Toni T. v. Dcs, E.T. ( 2021 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
TONI T., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, E.T., Appellees.
No. 1 CA-JV 20-0409
FILED 8-31-2021
Appeal from the Superior Court in Maricopa County
No. JD32007
The Honorable Todd F. Lang, Judge
AFFIRMED
COUNSEL
John L. Popilek, P.C., Scottsdale
By John L. Popilek
Counsel for Appellant
Arizona Attorney General’s Office, Mesa
By Tom Jose
Counsel for Appellee Department of Child Safety
TONI T. v. DCS, E.T.
Decision of the Court
MEMORANDUM DECISION
Judge Paul J. McMurdie delivered the Court’s decision, in which Presiding
Judge Peter B. Swann and Judge David D. Weinzweig joined.
M c M U R D I E, Judge:
¶1 Toni T. (“Mother”) appeals from the termination of her
parental rights to her child, Emily.1 For the following reasons, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 Mother is the biological parent of four children, Bobby,
Nathan, Sarah, and Emily.2 Shortly after Emily’s birth, the Department of
Child Safety (“DCS”) received a report alleging that Mother was neglecting
Emily by failing to feed, change, and hold her. The reporter alleged that
Mother was not interacting or bonding with Emily, and Mother appeared
to be developmentally delayed. This report was abandoned, and DCS did
not respond.
¶3 In January 2016, DCS received a second report alleging that
Mother was neglecting Emily. In this report, a doctor who examined Emily
diagnosed her with severe failure to thrive because she had gained only 14
ounces from birth and weighed two ounces less than when she was seen
earlier in the month. When questioned, Mother told the doctor that Emily
did not have feeding problems, but she spit up a lot. The doctor prescribed
medication for Emily and ordered a blood test and follow-up visit, but
Mother failed to attend the visit. After two home visits by nurses in
mid-January, Emily still had not gained weight, and Mother was instructed
to call the doctor and make an appointment. Instead, the reporter alleged
that Mother took her phone outside and merely pretended to make one.
When asked if she understood the dangers associated with a failure to
1 We use pseudonyms to protect the children’s identities.
2 Mother’s parental rights to the other children were not terminated,
and Emily’s father is not a party to this appeal.
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thrive diagnosis, Mother responded that she did, “but not really.” The
reporter asserted that Mother might be “mentally delayed.”
¶4 This time, DCS responded to the report and removed Emily
and the other children from Mother’s home. During the removal process,
DCS noted many concerns with the condition of the home, including
(1) Bobby and Nathan’s beds were covered in urine; (2) Nathan was
observed crawling in and out of a bedroom window; and (3) the refrigerator
in the home did not operate properly and contained spoiled food. After
removing the children, DCS took Emily and Sarah to Phoenix Children’s
Hospital, where they were hospitalized for six days because of
malnutrition.
¶5 DCS petitioned for an out-of-home dependency alleging that
Mother neglected Emily by failing to provide for her basic needs,
“including adequate food, a fit and proper home, and appropriate parental
care and supervision.” The juvenile court determined Emily was dependent
as to Mother. Over the next four years, DCS provided Mother with several
reunification services, including rule-out drug testing, transportation, four
parent-aide referrals, three psychological evaluations, and counseling. But
after her first psychological evaluation in September 2016, Mother was
diagnosed with a mild intellectual disability.3 As a result, the juvenile court
consistently ordered DCS to provide Mother with specialized parent-aide
services to accommodate Mother’s disability during the following years.
¶6 Eventually, the court ordered DCS to provide Mother with a
“master’s level” parent aide. Unfortunately, DCS could not find a
master’s-level parent aide. To satisfy the spirit of the order, DCS referred
Mother for other services involving professionals with master’s degrees.
¶7 In December 2017, the juvenile court granted Mother’s motion
to transfer custody of Emily and Nathan from foster care to the children’s
maternal grandmother (“Grandmother”), with whom Mother resided.
