Tiffani G. 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
TIFFANI G., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, I.O., Z.O., Appellees.
No. 1 CA-JV 18-0423
FILED 5-14-2019
Appeal from the Superior Court in Maricopa County
No. JD530093; JS518961
The Honorable Karen L. O’Connor, Judge
AFFIRMED
COUNSEL
Vierling Law Offices, Phoenix
By Thomas A. Vierling
Counsel for Appellant
Arizona Attorney General’s Office, Tucson
By Autumn Spritzer
Counsel for Appellee Department of Child Safety
TIFFANI G. v. DCS, et al.
Decision of the Court
MEMORANDUM DECISION
Judge James P. Beene delivered the decision of the Court, in which
Presiding Judge David D. Weinzweig and Judge Kent E. Cattani joined.
B E E N E, Judge:
¶1 Tiffani G. (“Mother”) appeals the superior court’s order
terminating her parental rights to her children, I.O. and Z.O. (collectively,
the “Children”).1 For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 In June and July of 2016, the Department of Child Safety
(“DCS”) removed the Children from Mother’s custody and filed a
dependency petition after she was involuntarily committed and
hospitalized for three weeks due to mental illness. The petition alleged that
the Children were dependent as to Mother due to mental health issues and
neglect. Mother participated in reunification services and, in September
2017, DCS returned the Children to Mother’s physical custody. The court
dismissed the dependency action.
¶3 In March 2018, DCS again removed the Children after Mother
was again involuntarily committed and hospitalized due to mental illness.
DCS initiated a second dependency action, alleging the Children were
dependent as to Mother on grounds of mental illness. DCS then filed a
termination action in May 2018, alleging Mother was unable to discharge
parental responsibilities due to mental illness, see Ariz. Rev. Stat. (“A.R.S.”)
§ 8-533(B)(3), and that the Children had previously been returned to Mother
after being removed, see A.R.S. § 8-533(B)(11).
¶4 After a dependency/termination hearing, the superior court
found the Children dependent. It also found DCS had proven both
statutory grounds for termination and that termination was in the
Children’s best interests.
1 The Children’s father’s parental rights were terminated in 2018. He
is not a party to this action.
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TIFFANI G. v. DCS, et al.
Decision of the Court
¶5 Mother timely appealed. We have jurisdiction pursuant to
Article 6, Section 9, of the Arizona Constitution, and A.R.S. §§ 12-
2101(A)(1), -120.21(A)(1).
DISCUSSION
¶6 Mother argues on appeal that the court abused its discretion
by finding: (1) DCS proved the recurrent-removal ground pursuant to
A.R.S. § 8-533(B)(11); (2) DCS proved the mental-illness ground pursuant to
A.R.S. § 8-533(B)(3); and (3) termination was in the Children’s best interests.
Because we find sufficient evidence supports the mental-illness ground, we
need not address the recurrent-removal ground. See Crystal E. v. Dep’t of
Child Safety, 241 Ariz. 576, 578, ¶ 5 (App. 2017).
I. Standard of Review.
¶7 We review the court’s termination order for an abuse of
discretion. Sandra R. v. Dep’t of Child Safety, 246 Ariz. 180, 182, ¶ 6 (App.
2019). We view the record in the light most favorable to affirming the
court’s findings. Alma S. v. Dep’t of Child Safety, 245 Ariz. 146, 152, ¶ 21
(2018). “Because the juvenile court is in the best position to weigh evidence
and assess witness credibility, we accept the juvenile court’s findings of fact
if reasonable evidence and inferences support them, and [we] will affirm a
[termination] order unless it is clearly erroneous.” Demetrius L. v. Joshlynn
F., 239 Ariz. 1, 3, ¶ 9 (2016).
II. The Superior Court Did Not Abuse Its Discretion by Finding DCS
Proved the Mental-Illness Ground for Termination.
¶8 Mother argues the superior court abused its discretion by
finding the mental-illness ground because: (1) the record did not support a
finding that Mother’s mental illness prevented her from discharging
parental responsibilities; and (2) DCS did not provide sufficient
reunification services.
