Melissa 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

MELISSA S., Appellant,

v.

DEPARTMENT OF CHILD SAFETY, J.C., A.C., J.E., A.E., Appellees.

No. 1 CA-JV 20-0009
FILED 8-13-2020

Appeal from the Superior Court in Maricopa County
No. JD28668

The Honorable Randall H. Warner, Judge

AFFIRMED

COUNSEL

John L. Popilek, P.C.
By John L. Popilek
Counsel for Appellant

Arizona Attorney General’s Office, Phoenix
By Doriane Zwillinger
Counsel for Appellee Department of Child Safety
 MELISSA S. v. DCS, et al.
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Jennifer M. Perkins delivered the decision of the Court, in
which Judge David B. Gass and Judge Michael J. Brown joined.

P E R K I N S, Judge:

¶1 Melissa S. (“Mother”) appeals the juvenile court’s decision to
terminate her parental rights to J.C., A.C., J.E., and A.E. We affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2 Mother is the biological parent of J.C. (born 2013), A.C. (born
2015), and J.E. and A.E. (together, the “Twins,” both born 2017). Troy C.
(“Father Troy”) is the father of the two elder children, and Steven E.
(“Father Steven”) is the father of the Twins. The Fathers are not parties to
this appeal.

¶3 This appeal stems from the second dependency action against
Mother. This first began in 2014 when DCS removed J.C. from Mother and
Father Troy’s care and filed a dependency petition alleging neglect due to
substance abuse, mental health issues, and domestic violence. Dr. Joseph
Bluth conducted a psychological evaluation resulting in his “guarded”
prognosis of Mother’s parenting abilities. Dr. Bluth noted evidence of
Mother’s amphetamine abuse and “antisocial personality traits” including
impulsivity. After Mother continued to engage in various services DCS
offered, DCS returned J.C. to her and moved to dismiss the dependency,
which the juvenile court granted.

¶4 But circumstances seemed to worsen in November 2016 as
DCS began to receive troubling reports about Mother’s relationship with
J.C. These reports revealed J.C. had been urinating and defecating on
himself at daycare, and even biting other children through the skin. When
Mother picked him up, she made statements to J.C. like “[s]ay [g]oodbye to
your friends because you won’t F— see them again” and “[t]his is your F—
fault that this is all happening.” She also told J.C. to “[s]hut the F— up.” J.C.
would use the same language. The source worried Mother would hurt J.C.

¶5 That same month, DCS continued to receive disturbing
reports about Mother’s living situation (she had reportedly lost her job) and

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her relationship with her children, particularly J.C. DCS briefly removed
J.C. and A.C. from Mother’s care, but returned them to her shortly after
with a safety monitor in place. Mother again engaged in numerous services,
including counseling and anger management, and was diagnosed with
unspecified anxiety and depressive disorder. A nurse practitioner
prescribed Mother medication to treat this disorder but she did not take all
of them consistently because she was pregnant with the Twins.

¶6 While pregnant, Mother and Father Steven continued to
encounter housing issues, despite receiving threemonths of housing
subsidies from DCS. DCS also continued to receive reports of Mother’s
violent outbursts against J.C. and A.C. Father Steven recorded one outburst
in which Mother made many profane statements directed at both children.
Mother’s outbursts caused both children to cry. In late 2017, three-week-old
J.E. was admitted to a hospital. Mother and Father Steven engaged in
multiple altercations during the hospital stay, and hospital staff expressed
concern for their ability to care for the Twins.

¶7 Because of these incidents, DCS removed all four children
from Mother’s care and filed a second dependency petition alleging neglect
due to domestic violence, mental health issues, and potential substance
abuse in December 2017. DCS noted that, to reunify with her children,
Mother would have to address many issues, including her mental health
and inability to maintain stable housing free of domestic violence. DCS
provided Mother with substance abuse testing and treatment;
psychological and psychiatric evaluations; supervised visits; transportation
assistance; a parent aide; therapeutic visitation; housing subsidies; and a
family reunification team.

