Cassandra W., Michael S. v. Dcs

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
CASSANDRA W., MICHAEL S., Appellants,
v.
DEPARTMENT OF CHILD SAFETY, E.S., MS., Appellees.
No. 1 CA-JV 16-0176
FILED 12-27-2016
Appeal from the Superior Court in Maricopa County
No. JD23976
The Honorable Joseph C. Welty, Judge
AFFIRMED
COUNSEL
John L. Popilek, P.C., Scottsdale
By John L. Popilek
Counsel for Appellant Cassandra W.
David W. Bell, Higley
By David W. Bell
Counsel for Appellant Michael S.
Arizona Attorney General’s Office, Tucson
By Cathleen E. Fuller
Counsel for Appellee Department of Child Safety
CASSANDRA W., MICHAEL S. v. DCS et al.
Decision of the Court
MEMORANDUM DECISION
Chief Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Kenton D. Jones and Judge Samuel A. Thumma joined.
B R O W N, Chief Judge:
¶1 Cassandra W. (“Mother”) and Michael S. (“Father”) appeal
the juvenile court’s order terminating their parental rights to their two
children. Mother and Father argue there is insufficient evidence in the
record to support the statutory grounds for termination. Father also asserts
the court erred in its best interests finding. For the following reasons, we
affirm.
BACKGROUND
¶2 Mother and Father are the biological parents of E.S., born in
September 2011, and M.S., born in June 2013. Shortly after the birth of M.S.,
Mother sought help for “psychosis and anxiety,” reporting to her therapist
she was having auditory hallucinations. Mother imagined doing “bad
things” to the children and would sometimes see E.S. as “possessed” or
“not her child.” Mother had thoughts of drowning E.S. in a bathtub and
was afraid she would harm her children if she “snapped.” Mother felt
incapacitated for two to three months at a time when she was depressed,
she had frequent thoughts of harming herself and others, and she had
attempted suicide three times in her life. She also stated she had a history
of depression, psychosis, and cutting herself. Mother further reported that,
although she had a long history of mental illness, she had not sought
treatment since 2010.
¶3 The therapist, who was a mandatory reporter, contacted the
Department of Child Safety (“DCS”), expressing concern for Mother’s
ability to care for her children. That same day, DCS contacted Mother, who
to her credit confirmed the mental health issues she had reported to the
therapist and stated she had been taking care of the children daily while
Father was at work. DCS took the children into care and filed a dependency
petition in July 2013, alleging neglect because Mother posed a risk of harm
to the children by failing to properly address her mental health issues. The
petition also alleged Father failed to protect the children from risk of abuse
by failing to recognize the severity of Mother’s mental illness. The juvenile
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Decision of the Court
court found the children dependent as to Mother in September 2013, and as
to Father in May 2014, and approved a case plan of family reunification
concurrent with severance and adoption.
¶4 DCS provided both parents with reunification services,
including psychological evaluations, counseling, parent-aide services, and
supervised visitation. Also, Mother was to continue individual mental
health counseling with her provider and take her medications. After the
parents had participated in services for several months, they were reunited
with the children in January 2014 on the condition that Mother would not
be with them without supervision. Mother continued with her mental
health treatment and began unsupervised time with the children on May
17, 2014. Several days later, however, the children’s daycare provider
reported that Mother had been picking up the children alone, in violation
of a safety plan, and that the children were often dirty and sometimes “had
an odor.” DCS investigated and found M.S. had six dark circular bruises
on his back and extremities and a deep scratch on the side of his face. DCS
again removed the children from the parents, but continued to offer
reunification services.
¶5 In April 2015, DCS filed a motion to terminate Mother’s and
Father’s parental rights to the children, alleging the children had been in
out-of-home placement for fifteen months or longer and the parents had
failed to remedy the circumstances causing the children to be in care,
pursuant to Arizona Revised Statutes (“A.R.S.”) section 8-533(B)(8)(c). The
motion also alleged Mother was unable to discharge her parental
responsibilities due to mental illness, under A.R.S. § 8-533(B)(3). Following
a three-day severance hearing, in April 2016 the juvenile court granted the
motion on each of the statutory grounds and determined that severance
was in the children’s best interests. These timely appeals followed.
DISCUSSION
¶6 To terminate a parent-child relationship, the juvenile court
must determine that clear and convincing evidence exists supporting at
least one ground set forth in A.R.S. § 8-533. Jesus M. v. Ariz. Dep’t of Econ.
