In Re Term of Parental Rights as to C.M. ( 2023 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
IN RE TERMINATION OF PARENTAL RIGHTS AS TO C.M.
No. 1 CA-JV 22-0225
FILED 5-4-2023
Appeal from the Superior Court in Maricopa County
No. JD39408
The Honorable Todd F. Lang, Judge
AFFIRMED
COUNSEL
Law Office of H. Clark Jones, LLC, Mesa
By H. Clark Jones
Counsel for Appellant Mother
David W. Bell Attorney at Law, Higley
By David W. Bell
Counsel for Appellant Father
Arizona Attorney General’s Office, Phoenix
By Jennifer L. Thorson
Counsel for Appellee
IN RE TERM OF PARENTAL RIGHTS AS TO C.M.
Decision of the Court
MEMORANDUM DECISION
Judge Daniel J. Kiley delivered the decision of the Court, in which Presiding
Judge Maria Elena Cruz and Judge James B. Morse Jr. joined.
K I L E Y, Judge:
¶1 Savannah N. (“Mother”) and Robert M. (“Father”) appeal the
juvenile court’s order terminating their parental rights to their child, C.M.
Because reasonable evidence supports the termination order, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 The Department of Child Safety (“DCS”) removed C.M. from
her parents’ custody the day after she was born in May 2020. Five days later,
DCS filed a dependency petition alleging that C.M.’s parents were “unable
or unwilling to provide proper and effective parental care and control” due
to their homelessness, Mother’s marijuana use during pregnancy, Father’s
reported methamphetamine use, and the parents’ “admitted . . . history of
domestic violence.”
¶3 Mother regained physical custody of C.M. in September 2020,
conditioned on the presence of a live-in safety monitor in her home. C.M.’s
return to Mother’s care was short-lived. After only ten days, DCS
successfully moved to again take custody of C.M. following an incident in
which Mother began screaming and cursing in frustration over C.M.’s
persistent crying. After Mother angrily rebuffed the safety monitor’s
attempts to step in to try to soothe C.M., police intervention was required
to restore calm to the home. After this incident, Mother admitted to a DCS
child safety specialist that she “felt very overwhelmed” and “triggered” by
C.M.’s crying.
¶4 In November 2020, the court granted the dependency petition
as to both parents.
¶5 DCS offered the parents many services to facilitate their
reunification with C.M., including parent aide services, psychological
evaluations, substance abuse treatment, domestic violence treatment,
psychiatric evaluations, supervised visitations, and individual counseling.
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¶6 Mother and Father were inconsistent in their participation in
these services. Both parents successfully completed a one-on-one parenting
program. Mother successfully completed substance abuse treatment,
consistently tested negative for all substances, and completed several
sessions of individual counseling with a doctoral-level therapist. Neither
parent, however, engaged in domestic violence counseling or treatment.1
Although the parents engaged in supervised visits with C.M., they both
frequently arrived unprepared and late, often by 30 minutes or more, to
scheduled visits. And the parents’ parent aide services were “closed
unsuccessfully” due to “lack of consistent engagement.”
