Harold B. v. Dcs ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
HAROLD B., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, C.B., L.B., R.B., Appellees.
No. 1 CA-JV 20-0088
FILED 11-19-2020
Appeal from the Superior Court in Mohave County
No. B8015JD201804060
The Honorable Rick A. Williams, Judge
AFFIRMED
COUNSEL
The Stavris Law Firm PLLC, Scottsdale
By Alison Stavris
Counsel for Appellant
Arizona Attorney General’s Office, Mesa
By Amanda Adams
Counsel for Appellee Department of Child Safety
HAROLD B. v. DCS, et al.
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Samuel A. Thumma delivered the decision of the Court, in
which Judge D. Steven Williams and Judge David D. Weinzweig joined.
T H U M M A, Judge:
¶1 Harold B. (Father) appeals from an order terminating his
parental rights to his three children. Because Father has shown no error, the
order is affirmed.
FACTS AND PROCEDURAL HISTORY
¶2 Father and Tara S. (Mother) are the parents of C.B., L.B. and
R.B.1 Mother has significant cognitive deficiencies, functional limitations
and behavioral health issues. She also was abused physically and
emotionally and, as an adult, her father sexually abused her, with her
mother’s (maternal grandmother) facilitating that abuse.
¶3 Mother has been determined to be seriously mentally ill and
has been diagnosed with depression and anxiety. Mother lacks self-
awareness, and her conditions often make her aggressive, irrational and
erratic. Mother’s parental rights to two other children were terminated
previously. After Mother’s father died in June 2017, Mother began a
relationship with Father.
¶4 In May 2018, Mother gave birth prematurely to twins, C.B.
and L.B., who spent the next month in the neonatal intensive care unit. The
Department of Child Safety (DCS) investigated after Mother became
aggressive with hospital staff and tried to remove medical equipment from
one of the babies. DCS found that the parents were unprepared for the
children’s release from the hospital and their home was unfit for premature
twin babies. Moreover, maternal grandmother was living in the home.
¶5 Father agreed the parents’ home was not appropriate for the
children. He also acknowledged suffering from post-traumatic stress
disorder but denied needing treatment. The next month, when the twins
were released from the hospital, the parents still lacked adequate housing
1Mother’s parental rights were terminated, and she is not part of this
appeal.
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HAROLD B. v. DCS, et al.
Decision of the Court
so DCS took the twins into care and filed a dependency petition. The court
later adjudicated the twins dependent and adopted a case plan of family
reunification.
¶6 DCS provided the parents with rule-out substance abuse
testing (substance abuse is not an issue in this case), a psychological
evaluation and bonding assessment, parenting classes, a parent aide with
visitation and housing resources. DCS also asked the parents to self-refer to
Southwest Behavioral Health Services for mental health services, including
individual therapy. The parents received additional parenting instruction
and therapeutic visits through Mohave Mental Health Clinic and support
services through another provider. Mother generally participated in
services; Father refused behavioral health services but participated in the
remaining services. Service providers noted ongoing concerns with
Mother’s ability to safely parent the children and Father’s ability to
recognize Mother’s limitations and protect the children from her.
¶7 In August 2018, Mother completed a neuropsychological
evaluation with Doctor Kelly Rodriguez. Dr. Rodriguez diagnosed Mother
with a neurocognitive disorder after her testing revealed impairments in
several areas. Dr. Rodriguez also noted that Mother did not have the coping
skills to manage her impulsivity and turbulent emotions, which could put
the children at risk of harm. Dr. Rodriguez stated that Mother needed to
address her history of incest in counseling, but opined that even with
counseling, “there [was] the possibility [that Mother] may not be able to
develop the skills and support system needed to care for her children.” Dr.
Rodriguez concluded that the twins could not safely return home at that
time.
¶8 Mother completed a psychiatric evaluation and participated
in counseling through Southwest Behavioral Health, though her
participation was inconsistent. During various sessions, Mother’s
counselors described her as unfocused, confused, agitated, tired, and as
having “difficulty comprehending what is said.” Although Mother
participated in therapy, she refused to address her past trauma, or
acknowledge that her father had sexually abused her.
¶9 In November 2018, Father completed bonding assessments
through Mohave Mental Health. The therapist found that Father had a
healthy attachment with the twins but noted he would “benefit from
learning some additional parenting skills.” In March 2019, Mother
completed bonding assessments through Mohave Mental Health. The
therapist found that Mother shared an unhealthy attachment with the
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HAROLD B. v. DCS, et al.
Decision of the Court
twins. The therapist noted that Mother was very inconsistent in her
parenting skills, as she only sometimes responded to the children’s cues,
soothed them, or provided appropriate toys.
¶10 As the dependency progressed, Mother and Father obtained
adequate housing but made only minimal behavioral improvements
through the parent-aide services. By February 2019, the parents had
progressed to in-home visits. Even so, the parent aide noted continual
concerns about Mother’s ability to safely parent the children and Father’s
ability to keep the children safe from Mother. The parent aide had to
intervene or redirect the parents at almost every visit.
