Kimberly H. v. Dcs ( 2015 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
KIMBERLY H., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, S.B., C.B., Appellees.
No. 1 CA-JV 14-0192
FILED 4-14-2015
Appeal from the Superior Court in Maricopa County
No. JD21231
The Honorable Linda H. Miles, Judge
AFFIRMED
COUNSEL
Denise L. Carroll, Scottsdale
By Denise L. Carroll
Counsel for Appellant
Arizona Attorney General’s Office, Phoenix
By Dawn R. Williams
Counsel for Appellee Department of Child Safety
KIMBERLY H. v. DCS, et al.
Decision of the Court
MEMORANDUM DECISION
Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Kent E. Cattani and Judge Peter B. Swann joined.
W I N T H R O P, Judge:
¶1 Kimberly H. (“Mother”) appeals the juvenile court’s order
severing her parental rights to S.B. and C.B. (collectively, “the children”).
Because reasonable evidence supports severance based on cumulative out-
of-home placement for fifteen months or more pursuant to court order, we
affirm.
FACTS AND PROCEDURAL HISTORY
¶2 S.B. was born in July 2010, and C.B. in July 2011. In March
2011, the Department of Child Safety (“DCS”)1 began receiving reports
about the family, primarily concerning allegations Mother and the
children’s alleged biological father (“Father”)2 were neglecting S.B. and
engaging in domestic violence. After police responded to a domestic
violence incident in August 2011, Mother left Father and resided briefly
with her mother until being asked to leave. She subsequently resided with
friends, but eventually relocated to a shelter. After further reports of
neglect, DCS removed the children in December 2011. At the time of
removal, both children appeared emaciated, ill, and developmentally
delayed, with ongoing medical conditions. S.B. had a severe rash and open
wounds from eczema, and C.B. had rotovirus and recurring ear infections.
1 At the outset of this proceeding, the children were taken into care by
Child Protective Services (“CPS”), formerly a division of the Arizona
Department of Economic Security (“ADES”), and ADES filed the initial
dependency petition. In May 2014, CPS was removed as an entity within
ADES and replaced by DCS, an entity outside of ADES. See 2014 Ariz. Sess.
Laws, ch. 1, §§ 6, 20, 54 (2d Spec. Sess.). Accordingly, DCS has been
substituted for ADES in this matter. See ARCAP 27. References to DCS
encompass both ADES and the former CPS.
2 On June 20, 2013, the juvenile court terminated Father’s parental
rights, as well as those of “John Doe” or any other person claiming
paternity. Father is not part of this appeal.
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Decision of the Court
Mother appeared indifferent to concerns about the children and her lack of
care for them. At the first visit between Mother and the children after their
removal, it was apparent she had trouble supervising both children at the
same time.
¶3 On December 29, 2011, DCS petitioned the juvenile court to
declare S.B. and C.B. dependent as to both parents. As to Mother, DCS
alleged the children were dependent due to abuse and/or neglect.
Specifically, DCS alleged (1) Mother had failed to provide the children with
the basic necessities of life, including their medical needs, as exhibited by
Mother’s failure to care for S.B.’s eczema and failure to obtain
immunizations for the children, and (2) Mother and Father had domestic
violence issues. On April 30, 2012, the juvenile court adjudicated the
children dependent, and ordered a case plan of family reunification
concurrent with severance and adoption.
¶4 To work toward reunification, Mother was expected to
demonstrate an ability to (1) ”recognize and seek medical attention for her
children when needed,” (2) “empathize with her children, recognizing their
cues and appropriately respond[ing] to their needs,” and (3) “financially
provide a safe stable home.” To help Mother achieve those goals, DCS
provided her with transportation and arranged for her to complete a
substance abuse assessment, urinalysis testing, and a psychological
evaluation, and DCS offered other services, including parent aide assistance
and individual counseling to address Mother’s anger and domestic violence
issues. DCS also completed assessments on the children and offered speech
and other therapy for S.B. and occupational therapy for C.B. to address their
developmental delays. DCS also offered day care, play therapy, and foster
care services.