Sec., 203 Ariz. 278, 280, ¶ 4 (App. 2002). The court must also find by a
preponderance of the evidence that termination is in the best interests of the
child. Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 22 (2005). “[W]e will accept
the juvenile court’s findings of fact unless no reasonable evidence supports
those findings, and we will affirm a severance order unless it is clearly
erroneous.” Jesus M., 203 Ariz. at 280, ¶ 4. The juvenile court, as trier of
fact, “is in the best position to weigh the evidence, observe the parties, judge
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Decision of the Court
the credibility of witnesses, and make appropriate findings.” Id. If
reasonable evidence supports termination on any one statutory ground, we
need not consider challenges pertaining to other grounds. Michael J. v. Ariz.
Dep’t of Econ. Sec., 196 Ariz. 246, 251, ¶ 27 (2000).
A. Mental Illness
¶7 To terminate Mother’s parental rights under A.R.S. § 8-
533(B)(3), DCS was required to prove that Mother is unable to discharge her
parental responsibilities because of mental illness and there are reasonable
grounds to believe her “condition will continue for a prolonged
indeterminate period.” Under this statute, mental illness is any “substantial
mental condition which renders the person unable to discharge parental
responsibilities and which condition is likely to continue for a prolonged
indeterminate period.” Maricopa Cnty. Juv. Action No. JS-5209 and JS-4963,
143 Ariz. 178, 184 (App. 1984). “Parental responsibilities” include a wide
range of obligations and the statute does not require a showing that the
parent is unable to discharge any responsibilities. Maricopa Cnty. Juv. Action
No. JS-5894, 145 Ariz. 405, 408 (App. 1985). Although DCS has a duty to
make reasonable efforts to rehabilitate a parent suffering from mental
illness before severance can be granted, it need not make efforts that do not
have a reasonable prospect of success. Mary Ellen C. v. Ariz. Dept. of Econ.
Sec., 193 Ariz. 185, 192, ¶¶ 32-34 (App. 1999).
¶8 The juvenile court found that Mother has several mental
conditions that prevent her from functioning at a level where she could
properly parent. The court explained that Mother has little insight
regarding her mental health and is unable to fully address it, “vehemently
deny[ing] any need for appropriate treatment.” Given her unwillingness
to “seek treatment toward change,” the court explained that Mother’s
mental health issues will continue to limit her ability to parent. The court
also found that her continuously anxious state and the stress of the children
would likely result in physical abuse. The court noted the dependency was
initiated because Mother was concerned about harming the children, and
the subsequent removal from the home was “based upon bruises and bite
marks on the youngest child which were either the result of Mother’s
conduct or inattention.” The court concluded that “Mother’s mental health
makes her defensive and unlikely to be open to improvement.”
¶9 Mother does not challenge the juvenile court’s findings that
she suffers from mental illness or that DCS made reasonable efforts to
rehabilitate her. Similarly, Mother does not specifically challenge the
court’s finding that her mental illness will continue for a prolonged
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Decision of the Court
indeterminate period. Instead, though acknowledging that she has
struggled with mental health issues most of her life, Mother suggests such
issues have largely been resolved and that the events leading to removal of
the children occurred solely because of her post-partum depression.
Mother also challenges the court’s finding that Mother will be unable to
discharge her parental responsibilities, asserting that DCS relied on “petty
criticisms” of Mother’s parenting style, such as using foul language and
physical discipline, and carrying a knife in her purse. Recognizing it is not
our role to reweigh the evidence, we conclude that the record supports the
court’s findings.
¶10 Mother is correct in stating that the DCS caseworker was
unfamiliar with some of the details of her then-current mental health
condition and her participation in various services at the time of the
severance hearing. However, the caseworker’s testimony, along with other
evidence in the record, supports the juvenile court’s findings. Mother
acknowledged she has a long history of mental health issues and has been
diagnosed with borderline personality disorder, bipolar disorder, anxiety
disorder and schizophrenia. In December 2014, psychologist Marta DeSoto,
Ph.D., performed a psychiatric evaluation of Mother. Dr. DeSoto testified
that Mother’s disorders caused her to focus on her own needs over those of
her children and she had poor frustration tolerance and impulse control.
