Shawna N., John N. v. Dcs, H.N.

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
SHAWNA N., JOHN N., Appellants,
v.
DEPARTMENT OF CHILD SAFETY, H.N., Appellees.
No. 1 CA-JV 18-0255
FILED 1-14-2020
Appeal from the Superior Court in Maricopa County
No. JD528054
The Honorable David J. Palmer, Judge
AFFIRMED
COUNSEL
The Stavris Law Firm, PLLC, Scottsdale
By Alison Stavris
Counsel for Appellant Shawna N.
Denise L. Carroll, Esq., Scottsdale
By Denise Lynn Carroll
Counsel for Appellant John N.
Arizona Attorney General's Office, Mesa
By Amanda Adams
Counsel for Appellee DCS
SHAWNA N., JOHN N. v. DCS, H.N.
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Diane M. Johnsen delivered the decision of the Court, in
which Judge Michael J. Brown and Judge Samuel A. Thumma joined.
J O H N S E N, Judge:
¶1 Shawna N. ("Mother") and John N. ("Father") appeal the
superior court's order terminating their parental rights to their daughter,
H.N. For the following reasons, we affirm.
FACTS AND PROCEDURAL BACKGROUND
A. Events Preceding the Dependency.
¶2 Mother and Father are the natural parents of H.N., born in
December 2006.1 H.N. was born with special needs, including a feeding
aversion, gastroesophageal reflux disease, and problems with eye and
motor coordination. She showed developmental delays within her first
year of life and was diagnosed with oculomotor apraxia and mild
hypotonia (low muscle tone). Mother obtained mental-health services for
H.N. through Touchstone, and feeding, speech, and occupational therapies
through the Division of Developmental Disabilities of the Arizona
Department of Economic Security ("DDD"). Mother also obtained an
individualized educational program for H.N. through her school. As time
progressed, doctors told Mother that H.N.'s conditions improved or
remained stable, but Mother displayed extreme anxiety over H.N.'s health
and repeatedly presented her for treatment by various doctors and
hospitals.
¶3 Over the first seven years of H.N.'s life, Mother brought her
to emergency rooms more than two dozen times, citing issues such as
constipation, diarrhea, vomiting, feeding aversion, poor weight gain,
cough, dehydration, fever or abdominal pain. Because Mother often
exaggerated H.N.'s symptoms, when doctors examined H.N., they tended
not to see the symptoms Mother had reported, nor were they able to
confirm them with medical testing. Mother also persistently advocated for
1 The parents also have two older children who are not subject to a
dependency.
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an escalation in H.N.'s medical care, despite contrary recommendations by
medical providers. Although not recommended by medical providers,
Mother consistently urged doctors treating H.N. to perform invasive
procedures including a port-a-cath (an indwelling catheter), a G-J tube (a
feeding tube that bypasses a portion of the gastrointestinal tract) and total
parenteral nutrition (receiving all nutrition intravenously). The procedures
Mother wanted for her daughter carried significant risks, including
complications from surgery, infection, blood clots, blood-glucose issues and
liver dysfunction. Mother ultimately convinced a surgeon to place a port-
a-cath in H.N. by stating that her primary care physician, Dr. Saba, agreed.
The records, however, did not contain a note documenting that Dr. Saba
had recommended installing a port-a-cath. Mother admitted after the port
was placed that it "was a decision that she came to independently because
she did not want [H.N.] to have to get poked while inpatient and to be used
for IV fluids while she is inpatient."
¶4 In July 2010, several of H.N.'s medical providers met with
Mother and Father to discuss Mother's overutilization of medical care for
her daughter. They suggested Mother seek counseling for herself and
respite care through DDD services and gave the parents concrete guidelines
for when they should seek medical care for H.N. Father said he agreed that
Mother had very high anxiety regarding H.N. and that, at times, he had told
Mother not to bring H.N. to emergency rooms. Yet Father denied that
Mother needed counseling and did not intervene by preventing Mother
from taking H.N. for medical care.
¶5 Mother did not obtain any services for herself and continued
to bring H.N. to the hospital for the same issues. Mother's actions resulted
in reports of neglect to the Department of Child Safety ("DCS") in 2010 and
2011. DCS, however, did not substantiate the allegations in either report.
B. The Dependency.
1. The child comes into DCS care.
¶6 In August 2014, Mother and Father brought H.N. to Phoenix
Children's Hospital ("PCH") to be treated for an infection. Medical
personnel again raised concerns about medical child abuse, and Dr. Lisa
Kirsch, interim division chief of PCH's child protection team, completed an
inpatient consultation with H.N. In reviewing H.N.'s medical records, Dr.
