Darnell M v. ADES, et al

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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 DARNELL M., ) ) Appellant, ) ) v. ) ) ARIZONA DEPARTMENT OF ECONOMIC ) SECURITY, ODESSO M., DARNELL H., ) ) Appellees. ) ) __________________________________) DIVISION ONE FILED: 05/10/2012 RUTH A. WILLINGHAM, CLERK BY: sls No. 1 CA-JV 11-0241 DEPARTMENT C MEMORANDUM DECISION (Not for Publication 103(G) Ariz.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. JD18515 The Honorable Roland J. Steinle, Judge AFFIRMED David W. Bell Attorney for Appellant Mesa Thomas C. Horne, Arizona Attorney General By Michael Valenzuela, Assistant Attorney General Attorneys for Appellee Arizona Department of Economic Security Phoenix D O W N I E, Judge ¶1 court s Darnell order M. ( Father ) terminating his appeals parental from the rights. juvenile For the following reasons, we affirm. FACTS AND PROCEDURAL HISTORY 1 ¶2 D.M., born in August 2006, and O.M., born in December 2007, are Father s biological children. D.M. is severely mentally retarded, and O.M. has severe developmental delays. ¶3 In received a home. October third 2009, report Child Protective regarding the Services condition of ( CPS ) Father s A CPS worker investigated and found the home smelled of animal urine, had animal feces on the floor, and cockroaches crawling on the walls. CPS removed the children and placed them in a foster home. ¶4 ADES offered Father supervised visitation and parent aide services that included instruction about household safety, communication, delays. nutrition, and the children s developmental But Father was not receptive to parent aide advice and told a parent aide that he did not need to be told what to do. During a supervised visit in February 2010, Father banged his hand on the table when D.M. refused to follow his direction to sit down, and a case aide observed a video of two people engaged in sexual intercourse playing on Father s cell phone. ¶5 In April 2010, Father participated in a psychological 1 We view the evidence in the light most favorable to affirming the juvenile court s decision. See Michael J. v. Ariz. Dep t of Econ. Sec., 196 Ariz. 246, 250, ¶ 20, 995 P.2d 682, 686 (2000) (citation omitted). 2 evaluation. with Dr. James Thal, a psychologist, diagnosed Father Schizophrenia, Paranoid Type By History. Dr. Thal reported that Father s mental disorder manifested in paranoid thinking and conflicts with many people, and that Father did not fully appreciate the nature of his children s developmental delays and may disregard the children s home environment. safety and quality of the The psychologist concluded that severance and adoption will likely be necessary. Later that month, the juvenile court found the children dependent as to Father. The initial case plan was for family reunification. ¶6 Father continued to receive case aide and parent aide services. In July 2010, however, Father was unable to demonstrate[] consistent discipline with the children and had difficulty completing a 4 hour supervised visitation at times. A parent aide reported concern[] over [Father s] apparent lack of motivation to change his discipline methods. A service provider recommended a second referral for parent aide services and that visits move to partially unsupervised. continued supervised visits. CPS, however, Father participated but over time case workers reported that Father was not able to demonstrate consistency in children, did development, his not and ability seem appeared to to redirect and understand frustrated their delays. 3 with discipline normal his his child[hood] children and ¶7 In January 2011, parent aide services were closed when Father successfully Father participated Parker, a completed in a psychiatrist, all psychiatric diagnosed identified objectives. evaluation. Father with Dr. an Joel unspecified psychotic disorder, but opined that Father would likely be able to demonstrate minimally adequate parenting skills and meet his children s special needs if he received continued oversight and training. ¶8 In February 2011, the children s guardian moved to terminate Father s parental rights. was served in March 2011. It alleged: ad litem An amended motion (1) the children had been in an out-of-home placement for approximately 15 months and Father had been unable to remedy the circumstances that caused the children to come into care; and (2) Father was unable to discharge parental responsibilities due to mental illness. Arizona Revised (B)(8)(c). Statutes ( A.R.S. ) sections See 8-533(B)(3), Father contested the allegations, and a trial was set. ¶9 After a two-day trial, the juvenile court terminated Father s parental rights. Father timely appealed. We have jurisdiction pursuant to A.R.S. § 8-235. DISCUSSION ¶10 We review the juvenile court s findings of fact for clear error and will reverse only if there is no reasonable 