After nearly a year of placement with Grandmother, however, Emily and
Nathan were removed from her care after DCS discovered that she had
3 As discussed below, further testing determined that Mother’s
condition was more than mild. Mother has a full scale IQ score of 67, which
places her at only the first percentile of adults within the normative sample.
Meaning that Mother functions at about a 2-year-old to 13-year-old level.
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violated the safety plan by permitting Mother’s brother to reside in the
home secretly. DCS returned Emily to her previous foster home.
¶8 As the dependency progressed, and despite her substantial
compliance with nearly all services provided by DCS, Mother struggled to
improve her parenting skills. Each of the four parent-aide referrals
provided to Mother was closed out because she could not enhance her
protective capacities as a parent. And the psychologists who examined
Mother generally concluded that her intellectual disability severely limited
her ability to parent, placed the children at risk of neglect, and that it was
unlikely that further reunification services would prove successful at
improving Mother’s parenting skills.
¶9 So in May 2019, DCS moved to terminate Mother’s parental
rights under the mental-deficiency and fifteen months’ time-in-care
statutory grounds. A.R.S. § 8-533(B)(3), (B)(8)(c). In October and November
2020, the juvenile court held a four-day termination hearing on DCS’s
motion, during which several professionals involved in Mother’s case and
Mother testified. After the hearing, the court issued a detailed ruling
finding that DCS had successfully shown that termination of Mother’s
parental rights was warranted under both the mental-deficiency and fifteen
months’ time-in-care grounds.
¶10 Mother appealed, and we have jurisdiction under A.R.S.
§ 8-235(A) and Arizona Rule of Procedure for the Juvenile Court 103(A).
¶11 While Mother’s appeal was pending, the juvenile court
discovered it had inadvertently failed to record the second day of the
termination hearing, during which two witnesses for DCS testified. Because
a transcript of the proceedings could not be produced without the
recording, we revested jurisdiction for the court to reconstruct the record.
¶12 The juvenile court proposed that the parties submit
preliminary findings describing the testimony presented on the missing
day, followed by an oral argument to resolve conflicts. Mother’s counsel
objected and asked the court to recall the witnesses to testify, citing the need
to create an adequate record for Mother’s appellate counsel and claiming
that she did not take detailed notes of the testimony. In the alternative,
Mother’s counsel requested that DCS’s counsel file proposed findings, and
she could raise any challenges to the statement at oral argument. The court
rejected Mother’s first request, finding that recalling the witnesses would
not serve the interests of judicial economy. But it granted Mother’s second
request and ordered DCS to prepare a statement, provide a draft to
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Decision of the Court
Mother’s counsel for feedback, and then file it with the court before oral
argument.
¶13 The parties filed joint findings agreeing with the summation
of events provided in the court’s December 2020 ruling. During oral
argument, DCS’s counsel explained that he had found the court’s order to
be a “perfect summation of what occurred on the 16th of October” and, after
talking with the other parties, “they indicated they had no objection to that
and no addition.” When queried by the court, Mother’s counsel again stated
that she believed that recalling the witnesses was a more prudent means to
reconstruct the lost record but stated she had worked with DCS’s counsel
and decided to “use the [juvenile] court’s interpretation of the matter.” The
court noted Mother’s objection. Still, it adopted DCS’s statement “as a
record of the testimony, facts, and findings from October 16th that will
replace the lost transcript.”
DISCUSSION
¶14 To support the termination of parental rights, DCS must
prove one or more statutory ground for termination by clear and
convincing evidence. A.R.S. § 8-537(B); Kent K. v. Bobby M., 210 Ariz. 279,
284, ¶ 22 (2005). The juvenile court “is in the best position to weigh the
evidence, observe the parties, judge the credibility of witnesses, and resolve
disputed facts.” ADES v. Oscar O., 209 Ariz. 332, 334, ¶ 4 (App. 2004). “[W]e
do not re-weigh the evidence on review.” Jesus M. v. ADES, 203 Ariz. 278,
282, ¶ 12 (App. 2002). We review the court’s termination decision for an
abuse of discretion and will affirm unless no reasonable evidence supports
the court’s findings. Mary Lou C. v. ADES, 207 Ariz. 43, 47, ¶ 8 (App. 2004).