Kirsch noted there had been concerns about "an excessive number of
hospital admissions, and an excessive number of emergency department
visits as well. And . . . there were requests for escalation in [H.N.'s] medical
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Decision of the Court
care and for procedures to be done that the treating team didn't feel were
medically warranted." Dr. Kirsch recommended making a report to DCS,
which began an investigation.
¶7 DCS also was concerned about psychological issues Mother's
behaviors were causing for the child. For instance, when Mother was in
H.N.'s hospital room, H.N. would complain of abdominal pain, but when
Mother was not in the room, H.N. did not report pain and told a hospital
psychologist that Mother would allow her to eat only applesauce because
she did not want H.N. to get fat, and that Mother becomes angry at her
when she asks for food. H.N. also reported that Mother had told her not to
eat in front of the psychologist. For her part, Mother told the psychologist
that H.N. had never eaten solid food before and she did not want to "'force'
[H.N.] to eat because she [did not] want to be 'the bad guy.'" The DCS
investigation revealed Mother often thwarted H.N.'s progress by not
following medical instructions regarding her feeding. The DCS
investigation also revealed that H.N. had made a lot of progress in an
inpatient feeding program the year before but quickly regressed when
returned to Mother's care.
¶8 DCS took custody of H.N. in September 2014 and filed a
dependency petition alleging neglect. The superior court found H.N.
dependent as to both parents and adopted a case plan of family
reunification. The ensuing dependency lasted almost four years, during
which DCS provided the parents with several services, including parent-
aide services, supervised visitation, a neuropsychological examination for
Mother, psychological evaluations, individual counseling, marriage
counseling and therapeutic visits.
2. Initial evaluations.
¶9 DCS asked Dr. Kirsch to review H.N.'s medical records to
determine whether they substantiated medical child abuse. In a letter dated
March 6, 2015, Dr. Kirsch explained that the child had significant medical
problems as an infant and young child, and Mother responded
appropriately in seeking care for those issues. As H.N. grew older,
however, Mother repeatedly asked for interventions for H.N. that medical
providers did not think were medically warranted, including multiple
hospital admissions for remedies that medical providers recommended be
done on an outpatient basis, installation of a port for the administration of
IV fluids, and installation of a G-tube for feeding. Dr. Kirsch concluded that
"[t]he most compelling evidence" of medical child abuse was that after H.N.
came into DCS's care, she no longer manifested gastrointestinal complaints.
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Indeed, the child began eating solid foods with no complaints of abdominal
pain or discomfort, constipation or dehydration. By November 2014, she
was consuming all foods and liquids by mouth. As a result, the G-tube and
port were removed in January 2015. Nevertheless, the child sometimes
exhibited anxious behaviors with new foods and continued to have some
general feeding issues.
¶10 By April 2015, the parents had completed their first
psychological evaluations. Mother's evaluating psychologist diagnosed her
with post-traumatic stress and anxiety disorders and recommended Ph.D.-
level counseling and a psychiatric evaluation. Father's evaluating
psychologist concluded that "a child placed in [Father's] care and custody
is likely at risk due to ongoing failure to protect [H.N.] from unnecessary
medical intervention." The psychologist recommended individual
counseling and supervised visits, noting also that Father "might benefit"
from counseling with H.N., marriage counseling with Mother and
parenting classes.
¶11 DCS then consulted with Dr. Brenda Bursch, professor of
psychiatry and pediatrics at the University of California Los Angeles and
an expert in medical child abuse, who reviewed H.N.'s medical records and
evaluated Mother in June 2015. In her interview with Dr. Bursch, Mother
said that she had anxiety and related that Father had issues with anger,
irritability and control. Dr. Bursch concluded that Mother "clearly over
utilized medical services and advocated for unneeded medical procedures
for" H.N. She diagnosed Mother with "Illness Anxiety Disorder, care-
seeking type, with panic attacks," which she later described as someone
"having much more anxiety about either a symptom or the idea of a
symptom than would match the severity of what's going on," along with
associated behaviors. As a result, Dr. Bursch opined, Mother had
exacerbated H.N.'s medical issues, distorted the child's self-perception and
placed her at risk for serious mental and physical harm. At the same time,
Dr. Bursch opined that Father's "unwillingness and/or inability to adjust
his family role and behavior" to meet H.N. and Mother's needs appeared to
contribute to H.N.'s "high health care utilization and over-medication."
Specifically addressing the effects of the parents' behaviors on H.N., Dr.
