Chelsea R. v. Dcs, H.R. ( 2020 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
CHELSEA R., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, H.R., Appellees.
No. 1 CA-JV 19-0336
FILED 08-27-2020
Appeal from the Superior Court in Yavapai County
No. V1300JD201880002
The Honorable Anna C. Young, Judge
AFFIRMED
COUNSEL
Law Office of Florence M. Bruemmer, P.C., Anthem
By Florence M. Bruemmer
Counsel for Appellant
Arizona Attorney General’s Office, Mesa
By Amanda Adams
Counsel for Appellee Department of Child Safety
CHELSEA R. v. DCS, H.R.
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Michael J. Brown, Judge D. Steven Williams, and Judge
James B. Morse Jr.1 delivered the decision of the Court.
PER CURIAM:
¶1 Chelsea R. (Mother) appeals the juvenile court’s order
terminating her parental rights to H.R. (Child), arguing the Department of
Child Safety (DCS) failed to prove the statutory grounds for severance by
clear and convincing evidence, and failed to prove by a preponderance of
the evidence that termination served Child’s best interests. For the
following reasons, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 In October 2018, DCS received a report that Mother admitted
she used marijuana regularly while pregnant with Child, tested positive for
marijuana at Child’s birth, and did not have a stable place to take Child
when she was discharged from the hospital.2 Child’s eleven-month-old
half-sister had already been placed in DCS’s care after Mother had begun
acting erratically and attempted suicide in December 2017.
¶3 In the course of the half-sister’s dependency, Mother was
diagnosed as severely mentally ill with post-traumatic stress disorder
(PTSD), major depressive disorder, generalized anxiety, bipolar disorder,
and unspecified personality disorder with borderline features — conditions
that put a child in Mother’s care at risk of serious injury. A psychologist
had also determined that Mother’s prognosis to become a minimally
1 Judge James B. Morse Jr. replaces the Honorable Kenton D. Jones,
who was originally assigned to this panel. Judge Morse has read the briefs
and reviewed the record.
2 We view the evidence in the light most favorable to upholding the
juvenile court’s order terminating parental rights. Yvonne L. v. Ariz. Dep’t
of Econ. Sec., 227 Ariz. 415, 422, ¶ 27 (App. 2011) (citing Maricopa Cty. Juv.
Action No. JD-5312, 178 Ariz. 372, 376 (App. 1994)).
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CHELSEA R. v. DCS, H.R.
Decision of the Court
adequate parent was poor given her cognitive delays, lack of support
system, education, employment, and resistance to treatment.
¶4 DCS removed Child from Mother’s care and filed a petition
alleging Child was dependent as to Mother on the grounds of neglect,
substance abuse, and unresolved mental-health issues.3 Mother did not
contest the allegations, and the juvenile court adjudicated Child dependent
in December 2018 and adopted a case plan of family reunification.
Meanwhile, Mother was referred for supervised visitation, individual and
family counselling, parent-support services, parent-aide services, parenting
classes, family treatment court, and another psychological evaluation.
¶5 At a January 2019 psychological evaluation, Mother reported
a lengthy and ongoing history of physical, emotional, sexual, and domestic
abuse perpetrated by friends and family members that had resulted in
psychiatric hospitalization “too many times to count.” Nonetheless,
Mother discontinued treatment. The psychologist diagnosed Mother with
PTSD, moderate cannabis-use disorder, and an unspecified intellectual
disability. The psychologist described Mother’s PTSD as “progressively
worsening” and described “a degree of learned helplessness” resulting
from Mother’s continuous exposure to trauma that negatively affected her
social and cognitive functioning, impulse control, decision-making ability,
and emotional well-being. The combination of these factors rendered
Mother unable to function as a parent or function optimally as an
individual. Additionally, clinical testing placed Mother at a high risk for
demonstrating dysfunctional parenting and perpetrating child abuse. The
psychologist believed that, “[c]onsidering her years of untreated
depression and trauma and the dysfunctional survival skills she has
developed over the years,” the mental conditions rendering Mother unable
to parent would likely continue for a prolonged, indeterminate period. He
described her need for mental-health services as “dire” and recommended
she be psychiatrically evaluated for pharmacological treatment and engage
in counseling and substance abuse treatment. Nonetheless, her prognosis
was “guarded to poor.”
