Opinion
No. 1 CA-JV 14-0189
02-24-2015
LISA M., Appellant, v. DEPARTMENT OF CHILD SAFETY, J.M., Appellees.
COUNSEL John L. Popilek, PC, Scottsdale By John L. Popilek Counsel for Appellant Arizona Attorney General's Office, Mesa By Eric Knobloch Counsel for Appellee Department of Child Safety
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. JD510771
The Honorable Brian K. Ishikawa, Judge
AFFIRMED
COUNSEL John L. Popilek, PC, Scottsdale
By John L. Popilek
Counsel for Appellant
Arizona Attorney General's Office, Mesa
By Eric Knobloch
Counsel for Appellee Department of Child Safety
MEMORANDUM DECISION
Presiding Judge Kent E. Cattani delivered the decision of the Court, in which Judge Lawrence F. Winthrop and Judge Peter B. Swann joined. CATTANI, Judge:
¶1 Lisa M. ("Mother") appeals the superior court's decision to terminate her parental rights to her biological son J.M. For reasons that follow, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 Three-year-old J.M. was born prematurely and with several health problems, including a congenital disorder known as Apert syndrome. This condition caused the plates in J.M.'s skull to fuse in utero, requiring surgery to separate them after birth. Apert syndrome also manifested physical characteristics in J.M. such as the webbing of his hands and feet, and the need for the insertion of a trachea and feeding tube, as well as a shunt to drain fluid from his brain. J.M. has epilepsy and is missing a membrane between the left and right hemispheres of his brain.
¶3 Following his birth, J.M spent four months in the neonatal intensive care unit. He continues to require daily medication and medical care, and he will need numerous additional surgeries over his lifetime, including facial and skull reconfiguration or reconstructive surgery.
¶4 After his first few months in the hospital, J.M. was released to a nursing care facility for further treatment. In October 2012, J.M. went home to live with Mother with the assistance of the Division of Developmental Disabilities, which provided Mother with eight hours of in-home nursing care per day. Although Mother had access to this assistance, she incorrectly assumed that J.M. required her exclusive 24-hour presence and care, and she was unable to sleep at night or carry on a normal daily routine.
¶5 When J.M. was hospitalized in November 2012 for a seizure disorder, Mother stated that she could no longer care for him and refused to pick him up from the hospital. Mother requested that the Department of Child Safety ("DCS") take J.M. and find a suitable adoptive home. Although J.M. returned to Mother's home following his hospitalization, J.M.'s care again became too exhausting for Mother to manage. Mother contacted DCS, stating that she could "no longer care for [J.M.]." At Mother's request, J.M. was removed from Mother's home on January 21, 2013 and placed in foster care.
¶6 Mother and J.M.'s father both stipulated to J.M.'s dependency. DCS moved to terminate Mother's parental rights to J.M. in October of 2013, alleging that Mother was unable to discharge her parental responsibilities because of mental illness relating to anxiety and personality disorders. See Ariz. Rev. Stat. ("A.R.S.") § 8-533(B)(3).
J.M.'s father voluntarily relinquished custody and is not a party to this appeal.
Absent material revisions after the relevant date, we cite a statute's current version.
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¶7 DCS filed an amended termination motion on April 8, 2014, adding the ground of fifteen months' time in care under A.R.S. § 8-533(B)(8)(c). Mother objected, asserting that the motion for leave to amend was untimely because it was filed less than thirty days prior to the severance hearing. The court found that Mother had not established unfair prejudice and that the interests of justice required allowing the amendment.
¶8 The severance hearing began on April 28, 2014 and lasted three days. By the first day of the hearing, J.M. had been in out-of-home placement for over fifteen months.
¶9 Testimonial evidence established that Mother had been offered case management services, parent aide services, visitation through a DCS case aide, and psychological evaluations. Mother stated that she had successfully attended counseling for stress and anxiety, but she did not provide any documentation to support that assertion.
¶10 The case manager testified that while J.M. was in foster care, Mother was permitted visitation with him once a week for four hours. Although Mother visited J.M. regularly, she behaved inappropriately at times, and she did not follow the nurse's instructions when J.M.'s feeding regimen was changed. Parent aide services were closed unsuccessfully in March 2014.
