Shira H. v. Dcs ( 2021 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
SHIRA H., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, C.H., C.H., Appellees.
No. 1 CA-JV 20-0241
FILED 1-26-2021
Appeal from the Superior Court in Yavapai County
No. V1300JD201980027
The Honorable Anna C. Young, Judge
AFFIRMED
COUNSEL
Robert D. Rosanelli Attorney at Law, Phoenix
By Robert D. Rosanelli
Counsel for Appellant
Arizona Attorney General’s Office, Mesa
By Amanda Adams
Counsel for Appellee Department of Child Safety
SHIRA H. v. DCS, et al.
Decision of the Court
MEMORANDUM DECISION
Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Paul J. McMurdie and Judge Cynthia J. Bailey joined.
W I N T H R O P, Judge:
¶1 Shira H. (“Mother”) appeals the juvenile court’s order
terminating her parental rights to C.H. (born February 20, 2009) and C.H.
(born March 23, 2010) (“the children”).1 Mother argues the juvenile court
erred in finding the Department of Child Safety (“DCS”) made reasonable
and diligent efforts to provide appropriate reunification services because
DCS failed to provide Mother with an updated psychiatric evaluation. For
the following reasons, we affirm.
FACTS2 AND PROCEDURAL HISTORY
¶2 In early 2016, DCS received multiple reports that Mother had
neglected the children based on her drug use, history of exposure to
domestic violence, and unstable housing. The reports also indicated
Mother frequently left the children home alone or with various caregivers
for extended periods, without any indication of when she would return.
¶3 Initially, DCS arranged for a safety monitor to be in the home,
allowing the children to remain with Mother. But after only a month, DCS
took physical custody of the children when drug paraphernalia was
discovered in Mother’s home within reach of the children. Based on
Mother’s continuing substance abuse and neglect of the children, DCS
initiated dependency proceedings. The court found the children dependent
as to Mother in early 2017.
1 The court terminated Mother’s parental rights to her oldest child,
M.D. (born December 2, 2005), in a separate action in February 2019; M.D.
is not a subject of this appeal.
2 We review the facts and reasonable inferences therefrom in the light
most favorable to affirming the juvenile court’s order. Ariz. Dep’t of Econ.
Sec. v. Matthew L., 223 Ariz. 547, 549, ¶ 7 (App. 2010).
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SHIRA H. v. DCS, et al.
Decision of the Court
¶4 While in DCS care, the older child reported instances of
Mother’s neglect and physical abuse. The child also reported that she did
not feel safe when with Mother or want any contact with her.
¶5 DCS initiated services for Mother to assist in family
reunification. DCS referred Mother for drug testing,3 domestic violence
counseling, a psychological evaluation, individual and family counseling,
parenting classes, parent-aide services, transportation services, and
visitation. To reunify with her children, Mother needed to show that she
could protect them from domestic violence and could provide for their
basic needs. She also needed to demonstrate proper parenting skills,
address her substance abuse issues, and complete all recommended
behavioral health services.
¶6 Mother showed some engagement with the services offered.
She completed a parenting class, and also completed both a substance abuse
and mental health assessment. Mother also completed a psychological
evaluation in 2017 and a psychiatric evaluation in 2018. Mother
participated in unsupervised visitation with the children, but DCS
transitioned the case to supervised visitation after Mother brought her
boyfriend to a visit, creating a safety risk for the children.4
¶7 Mother’s participation in individual counseling, anger
management counseling, and cognitive behavioral therapy was
inconsistent. Mother had a long history of domestic violence relationships,
yet she never completed her domestic violence counseling program.
Mother also failed to complete family counseling—she refused to continue
attending because she disliked the counselor and was not allowed to switch
to another counselor. In addition, Mother did not complete her portion of
a bonding/best interests assessment for the children.
¶8 In January 2020, DCS moved to terminate Mother’s parental
rights to the children. Mother failed to appear at the severance hearing.
Mother’s counsel moved to continue the hearing, explaining Mother had
3 Mother consistently tested positive for marijuana. Mother later
obtained a medical marijuana card and tested within the limits prescribed.
