Shauna T v. ADES/Kiegan C

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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 SHAUNA T., Appellant, v. ARIZONA DEPARTMENT OF ECONOMIC SECURITY, KIEGAN C., Appellees. ) ) ) ) ) ) ) ) ) ) 1 CA-JV 11-0240 DIVISION ONE FILED: 05/22/2012 RUTH A. WILLINGHAM, CLERK BY: sls DEPARTMENT A MEMORANDUM DECISION (Not for Publication Ariz. R.P. Juv. Ct. 103(G); ARCAP 28) Appeal from the Superior Court in Maricopa County Cause Nos. JS 506817, JD 506839 (Consolidated) The Honorable Raymond P. Lee, Judge (Retired) AFFIRMED Thomas C. Horne, Arizona Attorney General By Amanda Holguin, Assistant Attorney General Attorneys for Appellee Robert D. Rosanelli Attorney for Appellant Mesa Phoenix N O R R I S, Judge ¶1 Shauna T. ( Mother ) timely appeals the juvenile court s order terminating her parental rights to Kiegan. 1 1 On Mother also appeals the juvenile court s order finding Kiegan dependent as to her under Arizona Revised Statutes ( A.R.S. ) section 8-201(13)(A) (Supp. 2011). Because the basis appeal, Mother challenges the sufficiency of the evidence supporting the juvenile court s findings and conclusions. As discussed below, we disagree and affirm the juvenile court s order. FACTS AND PROCEDURAL BACKGROUND ¶2 On ( CPS ), a October division 13, of 2010, the Child Arizona Protective Department of Services Economic Security ( ADES ), took Kiegan, who was seven weeks old at the time, into temporary custody. CPS reported to the juvenile court it took Kiegan into custody after discovering courts in California and Arizona had terminated Mother s parental rights to nine other children due to abuse stemming from psychological disorders Mother had been diagnosed with, including factitious disorder by proxy. 2 ¶3 On October 18, ADES filed a dependency petition asserting Mother s mental health issues affect[ed] her ability for the court s termination of Mother s parental rights was the same for finding Kiegan dependent, and because we affirm the juvenile court s termination order, the dependency appeal is moot. And, even if not moot, the evidence presented amply supported the juvenile court s dependency order, which relied on the same evidence as the court s termination order, as discussed below. 2 Factitious disorder, as explained by a psychologist during the hearing, is a disorder whereby somebody falsifies illness . . . either through exaggerating a symptom that they truly have, [or] by simulating an illness. . . . [F]actitious disorder by proxy . . . is when somebody does this to somebody else. 2 to safely juvenile parent. court dependency set Mother the hearing. contested matter On the petition, for 18, May mediation 2011, and ADES a and the contested petitioned to terminate Mother s rights to Kiegan -- who had been living in foster care since CPS removed him from Mother s home -- based on several statutory grounds, including abuse under A.R.S. § 8533(B)(2) (Supp. 2011). ¶4 In July and August, the juvenile court held a ten-day consolidated hearing petitions. During presented evidence on the ADES dependency hearing, supporting its as and discussed allegation termination below, Mother s ADES mental illnesses and her prior abuse of other children made it likely she would abuse Kiegan and indeed had already started to abuse him. The Mother. juvenile The court clear and convincing several court statutory found also concluded evidence grounds, Kiegan was ADES supporting including dependent had as to presented termination under A.R.S. § 8-533(B)(2). Specifically, the court found [t]he evidence presented at trial demonstrates that Mother has abused a child. . . . [I]n April 2010 the juvenile court terminated Mother s parental rights to the Arizona children, in part based on the abuse she had inflicted upon those children and the California children, and there was a sufficient nexus . . . between the abuse Mother 3 inflicted upon the Arizona children . . . and the risk of abuse that her abusive behaviors posed to Kiegan. DISCUSSION ¶5 On findings that termination asserts appeal, Mother ADES presented sufficient her parental rights. of ADES did not challenges present the juvenile evidence court s supporting Specifically, sufficient evidence, Mother including evidence of her mental illnesses, establishing she had abused or posed a risk of abuse to Kiegan. Mother also argues ADES did not make diligent reunification efforts. As discussed below, we disagree and affirm the juvenile court s order. ¶6 We uphold the juvenile court s termination of parental rights absent findings of an fact abuse were of discretion clearly or erroneous, reasonable evidence to support them. unless the i.e., there