¶5 Despite the assistance DCS offered, Mother continued to
struggle. She was unable to maintain stable housing or employment, and
appeared to lack the motivation to participate in services to address the
safety threats to the children. She also lacked insight into her involvement
with DCS and the reasons the children remained in out-of-home placement.
Mother minimized the allegations, lacked insight into normal child
development, and indicated she wished to reunite with Father, despite their
history of domestic violence. Mother was also inconsistent both in her drug
testing - missing several required tests, testing positive twice for opiates in
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Decision of the Court
July 2012,3 and testing positive once for alcohol – and in her participation
with parent aide services, missing several scheduled visits and resisting
instruction from parent aides. During visits, she failed to appropriately
supervise the children, used inappropriate language, argued with the
parent aide, and refused to accept redirection in her parenting skills. She
also demonstrated an inability to understand the importance of following
the children’s dietary restrictions, even after learning about S.B.’s extreme
food allergies.
¶6 On October 22, 2012, DCS moved to terminate the parents’
parental rights to the children. As to Mother, DCS sought to terminate her
parental rights pursuant to Arizona Revised Statutes section 8-533(B)(8)(b)
(West 2015)4 (six months’ time-in-care), alleging she had substantially
neglected or willfully refused to remedy the circumstances causing the
children to be in an out-of-home placement. DCS noted Mother had not
been fully compliant with drug testing, individual counseling, domestic
violence counseling, or visitation. At the conclusion of the trial on May 9,
2013, the juvenile court severed Father’s parental rights; however, the court
found DCS had failed to establish by clear and convincing evidence the
grounds to terminate Mother’s parental rights, and ordered the case plan
changed to family reunification concurrent with severance and adoption.
¶7 DCS thereafter continued to offer reunification services to
Mother, although DCS discontinued parent aide services and offered only
case aide services for approximately one year. Mother remained
inconsistent in her drug testing, missing numerous tests. Further, although
Mother’s parenting skills improved slightly between 2013 and 2014 and she
was eventually able to verbalize some good parenting techniques, case
aides continued to express concerns about Mother’s ability to parent, and
noted Mother consistently demonstrated an unwillingness or inability to
learn and apply appropriate parenting skills. Mother sporadically missed
visits and failed to adequately supervise both children, which resulted in
safety concerns for the children. Despite one-on-one, hands-on parenting
instruction from the case aides, Mother continued to put the children at risk
by giving them food without ensuring it would not cause an allergic
3 Mother later provided a prescription to explain her positive tests for
opiates.
4 We cite the current version of the applicable statutes because no
changes material to our decision have occurred since the time of the
severance.
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Decision of the Court
reaction; allowed them to hurt themselves and each other without
redirection; let S.B. cover himself in feces; and became upset with the
children and case aides when the children would not listen to her. Mother
also continued to minimize and deny the allegations and issues causing the
children to be in out-of-home placement. Her housing and employment
continued to be unstable, and she regularly missed individual counseling
sessions.5
¶8 On October 9, 2013, DCS again moved to terminate Mother’s
parental rights to the children, on the grounds of six, nine, and fifteen
months’ time-in-care. See A.R.S. § 8-533(B)(8)(a)-(c). DCS further alleged
that terminating Mother’s parental rights was in the children’s best interest.
¶9 Pending trial on the severance motion, Mother gave birth to a
third child, A.H. Although Mother became more compliant with visitation
and the services offered her, she continued to lack the necessary skills to
safely parent, denied any parenting issues, and refused to accept direction
with respect to her care of A.H. Accordingly, DCS removed A.H. from
Mother’s care as well. In January 2014, DCS filed a dependency petition
regarding A.H.6
¶10 On February 12 and March 17, 2014, Mother completed a
psychological evaluation offered by DCS and conducted by James Thal,
Ph.D.7 Dr. Thal diagnosed Mother with an unspecified personality disorder
with borderline traits, and noted “she has a strong inclination to project
blame onto others.” Dr. Thal indicated his review of DCS reports supported
his “genuine concern that [Mother] would quickly be overwhelmed by the
demands of parenting three active children, all under the age of four.” At
the time of the evaluation, Mother was temporarily living in the apartment
of two friends, but planned to move again in the near future, and had only
recently secured a part-time job cleaning houses. Nevertheless, she asserted
she could support herself and her three children, and she denied that her
5 Mother did, however, successfully complete of a counseling session
in November 2013.