¶6 Despite her history and diagnoses, Mother did not identify
her mental health as a cause for concern. She was only “minimally
engaged” in the case plan and participated in services sporadically. For
example, Mother did not complete a six-week parenting class until the week
3 DCS also alleged Child was dependent as to her father. His parental
rights were terminated in October 2019. He did not challenge that order
and is not a party to this appeal.
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CHELSEA R. v. DCS, H.R.
Decision of the Court
before the termination hearing. She missed visits with Child “quite a bit,”
and, when she did attend, was unable to feed or soothe Child without
assistance. Mother struggled to mix a bottle for Child and suggested giving
Child “nighttime” medication to induce sleep. She also had to be reminded
not to smoke around Child, who suffered from asthma and allergies.
¶7 Despite Mother’s resistance to services, the DCS case
specialist maintained weekly or biweekly contact with Mother to ensure she
knew what steps were necessary to engage with services and had the
necessary contact information and transportation. Still, Mother denied that
she could benefit from further mental-health services, declined medication
management, and refused or failed to attend the recommended psychiatric
services and substance-abuse assessment. She chose to use marijuana to
treat her mental health but did not engage in substance-abuse testing
consistently, participating in only twenty of forty-seven scheduled
urinalysis tests.
¶8 In February 2019, DCS expressed concern that Mother had a
pattern of “engag[ing] in casual relationships with individuals who [we]re
not thought to enhance [Mother’s] chances of reunification and [we]re
individuals about whom the Department would be concerned” and that
even a responsible adult in the home would be unable to effectively manage
these behaviors. Two months later, Mother began a romantic relationship
with Steven and began living with Steven and his mother, Joy, in Joy’s home
in Cottonwood. Around this same time, Mother reported she was having
hallucinations but did not seek medical attention. Soon thereafter, she
became pregnant with her third child. Neither Steven nor Joy believed
Mother required assistance to parent, and Steven did not have any concerns
about Mother’s decision to use marijuana while pregnant with his child.
¶9 In May 2019, DCS had not observed behavioral changes
suggesting Mother was able to parent Child and moved to change the case
plan to severance and adoption. The juvenile court granted DCS’s request.
¶10 At the September 2019 termination hearing, the DCS case
specialist expressed concern about Mother’s ability to independently
provide for Child. The evidence indicated Mother had not been
meaningfully employed at any time during the dependency, instead
working for $50 to $100 per week to “fix up” a trailer for her former foster
father — a man whom she had previously accused of sexually assaulting
her — in Winslow. Then, “[a]ll the money that [she] ma[d]e” went to
purchase marijuana. Mother did not have a working vehicle and relied on
Steven, Joy, and her state-sponsored health insurance for transportation.
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Decision of the Court
¶11 Mother acknowledged a history of mental illness but denied
her conditions contributed to Child’s removal or prevented her from
parenting Child. She described herself as “not fully codependent” and
added she was only relying upon Steven and Joy because she was “dealing
with the wrong people” and “fell into a deep hole.” Although Mother
testified that marijuana had helped her memory and mental health, she
claimed she had recently discontinued using it and was relying entirely
upon “coping skills” instead. But Mother’s urinalysis test results indicated
she continued to use marijuana, now illegally. The DCS case specialist
testified Mother’s decision to use marijuana while pregnant with Child, and
again in her most recent pregnancy, reflected an unwillingness to put a
child’s needs above her own. Mother testified she would do anything for
her children, unless she “was sick.”
¶12 Finally, DCS presented evidence that Child was adoptable
and currently placed with her half-sister in an adoptive home.
Additionally, the placement was going “above and beyond” to meet Child’s
needs, which included treatment for and management of Child’s allergies
and asthma, and would provide Child permanency in a safe, stable home.
