NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
KIMBERLEE K., Appellant,
v.
DEPARTMENT OF CHILD SAFETY1, I.K., Appellees.
No. 1 CA-JV 15-0189
FILED 12-1-2015
Appeal from the Superior Court in Maricopa County
Case Nos. JD14727
The Honorable Susanna C. Pineda, Judge
AFFIRMED
COUNSEL
Heavenly Gates Law Firm, LLC, Phoenix
By S. Marie Gates
Counsel for Appellant
Arizona Attorney General’s Office, Mesa
By Eric K. Knobloch
Counsel for Appellees
1 Pursuant to S.B. 1001, Section 157, 51st Leg., 2nd Spec. Sess. (Ariz.
2014) (enacted), the Department of Child Safety (DCS) is substituted for the
Arizona Department of Economic Security (ADES) in this matter. See
ARCAP 27. For ease of reference and consistency with the record below,
we refer to ADES in the text of this memorandum decision when referring
to either ADES or DCS.
KIMBERLEE K. v. DCS, I.K.
Decision of the Court
MEMORANDUM DECISION
Judge Jon W. Thompson delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Lawrence F. Winthrop joined.
T H O M P S O N, Judge:
¶1 Kimberlee K. (mother) appeals from the juvenile court’s order
terminating her parental rights to I.K. (child). For the reasons that follow,
we affirm.
FACTS2 AND PROCEDURAL HISTORY
¶2 Child, born in November 2008, is mother’s biological son. In
March 2013, DCS took child into temporary custody and filed a dependency
petition alleging that mother neglected child and was unable to parent due to
mental illness and mental deficiency.3 DCS discovered that mother had left
child for three to fourteen days in the care of a male friend, who was visibly
intoxicated and unable to care for child.
¶3 The court found child dependent and set the case plan as
reunification. Child was eventually placed in a foster home with his
biological brother. DCS began providing numerous rehabilitative services
to mother, including a psychological evaluation, a psychiatric evaluation,
supervised visitation, transportation, parent aide services; case-aide
services, and parenting classes.
¶4 In July 2013, mother completed a psychological evaluation
with Dr. Joseph Bluth. Dr. Bluth noted that mother had impaired judgment
and insight and was unemployed. Dr. Bluth administered three
intellectual/academic assessment tests. Mother’s scores on these tests
2 We view the facts in the light most favorable to sustaining the
juvenile court’s ruling. Lashonda M. v. Ariz. Dep’t of Econ. Sec., 210 Ariz. 77,
82, ¶ 13, 107 P.3d 923, 928 (App. 2005).
3 Mother previously had her parental rights severed as to her
daughter in 2008. Additionally, six prior reports of mother’s mental illness
and neglect of child were filed with DCS in 2008, 2009 and 2010. DCS
deemed these reports unsubstantiated.
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KIMBERLEE K. v. DCS, I.K.
Decision of the Court
placed her in the mild mental retardation range and placed her in the
second percentile of comparable adults. Mother’s math and reading skills
were equivalent to a fifth grade level. Dr. Bluth opined that mother’s
deficiencies rendered her unable to be responsive to child’s needs and
provide a safe and effective home. He also believed that these conditions
would exist for a prolonged, indeterminate period, that a child in her care
would be at risk for physical and emotional neglect, and that mental health
services would not “produce enough change in her to independently parent
a child.”
¶5 Notwithstanding Dr. Bluth's report, DCS continued to offer
services to mother, including a hands-on parent aide, supervised visitation,
and transportation. Mother successfully completed parenting classes and
attended most supervised visitations. Although mother often interacted
and bonded appropriately with child during the visits, DCS reported that
mother consistently needed redirection, yelled at the parent aide,
inappropriately disciplined child, made inappropriate statements to child,
and roughly grabbed child and hit him on his bottom during a visit. Mother
also failed to complete parent aid services. DCS scheduled a second
psychological evaluation for mother in December 2014, but mother refused
to participate.
¶6 DCS moved to terminate the parent-child relationship,
alleging that mother was unable to discharge her parental responsibilities
due to mental illness and mental deficiency and there were reasonable
grounds to believe that the condition would continue for a prolonged
indeterminate period; and child had been in out-of-home placement for
fifteen months or longer. See Ariz. Rev. Stat. (A.R.S.) § 8–533(B)(3), (8)(c)
(Supp. 2014). DCS also argued that termination would be in child's best
interests. See A.R.S. § 8–533(B). After a contested severance hearing, the
juvenile court found that DCS had established the grounds for severance,
and that termination was in the best interest of child. Accordingly, the
juvenile court terminated mother’s parental rights to child.4
¶7 Mother timely appealed. We have jurisdiction pursuant to
A.R.S. §§ 8-235 (2014) and 12-2101(A)(2) (Supp. 2013).
4 The juvenile court also terminated the parental rights of child’s
biological father; he is not a party to this appeal.
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KIMBERLEE K. v. DCS, I.K.
