Samantha O. v. Jeffrey F. ( 2022 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
SAMANTHA O., Appellant,
v.
JEFFREY F., MINDY F., DEPARTMENT OF CHILD SAFETY, H.O., J.O.,
Appellees.
No. 1 CA-JV 21-0322
FILED 6-9-2022
Appeal from the Superior Court in Maricopa County
Nos. JD35632
JS19942
The Honorable David O. Cunanan, Judge
AFFIRMED
COUNSEL
Thomas Vierling Attorney at Law, Phoenix
By Thomas A. Vierling
Counsel for Appellant
Jeffrey M. Zurbriggen PC, Phoenix
By Jeffrey M. Zurbriggen
Counsel for Appellees Jeffrey F., Mindy F.
Arizona Attorney General’s Office, Tucson
By Jennifer R. Blum
Counsel for Appellee Department of Child Safety
SAMANTHA O. v. JEFFREY F. et al.
Decision of the Court
MEMORANDUM DECISION
Judge Randall M. Howe delivered the decision of the court, in which
Presiding Judge Jennifer B. Campbell and Judge James B. Morse Jr. joined.
H O W E, Judge:
¶1 Samantha O. (“Mother”) appeals the juvenile court’s
termination of her parental rights to her children H.O. and J.O. Jeffrey and
Mindy F., the familial foster family (“Foster Family”), filed an answering
brief along with the Department of Child Safety. For the reasons stated
below, we affirm.1
FACTS AND PROCEDURAL HISTORY
¶2 We view the facts in the light most favorable to sustaining the
juvenile court’s order. Demetrius L. v. Joshlynn F., 239 Ariz. 1, 2 ¶ 2 (2016).
Mother has had a long history with mental illness and drug use, having
been first diagnosed with bipolar disorder at ten and having used
marijuana since she was nine. While pregnant with H.O., Mother used
heroin daily, causing H.O. to be born substance-exposed in January 2018,
and requiring H.O. to remain in the neonatal intensive care unit for over
two months with severe withdrawal symptoms. The Department
petitioned for H.O.’s out-of-home dependency based on Mother’s mental
health, substance abuse, and domestic-violence issues, and the court found
H.O. dependent.
¶3 The Department provided Mother with reunification services
including psychological and psychiatric assessments, medications and
medication monitoring, domestic-violence education and classes, group
and individual counseling, inpatient hospitalization, substance-abuse
testing, methadone treatment, and visitation. At her first psychological
evaluation, the psychologist diagnosed her with bipolar disorder and
determined that H.O. was at risk of harm if returned to her care. In April
2019, Mother relapsed with heroin. A few months later, she gave birth to
J.O., who was born substance-exposed to methadone and hospitalized for
three weeks with withdrawal symptoms. The Department petitioned for
dependency based on mental health, substance abuse, and domestic
1 John O., the children’s father, is not a party to this appeal.
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Decision of the Court
violence, and the court found J.O. dependent. The Department also moved
to terminate Mother’s parental rights to H.O., which the court denied to
give Mother opportunities to reunify with her children.
¶4 Despite these additional opportunities and continued
services, Mother was hospitalized six times for mental-health issues during
the dependency, relapsed with various substances, and missed drug-testing
appointments. When the Department did return the children to Mother’s
care in June 2020, the Department removed them again less than two weeks
later after Mother engaged in domestic violence with a boyfriend in front
of them.
¶5 In a second psychological evaluation in August 2020, the
psychologist found that Mother could not live on her own stably and
concluded that at least a year of additional services would be required
before independence could be considered. He also concluded that Mother
had a serious mental-health issue and that if she did not keep her
medication regiment consistent, she would continue to have manic
episodes coupled with depressive or psychotic episodes. Yet Mother failed
to keep up with her medication regiment during the latter portion of 2020.
As a result, H.O.’s and J.O.’s foster family moved in February 2021 to
terminate her parental rights based on time in out-of-home placement and
the mental illness/substance-abuse grounds.