¶7 In October 2020, Mother completed a psychological
evaluation with Dr. Jeremiah D. Isbell. In connection with the evaluation,
Dr. Isbell interviewed Mother (who described an unstable childhood
characterized by domestic violence between her parents and sexual abuse
at the hands of her stepbrother) and administered psychological tests. After
completing his evaluation, Dr. Isbell diagnosed Mother with post-traumatic
stress disorder (“PTSD”), unspecified personality disorder with mixed
traits (dependent, borderline, and antisocial), cannabis use disorder,
stimulant use disorder, unspecified alcohol related disorder, and borderline
intellectual functioning with an IQ of 75. After noting that Mother accepted
no responsibility for the removal of C.M. from her care for the second time
in September 2020, claiming instead that the child was removed because
“my safety monitor flipped out,” Dr. Isbell found that Mother “appears to
have limited awareness and insight into her dysfunctional attitudes and
behaviors.” Dr. Isbell opined that Mother’s “maladaptive personality traits”
appear to have given rise to “a pervasive and excessive need to be taken
care of by others,” an issue of particular concern since “she does not have a
healthy support system.” These factors, Dr. Isbell determined,
“significantly negatively impact[]” Mother’s “ability to meet the complex
needs of her very young child.” Because of Mother’s “untreated PTSD,” her
“underlying maladaptive personality traits,” and “the dysfunctional
thinking and behaviors she has developed over the years,” Dr. Isbell
concluded that the prognosis for Mother’s ability to parent C.M. safely in
the foreseeable future was “guarded.” Finding Mother “in dire need of
individual counseling addressing her PTSD and maladaptive personality
pathology,” Dr. Isbell recommended that she receive individual counseling
1 After Mother reported enrolling in domestic violence counseling with
Terros, DCS contacted Terros and learned that Mother had not, in fact,
enrolled. Ultimately, Terros “close[d] out service” due to Mother’s
“fail[ure] to attend.”
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Decision of the Court
“from a DBT2 orientation . . . at minimum[,] once per week” for “at least 12
months.”
¶8 A DCS Progress Report dated July 16, 2021 reflects that,
despite Dr. Isbell’s determination that Mother “was ‘in dire need’ of DBT
therapy” and DCS’s offer to help Mother enroll in the recommended
therapy, she still had “not enrolled in the service” nine months later.
¶9 In October 2021, DCS moved to terminate Mother’s and
Father’s parental rights on the grounds of mental illness/deficiency, see
A.R.S. § 8-533(B)(3), and C.M.’s out-of-home placement for fifteen months
or longer, see A.R.S. § 8-533(B)(8)(c).
¶10 Over a year after Dr. Isbell’s psychological evaluation, Mother
completed a second evaluation, this time with Dr. James S. Thal. Mother
again described a childhood marked by physical and sexual abuse. She
insisted, however, that she was “untroubled by the sexual abuse she
endured as a child.” She denied the validity of the concerns that led DCS to
remove C.M., blaming her aunt, in whose care C.M. had been placed, for
“lying” to DCS. According to Mother, “her aunt contacted DCS” to make
false accusations against her because her aunt wanted a girl “and could not
have any more children of her own.”
¶11 Like Dr. Isbell, Dr. Thal diagnosed Mother with PTSD,
unspecified personality disorder (noting borderline traits), stimulant use
disorder, and an unspecified intellectual disability. Dr. Thal opined that
Mother’s “unstable moods, emotions, behaviors, and past drug use have
rendered her incapable of safely and effectively parenting a child.” Dr.
Thal’s prognosis for Mother’s ability to parent C.M. safely in the foreseeable
future was “marginal.” Dr. Thal recommended that Mother receive
“[a]pproximately 20 sessions [of] individual therapy” to “address her PTSD
symptoms, maladaptive behaviors, and deficient coping skills,” adding that
“[i]t may be helpful for [Mother] to have weekly or every other week
sessions with a doctoral level clinician.”
¶12 In February 2022, Mother began to engage in the
recommended therapy with a doctoral-level therapist. Mother attended
2 Dr. Isbell explained that dialectical behavior therapy, or DBT, is a form of
therapy that addresses “trauma-related symptoms” and aims to “help[] the
client achieve better emotional stability to challenge some of their attitudes
that may be . . . irrational or dysfunctional.”
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only four therapy sessions, however, before she stopped attending in mid-
March 2022.
¶13 After initially refusing DCS’s request that he participate in a
psychological evaluation, Father completed such an evaluation with Dr.
Stephanie Leonard in February 2021. During his interview, Father reported
that “he was mentally, emotionally, and physically abused” as a child and
that he “moved out of his parents’ home” when he was eleven years old,
thereafter living “off and on” with his grandparents. Like Mother, Father
reported no healthy support system, identifying his “current social
support” as “[m]yself.” His scores on psychological tests were consistent
with those of people who are “distrustful” and “self-centered,” and who
“tend to be uninsightful.”
