Crystal C. v. ADES, E.B.

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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 DIVISION ONE FILED: 10/13/2011 RUTH A. WILLINGHAM, CLERK BY: DLL IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE CRYSTAL C., Appellant, v. ARIZONA DEPARTMENT OF ECONOMIC SECURITY, E.B., Appellees. ) ) ) ) ) ) ) ) ) ) ) No. 1 CA-JV 11-0047 DEPARTMENT A MEMORANDUM DECISION (Not for Publication Ariz.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 No. JD508247 The Honorable Brian K. Ishikawa, Judge AFFIRMED Vierling Law Offices By Thomas A. Vierling Attorneys for Appellant Phoenix Thomas C. Horne, Attorney General By Eric Devany, Assistant Attorney General Attorneys for Arizona Department of Economic Security Phoenix T I M M E R, Presiding Judge ¶1 Crystal C. ( Mother ) appeals the juvenile court s order severing her parental rights to E.B. pursuant to Arizona Revised Statutes grounds of ( A.R.S ) mental section illness and 8-533(B)(3) mental severance is in E.B. s best interests. erred in finding that: (1) Mother (2007) deficiency on and the that She argues the court was unable to discharge parental responsibilities because of a mental illness or mental deficiency and her condition would continue for a prolonged indeterminate time, (2) Arizona Department of Economic Security ( ADES ) made reasonable efforts to provide Mother with appropriate reunification services, and (3) terminating Mother s parental rights was in E.B. s best interests. For the following reasons, we affirm. BACKGROUND 1 ¶2 Mother and Adam B. ( Father ) are the parents of E.B., who was born August 30, 2009. hospital where E.B. was born became quickly biological Staff at the concerned about Mother s hostility as well as her inability to take direction. Consequently, the day after E.B. s birth, staff filed a report with Child Protective Services ( CPS ) expressing concerns about potential neglect. The report alleged, among other things, that Mother was unable to parent due to a mental health condition and[/]or developmental disability. 1 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 ¶3 Subsequently, CPS conducted a Team Decision Making ( TDM ) meeting on September 9, which included Mother and the maternal grandmother ( Grandmother ). concluded Mother [E.B.]. had an Specifically, inability the CPS After the meeting, CPS to team parent and concluded care for Mother was stubborn, hard to direct, had problems dealing with people, and needed to get back on her medication for her mental illness. During the services, meeting, and Mother Grandmother agreed agreed to to accept act as reunification in home safety monitor to protect E.B. ¶4 CPS Reunification took E.B. Thereafter, into ADES November 17. services temporary filed an subsequently legal in-home custody floundered, and on November 16. dependency petition on The petition alleged, among other things, that Mother was unable to parent E.B. due to mental illness, and that Mother had been diagnosed with mental retardation, disorder, schizoaffective disorder, and anxiety. dispute dependent these as allegations. to Mother The after a juvenile hearing bipolar Mother did not court E.B. December held found 11. Physical custody of E.B. was given temporarily to Grandmother. ¶5 On April 20, CPS filed a report court recommending severance and adoption. recommendation, CPS case manager Claudia with the juvenile In support of this Hoff cited Mother s inability to consistently meet with her parent-aide or separate 3 her needs from those of her daughter. CPS also reported that E.B. had been diagnosed with failure to thrive and had special needs. ¶6 well The juvenile court held a report and review hearing as as a permanency planning hearing on April 27. Subsequently, the court changed the case plan to severance and adoption and ordered ADES to file a motion for severance within ten days. On May 12, ADES moved to terminate the parental rights of Mother, Father, and John Doe. 2 ¶7 At a contested severance hearing held on January 12, 2011, the juvenile court found two statutory grounds existed for terminating Mother s parental rights to E.B. found that Mother responsibilities was because unable of to mental First, the court discharge illness and her parental there [were] reasonable grounds to believe that the condition will continue for a prolonged indeterminate time. See A.R.S. § 8-533(B)(3). Second, the court found that Mother was unable to discharge her parental responsibilities because of a mental deficiency and there [were] reasonable grounds to believe that the condition will continue for a prolonged indeterminate period. 2 See id. John Doe was subsequently dropped from the case in an amended motion filed by ADES after Father s paternity was confirmed. Although Father was originally party to this appeal, Father s counsel found no non-frivolous issue to raise. Accordingly, this court dismissed Father s appeal on June 16, 2011 pursuant to Rule 106(G)(1), Arizona Rules of Procedure for the Juvenile Court. 