Dr. DeSoto noted that Mother had limited insight on how her illness affects
her children and was unable to gauge her own abilities as a parent. Dr.
DeSoto also testified Mother was defensive of her behaviors and minimized
her past mental health issues.
¶11 In September 2015, psychologist Ellen Diana, Ph.D.,
completed a bonding assessment with the parents. Dr. Diana testified that
Mother displayed “very poor boundaries” and downplayed her mental
health diagnoses, stating that many people have the traits she has and she
does not view them as signs of instability. When Dr. Diana asked Mother
about why the children were taken into care, Mother reported that she had
had post-partum depression that was “blown out of proportion.” Dr. Diana
testified that although mental health issues are not necessarily a barrier to
parenting, Mother “fails to grasp the significance” of her issues and is
unwilling to change. Mother testified that she has mental health issues and
admitted that at the time she first sought help following the birth of M.S.,
she had been afraid she might harm her children. She also stated, however,
that her issues at that time had not been serious, and she denied that her
mental health has ever impacted her parenting.
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¶12 Mother’s participation in services was inconsistent. DCS
provided Mother various services, including individual counseling and
parent aide services. As of the time of the severance hearing, Mother had
not attended a counseling appointment since October 2015. She also failed
to participate in counseling from July through September 2015, and
admitted during the hearing that she had recently been sporadic in her
mental health services participation. The March 2015 progress report to the
juvenile court indicated that Mother’s mental health provider believed she
was not taking her medications at that time. Mother also willfully refused
to comply with the court’s order to submit to a hair follicle test.
¶13 The juvenile court accepted Mother’s explanation that she had
been in a serious car accident and was therefore unable to attend certain
visits and appointments in October and November 2015. However, the
record shows that Mother missed 19 out of her 40 most recent visits that
included parent aide services—more than what would be considered
reasonable during the timeframe when she was injured. Also, Mother’s
counseling notes indicate that she had been missing counseling
appointments because she had been acting as “chauffeur for her friends.”
Mother’s behavior during her most recent visits demonstrated her
continued inability to appropriately control her anger and frustration when
dealing with the children. Mother also repeatedly used inappropriate
language at the visits in front of the children and carried a knife in her
purse, despite having agreed not to use such language or bring weapons
during visits.
¶14 Given Mother’s long history of untreated and unresolved
mental illness, erratic behavior, inconsistent record of participating in
services, and tendency to minimize and defend her inappropriate behavior,
reasonable evidence supports the juvenile court’s order terminating
Mother’s parental rights under the mental illness ground, A.R.S. § 8-
533(B)(3).
B. Out-of-Home Placement
¶15 The juvenile court terminated Father’s rights under A.R.S.
§ 8-533(B)(8)(c), which required DCS to prove (1) the children had been in
an out-of-home placement for at least fifteen months; (2) appropriate
reunification services were provided; (3) Father has been unable to remedy
the circumstances causing the placement; and (4) there is a substantial
likelihood that Father will be unable to exercise proper and effective
parental care and control in the near future.
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Decision of the Court
¶16 Father contends the juvenile court erred in finding that DCS
made diligent efforts to provide him with appropriate reunification
services. Although DCS must provide a parent with the time and
opportunity to participate in programs designed to improve the parent’s
ability to care for the child, it need not provide “every conceivable service.”
Mary Ellen C., 193 Ariz. at 192, ¶ 37.
¶17 Over the course of more than two years, DCS provided Father
with a psychological evaluation, anger management counseling and
individual parent aide services designed to help him learn to parent on his
own. Addressing Father’s lack of participation in the services offered, the
juvenile court found that
Father has failed and/or refused to meaningfully engage in
services to address barriers to family reunification. Father
refused to participate in anger management counseling.
Father participated with parent [aide] visitation but missed
several visits. During those he did attend[,] he often deferred
parenting decisions to Mother, and never took steps to
redirect the children or confront Mother when she was being
inappropriate with the children. Father had an opportunity
to benefit from the suggestions from the Parent [Aide] but did
not. Father remained at all times deferential to Mother and
permitted himself to be belittled and bullied by Mother.
Father participated in the psychological evaluation but took
no meaningful steps to address the findings of the
psychologist.
