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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
BETHANY C., Appellant,
v.
ARIZONA DEPARTMENT OF CHILD SAFETY, J.C., G.C., Appellees.
No. 1 CA-JV 15-0024
FILED 8-25-2015
Appeal from the Superior Court in Maricopa County
No. JD509925
The Honorable Brian K. Ishikawa, Retired Judge
AFFIRMED
COUNSEL
Czop Law Firm, PLLC, Higley
By Steven Czop
Counsel for Appellant
Arizona Attorney General’s Office, Mesa
By Nicholas Chapman-Hushek
Counsel for Appellee
BETHANY C. v. DCS, et al.
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Randall M. Howe delivered the decision of the Court, in
which Judge Michael J. Brown and Judge Kent E. Cattani joined.
H O W E, Judge:
¶1 Bethany C. (“Mother”) appeals the juvenile court’s order
terminating her parental rights to her two minor children, J.C. and G.C., on
the ground of 15 months in out-of-home placement pursuant to court order
under A.R.S. § 8–533(B)(8)(c). For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 One December day, nine-year-old C.A. called her father
Joshua—Mother’s ex-husband—from Mother’s house. Joshua arrived at
Mother’s house and found C.A. and her two half-siblings, J.C. and G.C.,
home alone. Joshua called the police. They responded and unsuccessfully
attempted to contact Mother. Mother had gone to a bar and left C.A. in
charge of three-year-old J.C. and one-year-old G.C.
¶3 As a result, the Arizona Department of Economic Security 1
investigated and instituted in-home services, including family preservation
and 24-hour daycare. While working with the Department, Mother
exhibited basic parenting skills, but needed to improve her parenting skills,
such as picking up on the children’s social cues, and frequently had her
children nap, demonstrating her lack of patience with the children.
Meanwhile, her home was infested with cockroaches and often in disarray,
with food on the floor and toys throughout.
¶4 Although Mother continued services, the Department
suspected that she was still leaving her children home alone. That suspicion
was confirmed in February 2012 when the case manager received a report
that Mother had walked around her apartment complex looking for
someone to watch her children overnight. She left her children—with no
1 The Arizona Department of Economic Security is substituted for the
Arizona Department of Child Safety in this matter. See Ariz. R. Civ. App. P.
27; S.B. 1001, Section 157, 51st Leg., 2nd Spec. Sess. (Ariz. 2014) (enacted).
For convenience, we refer to both as “the Department.”
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BETHANY C. v. DCS, et al.
Decision of the Court
clothes, diapers, or shoes—with a neighbor, who had trouble finding
Mother the next day to return the children.
¶5 The Department consequently intervened and placed the
children in an out-of-home placement. A couple months later, they were
transferred to Joshua’s home. The case manager discussed with Mother her
ability to provide for the children’s care, safety, and stability. He noted
specifically that Mother had mental-health issues, had not bonded with her
children, had left the children home alone or with unwilling caregivers and
strangers, and that her home was cluttered and infested with bugs. The
Department offered Mother parent aide services, a psychological
consultation, and supervised visitation and petitioned for dependency. The
juvenile court adjudicated the children dependent and ordered family
reunification as the case plan.
¶6 To eliminate the safety threats and risk factors identified in
the case plan, Mother was expected to consistently visit her children, accept
the parent aide’s recommendations, address mental-health concerns, accept
responsibility for her actions, and complete a psychological evaluation and
follow the recommended services. To help Mother, the Department offered
psychological consultation; a psychological evaluation; and parent aide,
family preservation, and transportation services.
¶7 Mother completed parenting skills classes and had
supervised visitation with the children. The supervised visits
“successfully” closed after seven months. Mother had gained parenting
skills, understood the children’s expectations, could secure their safety, and
was nurturing them.
¶8 Mother then began unsupervised visits, but several months
later, the Department suspended those visits. Both children reported to the
case manager that during the unsupervised visits, Mother spanked them,
was mean, did not give them food, put them in time-out for long periods of
time, and had them nap for long periods of time. The children’s parent aide
reported that they would stall going to the visits. Because of the children’s
reports, the case manager contacted a clinical psychologist. The
psychologist opined that “the visits [were] traumatizing to the children”
and recommended suspending them.
