Jessica P. v. Dcs, H.P. ( 2020 )

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
JESSICA P., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, H.P., Appellees.
No. 1 CA-JV 19-0253
FILED 7-28-2020
Appeal from the Superior Court in Maricopa County
No. JD 530589
The Honorable Jeffrey A. Reuter, Judge
AFFIRMED
COUNSEL
Gillespie Shields Goldfarb & Taylor, Phoenix
By Kristina B. Reeves, April Maxwell
Counsel for Appellant
Arizona Attorney General’s Office, Mesa
By Lauren J. Lowe
Counsel for Appellee, Department of Child Safety
Arizona Center for Disability Law, Tucson
By Christian Carlsen, Rose A. Daly-Rooney
Counsel for Amicus Curiae, Arizona Center for Disability Law
Arizona Center for Law in the Public Interest, Phoenix
By Anne Ronan, Daniel Adelman
Counsel for Amicus Curiae, Arizona Center for Law in the Public Interest
ACLU Foundation of Arizona, Phoenix
By Victoria Lopez
Counsel for Amicus Curiae, American Civil Liberties Union of Arizona
Mills & Woods Law PLLC, Phoenix
By Thomas A. Connelly
Counsel for Amicus Curiae, the ARC, et al.
NYU School of Law Family Defense Clinic, New York, NY
By Amy Mulzer, Christine Gottlieb, Martin Guggenheim
Counsel for Amicus Curiae, the ARC, et al.
Disability & Civil Rights Clinic, Brooklyn NY
Brooklyn Law School
By Sarah Lorr
Counsel for Amicus Curiae, the ARC, et al.
OPINION
Judge Jennifer B. Campbell delivered the opinion of the Court, in which
Presiding Judge Paul J. McMurdie and Judge Kent E. Cattani joined.
C A M P B E L L, Judge:
¶1 Jessica P. (“Mother”) appeals from the juvenile court’s order
terminating her parental rights to her son, Hunter. On appeal, Mother raises
an Americans with Disabilities Act (“ADA”) claim, a facial constitutional
challenge, and a state statutory claim. She also challenges the sufficiency of
the evidence supporting the court’s order terminating her parental rights
on mental deficiency and fifteen months out-of-home placement grounds.
For the following reasons, we affirm.
BACKGROUND
¶2 Mother was 20 and living with her mother (“Grandmother”)
when Hunter was born in April 2014. Mother has an intellectual disability.
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Grandmother helped take care of Hunter, including taking him to medical
appointments. Grandmother also helped Mother, who received Social
Security disability benefits, with her finances.
¶3 In September 2016, Mesa Police were called to Banner Desert
Hospital where Mother was being treated for a possible sexual assault.
Mother tested positive for THC, opiates, and methamphetamine. She told
police she sometimes spent time with a 61 year-old man and smoked
methamphetamine with him. Hospital staff observed that Mother was
“extremely altered” and displaying “twitching type behavior.”
Grandmother reported that the man had been “grooming” Mother for the
past month after meeting him at an extended stay motel where they were
residing.
¶4 In November 2016, Mother’s grandparents feared for
Mother’s safety and called Mesa Police to report that Mother was acting
out, being combative, and “acting crazy.” Police observed that Mother
appeared to be under the influence of drugs. They transported her to the
hospital for evaluation.
¶5 In late December 2016, DCS received two reports that Mother
was neglecting Hunter. Mother and Hunter were still living with
Grandmother. The callers alleged that Mother used marijuana and
methamphetamine around the child, she had left him home alone on
multiple occasions, the home was dirty, and she had been observed giving
Hunter drinks of beer and hard liquor. The reports further alleged that
Mother spanked the child, physically fought with Grandmother and
Mother’s significant other in front of the child, and she bit her own
grandmother.
¶6 A DCS investigator went to Mother and Grandmother’s home
and observed that other than a scratch on his cheek, the child was injury-
free, and he was dressed appropriately. Aside from summarizing the two
reports to DCS discussed supra ¶¶ 4-5, the investigator reported that the
home was “free from any safety hazards.“ The investigator noted that
Grandmother reported the child had previously received services from the
Department of Developmental Disabilities (“DDD”) for an intellectual
disability, but that she had discontinued his DDD services “because he was
doing well.”
¶7 The investigator spoke with Mother, who reported she had
consumed alcohol that morning. Mother told the investigator she believed
the neglect reports had been made by a former boyfriend because she had
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refused to have sex with him. Mother told the investigator that she
previously had taken medication for depression and anxiety but was not on
medication currently. Mother agreed to drug testing and told the
investigator she would test positive for “weed.” Mother also told the
investigator that she had considered self-harm. After Grandmother agreed
to be a safety monitor, the investigator left Hunter in the home pending
Mother’s urinalysis testing. DCS offered Mother family-preservation
services, drug testing, and substance-abuse treatment.
¶8 Mother’s urinalysis was positive for alcohol and marijuana.