4 evidence to support them. Anonymous v. Anonymous, 25 Ariz. App. 10, 12, 540 P.2d 741, 743 (1975); see also Mary Lou C. v. Ariz. Dep't of Econ. Sec., 207 Ariz. 43, 47, ¶ 8, 83 P.3d 43, 47 (App. 2004) (citations omitted) (because the juvenile court is in the best position to weigh the evidence, judge the credibility of witnesses, and evidence, but make factual consider findings, only whether we do not substantial reweigh evidence supports the ruling). ¶11 Father contends that he has effectively manage[d] his mental health sufficient minimally issues evidence adequate those issues. and that parenting asserts he for would his the be record able children contained to in provide spite of Father also argues ADES failed to make diligent efforts to reunify the family. 2 I. Mental Illness ¶12 Before severing parental rights, ADES must prove by clear and convincing evidence that at least one statutory ground for severance exists and that it has made reasonable efforts to 2 Father also challenges the finding he was unable to remedy the circumstances that caused the children to be in an out-of-home placement for 15 months and would not be able to provide proper parental care in the near future. Because sufficient evidence supports the termination due to mental illness, we need not address additional bases for severance. See Jesus M. v. Ariz. Dep t of Econ. Sec., 203 Ariz. 278, 280, ¶ 3, 53 P.3d 203, 205 (App. 2002) (citations omitted) (court need not address additional grounds for termination if one statutory ground supporting severance exists). 5 preserve the family. Ariz. Rev. Stat. ( A.R.S. ) § 8-533(B)(8); see also Mary Ellen C. v. Ariz. Dep t of Econ. Sec., 193 Ariz. 185, 192, ¶ Severance is demonstrates 33, 971 P.2d justified a responsibilities 1046, 1053 (citations omitted). when clear and convincing evidence parent is unable to discharge parental because of mental illness, and there are reasonable grounds to believe the condition will continue for a prolonged indeterminate period. ¶13 A.R.S. § 8-533(B)(3). The juvenile court found that Father s mental illness rendered him responsibilities. incapable of discharging his parental It further found his condition would continue for a prolonged indeterminate period. The record supports these findings. ¶14 Dr. Thal opined at trial that Father was not capable of providing appropriate care of the children because of his mental illness. He testified Father s mental illness kept him from recognizing that when the children were removed from his care, the home environment represented a threat to their health and well-being. At trial, Father denied that there were dog feces in the apartment or that it reeked of animal urine at the time the children were removed. He admitted that the dog was sometimes tied to the coffee table, but asserted the home was appropriate for the children receiving. 6 [f]or what money [he] was ¶15 of Dr. Thal further testified Father s paranoia, distrust medical professionals, and refusal medication placed the children at risk. to take psychiatric Dr. Thal testified that Father believed the children were developing normally in his care and that they did not have the significant disabilities and delays that were being reported. Based on Father s mental illness and its prolonged and indeterminate duration, Dr. Thal concluded that Father was incapable of providing he changed appropriate care for the children. ¶16 Dr. Parker testified that his opinion regarding his prognosis of Father s ability to parent after he read case aide notes from March 2011 to present 3 and learned about Father s refusal to consent to O.M. s ear surgery. Dr. Parker further testified that Father s refusal to consent to the ear surgery despite numerous physician recommendations demonstrated that his mental illness distorted his judgment and prevented him from making appropriate parenting decisions. Dr. Parker concluded Father would likely continue to refuse to comply with recommended treatment for himself and the children for the foreseeable future. Dr. Parker opined that Father was [in]capable of providing appropriate care for his children now 3 The ADES worker noted that Father sometimes failed or was slow to intervene with his children, that he made inappropriate comments to them, that he picked up O.M. by one arm, and told the children not to touch the dog because he did not want them to give the dog a disease. 7 or in the near future. ¶17 Based on the record before it, the juvenile court could properly conclude that Father s mental illness prevented him from discharging his parental responsibilities. We are not persuaded by Father s claims that his cooperation with mental health providers demonstrates he has effectively managed his mental health issues 4 or that the court s conclusion must be reversed because it Magellan and Parker. Dr. was contrary We to defer earlier to the reports juvenile from court s resolution of conflicting inferences and claims if supported by reasonable evidence. Mary Lou C., 207 Ariz. at 47, ¶ 8, 83 P.3d at 47; Maricopa County Juv. Action No. JV-132905, 186 Ariz. 607, 609, 925 court P.2d will 748, not 750 reweigh (App. the 1996) evidence (citation but will omitted) look (this only to determine if there is evidence to sustain the court s ruling). As discussed supra, there was ample evidence to support the juvenile court s determination. 