Sarah R. v. Dcs, Z.L. ( 2019 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
SARAH R., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, Z.L., Appellees.
No. 1 CA-JV 18-0405
FILED 3-12-2019
Appeal from the Superior Court in Maricopa County
No. JD31207
The Honorable Nicolas B. Hoskins, Judge Pro Tempore
AFFIRMED
COUNSEL
David W. Bell Attorney at Law, Higley
By David W. Bell
Counsel for Appellant
Arizona Attorney General’s Office, Mesa
By Laurie Blevins
Counsel for Appellee Department of Child Safety
SARAH R. v. DCS, Z.L.
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Paul J. McMurdie delivered the decision of the Court, in
which Judge Randall M. Howe and Judge Jennifer B. Campbell joined.
M c M U R D I E, Judge:
¶1 Sarah R. (“Mother”) appeals the juvenile court’s order
terminating her parental rights to Zyonna. For the following reasons, we
affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 Mother has two children: Meiyah, born in 2013, and Zyonna,
born in 2016. 1 In September 2015, the Department of Child Safety (“DCS”)
received a report that Mother had been court ordered into treatment at a
hospital for her mental health, and DCS took physical custody of Meiyah.
Four months later, Mother gave birth to Zyonna. Zyonna tested positive for
marijuana at birth, and DCS took physical custody of her.
¶3 DCS filed separate petitions for dependency, alleging Meiyah
and Zyonna were dependent as to Mother due to abuse or neglect. In
February 2016, the juvenile court found Meiyah and Zyonna dependent.
Throughout the pendency of Mother’s case, DCS offered her services,
including a parent aide, a psychological evaluation, a substance-abuse
assessment, drug testing, mental health services, and transportation.
Mother was also offered supervised visitation.
¶4 Mother has an admitted history of marijuana use. She first
used marijuana when she was eight years old, has consistently used it since
she was sixteen years old, and testified she continued to use marijuana
almost daily up until the time of termination. DCS referred her for drug
testing multiple times, but she was mostly noncompliant.
1 Meiyah and Zyonna have different biological fathers. The juvenile
court terminated Zyonna’s father’s parental rights, and he is not a party to
this appeal. The Department of Child Safety initially moved to terminate
both parents’ rights to Meiyah, but subsequently amended its motion to
only seek termination of both parents’ rights to Zyonna.
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Decision of the Court
¶5 Mother has also been diagnosed with schizoaffective
disorder. Psychologist Dr. Jessica Leclerc testified schizoaffective disorder
“is a combination of schizophrenia and bipolar disorder
essentially . . . you’ll have periods of schizophrenia and then on top of that
you’ll have these mood episodes.” Dr. Leclerc did a psychological
evaluation with Mother and concluded at the time of the assessment that
Mother’s schizoaffective disorder was in full remission. Dr. Leclerc
testified, however, that a person can still exhibit symptoms and
characteristics of schizoaffective disorder when in full remission. Mother
began mental-health treatment at Valle del Sol in approximately July 2017.
At the time of termination, the juvenile court found she was medication
compliant.
¶6 Mother underwent psychological evaluations in early 2016
and in November 2017 with two different psychologists. She also
completed a best-interests evaluation with a third psychologist in August
2017. Each psychologist reported concerns about Mother’s ability to parent
given her mental health diagnosis and her substance abuse. Each
psychologist determined Mother would not be able to adequately parent
Zyonna until she received mental-health treatment, maintained sobriety,
and learned and implemented effective parenting skills.
¶7 DCS also offered Mother two parent-aide services. Her first
parent-aide service was closed out unsuccessfully due to missed visits and
Mother’s failure to meet her goals. Mother’s final parent-aide service was
unsuccessfully closed out in July 2018. According to parent-aide reports,
Mother was unable to enhance her protective capacities as evidenced by her
frequent no shows and cancellations.
¶8 In May 2018, DCS moved to terminate the parent-child
relationship between Mother and Zyonna based on Mother’s mental illness,
her history of chronic substance abuse, and Zyonna’s cumulative
out-home-placement for 15 months or longer. See Ariz. Rev. Stat. (“A.R.S.”)