¶14 Dr. Leonard diagnosed Father with a personality disorder
and attention-deficit/hyperactivity disorder (“ADHD”), opining that his
“symptoms can impact his ability to adequately parent a child.” The doctor
noted Father is “self-preoccupied” and exhibits the “strong need for
attention and affection” that is characteristic of “self-centered” parents who
“often place” their own needs “above the needs of their children.” Dr.
Leonard also observed that Father has a “paranoid predisposition” which
“keeps him rigid and inflexible to meet the needs of his child and learn new
information that can help him increase his parenting skills.” She
recommended that Father engage in individual therapy with a doctoral-
level counselor and suggested that Father may benefit from counseling on
“the cycle of abuse” and “how domestic violence affects children.” Dr.
Leonard warned that “[t]he prognosis that [Father] can provide minimally
adequate parenting skills in the foreseeable future is dependent on [the]
success of proposed interventions,” noting that “successful results may take
several months.” If Father “engage[d] in therapy consistently,” however,
Dr. Leonard opined that the prognosis for his ability to parent a child
effectively “may increase” from “poor” to “adequate.”
¶15 The record indicates that by the end of 2021, Father enrolled
in individual counseling, but not with a doctoral-level therapist, and had
only completed “approximately 4 sessions.” His therapist indicated they
had not addressed themes of domestic violence and Father had failed to
provide documentation showing he had engaged in other domestic
violence treatment. By March 2022, DCS records indicated that Father no
longer had “an open chart” with the service that provided him individual
therapy.
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Decision of the Court
¶16 DCS’s motion to terminate Mother’s and Father’s parental
rights proceeded to a six-day trial in 2022.
¶17 Dr. Isbell testified at trial that Mother’s “turbulent
background” and “ongoing trauma symptomology” necessitate
“meaningful treatment” before she could “parent in a healthy manner.” He
further testified that Mother had not yet engaged in sufficient therapy to
warrant changing his prognosis of her future parenting ability as
“guarded.”
¶18 Dr. Thal similarly testified that Mother’s “unstable moods,
emotions, [and] impulsive behavior” would impair her “ability to safety
and competently care for a child,” describing “[h]er ability to meet a
minimally adequate [parenting] standard” as “very uncertain.” Dr. Thal
explained that after completing his evaluation, he considered Mother’s
prognosis “pretty bleak unless she could turn things around.” The
information available to him, he went on, indicated that Mother has not
been “consistently involved in services” to the extent necessary to warrant
modifying Mother’s unfavorable prognosis.
¶19 Rob Petsche, a licensed professional counselor, testified that
he began counseling Mother in November 2021 and was still treating her at
the time of trial. Mr. Petsche expressed a positive view of Mother’s progress
and ability to parent, asserting that her confidence, assertiveness,
responsibility, and ability to take ownership of her actions had improved.
Mr. Petsche testified that he believed Mother had developed adequate
coping skills to parent C.M. effectively, that he did not believe Mother’s
mental health would bar her from parenting C.M., and that he believed
Mother could complete DCS’s services if given more time to do so.
¶20 In their testimony at trial, both parents acknowledged that
they did not consistently engage in services that DCS offered. Mother, for
example, admitted that she did not successfully complete parent aide
services, while Father admitted that he was closed out of counseling
services for lack of engagement.
¶21 After the trial, the juvenile court determined that the State had
proven grounds for termination under A.R.S. §§ 8-533(B)(3) (mental
illness/deficiency) and -533(B)(8)(c) (fifteen months’ out-of-home
placement). As to the former, the court found that neither parent had
engaged in services offered by DCS to the extent necessary to address their
“significant cognitive impairments and serious and significant mental
health issues.” The court further found that termination would be in C.M.’s
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Decision of the Court
best interests, and so terminated the parental rights of both Mother and
Father. Both parents appeal. We have jurisdiction. See A.R.S. §§ 8-235(A),
12-120.21(A), -2101(A)(1).