5 4 Father cites no factual authority to support this claim. See ARCAP 13(a)(6). Our own review of the record reveals that Father has repeatedly refused to cooperate with mental health providers. For example, he refused to take medication or seek treatment despite the recommendation of medical professionals. Father also stated he would sue anyone who tried to make him take medication and missed several appointments before completing his psychological evaluation. 5 In addition to finding at least one statutory basis for termination, the court must also find, by a preponderance of the evidence, that severance is in the child s best interests. A.R.S. § 8-533(B); Kent K. v. Bobby M., 210 Ariz. 279, 288, ¶ 41, 110 8 II. Efforts to Reunify the Family ¶18 Father reunification also contends efforts. ADES Specifically, he made insufficient asserts ADES: (1) failed to allow unsupervised visits as suggested by the parent aide; (2) replaced the parent aide with a less qualified case aide; (3) withheld visitation without good cause in February 2011; and (4) gave Dr. Parker an incomplete version of events. ¶19 claims. Father See cites ARCAP no factual 13(a)(6), authority (b)(1) (a to support party s brief include citations to relevant portions of the record). thus treat his arguments as waived. these must We could See State v. Moody, 208 Ariz. 424, 452, n.9, ¶ 102, 94 P.3d 1119, 1147 n.9 (2004). But even assuming that these arguments are properly before us, the record does not support them. ¶20 In a severance case based on mental illness, ADES must demonstrate that it has made a reasonable effort to preserve the family. Mary Ellen C., 193 Ariz. at 192, ¶ 33, 971 P.2d at 1053 (citations omitted). Reasonable efforts include providing a and parent with the time opportunity to participate in programs designed to improve the parent s ability to care for the child. Id. at ¶ 37 (citation omitted). ADES, though, need P.3d 1013, 1022 (2005). The court made such a finding here, and Father has not challenged it on appeal. See Schabel v. Deer Valley Unified Sch. Dist. No. 97, 186 Ariz. 161, 167, 920 P.2d 41, 47 (App. 1996) (citations omitted) (issues not raised in a party s appellate brief are waived). 9 not provide every conceivable rehabilitative measures. service or undertake futile Id. at 187, 192, ¶¶ 1, 37, 971 P.2d at 1048, 1053 (citation omitted). ¶21 services, Father received including: psychological over parent evaluation, a 18 aide months and case psychiatric of reunification aide services, evaluation, a Magellan mental health services, and regular supervised visits. Both Dr. Thal and Dr. Parker testified these services were reasonably directed at preserving the family. Dr. Thal also testified that Father made fundamental parenting errors despite 18 months of instruction. ¶22 Although the parent aide recommended unsupervised visits, Dr. Thal opined that the children should not be placed in Father s care because he lacked the ability to meet the special needs of two severely delayed children. After considering the report, ADES determined unsupervised visits were not appropriate. Father cites no legal authority, and we are aware of none, that requires ADES to follow every parent aide recommendation. ADES replaced the parent aide because Father s referral was closed, and the aide believed additional services were unnecessary because he had completed all the identified parent aide objectives. ADES was not comfortable allowing the Father to have unsupervised visits. It assigned a case aide to supervise the visits. Even assuming 10 case aide was less qualified than the parent aide, this does not establish the inadequacy of reunification services. ¶23 Father claims that no visitation was offered in February 2011 and the record is contradictory on this issue. Regardless, even if there was a delay in services during the month of February 2011, this fact alone did not require the juvenile court to conclude reunification efforts. the agency had made inadequate Finally, Father s allegation that CPS gave Dr. Parker incomplete facts because it did not agree with his prior reports is wholly speculative and without support in the record. CONCLUSION ¶24 For the foregoing reasons, we affirm the termination of Father s parental rights. /s/ MARGARET H. DOWNIE, Judge CONCURRING: /s/ PATRICIA K. NORRIS, Presiding Judge /s/ MICHAEL J. BROWN, Judge 11

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