Lisa S., Brian W. v. Dcs ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
LISA S., BRIAN W., Appellants,
v.
DEPARTMENT OF CHILD SAFETY, R.W., F.W., Appellees.
No. 1 CA-JV 18-0436
FILED 5-2-2019
Appeal from the Superior Court in Maricopa County
Nos. JD32477
JS19635
The Honorable M. Scott McCoy, Judge
AFFIRMED
COUNSEL
Czop Law Firm, PLLC, Higley
By Steven Czop
Counsel for Appellant Lisa S.
The Stavris Law Firm, PLLC, Scottsdale
By Christopher Stavris
Counsel for Appellant Brian W.
Arizona Attorney General’s Office, Phoenix
By Sandra L. Nahigian
Counsel for Appellee Department of Child Safety
LISA S., BRIAN W. v. DCS, et al.
Decision of the Court
MEMORANDUM DECISION
Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge Kenton D. Jones joined.
C R U Z, Judge:
¶1 Lisa Louise Satterfield (“Mother”) and Brian Tallchief
Waldon (“Father”)1 (collectively “Parents”) challenge the superior court’s
severance of their parental rights to their two minor children, R.W. and F.W.
Mother challenges only the statutory grounds for severance, and Father
challenges the court’s best-interests findings. Finding no reversible error,
we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Mother and Father are parents to R.W., age six, and F.W., age
three. Parents’ history with the Department of Child Services (“DCS”)
dates back to 2014, when DCS investigated the first allegation of child
neglect. DCS found the allegation to be unsubstantiated, but nevertheless
observed Father smoking marijuana on the front porch while holding R.W.;
the home was pervaded by a foul odor; and the family dog consistently
urinated on the floor, which was never properly cleaned—a fact especially
alarming due to the fact that R.W. often played on the unsanitary floor.
¶3 In February 2016 DCS found an allegation of substance abuse
and inadequate child care to be substantiated after F.W. tested positive for
marijuana at birth. Mother admitted to using marijuana throughout her
pregnancy with F.W. Some weeks later, F.W. was admitted to the hospital
and diagnosed with “failure to thrive”—F.W. weighed more at birth than
he did roughly seven weeks later. F.W. vomited frequently at the hospital;
Parents acknowledged he had been spitting up much of what he ate. F.W.
spent several days in the hospital and upon discharge DCS took custody of
both children.
1 Father is an enrolled member of the Cayuga Nation. Father
stipulated, however, that the Indian Child Welfare Act does not apply to
this case.
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LISA S., BRIAN W. v. DCS, et al.
Decision of the Court
¶4 On DCS’ motion, the children were adjudicated dependent in
April 2016. In its order, the court found that Mother and Father were unfit
by reason of medical neglect, and that their marijuana substance abuse
issues rendered them unable to adequately parent. Additionally, the court
found Mother unfit to parent “due to mental deficiency and neglecting to
properly treat her mental health.” The court noted that despite reporting
she had ADHD, depression, anxiety, and that she was “special needs” at a
young age, Mother did not seek treatment.
¶5 During this first dependency proceeding, DCS Program
Supervisor Kari McBride described Parents as having Cannabis Use
Disorder. Thereafter, however, Parents achieved and maintained sobriety,
and successfully completed the services offered by DCS: Parent-Aide,
urinalysis testing, substance abuse treatment, family reunification,
psychological evaluations, and counseling. Additionally, Parents
demonstrated an understanding of how marijuana abuse negatively
affected their parenting. At this same time, F.W. was provided with
multiple services, including doctor appointments, “GoodFit” human
development services, and Division of Development Disabilities services.
F.W. “made substantial growth” over a short period of time after beginning
these services, achieving “a much better level of stability and age
appropriate milestones.”
¶6 Because of Parents’ clear progress and F.W.’s marked
improvement, the court terminated the dependency proceedings in
December 2017, but DCS continued to provide services for F.W. Upon
notice of such termination, but before termination went into effect, Father
reached out to F.W.’s service providers to cancel all future appointments
and close out the services—Father “stated that he [did] not feel that [F.W.]
ha[d] any speech or any other developmental delays and [was] not in need
of services.” The provider’s report reflected that F.W. did in fact exhibit
developmental delays. In addition to abandoning services for F.W., Parents
also abandoned sobriety—they immediately began smoking marijuana
again.