¶9 Meanwhile, the Department offered services to Mother to
address her mental-health issues. She engaged in individual therapy and
psychological evaluations. Mother completed one psychological evaluation
in June 2012. The psychologist diagnosed Mother with an Adjustment
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BETHANY C. v. DCS, et al.
Decision of the Court
Disorder with Mixed Anxiety and Depressed Mood. She recommended that
Mother participate in individual trauma-based therapy, parenting sessions,
and parent aide services. Eight months later, Mother had a follow-up
session. The psychologist again recommended individual therapy
services—this time with a forensically-informed doctoral-level therapist—
and parent-child interaction therapy.
¶10 Thereafter, Mother engaged in individual-trauma therapy to
address, among other things, her history of domestic violence. Mother’s
individual therapy closed out because she met the treatment goals. Her
group therapy closed out, however, because she stopped attending.
¶11 Mother and the children consequently engaged in family
relational and filial therapies, child-parent psychotherapy, and parent-child
interaction therapy. Their therapist reported that during filial therapy
sessions, Mother was unable to identify “a comfortable level of comfort and
affection with them.” When the children were affectionate, “oftentimes she
interpreted it as invading her space or being rude or being mean in some
way.” Mother often used “a very harsh tone” with the children and called
them mean; misinterpreted their age-appropriate actions; used excessive
time-outs, without explaining why they were in time-out or redirecting
them; and could not comprehend the children’s cues. The therapist’s efforts
to redirect Mother were unsuccessful.
¶12 As a result of Mother’s actions, the children “became more
subdued,” “[m]ore anxious,” and sometimes asked Mother if she was mad
at them. The therapist also observed the children with their foster parents
and found them to be much different. The children were affectionate with
their foster parents, constantly engaged them in their play, and felt very
comfortable directing and asking them for help. The therapist described
them as carefree, playful, talkative, and imaginative.
¶13 Mother next engaged in parent-child interaction therapy with
another therapist in October 2013, but that service was discontinued after
four sessions. Mother was “very passive” during sessions and
“argumentative” with this therapist. The therapist ultimately
recommended that the sessions be discontinued because G.C. was
“becoming more anxious and withdrawn.”
¶14 In January 2014, a third therapist conducted a bonding/best-
interest assessment with Mother, the children, and the foster mother. The
therapist noted, “some attachment exist[ed] between the children and their
mother, but it would appear to be an anxious attachment.” They were
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Decision of the Court
“hesitant in their interactions with her and nonresponsive to her
directions.” In contrast, they “played independently with the foster mom,”
“utilize[d] her as a secure base,” and were “relaxed and followed her
directions well.”
¶15 Mother’s interactions with the children “were mechanical,”
and “she demonstrated no empathy or warmth towards the children” and
seemed “unable to recognize their needs for nurturance and warmth.” The
therapist opined that the children were in need of permanency and stability
and that the Department should identify an adoptive home for the children
and pursue permanent placement.
¶16 Mother subsequently employed her own psychologist for a
best-interest evaluation. He diagnosed Mother with Bipolar II Disorder,
current/most recent hypomanic. This psychologist noted that in contrast to
the reports he had received about Mother, she “was not only aware of their
individual needs and interests but she was also prepared to address them
in a comfortable way for the children.” He recommended that she receive
individual-trauma therapy and have visitation with the children.
¶17 When the children had met their goals and were doing well
in their foster home, counseling sessions were discontinued. One of their
therapists opined that they should remain with their foster parents and that
they would benefit from permanency through adoption because they
would have a sense of safety and security and thrive in their foster parents’
care. That same month, the Department moved for termination of Mother’s
parental rights. It contended that the children were being cared for in an
out-of-home placement and had been in an out-of-home placement for a
cumulative total of fifteen months or more pursuant to court order.
¶18 Before the severance hearing and as relevant here, Mother
objected to the admission and use of psychological reports “unless the State
presents the author of the report and/or documentations and removes all
statements” that originated from someone other than the author. Mother’s
attorney subpoenaed the psychologist the Department had retained. The
psychologist later requested release, however, because Mother refused to
pay her.