A. The Juvenile Court Did Not Err by Reconstructing the Record
Without Recalling Witnesses.
¶15 Mother first argues the court erred by reconstructing the
record “with a written submission rather than having the witnesses recalled
for testimony.” Mother contends that, given the nature of her case and trial
counsel’s inability to challenge DCS’s statement, the summary of the
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Decision of the Court
proceedings described in the court’s statement is inadequate to afford her a
meaningful appeal.4 We disagree.
¶16 Arizona Rule of Procedure for the Juvenile Court 104(F)(2)
provides that “any dispute . . . about whether the record discloses what
actually occurred in the juvenile court” must be “submitted to and resolved
by the juvenile court.” Generally, “when portions of a trial record are not
available because they no longer exist, the appellate court should reinstate
the superior court’s jurisdiction for reconstruction of the record and thereby
provide the appellant a reasonable opportunity to pursue the appeal.” In re
Colton P., 242 Ariz. 437, 439, ¶ 11 (App. 2017) (citing Rodriquez v. Williams,
104 Ariz. 280, 282–83 (1969)). And Arizona Rule of Civil Appellate
Procedure (“Appellate Rule”) 11 outlines several methods through which
the parties and court can reconstruct the record when a transcript is
unavailable, including a narrative or agreed-upon statement. ARCAP 11(d),
(e); see also Ariz. R.P. Juv. Ct. 103(G) (ARCAP 11(d) and (e) apply to “appeals
from final orders of the juvenile court.”).
¶17 The juvenile court did not err by reconstructing the record
through a narrative statement rather than recalling the witnesses who
testified on that date. Because it presided over the termination trial and is
explicitly tasked with resolving disputes over the record, the juvenile court,
and not this court, is best positioned to decide what methods will
adequately compensate for the loss of missing transcripts. See Rodriquez, 104
Ariz. at 283 (recognizing that procedures to restore records “can best take
place in the trial court”); see also Ariz. R.P. Juv. Ct. 104(F)(2). But see State v.
Sahagun-Llamas, 248 Ariz. 120, 123–24, ¶¶ 12, 16 (App. 2020) (refusing to
defer to superior court’s approval of narrative statement, partly because the
court had no memory of the proceedings). For that reason, the dispositive
question before us is not whether the court could have used a better
reconstruction method but whether the record is complete enough for
“adequate consideration of the errors assigned.” State v. Schackart, 175 Ariz.
494, 499 (1993).
4 Mother highlights several alleged issues arising from her
termination hearing because it was conducted virtually. Because Mother
does not argue how other deficiencies independently require reversal or
adequately explain how they undermine the reconstructed record, we do
not address them. ARCAP 13(a)(7)(A); In re J.U., 241 Ariz. 156, 161, ¶ 18
(App. 2016).
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Decision of the Court
¶18 Here, the juvenile court correctly followed the procedures
outlined in Appellate Rule 11(d) by ordering DCS’s counsel to prepare a
statement describing the evidence introduced at the October 16
proceedings. See ARCAP 11(d) (“[A]ny other party” may prepare a
narrative statement if the appellant does not.). Mother was given several
opportunities to object or propose amendments to the narrative statement’s
content under the rule. She never did and instead joined DCS in agreeing
with “the summation of facts in the ruling . . . on December 14, 2020, as to
what was testified [to] on October 16, 2020.” And although Mother’s ability
to challenge the narrative statement was hampered by counsel’s difficulty
recalling the trial’s events, that fact alone did not require the court to recall
witnesses or nullify Mother’s decision to stipulate to the statement’s
accuracy. See Rodriquez, 104 Ariz. at 283 (Recalling witnesses may be
appropriate “if a point arises upon which the parties cannot agree and the
trial judge cannot remember.”).
