Paradise L. 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
PARADISE L., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, A.L., Appellees.
No. 1 CA-JV 20-0062
FILED 3-4-2021
Appeal from the Superior Court in Coconino County
No. S0300AD201900011
The Honorable Elaine Fridlund-Horne, Judge
AFFIRMED
COUNSEL
Law Office of Florence M. Bruemmer PC, Anthem
By Florence M. Bruemmer
Counsel for Appellant
Arizona Attorney General’s Office, Mesa
By Lauren J. Lowe
Counsel for Appellee Department of Child Safety
PARADISE L. v. DCS, A.L.
Decision of the Court
MEMORANDUM DECISION
Judge Randall M. Howe delivered the decision of the Court, in which
Presiding Judge Jennifer M. Perkins and Judge Maria Elena Cruz joined.
H O W E, Judge:
¶1 Paradise L. (“Mother”) appeals the juvenile court’s order
terminating her parental rights to A.L. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 A.L. was born substance exposed to marijuana in August
2014. As a result, the Department of Child Safety petitioned for
dependency, removed A.L. from Mother’s care, and offered her services
including intensive in-home services, random urinalysis testing, substance-
abuse assessment and treatment, behavioral health treatment, and
transportation. Mother minimally participated in services at first but once
she fully participated, she regained custody of A.L., and the dependency
was dismissed in March 2016.
¶3 A few months after regaining custody of A.L., Mother
discharged herself from behavioral-health treatment. About 15 months
later, she had a psychotic episode, tested positive for marijuana and
methamphetamine, and was later admitted to a mental health facility.
¶4 The Department removed A.L. from Mother’s care again and
petitioned for dependency a second time. Mother was resistant to the
mental health and substance abuse treatment but eventually participated in
services. Thereafter, the Department placed A.L. back in her care and the
case proceeded as an in-home dependency in May 2017, and the second
dependency was later dismissed in November 2017. That same month,
Mother was set up with an aftercare plan that recommended that she
maintain medication requirements and follow behavioral health
recommendations. But shortly thereafter, Mother discharged herself from
mental health treatment and stopped taking her prescribed medication.
¶5 As a result, Mother experienced another psychotic episode in
February 2018. She was walking down the street with A.L., talking to
herself, and repeatedly hit herself. Police responded and took A.L. to his
grandparent’s house and took Mother to a mental health facility. After eight
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Decision of the Court
days in the facility, Mother checked herself out against medical advice and
experienced another psychotic episode the following day while in A.L.’s
presence. Mother was behaving erratically and A.L. was non-responsive
and lethargic. Mother told police that she had “smoked earlier [that] []day”
and police believed that A.L. may have been lethargic because of marijuana
exposure. The Department again removed A.L. from Mother’s care and, in
March 2018, petitioned for dependency a third time.
¶6 When A.L. was removed from Mother’s care, the Department
case manager told Mother that fully engaging in services right away was
important because the Department was not going to go through a fourth
dependency. Just a few days later, however, Mother experienced another
psychotic episode at a hotel. Police responded and arrested Mother after
she “kneed” one of the responding officers. Her erratic behavior continued
in jail and she was taken to a mental health facility. Mother admitted to
being under the influence of marijuana at the time. While at the mental
health facility, Mother did not consistently take her medication and
continued to experience psychotic symptoms. She eventually started to take
her medication more consistently and was released from the facility.
Shortly after she was released, she received a serious mental illness
evaluation and—despite denying having any issues—in April 2018, she
was diagnosed as having a serious mental illness.
¶7 After Mother was released from in-patient treatment, she
continued outpatient psychiatric treatment. The Department referred
Mother for other services including a psychological evaluation, inpatient
substance abuse treatment, outpatient substance abuse treatment, random
urinalysis testing, individual therapy, family therapy, parent-aide services,
dialectical behavior therapy, and supervised visitation. With the exception
of dialectical behavior therapy, Mother participated in the services the
Department offered minimally and inconsistently.
¶8 In October 2018, Dr. James Thal completed a mental health
evaluation of Mother, during which she explained that she had mental
health issues dating back to adolescence and self-medicated using
marijuana since high school. Mother disagreed that she had bipolar
disorder and said that her psychotic episodes were caused by the
medications that she was given. She said that her medications were not
helpful and that she preferred self-medicating with marijuana. He opined
that Mother’s “severe mood instability, break with reality, and drug use
ha[d] interfered significant[ly] with her ability to provide safe and effective
parenting of her child.” He diagnosed Mother with bipolar disorder with
psychosis, borderline personality disorder, post-traumatic stress disorder,
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Decision of the Court
an unspecified depressive disorder, anxiety disorder, stimulant-use
disorder, and marijuana-use disorder.