Bursch wrote:
The concerning parental behaviors described in this report
place [H.N.] at increased risk for clinicians to over-interpret
symptoms and test results, to make decisions to conduct
unnecessary tests and assessments, and to make decisions to
recommend unnecessary treatments or procedures. This
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places [H.N.] at risk for unpleasant, or even dangerous, side
effects from unneeded evaluations and treatments, distress
related to assessments and treatments (including the potential
for post-traumatic stress disorder), distorted self-perceptions
regarding her health and abilities, and a delay or thwarting of
achieving developmental milestones in a timely manner.
* * *
[Mother] struggles to see her own role in over-medicalizing
[H.N.] She admits that she brought [H.N.] in too frequently,
but quickly reverts to externalizing blame. [Father] has not
accepted his role in their current situation . . . . While [Mother]
may have been trying her best to obtain assistance that she felt
she needed, neither she nor her husband recognized and/or
appropriately responded to the potential danger [H.N.] was
exposed to and the level of disability they were creating in
her. . . . In fact, it is likely that [Mother] has become a
symptom trigger for [H.N.], making it even more difficult for
her to make progress with her oral intake and emesis. . . .
Neither parent has fully acknowledged the suffering they
have caused [H.N.] and the family.
¶12 Dr. Bursch recommended a neuropsychological assessment
for Mother, individual and marriage counseling for both parents, and
therapeutic supervised visitation with H.N. She also emphasized that for
H.N. to safely return home, both parents would need to "significantly
increase[] their insight into their concerning behaviors and [make]
meaningful progress in altering those behaviors." She defined "meaningful
progress" as
(1) admitting to [their] (intentional and/or unintentional)
problematic behaviors . . . and being able to describe
specifically how those behaviors placed [H.N.] at risk, (2)
experiencing an appropriate emotional response to those
behaviors, the harm caused by the behaviors, and the
potential harm the behaviors could have caused, (3)
developing effective strategies to better manage personal
emotional needs, and (4) demonstration of these skills, with
monitoring, over a period of time.
¶13 In November 2015, Mother completed a neuropsychological
evaluation with Dr. John Mather, who concluded that she has a
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neurocognitive disorder and a learning disorder and recommended that
she participate in individual and marriage counseling.
3. Placement and therapeutic visits through January 2016.
¶14 Once H.N. was removed from her parents, she showed
significant improvement. DCS continued the services that Mother had
established for H.N. and added individual counseling and periodic child-
and family-team meetings. Additionally, in September 2015, H.N. started
trauma therapy with Carol Melim. H.N. began eating solid foods, her
medications were reduced to two from ten, and eventually she was able to
have her G-tube and port-a-cath removed. H.N. no longer needed a
specialized stroller that she had used in Mother's care.
¶15 Meanwhile, Mother and Father participated in therapeutic
supervised visits with H.N. through Southwest Human Development
("SWHD") intermittently between December 2014 and February 2016. The
parents gained some insight, but the SWHD therapists reported several
remaining concerns throughout the sessions. Because H.N. demonstrated
increasingly troubling behaviors before and after the visits, the court
suspended them in February 2016.
4. Marriage counseling and visits through September 2016.
¶16 By January 2016, DCS developed concerns about domestic-
violence issues between Mother and Father. Nonetheless, the parents
engaged in marriage counseling from May 2016 to July 2017. Although the
parents successfully completed counseling, Father continued to have angry
outbursts during counseling sessions.
¶17 Therapeutic visits with H.N. briefly resumed in May 2016, but
the professional visitation team concluded after a visit on July 1 that the
visits were causing H.N.'s eating habits to regress. Indeed, she was eating
so little that she had to be hospitalized. Therapists reported that Mother
and Father were unable to provide H.N. acknowledgment and empathy for
her past experiences. Because H.N.'s behaviors and emotional health had
regressed, SWHD reported that "[r]eunification is not recommended." In
July 2016, the court again suspended the parents' visits. In August, Dr.
Bursch reviewed the parents' progress and endorsed changing the case plan
to severance and adoption.
¶18 In the hospital, doctors installed an NG tube, but H.N.
displayed very defiant behaviors and kept removing it in the hospital.
Medical staff determined H.N.'s issues were psychological in nature and
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Decision of the Court
transferred her to the psychiatric care unit, where she began seeing trauma
therapist Patrick Goodman. H.N. also was assigned a high-needs case
manager and completed a neuropsychological examination that resulted in
a recommendation for therapy (which Goodman provided). Eventually,
H.N. stabilized and was released to a foster family with whom she had been
placed shortly before her hospitalization. The new foster parents
specialized in caring for children who are medically fragile,
developmentally delayed or diagnosed with Reactive Attachment
Disorder.
