Ashley H. v. Dcs ( 2015 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
ASHLEY H., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, A.L., R.H., Appellees.
No. 1 CA-JV 15-0204
FILED 12-15-2015
Appeal from the Superior Court in Mohave County
No. S8015JD201400084
The Honorable Richard Weiss, Judge
AFFIRMED
COUNSEL
Erika A. Arlington, Esq., PC, Flagstaff
By Erika A. Arlington
Counsel for Appellant
Arizona Attorney General’s Office, Tucson
By Laura J. Huff
Counsel for Appellee Department of Child Safety
ASHLEY H. v. DCS
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Donn Kessler delivered the decision of the Court, in which
Judge Andrew W. Gould and Judge Patricia K. Norris joined.
K E S S L E R, Judge:
¶1 Ashley H. (“Mother”) appeals the juvenile court’s order
adjudicating her children dependent. For the following reasons, we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 Mother is the biological parent of AL and RH. AL was born
prematurely in July 2012 in Nebraska, and required regular breathing
treatments. The hospital found Mother’s lack of interest and attentiveness
to be a concern, and set up home health services to follow after AL’s
discharge. Although the in-home nurse’s appointment at the home was
scheduled for 9:00 in the morning, Mother did not come out until 9:50, and
other household members reported that Mother was hungover. The nurse
reported that “the house was covered with beer bottles and full of ashtrays
and cigarette butts.” AL had been fed; however, she had not received her
morning nebulizer treatment and was wheezing. Mother took AL and
moved to Kingman, Arizona while the case in Nebraska was still open and
pending.
¶3 Medical providers explained to Mother their concern
regarding her ability to carry a child to full term. Despite her known
potential for premature birth, pregnancy complications, and AL’s health
issues, Mother smoked a pack of cigarettes a day throughout her pregnancy
with RH. Mother testified that she was directed not to quit smoking cold
turkey as it could lead to a miscarriage, and she only smoked a half a pack
a week. As anticipated, Mother began having difficulties with her
pregnancy, and she left AL with her parents (the “Grandparents”)
beginning in May 2014. Mother failed to provide the Grandparents with
financial support or legal authority to meet AL’s needs.
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ASHLEY H. v. DCS
Decision of the Court
¶4 RH was born significantly premature at twenty-six weeks
gestation in June 2014. Because of severe health issues,1 RH had to be
transported to St. Joseph’s Hospital in Phoenix. Mother stayed at the
Ronald McDonald House near the hospital but was evicted when a staff
member found drugs and drug paraphernalia in her room.2 At first,
Mother claimed the drugs belonged to a friend, but later claimed the
substance was her blood clot medication. Mother participated in a drug
test which came back negative.
¶5 The hospital reported concerns that Mother did not
acknowledge or understand the severity of RH’s condition, did not engage
in training for his care, and visited infrequently. When she was present,
Mother often talked or texted on her cell phone instead of interacting with
RH; and despite instructions to the contrary, when Mother did interact with
RH, failed to wash and sanitize her hands after handing her phone. This
behavior was consistent with the concerns reported by the hospital in
Nebraska when AL was born.
¶6 In September 2014, DCS took temporary custody of AL and
placed her with the Grandparents, with whom she had already been
residing. Soon after, DCS filed a dependency petition alleging Mother was
neglecting AL due to an inability or unwillingness to parent, demonstrated
by leaving AL with relatives for months at a time without support or
providing the caregivers with the ability to meet AL’s needs. DCS further
claimed that Mother was unable to provide AL with necessities of life due
to a lack of employment and housing, and was neglecting AL due to
substance abuse.
1 RH was diagnosed with numerous health issues including anemia,
chronic lung disease, feeding problems, hydrocephalus, hydronephrosis,
hyperbilirubinemia, intraventricular hemorrhaging, persistent pulmonary
hypertension, and respiratory distress syndrome. At the time of the
dependency hearing, RH had a shunt for brain bleeds, suspected cerebral
palsy, a significant ongoing seizure disorder, and major gastrointestinal
issues that required a continuous feeding port. Doctors further believed he
would likely have Robinow syndrome and dwarfism, and his last major
seizure had possibly left him blind.