4 The court also determined that ADES had made reasonable efforts to provide Mother with rehabilitative severance was in E.B. s best interests. services and that See A.R.S. § 8-533(B); Mary Ellen C. v. Ariz. Dep t of Econ. Sec., 193 Ariz. 185, 192, ¶¶ 33-34, 971 P.2d 1046, 1053 (App. 1999). The juvenile court therefore severed Mother s parental rights to E.B. This timely appeal followed. DISCUSSION ¶8 The juvenile relationship evidence severance only court upon demonstrates and that finding at a may least terminate that the clear one parent-child and convincing statutory preponderance of the severance is in the child s best interests. ground evidence for shows A.R.S. § 8-533(B); Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 22, 110 P.3d 1013, 1018 (2005). discretion We by will making affirm factual unless the findings court [that] abused are its clearly erroneous, that is, unless there is no reasonable evidence to support them. 376, 377, omitted). every ¶ Audra T. v. Ariz. Dep t of Econ. Sec., 194 Ariz. 2, 982 P.2d 1290, 1291 (App. 1998) (citations [T]he juvenile court will be deemed to have made finding necessary to support the judgment. Maricopa County Juv. Action No. JS-8287, 171 Ariz. 104, 111, 828 P.2d 1245, 1252 (App. 1991) (citations omitted). principles in mind, we consider Mother s arguments. 5 With these I. ¶9 Mental illness Because termination is warranted upon a finding of any one of the grounds listed in A.R.S. § 8-533(B), we need examine only whether ADES presented evidence grounds relied on by the court. 3, 53 P.3d at 205. to support one of the Jesus M., 203 Ariz. at 280, ¶ We commence our review with the juvenile court s mental illness findings. ¶10 was Pursuant to A.R.S. § 8-533(B)(3), the juvenile court authorized finding that: to (1) responsibilities grounds exist to terminate she due is to Mother s unable mental believe her mental illness under discharge illness, condition prolonged indeterminate period. term to parental § and rights her (2) will upon parental reasonable continue for a This court has defined the 8-533(B)(3) as a substantial mental condition which renders the person unable to discharge parental responsibilities. Maricopa County Juv. Action No. JS- 5209, 143 Ariz. 178, 184, 692 P.2d 1027, 1033 (App. 1984). The statute does not require that the parent be found unable to discharge any parental responsibilities but rather that the parent be unable to discharge the parental responsibilities. Maricopa County Juv. Action No. JS-5894, 145 Ariz. 405, 408, 701 P.2d 1213, 1216 (App. 1985). This standard provides juvenile courts with flexibility in considering the unique circumstances of each termination case. Id. at 409, 701 P.2d at 1217. 6 ¶11 that Mother maintains she does not have a mental illness prevents responsibilities. supporting her from discharging her parental Although the record indeed contains evidence Mother s court s position, ruling, other and we evidence in therefore the defer record supports the to that ruling. Ariz. Dep t of Econ. Sec. v. Oscar O., 209 Ariz. 332, 334, ¶ 4, 100 P.3d 943, 945 (App. 2004) ( A juvenile court as the trier of fact in a termination proceeding is in the best position to weigh the evidence, observe the parties, judge the credibility of witnesses, and resolve disputed facts. (citation omitted)). ¶12 illnesses, As early as 1990, Mother was diagnosed with mental including severe attention deficit hyperactivity disorder, dysthymia, post-traumatic stress disorder, along with borderline intellectual functioning. James S. Thal, Ph.D., conducted psychological evaluations of Mother on February 23, 2010 and March 3, 2010. He diagnosed Mother as suffering from both bipolar and mood disorders not otherwise specified. In addition, Dr. Thal noted histrionic, schizoid, and borderline features in his diagnosis. Tests conducted by Dr. Thal indicate Mother possesses borderline intellectual functioning. 3 Dr. Thal opined that Mother s mental illnesses would prevent her from 3 Intelligence tests conducted by Dr. Thal indicate that Mother has a composite I.Q. of 71 (3rd percentile for her age group). 7 adequately parenting E.B. in the foreseeable future. He concluded that: [Mother] is a significantly mentally ill, intellectually limited, and emotionally unstable young woman who appears to be incapable of caring for her child at this time, and, perhaps, in the foreseeable future. This client disclosed a history of mood related issues dating back to early childhood and appears to have had little success in stabilizing her life. Her selection of male partners is likely to be problematic and produce further chaos in her life. [Mother] does not have a good understanding of her own mental illness and displays a disturbing tendency to project blame and responsibility for both her condition and any treatment onto others. Her parenting abilities are minimal but she is likely to be a very difficult client to work with. Her perceptions and interpretations of social stimuli seem to be critically impaired. This is a parent who will have difficulty relating to and meeting the needs of a young child. This will likely be most evident in nurturing, forming attachments, and providing an emotionally secure environment for a very young child. In the worse [sic] case scenario, [Mother] could act out