¶9 In December 2018, Mother was arrested while she was outside
someone’s apartment and charged with disorderly conduct. She was
behaving erratically and saying that someone was trying to shoot her.
Mother was also intoxicated and under the influence of marijuana at the
time and police believed that she was mentally unstable.
¶10 In January 2019, the Department moved to terminate
Mother’s parental rights to A.L. based on chronic substance abuse,
recurrent-removal within 18 months, and mental health grounds. That
same month, Mother started fully participating in dialectical behavior
therapy. She also participated in another substance abuse assessment but
minimized her history of methamphetamine use and did not disclose the
recent incidents involving her alcohol use. The Department recommended
that Mother “not use marijuana” because “marijuana use can contribute to
psychotic episodes.” Despite this recommendation, Mother continued to
use and test positive for marijuana.
¶11 In March 2019, Mother signed a six-month deferred
prosecution agreement in her disorderly conduct case. Pursuant to the
agreement, the disorderly conduct charge would be dismissed if Mother
underwent a mental health evaluation and followed the recommended
treatment for six months. After entering the agreement, Mother
participated in her mental health and substance abuse services more
consistently. She completed the early recovery and relapse prevention
portions of her substance abuse treatment. During this time, Mother
continued to test positive for marijuana and had a valid medical marijuana
card even though the Department expressed concern about the risk
marijuana use posed to her mental health. She also tested positive for
alcohol in May 2019, even though she was prohibited from consuming
alcohol as part of her court-ordered mental health treatment.
¶12 In July 2019, the Department amended its petition to
terminate Mother’s parental rights to include that A.L. had been in an out-
of-home placement for a cumulative period of 15 months. A.L.’s behavior
was extreme after visits with Mother. A trauma therapist found that A.L.
was disassociated, angry, and agitated after a visit with Mother. A.L. also
displayed sexualized behavior, engaged in self-harm, and killed a guinea
pig and a chihuahua. A.L.’s behavior improved after he spent time with a
prospective relative placement and had limited contact with Mother.
Therefore, in August 2019, A.L. was placed with those relatives and the
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Decision of the Court
juvenile court temporarily suspended Mother’s visitation until A.L.’s
behavior stabilized.
¶13 In September 2019, the juvenile court held a termination
hearing. The Department’s case manager testified that by September 2018,
Mother had minimally participated in the offered services. She opined that
Mother was unable “to parent at this time due to her substance-abuse”
because every urinalysis test was positive for marijuana despite the
Department expressing concern to her about her marijuana use. The case
manager further testified that the Department and Mother’s physician
recommended that she stop using marijuana because it may induce
psychosis.
¶14 The case manager testified that termination of Mother’s
parental rights was in A.L.’s best interests because his current placement is
willing to adopt him, is meeting his needs, and A.L. would benefit from the
stability since he has been in out-of-home care for nearly half his life. She
further testified that A.L. would be harmed if Mother’s parental rights were
not terminated because he would be exposed to Mother’s continued
substance abuse.
¶15 Dr. Thal testified that he also had concerns about Mother’s
marijuana use and that marijuana can cause psychotic episodes. He opined
that as of October 2018, Mother was not able to parent her child. He testified
that given Mother’s previous engagement in services during the first two
dependencies, followed by her lack of engagement after the dependencies
were dismissed did not mean that A.L. was safe in her care now that she
had engaged in services once again.
¶16 Eve Coffman, Mother’s therapist, testified that even though
Mother stated that she thinks more clearly when not using marijuana, she
continues to use marijuana “to this day” and that Mother told her that “she
could not imagine a life without it.” She also testified that she has no way
of knowing—despite Mother’s current behavioral changes—whether
Mother has made any lasting changes.
¶17 Mother’s therapist from her dialectical behavior therapy
group testified that Mother was doing exceptional in the program and has
made behavioral changes including managing her emotions. She also
testified, however, that dialectical behavior therapy does not help people
who are experiencing psychotic episodes and that a person who is doing
well in that program could still have psychotic episodes.
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Decision of the Court
¶18 Mother testified that she had completed dialectical behavior
therapy, substance abuse treatment, and started eye movement
desensitization and reprocessing therapy. When asked if she learned
anything in her treatment to help her manage her mental health issues, she
testified that her dialectical behavior therapy “in itself has been one of the
biggest helps” for her along with individual therapy, but added that “[i]t’s
not so much the medication.” She testified that she has a medical marijuana
card and has not been told to stop using marijuana. She further testified that
after previous dependencies, not taking her medication was sometimes
beneficial and that the medication is what caused her psychotic episodes.