Her hair follicle test was positive for marijuana and “a high level [of]
. . . methamphetamines.” DCS held a Team Decision Meeting in January
2017. At that meeting Mother admitted to having used methamphetamine
but said she had only done so one time. She told DCS that Hunter’s father
was unknown. DCS expressed “concern that Hunter did not currently have
DDD services and concern about Mother’s lack of understanding about
DCS’s involvement.”
¶9 The next day, DCS removed Hunter from the home because
1) Grandmother, his safety monitor, refused to provide a urinalysis test1; 2)
Mother’s substance abuse; 3) Mother refused to participate in services; and
4) “[t]he physical or mental condition of [Mother] endangers [the] child’s
health or safety.” DCS placed Hunter in an unlicensed relative placement
(a maternal cousin) and filed a dependency petition. DCS alleged Mother
was unable to parent Hunter because of both substance abuse and her
intellectual disability. The case plan was family reunification. Several days
after Hunter was removed, Grandmother went in for urinalysis and was
caught using a device to submit a false urine sample.
¶10 A behavioral health agency conducted a rapid-response
assessment of the child. The cousin described Hunter as difficult to comfort
when upset and told the agency therapist that Hunter would bang his head
against walls to the point of injuring himself. The therapist observed that
he became very upset when the cousin attempted to engage him in
activities. The cousin said that she could not keep Hunter in her home
because of his special needs. Two weeks later, DCS placed Hunter in a
licensed DDD foster home.
1 Grandmother claimed she could not test the first time DCS asked her
to do so because of work responsibilities. About eight months later, in
September 2017, Grandmother tested negative for substances.
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¶11 When Hunter came into care, he was globally delayed, could
barely speak, and was “very unsteady on his feet.”2 He had not had any
immunizations, was underweight and his eating behaviors raised concerns
about whether he had been getting enough nourishment. In addition, he
had trouble feeding himself, shook when he was eating, and drooled
excessively. Initially, he had frequent tantrums and violent outbursts
towards other children in daycare. He displayed obsessive compulsive
behaviors and appeared to be autistic. Hunter’s foster mother took him to
a neurologist who diagnosed him with a seizure disorder and put him on
medication. Hunter’s neurologist and pediatrician referred him to a
developmental pediatrician because he was delayed in three or more areas.
At the time of trial, Hunter had an Individualized Education Plan (“IEP”)
and was attending a developmental preschool where he received speech,
occupational, and physical therapies. He remained “significantly behind”
his peers in preschool.
¶12 The juvenile court found Hunter dependent in late January
2017. DCS asked Mother to complete services, including a substance abuse
assessment and treatment at TERROS, random urinalysis testing, case aide
services, parent aide services, therapeutic visits,3 individual counseling,
2 Hunter was nearly three years old when he came into care. His delays
were apparent much earlier, however. When he was five months old, his
pediatrician referred him to the Arizona Early Intervention Program
(“AZEIP”), where he was determined to have a moderate delay in motor
skills, a significant delay in cognitive skills, a moderate delay in physical
development and communication ability, and a mild delay in adaptive and
self-help skills. AZEIP provided him with physical therapy. By February
2016, it was apparent that Hunter was speech delayed, and at a visit to his
pediatrician that month, Mother and Grandmother said Hunter would start
speech therapy “soon.” He did not begin speech therapy until June 2016,
however. Also in February 2016, Hunter’s pediatrician referred him to a
neurologist to address his shaking and staring episodes. Hunter did not see
the neurologist until June 2016. The neurologist suspected complex partial
seizures and referred Hunter for an electroencephalogram (“EEG”) and a
magnetic-resonance imaging scan (“MRI”). Neither Mother nor
Grandmother took him for an EEG or MRI, leaving him untreated until he
came into care.
3 Therapeutic visitation was put into place because Hunter was exhibiting
stress before and after visits, and because Mother was having difficulty
responding to his cues and managing his tantrums during the visits. The
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and psychological evaluations. In 2018, DCS also provided Mother with
several joint counseling sessions with Grandmother when considering the
possibility of Mother and Grandmother co-parenting the child. DCS
provided Mother with transportation to services and visits.
¶13 Mother was diligent and participated in services “to the best
of her abilities.” She consistently tested negative for substances after the
initial positive tests, successfully completed substance abuse services at
TERROS, engaged consistently in both regular visitation and therapeutic
visitation, completed parent aide services, and participated in
psychological evaluations and individual counseling. At the time of trial,
Mother was living in her own apartment and had a job as a caretaker for an
18 year-old with special needs.4 Although the DCS case manager agreed
that Mother had made behavioral changes and “was doing really well with
maintaining her sobriety,” the case manager was still concerned that
Mother did not understand Hunter’s medical and behavioral needs.
¶14 The case aide who supervised visits with Hunter, Mother, and
Grandmother starting in June 2018, testified that Mother was consistent,
prepared, nurturing, and loving. However, Mother and Grandmother
bickered with one another during almost every visit, which upset the child.
Hunter would cover his ears, ask why Mother and Grandmother were
arguing, and tell them to be nice. The case aide testified that Grandmother
acted in a controlling manner towards both Mother and the child.