5. Severance and adoption.
¶19 No longer allowed to visit H.N., the parents began writing
letters to her in October 2016. Two months later, at the request of DCS, the
court changed the case plan to severance and adoption, and DCS moved to
terminate Mother and Father's parental rights on grounds of abuse, neglect,
and 15 months' out-of-home placement, and on the additional ground of
mental health for Mother. See Arizona Revised Statutes ("A.R.S.") section 8-
533(B)(2)-(3), (8)(c) (2020).2 In February 2017, the parents were allowed
supervised telephonic visits with H.N. Later that month, in-person SWHD
therapeutic visits resumed, but H.N.'s problematic behaviors returned and,
according to her foster parent, they "progressively got worse." H.N.
vomited before entering Goodman's office to participate in a telephonic
visit, and over time after the in-person visits resumed, she began to soil
herself, smear her feces about, vomit more and disconnect "her feeds."
¶20 In May 2017, Dr. Mather performed another
neuropsychological examination of H.N. He diagnosed H.N. with an
Unspecified Neurodevelopmental Disorder, an Unspecified
Neurocognitive Disorder, a Developmental Coordination Disorder, a
Language Disorder, Unspecified Trauma and Stressor Related Disorder,
and three learning disorders. In August 2017, therapeutic visits increased
in frequency, and H.N.'s behaviors worsened still. At the same time, SWHD
therapists continued to note that the parents had not taken sufficient
responsibility for their role in H.N.'s out-of-home placement and were
unable to consistently provide H.N. with empathy.
¶21 In November 2017, H.N. stated she no longer wanted contact
with her parents, and, on Goodman's advice, DCS discontinued all contact
between them and H.N. a few weeks before the severance hearing was to
2 Absent material revision after the relevant date, we cite the current
version of a statute or rule.
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begin. Around that same time, Dr. Bursch conducted a final evaluation of
the parents' progress. She concluded they had made only "partial
meaningful progress" and noted remaining concerns about the parents'
ability to meet H.N.'s needs in the future.
¶22 The superior court heard testimony in the termination
proceeding over 21 days between November 2017 and March 2018, and
ultimately terminated Mother and Father's parental rights on the grounds
alleged. The parents timely appealed. We have jurisdiction pursuant to
Article 6, Section 9, of the Arizona Constitution, and A.R.S. §§ 8-235(A)
(2020) and 12-120.21(A)(1) (2020).
DISCUSSION
¶23 "Although a parent's right to care, custody, and control of his
or her children has long been recognized as fundamental, it is not absolute."
Linda V. v. Ariz. Dep't of Econ. Sec., 211 Ariz. 76, 78, ¶ 6 (App. 2005) (citations
omitted). The fundamental right to parent may be terminated under
"statutorily enumerated conditions after following specified procedures."
Id. To justify such termination, the superior court must find, by clear and
convincing evidence, the existence of at least one ground set forth in § 8-
533. Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, 249, ¶ 12 (2000).
Additionally, the court must find by a preponderance of the evidence that
termination is in the best interests of the child. Trisha A. v. Dep't of Child
Safety, 247 Ariz. 84, 87, ¶ 14 (2019).
¶24 We view the evidence in a severance case in the light most
favorable to sustaining the superior court's findings and will affirm unless,
as a matter of law, no reasonable fact-finder could have found the evidence
satisfied the applicable burden of proof. See Denise R. v. Ariz. Dep't of Econ.
Sec., 221 Ariz. 92, 95, ¶ 10 (App. 2009). We review de novo, however, the
superior court's interpretation of a statute. See Linda V., 211 Ariz. at 78, ¶ 7.
A. Father's Challenge to Admissibility of Evidence.
¶25 As an initial matter, Father argues he was denied due process
when the superior court "allowed hearsay statements in medical and court
reports into evidence and relied on those statements" even though the
authors of the reports were not present at the termination hearing.
¶26 The superior court has "broad discretion in admitting or
excluding evidence, and [this court] will not disturb its decision absent a
clear abuse of its discretion and resulting prejudice." Lashonda M. v. Ariz.
Dep't of Econ. Sec., 210 Ariz. 77, 82-83, ¶ 19 (App. 2005). Due process
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requires the opportunity to be heard in a meaningful time and in a
meaningful manner. Wallace v. Shields, 175 Ariz. 166, 174 (App. 1992).
