Kimberly R. v. Dcs, R.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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
KIMBERLY R., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, R.R., Appellees.
No. 1 CA-JV 22-0007
FILED 5-31-2022
Appeal from the Superior Court in Maricopa County
No. JD39073
The Honorable Michael D. Gordon, Judge
AFFIRMED
COUNSEL
Maricopa County Public Advocate, Mesa
By Suzanne W. Sanchez
Counsel for Appellant
Arizona Attorney General’s Office, Tucson
By Autumn Spritzer
Counsel for Appellee Department of Child Safety
KIMBERLY R. v. DCS, R.R.
Decision of the Court
MEMORANDUM DECISION
Judge Angela K. Paton delivered the decision of the Court, in which
Presiding Judge Paul J. McMurdie and Vice Chief Judge David B. Gass
joined.
P A T O N, Judge:
¶1 Kimberly R. (“Mother”) appeals the superior court’s order
terminating her parental rights to her child, R.R.1 We affirm.
FACTS AND PROCEDURAL HISTORY
¶2 In September 2019, the Department of Child Safety (“DCS”)
received reports alleging R.R. was born substance-exposed to marijuana.
DCS investigated and although it did not confirm the allegations were true,
it learned that Mother suffered from untreated mental illness.
¶3 In January 2020, Mother lived in Phoenix with her paternal
grandmother (“Grandmother B.”). DCS was concerned about Mother’s
mental health and recommended a safety plan where R.R. would be in
daycare when Grandmother B. was not home to assist Mother. In response,
Mother threatened to kill herself. DCS obtained court authorization to
remove R.R. and placed her in a licensed foster care home. In February
2020, the superior court found R.R. dependent as to Mother. DCS provided
numerous services to Mother, including a parent aide, psychological and
psychiatric evaluations, therapy, visitation, and transportation.
¶4 A psychologist evaluated Mother in March 2020 and reported
that her ability to effectively parent depended on her mental health, which
deteriorated when Mother failed to take medication, attend therapy, or
lacked a supportive environment. The psychologist recommended Mother
receive therapy and medication.
¶5 That same month, DCS helped Mother obtain mental health
services at Lifewell, a behavioral health provider she had previously used.
Mother completed intake and received medication management but was
unable to schedule therapy due to COVID-19.
1 We use initials to protect the child’s privacy.
2
KIMBERLY R. v. DCS, R.R.
Decision of the Court
¶6 In November 2020, Mother moved to Casa Grande to live with
her maternal grandmother (“Grandmother R.”). The superior court placed
R.R. with Grandmother R., and R.R. began living with the two of them in
December 2020. DCS helped Mother enroll with a local behavioral health
provider, Horizon, in February 2021. Mother complied with Horizon’s
medication management and attended therapy intake but only attended
one therapy session in March 2021. Mother did not attend any parenting
classes offered by Horizon.
¶7 Before Mother moved to Casa Grande, she participated in
parent aide services. The first parent aide informed DCS that it needed
more time to work with Mother to enhance protective capacities and
recommended DCS submit a second parent aide referral. DCS did so, and
the second parent aide was assigned in September 2020. The second parent
aide closed out unsuccessfully in March 2021 because Mother became easily
overwhelmed when caring for R.R. and screamed at R.R. when R.R. cried.
¶8 In June 2021, Mother went to the emergency room due to a
mental health crisis. She subsequently moved back to Phoenix. Meanwhile,
R.R. was placed with a kinship placement. DCS continued to provide
Mother visitation and transportation. DCS offered to help Mother transfer
her mental health services to Phoenix, but Mother said she was taking care
of it and “wanted to try to do things on [her] own.”
¶9 During a meeting with DCS in late August 2021, Mother
indicated she had difficulty contacting Horizon to transfer treatment
locations. DCS contacted Mother’s insurance and provided her with a list
of facilities. Mother eventually went to TERROS but stopped going because
she “did not like it,” a fact DCS was unaware of at the time. Mother later
told DCS she was continuing her treatment at a Horizon facility, was back
on her medication, and waiting for her therapist assignment. DCS offered
to contact the Horizon case manager to facilitate the therapist assignment,
but Mother did not have the contact information.
¶10 At the August meeting, Mother also told DCS she had
difficulty refilling her medication since the move. The DCS case manager
discussed the importance of medication and told Mother she could obtain
a refill by going to emergency rooms or urgent care. Mother later testified
she could not obtain a refill from emergency rooms. But she did not inform
DCS she could not get a refill and DCS believed she was set up at TERROS.
Ultimately, Mother did not take her medication from July 2021 to October
2021.
3
KIMBERLY R. v. DCS, R.R.
Decision of the Court
¶11 In August 2021, DCS moved to terminate Mother’s parental
rights under the mental illness and fifteen-month out-of-home placement
grounds. See A.R.S. § 8-533(B)(3), (8)(c). Following a trial in November
2021, the superior court terminated Mother’s parental rights on both
grounds.
¶12 Mother timely appealed. We have jurisdiction pursuant to
Article 6, Section 9, of the Arizona Constitution and A.R.S. §§ 8-235(A), 12-
120.21(A)(1), and -2101(A)(1).