abusively toward a young child in her care. She made multiple statements about her extreme anger and desire to retaliate against others throughout this evaluation. He also opined that counseling and mental health services would not help Mother independently to parent the a extent young that child. she will Dr. be Thal able to therefore recommended [s]everance and adoption as it was likely to be 8 the most appropriate and realistic case plan for the client and her child. ¶13 Although conclusions and Mother opinions contends and that did ADES not presented provide only evidence of specific parenting deficiencies, the record, to the contrary, provides an exhaustive list of such deficiencies. Mother has rekindled a relationship and is living with Father, a man who she herself has described as a deeply disturbed and violent individual against whom she had a restraining order at the time of E.B. s birth because he had kicked Mother in the stomach while she was pregnant. When asked what would constitute an elevated an temperature for infant, Mother responded 105, which is clearly a dangerously high fever rather than simply elevated. Moreover, when asked how much sleep a child required, Mother responded three to six hours, which further demonstrated her lack of parenting knowledge. Reports from CPS, Magellan health Health Services, and other mental providers support these findings and constitute a three-year catalogue of episodes of mental instability, mood volatility, and irresponsibility. ¶14 Mother s mental illness is also evidenced by reports from Grandmother and the CPS case manager. the CPS case manager received several On December 8, 2010, urgent telephone calls from Mother and Grandmother. 9 and panicked The case manager described Mother Grandmother as distraught emotionally that reported and was verbally physically intimidating. Mother Mother s parenting hostile and She further related her fear for her safety and that of E.B. and Mother. that unstable. had shown Grandmother also stated signs of regression, that Mother was frustrated with the minor details of parenting, and that she showed a lack of patience. Grandmother reported that Mother s primary method of parenting E.B. [was] putting her to sleep. According to Grandmother, Mother would never be capable of parenting E.B. ¶15 As Mother points out, evidence in the record also supports her position that her illnesses do not prevent her from parenting E.B. letter from For example, Mother submitted a single-paragraph Sandra Figueroa, M.D., dated October 19, 2010, stating that although Mother was diagnosed with a Mood Disorder Not Otherwise Specified, her mood was currently stable, and she had been very cooperative with treatment. Mother argues that Dr. Figueroa s more recent October evaluation refutes Dr. Thal s Mother earlier fails March to cite evaluation any authority, recommending however, termination. stating that a last-in-time psychological evaluation prevails, and we are not aware of any. In comparison to Dr. Thal s report consisting of twelve of detailed supported by pages conclusions diagnoses, tests 10 and recommendations, particular examples and from personal observation, Dr. Figueroa s letter lacks the same depth and specificity. It was within the juvenile court s discretion to accept Dr. Thal s opinions. Oscar O., 209 Ariz. at 334, ¶ 4, 100 P.3d at 945. ¶16 Mother argues that a TDM report from April 19, 2010 also refutes Dr. Thal s diagnosis because the report concluded that Mother had developed a bond with the child and has basic parenting Mother skills. was not That same report, consistently however, attending her states that parent-aide appointments, that her parent-aide was concerned with Mother s ability to stay calm while parenting, and noted that during the meeting Mother became so upset she had to be calmed down by Grandmother. ¶17 In sum, although Mother is able to highlight isolated excerpts of evidence that reflect well on her parenting ability, the overwhelming thrust of the evidence suggests Mother s mental illnesses severely impede her ability to parent. Consequently, sufficient evidence supports the juvenile court s finding that severance was appropriate Mother s mental illnesses. under A.R.S. § 8-533(B)(3) due to In light of this holding, we need not discuss whether termination is also appropriate under § 8533(B)(3) due to mental deficiency. 11 II. ¶18 Reasonable reunification efforts Mother because ADES reunification next failed argues to that make services. severance reasonable Prior to was inappropriate efforts severance to based provide on mental illness, ADES must demonstrate that it has made a reasonable effort to preserve the family. 