§ 8-533(B)(3), (8)(c). Following a three-day termination hearing, the juvenile
court found DCS proved by clear and convincing evidence the three
statutory grounds for termination. 2 The court also found DCS proved by a
preponderance of the evidence that termination of Mother’s parental rights
was in Zyonna’s best interests. Mother timely appealed, and we have
2 In August 2017 the juvenile court held a hearing on a
previously-filed, amended motion to terminate Mother’s parental rights to
Zyonna. The court denied the motion.
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Decision of the Court
jurisdiction under A.R.S. § 8-235(A) and Arizona Rule of Procedure for the
Juvenile Court 103(A).
DISCUSSION
A. The Juvenile Court Did Not Err by Finding DCS Proved by Clear
and Convincing Evidence the Statutory Grounds for Termination.
¶9 A court must find at least one statutory ground for
termination under A.R.S. § 8-533(B) by clear and convincing evidence to
terminate a parent-child relationship. Kent K. v. Bobby M., 210 Ariz. 279, 284,
¶ 22 (2005). The court must also find termination is in the child’s best
interests by a preponderance of the evidence. Id. We review the court’s
termination decision for an abuse of discretion, do not reweigh evidence on
appeal, and will affirm unless no reasonable evidence supports the court’s
findings. Mary Lou C. v. ADES, 207 Ariz. 43, 47, ¶ 8 (App. 2004). 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).
¶10 Under A.R.S. § 8-533(B)(8)(c), the juvenile court may
terminate a parent-child relationship if:
The child has been in an out-of-home placement for a
cumulative total period of fifteen months or longer . . ., the
parent has been unable to remedy the circumstances that
cause the child to be in an out-of-home placement and 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.
DCS must also make a “diligent effort to provide appropriate reunification
services.” A.R.S. § 8-533(B)(8).
¶11 Mother does not dispute that Zyonna has been in out-of-home
placement for more than 15 months. Nor does she argue DCS failed to make
a diligent effort toward providing appropriate reunification services. As the
juvenile court noted, Mother participated in or had access to numerous
services, and the court appropriately found DCS “made diligent efforts in
providing an array of reunification services and had those services been
successfully completed, reunification likely would have occurred.”
¶12 Mother instead challenges the juvenile court’s finding she will
be unable to parent Zyonna in the future effectively. She contends she has
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Decision of the Court
housing and sufficient income to meet Zyonna’s needs and the parent aide’s
notes reflect that Mother was able to provide Zyonna with proper meals
and activities. She further contends the parent aide’s criticisms of Mother
do not rise to the level of establishing that Mother is not a minimally capable
parent.
¶13 The juvenile court found Mother has been unable to remedy
the circumstances that caused Zyonna to be in out-of-home placement and
that she has failed to demonstrate “minimally adequate parenting under
the supervision of a parent aide.” The court’s order also noted a parent
aide’s report that Mother had arrived at visits under the influence and that
Mother was unable to progress to unsupervised visits with Zyonna. The
court further noted Mother “has not successfully completed any parent aide
service, and has reflected worrying behaviors during each parent aide
service, and her best interest assessment with Dr. Mastikian.” Although the
court made the first two findings regarding whether Mother can discharge
her parental responsibilities under the mental health and substance abuse
grounds, they also support the court’s conclusion that Mother has not been
able to demonstrate adequate parenting.
¶14 DCS referred Mother for two parent-aide services. Both were
closed out unsuccessfully, the latter in July 2018. At the midpoint of that
parent-aide service, the parent aide reported that Mother’s behavioral,
cognitive, and emotional protective capacities had diminished, including
Mother’s ability to demonstrate adequate skills, recognize threats, and
understand her protective role. The parent aide also reported diminished
protective capacities in the categories of whether Mother meets her own
emotional needs and whether she is resilient, tolerant, or stable. Mother
missed multiple skill sessions and visits in June and July 2018, and the
parent-aide service was ultimately closed out in part due to no shows and
cancellations.