¶13 After taking the matter under advisement, the juvenile court
entered an order finding DCS proved by clear and convincing evidence it
had made reasonable efforts to reunify the family but termination of
Mother’s parental rights to Child was warranted because Mother was
unable to discharge parental responsibilities as a result of mental illness. 4
See A.R.S. § 8-533(B)(3).5 The court also determined severance would serve
Child’s best interests, and entered an order terminating Mother’s parental
rights. Mother timely appealed, and 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).
4 The juvenile court also found clear and convincing evidence to
warrant termination on the grounds of neglect and substance abuse. DCS
has not addressed Mother’s challenge to the sufficiency of the evidence to
sustain those findings. Because we find sufficient evidence supports
termination on the ground of mental illness, we need not decide whether
DCS’s silence constitutes a concession of error.
5 Absent material changes from the relevant date, we cite the current
version of rules and statutes.
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Decision of the Court
DISCUSSION
¶14 A parent’s rights may be terminated if the juvenile court finds
by clear and convincing evidence that DCS made reasonable efforts to
provide appropriate reunification services to the parent but “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); Shawanee S. v.
Ariz. Dep’t of Econ. Sec., 234 Ariz. 174, 177-78, ¶ 12 (App. 2014) (citing Mary
Ellen C. v. Ariz. Dep’t of Econ. Sec., 193 Ariz. 185, 192, ¶¶ 32-34 (App. 1999)).
The court must also find by a preponderance of the evidence that
termination of the parent-child relationship is in the child’s best interests.
Ariz. R.P. Juv. Ct. 66(C); Mary Lou C. v. Ariz. Dep’t of Econ. Sec., 207 Ariz. 43,
47, ¶ 8 (App. 2004) (citing Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246,
249, ¶ 12 (2000)). 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)).
I. Statutory Grounds for Severance.
A. Reasonable Efforts.
¶15 Mother first argues DCS did not make reasonable efforts to
reunify her with Child before moving to terminate her parental rights.
Generally, we defer to the finding of reasonableness so long as it is
supported by substantial evidence. See Lashonda M. v. Ariz. Dep’t of Econ.
Sec., 210 Ariz. 77, 81-82, ¶ 13 (App. 2005) (citations omitted). However, if a
parent does not believe the reunification efforts are appropriate, it is
“incumbent on [the parent] to promptly bring those concerns to the
attention of the juvenile court, thereby giving that court a reasonable
opportunity to address the matter.” Shawanee S., 234 Ariz. at 179, ¶ 18.
Thus, “a parent who does not object in the juvenile court is precluded from
challenging that finding on appeal.” Id. at ¶ 16 (citations omitted). The
rationale for this policy is sound:
It serves no one to wait to bring such concerns to light for the
first time on appeal, when months have passed since the
severance order was entered. Instead, a parent’s failure to
assert legitimate complaints in the juvenile court about the
adequacy of services needlessly injects uncertainty and
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Decision of the Court
potential delay into the proceedings, when important rights
and interests are at stake and timeliness is critical.
Id. at 178-79, ¶ 16; see also Trantor v. Fredrikson, 179 Ariz. 299, 300 (1994)
(“[A]bsent extraordinary circumstances, errors not raised in the trial court
cannot be raised on appeal” because “a trial court and opposing counsel
should be afforded the opportunity to correct any asserted defects before
error [is] raised on appeal.”) (citing Van Dever v. Sears, Roebuck & Co., 129
Ariz. 150, 151-52 (1981), and United States v. Globe Corp., 113 Ariz. 44, 51
(1976)). Such an objection may be raised during any number of proceedings
before the juvenile court, including at a dependency hearing, periodic
review hearings, the permanency planning hearing, and even the
termination hearing. Shawanee S., 234 Ariz. at 178, ¶ 14.
¶16 Mother argues DCS should have done more to assist her in
obtaining appropriate housing and additional mental-health services. But
Mother did not challenge the adequacy of DCS’s reunification efforts in the
juvenile court. To the contrary, at the severance hearing, Mother opposed
the termination upon the grounds that she was already a minimally
adequate parent, ready and able to care for Child. Indeed, when asked,
Mother could not identify any services she believed DCS should have but
did not offer. On this record, Mother waived the opportunity to challenge
the reasonableness of DCS’s reunification efforts.