192, ¶ 33, 971 P.2d at 1053. Mary Ellen C., 193 Ariz. at Although CPS need not provide every conceivable service, it must provide a parent with the time and opportunity to participate in programs designed improve the parent s ability to care for the child. ¶ 37 (citation omitted). to Id. at CPS is required to undertake efforts with a reasonable prospect of success, but not efforts that would be futile. ¶19 Id. at ¶ 34 (citation omitted). The record demonstrates that ADES made ample attempts to provide Mother with appropriate reunification services. case manager Hoff testified that Mother had been CPS offered services by ADES including parenting classes, hands-on parentaide classes, supervised visitation, psychological evaluation, anger management, individual counseling, and transportation. And even before filing a dependency petition, ADES had offered counseling and mental health services through Magellan and family preservation services through Arizona Healthy Families. ¶20 enough Mother time to argues utilize that such ADES did services, 12 not but provide records her in with the possession of Magellan indicate Mother was receiving counseling as early as October 2008 - approximately ten months prior to E.B. s birth. In addition, Dr. Thal observed Mother s lack of a personal commitment to treatment and an apparent inability to assume responsibility for her own mental health care. Despite these available services, Mother habitually missed parent-aide visits, services. counseling, anger management classes, and other Furthermore, services provided by Family Preservation had to be discontinued due to repeated verbal conflicts between [Grandmother] and [Mother]. ¶21 Mother also asserts ADES improperly abdicated its duty to provide reunification services to Mother. In support of this contention, Mother highlights grievances she filed with Magellan and CPS describing her difficulty and frustration with obtaining proper services. February 10, The grievances filed December 14, 2009 and 2010, respectively, allege misdiagnosis, discrimination by CPS, and that Mother was not receiving the services required for reunification. Magellan s response states the bulk of the required services, or at least referrals for them, were in place by January 2010 a full one year prior to the termination hearing. CPS s response to Mother s grievance indicates that not only were many of the services sought already in place, but that Mother had misinterpreted the actions and 13 statements of CPS case managers as discriminatory or threatening when they were not. ¶22 basis The juvenile court could reasonably conclude on the of the evidence before it that Magellan diligently provided required services and that Mother s grievances merely evidenced Dr. Thal s opinion that Mother displays a disturbing tendency to project blame and responsibility both her See supra ¶ 12. condition and any treatment onto others. for The record shows Mother was provided an opportunity to engage in all mandated reunification services, but she did not fully participate or satisfactorily complete them. ¶23 Based on the foregoing, we conclude the juvenile court did not err in finding that ADES made reasonable efforts to provide Mother with necessary reunification services. III. Best interests ¶24 Mother finally argues the juvenile court erred by finding it was in E.B. s best interests to terminate the parentchild relationship because severance prevents Mother from having a bonded relationship with E.B. In considering E.B. s best interests, the court was required to determine how E.B. would benefit from the severance or be harmed by the continuation of her relationship with Mother. Maricopa County Juv. Action No. JS-500274, 167 Ariz. 1, 5, 804 P.2d 730, 734 (1990). found that E.B. was adoptable, 14 that she was The court residing with Grandmother, who was committed to adopting her, that ADES was investigating adoption through the paternal great-grandparents as well, and that termination would further the plan of adoption in order to provide the child with a safe, stable, and permanent home that can meet her daily needs. ¶25 Sufficient evidence supports the court s ruling. CPS case manager Hoff testified that severance and adoption was in E.B. s best interests because she needs a stable permanent home and because E.B. s neither specialized biological needs. parent She is also capable testified of meeting E.B. was adoptable, that the paternal great-grandparents were committed to adopting E.B., and that she had received verbal approval of that home through children s studies. an interstate compact for placement and Dr. Thal opined that under the care of Mother, E.B. would be most at risk for physical and emotional abuse as Finally, well as as possible previously exposure described, to domestic Mother has violence. repeatedly demonstrated unstable and impulsive tendencies, she has failed to demonstrate a commitment to good parenting by participating in the recommended ADES services, she continues to reside with a violent person, and she has unresolved mental health issues. Thus, although Mother loves E.B. and expresses a desire to take care of her, we cannot say the 15 juvenile court abused its discretion by finding that termination of Mother s rights was in E.B. s best interests. CONCLUSION ¶26 For the foregoing reasons, we affirm the judgment terminating Mother s parental rights to E.B. 4 /s/ Ann A. Scott Timmer, Presiding Judge CONCURRING: /s/ Patrick Irvine, Judge /s/ Daniel A. Barker, Judge 4 We amend the caption in this appeal to refer to the child by her initials. 16

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