Jason v. v. Dcs, J.V. ( 2017 )


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  •                       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    UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
    JASON V., Appellant,
    v.
    DEPARTMENT OF CHILD SAFETY, J.V., Appellees.
    No. 1 CA-JV 16-0499
    FILED 6-22-2017
    Appeal from the Superior Court in Mohave County
    No. B8015JD201504022
    The Honorable Rick A. Williams, Judge
    AFFIRMED
    COUNSEL
    The Stavris Law Firm PLLC, Scottsdale
    By Alison Stavris
    Counsel for Appellant
    Arizona Attorney General’s Office, Mesa
    By Ashlee N. Hoffmann
    Counsel for Appellee Department of Child Safety
    JASON V. v. DCS, J.V.
    Decision of the Court
    MEMORANDUM DECISION
    Judge Kenton D. Jones delivered the decision of the Court, in which
    Presiding Judge Margaret H. Downie and Judge Donn Kessler joined.
    J O N E S, Judge:
    ¶1            Jason V. (Father) appeals the juvenile court’s order
    terminating his parental rights to J.V. (Child), arguing the Department of
    Child Safety (DCS) failed to prove the statutory grounds for severance by
    clear and convincing evidence. For the following reasons, we affirm.
    FACTS1 AND PROCEDURAL HISTORY
    ¶2             On April 6, 2015, one-week-old Child was hospitalized with
    an extremely high bilirubin count, indicating he was not being fed properly.
    Hospital staff observed that Father and his wife, Child’s mother (Mother),
    a vulnerable adult, had to be prompted to feed Child, and learned Child
    did not have a place to sleep in their home. DCS immediately filed a
    petition alleging Child was dependent as to both parents on the grounds of
    neglect. Although Father denied the allegations of the petition, the court
    adjudicated Child dependent in July 2015 and adopted a case plan of family
    reunification.2
    ¶3             Further investigation revealed a significant domestic violence
    relationship between Father and Mother, and the two had to be separated
    during visits to prevent verbal and physical fights over who would perform
    which parenting tasks. Father explained he likes to be in control and “often
    resorts to violence as a way of controlling the situation before him.” He and
    1      We view the facts in the light most favorable to upholding the
    juvenile court’s orders. Marianne N. v. DCS, 
    240 Ariz. 470
    , 471 n.1, ¶ 1 (App.
    2016) (citing Ariz. Dep’t of Econ. Sec. v. Matthew L., 
    223 Ariz. 547
    , 549, ¶ 7
    (App. 2010)).
    2      Child was also found dependent as to Mother, and her parental
    rights were terminated in November 2016. Mother’s appeal was dismissed
    in February 2017 after her counsel avowed she could identify no non-
    frivolous issues for this Court’s review. Thus, Mother is not a party to this
    appeal.
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    JASON V. v. DCS, J.V.
    Decision of the Court
    Mother also fought during transportation to and from visits and counseling
    sessions, prompting law enforcement intervention on at least one occasion
    to ensure Mother’s safety. Father reported a long history of domestic
    violence, beginning at age twelve when he was arrested for hitting his own
    mother. He was arrested for assaulting Mother in June 2015 and eventually
    pleaded guilty to the offense.
    ¶4            Father participated in a psychological evaluation in July 2015
    with Daniel Juliano, Ph.D., who indicated Father had a “significant” mood
    problem, features of obsessive compulsive disorder, bipolar disorder,
    anxiety disorder, and personality disorder with prominent borderline
    independent features. Dr. Juliano concluded these traits, coupled with
    Father’s limited insight into the impact of his behavior on others, created a
    risk of harm to Child. He also noted the combination of medication and
    counseling had thus far “shown limited impact.” Dr. Juliano recommended
    Father participate in psychiatric medication monitoring and intense
    experiential (rather than verbal) individual therapy that would avoid
    Father’s tendency to give long and repetitive explanations for his behavior,
    parenting classes, an evaluation for vocational rehabilitation, and marriage
    counseling. Although Father was described as “highly motivated” to raise
    Child, Father’s mental health “[was] at best a work in progress” and would
    improve only through “great discipline and adherence” to the
    recommended services. Ultimately, Dr. Juliano concluded Father’s
    prognosis was poor because Father’s “patterns of behavior with respect to
    his self-defeating behavior issues, his deflection [of] responsibility, his
    authority conflicts, [and] his interpersonal discord issues” are difficult to
    treat, particularly in the context of his relationship with Mother, a
    vulnerable adult whose limitations he did not grasp and whom he insists
    on controlling.
    ¶5            Father was referred to parenting classes, domestic violence
    education, individual counseling, couples counseling, mood management,
    psychiatric evaluation, and medication management. In December 2015,
    Father’s attendance at individual counseling was described as sporadic; he
    did not engage in domestic violence education, couples counseling, a
    psychiatric evaluation, or medication management at all.