4 DCS determined that Mother’s boyfriend had an ongoing unrelated
DCS case alleging domestic violence.
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SHIRA H. v. DCS, et al.
Decision of the Court
been having car trouble, but the court denied the motion.5 After the
presentation of the evidence, the court took the matter under advisement
and later issued an order terminating Mother’s parental rights, finding DCS
had adequately proven multiple grounds for severance: neglect, fifteen-
month out-of-home placement, and the termination of Mother’s parental
rights to another child within the preceding two years for the same causes.
See Ariz. Rev. Stat. (“A.R.S.”) § 8-533(B)(2), (8)(c), (10). The court also found
severance was in the children’s best interests.
¶9 Mother timely appealed. We have jurisdiction pursuant to
A.R.S. § 8-235(A) and Rule 103(A) of the Arizona Rules of Procedure for the
Juvenile Court.
ANALYSIS
I. Standard of Review
¶10 Parents have a fundamental liberty interest in the custody,
care, and management of their children. Kent K. v. Bobby M., 210 Ariz. 279,
284, ¶ 24 (2005). The court may sever parental rights if it finds clear and
convincing evidence of one of the statutory grounds for severance and
finds, by a preponderance of the evidence, that severance is in the children’s
best interests. See A.R.S. §§ 8-533(B), -537(B); Kent K., 210 Ariz. at 281-82,
288, ¶¶ 7, 41.
¶11 We review the juvenile court’s order severing a parent’s rights
for an abuse of discretion, and we will not disturb the order unless no
reasonable evidence supports its factual findings. E.R. v. Dep’t of Child
Safety, 237 Ariz. 56, 58, ¶ 9 (App. 2015); Matthew L., 223 Ariz. at 549, ¶ 7. As
the trier of fact in a termination proceeding, the juvenile court “is in the best
position to weigh the evidence, observe the parties, judge the credibility of
witnesses, and resolve disputed facts.” Jordan C. v. Ariz. Dep’t of Econ. Sec.,
5 Mother emailed her attorney the day before the severance hearing
stating she had been notified that her vehicle was unsafe to drive. Mother
represented to her attorney that she would try to call in to the hearing, but
never did. DCS told the court that Mother had not been in contact to try to
arrange alternate transportation and argued that Mother’s excuse did not
rise to the level of good cause to continue the hearing. Following the court’s
denial of the motion to continue, Mother did not file a motion for
reconsideration, submit any affidavit or proffer of testimony she would
provide, nor file a motion to set aside the termination order based on her
inability to attend the hearing.
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SHIRA H. v. DCS, et al.
Decision of the Court
223 Ariz. 86, 93, ¶ 18 (App. 2009) (quoting Ariz. Dep’t of Econ. Sec. v. Oscar
O., 209 Ariz. 332, 334, ¶ 4 (App. 2004)). We do not reweigh evidence on
appeal. See Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 282, ¶ 12 (App.
2002).
II. Reunification Services
¶12 The juvenile court may sever parental rights pursuant to
A.R.S. § 8-533(B)(8)(c) if DCS has made diligent efforts to provide the parent
with reunification services, the child has been in an out-of-home placement
for fifteen months or longer, “the parent has been unable to remedy the
circumstances that cause the child to be in an out-of-home placement 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.”
¶13 On appeal, Mother argues the juvenile court erred in finding
DCS made reasonable and diligent efforts to provide her with reunification
services because DCS did not provide her with an updated psychiatric
evaluation. Mother does not challenge that the children have been in an
out-of-home placement for fifteen months or longer.6
¶14 Mother received a psychological evaluation in May 2017. The
psychologist, Dr. Mansfield-Blair, diagnosed Mother with cannabis use
disorder and unspecified personality disorder. Dr. Mansfield-Blair also
stated in the evaluation, “[T]here does not appear to be a need for a
psychiatric evaluation at this time,” but advised that if Mother’s diagnosis
should change in the future, “it may become beneficial to obtain a
psychiatric evaluation” to determine if other treatment strategies would be
helpful. A year later, Mother obtained a psychiatric evaluation through the
Guidance Center. The Guidance Center had diagnosed Mother with
adjustment disorder with anxiety as early as 2016, but in 2019 she was also
diagnosed with major depression.