2 The manager at the Ronald McDonald House found a mirror with a
crushed up white substance and rolled up dollar bill in her room. The
identity of the drug is unknown as tests were never performed on the
substance.
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ASHLEY H. v. DCS
Decision of the Court
¶7 DCS created a case plan and identified several reunification
services to be offered to Mother including substance abuse assessment,
urinalysis testing, parent aide services, a psychological evaluation, a
psychiatric evaluation, counseling services, and parenting classes. Mother
refused to participate in substance abuse treatment or parenting classes,
and she declined DCS’s offer to help her with transportation to visit RH at
the hospital. Furthermore, although Mother had unlimited evening access
to AL and scheduled visitation on Saturdays, she spent approximately an
hour a week with her. Mother claimed her visitation was limited due to her
job with Walmart, which she later quit after problems arose stemming from
taking time off.
¶8 RH was released from the hospital in September 2014.
Because RH was a high-needs baby, he required stable housing free from
bacteria and germs3 and a caregiver trained to monitor his oxygen, feeding
tube, and shunt. Because of concerns regarding Mother’s ability to care for
RH, DCS took temporary custody of RH and placed him with a licensed
foster family trained to care for medically fragile children. Consequently,
DCS filed a supplemental dependency petition alleging RH was dependent
based on Mother’s inability to provide basic necessities including housing
or financial support, as well as neglect based on her failure to learn to care
for RH’s medical needs.
¶9 In December 2014, Mother participated in a psychological
evaluation with Dr. Mark Harvancik. Dr. Harvancik diagnosed Mother
with an anxiety disorder, not otherwise specified; a mood disorder, not
otherwise specified; narcissism; antisocial traits; a high addiction potential;
and an indication of intermittent explosive disorder. He opined that these
diagnoses would pose significant impediments to parenting, causing
problems in attending to daily and basic needs for both herself and her
children: “Untreated anxiety symptoms, mood instability, and anger/rage
problems, along with intra- and interpersonal difficulties dating back to
family of origin experiences, reflected factors and patterns that have
impacted and could continue to interfere with [Mother’s] ability to provide
adequate parenting.” He further opined that without treatment, Mother’s
conditions would likely continue for a prolonged, indeterminate period of
time, and recommended that Mother “participate in intensive individual
therapy to address the above symptoms, patterns and likely unresolved
issues, and the associated ramifications for her role as a parent.” He further
3RH could not be taken out in public due to respiratory concerns and the
possibility of catching a cold, flu, or respiratory syncytial virus, any of
which could be life threatening to him.
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ASHLEY H. v. DCS
Decision of the Court
noted that to care for and meet the needs of her children, she would need
to find safe, suitable housing, demonstrate appropriate parenting skills, and
demonstrate an understanding of RH’s special needs.
¶10 After a two-day trial, the juvenile court found the children to
be dependent based on neglect due to an inability, unwillingness, or refusal
to parent or provide necessities of life. Mother timely appealed. We have
jurisdiction pursuant to Arizona Revised Statutes (“A.R.S.”) sections 8-
235(A) (2014), 12-120.21(A)(1) (2003), and 12-2101(A)(1) (Supp. 2015).
DISCUSSION
¶11 Mother argues there was insufficient evidence to find either
child dependent. “On review of an adjudication of dependency, we view
the evidence in the light most favorable to sustaining the juvenile court’s
findings. We generally will not disturb a dependency adjudication unless
no reasonable evidence supports it.” Willie G. v. Ariz. Dep’t of Econ. Sec., 211
Ariz. 231, 235, ¶ 21 (App. 2005); see also In re Maricopa Cty. Juv. Action No. J-
75482, 111 Ariz. 588, 591 (1975) (“Generally, the decision of the trial court as
to the weight and effect of evidence will not be disturbed unless it is clearly
erroneous. All reasonable inferences must be taken in favor of supporting
the findings of the trial court, and if there is any evidence to support the
judgment, it must be affirmed.” (citation omitted)).