¶15 In December 2018, the case aide received a phone call
inadvertently originating from Grandmother’s phone that went to
voicemail. The voicemail message was a recording of Grandmother
“ranting and raving . . . [at Mother] with swear words.” The case aide heard
Grandmother mention a lawyer and tell Mother “you haven’t tried.” She
heard someone who sounded like Mother yelling back and crying. The case
aide believed Grandmother was berating Mother about the dependency
case. She reported the incident to Adult Protective Services. Subsequently,
in part because of this incident, Grandmother and Mother’s visits with
Hunter were separated. Mother continued to have weekly supervised visits
in her home (visits Hunter appeared to enjoy), and Grandmother’s visits
were reduced to once a month at a DCS office. An additional incident
occurred at a meeting at DCS when Grandmother “scream[ed] at [Mother]
therapeutic visit supervisor modeled appropriate parenting behaviors for
Mother, provided her with parenting information and strategies, and gave
her verbal feedback.
4 Mother earned $150.00 per week at her job.
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about what a failure she was and how bad she had done to not get her son
back.” The case manager warned Grandmother that if she spoke that way
to Mother again, she would not be invited to any more meetings.
¶16 Mother underwent two psychological evaluations with
Dr. James Thal. The first evaluation took place in July 2017. Mother’s IQ was
determined to be 65, which placed her in the first percentile or in the
intellectually disabled range. Dr. Thal diagnosed Mother with mild
intellectual disability, alcohol use disorder in early remission,
methamphetamine use disorder in early remission, and gave her a rule-out
diagnosis of bipolar I disorder. Dr. Thal opined that Mother’s memory was
“not intact and it was very difficult for [her] to recall basic information.”
Further, Mother’s “insight [was] quite limited but consistent with her
intellectual level.” He observed that Mother “seemed to take little
responsibility for her own actions or her reported lack of adequate care of
her son.” Dr. Thal opined that Mother’s intellectual disability would make
it “exceedingly difficult for her to acquire, understand, retain, and
implement basic parenting knowledge and skills.” He concluded that
Mother’s prognosis for being able to demonstrate minimally adequate
parenting skills in the foreseeable future was poor. Dr. Thal also concluded
that the child could not be safely returned to Mother’s sole custody now or
in the foreseeable future, and that he would be at risk in her care. Dr. Thal
explained that “[Mother] would require ongoing supervision with a child”
and that she could not “be relied upon to independently learn, retain, and
implement safe and effective parenting practices.” He found that Mother
was at risk for exploitation by predatory males and recommended
individual therapy to assist her in decision making. Although mental health
services “could improve [Mother’s] functioning,” they would be unlikely
to raise her to a minimally adequate parenting level.
¶17 Dr. Thal re-assessed Mother in October 2018 to determine if
Mother’s participation in services had improved her parenting abilities to a
minimally adequate level. Mother continued to deny neglecting the child.
Mother denied that Hunter had emotional or behavioral problems and
stated that she believed he was developmentally on track. When discussing
her completed drug treatment at TERROS, Mother stated “I honestly didn’t
need those classes.” Dr. Thal again concluded that the prognosis that
Mother would be able to demonstrate minimally adequate parenting skills
was poor. He wrote:
[Mother] has participated in a wide range of services but, not
surprising given the nature of her mental deficiency, there are
not significant changes in her parenting profile. This is an
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intellectually disabled young woman who has substantial
difficulty with concepts, timeframes, and retaining factual
information. She is more than willing to follow directives and
she clearly loves [the child]. However, placing Hunter in
[Mother]’s sole and independent care would likely place the
child at risk for inadvertent neglect, impaired decision-
making, and significant under-stimulation of the child’s
already reportedly compromised learning abilities.
¶18 Dr. Thal recommended a bonding and best interests
assessment for Hunter, Mother, Grandmother, and the child’s foster family.
Dr. S. Bryce Bennett conducted the assessment in April and May 2018.
Dr. Bennett noted that Mother “seemingly had no understanding of
[Hunter’s] medical needs,” and that Grandmother lacked understanding of
his medical needs beyond his developmental delays and did not seem to
recognize how much support Mother would require if Hunter were
returned to her. Both Mother and Grandmother had difficulty responding
to the child’s cues. Grandmother’s failure to recognize his cues was of
particular concern because Hunter required a “caregiver who is very
responsive to his cues.” Dr. Bennett concluded that Hunter’s foster parents
provided him with a safe and stable home and had the ability to meet his
special needs. Dr. Bennett conducted an updated bonding assessment
regarding Grandmother in October 2018. Dr. Bennett continued to have
concerns about Grandmother’s ability to meet Hunter’s needs and
concluded that it was not in his best interests to be placed with her.5
¶19 DCS filed a motion to terminate Mother’s parental rights in
August 2018 pursuant to A.R.S. §§ 8-533(B)(3) (mental deficiency) and
(B)(8)(c) (fifteen months out-of-home placement). At that time, Mother
requested that Hunter be placed with Grandmother. The juvenile court
denied the request.