¶19 Moreover, the record before us—including the stipulated
narrative statement, certified transcripts of the other days of the termination
hearing, and extensive documentary evidence—is more than adequate to
review Mother’s arguments on appeal. Thus, the juvenile court’s decision
to utilize means other than recalling the witnesses to reconstruct the record
did not deprive Mother of an adequate opportunity to pursue her appeal.
¶20 Analogizing her case to our recent decision in Sahagun-Llamas,
248 Ariz. 120, Mother contends that the stipulated narrative statement is
inadequate. But Mother’s reliance on Sahagun-Llamas is misplaced. There,
we held the State’s attempt to reconstruct a day of a defendant’s criminal
trial more than 16 years after the proceedings through a narrative statement
could not “afford [the] defendant a meaningful right of appeal” and
remanded the case for a new trial. Sahagun-Llamas, 248 Ariz. at 123, ¶ 11
(quoting Schackart, 175 Ariz. at 498–99). In so holding, we specifically noted
that besides the sheer amount of time between the date of the proceedings
and the State’s reconstruction efforts: (1) the court expressly acknowledged
that it could not assist the parties or adequately review the narrative
statement for accuracy; (2) the narrative statement contained discrepancies
and was not based on the personal recollection of the parties involved in
the case; and (3) the missing transcript concerned the heart of the defense’s
case and undermined the court’s ability to review the sufficiency of the
evidence comprehensively. Id. at 123–26, ¶¶ 12, 14–15, 21–23.
¶21 In this case, by contrast, the parties and court’s efforts to
reconstruct the record occurred only a few months after the October 16
proceedings, curtailing any concerns surrounding the accuracy of their
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Decision of the Court
recollections. See State v. Masters, 108 Ariz. 189, 192 (1972) (noting that a
reconstructed record based on the party’s memory of proceedings that
occurred around six years earlier “would probably not be of much aid to
the appellate court”). The record also shows that the juvenile court took
notes at the termination trial and summarized the evidence presented in its
ruling. Thus, the court was willing and able to take an active role in settling
and approving the stipulated narrative statement as an accurate evidentiary
summation under Appellate Rule 11(d). Finally, the testimony presented at
the October 16 proceedings was merely a component of DCS’s case rather
than a critical element of Mother’s defense. Simply put, this case is a far cry
from the situation presented in Sahagun-Llamas.
B. The Juvenile Court Did Not Abuse Its Discretion By Finding DCS
Provided Mother With Adequate Reunification Services.
¶22 Next, Mother contends the court abused its discretion by
finding that DCS fulfilled its obligation to make reasonable and diligent
efforts to provide reunification services to her under the mental-deficiency
and fifteen months’ time-in-care grounds. See Vanessa H. v. ADES, 215 Ariz.
252, 255–56, ¶ 18 (App. 2007) (reasonable efforts required under
mental-deficiency ground); A.R.S. § 8-533(B)(8)(c) (diligent efforts required
under fifteen months’ time-in-care ground). Mother argues DCS failed to
make reasonable and diligent efforts by not supplying her with parent-aide
services until seven months after the case began and disregarding the
juvenile court’s orders for DCS to provide her a master’s level parent aide.
Mother also asserts these deficiencies constituted a failure to reasonably
accommodate her intellectual disability under the Americans with
Disabilities Act (“ADA”), 42 U.S.C. §§ 12101–12213.
¶23 Before terminating a parent’s rights to his or her child under
the mental-deficiency ground, DCS has both a constitutional and statutory
obligation to make reasonable efforts to reunify the family. Mary Ellen C. v.
