Tava R. v. Dcs, T.R. ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
TAVA R., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, T.R., Appellees.
No. 1 CA-JV 21-0211
FILED 2-17-2022
Appeal from the Superior Court in Maricopa County
No. JD532186
The Honorable Connie Contes, Judge, Retired
AFFIRMED
COUNSEL
John L. Popilek, PC, Scottsdale
By John L. Popilek
Counsel for Appellant
Arizona Attorney General’s Office, Tucson
By Autumn L. Spritzer
Counsel for Appellee Department of Child Safety
TAVA R. v. DCS, T.R.
Decision of the Court
MEMORANDUM DECISION
Judge Brian Y. Furuya delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Michael J. Brown joined.
F U R U Y A, Judge:
¶1 Tava R. (“Mother”) appeals the juvenile court’s order
terminating her parental rights to her child. We affirm.
FACTS AND PROCEDURAL HISTORY
¶2 In December 2018, a relative petitioned for a dependency,
alleging Mother was mentally unstable, violent, and abusing
amphetamines and alcohol. 1 Finally, the petition alleged Mother was
unemployed and had no means to support T.R.
¶3 Soon afterwards, T.R.’s guardian ad litem (“GAL”) and, at a
subsequent hearing, the juvenile court, reviewed photographs and audio
recordings indicating Mother had abused T.R. The court found “direct
evidence of abuse” and ordered the Department of Child Safety (“DCS”) to
remove the child. DCS eventually placed T.R. in a kinship placement and
substituted as petitioner in the dependency, alleging Mother had abused
and neglected the child. The court then ordered Mother to complete a drug
test, but she did not do so.
¶4 Meanwhile, soon after T.R.’s removal, Mother insisted to DCS
and the police that the child was being sexually abused. During visits,
Mother continually checked T.R.’s anal area and took photographs of his
genital and anal areas. Based on her claims of abuse, T.R. underwent a
forensic interview and a forensic medical exam, neither of which yielded
evidence of sexual abuse. Nonetheless, Mother continued to insist T.R. was
being sexually abused and continued to examine his genital and anal areas
during visits. Moreover, Mother demonstrated hostile behavior in front of
T.R. and threatened to kill family members, DCS employees, and security
guards in front of the child. Police repeatedly escorted her out of the
visitation center, leading DCS to ask the court to suspend visits.
1 The juvenile court terminated T.R.’s alleged father’s parental rights,
and he did not appeal.
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TAVA R. v. DCS, T.R.
Decision of the Court
¶5 In May 2019, the court adjudicated T.R. dependent and
suspended Mother’s in-person visits but ordered DCS to provide her with
telephonic visits. A week after the court’s ruling, Mother created a forged
court order purporting to return T.R. to her custody, which she presented
to police and T.R.’s placement. At a following hearing, the court set the case
plan as family reunification and again ordered Mother to participate in a
drug test. Around this time, Mother began receiving medication-
management services after reporting to the provider that she had attention-
deficit hyperactivity disorder (“ADHD”); the provider prescribed Mother
two amphetamines.
¶6 Four months later, Mother completed a psychological
evaluation. The psychologist observed Mother’s thoughts “fixate[d] on her
child being harmed in the past and in ongoing imminent danger although
she was largely unable to articulate any coherent support for either belief.”
He noted Mother had limited insight and judgment and diagnosed her with
an unspecified schizophrenia spectrum or other psychotic disorder and
unspecified stimulant and alcohol disorders. The psychologist also
provisionally diagnosed Mother with post-traumatic stress disorder and a
personality disorder. He noted his evaluation did not support Mother’s
ADHD diagnosis, and her amphetamine prescriptions were therefore very
concerning because they could exacerbate her psychotic disorder.
¶7 The psychologist opined T.R. was at a high risk of abuse or
neglect if placed in Mother’s care, and he gave Mother a very guarded
prognosis of her ability to parent in the foreseeable future. He
recommended Mother receive consistent medication management, an
evaluation for psychiatric treatment including a serious mental illness
(“SMI”) evaluation, cognitive-behavioral therapy, and substance-abuse
testing and treatment.