¶20 A week before trial, Mother filed a motion to appoint
Grandmother as a permanent guardian. In her petition, Mother stated,
“[DCS] has made reasonable efforts to reunite Mother with the minor child.
Reunification of the minor child and Mother is not in [his] best interest.
5 Dr. Thal conducted a psychological evaluation of Grandmother in
January 2018 and another evaluation in January 2019. He likewise did not
recommend placing Hunter with Grandmother. At trial, Dr. Thal testified
that it was concerning that Grandmother believed that Mother could safely
parent the child and failed to recognize she had “some very significant
intellectual limitations.”
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Mother is unable to properly care for [him] without the assistance of
[Grandmother].” DCS opposed the guardianship motion.
¶21 A third psychological evaluation of Mother was conducted
by Dr. Lee Underwood in March and April 2019, midway through trial.
Dr. Underwood’s diagnosis of mild intellectual disability was consistent
with Dr. Thal’s diagnosis. Dr. Underwood did not recommend that the
child be returned to Mother’s sole care. Instead he concluded that she could
parent in a co-parent model.
¶22 After a seven-day trial on both the guardianship and
severance motions, the juvenile court denied Mother’s guardianship
motion. The court granted DCS’s severance motion, terminating Mother’s
parental rights to Hunter based on fifteen months out-of-home placement
and mental deficiency.6 The court found that severance was in Hunter’s best
interests even though Mother loved him and was clearly bonded with him,
and that DCS made reasonable efforts to provide reunification services. The
court denied the motion to appoint Grandmother as a permanent guardian,
noting, among other things, that he had been neglected by Mother while
they both resided with Grandmother. Mother timely appealed.
DISCUSSION
I. Americans With Disabilities Act
¶23 Mother argues that the juvenile court erred by not
considering whether DCS’s reunification efforts complied with ADA, 42
U.S.C. §§ 12101-12213, and that DCS failed to prove that it provided her
with services that reasonably accommodated her mental disability.7
¶24 The ADA prohibits public entities from discriminating
against disabled persons by excluding them from participation in or
denying them the benefits of public services and programs. 42 U.S.C.
§ 12132. The ADA imposes an affirmative duty on public entities to make
“reasonable modifications in policies, practices, or procedures when the
modifications are necessary to avoid discrimination on the basis of
6 The court also terminated the parental rights of an alleged Father on
abandonment grounds. He is not party to this appeal.
7 Mother argues for the first time on appeal that DCS should have
provided her with “enhanced,” “supplemental,” and more frequent
training (presumably parenting training), either in her home or in another
environment “more conducive to learning,” and that it should have
provided “visual modeling or individualized techniques.”
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disability, unless . . . the modifications would fundamentally alter the
nature of the service” provided. 28 C.F.R. § 35.130(b)(7)(i). A mental
impairment that substantially limits one or more major life activities of an
individual is a disability. 42 U.S.C. § 12102(1)(A). A mental impairment
includes “intellectual disability, organic brain syndrome, emotional or
mental illness, and specific learning disability.” 28 C.F.R. § 35.108(b)(1)(ii).
¶25 We agree with courts in other jurisdictions―child welfare
agencies such as DCS, as public entities, must provide reunification services
that comply with the ADA to disabled parents. See Lucy J. v. Dep’t of Health
& Soc. Servs., 244 P.3d 1099, 1115-16 (Alaska 2010) (ADA requires family
reunification services to be provided in a manner that takes a parent’s
disability into account); In re S.K., 440 P.3d 1240, 1248, ¶ 25 (Colo. App.
2019) (“ADA does not restrict a juvenile court’s authority to terminate
parental rights when the parent, even after reasonable accommodation of a
disability, is unable to meet his or her child’s needs,” but while the ADA “is
not a defense to termination of parental rights, it applies to the provision of
assessments, treatment, and other services that the Department makes
available to parents . . . before termination.”); In re H.C., 187 A.3d 1254, 1265
(D.C. 2018) (ADA’s requirement of reasonable accommodation is “entirely
consistent with and perhaps subsumed within, [child welfare agency’s]
general statutory obligation to expend reasonable efforts to make
reunification possible”); In re Adoption of Gregory, 747 N.E.2d 120, 126 (Mass.
2001) (reunification services must comply with the ADA); In re Terry, 610
N.W.2d 563, 570 (Mich. Ct. App. 2000) (same); In re K.C., 362 P.3d 1248, 1252,
¶¶ 19, 21 (Utah 2015) (ADA encompasses a plan for reunification services
and a parent has the right to raise the ADA “while the reunification plan is
being implemented . . . not just after the fact in a claim for money
damages.”); In re A.J.R., 896 P.2d 1298, 1302 (Wash. Ct. App. 1995)
(severance statute’s requirement that State provide reasonable services
resulted in reasonable accommodation of parents’ disabilities). Arizona’s
statutory requirement that DCS make reasonable efforts to provide
reunification services is consistent with the ADA’s requirement that
disabled parents be reasonably accommodated.