A. Sufficient evidence showed Mother was unable to parent.
¶9 Mother argues the evidence presented by her counselor, Mr.
Hoversten, showed that Mother could parent the Children and that her
illness would not last for a prolonged, indeterminate period.
¶10 Before terminating a parent-child relationship, the superior
court must first find by clear and convincing evidence that a statutory
ground for termination exists. Alma S., 245 Ariz. at 149, ¶ 8; see A.R.S. § 8-
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Decision of the Court
533(B). One of these grounds is “[t]hat the parent is unable to discharge
parental responsibilities because of mental illness, [or] mental
deficiency . . . and there are reasonable grounds to believe that the condition
will continue for a prolonged indeterminate period.” A.R.S. § 8-533(B)(3).
Termination under this section does not “require that the parent be found
unable to discharge any parental responsibilities but rather that the parent
be unable to discharge ‘the parental responsibilities.’” Raymond F. v. Ariz.
Dep’t of Econ. Sec., 224 Ariz. 373, 378, ¶ 19 (App. 2010) (quotation omitted).
“Parental responsibilities” refers to “those duties or obligations which a
parent has with regard to his [or her] child.” Id. at ¶ 20. The 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.” Id. (quotation omitted). It includes
the ability to make appropriate decisions for the Children, protect them
from harm or abuse, and seek medical care. See id. at ¶¶ 21-22.
¶11 The record contains sufficient evidence that Mother was
unable to parent, notwithstanding Mother’s emphasis on other evidence
she views as more favorable, including the opinion of her counselor that
she was stable and not a danger to the Children. See Joelle M. v. Dep’t of
Child Safety, 245 Ariz. 525, 528, ¶ 18 (App. 2018) (“We defer to the superior
court, which heard and weighed the evidence, observed the parties and
witnesses, gauged credibility and resolved questions of fact.”). Dr.
Silberman, a psychologist who performed an evaluation of Mother in June
2018, reported that Mother had a delusional disorder and possibly bipolar
disorder and that Mother minimized or denied her problems. He testified
that this put the Children at risk, and he gave Mother a poor prognosis of
successful parenting going forward. Further, he testified that Mother had
a “lifelong pattern . . . or at least for several years” of this behavior, and that
this pattern led him to believe that it was a condition that could continue
for a prolonged or indeterminate time. He also said there was a “great deal
of concern” that the Children would be at risk in Mother’s care “[b]ecause
she has no insight” into her condition, and that “[f]or any change to take
place, she would have to be compliant with medication for a full year.” He
and Mother’s counselor at the time of the hearing noted that Mother had
not been compliant with her prescribed medication regimen and had
stopped taking her medication entirely.
¶12 The first DCS caseworker assigned to Mother testified that
Mother had ongoing behavioral health concerns that “absolutely” posed a
safety risk to the Children if she discontinued services. The second DCS
caseworker assigned to Mother raised concerns about Mother’s ability to
discharge her parental responsibilities due to her unmanaged mental health
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TIFFANI G. v. DCS, et al.
Decision of the Court
issues and erratic behavior. In light of this evidence, the superior court did
not abuse its discretion by finding Mother was unable to parent.
B. DCS provided sufficient reunification services.
¶13 Mother argues DCS failed to: (1) provide Mother with Ph.D-
level counseling as recommended by her first and second psychological
evaluations; (2) coordinate services and communicate or work with
Mother’s providers; and (3) review Mother’s mental health records.
¶14 To terminate based on A.R.S. § 8-533(B)(3), DCS must prove it
provided the parent “with the time and opportunity to participate in
programs designed to help her become an effective parent.” Christina G. v.
Ariz. Dep’t of Econ. Sec., 227 Ariz. 231, 235, ¶ 14 (App. 2011) (quotation
omitted). DCS need not provide services that are futile; it need only
“undertake measures with a reasonable prospect of success.” Id. at ¶ 15
(quotation omitted). DCS is not required to provide duplicate services that
the parent receives elsewhere. See Pima Cty. Severance Action No. S-2397, 161
Ariz. 574, 577 (App. 1989).