¶11 A psychologist who examined Mother testified that she has an anxiety disorder and an unspecified personality disorder, along with narcissistic and histrionic traits. Mother acknowledged receiving social security disability because the anxiety disorder prevents her from being able to work. And during her clinical interview, Mother indicated that J.M. had been removed from her care because of her frustrations and because she was overwhelmed with parenting five children. Mother in fact had called DCS on several occasions in the past, either because she wanted her children removed from her home or because she needed help parenting them.
¶12 The psychologist opined that Mother's mental health issues negatively affected her ability to parent a child with special needs. The psychologist further stated that therapy probably would not assist Mother with her mental health issues, even if she were receptive to such services. The psychologist concluded that Mother's condition would continue for a prolonged indeterminate period, rendering her unable to demonstrate minimally adequate parenting skills.
¶13 The case manager similarly opined that Mother's stress and anxiety affected her ability to successfully parent J.M. given his special needs. The case manager testified that Mother had not provided a plan for how she could care for J.M. full time, other than stating that "it's in God's hands." The case manager reported that J.M. was doing well in his placement home and that his foster parents were willing to adopt him. The case manager opined that severance and adoption were in J.M.'s best interests because it would allow J.M. to have permanency with someone able to care for him and make informed decisions.
¶14 Following the hearing, the court found that DCS had established the statutory grounds of mental illness and fifteen months' time in care, and that severance was in J.M.'s best interests. Mother timely appealed, and we have jurisdiction under A.R.S. § 8-235.
DISCUSSION
¶15 We review the superior court's severance order for an abuse of discretion; we will accept the court's factual findings absent clear error. Mary Lou C. v. Ariz. Dep't of Econ. Sec., 207 Ariz. 43, 47, ¶ 8, 83 P.3d 43, 47 (App. 2004). As the trier of fact, that court is in "the best position to weigh the evidence, observe the parties, judge the credibility of witnesses, and make appropriate findings." Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, 280, ¶ 4, 53 P.3d 203, 205 (App. 2002).
¶16 A court may terminate a parent-child relationship only if there is clear and convincing evidence of at least one statutory ground for severance, and a preponderance of the evidence establishes that severance is in the child's best interests. A.R.S. § 8-533(B); Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 22, 110 P.3d 1013, 1018 (2005).
¶17 Terminating the parent-child relationship based on the fifteen months' time in care requires that the child have been in an out-of-home placement for fifteen months or longer, pursuant to court order or voluntary placement, with a showing the parent has been unable to remedy the circumstances that led to the child's removal. A.R.S. § 8-533(B)(8)(c). This ground further requires proof of a "substantial likelihood that the parent will not be capable of exercising proper and effective parental care and control in the near future." Id.
¶18 Here, as a result of Mother's voluntary relinquishment of her custody rights, J.M. had been out of the home for fifteen months and one week prior to the start of the severance hearing. Although this ground did not apply when DCS filed its original severance motion, sufficient time had passed by the start of trial to warrant amending the motion to add this additional ground. Although Mother argues that allowing the amendment was improper, the grant or denial of leave to amend a pleading is within the trial judge's discretion, and this court will not disturb the trial court's decision absent an abuse of discretion. Maricopa Cnty. Juv. Action No. JS-501904, 180 Ariz. 348, 355, 884 P.2d 234, 241 (App. 1994). There was no dispute that J.M. had been in foster care for more than fifteen months as of the date of the hearing, and Mother had adequate time (14 days) prior to the hearing during which to prepare to address this ground for severance. Accordingly, the superior court did not abuse its discretion by permitting the amendment at issue.
¶19 Mother further argues that DCS failed to provide adequate reunification services. We disagree. To help Mother parent more effectively, DCS arranged for case management and parent aide services, supervised visitation, and psychological evaluations. Notwithstanding these services, Mother was unable to discharge her parental responsibilities. Although Mother asserts that she should have been offered counseling or psychiatric services, DCS did not submit a counseling referral for Mother because she had advised DCS, the court, and her attorney that she was already undergoing counseling.