Arizona Rule of Procedure for the Juvenile Court 44(B)(2)(e) requires a
party objecting to an exhibit to file a notice of objection and the specific
grounds for each objection within ten days of a pretrial disclosure
statement. It also provides that "[s]pecific objections or grounds not
identified in the notice of objection shall be deemed waived, unless
otherwise ordered by the court." Ariz. R.P. Juv. Ct. 44(B)(2)(e).
¶27 Here, DCS filed its initial disclosure statement for the
termination proceeding on June 16, 2017, listing "[a]ll DCS Court Reports"
and medical records from a number of hospitals and health-care providers.
Father waived any objection to the exhibits' admissibility by failing to file a
notice of objection. See Alice M. v. Dep't of Child Safety, 237 Ariz. 70, 72-73,
¶¶ 9-11 (App. 2015).3
B. 15-Months' Out-of-Home Care.
¶28 The superior court may terminate parental rights if (1) DCS
"made a diligent effort to provide appropriate reunification services," (2)
"[t]he child has been in an out-of-home placement for a cumulative total
period of fifteen months or longer pursuant to court order," (3) "the parent
has been unable to remedy the circumstances that cause the child to be in
an out-of-home placement," and (4) "there is a substantial likelihood that
the parent will not be capable of exercising proper and effective parental
3 Even if Father had not waived his objections, his argument fails. His
brief fails to specify most of the exhibits he apparently challenges. He
generally complains that the court admitted H.N.'s medical records, but he
does not argue why those records did not satisfy Ariz. R. Evid. 803(6)
(under business-records exception to rule against hearsay, "regardless of
whether the declarant is available as a witness," documents are admissible
when certified under Arizona Rule of Evidence 902(11) or (12) or supported
by testimony of qualified witness). The same is true with respect to reports
by DCS workers that were allowed in evidence. With respect to Exhibit 47,
the lone set of records he mentions that was not accompanied by a
certification that complied with Rule 803(6), Father does not say how he
was prejudiced or deprived of a fair trial by that report. Finally, although
Father complains that DCS failed to call the medical personnel identified in
the various reports to testify, he does not explain why he could not have
done so.
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care and control in the near future." A.R.S. § 8-533(B)(8)(c).4
"[C]ircumstances" means "those circumstances existing at the time of the
severance that prevent a parent from being able to appropriately provide
for his or her children." Marina P. v. Ariz. Dep't of Econ. Sec., 214 Ariz. 326,
330 (App. 2007) (quotation omitted).
1. Diligent efforts to provide appropriate reunification
services.
¶29 Mother and Father argue that insufficient evidence supports
the superior court's finding that DCS made diligent efforts to provide them
appropriate reunification services. Specifically, the parents assert that DCS
unduly delayed their marriage-counseling referral, delayed H.N.'s
neuropsychological evaluation until 2017 and failed to provide them with
family and feeding therapies with H.N.
¶30 DCS fulfills its statutory obligation when it provides a parent
with "the time and opportunity to participate in programs designed to help
her become an effective parent." Maricopa County Juv. Action No. JS-501904,
180 Ariz. 348, 353 (App. 1994). DCS "is not required to provide every
conceivable service or to ensure that a parent participates in each service it
offers." Id. Neither is DCS required to undertake futile rehabilitative
measures, although it should undertake rehabilitative measures that have
"a reasonable prospect of success." Mary Ellen C. v. Ariz. Dep't of Econ. Sec.,
193 Ariz. 185, 192, ¶ 34 (App. 1999).
¶31 In a detailed 39-page ruling, the superior court expressly
addressed each of the parents' concerns about services, and reasonable
evidence supports its findings. See Jesus M. v. Ariz. Dep't of Econ. Sec., 203
Ariz. 278, 282, ¶ 12 (App. 2002) (this court does not reweigh evidence on
appeal).
¶32 Father argues that DCS did not provide the parents with
marriage counseling until mid-2016, nearly two years into the dependency.
The superior court found that although counseling "could have been put
into place sooner, . . . there were legitimate concerns surrounding the timing
of such counseling caused by [d]omestic [v]iolence between the parents,
caused largely by the Father. Secondly, the need for Ph.D. level counseling
4 Although the parents challenge the termination on each ground, this
court may affirm the judgment if clear and convincing evidence supports a
single ground for termination. See Jesus M. v. Ariz. Dep't of Econ. Sec., 203
Ariz. 278, 280, ¶ 3 (App. 2002).
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was also a legitimate concern." The parents' individual counselors
recommended marriage counseling in November 2015, but Dr. DiBacco, the
DCS unit psychologist, noted concerns about domestic violence between
the parents and advised that marriage counseling be postponed. These
concerns escalated when Mother and Father engaged in a domestic-
violence incident after a January 2016 visit with H.N. in which Father
physically shook Mother and shouted at her. Mother then expressed her
intent to leave Father, which would have obviated the need for marriage
counseling, but she later changed her mind. Later in January 2016, Dr.