¶15 DCS provided sufficient reunification services. During the
second dependency, DCS offered twice-weekly visitation and a
psychological evaluation, and Mother was engaging with her own
counselor. Although Mother is correct that two of her psychological
evaluations recommended Ph.D-level counseling, Mother said she
preferred to see her own counselor rather than going through DCS-
appointed treatment. Additionally, Dr. Silberman, a psychologist who
examined Mother in June 2018, testified that Mother’s medically-trained
counselor at the time of the hearing was sufficient to meet Mother’s needs.
Mother’s counselor also stated he did not know how the treatment he was
providing would differ from Ph.D-level counseling.
¶16 Additionally, Dr. Silberman said he believed that Mother was
receiving the necessary services. His only recommendation was that
Mother stop her use of medical marijuana and be compliant with her
medication. Mother’s counselor testified that DCS could “[p]robably not”
have prevented Mother’s 2018 commitment for mental illness.
Additionally, he stated he had not referred Mother for another psychiatric
evaluation because she had already had two and was receiving medication.
DCS is not required to provide every available service; it must only
“undertake measures with a reasonable prospect of success,” and it need
not duplicate the services that Mother was receiving elsewhere. No. S-2397,
161 Ariz. at 577.
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TIFFANI G. v. DCS, et al.
Decision of the Court
¶17 Finally, the record does not support that DCS failed to
communicate with Mother’s service providers and to review her mental
health records. Although DCS did not communicate with Mother’s
counselor, it referred Mother to Dr. Silberman and educated him about
Mother’s mental health issues. The superior court did not abuse its
discretion by finding DCS had provided sufficient reunification services.
III. The Court Did Not Abuse Its Discretion by Finding Termination
Was in the Children’s Best Interests.
¶18 Mother argues the superior court abused its discretion by
finding termination was in the Children’s best interests. She asserts: (1) the
Children should have been given an opportunity to have a relationship
with Mother, Mother has participated in services, and the Children share a
bond with Mother; (2) the superior court did not adequately address
whether maintaining the parent-child relationship would be detrimental to
the Children; and (3) the court failed to consider the circumstances that
existed at the termination hearing rather than at Mother’s prior
dependencies.
¶19 Termination is in the Children’s best interests if either: (1) the
child will benefit from termination; or (2) the child 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 [termination]
determination.” Id. “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.” Id. at ¶ 14 (quotation
omitted). A bond between the parent and child is but one of several factors
to consider during the best-interests analysis. See Crystal E., 241 Ariz. at
578-79, ¶¶ 9-10. We presume the superior court considered the evidence
before it, even if not specifically referenced in its findings. Fuentes v.
Fuentes, 209 Ariz. 51, 55-56, ¶ 18 (App. 2004).
¶20 Sufficient evidence supports the court’s best-interests finding
despite the bond between Mother and the Children. The second DCS case
manager testified that termination would provide the Children with
stability and the chance to be adopted, while meeting their emotional,
educational, and medical needs. At the time of the
dependency/termination hearing, the Children were in an adoptive home
that was meeting their needs. Furthermore, the DCS caseworker from the
second dependency testified that if the current placement were to
“disrupt,” the Children would remain adoptable. Finally, this caseworker
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TIFFANI G. v. DCS, et al.
Decision of the Court
opined that the Children would suffer a detriment if termination were
denied because of Mother’s mental instability, multiple involuntary
commitments, and erratic behavior. There is no evidence that this
caseworker was referring to any circumstances other than those existing at
the time of the dependency/termination hearing, as Mother alleges. In light
of this evidence, the superior court did not abuse its discretion by finding
termination was in the Children’s best interests.
CONCLUSION
¶21 The superior court’s order terminating Mother’s parental
rights to the Children is affirmed.
AMY M. WOOD • Clerk of the Court
FILED: AA
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