But she said that she had no intention of stopping her medication now. She
also testified that she did not believe that she has a mental health diagnosis
that can cause psychosis, that she does not have bipolar disorder anymore,
and that she just has a general anxiety disorder. She admitted, though, that
when she experiences a psychotic episode while A.L. is in her care, those
psychotic episodes are harmful to him.
¶19 At the conclusion of the Department’s evidence, the court
granted Mother’s directed verdict motion on the chronic substance abuse
ground, finding that it did not have clear and convincing evidence that
Mother abused dangerous drugs or that her methamphetamine use would
continue for a prolonged indeterminate period.
¶20 During the trial, counsel for the Department objected several
times to Mother’s courtroom conduct. The court later responded that it had
already admonished her a couple of times and that her behavior was “not
prejudicing the State’s case because the [c]ourt is relying on evidence not
any head-nodding by anybody or statements being made” and that the
court “does not consider that as evidence” and does not give any weight to
it.
¶21 Also during the trial, one of Mother’s witnesses, Mary Beth
Laurano, a nurse at the facility where Mother received mental health
treatment, was discovered outside the courtroom trying to listen to the
proceedings. The Department argued that Laurana should be precluded
from testifying at trial for violating the rule of exclusion. The court stated
that it had not admonished the witnesses on the rule of exclusion and
Mother’s counsel stated that he had not told the witnesses that they were
not allowed to listen to the proceedings or talk to other witnesses. The court
therefore said that it did not plan to preclude her from testifying. The court
then called all the witnesses into the courtroom and explained the rule of
exclusion to them and stated that if any of them violated the rule, it could
“impose as a sanction [that] you’re not allowed to testify at all.”
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PARADISE L. v. DCS, A.L.
Decision of the Court
¶22 When the court questioned Laurano about trying to listen to
the proceedings, she denied trying to listen to the proceedings and said that
she only got up and walked around because she had issues sitting for long
periods of time. She also denied hearing any of the witnesses testifying but
stated that she “could hear mumbling” every once in a while. She further
stated that no one had come up to her and asked her what she was doing
other than another witness. Based on her answers, the court stated that it
was unsure that she was the correct witness seen outside the courtroom and
asked her to step outside.
¶23 After leaving the courtroom, court staff heard Laurano tell the
other witnesses about what the court had just questioned her on.
Meanwhile, the court staff member who had observed Laurano trying to
listen outside the courtroom identified her as the witness the court had just
questioned. The court determined that Laurano had not only lied, but then
immediately violated the rule of exclusion that was just explained to her by
discussing what had happened with the other witnesses outside the
courtroom. The court therefore precluded her from testifying.
¶24 After the trial, the juvenile court terminated Mother’s parental
rights based on 15 months’ out-of-home placement, recurrent-removal
within 18 months, and mental health grounds. It found that termination
was in A.L.’s best interests because he was adoptable, and that he had
“suffered trauma upon trauma such that his bond with Mother is based
upon that trauma.” Mother timely appealed.
DISCUSSION
1. Due Process
¶25 Mother argues that she was denied due process when the trial
court precluded Laurano from testifying. We review the juvenile court’s
evidentiary rulings for an abuse of discretion, E.R. v. Dep’t of Child Safety,
237 Ariz. 56, 60 ¶ 19 (App. 2015), which is an exercise of discretion that is
manifestly unreasonable, exercised on untenable grounds, or for untenable
reasons, Doherty v. Leon, 249 Ariz. 515, 521 ¶ 17 (App. 2020).
¶26 The juvenile court did not abuse its discretion by precluding
Laurano from testifying at trial. At a party’s request, the court must order
witnesses excluded so that they cannot hear other witnesses’ testimony.
Ariz. R. Evid. 615. Remedies for violating the rule of exclusion include
“contempt, allowing cross-examination regarding the violation, instructing
the jury regarding the violation, or under the right circumstances,
precluding the testimony.” Spring v. Bradford, 243 Ariz. 167, 174 ¶ 29 (2017).
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PARADISE L. v. DCS, A.L.
Decision of the Court
¶27 The parties here invoked the rule of exclusion. Laurano was
seen trying to listen to the proceedings outside the courtroom. While
neither the court nor counsel told Laurano that she could not listen to the
proceedings or talk to other witnesses, she lied to the court when she was
questioned on the matter. And despite the court’s admonishing her about
the rule of exclusion and warning she could be precluded from testifying if
she violated it, she immediately went outside the courtroom and told other
witnesses what the court had just questioned her on. No other remedy was
appropriate under these circumstances. This case involved no jury and
cross-examination about the violation was futile as she had already lied to
the court in the first instance. The juvenile court did not abuse its discretion
by precluding Laurano. Moreover, Mother has not shown that preclusion
of Laurano prejudiced her because she has not identified what Laurano’s
testimony would have been.