    ¶6            Although Father attended parenting classes, he did so
    inconsistently and used the time to obtain crisis services and complain
    about the dependency rather than to learn parenting skills. As a result,
    Father did not complete his assignments or learn those skills, and
    supervised visitation did not go well. Father had to be prompted to feed,
    change, interact with, and supervise Child and did not know how to soothe
    3
    JASON V. v. DCS, J.V.
    Decision of the Court
    Child, hold him appropriately, or keep him safe during visits. In addition
    to engaging Mother in disputes, Father argued with the parent aide, yelled
    and threw items during the visits, and threatened staff members. He also
    advised his counselor that he believed children were appropriately
    disciplined by “whooping them with a belt, paddle or a hand” to “put[] the
    fear of God” into them. Father reported he does not have a relationship
    with seven to ten other biological children because their mothers disagree
    with “his take on discipline.”
    ¶7            In January 2016, Father advised DCS that the family’s most
    recent home was “barely livable,” and they were facing eviction. Shortly
    thereafter, the juvenile court changed the case plan to severance and
    adoption. DCS immediately moved to terminate Father’s parental rights,
    alleging severance was warranted on the grounds of neglect, mental illness,
    and time in care.
    ¶8              Father’s participation improved following the change in case
    plan, but he did not engage in the services or learn the necessary skills.
    Father began anger management classes in December 2015 but continued
    to have difficulty controlling his behavior. He was removed from a
    “managing moods” group because he was unable to behave appropriately
    and threatened other group members. The agency DCS used to provide
    transportation for Father refused to transport him because he continually
    threatened the drivers. Additionally, Father and Mother’s domestic
    violence relationship continued; Mother presented to services with visible
    bruising on her arms, face, and neck, reporting Father had choked her, held
    her to the ground, hit her, and prevented her from calling for help. In June
    2016, Father was arrested and again charged with multiple counts of
    aggravated assault against Mother. He also threatened to harm his
    counselor if his rights were terminated. Father reported his anger issues
    interfered with his ability to obtain employment, described himself as lazy,
    and appeared content relying on Mother’s social security disability income
    to meet his needs except for an occasional “side job . . . help[ing] people to
    cleanup . . . their yard” and selling things at a swap meet.
    ¶9            Dr. Juliano completed a records review and re-evaluated
    Father in June 2016 to assess his progress with interventions, the stability of
    his relationship with Mother, and his amenability to intervention. Dr.
    Juliano noted Father had been provided all recommended services to
    address his turbulent relationship with Mother, anger management, and
    impulse control problems and had been given ample opportunity to
    participate; however, Father had “not [made] much progress.” Despite
    almost a year of intervention, Father continued to exhibit the same
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    JASON V. v. DCS, J.V.
    Decision of the Court
    characteristics of a major mood-related disorder and minimized his
    responsibility for his role in the dependency, choosing instead to blame
    others for his circumstances and lack of progress. Dr. Juliano opined these
    circumstances resulted in a “considerable risk” to Child, and, because
    Father had shown he was not amenable to services, it was likely his
    condition, and the related risk to Child, would continue for a prolonged,
    indeterminate period.
    ¶10           A two-day contested termination hearing was held in July
    and September 2016. Dr. Juliano confirmed all recommendations for
    treatment were implemented over the course of the previous year, but
    Father remained “extremely impulsive, over reactive, and has very serious
    anger management pro[ble]ms” that result in “intermittent explosive
    episodes” and panic attacks that would put Child at risk. Indeed, the DCS
    caseworker testified she had received at least ten reports of violence and
    threats of violence involving Father from parent aides, landlords, mental
    health professionals, Mother, and DCS staff during the same period those
    services were in place. She agreed Father remained in a volatile
    relationship with Mother and did not exhibit any of the behavioral changes
    necessary to ensure Child remained safe in his care. Father admitted he
    “struggle[d] with anger” but, despite having failed to complete domestic
    violence, individual, or marriage counseling, nonetheless believed he was
    able to parent effectively.
    ¶11           After taking the matter under advisement, the juvenile court
    found DCS proved by clear and convincing evidence that termination of
    Father’s parental rights was warranted because: (1) Father neglected Child,
    see Ariz. Rev. Stat. (A.R.S.) § 8-533(B)(2)3; (2) Father had substantially
    neglected or willfully refused to remedy the circumstances causing Child
    to be placed in out-of-home care for longer than nine months, see A.R.S.
    § 8-533(B)(8)(a); and (3) Father was unable to discharge parental
    responsibilities because of mental illness and there were reasonable
    grounds to believe the condition would continue for a prolonged
    indeterminate period, see A.R.S. § 8-533(B)(3). The court also found
    severance was in Child’s best interests and entered an order terminating
    Father’s parental rights. Father timely appealed. We have jurisdiction
    pursuant to A.R.S. §§ 8-235(A), 12-120.21(A)(1), -2101(A)(1), and Arizona
    Rule of Procedure for the Juvenile Court 103(A).
