Lynda H. v. Dcs, J.S. ( 2017 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
LYNDA H., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, J.S., Appellees.
No. 1 CA-JV 17-0130
FILED 10-24-2017
Appeal from the Superior Court in Maricopa County
No. JD29316
The Honorable Alison Bachus, Judge
AFFIRMED
COUNSEL
Law Office of H. Clark Jones, LLC, Mesa
By Clark Jones
Counsel for Appellant
Arizona Attorney General’s Office, Tucson
By Cathleen E. Fuller
Counsel for Appellee Department of Child Safety
LYNDA H. v. DCS, J.S.
Decision of the Court
MEMORANDUM DECISION
Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge Diane M. Johnsen joined.
C R U Z, Judge:
¶1 Lynda H. (“Mother”) appeals from the superior court’s order
terminating her parental rights, challenging only the court’s finding that the
Department of Child Safety (“DCS”) made diligent efforts to provide
appropriate reunification services. We affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 Mother and Derick S. (“Father”)1 are the biological parents of
J.S., who was born in December 2011.2 Mother conceived J.S. by way of
artificial insemination while she was in a relationship with Sherilynn B-S.
In June 2014, when J.S. was two years old, DCS received reports that Mother
had been handling J.S. roughly and that she refused to take him for medical
care related to his ears. Mother and her partner Sherilynn had been in a
verbal altercation and Mother left with J.S.; when Mother returned, J.S. had
dried blood around his ears from scratching and was crying. DCS took no
action concerning these reports.
¶3 In early October 2014, DCS received a report that Mother had
been seen smacking J.S. and pulling him by his arm down the street. The
report also described another incident in which Mother’s adult son, John
H., yelled at J.S. and pushed him to the floor. When Sherilynn confronted
Mother and told her John could no longer stay in their house, Mother pulled
glass picture frames off the wall and threw them toward where J.S. was
1 Father is deceased and is not a party to this appeal.
2 Mother is the biological parent of five other children, two of them
adults, one of which lived with her at the time of severance, but her parental
rights were terminated to them in another state due to child abuse and
neglect, and they are not parties to this appeal.
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Decision of the Court
standing, causing Sherilynn to pick up J.S. to prevent him from being
harmed. Mother then charged at Sherilynn, pushing her to the floor while
Sherilynn was holding J.S.
¶4 On October 19, 2014, DCS took temporary custody of J.S.3
During its investigation, DCS received reports that Mother was impatient
and physically abusive with J.S. and that John had a history of animal
cruelty and inappropriate sexual acts. Mother denied being aggressive
towards J.S., and noted that although John had a history of mental illnesses
and animal cruelty, she did not believe he posed a danger to J.S.
¶5 On October 22, 2014, DCS filed a dependency action, alleging:
Mother committed domestic violence against Sherilynn in the presence of
J.S.; Mother neglected J.S. by failing to protect him from John; Mother
physically and emotionally abused J.S.; and she failed to provide him with
the basic necessities of life. DCS expressed concern that Mother had
suffered a childhood brain injury that could contribute to her impulsive
control and anger issues.
¶6 At the preliminary protective hearing, DCS offered Mother
individual counseling with a domestic violence component, parent-aide
services, a case aide, and recommended a psychiatric evaluation, for which
Mother would self-refer. The goals of the services were to help Mother
address her aggression and violent tendencies and to learn how to better
protect J.S. for his safety and well-being. DCS also requested a
psychological consultation.
¶7 In November 2014, Mother completed her psychiatric
evaluation with Southwest Behavioral Health Services (“SBHS”). She was
diagnosed with an adjustment disorder with depressed mood, a parent-
child relational problem, and a partner relational problem. Mother enrolled
in parenting classes and individual counseling at SBHS, and signed up with
New Horizons Counseling Service for “domestic violence/parenting
treatment/education.”
¶8 In March 2015, the court adjudicated J.S. dependent as to
Mother on all grounds except for the allegation that Mother physically
abused J.S.
¶9 In April 2015, the case manager reported DCS had completed
a psychological consultation of Mother and was awaiting the results. Based
3 Sherilynn moved to intervene and her intervention was granted in
May 2015. J.S. has since been in her care.