ADES, 193 Ariz. 185, 191–92, ¶¶ 29–34 (App. 1999). “[W]hen moving to
terminate a parent-child relationship under one of the time-in-care
grounds, DCS must show that its efforts were not only reasonable but also
diligent.” Donald W. v. DCS, 247 Ariz. 9, 22, ¶ 47 (App. 2019) (emphasis
omitted). To satisfy the “reasonable efforts” requirement, DCS is obliged to
“undertake measures with a reasonable prospect of success” and “must
provide a parent with the time and opportunity to participate in programs
designed to improve the parent’s ability to care for the child.” Mary Ellen
C., 193 Ariz. at 192, ¶¶ 34, 37. Likewise, to prove it made diligent efforts,
DCS must, at a minimum, “identify the conditions causing the child’s
out-of-home placement, provide services that have a reasonable prospect of
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success to remedy the circumstances as they arise throughout the
time-in-care period, maintain consistent contact with the parent, and make
reasonable efforts to assist the parent in areas where compliance proves
difficult.” Donald W., 247 Ariz. at 23, ¶ 50. That said, DCS does not have to
provide “every conceivable service” to a parent or “undertake rehabilitative
measures that are futile.” Mary Ellen C., 193 Ariz. at 192, ¶¶ 34, 37.
¶24 In addition, “[a]s a public child welfare agency, DCS must
provide a disabled parent in a dependency with reunification services that
comply with the ADA.” Jessica P. v. DCS, 251 Ariz. 34, 38, ¶ 14 (App. 2021).
Efforts that satisfy Arizona’s statutory and constitutional requirements also
meet the ADA’s reasonable accommodation standard because, to make
reasonable efforts, the State must seek to accommodate disabilities from
which a parent may suffer. Id. at 39, ¶ 15. Courts must, therefore, consider
whether reasonable accommodations have been made for a disabled parent
as a component of DCS’s obligation to make reasonable and diligent efforts.
See id.
¶25 Here, the juvenile court made detailed findings about the
frequency and adequacy of the services provided by DCS to Mother from
the time Emily was first removed from her care to the date of the
termination hearing. As for parent-aide services, the court found that
Mother had been provided with four different parent-aide referrals, and
each had been closed unsuccessfully because of Mother’s inability to
enhance her protective capacities as a parent. The court also specifically
addressed DCS’s failure to comply with its orders to provide her with a
master’s-level parent aide and concluded that DCS had still met its
obligations under A.R.S. § 8-533 and the ADA. The court noted that all
witnesses who testified at trial were unaware of a master’s-level parent
aide. All the same, the purpose of the court’s order was to ensure Mother’s
intellectual disability was “accommodated in teaching her parenting skills,”
which had been accomplished by the services DCS did provide.
¶26 Because reasonable evidence supports the court’s findings,
we cannot say the court abused its discretion by concluding that DCS
provided appropriate reunification services to Mother despite DCS’s initial
delay in delivering her parent-aide services and its failure to comply with
the court’s previous order. To be sure, the seven-month delay between
DCS’s initial referral for parent-aide services in January 2016 and the start
of those services in July 2016, which DCS attributed to a shortage of parent
aides during that period, is concerning. If DCS had moved to terminate
Mother’s parental rights before providing her reasonable time and
opportunity to participate in parent-aide services, our conclusion might
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differ. But considering the circumstances surrounding Emily’s removal and
Mother’s intellectual disability, the court did not err. Before the termination
hearing, DCS provided Mother with four separate parent-aide referrals.
Each parent aide had worked with Mother for several months before the
service was closed out unsuccessfully.
¶27 As for the failure to provide Mother with a master’s-level
parent aide, the court was well within its discretion to conclude that DCS
made both reasonable and diligent efforts to provide Mother with services
designed to accommodate her intellectual disability. The supervisor
assigned to Mother’s case testified that DCS made several attempts to find
and give Mother a master’s-level parent aide, but that each attempt proved
fruitless because parent aides with such qualifications did not exist. Other
witnesses testified that they have never heard of a specialized
master’s-level parent aide. In addition, each parent aide assigned to Mother
testified at the termination hearing that they were informed that Mother
had an intellectual disability and made specific efforts to modify their
behavior and techniques to accommodate her. These efforts included
breaking down multi-step lessons into single steps, repeating and going
over concepts several times, describing or conveying information in more
than one way, providing examples, and modeling appropriate behavior to
Mother.