¶28 Mother also argues that the Department’s comments during
the trial denied her due process. She contends that the Department
constantly objected to and made comments about her behavior during trial,
that the Department tried to cast her in a bad light, and that counsel’s
statements amounted to vouching. As an example, Mother points to
counsel’s closing argument during which she stated that she “could not tell
you how many times [she] asked for contempt sanctions” and that in her 30
years of practice, she has “never seen this kind of behavior.”
¶29 The Department’s objections to Mother’s trial behavior, and
counsel’s comments during closing argument did not deny Mother due
process. The trial court stated that “the [c]ourt is relying on evidence not
any head-nodding by anybody or statements being made” and that the
court “does not consider that as evidence” and does not give any weight to
it. And Mother never objected to counsel’s closing argument, which is not
evidence. See Murray v. Murray, 239 Ariz. 174, 179 ¶ 18 (App. 2016). Mother
points to no evidence that the court considered counsel’s objections or
comments when terminating her parental rights. The court’s ruling
expressly listed all the evidence considered and does not mention her trial
behavior or counsel’s closing argument. Mother was not denied due
process and was not prejudiced by the Department’s objections or counsel’s
closing argument.
2. Termination of Mother’s Parental Rights
¶30 Mother argues that no reasonable evidence supports the
juvenile court’s termination order. We review a juvenile court’s termination
order for an abuse of discretion. E.R., 237 Ariz. at 58 ¶ 9. We will affirm an
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Decision of the Court
order terminating parental rights so long as reasonable evidence supports
the order. Jordan C. v. Ariz. Dep’t of Econ. Sec., 223 Ariz. 86, 93 ¶ 18 (App.
2009). To terminate parental rights, a court must find by clear and
convincing evidence that at least one statutory ground in A.R.S. § 8–533 has
been proven and must find by a preponderance of the evidence that
termination is in the child’s best interests. Jennifer S. v. Dep’t of Child Safety,
240 Ariz. 282, 286 ¶ 15 (App. 2016). “The juvenile court, as the trier of fact
in a termination proceeding, is in the best position to weigh the evidence,
observe the parties, judge the credibility of witnesses, and make
appropriate findings.” Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 280
¶ 4 (App. 2002).
¶31 To terminate parental rights for 15 months in an out-of-home
placement, the juvenile court must find clear and convincing evidence that
(1) the Department made diligent efforts to provide appropriate
reunification services, (2) the child has been in an out-of-home placement
for a cumulative total period of 15 months or longer pursuant to court
order, (3) the parent has been unable to remedy the circumstances that
caused the child to be in an out-of-home placement, and (4) a substantial
likelihood exists that the parent will be incapable of exercising proper and
effective parental care and control in the near future. A.R.S. § 8–533(B)(8)(c).
¶32 Reasonable evidence supports the juvenile court’s
termination of Mother’s parental rights. The Department provided
appropriate reunification services including inpatient and outpatient
mental health treatment, a psychological evaluation, inpatient substance
abuse treatment, outpatient substance abuse treatment, random urinalysis
testing, individual therapy, family therapy, parent-aide services, dialectical
behavior therapy, and supervised visitation. A.L. was removed from
Mother’s care in March 2018—the third dependency involving A.L.—and
had been in an out-of-home placement for more than 15 months by the
termination hearing.
¶33 Mother has also been unable to remedy the circumstances that
caused the out-of-home placement and a substantial likelihood exists that
she will be incapable of exercising proper and effective parental care in the
near future. While Mother consistently engaged in mental health treatment
and substance abuse treatment, she only did so beginning in March 2019,
after the Department had already petitioned to terminate her parental
rights and after she was court-ordered to complete six months of mental
health treatment in her criminal case. Because she had two prior
dependencies during which she had engaged in services and then
disengaged when the dependencies were dismissed, Mother needed to
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Decision of the Court
show that she could manage her mental health long-term. This is why the
Department told her that she needed to fully engage in services in March
2018. Despite this warning, Mother did not fully engage in services until a
year later. As a result, Mother had not shown that she could comply with
her mental health treatment long-term by the time of the termination
hearing.