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Decision of the Court
on the results of that report, DCS requested Mother complete another
psychological evaluation in July 2015 with Dr. Mansfield-Blair. Dr.
Mansfield-Blair diagnosed Mother in September 2015 with borderline
personality disorder and gave her a rule-out diagnosis of post-traumatic
stress disorder (“PTSD”), which the psychologist opined would likely
interfere with Mother’s ability to parent effectively. Dr. Mansfield-Blair
opined Mother’s prognosis was “relatively poor,” and highlighted concerns
regarding Mother’s ability to care for J.S., particularly with her grown adult
children moving back into her life and Mother’s past difficulties in child-
rearing. Dr. Mansfield-Blair recommended Mother participate in “long-
term therapy,” specifically Dialectical Behavioral Therapy (“DBT”). Dr.
Mansfield-Blair raised concerns that Mother was defensive during the
evaluation, sought to downplay her responsibility in domestic and child-
rearing issues, and concluded Mother was “not likely to be able to fully
address her parenting issues without first identifying and acknowledging
her own core issues and addressing those issues . . . .”
¶10 In October 2015, the case manager reported Mother had not
been regularly participating in the one-on-one sessions with the parent
aide, a “component necessary for the successful completion of parent aide
services.” The case manager also sent Mother a letter explaining the
services she should complete, including domestic violence classes for
perpetrators, and urged her to contact her “health insurance provider as
soon as possible to arrange for the therapeutic course of treatment . . .
recommended in [her] psychological evaluation.”
¶11 In November 2015, Mother was advised by the psychologist
who performed her evaluation that she could seek DBT therapy through
SBHS. While Mother made efforts to obtain DBT services through self-
referral, the case manager also initiated a DBT referral.
¶12 Over the next few months, Mother missed almost half of her
one-on-one sessions with the parent aide, did not complete her domestic
violence coursework, and failed to confirm parent-aide sessions ahead of
time. When the parent aide attempted to review with Mother the effects of
domestic violence on Mother’s children, Mother became upset and raised
her voice, claiming she was the victim of violence at the hands of Sherilynn.
From June 2015 to January 2016, the parent aide noted Mother made no
progress towards changing her behavior regarding violence or safety;
however, the parent aide did note Mother had good interactions with J.S.
and appropriately redirected him. The parent-aide services were closed in
January 2016 due to Mother’s failure to complete the one-on-one sessions.
The aide noted that while Mother completed visitations, she was unwilling
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Decision of the Court
to engage in one-on-one parenting sessions to complete parenting
education and work on behavioral changes.
¶13 In early January 2016, Mother’s counsel informed the case
manager that SBHS was no longer offering DBT and counsel requested
information about other providers. Mother’s counsel also noted Mother
had attempted to self-refer for domestic violence counseling but needed a
referral. After receiving no response, in late January 2016, Mother’s counsel
again contacted the case manager with concerns. The case manager
submitted a new referral for domestic violence counseling, although the
referral had not been processed by early February. The case manager then
relayed a response that Mother should seek DBT through the Arizona
Health Care Cost Containment System or her own insurance as it would be
quicker, and offered to submit a referral if Mother needed it. In early
February, Mother’s counsel again advised the case manager that Mother
needed a referral to begin DBT counseling.
¶14 In March, Mother reiterated her need for a referral for DBT,
suggesting the referral also include domestic violence counseling as well.
DCS issued the referral on March 24, although Mother had not been
assigned providers by early April.
¶15 On April 16, 2016, Mother moved to exclude not less than
fifteen months from the time J.S. had been in out-of-home placement for
purposes of Arizona Revised Statutes (“A.R.S.”) section 8-533(B)(8)(c), and
requested the court find DCS had failed during that period to make
reasonable and diligent efforts to provide appropriate reunification
services. The State filed no opposition, and the court granted the motion
on May 20, 2016. The State then filed an untimely opposition, arguing the
appropriate remedy was to require DCS to provide appropriate services,
not to exclude time from out-of-home care. The State moved to terminate
Mother’s parental rights on July 19, 2016. J.S.’s guardian ad litem (“GAL”)
joined with the State, agreeing that it was not in J.S.’s best interest to delay
permanency by excluding time, and the appropriate judicial process would
be to litigate these issues at a severance trial. J.S.’s placement joined with
the State and GAL on both points. In August, the superior court set all
pending matters for disposition at the severance trial, and ordered DCS to
provide Mother with the second phase of DBT (group therapy) on an
expedited basis.