¶20 DCS was not required to offer services that were already being provided. See Pima Cnty. Severance Action No. S-2397, 161 Ariz. 574, 577, 780 P.2d 407, 410 (App. 1989); Mary Ellen C. v. Ariz. Dep't of Econ. Sec., 193 Ariz. 185, 192, ¶ 37, 971 P.2d 1046, 1053 (App. 1999) ("[DCS] need not provide 'every conceivable service,' [but rather] 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.") (citation omitted). DCS reasonably accepted Mother's assertion that she was already receiving counseling. Accordingly, the superior court did not abuse its discretion by rejecting Mother's argument and finding fifteen months' time in care as a ground for severance.
¶21 The superior court also properly found that Mother was unable to discharge her parental responsibilities because of her mental illness, and that there were reasonable grounds to believe the condition would continue for a prolonged, indeterminate period.
¶22 Contrary to Mother's assertion, severance based on mental illness did not violate Mother's due process rights, and was not contrary to the Americans with Disabilities Act. See Maricopa Cnty. Juv. Action No. JS-6520, 157 Ariz. 238, 244-45, 756 P.2d 335, 341-42 (App. 1988) (explaining that the State's interest in child welfare may override a parent's constitutional right to parent where the parent's mental illness endangers the child); Vanessa H. v. Ariz. Dep't of Econ. Sec., 215 Ariz. 252, 256, ¶ 20, 159 P.3d 562, 566 (App. 2007) (noting that DCS's efforts in providing reunification services is a reasonable accommodation of a disability).
¶23 Although Mother participated in supervised visitation, the case manager and evaluating psychologist both expressed doubts as to whether Mother could effectively parent J.M. if he was released to her care. Although Mother was able to successfully visit with J.M. under supervision for a few hours, the case manager reported that, given her mental instability, Mother "cannot handle the stress and responsibility of being a parent of a special needs child," and that "[Mother's] psychologist does not recommend that her son be returned to her care." Accordingly, the superior court did not abuse its discretion by finding the statutory ground of mental illness under A.R.S. § 8-533(B)(3).
¶24 Finally, the court did not abuse its discretion by finding severance to be in J.M.'s best interests. This analysis focuses primarily on the interests of the child, rather than those of the parent. Kent K., 210 Ariz. at 287, ¶ 37, 110 P.3d at 1021. While the court must consider the parent's interests, "the child's interest in obtaining a loving, stable home, or at the very least avoiding a potentially harmful relationship with a parent, deserves at least as much weight." Id. Additionally, when making a best interests determination, the court "may consider evidence that the child is adoptable or that an existing placement is meeting the needs of the child." Christina G. v. Ariz. Dep't of Econ. Sec., 227 Ariz. 231, 238, ¶ 26, 256 P.3d 628, 635 (App. 2011).
¶25 Mother asserts that the superior court improperly denied her motion to continue the hearing to allow her to obtain testimony from J.M.'s foster parents. But Mother did not explain what type of testimony would have been provided that could have helped her case. Accordingly, Mother did not make the necessary showing of prejudice to establish an abuse of direction. See State v. Blodgette, 121 Ariz. 392, 394, 590 P.2d 931, 933 (1979) ("[T]he granting of a continuance is within the sound discretion of the trial court, and its ruling will not be disturbed unless it can be shown that such discretion has been abused so as to result in prejudice to the defendant.").
¶26 Based on the evidence presented, the trial court did not abuse its discretion by finding severance to be in J.M.'s best interests. Notwithstanding Mother's acknowledged love for her son, J.M.'s need for stability outweighed Mother's interests in trying to parent him. Mother initiated the dependency action based on her inability to effectively parent J.M., and she did not demonstrate an ability to successfully parent him in the future. J.M. was in a foster home that was willing and able to meet his physical, medical, and special needs, and the foster family expressed a willingness to adopt him. Therefore, the court's determination that DCS had established that severance was in J.M.'s best interests was not an abuse of discretion.
CONCLUSION
¶27 For the foregoing reasons, we affirm the superior court's order terminating Mother's parental rights as to J.M.