¶7 In March 2018, DCS discovered Mother had obtained a
medical marijuana card, and investigated allegations that Father smoked
marijuana in front of the children, that the home was infested with
cockroaches, and that Mother had slapped R.W. across the face and
knocked the child out of a chair. DCS Investigator Angela Nilssen went to
Parents’ house, but no one answered. She thereafter contacted them and
set up an appointment for the following day. She testified that when she
arrived, the house smelled like chlorine or bleach as if it had just been
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Decision of the Court
cleaned. Parents denied the allegation of physical abuse; Mother admitted
to smoking marijuana three times per day but denied smoking around the
children; Father denied smoking marijuana at all but refused to provide a
hair follicle for testing. Parents acknowledged the roach infestation but
provided Nilssen a receipt showing they had just had their house
“bombed” to get rid of the roaches. Nilssen discovered F.W. had a broken
tooth that Parents could not explain.
¶8 Roughly two weeks later, Father submitted to urinalysis
testing and tested positive for marijuana. Although he initially claimed the
test must have been positive due to him being near Mother when she
smoked, he later admitted to using marijuana to self-treat carpal tunnel
syndrome; Father claimed he lied because he “was nervous and afraid” of
“being confronted” by a DCS official.
¶9 In May 2018, Nilssen interviewed R.W. at school in response
to another complaint filed against Parents. R.W. told Nilssen that Father
sometimes put her in a box with diapers—the complaint alleged dirty
diapers—and that marks on her body were from Mother burning her with
cigarettes. Father acknowledged that R.W. had told him about Mother
burning her with cigarettes and stated he had confronted Mother about it;
Mother denied doing so intentionally and denied any such conversation
with Father. R.W. further disclosed that Father would sometimes put her
inside a box and tape it shut, and at other times he “would place her inside
a poop trash container.” Father denied these allegations.
¶10 The children were again removed from Parents’ custody and
a rash that appeared raw and unattended to was discovered on each child’s
buttocks. Father testified to knowing about the rash and choosing to treat
it at home—an action consistent with Father’s expressed belief that even if
medical professionals state that his children need professional attention, “I
am a parent and I deserve to have that bond with my kid and to recognize
his own problem if there is a problem going on.” Regarding F.W.’s special
needs,2 Father was adamant that if he did not recognize any problem, then
F.W. requires no services—Father stated that because he is a parent, he is
“in a better position to assess what services or delays [his] child has than”
any doctor or speech, occupational, or physical therapist.
2 Father seemed to misunderstand the term “special needs” as applied
to F.W., testifying that “there’s no special needs because [F.W. is] very
intelligent for his own age.”
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LISA S., BRIAN W. v. DCS, et al.
Decision of the Court
¶11 DCS moved for severance of Mother’s and Father’s parental
rights. At trial, Mother did not testify. Father testified that Mother moved
out roughly a month-and-a-half before trial, and that he intended to “parent
on [his] own.” However, Father also stated that “Mother would still be
involved in [the children’s] lives” and they would “co-parent,” because he
believed there were no issues with Mother and her parenting of the
children. Father stated he would participate in services for his children if
ordered to; he expressed, however, his firm belief that he had never done
anything harmful or that put the children at risk and stated that he did not
believe any of the services were necessary for him or the children. Father
expressed further distrust of medical professionals when he testified that
even prior to receiving his medical marijuana card, he self-treated with
marijuana rather than seeing a doctor for his pain because he “didn’t want
to consult with anybody” but “wanted to do it on [his] own.”
¶12 The court granted DCS’ severance motion in an October 2018
order. Mother and Father timely appealed. We have jurisdiction pursuant
to Article 6, Section 9, of the Arizona Constitution, and Arizona Revised
Statutes (“A.R.S.”) §§ 8-235, 12-120.21(A)(1), and -2101(A)(1).
DISCUSSION
¶13 Mother challenges the statutory grounds of the severance;
Father challenges the court’s best-interests findings. We address each
argument in turn.
I. Statutory Grounds
¶14 Mother specifically challenges that DCS did not sufficiently
prove she “is currently unable to discharge parental responsibilities”
pursuant to A.R.S. § 8-533(B)(11)(d). “Evidence sufficient to justify the
termination of the parent-child relationship shall include any one of the”
