Marsha M. 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
MARSHA M., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, L.M., C.M., Appellees.
No. 1 CA-JV 18-0237
FILED 3-19-2019
Appeal from the Superior Court in Maricopa County
No. JD527147
JS518572
The Honorable Arthur T. Anderson, Judge
AFFIRMED
COUNSEL
Maricopa County Public Advocate, Mesa
By David C. Lieb
Counsel for Appellant
Arizona Attorney General’s Office, Mesa
By Amanda Adams
Counsel for Appellee Department of Child Safety
MARSHA M. v. DCS, et al.
Decision of the Court
MEMORANDUM DECISION
Judge Jennifer M. Perkins delivered the decision of the Court, in which
Presiding Judge David D. Weinzweig and Judge Kent E. Cattani joined.
P E R K I N S, Judge:
¶1 Marsha M. (“Mother”) appeals the superior court’s order
terminating her parental rights to her two children. For the following
reasons, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 Mother suffers from bipolar and anxiety disorders. In
September 2013, Mother tested positive for methadone, opiates, and
benzodiazepines at L.M.’s birth. The Department of Child Safety (“DCS”)
took custody of L.M. and petitioned the superior court for a dependency
finding. The court eventually found L.M. dependent and set a case plan of
family reunification. Over the next four and a half years, DCS referred
Mother for services, including substance-abuse testing and treatment, three
psychological evaluations, a bonding assessment, counseling, three parent-
aide referrals, and visitation. Mother also obtained mental-health services
through Lifewell.
¶3 Mother initially struggled with addressing her mental health
and with parenting L.M. In March 2014, Mother was hospitalized for
fourteen days for displaying paranoia and delusions. The next month,
Mother completed her first psychological evaluation with Dr. James Thal.
He gave Mother a guarded prognosis of her ability to parent L.M. in the
future and recommended that she attend individual therapy. Accordingly,
she attended some counseling after October 2014.
¶4 Meanwhile, Mother successfully completed her first parent-
aide service. The parent aide expressed concern, however, because Mother
appeared lethargic and unfocused at some visits. The parent aide suggested
DCS assign a safety monitor if Mother regained custody of L.M.
¶5 DCS then referred Mother for a visitation-only parent aide.
Visits took place at an apartment Mother shared with Oliver A. (“Father”).
The juvenile court would later terminate Father’s parental rights. On
appeal, Father’s counsel filed a notice stating he could not find any non-
frivolous issue and we subsequently dismissed Father’s appeal. See Ariz.
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Decision of the Court
R.P. Juv. Ct. 106(G). The first parent aide reported that Mother appeared
tired and “dazed” and would often watch TV rather than interact with the
children. She also noted that Mother failed to redirect L.M. when she would
get into Mother’s medications and various trinkets in the home. The parent
aide also expressed concern with Mother’s ability to independently parent
L.M.
¶6 In May 2015, the superior court changed the case plan to
termination and adoption and DCS moved to terminate Mother’s parental
rights on the grounds of substance abuse and fifteen months’ time in care.
One month later, Mother gave birth to C.M. and DCS took custody of him.
C.M. was born substance exposed; Mother struggled with an addiction to
prescription pills until August 2015, but thereafter completed a treatment
program and maintained sobriety through the termination hearing.
¶7 In August 2015, Mother completed a second psychological
evaluation with Thal. Thal reported that Mother had “made relatively little
progress since her previous evaluation.” He gave Mother a poor prognosis
of being able to parent her children in the foreseeable future, and he
concluded that her “drug addictions and bipolar disorder [render her]
incapable of providing safe and effective care to a child.” He also noted that
any child in her care would be at a substantial risk for neglect and “could
be exposed to frightening levels of emotional instability.”
¶8 In June 2016, Mother completed a third psychological
evaluation; this time with Dr. Joseph Bluth. Bluth confirmed Mother’s
bipolar disorder and further diagnosed her with an unspecified personality
disorder with antisocial and dependent traits. Bluth gave Mother a poor
prognosis for parenting the children in the foreseeable future. He
concluded a child in her care would be at risk for neglect and recommended
“alternative permanency plans.”