DiBacco met with the parents' therapists and approved the marriage-
counseling referral. The referral was further delayed, however, because it
was first assigned to Father's individual therapist and had to be reassigned
because of a conflict of interest. Marriage counseling then began in earnest
in June 2016 and continued through July 2017. The record thus shows that
the parents received more than a year of marriage counseling. Given the
domestic-violence issues between the parents that had been observed
repeatedly during therapeutic visits with H.N., reasonable evidence
supports the court's finding that the delay in providing that counseling was
reasonable.
¶33 The parents generally criticize the behavior-based
psychological services DCS arranged for H.N. and argue that she needed
neuropsychological services. In support of this contention, the parents
offered the opinion of Dr. Scialli, who concluded that the child's issues were
"likely brain based and not behavioral nor induced by an incompetent
mother or one with bad intent." H.N. completed a neuropsychological
evaluation in August 2016, and the evaluator recommended therapy (which
Goodman provided) and a follow-up evaluation in a year (which Dr.
Mather performed in May 2017). Based on the follow-up evaluation, Dr.
Mather concluded that H.N. had Unspecified Neurodevelopmental and
Neurocognitive Disorders and learning disorders. An MRI performed
shortly after Dr. Mather's evaluation, however, ruled out Dr. Mather's
concerns that a purely neurological basis could explain all of H.N.'s
behaviors. Although the parents offered expert testimony to the contrary,
the record contains sufficient evidence to support the court's findings and
its conclusion that DCS acted reasonably in providing H.N. services,
including behavior-based therapy.
¶34 The parents also argue that DCS should have provided them
and H.N. with family and feeding therapies. The record, however, does not
support the parents' assertion that family therapy would have been
appropriate under the circumstances. Goodman testified that H.N. was
never ready for family therapy: Based on his review of the records, "it was
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not [his] opinion that Mother and Father would be able to engage [H.N.] in
family therapy in a way that would be productive." Even so, the parents
were allowed to interact with H.N. in a therapeutic setting during visits in
which masters-level therapists gave them real-time feedback on how to
better understand and respond to H.N.
¶35 Additionally, the record shows H.N. received feeding therapy
until she was hospitalized in July 2016. During that hospitalization, H.N.'s
eating therapist refused to treat her any further because her behaviors were
"beyond [the therapist's] abilities" and the doctors determined that H.N.'s
issues were not mechanical but were psychological. The specialists
involved in H.N.'s care searched for a feeding-therapy program, but H.N.'s
age and cognitive ability prevented her from being admitted to any of them.
Furthermore, a psychiatrist treating H.N. during her hospitalization noted
that although feeding therapy was important, in this case, it "should be
secondary to trauma therapy." The search for a feeding therapy program
continued and by the time of the severance trial, H.N. was on a wait list for
one program. This record reasonably supports the court's finding that
although DCS was not able to offer the parents "every conceivable service,"
it made a diligent effort to provide the family with services designed to
address the underlying issues causing H.N.'s out-of-home placement.
¶36 Finally, Mother argues DCS failed to provide appropriate
services because it was distracted by a "non-diagnosis" of "Munchausen by
proxy" in one of the early evaluations of H.N. Mother does not develop this
argument by providing record citations to support her assertion, however.
See ARCAP 13(a)(7). In any event, we note that although in August 2015,
Dr. Bursch gave a "rule out" diagnosis of factitious disorder imposed upon
another because Mother had "engage[d] in some behaviors" that met the
diagnostic criteria, Dr. Bursch did not elevate this to a full diagnosis. More
broadly, as the superior court found, regardless of a formal diagnosis, the
"parents clearly committed 'medical child abuse' upon" H.N. The court
explained that the parents caused a "dramatic, patently unreasonable over-
medicalization of [H.N.]," which in turn "caused severe damage to the
parent child relationships here."
2. The parents' inability to remedy the circumstances causing
out-of-home placement.
¶37 The parents also challenge the court's finding that they were
unable to remedy the circumstances causing H.N.'s out-of-home placement.
Mother points to Dr. Bursch's conclusions that she did not intend to harm
H.N., had made partial meaningful progress in services, and had the
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potential to make further progress. Mother also argues that she was not
allowed to show that she had made the requisite behavioral changes
because she was not allowed "hands on interaction" with the child. For his
part, Father argues he participated in more than 81 counseling sessions and
completed all his treatment goals. He also points out that his individual
therapist, Ms. Hancock, confirmed that he had developed coping
mechanisms and made behavioral changes. Further, the parents' marriage
counselor, Dr. Houston, testified they had successfully completed
counseling.