6 The juvenile court later adjudicated A.H. dependent as to Mother,
but he is not subject to the termination order from which Mother appeals.
7 Mother was scheduled for her evaluation on February 12, but she
arrived forty minutes early and indicated she would have to leave before
the assessment could be completed. She missed the rescheduled March 3
appointment, then arrived late for the rescheduled March 17 appointment.
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KIMBERLY H. v. DCS, et al.
Decision of the Court
personal shortcomings had led to the children’s out-of-home placement.
Dr. Thal opined that Mother’s general distrust of others and the absence of
meaningful support from others would likely continue to hamper her.
These traits were intertwined with her personality disorder, leading Dr.
Thal to offer an uncertain prognosis regarding whether Mother would be
“able to demonstrate minimally adequate parenting skills in the foreseeable
future, even with existing or proposed interventions.” Further, her inability
to gain appropriate parenting skills in the time since the children’s removal
indicated her condition would continue “for a prolonged, indeterminate
period of time,” and a child in her care was at risk of neglect.
¶11 In April and June 2014, the juvenile court held a four-day
contested severance hearing. At the beginning of the hearing, DCS
withdrew the six-month and nine-month out-of-home placement grounds,
and proceeded on the fifteen-month ground.
¶12 At the hearing, Dr. Thal opined that Mother would not be able
to safely parent the children for at least “a couple of years,” and that she
would only be able to do so if she completed the “arduous” work necessary
to address her own immaturity and personality disorder. He further noted
that, “what’s really difficult and really troubling is why she was never able
to consistently implement what she learned” given the “hours and hours
and hours of coaching” she received. He opined that reunification with S.B.
and C.B. was “a lost cause,” and Mother and DCS should focus their efforts
on her new infant, A.H.
¶13 Similarly, Mother’s DCS case manager, Ashley Shaub-
Betcher, opined that Mother “has not been able to make significant behavior
changes in two and a half years of [DCS] involvement,” and therefore
recommended discontinuing reunification services for S.B. and C.B.8 When
Ms. Shaub-Betcher supervised visits between Mother and the children
following A.H.’s birth, she noted Mother continued to struggle to parent
both S.B. and C.B., did not fully understand S.B.’s severe allergies, and
required intervention because of safety concerns when she failed to
adequately supervise the children. Moreover, Mother still had not
demonstrated an ability to maintain a stable home or income and relied on
DCS to meet her transportation needs. Her instability was particularly
concerning, given the number of appointments and services the children
needed on a regular basis. Because, unlike S.B. and C.B., A.H. had no
8 Ms. Shaub-Betcher conceded, however, that sometime in the fall of
2013, Mother started submitting to drug testing more consistently and
appeared to have remedied her substance abuse problem.
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Decision of the Court
apparent special needs, Ms. Shaub-Betcher recommended Mother
concentrate on obtaining the parenting skills necessary to parent him.
¶14 At the conclusion of the trial, the juvenile court terminated the
parent-child relationship between Mother and the children. We have
jurisdiction over Appellant’s timely appeal pursuant to A.R.S. §§ 8-235(A),
12-120.21(A)(1), and 12-2101(A)(1).
ANALYSIS
I. Fifteen Months’ Out-of-Home Placement
¶15 Mother argues the juvenile court erred in finding there was
clear and convincing evidence that she failed to remedy the circumstances
that caused the children to be in out-of-home placement. We disagree.
¶16 Although the right to custody of one’s children is
fundamental, it is not absolute. See Michael J. v. Ariz. Dep’t of Econ. Sec., 196
Ariz. 246, 248, ¶¶ 11–12, 995 P.2d 682, 684 (2000). The juvenile court may
sever a parental relationship based on clear and convincing evidence of at
least one statutory ground enumerated in A.R.S. § 8–533(B). Id. at 249, ¶ 12,
995 P.2d at 685. In addition, the court must find by a preponderance of the
evidence that termination is in the best interest of the child. See id.; Kent K.
v. Bobby M., 210 Ariz. 279, 284, ¶ 22, 110 P.3d 1013, 1018 (2005).