¶9 That same month, Bluth also performed a bonding and best
interests assessment between Mother and L.M. Bluth determined that they
shared a bond, but it was not a strong one, and recommended termination
and adoption for L.M. Meanwhile, Mother successfully completed her
second full parent-aide service. That parent aide was concerned, however,
about Mother’s ability to independently parent the children and
recommended that visits remain supervised.
¶10 In April 2017, Mother moved into her own apartment.
Around this same time, Mother enrolled in counseling through Lifewell.
DCS amended its termination motion regarding L.M. to include the mental-
illness ground. It later moved to terminate Mother’s parental rights to C.M.
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Decision of the Court
under the grounds of fifteen months’ time in care and inability to parent
due to mental illness.
¶11 In May 2017, Mother moved to have DCS return the children
to her under Arizona Rule of Procedure for the Juvenile Court 59. At the
ensuing hearing, DCS agreed that Mother had engaged in services, but
opposed her motion because she had still not demonstrated that she could
provide appropriate supervision or meet the children’s special needs. For
example, L.M. displayed anxiety and sexualized behaviors and was
diagnosed with post-traumatic stress disorder. C.M. has multiple medical
diagnoses, is developmentally delayed, and requires weekly therapy and a
very restrictive diet. To this point, Mother had attended very few of the
children’s numerous medical or therapy appointments, or the child and
family team (“CFT”) meetings. Even when she did attend CFT meetings,
she struggled to recall or understand medical diagnoses or instructions
given to her.
¶12 Ultimately, Mother withdrew her motion, and the court
continued the termination hearing to allow Mother more time to
demonstrate whether she could safely parent the children and meet their
needs on her own. After that, Mother attended many of the children’s
appointments and CFT meetings. Upon court order, DCS also provided
Mother with a third parent aide. This parent aide reported that Mother
failed to redirect the children in hazardous situations, such as attempting
to eat a glow stick, touching a hot stove, or microwaving a metal lunch box.
¶13 The superior court held a contested termination hearing over
three days in February and two days in March, 2018. The court eventually
terminated Mother’s parental rights to both children under grounds of
inability to parent due to mental illness and fifteen months’ out-of-home
placement, but found that DCS failed to prove the substance abuse ground.
The court also found termination would be in the children’s best interests
because Mother was unable to meet their special health, developmental,
and emotional needs. Mother timely appealed the court’s order.
DISCUSSION
¶14 Mother asserts that the court erred in finding DCS made
diligent efforts to provide her with appropriate reunification services as
required under the fifteen months’ time-in-care ground. A.R.S. § 8-
533(B)(8). She specifically argues that DCS failed to provide her with
specialized instruction on the children’s medical and behavioral needs or
opportunities to demonstrate that she could manage those needs. Because
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reasonable evidence supports the court’s finding, we affirm the termination
order.
¶15 We will not reverse the juvenile court’s termination order
“unless no reasonable evidence supports its factual findings.” Jennifer S. v.
Dep’t of Child Safety, 240 Ariz. 282, 287, ¶ 16 (App. 2016). The juvenile court
sits as the trier of fact, and this Court views the evidence and reasonable
inferences drawn from it in the light most favorable to sustaining the
juvenile court’s decision; we will not reweigh the evidence. Jordan C. v. Ariz.
Dep’t of Econ. Sec., 223 Ariz. 86, 93, ¶ 18 (App. 2009). To terminate parental
rights, the juvenile court must find at least one statutory ground under
A.R.S. § 8-533 by clear and convincing evidence, A.R.S. § 8-537(B), and that
termination is in a child’s best interests by a preponderance of evidence,
Kent K. v. Bobby M., 210 Ariz. 279, 288, ¶ 41 (2005).
¶16 When seeking termination under the fifteen-month out-of-
home placement ground, DCS must prove that it “made a diligent effort to
provide appropriate reunification services” to the parent. A.R.S. § 8-
533(B)(8). DCS must show that it provided the parent with “the time and
opportunity to participate in programs designed to help her become an
effective parent.” In re Maricopa Cty. Juv. Action No. JS-501904, 180 Ariz. 348,
353 (App. 1994). DCS need not “provide every conceivable service or . . .
ensure that a parent participates in each service it offers.” Id.
