Leticia A. v. Dcs, R.G. ( 2017 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
LETICIA A.,
Appellant,
v.
DEPARTMENT OF CHILD SAFETY, R.G.,
Appellees.
No. 1 CA-JV 17-0240
FILED 12-26-2017
Appeal from the Superior Court in Maricopa County
No. JD530303
The Honorable Timothy J. Ryan, Judge
AFFIRMED
COUNSEL
Vierling Law Offices, Phoenix
By Thomas A. Vierling
Counsel for Appellant
Arizona Attorney General’s Office, Mesa
By Nicholas Chapman-Hushek
Counsel for Appellee DCS
LETICIA A. v. DCS, R.G.
Decision of the Court
MEMORANDUM DECISION
Chief Judge Samuel A. Thumma delivered the decision of the Court, in
which Presiding Judge Michael J. Brown and Judge Jennifer B. Campbell
joined.
T H U M M A, Chief Judge:
¶1 Mother Leticia A. appeals the superior court’s order finding
R.G. dependent as to her. Because Mother has shown no reversible error,
the order is affirmed.
FACTS1 AND PROCEDURAL HISTORY
¶2 Leticia A. is the mother of R.G., born in May 2010. In the first
part of 2016, the Department of Child Safety (DCS) learned Mother had
been diagnosed with behavioral health disorders and had neglected and
lost contact with three of her other children. In September 2016, DCS took
R.G. into care. In the dependency petition, DCS alleged R.G.’s father (who
is not a party here) had sole custody of R.G. pursuant to family court orders
but that he was unable to parent due to substance abuse and neglect, citing
“arrest” as the reason for taking R.G. into custody. By the time of the filing
of the petition, however, father apparently was not in custody, as R.G.
remained in his care.
¶3 DCS alleged Mother
is unable to parent due to mental health issues.
Mother reported that she suffers from PTSD
[Post Traumatic Stress Disorder] and is seeing a
psychiatrist. There are concerns that Mother has
other mental health issues that are not being
addressed. Because of Mother[‘s] mental health
issues, the Family Court has given Father sole
1This court views the evidence in a light most favorable to sustaining the
superior court’s findings. See Manuel M. v. Ariz. Dep’t of Econ. Sec., 218 Ariz.
205, 207 ¶ 2 (App. 2008).
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LETICIA A. v. DCS, R.G.
Decision of the Court
legal and physical custody of the child. Mother
has limited parenting time with the child.
¶4 R.G. was found dependent as to father in mid-October 2016,
and the court adopted a case plan of remain with family, placing R.G. in
father’s care. Mother contested the dependency. In November 2016, after an
unsuccessful mediation, the court set a March 2017 adjudication hearing.
At a February 2017 hearing, the parties discussed possible dismissal, with
the court denying “any motions to dismiss at this time.” At that same
hearing, the court vacated the March 2017 trial.
¶5 In a memorandum filed later in February 2017, DCS stated it
no longer wished to dismiss the dependency, noting father “has since been
determined to be an inappropriate caregiver” and “DCS does not agree
with Mother’s assertions that she is capable of parenting” R.G. The court
then took physical custody, removing R.G. from father’s care, and set a May
2017 trial for the dependency allegations as to Mother.
¶6 The trial evidence showed that the assigned DCS case worker
had concerns about Mother’s untreated mental health issues, which could
cause lack of insight and awareness, and unpredictable and irrational
behavior. In November 2016, Mother participated in a psychological
evaluation, with the psychologist diagnosing Mother with PTSD;
generalized anxiety disorder; attention deficit/hyperactivity disorder; a
history of physical partner abuse and related issues. The psychologist
concluded Mother’s prognosis of being a minimally adequate parent was
poor, unless these issues were treated. The recommendation was that
Mother engage in individual therapy and Dialectical Behavioral Therapy
(DBT), complete a bonding assessment and a psychiatric evaluation, noting
that if Mother did not “complete [these] services, that prognosis would not
budge.”
¶7 Although DCS set up a psychiatric evaluation for Mother in
March 2017, she failed to participate. Mother said she had a psychiatric
evaluation completed in December 2016, but provided no documentation
(although she was taking medications, inferring such an evaluation had
occurred). In the first part of 2017, DCS set up DBT counseling for Mother,
but she “wanted to wait until the pretrial conference, and after speaking
with her attorney” before participating; Mother later scheduled her first
DBT counseling session for the day after trial.
¶8 Mother attended domestic violence counseling, behavioral
health services and has her medication monitored at Valle del Sol
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LETICIA A. v. DCS, R.G.
Decision of the Court
approximately every three weeks. Mother completed some services and
generally had good interactions with R.G. But along with failing to
participate in the psychiatric evaluation and pre-trial DBT counseling,
Mother was inconsistent in taking medication. Mother did not provide DCS
records regarding her employment or a residential lease. Moreover, the
evidence reflected issues with R.G.’s behavioral health and conduct.