¶17 Because “the juvenile court [i]s in the best position to weigh
the evidence, judge the credibility of the parties, observe the parties, and
make appropriate factual findings,” Pima Cnty. Dependency Action No.
93511, 154 Ariz. 543, 546, 744 P.2d 455, 458 (App. 1987), this court will not
reweigh the evidence but will look only to determine if there is evidence to
sustain the court’s ruling. Maricopa Cnty. Juv. Action No. JV–132905, 186
Ariz. 607, 609, 925 P.2d 748, 750 (App. 1996). “We will not disturb the
juvenile court’s disposition absent an abuse of discretion or unless the
court’s findings of fact were clearly erroneous, i.e., there is no reasonable
evidence to support them.” Id. (citations omitted); accord Minh T. v. Ariz.
Dep’t of Econ. Sec., 202 Ariz. 76, 78–79, ¶ 9, 41 P.3d 614, 616–17 (App. 2001).
¶18 Although DCS must provide parents with the time and
opportunity to participate in programs designed to improve their ability to
care for their child, Mary Ellen C. v. Ariz. Dep’t of Econ. Sec., 193 Ariz. 185,
192, ¶ 37, 971 P.2d 1046, 1053 (App. 1999), DCS is not required to provide
every conceivable service or to ensure parents participate in each service
offered. Maricopa Cnty. Juv. Action No. JS–501904, 180 Ariz. 348, 353, 884
P.2d 234, 239 (App. 1994). Nor is DCS required to offer futile services. See
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Decision of the Court
Mary Lou C. v. Ariz. Dep’t of Econ. Sec., 207 Ariz. 43, 50, ¶ 18, 83 P.3d 43, 50
(App. 2004).
A. Mother’s Inability to Remedy the Circumstances
¶19 Mother argues “the State failed to prove that she was unable
to remedy the circumstances that had caused the removal of her children”
because she addressed her substance abuse and domestic violence issues,
consistently visited the children, improved her parenting skills, and
purportedly learned to use an EpiPen to treat S.B.’s allergies. Mother’s
argument, however, amounts to a request to reweigh the evidence, which
we will not do. See JV–132905, 186 Ariz. at 609, 925 P.2d at 750. Mother’s
claim fails because, despite her efforts, she was unable to remedy the
circumstances that caused the children’s out-of-home placement.
¶20 Under A.R.S. § 8–533(B)(8)(c), the juvenile court had
discretion to terminate Mother’s parental rights after finding that (1) DCS
made diligent efforts to provide appropriate reunification services; (2) the
children were in an out-of-home placement for fifteen months or longer; (3)
Mother was unable to remedy the circumstances causing the out-of-home
placement; (4) a “substantial likelihood” existed Mother would “not be
capable of exercising proper and effective parental care and control in the
near future”; and (5) severance was in the children’s best interest.9 Unlike
the nine-month ground under A.R.S. § 8-533(B)(8)(a), the fifteen-month
ground under subsection (c) does not require that the juvenile court find
the parent substantially neglected or wilfully refused to remedy the
circumstances causing the out-of-home placement. Rather, it requires only
that the juvenile court find the parent was unable to remedy the
circumstances causing the out-of-home placement, regardless of her efforts.
See A.R.S. § 8-533(B)(8)(c).
¶21 In this case, ample evidence supported the juvenile court’s
finding that Mother had been unable to remedy the circumstances that
caused the children’s out-of-home placement. Dr. Thal testified he
diagnosed Mother with a personality disorder characterized by “self-
defeating behaviors” and a pattern of making decisions that were not in her
or her children’s best interest. He opined that a personality disorder like
Mother’s would interfere with productivity and relationships (including
the parent-child relationship) and would cause distorted thinking,
9 Mother has not challenged the juvenile court’s findings that DCS
made diligent reunification efforts and the children had been in an out-of-
home placement for at least fifteen months.