¶17 Mother did not raise concerns over the adequacy of services
until June 2017—almost four years after L.M.’s birth and two years after
C.M.’s birth. She struggled with drug addiction and with stabilizing her
mental health until about August 2015. Thereafter, to her credit, Mother
established sobriety and regularly participated in services. Even so,
through May 2017, Mother did not take advantage of the many
opportunities she had to learn about her children’s special needs. The case
manager explained that “those skills [could] only be learned during
doctors’ appointments and CFTs,” both of which Mother barely attended.
¶18 Through May 2017, she failed to attend most of the children’s
medical and behavioral-health appointments. For example, the children’s
therapist, who could provide detailed knowledge about the children’s
medical and behavioral needs, offered to meet with Mother but Mother did
not do so. Had Mother attended C.M.’s feeding therapies, she could have
obtained “really specific[,] detailed information” about his diet, but Mother
only attended a few.
¶19 Mother also attended only half of the CFT meetings, which
are intended to “bring together all of the people that are involved in the
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child’s care so [they] can all talk about what’s going on with the child, the
child’s needs, the child’s current functioning, areas of concerns, and work
together to try and support the child.” There, several of the children’s
providers discussed the children’s specific needs and upcoming
appointments. Accordingly, in May 2017, the case manager testified that
Mother still needed “to learn the certain skill sets [for the children’s special
needs] and be able to demonstrate that she understands how to use those
skills.”
¶20 The children’s needs are very extensive. L.M. has substantial
mental health needs, particularly from her post-traumatic stress disorder.
She regularly attends counseling and shows “a variety of different trauma
symptoms including hyper vigilance, exaggerated startle response,
nightmares, sleep disruptions, [and] difficulty falling asleep. At times she
appears to disassociate.” She also becomes “highly anxious,” causing
extended silence or stuttering and increased toileting accidents and sleep
disruptions. Since age one, L.M. has also displayed “compulsive sexualized
behaviors that were outside the typical range for a child of her age.” L.M.’s
therapist testified that it is:
crucial [for L.M.’s long-term mental health] that she has safety
and stability and permanency and predictability within her
primary care giving relationship. She will rely on that person.
She needs to have a person who she feels confident [in] and
can trust, . . . someone that she feels can keep her safe and can
protect her from any potential dangers. And these pieces are
crucial for her long-term mental health. Any -- further risk
factors or exposure to violence or inconsistency or
unpredictable life really puts her at further risk for
developing serious mental illness as she gets older.
¶21 C.M. has long-term medical and developmental needs. He
easily aspirates, so he is on a restricted diet and needs his liquids thickened.
Without proper care, he is at high risk for developing pneumonia; “[w]ithin
a matter of 24 hours [the situation] can be[come] very serious.” Indeed,
C.M. had been hospitalized six times since his birth. He also had bleeding
in his brain around the time of his birth and consequently developed “low
or weak muscle tone on the left side of his body which has impacted several
areas of functioning.” His speech functioning is “significantly delayed.”
Overall, he is developmentally delayed and has been diagnosed with
cerebral palsy and celiac disease. Most recently, C.M. was diagnosed with
disinhibited social engagement disorder, meaning he lacks wariness with
strangers, which “puts him at high risk . . . to be victimized if he’s not . . .
highly supervised in public at all times.”
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Decision of the Court
¶22 To address these needs, C.M. requires continuous medical
and developmental services. C.M. attends feeding therapy four days per
week and regular breathing treatments, counseling, physical therapy, and
occupational therapy appointments. He also sees a variety of doctors
specializing in neurology, gastrointestinal medicine, pulmonology,
orthopedic medicine, allergies, and ear, nose, and throat issues.
Accordingly, C.M.’s therapist testified that his caregiver must be very
efficient in coordinating and multitasking and “consistently attend . . . and
actively participate in” C.M.’s services. Without a caregiver who
consistently attends every appointment, C.M. could suffer “a significant
risk to his physical health but also [to] his developmental capacities.”