¶28 From February to May 2018, DCS also provided Mother with
a family preservation team. This service included a master’s-level therapist
and another professional with a master’s degree to supply Mother with
more specialized assistance with her parenting. Finally, for most of
September 2019 through September 2020, DCS included Emily’s
master’s-level child therapist in Mother’s supervised visitation to provide
her with more specialized assistance in learning to parent Emily safely.
¶29 We conclude the court did not err by finding that DCS met its
obligation to make reasonable and diligent efforts to provide Mother with
adequate reunification services under the mental-deficiency and
time-in-care grounds—including its duty to make reasonable
accommodations under the ADA.
C. DCS Did Not Have to Prove that Mother Engaged in Culpable
Conduct to Terminate Her Parental Rights, and Sufficient
Evidence Supports the Juvenile Court’s Findings.
¶30 Finally, Mother argues the juvenile court erred by concluding
that DCS proved, by clear and convincing evidence, that termination of her
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parental rights was warranted under the mental-deficiency and fifteen
months’ time-in-care grounds for two reasons. First, Mother contends that
the evidence did not rise to the level of “culpable conduct” necessary to
terminate her rights under either ground, and the court instead improperly
granted termination based solely on her inability to meet Emily’s
“emotional needs.” Second, Mother asserts the juvenile court improperly
terminated her rights only because of her intellectual disability, but not
based on evidence that she was unfit to parent Emily.
¶31 Because the maintenance of the parent-child relationship is a
fundamental right, due process requires that “a court find, by clear and
convincing evidence, parental unfitness when a severance is contested.”
Alma S. v. DCS, 245 Ariz. 146, 150, ¶ 9 (2018). In Arizona, the substantive
statutory grounds for termination listed in A.R.S. § 8-533(B) “are proxies for
parental unfitness because they demonstrate a parent’s inability ‘to
properly parent his/her child.’” Id. at ¶ 10 (quoting Roberto F. v. ADES, 232
Ariz. 45, 54, ¶ 42 (App. 2013)). These grounds “address the most serious
instances of parental abuse, neglect, or incapacity.” Id.¶32 The parental unfitness inquiry is incorporated in the elements
for both the mental-deficiency and fifteen months’ time-in-care statutory
grounds. To justify termination under the mental-deficiency ground, DCS
must show the parent (1) has a “mental deficiency”; (2) is “unable to
discharge parental responsibilities” because of this mental deficiency; and
(3) there are “reasonable grounds to believe that the condition will continue
for a prolonged indeterminate period.” A.R.S. § 8-533(B)(3). This court has
held that these elements require that “a danger to the child’s welfare . . . be
shown in the form of the parent’s inability to care for the child,” and that
termination cannot be granted merely “because it is thought that a child
might be better off in a different environment.” Maricopa County Juv. Action
No. JS-5209 and No. JS-4963, 143 Ariz. 178, 185 (App. 1984).
¶33 To justify termination under the fifteen months’ time-in-care
ground, DCS must prove (1) the child has been in an out-of-home
placement for a cumulative period of fifteen months or longer; (2) DCS has
made a diligent effort to provide appropriate reunification services to the
parent; (3) that despite DCS’s diligent efforts, the parent “has been unable
to remedy the circumstances that cause the child to be in an out-of-home
placement”; and (4) there is a “substantial likelihood that the parent will
not be capable of exercising proper and effective parental care and control
in the near future.” A.R.S. § 8-533(B)(8)(c). As for this ground, we have held
that termination may be granted only if the circumstances the parent has
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failed to remedy are ones that “indicate[] parental unfitness.” Donald W.,
247 Ariz. at 18, ¶ 27.
¶34 DCS did not have to introduce evidence of Mother’s mental
state. Although some statutory grounds for termination may require proof
of culpability to establish parental unfitness, the mental-deficiency and
fifteen months’ time-in-care grounds do not. See, e.g., A.R.S. § 8-533(B)(8)(a)
(requiring proof that the parent has “substantially neglected or wilfully
refused” to remedy circumstances under nine months’ time-in-care
ground). And evidence of a particular mental state is not generally required
to show that a parent is unfit. See Maricopa County Juv. Action No. JS-7359,
159 Ariz. 232, 236 (App. 1988) (“The State’s interest in finding the child an
alternative permanent home arises only when it is clear that the natural
parent cannot or will not provide a normal family home for the child.”)