¶38 These arguments, however, disregard substantial evidence in
the record supporting the superior court's finding that "without any
question," the parents were unable by the time of the severance hearing to
make the behavioral changes required to safely parent H.N. In support of
that finding, the record showed that, notwithstanding three years of
services, the parents were unable to fully acknowledge their roles in the
over-utilization of medical care and the severe physical and emotional
effects it had on H.N. Because they could not acknowledge what they had
done, they were unable to show H.N. proper empathy for what she
experienced as a result of their conduct. Specifically, Dr. Bursch noted the
parents did not "appreciate the impact of the fear and anxiety [H.N.]
suffered due to her numerous hospitalizations and other medical
interventions." Nor were the parents able to properly respond to [H.N.'s]
"statements to them during visits about their arguing, being spanked while
in their care, and/or not being fed like her siblings." Instead, the parents
often denied H.N.'s perception of reality, "rather than try to understand and
learn from her memory of her experience with them."
¶39 Dr. Bursch testified that the specific behavioral changes she
set out for the parents in her initial evaluation in August 2015, see supra ¶
12, were based on "research on recidivism for child abuse" and would be
relevant in determining "whether or not a child is safe to be reunified with
[her] famil[y]." She elaborated, "There are really two hallmarks. One is
empathy for what the child suffered and the other is acknowledging [the
parents'] behavior" that contributed to the child's suffering. In her final
evaluations of the parents, Dr. Bursch concluded that they had made only
"partial meaningful progress" towards those goals and listed several
remaining concerns, including that "there's still not an appreciation for the
complexities of [H.N.'s] problem and their part in it and not full
acknowledgment of . . . how some of their behaviors impacted [H.N.] and
a lack of a true appreciation for her suffering."
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SHAWNA N., JOHN N. v. DCS, H.N.
Decision of the Court
¶40 The visitation records support Dr. Bursch's conclusions. The
SWHD therapists expressed concerns regarding the parents' interactions
with H.N. during visits, including that Mother was treating H.N. as if she
were much younger than her actual age, interacted with H.N. in an
intrusive, controlling manner, and was unable to take full responsibility for
her past actions. The therapists also noted that Father was resistant to
feedback, wavered in his ability to take responsibility for his past actions,
and demonstrated increasingly concerning behaviors toward H.N. and
Mother consistent with the "power and control" dynamics of domestic
violence. Indeed, therapists recorded that during feedback after a visit in
January 2016, Father became "intimidating [with Mother]. He was standing
over her. He was yelling at her, demeaning her[], shaking her physically.
All of those are characteristics of a power and control relationship." During
therapeutic visits, Father "snapped his fingers in [H.N.'s] face, ignored her
completely when unhappy with her, and forced her to eat or talk about
unpleasant things."
¶41 The reports noted both parents were putting their own
emotional needs ahead of those of H.N., and those concerns remained
throughout the visitation process. Indeed, at the termination hearing, the
parents' testimony evidenced Dr. Bursch's concerns. Mother testified she
could understand how DCS believed she had over-utilized medical care for
H.N. but insisted she "was just following doctor's orders and doing what
they asked." Father testified he felt H.N. never should have been removed
from their care and that Mother could independently parent H.N. without
any oversight in the future.
¶42 The court also heard evidence showing the harm H.N. had
suffered as a result of her parents' conduct and behaviors. H.N. repeatedly
expressed fear of Mother and Father – fear that they would kill her, take her
back to the hospital, fight with each other and spank her. She consistently
expressed fear about going home to live with them. In therapy, H.N.
blamed herself for needing a G-tube when she was only seven months old,
and believed that "if she ate, she would get fat" and "to be loved [by her
parents], she had to be the sick child." She demonstrated increasingly
troubling behaviors each time in-person visits resumed, including
"disconnecting her feeds," dissociation, aggression, dark-themed play,
uncontrolled vomiting, emotional distress, cruelty to animals, enuresis and
smearing feces. These behaviors improved each time the court suspended
visits.
¶43 Given the dramatic effects that the visits caused H.N., Dr.
Bursch concluded that the parents retained unrealistic expectations about
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SHAWNA N., JOHN N. v. DCS, H.N.
