Maria F v. ADES

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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 ) ) ) Appellant, ) ) v. ) ) ) ARIZONA DEPARTMENT OF ECONOMIC ) SECURITY, JOCELYNE H., BRIAN H., ) ) Appellees. ) ) No. DIVISION ONE FILED: 11/29/2011 RUTH A. WILLINGHAM, CLERK BY: DLL 1 CA-JV 11-0106 MARIA F., DEPARTMENT C MEMORANDUM DECISION (Not for Publication Ariz. R.P. Juv. Ct. 103(G); ARCAP 28) Appeal from the Superior Court in Maricopa County Cause No. JD17845 The Honorable Christopher A. Coury, Judge AFFIRMED Christina Phillis, Maricopa County Public Advocate By Suzanne Sanchez, Deputy Public Advocate Attorney for Appellant Mesa Thomas C. Horne, Attorney General Tucson By Claudia Acosta Collings, Assistant Attorney General Attorneys for Arizona Department of Economic Security H A L L, Judge ¶1 Maria F. (Mother) appeals the juvenile court s order terminating her parental rights to Jocelyne H. and Brian H. (the children).1 FACTUAL2 AND PROCEDURAL BACKGROUND ¶2 Mother is the biological parent to Jocelyne and Brian, born February 8, 2000, and October 8, 2001, respectively. In February 2009, Mother took Jocelyne to St. Joseph s hospital for an alleged seizure. because she had Mother insisted that Jocelyne wear a diaper incontinence and initially refused to walk or talk. tests were obstructions. negative for was constipated. Jocelyne All preliminary and invasive seizure conditions and colon Mother failed to provide any documentation to support Jocelyne s alleged medical conditions. Hospital staff were concerned that Jocelyne was being coerced by Mother not to walk or talk and capable of both. it was ultimately determined that she was School personnel informed the hospital staff that Jocelyne had jumped in front of a moving vehicle two weeks prior to her hospital admission and a year before that had turned on the gas in her home, both in attempts to commit 1 The children s father, Felipe Armando Hernandez, also had his parental rights terminated. He is not a party to this appeal. 2 We review the evidence and draw all reasonable inferences in the light most favorable to upholding the juvenile court s factual findings. Jesus M. v. Ariz. Dep t of Econ. Sec., 203 Ariz. 278, 282, ¶ 13, 53 P.3d 203, 207 (App. 2002). 2 suicide. she was Mother explained that Jocelyne was depressed because teased at school for her incontinence, but school officials reported that Jocelyne had never urinated or soiled herself at students. Mother school and had no history of being targeted by Additionally, while Jocelyne was at the hospital, would unattended disappear on several and leave occasions, Brian despite at the hospital hospital staff explicitly explaining that was not permitted. ¶3 Mother enrolled in also school revealed because of that Brian moderate incontinence, and a seizure disorder. had mental never been retardation, However, Mother failed to provide records to substantiate these conditions. Mother also confined Brian to a wheelchair, but hospital staff noticed that when Mother left Brian unattended at the hospital he was seen running about the floor and playing with the X-box like a normal child his age both physically and mentally. that she was receiving Brian s condition. $674.00 a month in Mother revealed SSI benefits for However, further investigation demonstrated that Brian show[ed] no signs of retardation, only a slight delay suspected to be related to lack of exposure. ¶4 After several days at St. Joseph s hospital, Jocelyne was transferred to a behavioral health center in Tucson for suicidal ideation. Mother did not attempt to visit or contact Jocelyne for the first three days because she was concerned 3 Jocelyne would begrudge her. When Mother arrived, she was quickly outraged that Jocelyne had paint on her gown, although hospital staff explained Jocelyne had been doing art therapy. Mother threatened to call the police and withdrew Jocelyne against medical advice, despite staff explaining that Jocelyne needed to remain at the facility for her own safety. When Mother post brought Jocelyne to a pediatric appointment discharge, Child Protective Services (CPS) removed the children from Mother s care and placed them together in a foster home. ¶5 In its dependency petition, the Arizona Department of Economic Security (ADES) alleged that Mother could not parent due to medical neglect because she withdrew Jocelyne from the hospital against keeping Brian retarded, medical home despite advice; initial due to purposely school from neglect claiming he was mentally evaluations revealing otherwise; physical abuse because Mother repeatedly requested Jocelyne be subjected to invasive medical procedures without evidence demonstrating a need; and failure to protect the children. ¶6 The juvenile court found the children dependent, made them wards of the juvenile court and committed to the care, custody and control of ADES. family-reunification plan following services to services, supervised and The ADES assist with visitation, 4 juvenile court provided Mother the plan: counseling and ordered with parent a the aide therapy. A psychiatric consultation and evaluation, family preservation, and a bonding assessment. ¶7 The Foster Care