    3     Absent material changes from the relevant date, we cite a statute’s
    current version.
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    JASON V. v. DCS, J.V.
    Decision of the Court
    DISCUSSION
    ¶12           A parent’s rights may be terminated if it is proven by clear
    and convincing evidence that “the parent is unable to discharge parental
    responsibilities because of mental illness, . . . and there are reasonable
    grounds to believe that the condition will continue for a prolonged
    indeterminate period.” A.R.S. § 8-533(B)(3); see Ariz. R.P. Juv. Ct. 66(C). To
    sever on this ground, there must also be evidence and a finding that
    reasonable efforts were made to reunify the family, or that such efforts
    would not restore the parent’s ability to care for a child within a reasonable
    time. See Jennifer G. v. Ariz. Dep’t of Econ. Sec., 
    211 Ariz. 450
    , 453, ¶ 12 (App.
    2005) (citing Mary Ellen C. v. Ariz. Dep’t of Econ. Sec., 
    193 Ariz. 185
    , 191-92,
    ¶¶ 31-34 (App. 1999)).
    ¶13            Father does not dispute that he suffers from a serious mood
    disorder complicated by other factors, the corresponding deleterious effect
    of this condition on his ability to parent Child, the reasonableness of DCS’s
    reunification efforts, or that severance was in Child’s best interests. He
    argues only that DCS failed to prove the mental health condition would
    continue for a prolonged indeterminate period because, he asserts, he was
    proactive in seeking medication and behavior modifications that have been
    successful in regulating his moods.
    ¶14           The record does not support Father’s position. The juvenile
    court was not obligated to accept Father’s self-serving belief that
    medication and anger management techniques had been effective at
    regulating his moods. See Aranda v. Cardenas, 
    215 Ariz. 210
    , 219, ¶ 34 (App.
    2007) (noting self-serving testimony is not barred, but rather, becomes “a
    matter of credibility for the fact-finder to determine”) (citing Allstate Indem.
    Co. v. Ridgely, 
    214 Ariz. 440
    , 444, ¶ 19 (App. 2007)); cf. Sheridan v. Indus.
    Comm’n, 
    84 Ariz. 264
    , 267 (1958) (authorizing the fact-finder in a workmen’s
    compensation case to disregard the self-serving testimony of an interested
    witness if not corroborated by other credible evidence or disinterested
    testimony) (citation omitted). This is particularly true where both Dr.
    Juliano and the DCS caseworker testified Father had not stabilized and the
    evidence reflects Father experienced multiple, escalating violent episodes
    throughout the fifteen months Child was in out-of-home care. Father
    continued a domestic violence relationship with Mother, threatened nearly
    every person with whom he came in contact, and struggled to behave
    appropriately during supervised visitation, counseling activities, and
    transport to and from services. After considering the evidence, the court
    described Father as “aggressive,” noting, “[a]t times he seems barely able
    6
    JASON V. v. DCS, J.V.
    Decision of the Court
    to maintain control,” and described the parents’ lifestyle as “chaotic,
    unstable, dysfunctional, violent, and simply unsafe for a small child.”
    ¶15            We do not reweigh the evidence on appeal; as the trier of fact,
    the juvenile court “is in the best position to weigh the evidence, observe the
    parties, judge the credibility of witnesses, and resolve disputed facts.” Ariz.
    Dep’t of Econ. Sec. v. Oscar O., 
    209 Ariz. 332
    , 334, ¶ 4 (App. 2004) (citing Jesus
    M. v. Ariz. Dep’t of Econ. Sec., 
    203 Ariz. 278
    , 280, ¶ 4 (App. 2002)).
    Accordingly, we will affirm a termination order “unless there is no
    reasonable evidence to support” the court’s factual findings. Audra T. v.
    Ariz. Dep’t of Econ. Sec., 
    194 Ariz. 376
    , 377, ¶ 2 (App. 1998) (citing Maricopa
    Cty. Juv. Action No. JS-4374, 
    137 Ariz. 19
    , 21 (App. 1983), and Maricopa Cty.
    Juv. Action No. JS-378, 
    21 Ariz. App. 202
    , 204 (1974)). Here, reasonable
    evidence supports the court’s determinations that Father suffered a
    substantial mental illness that affected his ability to parent Child
    appropriately, and there were reasonable grounds to believe the condition
    would continue for a prolonged, indeterminate period. Accordingly, we
    find no error.4
    CONCLUSION
    ¶16           The order terminating Father’s parental rights to Child is
    affirmed.
    AMY M. WOOD • Clerk of the Court
    FILED: AA
    4       Because reasonable evidence supports the juvenile court’s
    conclusion that severance was warranted based upon mental illness, we
    need not address Father’s claims pertaining to other statutory grounds.
    Jesus 
    M., 203 Ariz. at 280
    , ¶ 3 (“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.”)
    (citations omitted).
    7