Decision of the Court
what would happen if H.N. were allowed to return home. Dr. Bursch
opined, "Neither parent expressed concerns for how extremely physically
and emotionally difficult a reunification attempt might be on [H.N.] They
do not anticipate her to experience a high level of emotional, behavioral and
physical distress and do not appear to be prepared for this possibility."
Both parents stated that upon reunification, they would not rely upon
H.N.'s doctors to determine the correct level of medical intervention for her.
Mother even suggested that she would rely on H.N. to make medical
decisions, such as when to stop feeds. Dr. Bursch concluded based on the
records and her interviews with the parents that H.N. could not safely be
reunified with them at the time of the severance hearing.
¶44 In sum, although the parents made some meaningful progress
over the three-and-a-half-year dependency, reasonable evidence supports
the court's finding that they were unable to remedy the circumstances
causing H.N.'s out-of-home placement.
3. Substantial likelihood that the parents will not be capable
of exercising effective parental care and control in the near
future.
¶45 The evidence recounted above also supports the superior
court's conclusion that the "cold hard facts" show that Mother and Father
will not be capable of exercising proper and effective parental care and
control in the near future. As noted, at the time of the severance hearing,
the parents continued to lack the insight and behavioral skills required to
safely reunify with H.N. Goodman testified that any reunification attempt
would require "a significant period of transition" with multiple support
services. Dr. Bursch likewise concluded:
Based on [H.N.'s] physical and emotional responses to
increased contact and the idea of reunification, it is expected
that a successful reunification would likely take a significant
amount of time and require intensive therapeutic support be
provided to [H.N.] and her parents. If the court proceeds with
reunification, all involved parties should expect that it could
take up to two years. Additionally, her symptoms may
become so severe as to require multidisciplinary inpatient
treatment for her rehabilitation. Additionally, it is possible
that, despite everyone's best efforts, [H.N.] will be unable to
safely tolerate the reunification attempt.
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SHAWNA N., JOHN N. v. DCS, H.N.
Decision of the Court
C. Best Interests.
¶46 The parents finally argue that insufficient evidence supports
the superior court's finding that severance is in H.N.'s best interests.
¶47 Once the court finds a statutory ground for termination, "the
interests of the parent and child diverge," and the court proceeds to balance
the unfit parent's "interest in the care and custody of his or her child . . .
against the independent and often adverse interests of the child in a safe
and stable home life." Kent K. v. Bobby M., 210 Ariz. 279, 286, ¶ 35 (2005).
"[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 County Juv. Action No. JS-500274,
167 Ariz. 1, 5 (1990). Courts "must consider the totality of the circumstances
existing at the time of the severance determination, including the child's
adoptability and the parent's rehabilitation." Alma S. v. Dep't of Child Safety,
245 Ariz. 146, 148, ¶ 1 (2018). Relevant factors in this determination include
whether the current placement is meeting the child's needs, an adoption
plan is in place, and the child is adoptable. Demetrius L. v. Joshlynn F., 239
Ariz. 1, 3-4, ¶ 12 (2016). Although a factor to consider, a bond between the
parent and child is not dispositive of best interests. See Dominique M. v.
Dep't of Child Safety, 240 Ariz. 96, 98-99, ¶ 12 (App. 2016).
¶48 The superior court found that although Mother and Father
love H.N., maintaining a parent-child relationship would be detrimental to
H.N. because "there are simply no reasonable prospects of reunification of
[her] and parents at any time in the foreseeable future" and further
reunification attempts would delay "permanency [for H.N.] that has been
delayed for much, much too long." Reasonable evidence, including much
of that recounted above, supports these findings.
¶49 At the severance hearing, Goodman emphasized H.N.'s need
for permanency: "I think that part of what is most difficult for [H.N.] is that
she doesn't know what her future is. . . . [She] has been away from
permanency for multiple years. . . . [T]he play [therapy] that she's been
playing out over the last eight, nine months – the theme is consistently
about not having a home of her own." Goodman also testified that "not
having a sense of permanency, at this point, is significantly traumatizing
for" H.N.
¶50 The court also found that H.N. would benefit from severance
because it would allow her to progress towards permanency. Her foster
parents are specially trained to meet her complex needs and address her
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SHAWNA N., JOHN N. v. DCS, H.N.
Decision of the Court
often difficult behaviors, and H.N. had developed a bond with her foster
siblings. H.N.'s foster family wished to adopt her and planned to allow
future contact between H.N. and her parents if H.N. wanted the contact and
if it was therapeutically advisable. Thus, reasonable evidence supports the
superior court's best-interests finding.
CONCLUSION
¶51 For the reasons stated, we affirm the superior court's
termination order.
AMY M. WOOD • Clerk of the Court
FILED: AA
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