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Decision of the Court
difficulty accepting reality, and a tendency to blame others. Dr. Thal
recognized Mother had made gains and had some favorable traits: she was
young and potentially able to learn better habits, she was intelligent, and
she had stopped using drugs. Nevertheless, he opined that overcoming her
deficits would be “an arduous task[,] to say the least,” and she would need
“a considerable amount of time to catch up” with her own development
before she would be able to parent. Dr. Thal’s review of the records
supported his opinion that Mother had made some progress, yet continued
to display the same issues and deficits throughout the case and was not
currently able to effectively parent.
¶22 Ms. Shaub-Betcher supported Dr. Thal’s opinion. Following
A.H.’s birth in January 2014, Ms. Shaub-Betcher opined Mother was not
able to care for him because Mother “consistently demonstrates an
unwillingness or inability to learn appropriate parenting skills, which
would put her young infant at risk of abuse or neglect.” She noted Mother
“has been offered numerous services to remedy [her history of unsafe and
limited parenting skills] in the past three years and she has not been able to
consistently demonstrate good parenting skills.” In fact, as recently as two
months before trial, Mother still did not understand S.B.’s severe allergies.
Ms. Shaub-Betcher noted that, in addition to Mother’s deficient parenting
skills, she still lacked stable income, housing, and transportation – all major
concerns for her ability to safely care for the children. Ms. Shaub-Betcher
opined that, as of June 2014, Mother was not able to parent any of her three
children in a minimally adequate manner.
¶23 Mother’s parent aides confirmed Mother struggled with
caring for the children at visits, did not understand the children’s
developmental levels, was unable to understand and properly respond to
the children’s emotional cues, and was unable to consistently implement
successful parenting skills. Further, Mother did not seem to understand the
scope and implications of S.B.’s many allergies, bringing him snacks that
could or did harm him, and Mother was incapable of adequately
supervising both children at the same time, putting them at risk.
¶24 Thus, despite over two years of reunification services,
including multiple referrals for various forms of parenting instruction,
Mother remained unable to understand and address the children’s special
needs, could not safely parent them together, was unable to appropriately
discipline them, and was unlikely to be able to overcome her challenges
without years of arduous and ongoing work. Reasonable evidence
supports the juvenile court’s finding that Mother had been unable to
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Decision of the Court
remedy the circumstances that caused the children’s fifteen-month out-of-
home placement.
B. Mother’s Inability to Exercise Proper and Effective Parental
Care and Control in the Near Future
¶25 Mother also claims DCS did not prove there was a substantial
likelihood she would be unable to parent the children in the near future
because “she is at the least, a minimally adequate parent pursuant to the
statutes.” She requests that this court reweigh the fact that she “currently
has stable housing” and employment and “had actively engaged in
services” against DCS’s evidence that her immaturity and inability to
consistently practice safe parenting rendered her unable to parent in the
near future. As we have noted, we do not reweigh the evidence. See JV–
132905, 186 Ariz. at 609, 925 P.2d at 750. Further, because reasonable
evidence supports the juvenile court’s finding that Mother would be unable
to parent the children in the near future, her claim fails.
¶26 In 1986, the Arizona Legislature amended A.R.S. § 8-533 to
include out-of-home placement as a ground for severance to expedite the
adoption of children in foster care and to promote a stable and long-term
family environment for these children. Maricopa Cnty. Juv. Action No. JS-
6520, 157 Ariz. 238, 243, 756 P.2d 335, 340 (App. 1988) (citation omitted).
Termination under A.R.S. § 8-533(B)(8)(c) requires a showing that a parent
is unable to properly and effectively parent a child “in the near future.”
Although the legislature did not define the phrase “near future,” we
construe undefined phrases contained in statutes according to their
ordinary meaning. Raymond F. v. Ariz. Dep’t of Econ. Sec., 224 Ariz. 373, 377,
¶ 16, 231 P.3d 377, 381 (App. 2010) (citation omitted). “Near” is defined in
part as “at, within, or to a short distance or time” or “not far distant in time.”