DISCUSSION
¶22 Parents’ right to the custody and control of their children,
while fundamental, is not absolute. Michael J. v. Ariz. Dep’t of Econ. Sec., 196
Ariz. 246, 248, ¶¶ 11-12 (2000). Termination of parental rights may be
warranted where the moving party proves, by clear and convincing
evidence, one of the statutory grounds set forth in A.R.S. § 8-533(B). Id. at
249, ¶ 12. Evidence is “clear and convincing” if it is “highly probable or
reasonably certain.” Kent K. v. Bobby M., 210 Ariz. 279, 284-85, ¶ 25 (2005)
(citation omitted).
¶23 “We review an order terminating a parent’s relationship with
his or her child . . . in the light most favorable to sustaining the superior
court’s ruling.” Calvin B. v. Brittany B., 232 Ariz. 292, 296, ¶ 17 (App. 2013).
We “will accept the juvenile court’s findings of fact unless no reasonable
evidence supports those findings, and we will affirm a severance order
unless it is clearly erroneous.” Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz.
278, 280, ¶ 4 (App. 2002). This Court does not reweigh the evidence on
review but “look[s] only to determine if there is evidence to sustain the
court’s ruling.” Mary Lou C. v. Ariz. Dep’t of Econ. Sec., 207 Ariz. 43, 47, ¶ 8
(App. 2004).
¶24 The juvenile court may find grounds for termination of a
parent-child relationship if there is clear and convincing evidence that “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).
¶25 Mother does not dispute the juvenile court’s findings about
the severity of her mental health issues and the negative impact those issues
have on her ability to safely parent a child. She nonetheless contends that
no reasonable evidence supports the court’s “forward-looking finding” that
her condition would continue for a prolonged, indeterminate period.
¶26 Reasonable evidence supports the juvenile court’s conclusion
that DCS proved by clear and convincing evidence that Mother’s mental
infirmities would continue for a prolonged, indeterminate period. Both
psychologists, who independently evaluated Mother a year apart,
expressed significant concerns about Mother’s ability to parent. Each gave
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Decision of the Court
an unfavorable prognosis for Mother’s ability to parent C.M. safely in the
foreseeable future. Both psychologists recommended Mother engage in
individual therapy. As the court found, Mother did not begin the
recommended doctoral-level counseling until February 2022 and attended
only four sessions before she stopped attending the following month. At
the time of trial, Mother had not attended a counseling session in over two
months. Both Dr. Isbell and Dr. Thal testified that they did not believe
Mother had engaged in enough therapy to address her mental infirmities.
A reasonable factfinder could conclude from this testimony that Mother’s
impaired ability to safely parent would continue for a prolonged and
indeterminate period.
¶27 Mother argues that the juvenile court gave too much weight
to the testimony of Dr. Isbell and Dr. Thal and not enough to Mr. Petsche’s.
Noting that the psychologists “only met with [her] once and had no
ongoing treating relationship with her,” Mother insists that their testimony
could not “constitute a reasonable basis for the required clear and
convincing findings.” This is especially so, Mother argues, when
contrasting the psychologists’ testimony with Mr. Petsche’s “boots-on-the-
ground perspective and testimony that Mother had progressed sufficiently
to adequately parent, and her real-life success in overcoming substance
abuse and housing/employment instability.”
¶28 This Court will not reweigh the evidence or redetermine the
credibility of witnesses, see Mary Lou C., 207 Ariz. at 47, ¶ 8, “even when
sharply disputed facts exist,” Alma S. v. Dep’t of Child Safety, 245 Ariz. 146,
151, ¶ 18 (2018) (cleaned up). Here, the juvenile court expressly found the
testimony of Dr. Isbell and Dr. Thal more persuasive than that of Mr.
Petsche, and we will not disturb that finding.