court s is no Mary Lou C. v. Ariz. Dep t of Econ. Sec., 207 Ariz. 43, 47, ¶ 8, 83 P.3d 43, 47 (App. 2004) (quotation omitted). Although the juvenile court terminated Mother s parental rights based on several statutory grounds, [i]f clear and convincing evidence supports any one of the statutory grounds on which the 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) (citations omitted). Thus, we address only the sufficiency of the evidence supporting 4 the juvenile court s findings on termination of Mother s parental rights under A.R.S. § 8-533(B)(2). I. Abuse ¶7 Under A.R.S. § 8-533(B)(2), [e]vidence sufficient to justify the termination of the parent-child relationship shall include . . . [t]hat the parent has neglected or wilfully abused a child. As Mother recognizes, § 8-533(B)(2) can mean that parents who abuse or neglect their children . . . can have their parental rights to their other children terminated even though there is no evidence that the other children were abused or neglected. Linda V. v. Ariz. Dep t of Econ. Sec., 211 Ariz. 76, 79, ¶ 14, 117 P.3d 795, 798 (App. 2005). In such cases, ADES must establish a sufficient nexus . . . between the prior abuse and the risk that such abuse would occur to the child concerned. Mario G. v. Ariz. Dep t of Econ. Sec., 227 Ariz. 282, 285-87, ¶¶ 16-19, 257 P.3d 1162, 1165-67 (App. 2011). ¶8 The juvenile court found ADES had demonstrated by clear and convincing evidence Mother [had] willfully abused a child or failed Specifically, the to protect court found a child ADES from ha[d] willful proven abuse. that there [was] a nexus between the prior abuse Mother inflicted upon her older children and the risk of abuse to Kiegan. On appeal, Mother argues there is no nexus with the prior abuse . . . 5 [so] there can be no termination of parental rights on that ground. We disagree. ¶9 As the juvenile court noted, in April 2010 a different division of that court (the 2010 court ) terminated Mother s parental rights to four children (the 2010 children ) after finding Mother exaggerated and falsified all of the children s medical symptoms and sought unnecessary medical care for them, causing them children at death. The 2010 court found Mother s exaggerations and lies about unwarranted risk medical unnecessary cutting, death. of physical symptoms surgeries, and The both and therefore and and resulted cauterizing, record trauma and emotional in of pain [a which placed harm, child] two anesthesia, child] the the including undergoing involved [the supports placing at risk juvenile of court s finding [t]he evidence presented at trial demonstrate[d] that Mother [had] abused a child. ¶10 The record further supports the juvenile court s finding [t]here [was] ample evidence that Mother continued to engage in similar behavior - exaggerating and falsifying the child s medical conditions or over-medicalization of the child. ADES presented evidence that, in the seven weeks after Kiegan s birth, Mother sought medical intervention for him seven times, reporting gastrointestinal symptoms for which a pediatrician prescribed antacid medications and special formulas. 6 ADES also presented evidence that after Kiegan was taken into custody, his foster parents discontinued without took the to antacid encountering evidence him the reasonably a different medications symptoms supports the pediatrician and special reported by juvenile who formulas Mother. court s This finding [t]hese behaviors [were] consistent with Mother s history of over-medicalizing her children, which is a form of child abuse . . . [and] ADES [had] proven that there [was] a nexus between the prior abuse Mother inflicted upon [the 2010 children] and the risk of abuse to Kiegan. ¶11 In addition, although Mother argues on appeal her mental status is not such that a child would be at risk in her care, the record supports the juvenile court s finding that her over-medicalizing of Kiegan was consistent with her factitious disorder-related hearing, health ADES abuse presented professionals factitious of disorder 2010 evidence in by the children. that, California proxy. in During 2001, diagnosed Psychologist two mental Mother Brenda the with Bursch, Ph.D., again diagnosed Mother with factitious disorder in 2008, and the 2010 terminating court Mother s relied on parental Dr. rights Bursch s to the diagnosis 2010 in children. Although Dr. Bursch testified she had not formally renewed her diagnosis because Mother had declined to be clinically interviewed by [her], she explained that, based upon her review 7 of Kiegan s Mother s and Mother s pattern of medical illness records and other falsification has records, not been altered. ¶12 