¶8 Dr. James Thal conducted a two-day psychological evaluation
of Mother. Dr. Thal stated that Mother’s personality test was “highly
suggestive of poor impulse control, unbridled anger, and a strong
endorsement of the view that aggression is a legitimate means to an end.”
He also concluded that Mother “likely has an underlying personality
disorder with . . . antisocial and borderline traits . . . along with a probable
underlying mood disorder as well.” His prognosis that Mother would be
able to demonstrate minimally adequate parenting in the future was
“poor.” Dr. Emily Bashah and Dr. John Toma conducted another
psychological evaluation and concluded that Mother’s “history of
emotional disturbances, impulse control problems, poor frustration
tolerance and poor self-regulation is a manifestation of mental illness,
Bipolar I Disorder.” Drs. Bashah and Toma also found that “[w]ith ongoing
intensive psychiatric and psychological treatment . . . added with

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monitoring for treatment compliance and therapeutic effectiveness,
[Mother] is considered to be at low risk to her children.” DCS therefore
referred Mother for PhD-level counseling with Dr. Kelly Rodriguez.

¶9 Mother, J.C., and A.C. also submitted to a bonding and best
interest evaluation with Dr. Bluth (who had conducted the psychological
evaluation during Mother’s first dependency proceeding). Dr. Bluth found
that J.C. had an “avoidant attachment” toward Mother and noted his
concerns with returning J.C. and A.C. to Mother, including Mother’s
continued relationship with Father Steven. Dr. Bluth therefore
recommended DCS adopt a severance and adoption plan.

¶10 Mother struggled with many of her services. She was
unsuccessfully closed out of her parent aide service for “poor impulse
control, low adaptability, and low flexibility.” Mother’s therapeutic visits
with the children were also unproductive as the elder children—J.C. and
A.C.—were not responding well to visits. Mother also reported to Dr.
Rodriguez that she had not been consistently taking her medication. Mother
and Father Steven also continued to engage in domestic violence, which led
to him being arrested and Mother obtaining an Order of Protection against
him.

¶11 Dr. Rodriguez, who had been engaged in individual
counseling with Mother from about February to November 2018, continued
to express concerns with Mother’s progress. As a result, Dr. Ellen Diana,
whom DCS had consulted with on Mother’s dependency action, declined
to extend Mother a third counseling referral with Dr. Rodriguez. Mother
did not attend the next two counseling sessions with Dr. Rodriguez or her
termination session in January 2019. Despite Dr. Diana declining Mother’s
third referral, Mother began another round of counseling with Dr.
Rodriguez in February 2019.

¶12 Circumstances deteriorated even more when Mother started
using methamphetamine again and also began using heroin. Mother
stopped taking her prescribed medications at this time because she was
concerned about how they might interact with the illegal drugs. DCS
learned that Mother and Father Steven had continued living together
despite the Order of Protection, but that they had been evicted. Mother
became pregnant by Father Steven and was still pregnant at the time of trial.
Around this time, Mother also threatened suicide to a police officer.

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¶13 At this point, DCS moved to terminate Mother’s parental
rights on nine-month time in care, abuse, and mental-illness grounds. The
juvenile court set the severance trial for June 2019.

¶14 In April 2019, the juvenile court ordered DCS to re-implement
therapeutic visits between Mother and the children because the children
had started to refuse visits. These visits were unproductive, as Mother
struggled to manage the children and often used inappropriate language.
During this same time, Mother had multiple instances of domestic violence
between her and Father Steven, two of which led to criminal charges against
her—one regarding drug possession and the other for aggravated assault.

¶15 Because of these events, DCS filed an emergency motion to
temporarily suspend Mother’s visits with all children. DCS also amended
its motion for termination to include the fifteen-month time in care ground.
The juvenile court granted the emergency motion pending an evidentiary
hearing, but DCS withdrew the motion at the hearing. As a result, the
juvenile court extended the severance trial (previously scheduled for June)
to September.

¶16 Therapeutic visits again proved unproductive because J.C.
continued to react negatively to them. Moreover, Dr. Rodriguez noted
Mother was “regressing” in therapy and expressed the same concerns with
her that he had back in October 2018.

¶17 The juvenile court held a five-day severance trial spanning
September, October, and November 2019. In a detailed ruling, the court
ordered termination of Mother’s parental rights finding parental unfitness
based on abuse, mental illness, and fifteen-months time in care grounds.
Mother timely appealed.