¶6 At the termination hearing, Mother testified that she had been
sober since June 2019. She also testified that she has made progress in
managing her mental health and domestic-abuse issues. When asked about
her housing and current roommate, she denied that he had a history of
domestic violence. When pressed in cross-examination, she said that while
they had been romantically involved, she had broken it off about 30 days
ago because her psychologist said it would make getting her children back
easier. The Department’s case manager then testified that Mother had not
remedied her mental illness and domestic-violence issues, evidenced by her
recent long-term relationship—romantically or only as a roommate—with
someone that had a history of domestic violence. She also testified that the
children would benefit from the permanency that their foster family could
offer and, alternatively, would suffer harm in continued, long-term foster
care with no foreseeable possibility of returning to Mother’s care.
¶7 Mother’s evaluating psychologist testified that Mother’s
mental-health issues would have to be managed for the rest of her life and
that her bipolar disorder is considered a serious mental illness. He
suggested that Mother needed a psychiatric prescriber, a counselor or
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Decision of the Court
therapist, and perhaps a case manager to communicate and update one
another. He also concluded that even after four years of services, Mother
was unable to reunify with her children and would remain so for the
foreseeable future. Mother’s psychologist did not give an opinion on the
termination proceedings and testified that Mother’s continued therapy
would be vital for her mental health. She also expressed concern that
Mother had entered another romantic relationship with someone known to
have a history of domestic violence.
¶8 The juvenile court terminated Mother’s parental rights under
the 15 months’ time in out-of-home placement grounds. It found that while
Mother had made steps to improve her substance abuse and mental-health
issues, she could not properly care for her children because of her mental
illness and her failure to identify threats to her safety and to the safety of
her children. The court found that the children would benefit from the
permanency their foster family provided and that they would be harmed
without Mother’s ability to parent in the near future. Mother timely filed a
notice of appeal.
DISCUSSION
¶9 Court-appointed counsel for Mother declared that he found
no non-frivolous issues to raise on appeal. See Denise H. v. Ariz. Dep’t of
Econ. Sec., 193 Ariz. 257, 260 ¶ 9 (App. 1998) (“. . . in rare cases in which no
arguable appellate issues exist, we see nothing in § 8–236(D) that would
require appointed counsel to file a frivolous brief.”). Mother filed a pro se
brief arguing that her mental-health issues do not affect her ability to parent
her children or to keep them safe from harm. This court reviews a juvenile
court’s termination determination for an abuse of discretion. Mary Lou C. v.
Ariz. Dep’t of Econ. Sec., 207 Ariz. 43, 47 ¶ 8 (App. 2004). Because the juvenile
court is in the best position to weigh the evidence, observe the parties, judge
the credibility of witnesses, and resolve disputed facts, Ariz. Dep’t of Econ.
Sec. v. Oscar O., 209 Ariz. 332, 334 ¶ 4 (App. 2004), we will affirm a
termination decision unless no reasonable evidence supports it, Xavier R. v.
Joseph R., 230 Ariz. 96, 100 ¶ 11 (App. 2012).
¶10 Foster Family argues that Mother’s failure to comply with
Arizona Rule of Civil Appellate Procedure (“ARCAP”) 13 in her opening
brief has waived any legal issue for review. While Mother’s opening brief
manifestly violates ARCAP 13 and that failure to comply with ARCAP 13
normally serves as a waiver of any issues a litigant may have wished to
submit for this court’s review, Ramos v. Nichols, No. 1 CA-CV 21-0322, 2022
WL 211179, at *2 (Ariz. Ct. App. Jan. 25, 2022), we refuse to apply waiver
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Decision of the Court
here because the best interests of the children subject to the termination
order trumps the consequences ordinarily imposed for violating procedural
rules, see Nold v. Nold, 232 Ariz. 270, 273 ¶ 10 (App. 2013).