¶19 At the severance hearing, the State and Mother stipulated to
admission of exhibits 2, 3, 4, 32, and 34. Mother’s exhibits 3 and 4 were
copies of the psychologist’s reports and exhibit 2 also included copies. The
State’s exhibits 32 and 34 were also copies of the reports. The juvenile court
quashed the psychologist’s subpoena because Mother would not pay her,
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Decision of the Court
but gave Mother the opportunity to show that she was not required to.
Mother did not do so, but reiterated her same arguments in a motion for
reconsideration, which the trial court denied.
¶20 Joshua testified that the children were his daughter’s half-
siblings and that they had bonded with his family and were comfortable in
the family’s home. He explained that his family could provide the children
with a safe, stable, and loving home and that they were currently meeting
and could continue to meet the children’s needs. He also testified that if
given the opportunity, his family would adopt the children.
¶21 The case manager testified that the children had been in an
out-of-home placement pursuant to court order for 34 cumulative months.
He also testified that the children’s current placement, their older half-
sibling’s home, was willing to adopt them and that the foster parents would
be able to meet the children’s needs.
¶22 After considering the evidence and counsels’ arguments, the
juvenile court terminated Mother’s parental rights pursuant to A.R.S.
§ 8–533(B)(8)(c), finding that they had been in an out-of-home placement
for over fifteen months pursuant to court order and that termination was in
the children’s best interests. Mother timely appealed.
DISCUSSION
¶23 As relevant to our disposition of this appeal, Mother argues
that the juvenile court violated her due process rights by quashing the
psychologist’s subpoena, that it erred by admitting the psychologist’s
reports without her testimony, and that the evidence did not support its
finding that a substantial likelihood existed that Mother was incapable of
exercising proper and effective parental care in the near future. We review
constitutional claims de novo, State v. Nordstrom, 230 Ariz. 110, 117 ¶ 27, 280
P.3d 1244, 1251 (2012), but because Mother raises the due process claim for
the first time on appeal, we review for fundamental error only, see Ruben M.
v. Ariz. Dep’t of Econ. Sec., 230 Ariz. 236, 239 ¶¶ 15–16, 282 P.3d 437, 440
(App. 2012). Mother therefore bears the burden of establishing that error
occurred, the error was fundamental, and the error caused her prejudice.
Id. at 239 ¶ 16, 282 P.3d at 440. Moreover, because a juvenile court has broad
discretion in admitting evidence, we will not disturb its decision absent a
clear abuse of discretion and resulting prejudice. Lashonda M. v. Ariz. Dep’t
of Econ. Sec., 210 Ariz. 77, 82–83 ¶ 19, 107 P.3d 923, 928–29 (App. 2005).
¶24 Here, we need not address whether the juvenile court erred
in quashing the subpoena or whether it properly admitted her reports
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Decision of the Court
because any arguable error was harmless. See State v. Davolt, 207 Ariz. 191,
205 ¶ 39, 84 P.3d 456, 470 (2004) (providing that error is harmless when “the
reviewing court can say beyond a reasonable doubt that the error did not
contribute to the verdict”); Alice M. v. Ariz. Dep’t of Econ. Sec., 237 Ariz. 70,
73 ¶ 12, 345 P.3d 125, 128 (App. 2015) (providing that even if the juvenile
court erred in admitting disputed exhibits, the error was harmless).
Sufficient evidence, even without the psychologist’s reports, supports each
element of termination on the ground of 15 months in out-of-home
placement.
¶25 We review a juvenile court’s termination order for an abuse
of discretion. Angel S. v. Dep’t of Child Safety, 237 Ariz. 132, 136 ¶ 12, 347
P.3d 578, 582 (App. 2015). We accept the court’s factual findings unless no
reasonable evidence supports those findings, and we will affirm a
severance order unless it is clearly erroneous. Bobby G. v. Ariz. Dep’t of Econ.
Sec., 219 Ariz. 506, 508 ¶ 1, 200 P.3d 1003, 1005 (App. 2008).