Mother emphasizes on appeal she presented testimony from psychiatrist Jack Potts, M.D., that conflicted with ADES evidence she was suffering from factitious disorder. Dr. Potts performed a psychiatric evaluation of Mother in July 2011, and although he diagnosed her with personality disorder, he testified she did not have factitious disorder and Dr. Bursch s diagnosis relied on misinterpreted medical records. order, the juvenile court noted it was persuaded In its that Dr. Bursch has far more extensive expertise in this area of human behavior and pathology than does Dr. Potts. She interacts with medical staff and practitioners on a constant basis regarding this malady and this area. has The published record and testified reasonably extensively supports the in court s characterization of Dr. Bursch, and [t]he juvenile court, as the trier of fact . . . [was] in the best position to weigh the evidence, observe the parties, judge the witnesses, and make appropriate findings. at 280, ¶ 4, 53 P.3d at 205 (citation credibility of Jesus M., 203 Ariz. omitted). Thus, reasonable evidence supports the juvenile court s finding Mother had willfully abused a child and there was a nexus between the prior abuse and the risk of abuse to Kiegan. 8 II. Reunification ¶13 Mother further argues the evidence fails to support the juvenile court s finding that [ADES had] made a diligent effort to provide [her] with appropriate reunification service. We disagree. ¶14 We first ADES to provide require note that A.R.S. § 8-533(B)(2) services. reunification does not Assuming, without deciding, ADES was required to make reasonable efforts to provide Mother with reunification services, the record reflects it did so. ¶15 ADES offered Mother a therapeutic visitation team to supervise visits with Kiegan, a supplemental psychological evaluation with Dr. Bursch, and transportation services. A CPS caseworker testified Mother eventually agreed to participate in therapeutic Bursch visitation, because she felt but refused Dr. Bursch to be was evaluated biased by against Dr. her. Although Mother argues on appeal CPS refused to provide her with counseling, the CPS caseworker testified she did not refuse to offer Mother counseling; rather, she testified ADES and CPS took the position psychological [t]hat evaluation if [Mother] with Dr. participated Bursch . . . in [CPS the could] receive the recommendation if counseling [was] even needed and, if it [was], participate what in. type of specialized counseling The CPS caseworker further 9 she should explained CPS insisted on Dr. Bursch evaluating Mother because Dr. Bursch already knew [Mother s] history . . . [and] had already went through reviewing all of the records and the time that it took to gather those records and gather all that information. Thus, the record reflects ADES provided [Mother] with the time and opportunity to participate in programs designed to help her become an effective parent, Maricopa Cnty. Juv. Action No. JS501904, 180 Ariz. 348, 353, 884 P.2d 234, 239 (App. 1994), and therefore provided Mother with appropriate services aimed at evaluating and treating Mother s abusive behaviors. III. Best Interests ¶16 Finally, Mother argues [t]he record contains insufficient evidence to support the [juvenile] court s finding termination of her parental rights was in Kiegan s best interests. See Raymond F. v. Ariz. Dep t of Econ. Sec., 224 Ariz. 373, 377, ¶ 15, 231 P.3d 377, 381 (App. 2010) (citation omitted) (juvenile court need only find by a preponderance of the evidence that severance is in the child s best interest ). We disagree. must present As Mother points out, to meet its burden, ADES sufficient evidence to prove the child would benefit from a severance or be harmed by the continuation of the relationship. Maricopa Cnty. Juv. Action No. JS-500274, 167 Ariz. 1, 5, 804 P.2d 730, 734 (1990) (citations omitted). We review the juvenile court s best interests determination for an 10 abuse of discretion. at 47. Mary Lou C., 207 Ariz. at 47, ¶ 8, 83 P.3d The juvenile court found Kiegan would be harmed by the continuation of the parent-child relationship. This finding is supported by the evidence, as discussed above. the juvenile court did not abuse its Thus, we hold discretion in finding termination of Mother s parental rights would be in Kiegan s best interests. CONCLUSION ¶17 For the foregoing reasons, we affirm the juvenile court s termination order. __/s/___________________ PATRICIA K. NORRIS, Judge CONCURRING: __/s/__________ _________ _ ANN A. SCOTT TIMMER, Presiding Judge __/s/___________________ PETER B. SWANN, Judge _ 11 ____

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