¶15 Dr. Robert Mastikian, the psychologist who conducted the
best-interests evaluation, also testified that he had concerns about Mother’s
interactions with both her children. Dr. Mastikian testified the “interaction
did not seem overall nurturing,” Mother seemed confrontational toward
Meiyah, and Mother did not display appropriate affection. The
psychologist explained that while most of his concerns were about Mother’s
interactions with Meiyah, if Zyonna had been able to talk, Mother’s
behavior likely would have manifested regarding Zyonna as well. The
juvenile court noted this testimony in its termination order.
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Decision of the Court
¶16 Although the parent aide reports describe several positive
interactions between Mother and Zyonna, the juvenile court received all the
evidence and ultimately concluded Mother had been unable to demonstrate
“minimally adequate parenting” or remedy the circumstances that caused
out-of-home placement. The juvenile court is in the best position to resolve
disputed facts, and reasonable evidence supports its findings. See Oscar O.,
209 Ariz. at 334, ¶ 4.
¶17 The court further found that in addition to being unable to
demonstrate minimally adequate parenting, Mother was also unable to
show sobriety and that “[w]hile she continues to engage in mental health
services, and is medication compliant, such treatment has not been
sufficient to resolve the challenges to her parenting.” Mother argues the
juvenile court erred by relying on her continued use of marijuana as
evidence she was incapable of exercising proper and effective parental care
and control. She contends no evidence demonstrated that Mother’s
marijuana use impeded her ability to parent Zyonna.
¶18 Throughout Mother’s case, three psychologists have reported
concerns about her ability to parent Zyonna given her substance abuse and
mental health. In March 2016, Mother underwent a psychological
evaluation with Dr. Jennifer Jones-Greenspon. Dr. Jones-Greenspon
reported “until [Mother] is able to gain control over her mental health
symptoms, learn and implement effective parenting, relationship, and
coping skills, and maintain sobriety,” Zyonna likely would not be safe from
neglect and physical abuse. She further reported, “[i]f unable to learn
and/or implement these skills, it is possible she will not be able to
effectively and safely parent her children.”
¶19 Then, 18 months later, following the best-interests evaluation,
Dr. Mastikian recommended Zyonna remain with her current placement
indefinitely and reported Mother’s use of marijuana was “of great concern.”
He opined that the bond and attachment between Mother and Zyonna
“does not appear to be healthy or functional at this time, quite possibly due
to her untreated mental health condition and active cannabis use.”
¶20 Finally, in November 2017, Mother completed the second
psychological evaluation. Dr. Leclerc noted that Mother’s schizoaffective
disorder was in full remission and that Mother was currently medicated.
However, Dr. Leclerc reported Mother “would be unable to parent given
her ongoing substance use and delusional thought processes as they would
place the children at risk for neglect.” The psychologist further stated until
Mother “is sober, actively taking her prescribed psychotropic medications,
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Decision of the Court
successfully completes parenting classes, successfully completes Parent
Aide services, and can demonstrate positive and effective parenting skills,
she is unlikely to be able to safely parent her children.” She further
explained that “the prognosis is very poor that she will be able to complete
all required services successfully and maintain stability for a significant
period of time.”
¶21 Mother argues that by the time of the termination of hearing,
the psychologists’ reports were outdated and did not account for her
current medication or mental health status. See Jordan C. v. ADES, 223 Ariz.
86, 96, ¶ 31, n.14 (App. 2009) (A.R.S. § 8-533(B)(8)(c)’s reference to
“circumstances that cause the child to be in out-of-home placement” means
the circumstances that exist at the time of termination). Mother has used the
same medication for her mental-health treatment since July 2017. Thus, she
was on the same medication at the termination hearing and during her
psychological evaluation with Dr. Leclerc. Dr. Leclerc testified at the
termination hearing that her prognosis from her report would not change
even if Mother is still taking her medication “[i]f she’s actively using illicit
substances.”
¶22 Additionally, after Mother’s psychological evaluation with
Dr. Leclerc, she began her second parent-aide service, which was ultimately
closed out unsuccessfully shortly before the termination hearing. In finding
a substantial likelihood that Mother would not be capable of exercising
proper and effective parental care and control in the near future, the
juvenile court explained:
Mother’s mental health and substance abuse issues are both
chronic. Schizoaffective disorder is treatable, but not curable.