¶26 In general, any claim that DCS is failing to provide
appropriate reunification services must be raised in the juvenile court or the
issue is waived. Shawanee S. v. Ariz. Dep’t of Econ. Sec., 234 Ariz. 174, 175,
¶ 1 (App. 2014). Similarly, we agree with other courts concluding that any
claim that the appropriate state agency (here, DCS) is violating the ADA in
a dependency or severance matter must be timely raised or the issue is
waived. See Gregory, 747 N.E.2d at 124-25 (parent may not raise
noncompliance with the ADA with regard to reunification services for the
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first time at a termination proceeding). Accord Terry, 610 N.W.2d at 570
(disabled parent should claim a violation of the ADA before the termination
hearing “either when a service plan is adopted or soon afterward” so that
juvenile court can address the claim.). Accord In re Hicks/Brown, 893 N.W.2d
637, 642 (Mich. 2017) (raising claim that services did not accommodate a
parent’s intellectual disability in court eleven months prior to termination
hearing was sufficient). Cf. In re K.C., 362 P.3d at 1252, ¶ 27 (parent may
raise ADA violation at termination hearing, but “[a] parent who waits until
the eleventh hour to request a modification under the ADA may thoroughly
undermine her ability to establish that such a modification is reasonable”).
¶27 Here, Mother did not raise her claim that DCS violated her
right to reasonable accommodations under the ADA in the juvenile court
before or during the severance proceedings. Mother never asked the
juvenile court to determine whether the services DCS provided Mother,
which the court found were reasonable under A.R.S. § 8-533, also satisfied
the ADA. Mother was represented by counsel throughout the case and
could have timely raised the issue. Raising an ADA claim for the first time
on appeal is untimely and we do not consider it.
II. Due Process and A.R.S. § 1-601
¶28 Mother argues that the juvenile court violated her due process
rights. Alleged constitutional violations raised for the first time on appeal
are reviewed for fundamental error. Brenda D. v. Ariz. Dep’t of Child Safety,
243 Ariz. 437, 447, ¶ 37 (2018). Mother first argues that A.R.S. §§ 8-533(B)(3)
and (B)(8) are facially unconstitutional under the federal constitution. We
review the constitutionality of a statute de novo. State v. Maestas, 244 Ariz.
9, 11, ¶ 6 (2018). Under strict scrutiny analysis there is no presumption that
a statute is constitutional. Martin v. Reinstein, 195 Ariz. 293, 309, ¶ 51 (App.
1999).
¶29 Parents have a fundamental right in the care, custody, and
management of their children and that interest is protected by the Due
Process Clause. Santosky v. Kramer, 455 U.S. 745, 753, 758-59 (1982). “The
maintenance of the parent-child relationship is a fundamental right, and the
rationality of statutes which abridge it is subject to strict scrutiny.” Maricopa
Cty. Juv. Action No. JS-7359, 159 Ariz. 232, 236 (App. 1988) (citing Santosky,
455 U.S. 745). Under strict scrutiny analysis, “proponents of a law bear the
burden of showing that it furthers a compelling state interest, that it is
narrowly drawn to serve that interest, and that the state’s interests
outweigh” the fundamental liberty interests at stake. Martin, 195 Ariz. at
309, ¶ 51.
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¶30 Mother agrees that A.R.S. §§ 8-533(B)(3) and (B)(8) serve a
compelling state interest. Nevertheless, she argues that Arizona’s severance
statute fails strict scrutiny analysis because the compelling state interest is
preventing harm to the child and the statute does not require DCS to prove,
by clear and convincing evidence, that termination is necessary to prevent
harm to the child.
¶31 The Arizona Supreme Court has held that Arizona’s
severance statute satisfies due process because the statutory grounds are
“synonymous with parental unfitness.” Alma S. v. Ariz. Dep’t of Child Safety,
245 Ariz. 146, 150, ¶ 9 (2018) (“If a statutory ground were not synonymous
with unfitness, a contested severance based on such a ground would be
constitutionally infirm.”); see also JS-7359, 159 Ariz. at 236 (prior version of
Arizona’s severance statute satisfied strict scrutiny because it incorporated
a concept of parental unfitness).
¶32 Both A.R.S. §§ 8-533(B)(3) and (B)(8) require a finding of
parental unfitness at the time of termination. To terminate parental rights
based on mental deficiency under A.R.S. § 8-533(B)(3), the court must find,
by clear and convincing evidence, that a parent is “unable to discharge
parental responsibilities because of . . . mental deficiency” at the time of
severance and that “the condition will continue for a prolonged
indeterminate period.” Section 8-533(B)(8)(c) requires a finding that a
parent “will not be capable of exercising proper and effective parental care
and control in the future.”
¶33 Mother misidentifies the compelling state interest in
termination proceedings, which is to promote and protect child welfare. See
Santosky, 455 U.S. at 766 (the State has an urgent “parens patriae interest in
preserving and promoting the welfare of the child” and its “goal is to
provide the child with a permanent home,” preferably with a fit parent);
JS-7359, 159 Ariz. at 236 (quoting Santosky, 455 U.S. at 767); Ariz. Dep’t of
Child Safety v. Beene, 235 Ariz. 300, 306, ¶ 13 (App. 2014) (“DCS has a
compelling interest in protecting child welfare.”) (internal quotation
omitted).