¶12 “A parent has a constitutional right to raise his or her child
without governmental intervention. The government may not interfere
with that fundamental right unless a court finds that: (1) the parent is
unable to parent the child for any reason defined by statute; and (2) the
parent has been afforded due process.” Carolina H. v. Ariz. Dep’t of Econ.
Sec., 232 Ariz. 569, 571, ¶ 6 (App. 2013). For a child to be found dependent,
DCS must prove one of the grounds found in A.R.S. § 8-201(14)(a) (Supp.
2015) by a preponderance of the evidence, including, for example, that the
child’s home is unfit by reason of neglect or that the child is not provided
with the necessities of life. A.R.S. §§ 8-201(14)(a)(ii)-(iii), -844(C)(1) (2014).
Neglect includes “[t]he inability or unwillingness of a parent . . . to provide
that child with supervision, food, clothing, shelter or medical care if that
inability or unwillingness causes unreasonable risk of harm to the child’s
health or welfare . . . .” A.R.S. § 8-201(24)(a). Because “[t]he primary
consideration in a dependency case is always the best interest of the child .
. . the juvenile court is vested ‘with a great deal of discretion.’” Ariz. Dep’t
of Econ. Sec. v. Superior Court, 178 Ariz. 236, 239 (App. 1994) (internal citation
omitted) (quoting Cochise Cty. Juv. Action No. 5666-J, 133 Ariz. 157, 160-61
(1982)).
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Decision of the Court
¶13 After reviewing the record, we find sufficient evidence to
support the juvenile court’s dependency determination, including its
finding that Mother was unable to provide the children with the basic
necessities of life. First, there is evidence to support the finding that Mother
had been unable to provide the children with stable housing. DCS case
investigators testified that Mother reported being kicked out of the house
she was living in the week before trial, she was directed to a local shelter,
and her current living situation was unknown. Although Mother testified
at trial that she had found and was currently living with three roommates
in a home suitable for the children, she also testified that she was waiting
for a referral for long-term housing, and she had not reported her current
residence to DCS because it was only “temporary.” There was also
testimony that, because of his condition, RH needed clean housing with
limited individuals in the home, and that Mother did not seem to
understand the steps she would need to take to provide him housing that
would not be detrimental to his health. In addition to unstable housing,
Mother was also unemployed, and a case manager testified that Mother had
been unable to provide for AL on even a partial basis.
¶14 There is also evidence in the record to support a finding that
Mother had neglected the children. Mother left AL with the Grandparents
beginning in May 2014, and failed to provide them with financial support
or legal authority to meet AL’s needs. Prior to DCS’s involvement, the
Grandparents lacked a power of attorney and were unable to take AL to the
doctor to obtain the services she needed, including immunizations.
Mother testified that she had an incomplete power of attorney at her house,
and had filled out HIPAA paperwork with AL’s doctor stating that
Mother’s sister-in-law and stepmother had permission to take AL to
appointments. This paperwork, however, was not provided to the juvenile
court. In addition, although Mother was offered visitation, she participated
sporadically and canceled or rescheduled fifty to seventy-five percent of the
visits.
¶15 Although as discussed, RH was born with numerous medical
conditions, see supra ¶ 4 n.1, during his initial hospitalization, Mother did
not appear to acknowledge or understand the severity of RH’s condition,
did not engage in training for his care, and visited infrequently. When she
was present, Mother often talked or texted on her cell phone instead of
interacting with RH; and despite instructions to the contrary, when Mother
did interact with RH, failed to wash and sanitize her hands after handing
her phone. Furthermore, although Mother argues she was not provided
necessary services for his care, DCS testified that the hospital staff provides
training for high-needs children prior to releasing them to their parents,
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ASHLEY H. v. DCS
Decision of the Court
DCS was not solely responsible for educating Mother as to RH’s condition,
Mother was responsible in part for educating herself, and Mother could
have received further instructions at RH’s doctor’s appointments. Finally,
DCS also testified that Mother did not display the initiative they had hoped
for, she did not understand the significance of RH’s illnesses, and she failed
to follow-up on the training offered by the hospital. Based on this record,
we cannot say the trial court erred in adjudicating the children dependent.
CONCLUSION
¶16 For the foregoing reasons, we affirm the juvenile court’s order
adjudicating the children dependent.
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