Although Mother is managing that illness, the treatment has
not resulted in her enhancing the necessary protective
capacities for parenting Zyonna. Mother has never
demonstrated sobriety during the case and there is no
reasonable basis for believing she will do so.
Mother does not deny she has a significant history of marijuana use or that
she continued to use marijuana at the time of termination, despite repeated
recommendations to maintain sobriety. Her most recent parent aide
continued to report diminished protective capacities, and Mother’s failure
to complete the service successfully. Accordingly, the juvenile court did not
abuse its discretion by finding Mother was unlikely to be able to exercise
proper and effective parental care and control over Zyonna. The court also
did not err by finding DCS proved by clear and convincing evidence the
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Decision of the Court
statutory ground for termination based on Zyonna’s out-of-home
placement. 3
B. The Juvenile Court Did Not Err by Finding DCS Proved by a
Preponderance of the Evidence that Termination was in Zyonna’s
Best Interests.
¶23 Mother also argues the juvenile court erred by finding that
termination was in Zyonna’s best interests. She contends the court’s
best-interests determination was “tainted by its incorrect determination
that Mother’s use of marijuana renders her incapable of properly parenting
her child.” But as discussed above, reasonable evidence supports the court’s
finding that there is a substantial likelihood that Mother will not be capable
of exercising proper and effective parental care and control in the near
future. Reasonable evidence also supports the court’s best-interests
determination.
¶24 At the best-interests stage, we “presume that the interests of
the parent and child diverge because the court has already found the
existence of one of the statutory grounds for termination by clear and
convincing evidence.” Alma S. v. DCS, 245 Ariz. 146, 150, ¶ 12 (2018)
(quoting Kent K., 210 Ariz. at 286, ¶ 35). The court’s primary concern during
the best-interests inquiry is the child’s stability and security. Demetrius L. v.
Joshlynn F., 239 Ariz. 1, 4, ¶ 15 (2016). Termination is in the child’s best
interests if the child will benefit from termination or will be harmed if
termination is denied. Alma S., 245 Ariz. at 150, ¶ 13. “Courts must consider
the totality of the circumstances existing at the time of the severance
determination.” Id. at 150–51, ¶ 13. “When a current placement meets the
child’s needs and the child’s prospective adoption is otherwise legally
possible and likely, a juvenile court may find that termination of parental
rights, so as to permit adoption, is in the child’s best interests.” Demetrius
L., 239 Ariz. at 4, ¶ 12.
3 Because we affirm the juvenile court’s order terminating Mother’s
rights to Zyonna based on the time-in-care ground, we need not address
Mother’s arguments that the court erred by finding DCS proved the
grounds for termination based on Mother’s mental health and substance
abuse. See Jesus M. v. ADES, 203 Ariz. 278, 280, ¶ 3 (App. 2002) (“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.”).
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Decision of the Court
¶25 A DCS caseworker testified termination would give Zyonna
permanency by providing her with a safe and stable home that can meet all
her needs. Zyonna’s foster father testified she has been in his care since one
week after her birth and that he was willing to adopt her. The caseworker
testified the current placement was meeting all of Zyonna’s needs, but that
should her current placement not be able to adopt her, she was adoptable.
¶26 In making its best-interests determination, the juvenile court
found Zyonna was adoptable, in an adoptive placement, and the current
placement was the “least restrictive environment required to meet
Zyonna’s needs.” The court also recognized Dr. Mastikian’s concerns about
Mother’s parenting and the “nature of Mother’s bond with her children.”
Finally, the court found Zyonna was “thriving in her current placement,”
and that “[t]ermination would give her the benefit of permanency in a safe,
stable, loving environment.” Thus, the court found termination of Mother’s
rights to Zyonna was in Zyonna’s best interests. The record supports the
court’s findings, and the court did not err by finding termination was in
Zyonna’s best interests.
CONCLUSION
¶27 For the foregoing reasons, we affirm the juvenile court’s order
terminating Mother’s parental rights to Zyonna.
AMY M. WOOD • Clerk of the Court
FILED: AA
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