Review Board (FCRB) issued findings and recommendations in August 2009, December 2009, and June 2010 and concluded that the children s out-of-home placement was necessary and that the placement was safe, appropriate and least restrictive. In June 2010, the FCRB recommended implementing a concurrent case plan goal of adoption and noted that although Mother had been compliant with services, it was unsure if [Mother] has demonstrated the necessary behavioral changes to determine if she can children s needs. appropriately parent and meet the The FCRB additionally noted that Jocelyne exhibit[ed] self-harming behaviors before visits with [Mother] and [did] not want to participate in the visits. ¶8 Kathryn A. Menendez, Ph.D., conducted a bonding and attachment 2010. assessment of Mother, Jocelyne, and Brian in May Dr. Menendez concluded that there is a lack of bond and a mal-attachment that exists between Mother and the children. She stated that Mother does not demonstrate insight regarding her inappropriate children. parenting and possible exploitation of her She noted that the children were not in wheelchairs or diapers and appear[ed] to be functioning more closely to their developmental age and expectations. Dr. Menendez concluded that Mother failed to demonstrate any well developed 5 parenting skills and failed to show sensitivity to each of the children s needs. ¶9 In separate psychological concluded July that 2010, Christina Lebovitz, evaluations [l]ong-term of placement the is Ph.D., conducted children. in [their] She best interest, based on indications of chronic parental fabrication of medical problems and instability. ¶10 Marta evaluation of DeSoto, Mother in Ph.D., conducted August 2010. Dr. a psychological DeSoto diagnosed Mother with personality disorder (a combination of borderline, antisocial, and obsessive compulsive traits), anxiety disorder not otherwise specified, and neglect of children. Dr. DeSoto had serious concerns regarding [Mother s] ability to parent her children successfully. [Mother s] emotional and psychological functioning does appear to be significantly interfering with her ability to parent. disorder was most Dr. DeSoto opined that Mother s personality concerning and guide[d] her inability and/or unwillingness to assume responsibility and reveal[ed] a deficient introspective ability. Dr. DeSoto elaborated that Mother was unreliable and not trustworthy as an adult and/or parent and that the prognosis that [Mother would] be able to demonstrate minimally adequate foreseeable future [was] poor. parenting skills in the Dr. DeSoto further stated that children under the care of Mother would be at risk of further 6 neglect and/or abuse, Mother had no insight whatsoever into the situation and [was] unable to admit any appreciable responsibility regarding her past actions, and continue[d] to put her unresolved issues in front of the care of her children. Although Dr. DeSoto acknowledged that Mother had been participating in services, she found that Mother had failed to demonstrate the understanding that would lead to true emotional growth and Mother suffer[ed] from a great deal of anxiety that would interfere with her parenting. that Mother s indeterminate condition period may of Finally, Dr. DeSoto opined continue time. for Dr. a prolonged, DeSoto recommended individual and group therapy if the juvenile court terminated Mother s parental rights. ¶11 CPS case manager Tameka Myers submitted reports to the juvenile court throughout the case. several She reported that although Mother loved the children, her decision-making regarding serious things that directly affect[ed] children s] wellbeing could not appear more aberrant. further services, noted she that even failed to though Mother demonstrate readily any well [the Myers engaged in developed parenting skills, especially on how to nurture and support the emotional needs of the children. failed to maintain stable housing. Myers also stated that Mother Myers recommended changing the case plan to severance and adoption. 7 ¶12 In December 2010, ADES moved for termination of the parent-child relationship, alleging that Mother was unable to discharge her parental responsibilities because of mental illness and the children were in an out-of-home placement for fifteen months or longer. ¶13 The juvenile court held a contested severance hearing in May 2011. Dr. DeSoto testified at the hearing that Mother lacked insight into her counseling, had blunted mood or affect, and attempted to justify her actions or blame her actions on others. Dr. DeSoto reiterated her findings of anxiety disorder and personality disorder and noted that Mother was egocentric and immature, all of which interfered with her ability to parent and she felt indeterminate those and acknowledged conditions prolonged recommending would period group of continue time. therapy Dr. for for an DeSoto Mother, but specified that she recommended the group therapy if Mother s rights to the children were terminated. ¶14 Dr. Lebovitz testified that it was in the children s best interest to terminate Mother s parental rights. ¶15 been CPS case manager Myers testified that the children had in Mother an out-of-home