Samantha O. v. Jeffrey F. ( 2022 )


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  •                       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    UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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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    SAMANTHA O. v. JEFFREY F. et al.
    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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    SAMANTHA O. v. JEFFREY F. et al.
    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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    SAMANTHA O. v. JEFFREY F. et al.
    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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    SAMANTHA O. v. JEFFREY F. et al.
    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).
    6
    

Document Info

Docket Number: 1 CA-JV 21-0322

Filed Date: 6/9/2022

Precedential Status: Non-Precedential

Modified Date: 6/9/2022