¶26 As pertinent here, to terminate parental rights for time in an
out-of-home placement, the juvenile court must find by clear and
convincing evidence that (1) the children had been in an out-of-home
placement for a cumulative total period of fifteen months or longer
pursuant to court order; (2) the parent has been unable to remedy the
circumstances that caused the children to be in an out-of-home placement;
and (3) a substantial likelihood exists that 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); Kent K. v. Bobby M., 210 Ariz. 279, 288 ¶ 41, 110 P.3d
1013, 1022 (2005). In its determination, the court must consider “the
availability of reunification services to the parent and the participation of
the parent in these services.” A.R.S. § 8–533(D). Moreover, the court must
find by a preponderance of the evidence that severance is in the children’s
best interests. Kent K., 210 Ariz. at 288 ¶ 41, 110 P.3d at 1022.
¶27 Because reasonable evidence supports the juvenile court’s
order terminating Mother’s parental rights and finding that the termination
was in the children’s best interests, the court did not abuse its discretion.
First, the record shows that on the date of the severance hearing, the
children had been in an out-of-home placement pursuant to court order for
34 cumulative months. Second, the record shows that the Department made
diligent efforts to provide appropriate reunification services for Mother,
including parent aide services, supervised and unsupervised visitations, a
psychological consultation, two psychological evaluations, a bonding/ best
interest assessment, individual-doctoral level-trauma therapy, parenting
classes, and family therapy, which included parent-child interaction
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BETHANY C. v. DCS, et al.
Decision of the Court
therapy. Although Mother participated in these services, she failed to make
the necessary behavioral changes that allowed for family reunification. In
parent-child interaction therapy, Mother was passive during play sessions
and argued with the therapist about parenting techniques. In filial therapy
sessions, she interpreted the children’s affection as invading her space or
being rude or mean.
¶28 Moreover, although Mother was successful during
supervised visits, the record shows that she did not internalize the
parenting skills she previously learned. The children reported that during
the unsupervised visits, she spanked them, was mean, did not give them
food, put them in time-out for long periods of time, and made them nap for
long periods of time. In fact, a psychologist opined that the visits were
traumatizing the children and therefore recommended suspending the
visits. Consequently, despite knowing that she was expected to accept the
parent aide’s recommendations and responsibility for her actions, Mother
would not use the suggestions for extended periods of time and instead
“revert[ed] back to her previous parenting paradigm.”
¶29 The record also shows that Mother was unable to remedy the
circumstances that caused the children to be in an out-of-home placement.
The Department was initially concerned about Mother’s failure to bond
with the children and her mental-health issues. Even though Mother
engaged in a variety of services, including therapy sessions by herself and
with her children, she was unable to bond with them. Further, although one
psychologist noted that Mother had bonded with the children, all others
involved noted that Mother’s interactions with her children remained
mechanical and that she demonstrated no empathy or warmth towards her
children and was unable to recognize their needs. This continued even after
receiving and completing individual-trauma therapy. Consequently, the
record reveals that a substantial likelihood exists that Mother will not be
capable of exercising proper and effective parental care and control in the
near future.
¶30 Finally, the record shows that termination was in the
children’s best interests. See Angel S., 237 Ariz. at 141 ¶ 33, 347 P.3d at 587
(“In determining whether the child would benefit, relevant factors to
consider include whether the current placement is meeting the child’s
needs, whether there is an adoption plan in place, and whether the child is
adoptable.”) (internal citation and quotation marks omitted). The case
manager and the children’s foster father testified that their foster family
was willing to adopt them. The case manager and foster father also testified
that the foster family was meeting and could continue to meet the children’s
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Decision of the Court
needs. Several individuals who observed the children with Mother and
with their foster parents noted that, in contrast to their interactions with
Mother, the children were affectionate with their foster parents and were
comfortable directing and taking directions from them. Consequently, even
without the psychologist’s reports, reasonable evidence supports the
juvenile court’s order terminating Mother’s parental rights and finding that
the termination was in the children’s best interests.
CONCLUSION
¶31 For the foregoing reasons, we affirm.
:ama
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