failed to placement remedy the for twenty-six circumstances which children to be put in an out-of-home placement. that ADES made diligent efforts 8 to provide months and caused the Myers stated reunification services to Mother. Myers said that although Mother participated in all the services offered to her, she was not currently able to parent the children. Myers also said that Mother failed to maintain stable employment and stable housing throughout the case. Myers additionally testified that the children were adoptable, an adoptive home had been identified and was the least-restrictive placement for the children s needs, and the children were bonded to the placement. Myers concluded that it was in the best interests of the children for Mother s rights to be terminated and the children would benefit from a termination. ¶16 The juvenile court found that ADES proved by clear and convincing evidence that terminated to children the Mother s parental because rights Mother was should be unable to discharge her parental responsibilities due to mental illness, Arizona Revised Statutes (A.R.S.) section 8-533(B)(3) (Supp. 2010), and the children had been in an out-of-home placement for a cumulative total of fifteen months or longer, A.R.S. § 8533(B)(8)(c). to provide The court noted that ADES made a diligent effort appropriate reunification services. The court additionally found that ADES proved by a preponderance of the evidence that termination was in children. 9 the best interest of the ¶17 Mother timely appeals. We have jurisdiction under A.R.S. §§ 8-235 (2007) and 12-120.21 (2003) and Arizona Rule of Procedure for the Juvenile Court 103(A). DISCUSSION ¶18 Mother discretion by asserts that terminating the her juvenile parental court rights abused because its ADES failed to offer Mother an essential service that ADES s expert recommended.3 See Jordan C. v. Dep t of Econ. Sec., 223 Ariz. 86, 96, ¶ 29, 219 P.3d 296, 306 (App. 2009) (citing Mary Ellen C. v. Ariz. Dep t of Econ. Sec., 193 Ariz. 185, 192, ¶ 37, 971 P.2d 1046, unless 1053 factual the (App. juvenile findings 1999)). court [that] We abused are will its affirm the discretion clearly erroneous[;] judgment by making that unless there is no reasonable evidence to support them. is, Audra T. v. Ariz. Dep t of Econ. Sec., 194 Ariz. 376, 377, ¶ 2, 982 P.2d 1290, 1291 (App. 1998) (citations omitted). Because the trial court is in the best position to weigh the evidence, judge the credibility of the parties, observe the parties, and make appropriate factual findings, this court will not reweigh the evidence but will look only to determine evidence to sustain the court s ruling. 3 if there is Mary Lou C. v. Ariz. Mother does not challenge the juvenile court s findings of mental illness, out-of-home placement, and best interest, and we will therefore not address these findings on appeal. 10 Dep t of Econ. Sec., 207 Ariz. 43, 47, ¶ 8, 83 P.3d 43, 47 (App. 2004) (quoting Pima County Dependency Action No. 93511, 154 Ariz. 543, 546, 744 P.2d 455, 458 (App. 1987)). ¶19 Although ADES must make a diligent effort to provide services before terminating a parent s rights due to an out-ofhome placement, A.R.S. § 8-533(B)(8), and a reasonable effort before terminating a parent s rights due to mental illness, ADES is not required to provide the parent with every conceivable service. at Mary Ellen C., 193 Ariz. at 192, ¶¶ 33, 37, 971 P.2d 1053. Mother contends Dr. DeSoto testified that group therapy was a critically necessary service that prevented her from receiving necessary treatment and resulted in an erroneous termination order. See Jordan C., 223 Ariz. at 96, ¶ 29, 219 P.3d at 306. ¶20 We disagree. On appeal, Mother s misconstrued Dr. DeSoto s recommendations. counsel has Dr. DeSoto clearly concluded in both her report and at the termination hearing that group therapy was only necessary Mother s parental rights.4 if the court terminated It was not a service she recommended in an effort to reunify the family. ¶21 ample The record demonstrates that Mother was provided with and appropriate reunification 4 services. Mother was Dr. DeSoto also testified that if the court did not terminate Mother s parental rights to the children, then Mother would benefit from participating in individual and family therapy. 11 offered and visitation, participated in counseling parent and aide therapy, services, and a supervised psychiatric consultation and evaluation, family preservation, and a bonding assessment. CPS case manager Myers testified that ADES provided Mother with diligent and appropriate reunification services and the juvenile court also made the same finding. We hold that ADES made reasonable and diligent efforts to provide Mother with the appropriate reunification services and group therapy was not a critically necessary service. CONCLUSION ¶22 For the foregoing reasons, we affirm the judgment terminating Mother s parental rights to the children. _/s/______________________________ PHILIP HALL, Judge CONCURRING: _/s/__________________________________ MICHAEL J. BROWN, Presiding Judge _/s/___________________________________ ANN A. SCOTT TIMMER, Judge 12

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