include a A determination of a child s best finding as to how the child would benefit from the severance or be harmed by the continuation of the relationship. Maricopa County Juv. Action No. JS-500274, 167 Ariz. 1, 5, 804 P.2d 730, 734 (1990). Factors that support a finding that the child would benefit from the severance of parental rights include evidence of an adoption plan, that the child is adoptable, or that the existing placement is meeting the child s needs. Audra T. v. Ariz. Dep t Econ. Sec., 194 Ariz. 376, 377, ¶ 5, 982 P.2d 1290, 1291 (App. 1998). ¶21 Dr. parent-aide from Thal assistance, Son and Additionally, several testified failed foster months and after still emotionally to parents are even was Father that display have willing physical been to 170 caring adopt him. hours of detached affection. for Son Under for these circumstances, we find no abuse of discretion. II. Mother ¶22 Mother argues that the trial court abused its discretion when it found that ADES made a diligent effort to reunite her with Son. Mother contends that she complied with all available services and that if her mental illness was the main issue, CPS should have provided 9 her with counseling to address those issues. address her mental Providing her with services that did not health issues was setting her up for a certain failure. ¶23 ADES must establish by clear and convincing that it made a diligent services. effort to provide A.R.S. § 8-533(B)(8). appropriate reunification ADES fulfills its duty to provide services to a parent when it gives a parent the time and opportunity to participate in programs designed to help [him or] her become an effective parent. Maricopa County Juv. Action No. JS-501904, 180 Ariz. 348, 353, 884 P.2d 234, 239 (App. 1994). prospect of The services success, rehabilitative services but provided ADES when is it must not have a required establishes by reasonable to provide clear convincing evidence that such services would be futile. and Mary Ellen C. v. Ariz. Dep t Econ. Sec., 193 Ariz. 185, 187, ¶ 1, 192, ¶ 34, 971 P.2d 1046, 1048, 1053 (App. 1999). ¶24 Reasonable evidence supports the juvenile court s finding that ADES made diligent efforts to reunify Mother with Son. ADES offered Mother psychological evaluations, supervised visits, transportation, behavioral self child referral, and care, bonding parent-aide services, assessments. ADES provided these services to Mother for a period of approximately twenty-one months. 10 ¶25 in During the reunification process, Mother participated approximately reviewing all of 170 hours of the reports parent-aide from the services. parent aides After and CPS caseworkers and conducting a psychological evaluation of Mother, Dr. Thal found that Mother suffered from a personality disorder that makes it difficult for her to empathize and form emotional connections with Son. Dr. Thal did not recommend psychiatric services because he believed there is no medication to address Mother s personality disorder. He opined that sending Mother to therapy would have been a wasted service because Mother did not believe she had a problem. Given these circumstances, we cannot say the trial court abused its discretion in finding that ADES made diligent efforts to reunify Mother with Son. CONCLUSION ¶26 For the foregoing reasons, we affirm the juvenile court s termination of Father s and Mother s parental rights to Son. /S/ DONN KESSLER, Judge CONCURRING: /S/ DIANE M. JOHNSEN, Presiding Judge /S/ MICHAEL J. BROWN, Judge 11

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