¶16 Mother, meanwhile, had begun DBT (individual therapy)
with a domestic violence component with Dr. Capps-Conkle at Buwalda
Psychological Services in late May. In Mother’s self-assessment, completed
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Decision of the Court
for DBT in May 2016, she disagreed with her diagnosis of PTSD and stated
she was the victim of domestic violence, was participating because the court
ordered her to do so, and had been told she had to stay with her abuser.
During that same time, Mother missed three consecutive weeks of visits
with J.S., and was involved in another domestic-violence incident with a
subsequent domestic partner.
¶17 After DCS expedited its referral, Mother began participating
in the group portion of DBT therapy. In November 2016, the case manager
reported Mother continued to deny her behaviors, blame others, and to
insist she was the victim, not the perpetrator. In addition, it was noted by
the DCS case manager that Mother’s adult children were living with her, a
concern for DCS considering her adult children’s past incidents of harmful
behavior.4
¶18 Mother’s contested severance hearing took place over four
days in December 2016 and January 2017. Sherilynn testified that during
her relationship with Mother, she had not known that Mother’s adult sons
had past histories of harmful behavior, and Mother’s partner from February
to April 2016 testified she once caught John naked on the backside of her
daughter. Mother’s partner further testified Mother had picked up the
partner’s son, then approximately eight years old, and tossed him on the
bed, spanked the partner’s children, and constantly screamed at them.
Mother’s partner also stated she had set up Mother to attend DBT
counseling in about mid-February 2016, but Mother refused to go. Mother
denied many of the accusations against her.
¶19 The DBT therapist, Dr. Capps-Conkle, noted that her
treatment of Mother was based on Mother’s self-reporting. She disagreed
with Mother’s prior personality disorder diagnosis, but testified Mother
could eventually present with a personality disorder, and agreed with the
PTSD diagnosis. Dr. Capps-Conkle felt Mother still needed another three
or four months of DBT treatment, noting that such treatment could have
already been completed had Mother started the DBT counseling earlier.
¶20 The superior court terminated Mother’s rights based on the
fifteen-month out-of-home placement ground of A.R.S. § 8-533(B)(8)(c) and
found DCS “provided Mother with appropriate services that were tailored
to her needs.” The court denied Mother’s motion to exclude time in care
4 In addition to her son John’s past inappropriate and violent
behaviors, Mother’s son, Robert, had sexually assaulted Sherilynn’s
granddaughter.
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Decision of the Court
due to DCS’s purported delay in providing reunification services, made
detailed findings supporting its determination that DCS had made diligent
efforts, and found no unreasonable delay in either the psychological
evaluation or the referral for DBT. Finally, the court found termination was
in the best interest of the child.
¶21 Mother timely appealed from the court’s order, and this Court
has jurisdiction pursuant to A.R.S. §§ 8-235(A), 12-2101(A), and 12-
120.21(A).
DISCUSSION
¶22 We review the superior court’s order terminating a parent’s
rights for an abuse of discretion. Mary Lou C. v. Ariz. Dep’t of Econ. Sec., 207
Ariz. 43, 47, ¶ 8 (App. 2004). We view the evidence and any reasonable
inferences in the light most favorable to sustaining the court’s decision, and
will affirm a termination order that is supported by reasonable evidence.
Jordan C. v. Ariz. Dep’t of Econ. Sec., 223 Ariz. 86, 93, ¶ 18 (App. 2009).