DISCUSSION
¶13 Mother’s sole argument on appeal is that DCS failed to make
diligent reunification efforts to address her mental illness. For the
following reasons, we determine that reasonable evidence supports the
superior court’s finding that DCS made diligent efforts to provide
appropriate reunification services to Mother.
¶14 Parents’ rights to raise their children as they see fit are
fundamental, but not absolute. Minh T. v. Ariz. Dep’t of Econ. Sec., 202 Ariz.
76, 79, ¶ 14 (App. 2001). “The [superior] court, as the trier of fact in a
termination proceeding, is in the best position to weigh the evidence,
observe the parties, judge the credibility of witnesses, and make
appropriate findings.” Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 280,
¶ 4 (App. 2002). As such, if reasonable evidence supports the court’s factual
findings, we will affirm its termination order unless such findings are
clearly erroneous. Minh T., 202 Ariz. at 78-79, ¶ 9 (citation omitted).
¶15 Before terminating parental rights under A.R.S. § 8-533(B), the
superior court must find by clear and convincing evidence that DCS made
diligent reunification efforts. A.R.S § 8-533(B)(8); see Jennifer G. v. Ariz. Dep’t
of Econ. Sec., 211 Ariz. 450, 453, ¶ 12 (App. 2005) (“[T]he [superior] court
must also have found that [DCS] had made reasonable efforts to reunify the
family or that such efforts would have been futile.”). “DCS is not required
to provide every conceivable service or to ensure that a parent participates
in each service it offers . . . .” Tanya K. v. Dep’t of Child Safety, 240 Ariz. 154,
157, ¶ 11 (App. 2016) (citation and internal quotation marks omitted).
Rather, DCS is obligated to provide parents the “time and opportunity to
participate” in services that have a “reasonable prospect of success.” Mary
Ellen C. v. Ariz. Dep’t of Econ. Sec., 193 Ariz. 185, 192, ¶¶ 34-37 (App. 1999).
DCS fails to make reasonable efforts when it “neglects to offer the very
services that its consulting expert recommends.” Id. Making reasonable
efforts “includes seeking to reasonably accommodate disabilities from
4
KIMBERLY R. v. DCS, R.R.
Decision of the Court
which a parent may suffer.” Jessica P. v. Dep’t of Child Safety, 251 Ariz. 34,
39, ¶ 15 (App. 2021) (citation omitted).
¶16 Mother argues DCS failed to make appropriate
accommodations under the Americans with Disabilities Act (“ADA”) to
account for her mental health issues. See 42 U.S.C. §§ 12101–12213. In Jessica
P., however, this court held that “Arizona’s statutory requirement that DCS
make reasonable efforts to provide reunification services satisfies the
ADA’s reasonable accommodation requirement.” 251 Ariz. at 39, ¶ 15
(citation omitted). In other words, DCS’s duty to provide “reasonable
accommodations” is akin to making “reasonable efforts” and thus, we do
not apply a different standard. See id. (citation omitted).
¶17 Mother testified that DCS helped her find appropriate
services to address her mental health and ability to parent R.R. since its first
contact in September 2019. Despite Mother’s multiple moves, DCS
continually helped Mother establish mental health services, provided
insurance assistance, and transportation. Additionally, Mother testified
that at times she declined DCS’s help because she wanted to arrange things
herself.
¶18 Mother also claims DCS was required to provide her with a
parent aide qualified to work with parents with mental illness. Although
the DCS case manager testified that having such a parent aide would be
“beneficial,” DCS was not required to provide one. See Maricopa Cnty. Juv.
Action No. JS-501904, 180 Ariz. 348, 353 (App. 1994) (DCS is “not required
to provide every conceivable service.”).
¶19 Mother next contends that DCS failed to help her develop a
proper safety plan to address her mental health “flare up[s].” DCS,
however, did attempt to implement a safety plan for Mother. Mother even
acknowledged that her mental health providers helped her develop a plan.
She testified that she developed the ability to identify when she felt she was
going into a crisis and the plan of action she would follow when she found
herself in crisis.
¶20 The superior court’s ruling misstates that Mother received
individual therapy at Lifewell. The record shows that Mother was unable
to receive therapy at Lifewell due to COVID-19. Nonetheless, when Mother
subsequently lived in Casa Grande, the recommended mental health
services were available, including therapy at Horizon, but she only
participated in an intake session and one therapy session despite additional
appointments being scheduled and available.
5
KIMBERLY R. v. DCS, R.R.
Decision of the Court
¶21 The record shows DCS persisted in its efforts to provide
Mother reasonable services and provided her the “time and opportunity to
participate” in services. See Mary Ellen C., 193 Ariz. at 192, ¶ 37. DCS helped
Mother work through her insurance changes and found her local behavioral
health providers after each move. It provided her two parent aides with a
third readily available that Mother declined to utilize. DCS met with
Mother on multiple occasions to address issues and identify solutions.
Although she could not schedule therapy for much of 2020 due to COVID-
19, she only attended one session when she subsequently had access to
therapy. DCS is not required to “leave the window of opportunity for
remediation open indefinitely.” See Tanya K., 240 Ariz. at 157, ¶ 11.
CONCLUSION
¶22 We affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
6