Merriam-Webster’s Collegiate Dictionary 775 (10th ed. 1993). Ultimately,
the statute reinforces the concept that children should not be forced to wait
inordinately for a parent to develop necessary parenting skills. Raymond F.,
224 Ariz. at 378, ¶ 25, 231 P.3d at 382.
¶27 As detailed above, Mother’s defensive and resistant posture
rendered her unable to parent the children in the foreseeable future. Dr.
Thal referenced Mother’s decision to have a third child with yet another
unsupportive and inappropriate man during the dependency, her view that
she was a “great mom” despite the service providers’ ongoing concerns, her
inadequate income, and her immaturity for her age as reasons why it would
take at least “a couple of years” before the children could be safely returned
to her care. Supporting Dr. Thal’s opinion, Mother’s parent aide testified
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Decision of the Court
Mother had failed to make adequate, consistent progress in demonstrating
safe parenting techniques. Likewise, Ms. Shaub-Betcher testified Mother
would not be able to safely parent the children in the near future because,
despite over two years of services, Mother continued to display the same
unsafe behaviors and had not demonstrated meaningful change. Ms.
Shaub-Betcher testified that, based on her education and training in
behavioral health, it was reasonable to conclude that, if Mother had failed
to learn adequate parenting skills after more than a year of services, she
likely would not do so. Reasonable evidence therefore supports the
juvenile court’s finding that there was a substantial likelihood Mother
would be unable to exercise proper and effective parental care and control
in the near future.
II. Best Interest of the Children
¶28 Mother additionally challenges the juvenile court’s finding
that termination of her parental rights was in the children’s best interest.
Mother claims the court erred when it found severance was in the children’s
best interest because “she is bonded to her children, and has made great
strides in maintaining her relationship with them,” and the lack of an
adoptive placement “proves that [there] would be no detriment to allowing
Mother the opportunity to parent her children in the future.” Because
reasonable evidence supports the court’s best interest finding, Mother’s
claim fails.
¶29 To effectuate severance, the court must find, by a
preponderance of the evidence, termination of the parent-child relationship
is in a child’s best interest. A.R.S. § 8–533(B); Kent K., 210 Ariz. at 284, ¶ 22,
110 P.3d at 1018. To support a best interest finding, the petitioner must
prove that the child will affirmatively benefit from the termination.
Maricopa Cnty. Juv. Action No. JS–500274, 167 Ariz. 1, 6, 804 P.2d 730, 735
(1990). This means that “a determination of the child’s best interest must
include a finding as to how the child would benefit from a severance or be
harmed by the continuation of the relationship.” Id. at 5, 804 P.2d at 734.
The best interest requirement may be met if, for example, the petitioner
proves a current adoptive plan exists for the child, id. at 6, 804 P.2d at 735,
or even that the child is adoptable. See JS-501904, 180 Ariz. at 352, 884 P.2d
at 238. The juvenile court may also consider evidence that an existing
placement is meeting the needs of the child in determining severance is in
the child’s best interest. Audra T. v. Ariz. Dep’t of Econ. Sec., 194 Ariz. 376,
377, ¶ 5, 982 P.2d 1290, 1291 (App. 1998).
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¶30 In this case, the record supports the juvenile court’s finding
that severance was in the children’s best interest. Ms. Shaub-Betcher
testified that terminating Mother’s parental rights was in the children’s best
interest because Mother cannot safely parent them. Ms. Shaub-Betcher
stated DCS was looking for an adoptive placement that would take the
children together, but S.B.’s foster mother was willing to adopt him if DCS
was unable to find a home that could take both children. She opined that
the children were adoptable and noted they had, in fact, been together in a
two-parent potentially adoptive home in the past, but those adoptive
parents had moved out of the state. Accordingly, although the children
were not currently in a home that could adopt them together, the children
are adoptable, and DCS has a plan to find the children a two-parent
adoptive home that could meet their special needs. Reasonable evidence
therefore supports the juvenile court’s finding that terminating Mother’s
parental rights was in the children’s best interest.
CONCLUSION
¶31 The juvenile court’s order severing Mother’s parental rights
to S.B. and C.B. is affirmed.
:ama
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