¶29 Referring to Dr. Thal’s statement at trial that “[h]er ability to
meet a minimally adequate [parenting] standard . . . is very uncertain,”
Mother contends that Dr. Thal’s testimony was too equivocal to constitute
clear and convincing evidence. On the contrary, she asserts, Dr. Thal’s
characterization of her ability to parent in the future as “very uncertain”
establishes “that even Dr. Thal wasn’t convinced” Mother could not meet her
parental duties in the near future.
¶30 A reasonable factfinder could interpret Dr. Thal’s description
of Mother’s ability to parent at a minimally adequate level as “very
uncertain” to mean it was unlikely she would be able to do so. Moreover,
Dr. Thal also testified that “unless [Mother] made major headway, the
probability was she was not going to be able to parent her child competently
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Decision of the Court
safely, adequately within the statutory time limits” and that “it doesn’t
sound like those things have happened or improved.” Dr. Isbell similarly
determined that Mother is “incapable of safely and effectively parenting a
child” due to her unstable moods, emotions, and behaviors, and that her
“marginal” prognosis was unlikely to improve in light of her past inability
to “establish[] and maintain[] emotional stability.” Viewed as a whole, a
reasonable factfinder could conclude from this evidence that DCS had met
its burden of showing, by clear and convincing evidence, that reasonable
grounds exist to believe Mother’s condition would continue for a
prolonged, indeterminate period. See Kent K., 210 Ariz. at 284-85, ¶ 25.
¶31 The evidence in the record is more than sufficient to support
the juvenile court’s conclusion that DCS met its evidentiary burden to
establish grounds for termination of Mother’s parental rights under A.R.S.
§ 8-533(B)(3).
¶32 Noting that his parental rights were terminated on grounds
different from the suspected drug use alleged in the initial dependency
petition, Father complains that DCS unfairly “mov[ed] the goal posts . . .
midway through [the] case.”
¶33 Father’s suggestion that DCS cannot allege grounds for
termination other than those alleged in the initial petition finds support in
neither logic nor the law. During the course of a dependency case, DCS may
(and often does) learn of additional grounds for termination that were not
apparent, and may not have even existed, at the outset of the dependency
case. See Maricopa Cnty. Juv. Action No. JS-501904, 180 Ariz. 348, 355 (App.
1994) (rejecting parent’s contention that superior court “violated her due
process rights by terminating her parental rights based on a ground that
did not exist when the petition was filed”). To hold that termination cannot
be based on grounds different from those alleged at the outset would, in
effect, impermissibly require DCS and the court to ignore relevant evidence
simply because it did not come to light until after the dependency began.
See Alma S., 245 Ariz. at 148, ¶ 1 (holding that “courts must consider the
totality of the circumstances existing at the time of the severance
determination”).
¶34 “[T]he ultimate focus of [appellate] inquiry” in termination
cases is “on the fundamental fairness of the proceeding whose result is
being challenged.” John M. v. Ariz. Dep’t of Econ. Sec., 217 Ariz. 320, 324, ¶ 14
(App. 2007) (cleaned up). When a new ground for termination is alleged
during the pendency of a dependency case, fundamental fairness will be
found as long as the parent is given “adequate notice” of, and “an
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opportunity to defend against,” the new allegations. JS-501904, 180 Ariz. at
355. Here, DCS alleged A.R.S. § 8-533(B)(3) as a ground for termination over
six months before the termination hearing. Father had ample opportunity
to prepare to defend against this ground, and he does not contend
otherwise. We reject Father’s suggestion that the juvenile court violated his
due process right to fundamental fairness by terminating his parental rights
on grounds not alleged in the initial dependency petition.
¶35 Father also argues that the juvenile court lacked reasonable
evidence to terminate his parental rights on grounds of mental
illness/deficiency. He does not dispute the court’s findings that DCS
“offered [Father] a variety of services” to “help address, directly or
indirectly, the issues that led to” C.M.’s removal, and that Father “failed to
engage in services in a meaningful or extended period.” Father nonetheless
argues that, though he “may not have participated in all services DCS
requested of him,” “he clearly . . . made progress in developing parenting
skills.”