¶34 Mother argues that A.R.S. §§ 8-533(B)(3) and (B)(8) are both
unconstitutional because they do not require DCS to prove that termination
is the least-restrictive means available for protecting the child. She argues
that the State may not choose a single means of avoiding severance, such as
family reunification, and then declare that severance is the least-restrictive
means because reunification is not available. We disagree. DCS must make
reasonable rehabilitative efforts before seeking severance under A.R.S.
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§ 8-533(B)(3). Vanessa H. v. Ariz. Dep’t of Econ. Sec., 215 Ariz. 252, 255-56,
¶ 18 (App. 2007). And A.R.S. § 8-533(B)(8) requires DCS to make a diligent
effort to provide appropriate reunification services. If reunification with a
parent is not possible, however, due process does not require DCS to pursue
“alternative means” such as guardianship in every instance before seeking
to change the case plan to severance and adoption.8
¶35 Mother also argues that A.R.S. §§ 8-533(B)(3) and (B)(8) are
overly inclusive because they “allow for the possibility that a fit parent may
have their parental rights . . . terminated simply because, at some point,
they were unfit.” As discussed supra ¶¶ 31-32, §§ 8-533(B)(3) and (B)(8)
require the juvenile court to make an individualized finding of unfitness at
the time of termination.
¶36 Mother next argues that the juvenile court had a statutory
duty to apply A.R.S. § 1-601(B), and “find that DCS has met every burden
that Arizona’s legislature has mandated, including those mandated under
A.R.S. § 1-601(B),” and that its failure to do so violated her due process
rights under the federal and state constitutions. Mother did not raise her
statutory claim until her written closing argument.
¶37 The Parents’ Bill of Rights is codified at A.R.S. §§ 1-601 and
-602. Section 1-601 (A) states that parents have a fundamental right “to
direct the upbringing, education, health care and mental health of their
children.” Section 1-601(B) says that the State shall not infringe on those
rights “without demonstrating that the compelling governmental interest
as applied to the child involved is of the highest order, is narrowly tailored
and is not otherwise served by a less restrictive means.” Section 1-602
defines a parent’s rights, and provides, in part:
This section does not authorize or allow a parent to engage in
conduct that is unlawful or to abuse or neglect a child in
violation of the laws of this state. This section does not
prohibit courts, law enforcement officers or employees of a
government agency responsible for child welfare from acting
in their official capacity within the scope of their authority.
This section does not prohibit a court from issuing an order
that is otherwise permitted by law.
8 Here, DCS did pursue permanent guardianship by Grandmother but
determined she was not an appropriate guardian for the child.
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Here, the juvenile court acted within its “official capacity within the scope
of [its] authority” under Arizona’s severance statute, A.R.S. § 8-533, and
that statute satisfies due process. The juvenile court made an individualized
determination that Mother was unfit at the time of termination, and that
severance was in child’s best interests. The court’s severance order was
permitted by A.R.S. § 8-533. We find no error, fundamental or otherwise,
nor do we find that Mother’s due process rights were violated.
III. Fifteen Months Out-of-Home Placement
¶38 Mother argues that insufficient evidence supported the
juvenile court’s finding that severance was warranted pursuant to A.R.S.
§ 8-533(B)(8)(c). Under this statute, the court may terminate parental rights
if DCS made diligent reunification efforts, the parent was unable to remedy
the circumstances causing the parent’s child to be in an out-of-home
placement for fifteen months or longer, and “there is a substantial
likelihood that the parent will not be capable of exercising proper and
effective parental care and control in the near future.” A.R.S.§ 8-533(B)(8)(c).
We view the evidence and the reasonable inferences to be drawn from it in
the light most favorable to affirming the juvenile court’s order. Jordan C. v.
Ariz. Dep’t of Econ. Sec., 223 Ariz. 86, 93, ¶ 18 (App. 2009). We will not
reverse the juvenile court’s order unless reasonable evidence does not
support the juvenile court’s factual findings. Ariz. Dep’t of Econ. Sec. v.
Matthew L., 223 Ariz. 547, 549, ¶ 7 (App. 2010). In assessing a parent’s ability
to provide proper parental care and control, the juvenile court must
“consider the discrete and special needs of the particular child.” Joelle M. v.
Ariz. Dep’t of Child Safety, 245 Ariz. 525, 527, ¶ 12 (App. 2018).
¶39 Hunter was in an out-of-home placement for more than two
years at the start of the severance trial and for two and one-half years when
the juvenile court granted the severance. Mother argues that she remedied
her substance abuse problem, which was the circumstance causing
Hunter’s removal. However, in making a determination that a parent has
been unable to remedy the circumstances causing the child to be in an out-
of-home placement, we construe those circumstances to mean the
circumstances existing at the time of the severance that prevented a parent
from appropriately providing for the parent’s child. Marina P. v. Ariz. Dep’t
of Econ. Sec., 214 Ariz. 326, 330, ¶ 22 (App. 2007). Moreover, Mother’s
substance abuse was not the only circumstance leading to Hunter’s
removal. See Donald W. v. Dep’t of Child Safety, 247 Ariz. 9, 17, ¶ 26 (App.