¶11 As to the merits, the juvenile court did not err in terminating
Mother’s parental rights to H.O. and J.O. To terminate parental rights, the
juvenile court must find by clear and convincing evidence the existence of
at least one statutory ground under A.R.S. § 8−533 and by a preponderance
of the evidence that termination would be in the child’s best interests. A.R.S.
§ 8–533(B); Ariz. R.P. Juv. Ct. 66(C); Jennifer S. v. Dep’t of Child Safety, 240
Ariz. 282, 286 ¶ 15 (App. 2016).
¶12 To terminate parental rights under the 15 months in an
out-of-home placement ground, the juvenile court must find clear and
convincing evidence that (1) the Department made diligent efforts to
provide appropriate reunification services; (2) the child has been in an
out-of-home placement for a cumulative total period of 15 months or longer
under court order; (3) the parent has been unable to remedy the
circumstances that caused the child to be in an out-of-home placement; and
(4) a substantial likelihood exists that the parent will be incapable of
exercising proper and effective parental care and control in the near future.
A.R.S. § 8–533(B)(8)(c). Additionally, the court must determine if
termination of parental rights is in a child’s best interests, or if the child will
benefit from the termination or will be harmed if the relationship continues.
Alma S. v. Dep’t of Child Safety, 245 Ariz. 146, 150 ¶ 13 (2018).
¶13 Reasonable evidence supports the juvenile court’s
termination of Mother’s parental rights and its best interests finding. The
children have been in out-of-home placement for more than 15 months and
the Department has diligently provided Mother with services. Despite the
services provided, Mother still requires life-long mental health care for her
bipolar disorder. Although life-long mental health challenges do not in and
of itself require termination of Mother’s rights, she has not shown that she
can manage her prescriptions and mental health while maintaining a safe
home, much less doing so while caring for two young children who will
demand a great deal of her time, energy, and patience. Indeed, when the
Department returned the children to her care, she became overwhelmed
and engaged in domestic violence within 10 days. Accordingly, no witness
recommended the return of Mother’s children, and she continues to
surround herself with individuals with a history of domestic violence.
Foster Family, on the other hand, has provided for the children’s health and
safety for the past two and four years respectively and is poised to keep
doing so. Mother’s primary arguments on appeal merely ask this court to
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Decision of the Court
reweigh the evidence, which we will not do. See Williams v. King, 248 Ariz.
311, 317 (App. 2020).2
¶14 Mother also argues that her trial counsel was ineffective
because she did not call additional witnesses to testify to her improvement
during the dependency. Assuming that a parent may bring an ineffective
assistance of counsel claim in a termination proceeding, Mother’s counsel
was not ineffective. The bar to establish ineffective assistance of counsel in
a termination proceeding is higher than the standard in criminal cases,
Royce C. v. Dep’t of Child Safety, 252 Ariz. 129, 137 ¶ 24 (Ariz. App. 2021),
and requires a court to look at the whole proceeding to determine whether
counsel’s conduct undermined the proceeding’s “fundamental fairness” to
cast doubt on the proceeding’s protection of an individual’s rights, id. at 136
¶ 20. Here, witnesses testified that Mother had improved during the
dependency. Indeed, based on that testimony the juvenile court rejected the
substance-abuse grounds. Despite her improvement, however, no witness
suggested the children could be returned to Mother in the near future due
to her mental health and domestic-violence issues, and she does not assert
that any of her additional witnesses would say that she could properly and
appropriately parent the children at the time of termination. Accordingly,
we do not find that counsel’s actions undermined the fundamental fairness
of the proceedings. See id. at 136–37 ¶¶ 20–24.
CONCLUSION
¶15 For the reasons stated, we affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
2 Mother’s opening brief included exhibits on appeal that were not
presented to the juvenile court. In an earlier order, we denied Foster
Family’s motion to strike Mother’s opening brief on this basis but reiterated
that this court will not consider facts or evidence outside the record on
appeal. State v. Schackart, 190 Ariz. 238, 247 (1997).
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