(emphasis omitted) (quoting Santosky v. Kramer, 455 U.S. 745, 767 (1982)).
¶35 As for Mother’s other assertions, we agree with the general
proposition that a parent’s failure to provide a child with adequate
emotional support or the mere fact that a parent has an intellectual
disability, without more, is insufficient to terminate his or her parental
rights. “The fundamental liberty interest of natural parents in the care,
custody, and management of their child does not evaporate simply because
they have not been model parents[.]” Santosky, 445 U.S. at 753. Arizona
recognizes explicitly that parents have an inalienable right to parent their
children “without obstruction or interference from this state.” A.R.S.
§ 1-602(A), (D); see also Donald W., 247 Ariz. at 20, ¶ 36. It is only when “the
interest of the state is great enough—that is, [when] the welfare of the child
is seriously jeopardized—[that] the state may act and invade the rights of
the parent and the family.” Cochise County Juv. Action No. 5666-J, 133 Ariz.
157, 161 (1982).
¶36 Thus, absent evidence that the parent’s failure to provide
emotional support to a child seriously jeopardizes the welfare of the child—
in cases involving “emotional abuse” as defined by A.R.S. § 8-201(2), for
example—allegations of unfitness based on a parent’s lack of affection or
love for a child are insufficient, standing alone, to permit termination of a
parent-child relationship. See Donald W., 247 Ariz. at 28, ¶ 81 (“The
severance statute does not permit termination of a parent-child relationship
based on the lack of a bond.”). The state cannot hinge the deprivation of a
fundamental right only on imprecise and overly subjective inquiries into
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what makes a parent more loving, affectionate, or nurturing than others.5
And such considerations are especially suspect in cases involving disabled
parents, who may struggle to conform their expressions of love and
affection toward their children to societal norms through no fault of their
own. Cf. Cabinet for Health & Fam. Services v. K.S., 585 S.W.3d 202, 222 (Ky.
2019) (Lambert, J., dissenting) (condemning termination of mildly
intellectually disabled parent’s rights “built entirely on the assumption that
a person with mild cognitive deficits cannot parent”).
¶37 Likewise, the state cannot terminate disabled parents’ rights
to their children based only on unfounded speculation that their disabilities
make them incapable of being a fit parent. See No. JS-5209 and No. JS-4963,
143 Ariz. at 185; K.S., 585 S.W.3d at 225 (Lambert, J., dissenting) (“It is clear
error to make a finding of intellectual disability without a measurement of
adaptive ability, building a house of cards on speculation as to the risk of
some future neglect or abuse.”). Instead, DCS must show by clear and
convincing evidence that a parent’s disability renders them incapable of
discharging their “parental responsibilities” by providing “proof of actual
or likely harm to the child.” No. JS-5209 and No. JS-4963, 143 Ariz. at 185.
¶38 After reviewing the record and the court’s ruling here,
however, we are convinced that Mother’s parental rights were not
terminated based solely on her perceived lack of emotional support for
Emily or the mere fact of Mother’s intellectual disability. This is not to say
that the issues raised by Mother about DCS’s case and the court’s ruling
lack merit. For example, several witnesses for DCS testified that their
primary concern with Mother was her inability to meet Emily’s emotional
needs or engage in a bond with Emily. These witnesses inferred that Mother
was unfit based on observations that she did not engage with Emily or
provide her with appropriate praise and affection. The court’s written
findings about the mental-deficiency ground also discussed Mother’s
inability to “understand the importance of a parent’s emotional support for
her children” and her failure to obtain “the skills to provide the level of
emotional support that [Emily] requires.”