¶34 Instead, the evidence showed that the third dependency
proceeded like the first two. Mother minimally participated in services at
first, experienced multiple psychotic episodes months after services were
first offered, and eventually engaged in services. While Mother testified
that she did not intend to stop taking her medication after this dependency,
she testified that her dialectical behavior therapy and individual therapy
were helping her manage her mental health issues and that “[i]t’s not so
much the medication.” But her dialectical behavior therapist testified that
psychotic episodes are a medical problem and that Mother could still
experience a psychotic episode while participating in the therapy program.
Mother’s testimony that “[i]t’s not so much the medication” helping her
manage her mental health shows that—much like the first two
dependencies—she would likely stop taking her medication if A.L. were
returned to her and the dependency were dismissed.
¶35 Moreover, despite being diagnosed with marijuana use
disorder and told that she should not smoke marijuana because it can
trigger a psychotic episode—similar to the previous psychotic episodes that
Mother experienced while under the influence of marijuana—Mother
continues to smoke marijuana and has said that she cannot “imagine a life
without it.” As a result, Mother’s continued marijuana use risks that she
will have another psychotic episode, which she admitted is harmful to A.L.
Reasonable evidence supports the juvenile court’s finding that Mother has
been unable to remedy the circumstances that caused A.L.’s out-of-home
placement and that a substantial likelihood exists that she will be incapable
of exercising proper and effective parental care in the near future.
¶36 Mother argues that the Department did not make diligent
efforts to offer her reunification services because it did not offer her family
counseling and did not offer her dialectical behavior therapy until the third
dependency. She contends that if it had been offered in the first or second
dependency, no third dependency would have happened. The Department,
however, is not required to offer every conceivable service. See Christina G.
v. Ariz. Dep’t of Econ. Sec., 227 Ariz. 231, 235 ¶ 15 (App. 2011). Nevertheless,
it offered Mother both inpatient and outpatient mental health treatment, a
psychological evaluation, inpatient and outpatient substance abuse
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Decision of the Court
treatment, random urinalysis testing, individual therapy, family therapy,
parent-aide services, dialectical behavior therapy, and supervised
visitation. The Department made diligent efforts to offer Mother
reunification services. Mother’s argument that this dependency would not
have happened had dialectical behavior therapy been offered sooner is
speculative and ignores her own failure to follow her treatment plan during
the two first dependencies.
¶37 Mother argues next that the Department failed to show that
she was unable to discharge parental responsibilities because she had been
fully engaged in services for approximately six months by the termination
hearing. While Mother fully engaged in services starting in March 2019, she
only did so after the Department moved to terminate her parental rights
and after she was court-ordered to complete six months of mental health
treatment in her criminal case. Mother also testified that “[i]t’s not so much
the medication” that is helping her manage her mental health, showing
that—like the first two dependencies—she still does not believe her
medication is helpful. She was also diagnosed with marijuana use disorder
and was told that she should not smoke marijuana because it can trigger a
psychotic episode. Despite this warning, Mother continues to deny that she
has a marijuana addiction—even though she has been self-medicating with
marijuana since she was a teenager—and continues to smoke, thereby
risking that she will have another psychotic episode. Reasonable evidence
supports the juvenile court’s finding that she is unable to discharge parental
responsibilities.
¶38 Mother argues next that termination of her parental rights
was not in A.L.’s bests interests because no evidence was presented that
A.L. would be harmed by a relationship with her. Termination of parental
rights is in a child's best interests if the child will benefit from the
termination or will be harmed if the relationship continues. Alma S. v. Dep’t
of Child Safety, 245 Ariz. 146, 150 ¶ 13 (2018). In determining whether the
child will benefit from termination, relevant factors to consider include
whether the current placement is meeting the child's needs, an adoption
plan is in place, and if the child is adoptable. Demetrius L. v. Joshlynn F., 239
Ariz. 1, 3–4 ¶ 12 (2016).
¶39 Reasonable evidence supports the juvenile court’s finding
that termination of Mother’s parental rights was in A.L.’s best interests.
After visits with Mother, A.L. was angry, agitated, and showed extreme
behaviors such as hitting himself, biting himself, killing animals, and
throwing tantrums lasting 12 hours. A.L. was present when Mother
experienced her psychotic episodes and Mother admitted that those
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Decision of the Court
incidents were harmful to him. Finally, A.L. was in an adoptable placement
with relatives and his behavior improved while in their care. Reasonable
evidence supports the juvenile court’s termination order and we need not
consider the other termination grounds. See Michael J. v. Ariz. Dep’t of Econ.
Sec., 196 Ariz. 246, 251 ¶ 27 (2000).
CONCLUSION
¶40 For the foregoing reasons, we affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
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