¶23 Parents “have a fundamental right to raise their children as
they see fit, but that right is not without limitation.” Minh T. v. Ariz. Dep’t
of Econ. Sec., 202 Ariz. 76, 79, ¶ 14 (App. 2001). A court may sever those
rights if it finds by clear and convincing evidence that one of the statutory
grounds for severance is met, and finds by a preponderance of the evidence
that severance is in the best interest of the child. A.R.S. § 8-533(B); Kent K.
v. Bobby M., 210 Ariz. 279, 284, ¶ 22 (2005).
¶24 Termination of parental rights based on fifteen-months out-
of-home placement requires a finding that 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 caused the child’s out-of-home placement,
and there exists a substantial likelihood 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). Pursuant to A.R.S. § 8-533(B)(8), DCS also must
show it has made a diligent effort to provide appropriate reunification
services. See Jordan C., 223 Ariz. at 93, ¶ 19. DCS is not required to provide
every conceivable service or undertake rehabilitative measures that are
futile, but it must offer measures that will provide a parent the time and
opportunity to participate in programs with a reasonable prospect of
success in reunifying the family. Id. at 94, ¶ 20.
¶25 Mother argues the court erred by finding DCS made requisite
efforts to reunify the family, arguing DCS delayed offering her DBT even
though the psychologist concluded she needed such therapy. DCS fails to
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Decision of the Court
“make a ‘concerted effort to preserve’ the parent-child relationship when it
neglects to offer the very services that its consulting expert recommends.”
Mary Ellen C. v. Ariz. Dep’t of Econ. Sec., 193 Ariz. 185, 192, ¶ 37 (App. 1999).
¶26 In Mary Ellen C., the caseworker identified a lack of
improvement in the parent’s mental health as the primary basis for the
decision to seek severance, yet did so without checking the parent’s records
and sought severance before providing the parent a psychiatric evaluation.
Id. at 193, ¶ 39. In that case, the court found the State made only a
“negligible effort” to learn what services the parent was receiving or how
she was progressing, and neglected to secure necessary psychiatric
information for the doctor who conducted the psychological evaluation, yet
relied upon his assessment of the parent to support severance. Id. The court
further found the State failed to inform the doctor that the parent had
participated fully in all services offered, and the State offered no evidence
to rebut the parent’s evidence of progress. Id. at ¶ 40. The doctor’s opinion
that the parent would not improve was based on his own misconception
that the State had offered the parent the intensive psychiatric services that
had been recommended. Id. at ¶ 41. In that case the court found the State’s
effort to be “belated, fitful, and indifferent,” concluding that because of its
negligible efforts the State “failed to establish by clear and convincing
evidence that it made a reasonable effort to preserve [the] family . . . .” Id.
at 192-94, ¶¶ 38-44.
¶27 In contrast to Mary Ellen C., more than reasonable and
sufficient evidence supports the superior court’s finding here that DCS
made diligent efforts to reunify the family. The court made detailed factual
findings regarding the adequacy of services DCS provided, such as case
management, a psychiatric evaluation, parent-aide sessions, parenting
classes, domestic-violence counseling (both before DBT and then as part of
her DBT counseling), psychological evaluations, and counseling. The court
found Mother’s psychological evaluation was not unreasonably delayed, as
Mother underwent a psychiatric evaluation, then a psychological
consultation, before it was recommended that a formal psychological
evaluation be conducted. The court noted the three-month delay between
the referral and psychological evaluation, but found such delay was not due
to a lack of reasonable efforts by DCS, and we agree. DCS provided
referrals for evaluations and consultations as required or requested, to
provide Mother with as many services as would help reunify her with J.S.
The results of the psychological evaluation were provided to Mother in
September 2015, and in October DCS emailed Mother advising her to refer
for needed services, such as DBT. The case manager initially referred
Mother for DBT in November 2015, and although that referral was delayed,
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Decision of the Court
Mother did not reach out to the case manager for alternative services until
January. At that time, DCS advised Mother a self-referral would be quicker,
but offered the option to refer if requested. Mother requested a referral for
DBT in February and was referred in March. The court found a one-and-a-
half-month delay was not unreasonable, and we also note that when her
partner helped get the DBT therapy scheduled, Mother refused to go.