¶11 In April 2019—after a year of services—the parent aide noted
that Mother “is still demonstrating a lack of skill in responding
appropriately and identifying safety concerns” and she “is often redirected
by Parent Aide and [Father] and has to be told multiple times how and why
something is a safety concern.” The parent aide also noted that Mother
“does not always appear self-aware” and “becomes easily distracted and
leave[s] the [girls] unattended.” The parent aide reported that although
Father was active in redirecting Mother, he “has not recognized why [she]
poses a safety concern in caring for the girls.” That same month, after a
change in case plan to severance and adoption, DCS moved to terminate
the parents’ rights to the twins under the neglect ground, and the other
grounds of mental illness and mental deficiency as to Mother.
¶12 In July 2019, Mother gave birth to R.B., who remained in the
intensive care unit for three weeks for respiratory issues. In August 2019,
when R.B. was released from the hospital, DCS took her into care and filed
a dependency petition. The next month, DCS moved to terminate Mother
and Father’s parental rights to R.B. under the neglect ground and
additionally as to Mother under the mental illness and mental deficiency
grounds.
¶13 Concerns about the parents’ ability to safely parent the
children persisted. By October 2019, the parent aide reported that she still
had to intervene often to prevent injuries to the children because Mother
“continues to lack self-awareness, which leads to unsafe situations,” and
that Father still had not recognized why Mother poses a safety concern for
the children. Once the parent-aide service closed, the DCS visitation officer
reported similar concerns. Meanwhile, the parents moved back into an
unsafe home for the children and allowed maternal grandmother to live in
a recreational vehicle on the property.
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HAROLD B. v. DCS, et al.
Decision of the Court
¶14 The superior court held a contested termination adjudication
in January 2020. After DCS rested in its case in chief, Father moved for a
“directed verdict,” which the court denied. After the trial, the superior court
issued a ruling terminating the parents’ rights. This court has jurisdiction
over Father’s timely appeal pursuant to Article 6, Section 9, of the Arizona
Constitution, Arizona Revised Statutes (A.R.S.) §§ 8-235(A), 12-120.21(A)
and 12-2101(A) and Arizona Rules of Procedure for the Juvenile Court 103
and 104 (2020).2
DISCUSSION
¶15 As applicable here, to terminate parental rights, a court must
find by clear and convincing evidence that at least one statutory ground
articulated in A.R.S. § 8-533(B) has been proven and must find by a
preponderance of the evidence that termination is in the best interests of the
child. See Kent K. v. Bobby M., 210 Ariz. 279, 288 ¶ 41 (2005); Michael J. v. Ariz.
Dep’t of Econ. Sec., 196 Ariz. 246, 249 ¶ 12 (2000). Because the superior court
“is in the best position to weigh the evidence, observe the parties, judge the
credibility of witnesses, and resolve disputed facts,” this court will affirm
an order terminating parental rights so long as it is supported by reasonable
evidence. Jordan C. v. Ariz. Dep’t of Econ. Sec., 223 Ariz. 86, 93 ¶ 18 (App.
2009) (citation omitted).
¶16 On appeal, Father argues that DCS failed to make a diligent
effort to provide Mother with appropriate services, which “directly
affected” him. He further asserts that no reasonable evidence supports the
termination order, and the superior court erred in finding that Father was
“unable to protect the children from mother’s deficits.”
¶17 As part of the order terminating Mother’s parental rights, the
superior court found that DCS made reasonable efforts to provide her with
adequate reunification services. Father argues that DCS’s “failure to offer
Mother . . . the specified services to address her cognitive deficits . . . directly
affected” him, but he does not address whether he can raise this claim on
appeal. See A.R.S. § 8-235(A) (only aggrieved parties may appeal from a
final order); In re Pima Cty. Juv. Action No. B-9385, 138 Ariz. 291, 293 (1983)
(“To qualify as an aggrieved party, the judgment must operate to deny the
party some personal or property right or to impose a substantial burden on
the party.”). Because the finding pertains only to Mother’s parental rights,
it does not act to deny Father a personal right or bear directly upon his
2Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.
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Decision of the Court
personal interest in the children. See In re Maricopa Cty. Juv. Action No. JS-
5894, 145 Ariz. 405, 408 (App. 1985) (mother lacked standing to challenge
termination order pertaining to father).
¶18 On the merits, the superior court found that Father was
unable to provide the children with appropriate housing or supervision
from Mother who posed a significant risk to their health and welfare. The
court noted the issues Mother presented, including that she was “unable to
recognize threats and safety risks for the children” and that she has
“significant aggression and impulsivity issues,” “is quick to anger” and
“does not take redirection from either service providers or the father.” The
court found Father “is unable to protect the children from [M]other’s
deficits,” that he “will rely on the mother to care for the children,” and that
grandmother would have access to the children if in the parent’s care. The
record supports these findings. The record also highlights how Mother’s
deficiencies place the children at risk of harm during normal daily
interactions with her — in turn necessitating a second caregiver who must
provide constant oversight of Mother and the children — which Father
could not do.