B. Ability to Parent.
¶17 Mother also argues insufficient evidence supports the
juvenile court’s finding that she is unable to discharge her parental
responsibilities as a result of her mental illness. Mother argues the evidence
establishes she could “safely parent . . . with assistance” from Steven and
Joy.
¶18 But there is no indication that either Steven or Joy was a safe
or appropriate caregiver for an infant. Joy has a documented history with
DCS, and Steven, childless, has a criminal history and did not find it
troublesome that Mother smoked marijuana while pregnant with his
biological child. Additionally, neither Steven nor Joy was aware of or had
concerns about the status of Mother’s mental health.
¶19 Moreover, Mother testified she had known and been in a
relationship with Steven, and living with Steven and Joy in Cottonwood,
for only about six months, and had no plan to reside there indefinitely.
Instead, Mother planned to relocate with Child to a “move-in ready” trailer
she did not own in Winslow, that had a “busted . . . in” door, needed new
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Decision of the Court
flooring, and could not obtain water service until a $281 connection fee was
paid. Mother testified she would have one of the two bedrooms in the
trailer, and Child another, but expressed no apparent intent to include
Steven or Joy in the move. On this record, we cannot say the juvenile court
erred in concluding Mother was unable to discharge parental
responsibilities.
¶20 Finally, Mother suggests insufficient evidence supports the
juvenile court’s finding that her mental illness was likely to continue for a
prolonged indeterminate period.6 But this finding is directly supported by
the psychologist’s report finding it unlikely Mother will be able to parent
appropriately until she completes “trauma work to help modify the
dysfunctional belief systems and thought patterns” occasioned by “years of
untreated depression and trauma.” Accordingly, we find no error.
II. Best Interests.
¶21 Mother argues insufficient evidence supports the juvenile
court’s determination that Child’s best interests would be served through
termination. Mother’s argument is premised, in part, upon her assertion
that the court erred in concluding DCS made reasonable reunification
efforts. Because we have concluded Mother waived her right to challenge
the adequacy of reunification services, see supra ¶ 15, Mother fails to
demonstrate error upon this basis.
¶22 Mother alternatively relies upon her assertion that she has
established herself as a minimally adequate parent, arguing the best-
interests finding reflects a comparison between her safe, stable home and
another’s, and impermissibly resolves that comparison in favor of a
determination that Child would be “better off” elsewhere. Because we have
concluded that DCS proved that Mother was not able to provide a safe,
stable home as a result of mental illness, see supra Part I(B), Mother’s claim
fails.
¶23 The juvenile court found severance would benefit Child, by
allowing for her adoption into a safe, stable, and permanent home. The
court noted Child was adoptable and in an adoptive placement with her
half-sister, and the placement was meeting Child’s needs. These findings
are supported by the record and sufficient to support the court’s conclusion
6 To the extent Mother relies upon the absence of certain services that
could have aided in assessing her mental health status, the argument is,
again, waived. See supra ¶ 15.
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Decision of the Court
that termination of Mother’s parental rights would serve Child’s best
interests. See, e.g., Crystal E. v. Dep’t of Child Safety, 241 Ariz. 576, 578, ¶ 9
(App. 2017) (“In meeting this burden [to prove termination of parental
rights is in a child’s best interests], DCS may establish that the child is
adoptable and would benefit from an adoptive placement. Additionally,
DCS may present evidence showing that an existing placement is meeting
the needs of the child.”) (citing Maricopa Cty. Juv. Action No. JS-501904, 180
Ariz. 348, 352 (App. 1994), and Mary Lou C., 207 Ariz. at 50, ¶ 19). We find
no abuse of discretion.
CONCLUSION
¶24 The order terminating Mother’s parental rights to Child is
affirmed.
AMY M. WOOD • Clerk of the Court
FILED: JT
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