grounds enumerated in A.R.S. § 8-533(B). Absent clear error, we accept the
findings of the superior court on review, Maricopa County. Juvenile Action
No. JS-4374, 137 Ariz. 19, 21 (App. 1983), because that court “is in the best
position to weigh the evidence, observe the parties, judge the credibility of
witnesses, and resolve disputed facts.” Jordan C. v. Ariz. Dep’t of Econ. Sec.,
223 Ariz. 86, 93, ¶ 18 (App. 2009).
¶15 Mother argues DCS failed to prove by clear and convincing
evidence that she was “currently unable to discharge parental
responsibilities.” A.R.S. §§ 8-533(B)(11)(d), -537(B); see Kent K. v. Bobby M.,
210 Ariz. 279, 286, ¶ 35 (2005). This court has previously recognized
“parental responsibilities” as “capable of being understood by persons of
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Decision of the Court
ordinary intelligence as referring to those duties or obligations which a
parent has with regard to his child,” Maricopa County Juvenile Action No. JS-
5209 & No. JS-4963, 143 Ariz. 178, 185 (App. 1984); furthermore, “[t]he term
is not intended to encompass any exclusive set of factors but rather to
establish a standard which permits a trial judge flexibility in considering
the unique circumstances of each termination case before determining the
parent’s ability to discharge his or her parental responsibilities.” Maricopa
Cty. Juv. Action No. JS-5894, 145 Ariz. 405, 409 (App. 1985).
¶16 In its findings and conclusions of law, the court took note of
F.W.’s failure to thrive diagnosis; “safety issues regarding [Parents’] use of
marijuana”3; Parents’ choice to immediately close F.W.’s developmental
services at the conclusion of the first dependency; Parents’ failure to
meaningfully participate in services during the second dependency;
Parents’ failure to provide adequate medical services to their children, and
their apparent belief that, contrary to the opinions of various professionals,
F.W. does not need any developmental services—and particularly Father’s
expressed belief that he knows better than medical professionals; and
F.W.’s tendency to regress when in Parents’ custody.
¶17 Each of these findings and conclusions are supported by the
record (except as indicated in footnote 3) and reflect an inability to
discharge parental responsibilities. Upon review of the record, we hold that
ample evidence supports the court’s conclusion that DCS proved the
§ 5-833(B)(11) ground for termination by clear and convincing evidence.
II. Best Interests
¶18 In addition to its finding of one of the A.R.S. § 8-533(B) factors,
the court “shall also consider the best interests of the child.” A.R.S.
§ 8-533(B). The court may find that DCS has met its burden of proof if a
preponderance of the evidence demonstrates that “termination is in the
child’s best interests if either: (1) the child will benefit from severance;
or (2) the child will be harmed if severance is denied.” Alma S. v. Dep’t of
Child Safety, 245 Ariz. 146, 150, ¶ 13 (2018) (emphasis added) (citation
3 Section 36-2811(B) provides that medical marijuana card holders are
“not subject to arrest, prosecution or penalty in any manner, or denial of
any right or privilege, including any civil penalty or disciplinary action by
a court or occupational or professional licensing board or bureau.” Because
the record does not reflect the manner in which Parents’ legal use of
marijuana negatively affected their parenting, we address only the other
bases for severance.
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LISA S., BRIAN W. v. DCS, et al.
Decision of the Court
omitted). The court must look to the totality of the circumstances in making
its determination. Id. at 150-51, ¶ 13 (citation omitted).
¶19 DCS Program Supervisor McBride testified that severance is
in the best interests of both children, stating:
These are both very young children who have been out of care
for a significant period of their life. [F.W.] has some
significant needs. Both of these children need a stable, sober,
permanent home environment. This is their second
dependency in a very short period and they need that
permanency so that they can continue to develop and meet
these milestones so we can reach the point where they can
. . . become successful older children, young adults, and
progress. . . . [Without severance, t]he concern would be that
we would continue to have children languishing in
out-of-home care. We would have uncertainty regarding
their permanency plan, regarding the home that they’re going
to go to, if it’s a safe home . . . a sober home, and . . . is going
to be able to meet all of their needs long-term.
Ms. McBride further testified that each child is placed in a home committed
to permanent adoption; that R.W. is “doing amazing” in her current home
and showing marked progress; and that F.W. is in a home that “has shown
they have in the past and are currently able to meet all of” F.W.’s special
needs.
¶20 The court was persuaded by this testimony, finding that
“[t]he children are currently each in adoptive placements willing and able
to meet all of their needs”; “[b]oth children are considered adoptable”; and
that “[t]he children deserve a home free of substance use and a safe and
stable living environment.” These findings satisfy the disjunctive prong
requiring DCS prove a benefit to the children from severance. The record
does not support Father’s position that the court’s best-interests finding
was in error.
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LISA S., BRIAN W. v. DCS, et al.
Decision of the Court
CONCLUSION
¶21 We affirm the superior court’s order granting DCS’ severance
motion as to both Mother and Father.
AMY M. WOOD • Clerk of the Court
FILED: AA
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