¶19 Although Dr. Rodriguez concluded that Mother needed to
address her past trauma, Mother refused to do so. The case manager
testified that Mother continues to assert that she had carried on a sexual
relationship with her stepfather and therefore “doesn’t recognize [her past
incest] as abuse.” Dr. Rodriguez voiced concern that Mother’s denial
nullifies her ability to protect the children from grandmother. Indeed,
Mother stated she did not want to force grandmother to leave the property.
¶20 Father likewise failed to show that he would protect the
children from Mother or from grandmother. At trial, Father testified that he
and Mother “spent much time going over [Mother’s past trauma] and
working through it.” Moreover, when asked whether he believed that
grandmother had acted inappropriately with Mother, Father testified, “I
don’t believe that.” Nor did either parent articulate a plan to protect the
children from grandmother. The parents also knew that DCS required safe
housing, but Father testified that the home was still not ready for the
children, and grandmother was still living on the parents’ property.
¶21 As noted above, Mother was unable to show minimally
adequate parenting skills during the dependency, and the parent aide
reported safety concerns on most visits. The visitation notes support the
case manager’s testimony that without continual oversight and
intervention, the children would be at significant risk in Mother’s care.
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HAROLD B. v. DCS, et al.
Decision of the Court
Despite Mother’s inability to safely care for the children, Father only
minimally enhanced his protective capacities during the case. Indeed, the
case manager testified that at the time of the termination hearing, the
parents’ parenting skills had not significantly improved, and they were still
receiving redirection for the same issues during visits. The DCS visitation
supervisor reported that Mother still did not understand how to properly
feed R.B. and picked her up incorrectly; Mother also became
“overwhelmed,” “emotional” and “cri[ed] with the children if they are
upset.” She further testified that although Father tries to redirect Mother,
he is only successful “sometimes,” and “becomes overwhelmed and doesn’t
know what to do.”
¶22 The case manager expressed ongoing concern that Father did
not fully recognize the risks Mother posed to the children. The parent aide
similarly noted concern that Father minimized or failed to recognize
Mother’s issues. For example, at a visit in October 2019, Father left Mother
to supervise the girls while he cleaned up, and the parent aide had to
intervene to prevent serious injury as L.B. began falling from a slide. Mother
appeared “completely unaware” and told the parent aide the child was
“fine.” Yet Father continued to express his reliance on Mother. He
repeatedly told the parent aide that he could not handle the children on his
own and needed to rely on Mother for help. He also maintained that he
“does not have the equipment to raise the girls without” Mother.
¶23 At trial, Father testified that he would leave Mother if needed
to protect the children. But he also testified that he and Mother were
engaged, and he minimized her parenting deficits. Father testified that he
felt Mother had made “major progress,” that she “could do this” and that
“it wasn’t as bad as these people are making it out to be.” Reasonable trial
evidence supports the court’s finding that Father is unable to provide the
children with proper supervision and housing, causing unreasonable risk
of harm to their health or welfare.
¶24 Father next argues that the superior court erred in finding that
severance was in the children’s best interests. To support his argument,
Father points to testimony in the record favorable to his position. But the
superior court considered the totality of the evidence, and this court will
not reweigh it on appeal. Instead, this court looks to determine whether
reasonable evidence supports the superior court’s order. Jesus M. v. Ariz.
Dep’t of Econ. Sec., 203 Ariz. 278, 282 ¶ 12 (App. 2002). “[A] determination
of the child’s best interest must include a finding as to how the child would
benefit from a severance or be harmed by the continuation of the
relationship.” Maricopa Cty. Juv. Action No. JS-500274, 167 Ariz. 1, 5 (1990).
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HAROLD B. v. DCS, et al.
Decision of the Court
¶25 The court found that continuing the parent-child relationship
would be detrimental because “it would delay permanency, leaving the
children to linger in care for an indeterminate period.” Indeed, after 20
months of services, Father had made only minimal improvements and was
still unable to protect the children from Mother’s mental-health and
cognitive limitations. The case manager testified that the children would
linger in foster care, until such time (if ever) the parents could reach an
appropriate parenting level.
¶26 The court also found that severance would benefit the
children because “it would further the plan of adoption, which would
provide the children with permanency and stability,” the children are in
adoptive placements who are meeting their needs and the children are
otherwise adoptable. The record supports these findings.3
CONCLUSION
¶27 The order terminating Father’s parental rights is affirmed.
AMY M. WOOD • Clerk of the Court
FILED: AA
3 Father also challenges the denial of his motion for a directed verdict, or
judgment as a matter of law. The Juvenile Court Rules do not recognize
such a motion and, even if they did, the court did not err in finding DCS’s
evidence was legally sufficient to withstand the motion. See Ariz. R. Civ. P.
50(a)(1) (denial proper when court finds a jury would have a “legally
sufficient evidentiary basis to find for the party on that issue”).
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