2019) (court must consider “both the origin and any cause arising during the
dependency”). DCS took Hunter into custody because of Mother’s substance
abuse, because she initially refused to participate in services, and because
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JESSICA P. v. DCS, H.P.
Opinion of the Court
“[t]he physical or mental condition of [Mother] endanger[ed] child’s health
or safety.” In addition, Grandmother declined to take a urinalysis test when
she was designated safety monitor for the child. The dependency petition
alleged that Mother was unable to parent due to both substance abuse and
her intellectual disability. At the time of the severance trial, although
Mother’s substance abuse was no longer a concern, her intellectual
disability was the circumstance causing Hunter’s continued out-of-home
placement.
¶40 Here, the juvenile court found that “Mother has completed all
services that have been asked of her to the best of her ability.”9 The court
found that even so, Mother had been unable to remedy the circumstances
leading to the child’s out-of-home placement because “[e]very professional
who evaluated Mother has concluded that Mother, due to her limitations,
cannot independently parent the child. Mother’s deficiencies are
exacerbated by the special needs of the child. The professionals have
concluded that the child cannot be safely returned to Mother’s care.” Citing
Dr. Thal’s opinion, the court found that there was a substantial likelihood
that Mother would not be capable of exercising proper and effective
parental care and control in the near future.
¶41 Reasonable evidence supports the juvenile court’s findings.
Dr. Thal evaluated Mother twice, and even after she had completed “a wide
range of services,” Dr. Thal concluded that Mother’s prognosis for
demonstrating minimally adequate parenting skills was poor, given the
nature of her intellectual ability. Dr. Thal noted that Mother’s medical
decision-making abilities were “significantly limited,” and opined that
Mother’s intellectual disability “and the accompanying impact on her
judgment and decision making” made her unable to meet Hunter’s special
9 Mother complains that elsewhere in the court’s minute entry the court
stated, “[DCS] made diligent efforts by providing an array of reunification
services and had those services been successfully completed, reunification
likely would have occurred.” This appears to be in conflict with other
findings. The court specifically found that Mother completed all services to
the best of her abilities and stated so twice in its minute entry order, which
was consistent with the DCS case manager’s testimony. Further, the court
outlined in great detail all of the services offered to Mother and noted that
she participated in and completed each of them.
15
JESSICA P. v. DCS, H.P.
Opinion of the Court
needs. No evaluator or therapist concluded that Mother could safely parent
child independently.
¶42 Mother argues that Dr. Thal recommended the child be
returned to her in July 2017, and that DCS’s failure to do so extended his
out-of-home placement past fifteen months. This misstates the record. After
his first evaluation of Mother in July 2017, Dr. Thal made the following
recommendations concerning placement:
It is not recommended a child be placed in this [Mother]’s sole
and independent care. . . . The best-case scenario for [Mother]
would be for her to act as an assistant caregiver to a fully
qualified caregiver. [Mother] would require ongoing
supervision with a child and cannot be relied upon to
independently learn, retain, and implement safe and effective
parenting practices. . . . Alternative long-term placement
planning is necessary to insure the welfare of [Hunter].
¶43 Mother also asserts that Dr. Thal testified that she could
effectively co-parent, and that with assistance, she would be able to exercise
proper and effective parental care and control. This misstates Dr. Thal’s
testimony. Dr. Thal specifically testified that the child should not be in
Mother’s sole and independent care, but that a goal might be for her to
“function in an assisted capacity. Not to [be] the co-parent but to assist a
capable and fully functioning parental figure.”
¶44 Mother argues that the juvenile court erred by finding that
DCS made diligent efforts to reunify the family because DCS failed to
“undertake even the minimum of the diligent efforts [it was] legally
required to take.” Mother argues that DCS failed to obtain Hunter’s
medical, DDD, and Head Start records, did not ask Mother or Grandmother
about services they had obtained for the child, and did not speak with
child’s grandfather or Mother’s aunts. She also argues that Dr. Thal
recommended that the child “be returned to Mother, with Grandmother as
guardian,” but “DCS did nothing for six months.”10
¶45 Before seeking to terminate a parent’s parental rights on
grounds of out-of-home placement, DCS must make a diligent effort to
provide appropriate reunification services. A.R.S. § 8-533(B)(8).
“Termination of the parent-child relationship should not be considered a
10 As noted supra ¶¶ 42-43, Dr. Thal did not recommend returning Hunter
to Mother with Grandmother as his guardian.
16
JESSICA P. v. DCS, H.P.