Overall, the children’s therapist testified that a caregiver who is “able to
take in the new information that the doctors are providing and . . . able to
implement that consistently is crucial for these kids.”
¶23 After May 2017, DCS provided Mother with additional
opportunities to demonstrate her ability to care for L.M. and C.M. DCS
provided Mother with detailed instructions on the children’s upcoming
appointments and reiterated to her that she needed to attend every
appointment and CFT. Mother received instruction on how to thicken
C.M.’s liquids at his feeding therapies at Phoenix Children’s Hospital. The
children’s therapist knew about each child’s behavioral and medical issues
and invited Mother to regularly meet with her and attend some of the
children’s therapy appointments. DCS allowed Mother to lead the CFT
meetings, giving her an opportunity to display her knowledge about the
children’s needs and their upcoming appointments. Finally, for five months
preceding the termination hearing, DCS provided Mother with a third
parent aide who supervised four-hour visits twice a week in Mother’s
home. That parent aide educated herself on the children’s special needs
through the placement because Mother failed to provide her detailed
information on C.M.’s medical issues.
¶24 Despite these additional opportunities, Mother still missed a
number of the children’s appointments after May 2017. For example,
several of C.M.’s specialists held a joint meeting at which they detailed his
restrictive diet; Mother did not appear, and the meeting had to be
rescheduled. Moreover, Mother struggled with remembering instructions
and adequately grasping the children’s needs. She provided incomplete
information while leading the CFT meetings and had trouble explaining the
purpose and outcome of each medical appointment. Despite having
received instructions on C.M.’s restricted diet, Mother attempted to feed
him a strawberry, which could have caused him to aspirate.
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¶25 Nor did Mother demonstrate awareness of L.M.’s emotional
needs, including her need for extra protection due to her anxiety. At an
encounter with both parents and placement, Mother pushed L.M. to engage
with Father and failed to notice that L.M. was “not feeling safe,” even
though she was “physically . . . tensing up. Her eyes [were] getting bigger.
She[ was] refusing to go.” At the termination hearing, Mother could not
explain why C.M. sees a pulmonologist or attends occupational therapy
and she could not explain which doctor’s appointments she had attended.
¶26 Mother also struggled with properly supervising the children
during visits. The parent aide testified that Mother had difficulty retaining
basic parenting directions and the parent aide often had to “intervene[] and
remind[]” her. At one visit, L.M. ate part of a glow stick, and the parent aide
had to call poison control and instruct Mother to wash out L.M.’s mouth.
At other visits, L.M. tried to drink cleaning supplies, microwave her metal
lunch box, and touch a hot stove. Each time, the parent aide had to redirect
her. At a visit just before the termination hearing, Mother failed to redirect
L.M. when she almost tipped over a recliner. Finally, the parent aide
expressed concern that at times, Mother “sit[s] on the couch, and it seems
like she is watching TV. But then when [the children] . . . walk up to her,
she kind of is staring, looking forward, not moving, not reacting when the
children are attempting to get her attention.” Ultimately, the parent aide
did not recommend unsupervised visits.
¶27 Considering this record, reasonable evidence supports the
court’s finding that DCS gave Mother the time and opportunity to learn
about and demonstrate her knowledge of the children’s special needs.
¶28 Because we affirm the juvenile court’s ruling on the fifteen
months’ time in care ground, we decline to address the findings concerning
the mental health ground. Jesus M. v. Ariz. Dep’t of Econ. Sec., 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.”). Mother does
not appeal the juvenile court’s best interests finding, and thus we do not
address it. Ariz. R. Civ. App. P. 13(a)(7); Ariz. R. P. Juv. Ct. 106(a); In re J.U.,
241 Ariz. 156, 161, ¶ 18 (App. 2016).
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Decision of the Court
CONCLUSION
¶29 We affirm the superior court’s order terminating Mother’s
parental rights.
AMY M. WOOD • Clerk of the Court
FILED: AA
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