¶9 At trial, Mother, the DCS case worker and the psychologist
testified and the court received various exhibits. After the close of evidence
and arguments of counsel (including R.G.’s guardian ad litem, who agreed
with the dependency), the superior court found R.G. dependent as to
Mother based on neglect, including neglect related to untreated and
unresolved issues of mental health, and adopted a family reunification case
plan. The court commended Mother for working services and her desire to
participate in DBT counseling, adding that the court “really want[s] you to
be successfully reunified with your son.”
¶10 This court has jurisdiction over Mother’s timely appeal
pursuant to Article 6, Section 9, of the Arizona Constitution, Arizona
Revised Statutes (A.R.S.) sections 8-235(A), 12-2101(A) and 12-120.21(A)
and Arizona Rules of Procedure for the Juvenile Court 103 and 104 (2017).2
DISCUSSION
¶11 As applicable here, a dependent child is a child whose home
is unfit by reason of neglect by a parent, see A.R.S. § 8–201(15)(a)(iii),
focusing on the circumstances at the time of the dependency trial, Shella H.
v. Dep’t of Child Safety, 239 Ariz. 47, 50 ¶ 12 (App. 2016). This court reviews
the superior court’s dependency finding for an abuse of discretion. In re
Pima Cnty. Dependency Action No. 93511, 154 Ariz. 543, 546 (App. 1987).
“[T]his court will not substitute its judgment for that of the [superior] court
unless no reasonable evidence exists to support the [superior] court’s
2 Absent material revisions after the relevant dates, statutes cited refer to
the current version unless otherwise indicated. In August 2017, the superior
court granted DCS’ motion to dismiss the dependency, issuing temporary
family court orders placing R.G. with father. Given that dismissal nearly
four months ago, this court suggested this appeal may be moot; both parties
disagreed, however, including noting possible collateral consequences. See
also A.R.S. § 8-804(A). Accordingly, this court vacates the stay of this appeal
previously ordered and resolves the appeal on the merits.
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LETICIA A. v. DCS, R.G.
Decision of the Court
finding.” Maricopa Cnty. Juv. Action No. JD–500200, 163 Ariz. 457, 461 (App.
1989) (citation omitted).
¶12 Mother argues there was “insufficient evidence to support the
court’s order of dependency.” Although DCS raised “concerns” regarding
her mental health, Mother contends the evidence showed she could parent
R.G. To the extent that Mother suggests some of the trial evidence was in
conflict, she is correct. Resolving that conflict, however, is for the superior
court at trial, not this court on appeal. See Jesus M. v. Ariz. Dep’t of Econ. Sec.,
203 Ariz. 278, 282 ¶ 12 (App. 2002) (citing cases).
¶13 Viewed in a light most favorable to sustaining the
dependency finding, the evidence allowed the superior court to conclude
that there were significant concerns about Mother’s untreated mental
health issues, unpredictable and irrational behavior and lack of insight. The
November 2016 psychological evaluation diagnosed Mother with a variety
of significant behavioral health issues, with a poor prognosis unless treated.
Mother was not regularly attending appointments and medication checks
at Valle del Sol. Moreover, Mother had not completed a psychiatric
evaluation or provided documentation of such a recent evaluation and had
not participated in DBT counseling. By scheduling her first DBT counseling
for the day after trial, the court could conclude Mother recognized the need
for such services but had not yet begun participating in those services. Both
DCS and the guardian ad litem argued that the time to consider R.G.
returning to Mother is “once the services are completed, not when they’re
just about to begin.” The court agreed, noting it needed “a psychiatric
evaluation with a full history by a psychiatrist, which is different than a
primary care provider giving psychiatric medications.” Moreover, by the
time of trial, Mother had not been R.G.’s primary caregiver for a substantial
period of time, as evidenced by the family court’s orders that predated the
dependency.
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LETICIA A. v. DCS, R.G.
Decision of the Court
¶14 There is no doubt that the trial evidence was in conflict and
was not overwhelming. But DCS was not required to prove dependency by
undisputed or overwhelming evidence. Rather, DCS was required to prove,
by a preponderance of the evidence, that R.G. was dependent as to Mother.
On the record provided, Mother has failed to show the superior court
abused its discretion in finding that R.G. was dependent as to Mother.3
CONCLUSION
¶15 The order finding R.G. dependent as to Mother is affirmed.
AMY M. WOOD • Clerk of the Court
FILED: AA
3 Mother also asserts that her trial counsel was constitutionally deficient.
The case she relies upon, however, did “not determine whether Arizona
recognizes ineffective assistance of counsel as a separate ground for relief”
for an order terminating parental rights. John M. v. Ariz. Dep’t of Econ. Sec.,
217 Ariz. 320, 325 ¶ 17 (App. 2007). Moreover, Mother bases her assertion
on the thought that her trial attorney should have called witnesses listed in
her disclosure statements to address Mother’s participation in services.
Mother, however, has not shown how such testimony would differ from
exhibits her attorney offered that were received in evidence. Nor has
Mother offered any record support for her argument that these witnesses
would have testified she was “successfully participating” in the services
listed, given the disclosures do not include such statements.
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