¶18 As alleged in the dependency petition, from the outset of this
case, DCS’s primary concern relating to Father was his failure to protect the
children from potential abuse by Mother because he failed to recognize the
seriousness of her mental illness. Father does not identify what services
DCS should have provided that would have assisted him in acknowledging
and recognizing the impact of Mother’s mental illness on him and the
children. Given his unequivocal position that Mother had no mental illness
problems, as Dr. Diana opined, even if DCS had offered “every . . .
conceivable service” at the highest level possible it would be substantially
unlikely that the parents would change. Despite the various services
offered by DCS, Father continued to display an inability to parent
independently and an unwillingness to stand up to Mother for the benefit
of his children, as evidenced by the psychological evaluation, bonding
assessment, and his own testimony at the severance hearing. The juvenile
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Decision of the Court
court did not err in finding that DCS made diligent efforts in providing
appropriate reunification services to Father.
¶19 Father argues that DCS failed to show he “had any
deficiencies that make him incapable of exercising proper and effective
parental control in the near future.” The record indicates otherwise. In July
2013, before the children were removed, Mother reported to her therapist
that she had told Father of her thoughts about harming the children, but
that he did not want to hear about it. In May 2015, Father participated in a
psychological evaluation with Dr. DeSoto. The resultant report indicated
that Father believed Mother had been addressing her mental illness and it
was “no longer an issue,” despite the fact that Mother had not been
regularly participating in counseling. Dr. DeSoto recommended individual
supervised visits for Father with the children so his parenting could be
assessed without Mother present. However, the DCS case manager
testified that Father missed several of his scheduled parent aide visits and
Mother usually accompanied him to the ones he did attend.
¶20 The record also shows that Father usually deferred to Mother
when parenting, even when her conduct was inappropriate or dangerous
to the children. During a portion of the bonding assessment, Mother was
turning the children upside down and tickling them while they were eating.
Father told Mother to “let them eat,” but did not seem to recognize or
convey to Mother that her behavior was unsafe and could cause the
children to choke. Dr. Diana noted Father allowed Mother to frequently
talk over him and that she made comments which were belittling to him.
Dr. Diana testified that, although Father seemed to have “better instincts”
regarding appropriate behavior for the children than Mother did, he was
“largely ineffective” in communicating his concerns to Mother. Based on
these observations, Dr. Diana opined that she did not believe Father could
protect the children from risk of abuse by Mother.
¶21 At the severance hearing, Father denied that Mother’s mental
health issues had affected her parenting in the past and stated that he
knows more about her mental health than the doctors who treat her. Father
also showed little interest in severing ties with Mother for the benefit of the
children. Although Father claimed he had separated from Mother three
months prior to the severance hearing, they were holding hands at court on
the second day of the trial, and he indicated through testimony they may
reconcile. Given the length of this dependency and Father’s sustained
failure to recognize the danger Mother’s mental illness poses to the
children, reasonable evidence in the record supports the court’s finding that
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Father will be unable to exercise effective parental care and control in the
near future.
C. Best Interests
¶22 Father also challenges the juvenile court’s finding that
terminating his parental rights to the children is in their best interests. To
establish that termination is in a child’s best interests, the court must find
that “the child will benefit from termination of the relationship or that the
child would be harmed by continuation of the parental relationship.”
James S. v. Ariz. Dep’t of Econ. Sec., 193 Ariz. 351, 356, ¶ 18 (App. 1998).
Evidence showing a child is adoptable is sufficient to satisfy a finding that
the child would benefit from the termination of parental rights. Maricopa
Cty. Juv. Action No. JS–501904, 180 Ariz. 348, 352 (App. 1994). In addition,
the juvenile court may also consider whether the child’s existing placement
is meeting the child’s needs. Audra T. v. Ariz. Dep’t of Econ. Sec., 194 Ariz.
376, 377, ¶ 5 (App. 1998).
¶23 The record shows that the children’s current placement is
meeting their needs and is willing to adopt both of them. Further, the
record supports the juvenile court’s finding that the children are likely to
be harmed by the continuation of their relationship with Mother and Father
because Father is unable to recognize the danger Mother poses to them.
DCS met its burden of establishing that termination is in the children’s bests
interests. 1
CONCLUSION
¶24 The juvenile court’s order terminating Mother’s and Father’s
rights to their two children is affirmed.
AMY M. WOOD • Clerk of the Court
FILED: AA
1 Although not challenged by Mother, the record also supports a best
interests finding as to her.
9