¶28 In any event, based on ample evidence, the court also found:
[A]ny delay with DBT for Mother did not delay
reunification, because . . . Mother has not been
forthcoming with Dr. Capps-Conkle. Mother’s
lack of candor with her therapist has
undermined the ability of the treatment to deal
with the issues that Mother must address to
safely parent [J.S.]. If DBT had started earlier,
Mother’s denials about her role in domestic
violence simply would have started earlier (and
continued during treatment, as noted above).
In sum, in contrast to the situation in Mary Ellen C., the efforts DCS
provided here were not unreasonable, nor “belated, fitful, and indifferent.”
193 Ariz. at 193, ¶ 38.
¶29 Further, although Mother challenges the court’s diligent-
efforts determination with respect to the psychological evaluation and DBT
referral, we cannot ignore that Mother failed to complete the parent-aide
services DCS offered her, regularly denied responsibility for the events
leading up to the dependency and severance petitions, and failed to change
her behavior, as noted by the court in its order.
¶30 Because reasonable evidence supports the court’s diligent-
efforts determination, the court did not abuse its discretion in terminating
Mother’s parental rights to J.S. Mother does not challenge the court’s order
terminating her parental rights on any other basis; the evidence in the
record supports the court’s statutory basis for termination and its best
interest findings.
¶31 The superior court found DCS met its burden in proving the
fifteen-month out-of-home placement statutory ground by clear and
convincing evidence. J.S. was removed from Mother’s care in October 2014,
well in excess of fifteen months. Mother denied being the perpetrator of
domestic violence, downplayed or denied the extent of her own conduct,
all of which compromised her ability to address the reasons why J.S. was
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Decision of the Court
removed from her care. Mother continually placed children in her care at
risk by allowing her adult sons to have access to them, even though she was
fully aware of their past behavioral, physical, and sexual problems. The
court found there was a substantial likelihood that Mother would be unable
to exercise proper and effective parental care and control in the near future,
based on her continued denial of her history of perpetrating violence and
failure to address the risks her adult children posed to J.S. The court
considered Mother’s argument that Mother’s outbursts were attributed to
the delay in DBT counseling, but disagreed, finding “even after
participating in months of DBT, [Mother] continued the pattern of
deception she demonstrated throughout this case; specifically, Mother was
far from candid during her testimony and attempted to minimize (or deny)
her conduct.”
¶32 The court additionally found DCS met its burden by proving
by a preponderance of the evidence that severance was in J.S.’s best interest.
To establish that severance would be in the child’s best interest, the court
must find either that the child will benefit from termination or that the child
will be harmed by continuation of the parental relationship. Ariz. Dep’t of
Econ. Sec. v. Oscar O., 209 Ariz. 332, 334, ¶ 6 (App. 2004). To determine
whether the child would benefit, the court should consider relevant factors
such as whether the current placement is meeting the child’s needs,
Maricopa Cty. Juv. Action No. JS-8490, 179 Ariz. 102, 107 (1994), whether the
child is adoptable, and whether there is an adoption plan in place for the
child. Oscar O., 209 Ariz. at 334, ¶ 6.
¶33 The superior court found J.S. was placed with an intervenor
who had been a parental figure throughout J.S.’s life. The court found the
intervenor had gone “above and beyond” in caring for all of J.S.’s needs,
was willing to adopt J.S., and J.S. would benefit from severance because he
would be placed in a home free from Mother’s outbursts and domestic
violence. The court heard testimony from Mother that she loved J.S. and
had bonded; however, the existence of a bond is not determinative, see
Dominique M. v. Dep’t of Child Safety, 240 Ariz. 96, 98-99, ¶ 12 (App. 2016),
and the evidence presented supported the determination that severance of
Mother’s parental rights would provide J.S. with permanency and stability
and it would be otherwise detrimental to J.S. if Mother were permitted to
maintain the parent-child relationship.
CONCLUSION
¶34 Sufficient evidence supported the superior court’s finding
that DCS made diligent efforts to provide Mother with reasonable
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Decision of the Court
rehabilitative services and the other findings it made in severing Mother’s
parental rights. We therefore affirm the court’s order.
AMY M. WOOD • Clerk of the Court
FILED: AA
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