Opinion of the Court
panacea but should be resorted to only when [a] concerted effort to preserve
the relationship fails.” Ariz. Dep’t of Econ. Sec. v. Mahoney, 24 Ariz. App. 534,
537 (1975). DCS need not undertake rehabilitative measures that are futile,
but it is obligated to undertake measures with a reasonable probability of
success. Mary Ellen C. v. Ariz. Dep’t of Econ. Sec., 193 Ariz. 185, 192, ¶ 34
(App. 1999). DCS need not provide every 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 ¶ 37.
DCS does not make reasonable reunification efforts if “it neglects to offer
the very services that its consulting expert recommends.” Id.
¶46 As the juvenile court found, DCS offered Mother numerous
reunification services, including random urinalysis testing, substance abuse
treatment, more than 30 individual counseling sessions (exceeding the 20
sessions recommended by Dr. Thal), two psychological evaluations, a
bonding assessment, therapeutic visitation and supervised visitation, a
parent aide, and transportation because she did not drive. DCS invited her
to attend the child’s medical appointments so that she could understand his
special needs. These services were offered to help Mother become sober,
enhance her parenting skills, and assist her with “decision-making,
employing sound judgment, staying safe, and coping with her disabilities.”
Sufficient evidence supported the court’s finding that DCS made diligent
efforts to provide reunification services.
¶47 DCS case manager Claudia Hoff testified that obtaining the
child’s DDD and medical records at the outset of the case would not have
changed the services offered to Mother. And whether or not DCS
interviewed certain family members during its investigation is not relevant
to the question of whether it made diligent efforts to provide appropriate
reunification services.
¶48 Because sufficient evidence supported the juvenile court’s
finding that severance was warranted pursuant to A.R.S. § 8-533(B)(8)(c),
we need not consider Mother’s challenge to the alternate ground of mental
deficiency. See Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 280, ¶ 3
(App. 2002).
IV. Best Interests
¶49 Finally, Mother argues that the juvenile court erred by finding
that termination of her parental rights was in Hunter’s best interests. We do
not reweigh the evidence and will affirm the juvenile court’s factual
findings if supported by reasonable evidence. Dominique M. v. Ariz. Dep’t of
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JESSICA P. v. DCS, H.P.
Opinion of the Court
Child Safety, 240 Ariz. 96, 97, ¶ 6 (App. 2016). “Although fundamental,
parental rights are not inviolate; a court may still sever those rights if it finds
clear and convincing evidence of one of the statutory grounds for
severance, and also finds by a preponderance of the evidence that severance
is in the best interests of the child[].” Id. at 98, ¶ 7 (citations omitted).
Severance is in a child’s best interests if the child would “derive an
affirmative benefit from termination or incur a detriment by continuing in
the relationship.” Ariz. Dep’t of Econ. Sec. v. Oscar O., 209 Ariz. 332, 334, ¶ 6
(App. 2004). A current adoptive plan is a well-established affirmative
benefit to a child. Id.
¶50 The juvenile court found that the child was adoptable and that
his foster parents were meeting all his special needs. Hunter’s foster parents
wished to adopt him. He had lived with his foster parents for nearly two
and one-half years and he was bonded to them. He was also bonded with
Mother. The court also found that maintaining Mother’s parental rights
would be detrimental to Hunter because Mother was “not equipped to
provide the level of care that child needs.” The court concluded that “the
facts dictate that it is in the child’s best interests that Mother’s parental
rights be terminated despite her love for, and bond with, the child.”
¶51 Reasonable evidence supported the juvenile court’s best
interests finding. Dr. Bennett concluded his bonding and best interests
assessment by opining that returning Hunter to Mother was not in his best
interests because she seemed to have little understanding of his medical
needs and was not responsive to his cues regarding his needs.11 Dr. Bennett
explained that the child would be at risk of neglect in her care, even for
short periods of time. Hunter was adoptable and his current placement was
willing to adopt him. Hunter was thriving in their care.
¶52 Mother argues that she was a “fit and loving” parent and that
Hunter was bonded to her. As discussed above, reasonable evidence
supported the severance ground of out-of-home placement and the court’s
conclusion that Mother would not be a fit parent in the near future. And
although the existence of a bond between a parent and child is a factor in
11 Mother claims that the juvenile court erred by finding severance was
in Hunter’s best interests because she was a single parent. The court did
mistakenly refer to Mother instead of Grandmother when summarizing
Dr. Bennett’s bonding/best interests assessment, wherein Dr. Bennett
stated that Grandmother was a single parent. However, the court did not
refer to Mother’s relationship status in its ultimate findings about best
interests.
18
JESSICA P. v. DCS, H.P.
Opinion of the Court
assessing best interests, it is not dispositive. Dominique M., 240 Ariz. at 98,
¶ 12. “Even in the face of such a bond, the juvenile court is required to
evaluate the totality of circumstances and determine whether severance is
in the best interests of the children.” Id. at 99, ¶ 12. Here, the court
considered the totality of the circumstances and found that severance was
in Hunter’s best interests. Reasonable evidence supports that finding.
CONCLUSION
¶53 For the foregoing reasons, we affirm the juvenile court’s order
terminating Mother’s parental rights.
AMY M. WOOD • Clerk of the Court
FILED: AA
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