¶36 Whatever progress Father may have made in developing his
parenting skills does not, by itself, preclude termination on the mental
illness/deficiency ground. In her evaluation, Dr. Leonard explained that
Father’s prognosis to be able to safely parent C.M. “is dependent on [the]
success of the proposed interventions,” and that “successful results may
take several months.” Dr. Leonard recommended that Father engage
consistently in therapy at a doctoral level, attend domestic violence groups,
and receive psychiatric services. At trial, Dr. Leonard testified that if Father
failed to participate in these services, Father’s prognosis for being able to
parent C.M. safely in the near future “would be poor.”
¶37 Father engaged in counseling, but not with a doctoral-level
therapist, and only completed “approximately 4 sessions.” Father never
engaged in any recommended domestic violence counseling or treatment
and never submitted proof of completion of a psychiatric evaluation to
DCS. A reasonable factfinder could conclude that Father’s failure to engage
meaningfully in Dr. Leonard’s recommended services made it highly
probable that his mental infirmities would continue for a prolonged,
indeterminate period. See Kent K., 210 Ariz. at 284-85, ¶ 25.
¶38 Father next challenges the juvenile court’s finding that DCS
“made the necessary diligent efforts required by law.” “[T]he State, in
mental-illness-based severances, . . . [must] demonstrate that it has made a
reasonable effort to preserve the family.” Mary Ellen C. v. Ariz. Dep’t of Econ.
Sec., 193 Ariz. 185, 192, ¶ 33 (App. 1999). DCS need not provide “every
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Decision of the Court
conceivable service,” but it “must provide a parent with the time and
opportunity to participate in programs designed to improve the parent’s
ability to care for the child.” Id. at 192, ¶ 37 (citation omitted).
¶39 Father does not dispute that DCS provided him with, or
otherwise referred him to, parent aide services, a psychological evaluation,
domestic violence treatment, a psychiatric evaluation, supervised visits,
and individual counseling. He complains, however, that DCS made “no
‘concerted effort’ to help with housing needs.” Noting that the DCS case
manager testified at trial that housing was a “significant barrier to
reunification” with C.M., Father contends that DCS failed to provide
adequate “assistance and support” to “alleviate[] the housing concern,”
specifically citing a $1,800 housing stipend that DCS could have pursued
for him.
¶40 Father was assigned a parent social worker who “assist[ed]
him with obtaining housing.” The case manager testified at trial that she
recommended services Father could reach out to for housing assistance,
and even offered to make calls on his behalf, but Father declined her offer
of help. From this evidence, a reasonable factfinder could conclude that
DCS proved, by clear and convincing evidence, that it made reasonable
efforts to provide housing assistance to help preserve the family. See Mary
Ellen C., 193 Ariz. at 192, ¶ 33.
¶41 Because clear and convincing evidence supports the
termination of both Mother’s and Father’s parental rights under the A.R.S.
§ 8-533(B)(3) mental illness/deficiency ground, we need not evaluate
whether reasonable evidence supported the court’s determination that DCS
also established grounds for termination under A.R.S. § 8-533(B)(8)(c). See
Jesus M., 203 Ariz. at 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.”).
¶42 To terminate a parent’s rights, the court must not only find a
statutory ground for termination, but it must also determine that
termination is in a child’s best interests. A.R.S. § 8-533(B); Michael J., 196
Ariz. at 249, ¶ 12. Here, the court found that termination is in C.M.’s best
interests because she is currently “thriving” in the “loving and nurturing
home environment” of a kinship placement with a maternal relative who
wants to adopt her, thereby providing her with permanency and stability.
The court also found that denying termination “would be detrimental” to
C.M. because Mother and Father “have failed to adequately address their
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extensive mental health issues and cognitive limitations.” Neither party
challenges the court’s “best interests” determination on appeal. We
therefore accept it and need not address it further.
CONCLUSION
¶43 We affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
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