¶15 Based on Dr. Mansfield-Blair’s evaluation recommendation,
Mother maintains that she should have been provided an updated
6 We also note that Mother does not challenge the other grounds for
severance found by the juvenile court, A.R.S. § 8-533(B)(2) and (10), and we
could affirm on those grounds. See 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.”). However, in our discretion, we choose
to address Mother’s argument as presented.
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SHIRA H. v. DCS, et al.
Decision of the Court
psychiatric evaluation in 2019 or 2020 after major depression had been
added to her psychological diagnosis. Mother argues that an updated
psychiatric evaluation would have given the juvenile court additional
information on her current mental health status. Mother also contends that
by denying her an updated psychiatric evaluation, DCS failed to make a
diligent effort to provide her with adequate services as recommended by
an expert, and thus denied her the opportunity to resolve her mental health
issues through updated treatment/medication to become a more effective
parent.
¶16 We disagree with Mother’s conclusion that DCS failed to
provide adequate services by not requiring an additional psychiatric
evaluation. The record shows that Mother continued to receive psychiatric
services, including medication services, through the Guidance Center in the
years following the 2018 psychiatric evaluation, including after her updated
diagnosis of major depression. Mother’s mental health records from the
Guidance Center were admitted as part of the record and thus the court was
aware of Mother’s updated diagnoses and ongoing treatment
recommendations. Moreover, Mother had declined psychiatric care in the
past and the record shows that in 2020, before the severance hearing,
Mother continued to refuse to participate in group behavioral therapy,
which was recommended to address her ongoing mental health issues. At
that same time, Mother also asserted she did not want any medication for
her mental health conditions.
¶17 In making diligent efforts to provide reunification services
under A.R.S. § 8-533(B)(8), DCS is “not required to provide every
conceivable service,” but must present the parent “with the time and
opportunity to participate in programs designed to help [the parent]
become an effective parent.” Maricopa Cnty. Juv. Action No. JS-501904, 180
Ariz. 348, 353 (App. 1994). There is no indication that an additional
psychiatric evaluation would have allowed Mother to become an effective
parent when she had repeatedly failed to meaningfully participate in or
cooperate with already-recommended mental health treatment over the
previous four years of the case. See Mary Ellen C. v. Ariz. Dep’t of Econ. Sec.,
193 Ariz. 185, 192, ¶ 34 (App. 1999) (stating DCS is not required to take
measures that are futile and need only “undertake measures with a
reasonable prospect of success”). Reasonable evidence supports the
juvenile court’s finding that DCS made diligent efforts to provide
appropriate reunification services.
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SHIRA H. v. DCS, et al.
Decision of the Court
III. Best Interests of the Children
¶18 Mother does not challenge, and has therefore waived any
argument regarding, the juvenile court’s finding that termination of her
parental rights was in the children’s best interests. See Crystal E. v. Dep’t of
Child Safety, 241 Ariz. 576, 577, ¶ 5 (App. 2017). Nevertheless, we note
reasonable evidence supports that finding. See generally Maricopa Cnty. Juv.
Action No. JS-500274, 167 Ariz. 1, 5 (1990) (“[B]est interests of the child are a
necessary, but not exclusively sufficient, condition for an order of
termination.”). Here, the juvenile court found severance would further the
case plan of adoption and provide the children with much-needed
permanency after being in foster care for almost four years. The court also
found “[b]oth children are happy, safe and secure in their current
placements” and that their adoptive placements “are meeting all of the
children’s needs.” Accordingly, reasonable evidence supports the juvenile
court’s finding that severing Mother’s parental rights was in the children’s
best interests.
CONCLUSION
¶19 For the foregoing reasons, we affirm the juvenile court’s order
terminating Mother’s parental rights to the children.
AMY M. WOOD • Clerk of the Court
FILED: AA
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