¶8 A few weeks later, Mother engaged a different psychologist
who performed a second psychological evaluation. During the evaluation,
Mother denied having any psychiatric issues besides ADHD and denied
any substance abuse. The psychologist observed Mother as “abrasive and
challenging” and noted that reconciling the discrepancy between what
Mother and DCS had reported to him was difficult. He diagnosed Mother
with an adjustment disorder with mixed disturbance of emotions and
conduct, narcissistic and histrionic personality features, and ADHD “per
records.” The psychologist concluded that stress from T.R.’s removal had
“greatly impacted [Mother’s] psychological functioning and her
interpersonal behavior,” and that she “is capable and fit to parent her child
at this time” but could benefit from individual therapy.
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TAVA R. v. DCS, T.R.
Decision of the Court
¶9 DCS then referred Mother for a psychiatric evaluation and
cognitive-behavioral therapy and renewed her referral for drug testing. The
psychiatrist diagnosed Mother with an adjustment disorder with mixed
anxiety and depressed mood and ADHD. In early 2020, Mother completed
six drug tests; each returned positive for various levels of amphetamine,
leading DCS to report that she was not taking her medication as prescribed.
Afterwards, Mother stopped drug testing altogether. Additionally, Mother
quit cognitive-behavioral therapy after attending only three sessions.
¶10 The court then changed the case plan to termination and
adoption, and DCS moved to terminate Mother’s parental rights based on
abuse, mental illness, and fifteen months’ time in out-of-home placement
grounds. See Ariz. Rev. Stat. (“A.R.S.”) § 8-533(B)(2)–(3), (B)(8)(c).
¶11 Around this same time, Mother resumed therapy and
attended for the next five months. Although her therapist recommended an
SMI evaluation, Mother refused. Additionally, during various meetings,
Mother displayed “mani[a],” “distorted thinking patterns,” and “paranoid
thoughts and delusional thinking.” The therapist reported that Mother
made “little to no progress” during therapy, was “not [] open to clinical
recommendations,” and “struggle[d] to accurately perceive reality.”
Mother stopped attending therapy in October 2020. Although DCS referred
Mother for a third psychological evaluation, she declined to participate.
¶12 Mother’s erratic behaviors continued. That same month, she
went to placement’s home in violation of a no-contact order and banged on
the doors and windows, demanding to see T.R. Additionally, although she
continued virtual visits with T.R. through placement, she visited
inconsistently and displayed inappropriate behaviors during visits.
¶13 Mother stopped communicating with DCS, and never
provided proof of consistent housing or employment. After a hearing, the
court terminated Mother’s parental rights on all grounds alleged, and she
timely appealed. We have jurisdiction pursuant to A.R.S. § 8-235(A) and
Arizona Rule of Procedure for the Juvenile Court 103(A).
DISCUSSION
¶14 On appeal, Mother argues the court relied upon
impermissible and insufficient evidence to support its termination order.
¶15 A parent’s right to custody and control of their own child,
while fundamental, is not absolute. Michael J. v. Ariz. Dep’t of Econ. Sec., 196
Ariz. 246, 248–49, ¶¶ 11–12 (2000). Termination of a parental relationship
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TAVA R. v. DCS, T.R.
Decision of the Court
may be warranted where the state proves one statutory ground under
A.R.S. § 8-533 by “clear and convincing evidence.” Id. “Clear and
convincing” means the grounds for termination are “highly probable or
reasonably certain.” Kent K. v. Bobby M., 210 Ariz. 279, 284–85, ¶ 25 (2005).
The court must also find that termination is in the child’s best interests by a
preponderance of the evidence. Id. at 288, ¶ 41.
¶16 We “will accept the juvenile court’s findings of fact unless no
reasonable evidence supports those findings, and we will affirm a
[termination] order unless it is clearly erroneous.” Jesus M. v. Ariz. Dep’t of
Econ. Sec., 203 Ariz. 278, 280, ¶ 4 (App. 2002). We do not reweigh the
evidence, but “look only to determine if there is evidence to sustain the
court’s ruling.” Mary Lou C. v. Ariz. Dep’t of Econ. Sec., 207 Ariz. 43, 47, ¶ 8
(App. 2004).
¶17 The court may terminate parental rights when a parent is
“unable to discharge parental responsibilities because of mental illness”
and “there are reasonable grounds to believe that the condition will
continue for a prolonged indeterminate period.” A.R.S. § 8-533(B)(3).