Decision of the Court
DISCUSSION
¶8 The juvenile court may terminate the parent-child
relationship only upon finding that clear and convincing evidence
demonstrates at least one statutory ground for severance; the court must
also determine 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). On appeal, “we will accept the juvenile court's findings of fact
unless no reasonable evidence supports those findings, and we will affirm
a [termination] order unless it is clearly erroneous.” Jesus M. v. Ariz. Dep’t
of Econ. Sec., 203 Ariz. 278, 280, ¶ 4, 53 P.3d 203, 205 (App. 2002) (citation
omitted). Mother argues that DCS failed to present clear and convincing
evidence to support termination of her parental rights.
¶9 Termination of the parent-child relationship is justified when
“the parent is unable to discharge the parental responsibilities because of
mental illness [or] mental deficiency . . . and there are reasonable grounds
to believe that the condition will continue for a prolonged indeterminate
period.” A.R.S. § 8-533(B)(3). Mother does not challenge the sufficiency of
the evidence proving she suffered from a mental illness or mental
deficiency that would probably continue for a prolonged, indeterminate
period. Instead, mother maintains that there is insufficient evidence in the
record that she is unable to parent effectively. We disagree.
¶10 At the severance hearing, Dr. Bluth testified that mother was
unemployed, had a mood disorder not otherwise specified (NOS), and had
mild mental retardation. Dr. Bluth stated that providing for the needs of
child was “well beyond [mother’s] capacity” and he did not believe mother
had the ability to parent in the foreseeable future. The DCS case manager
testified that mother had continued anger management problems
throughout the dependency, made inappropriate statements to child, and
did not complete the offered rehabilitative services. The case manager and
Dr. Bluth agreed that child would be at risk of harm or neglect under
mother’s care. Although mother presented evidence that she was often
loving and attentive towards child during the supervised visitation, the
juvenile court had to resolve any conflicts in the evidence, and we decline
to re-weigh that evidence. 5 See Jesus M., 203 Ariz. at 282, ¶ 12, 53 P.3d at
5 We also reject mother’s assertion that the juvenile court erred in
giving weight to Dr. Bluth’s psychological evaluation. Mother’s request for
a different weighing of the evidence is not appropriate for appellate review.
See Hurd v. Hurd, 223 Ariz. 48, 52, ¶ 16, 219 P.3d 258, 262 (App. 2009) (“Our
4
KIMBERLEE K. v. DCS, I.K.
Decision of the Court
207. Accordingly, the juvenile court did not err in finding that the statutory
ground for termination had been met by clear and convincing evidence. 6
¶11 Mother also challenges the court’s finding that that severance
was in child’s best interest. A.R.S. § 8-533(B). To establish that termination
is in a child's best interests, the record must contain proof that the child
either would benefit from the severance or be harmed if the parental
relationship continues. Mary Lou C. v. Ariz. Dep't of Econ. Sec., 207 Ariz. 43,
50, ¶ 19, 83 P.3d 43, 50 (App. 2004). The benefit derived from termination
may include “evidence that the child is adoptable and the existing
placement is meeting the child’s needs.” Bobby G. v. Ariz. Dep’t of Econ. Sec.,
219 Ariz. 506, 511, ¶ 15, 200 P.3d 1003, 1008 (App. 2008).
¶12 Reasonable evidence supports the finding that child would be
harmed by the continuation of the parental relationship and benefited by
severance and adoption. As previously noted, Dr. Blum testified that
mother’s mental illness and mental deficiency rendered her unable to
adequately parent to a young child; that this condition would exist for a
prolonged, indeterminate period; and that child was at risk for physical and
emotional neglect in her care. Additionally, the DCS case manager testified
that child is very attached to his brother and foster placement, the
placement is meeting all of child's needs, and child was progressing well.
The record also shows that if child’s foster placement is not able to adopt
him, child is otherwise adoptable. Notwithstanding mother's
acknowledged love for her son and their strong bond, child’s need for
stability and security outweighed mother's interests in trying to parent him.
Therefore, the court's determination that DCS had established that
severance was in child’s best interests was not an abuse of discretion. See
Jesus M., 203 Ariz. at 280, ¶ 4, 53 P.3d at 205 (stating that in termination
proceedings, the juvenile court “is in the best position to weigh the
duty on review does not include re-weighing conflicting evidence or
redetermining the preponderance of the evidence.”)
6 Because we find that the court did not err in terminating mother's
parental rights under A.R.S. § 8–533(B)(3), we do not address the additional
ground for termination under A.R.S. § 8–533(B)(8)(c). See Jesus M., 203 Ariz.
at 280, ¶ 3, 53 P.3d at 205 (“If clear and convincing evidence supports any
one of the statutory grounds on which the juvenile court ordered
[termination], we need not address claims pertaining to the other
grounds.”).
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KIMBERLEE K. v. DCS, I.K.
Decision of the Court
evidence, observe the parties, judge the credibility of witnesses, and make
appropriate findings”).
CONCLUSION
¶13 Based on the foregoing, we affirm the juvenile court’s order
terminating mother’s parental rights.
:ama
6