5 Of course, it is appropriate for the court to consider evidence of the
bond between a parent and child once it finds the parent unfit and moves
to the best-interests stage of the termination analysis. See Alma S., 245 Ariz.
at 150–51, ¶ 13 (“Courts must consider the totality of the circumstances
existing at the time of the severance determination” when considering
whether termination is in the child’s best interest.).
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¶39 But the juvenile court’s findings and conclusions on the
fifteen months’ time-in-care ground do not refer to Mother’s emotional
support of Emily. Instead, the court found that Mother had not remedied
the circumstances that caused Emily to remain in out-of-home care at the
time of the hearing because she failed “to demonstrate the parenting skills
necessary for [Emily] to be safely placed with her.” A.R.S. § 8-533(B)(8)(c).
The court also found that Mother’s intellectual disability was the cause of
her inability to remedy the circumstances and that her disability
undermined any substantial likelihood that she could effectively exercise
parental care and control in the near future. Id. Thus, the court did not
terminate Mother’s parental rights to Emily under the fifteen months’
time-in-care ground because she was intellectually disabled, but because
her intellectual disability rendered her incapable of resolving the
allegations of parental unfitness that caused Emily to be dependent.
¶40 And if Mother’s argument can be read as a challenge to the
sufficiency of the evidence supporting the court’s ruling about the fifteen
months’ time-in-care ground, reasonable evidence in the record supports
the court’s findings and conclusions. As correctly identified by DCS and the
court, the circumstances causing Emily to remain in out-of-home care
throughout the four-year dependency were (1) the neglect which led to
Emily’s diagnosis for severe failure to thrive and hospitalization for
malnutrition just over three months after her birth; and (2) Mother’s
inability to recognize the dangers associated with that event. Although the
record shows that Mother attended nearly all services provided by DCS,
many were closed out unsuccessfully because she could not make the
behavioral changes necessary to show that Emily would not be at risk for
further neglect in her care.
¶41 DCS introduced psychological evidence. Dr. James Thal
reported that Mother’s performance on an intensive IQ test led to a “Full
Scale IQ score of 67,” which placed Mother at only the 1st percentile of
adults within the normative sample. Based on these results and his informal
assessment of her adaptive skills, Dr. Thal found that Mother could not
parent independently, her cognitive deficits would “limit her parenting
abilities for the foreseeable future,” and Mother would be “unable to
respond consistently to her children’s basic needs.”
¶42 Dr. Joseph Bluth administered an adaptive behavior test to
Mother to determine whether Mother’s intellectual disability caused
deficits in her adaptive functioning. Dr. Bluth reported that the test results
showed that Mother suffered from severe to mild deficits in every category
of adaptive functioning. Overall, Mother “functions from about the
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TONI T. v. DCS, E.T.
Decision of the Court
2-year-old level to the 13-year-old level.” During the termination hearing,
Dr. Bluth also testified that although Mother could likely do “very basic
tasks like feeding [Emily] and clothing her,” she would probably find it
difficult to know “what to do in a new situation that she . . . hasn’t
encountered.”
¶43 On this record, there was ample evidence from which the
court could reasonably conclude that termination of Mother’s parental
rights was warranted because Mother’s intellectual disability rendered her
unable to remedy the continuing risk of neglect which caused Emily to
remain in out-of-home care. Accordingly, the juvenile court did not err by
terminating Mother’s parental rights under the fifteen months’ time-in-care
ground. Thus, we need not address the court’s findings and conclusions on
the mental-deficiency ground. See Jesus M., 203 Ariz. at 280, ¶ 4 (“If clear
and convincing evidence supports any one of the statutory grounds on
which the juvenile court ordered severance, we need not address claims
pertaining to the other grounds.”).
CONCLUSION
¶44 We affirm the juvenile court’s judgment.
AMY M. WOOD • Clerk of the Court
FILED: AA
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