¶18 Mother first argues that the court’s order rests upon
inadmissible and irrelevant evidence because it relied on factual findings
from previous hearings made under a lower burden of proof. 2
¶19 In its final order, the court stated that on three previous
occasions it had found direct evidence of physical abuse. Contrary to
Mother’s contention, however, the court did not rely solely on its recitation
of previous abuse findings to terminate her rights. Indeed, the court’s order
also states that after a four-day contested hearing, it “heard, considered,
and weighed all of the testimony and . . . exhibits” and made its findings
“[b]ased upon th[e] evidence.”
¶20 The court determined that the evidence met the clear and
convincing standard and included “color photographs of red marks and
welts on the child’s lower back and chest area,” “audio files with sounds of
hitting and the child screaming in fear and/or pain and the child’s
statements of the mother hitting and hurting him,” “Mother’s admissions
in the recordings of abusing the child claiming that she ‘hit the child
because he hit her first,’” and Mother’s “testimony that she struck her child
2 Although this argument pertains mainly to the abuse ground, we
address it here to the extent those findings also support the mental-illness
ground.
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TAVA R. v. DCS, T.R.
Decision of the Court
on one occasion.” The photographs and audio files admitted at the
termination trial support the court’s findings. Thus, the court did not need
to rely on prior findings because it had sufficient evidence before it as part
of the termination trial. See In re William L., 211 Ariz. 236, 238, ¶ 7 (App.
2005) (explaining superior courts are presumed to know and follow the
law).
¶21 Mother next argues that “plausible alternative explanations
exist for both the abuse and mental health allegations,” pointing to her
testimony that her statements on the audio tapes were merely sarcasm and
her “family was out to destroy her relationship with” the child. Mother’s
arguments are not availing because the court carefully considered her
testimony on these points. Contrary to Mother’s characterizations, the court
determined the photographs and audio recordings and Mother’s testimony
in prior hearings contradicted her statements and “clearly indicated that
[she] was not being truthful in her testimony.” See Moore v. Title Ins. Co. of
Minn., 148 Ariz. 408, 413 (App. 1985) (“A finding of fact cannot be clearly
erroneous if there is substantial evidence to support it, even though there
might be substantial conflicting evidence.”) (internal quotation marks
omitted).
¶22 Mother also generally argues that insufficient evidence
supports the court’s order terminating her rights based on mental illness.
The court found Mother has a substantial history of erratic and histrionic
behaviors, including forging court documents to have T.R. returned to her.
The court also found Mother had accused multiple people of sexually
assaulting T.R., causing him to undergo a forensic exam that turned up no
evidence of abuse. Finally, the court found Mother participated minimally
in drug testing and mental-health services, and when she did drug test, the
results suggested she was misusing her prescriptions, which could
exacerbate her mental illness. These findings are supported by substantial
evidence in the record.
¶23 The court’s findings are further supported by the report and
testimony of Mother’s first evaluating psychologist who described
psychotic disorders as characterized by “significant irrational,
circumstantial, paranoid, and persecutory thinking and related extreme
behavioral acting out.” He testified Mother’s condition was “[e]xtremely
dangerous” for T.R. because, when thinking irrationally, she did not realize
her actions were unsafe. The psychologist opined that if left untreated,
Mother’s condition would not resolve on its own and recommended against
returning T.R. to her care.
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TAVA R. v. DCS, T.R.
Decision of the Court
¶24 Nonetheless, Mother argues DCS and the court ignored the
more favorable findings of the second psychologist, who testified that her
behavior was driven by fear and anxiety over being separated from T.R.
Nothing in the record suggests the court ignored this evidence. On the
contrary, the record demonstrates the court considered both psychological
evaluations and heard testimony from each psychologist. Ultimately, the
court found the first psychologist’s assessment more persuasive, and we
will not reweigh that evidence on appeal. Jesus M., 203 Ariz. at 282, ¶ 12(citation omitted). Moreover, regardless of Mother’s specific diagnosis, the
record is replete with examples of her erratic and unstable behaviors, which
were observed by numerous individuals throughout the dependency.
¶25 Finally, Mother challenges the court’s finding that her having
seven attorneys during the dependency demonstrated her instability and
erratic behavior. Even assuming this finding is error, other substantial
evidence in the record supports the court’s order terminating Mother’s
parental rights based upon mental illness. 3
CONCLUSION
¶26 For the foregoing reasons, we affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
3 Because we affirm the termination order under the mental-illness
ground, we need not address Mother’s arguments regarding the abuse or
fifteen months’ out-of-home placement grounds. See Id. at 280, ¶ 3.
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