DISCUSSION

¶18 We review the termination of parental rights for an abuse of
discretion. Titus S. v. Dep’t of Child Safety, 244 Ariz. 365, 369, ¶ 15 (App.
2018). This court will uphold the juvenile court’s findings of fact “if
supported by adequate evidence in the record.” Christy C. v. Ariz. Dep’t of
Econ. Sec., 214 Ariz. 445, 452, ¶ 19 (App. 2007) (quoting State v. Smith, 123
Ariz. 243, 247 (1979)). “The juvenile court, as the trier of fact in a termination
proceeding, 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 (App. 2002).

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¶19 “Before a State may sever completely and irrevocably the
rights of parents in their natural child, due process requires that the State
support its allegations by at least clear and convincing evidence.” Santosky
v. Kramer, 455 U.S. 745, 747-48 (1982). “[S]uch a standard adequately
conveys to the factfinder the level of subjective certainty about his factual
conclusions necessary to satisfy due process.” Id. at 769.

I. Statutory Ground

¶20 To terminate the parent-child relationship, the juvenile court
must find parental unfitness based on at least one statutory ground under
A.R.S. § 8-533(B) by clear and convincing evidence. Kent K. v. Bobby M., 210
Ariz. 279, 284, ¶ 22 (2005).

¶21 The juvenile court may terminate parental rights under the
fifteen-month time in care ground if it finds that: (1) “[t]he child has been
in an out-of-home placement for a cumulative total period of fifteen months
or longer”; (2) “the parent has been unable to remedy the circumstances”
that cause the out-of-home placement; and (3) “there is a substantial
likelihood that the parent will not be capable of exercising proper and
effective parental care and control in the near future.” A.R.S. § 8-
533(B)(8)(c).

¶22 Here, the record reflects Mother’s children had been in out-
of-home placement for almost two years at the time of trial. Mother also
received a litany of services through both DCS and self-referral, including
multiple psychological evaluations; individual counseling; anger
management counseling; substance abuse testing and treatment;
medication management; therapeutic visitation; a parent aide; a bonding
and best interest evaluation; and multiple housing subsidies. The juvenile
court found that “[g]iven the amount of time that Mother has had to engage
in counseling, remain consistent on medication, and keep stable housing,
and given her inability to change her conduct, there is a substantial
likelihood that Mother will not be capable of exercising proper and effective
care and control in the near future.” The court also noted that Mother was
“still unable to provide the [c]hildren with a stable home.”

¶23 Substantial evidence supports these findings. Dr. Rodriguez
testified that, despite forty-two counseling sessions over almost two years
(which were on-going at the time of trial), Mother still lacked progress and
was unable to meet her goals. Dr. Rodriguez also agreed that Mother’s own
actions kept her from meeting her goals. Dr. Rodriguez further testified that
Mother struggled to meet her own basic needs, like housing, finances, and

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Decision of the Court

transportation, and that these issues would make it difficult to parent. Dr.
Diana agreed, testifying that almost two years of extensive services had led
to virtually no progress in addressing the issues leading to out-of-home
placement.

¶24 Dr. Rodriguez also testified that Mother was inconsistent in
taking her prescription medications to treat her mental health issues. The
doctor expressed concern because Mother continued to exhibit behavior
resulting in police involvement as late as April 2019. On appeal, Mother
highlights the fact that at certain points she stopped her medication out of
necessity because she was pregnant. But the record reflects Mother stopped
her medication at different times for various reasons—including at one
point out of concern for how it would interact with the illegal drugs she
was taking. The juvenile court found that Mother had ample time and
resources to take her medications consistently and change her conduct, but
nevertheless failed to do so. We will not reweigh this evidence. Jesus M., 203
Ariz. at 280, ¶ 4.

¶25 Lastly, regarding Mother’s ability to provide a stable home,
she testified that at one point during trial, she was living week-to-week in
hotels and other temporary places like her van. But during trial in
November, Mother was accepted into the Center for Hope, where she began
residing and participating in further services like counseling and drug
testing. Mother emphasizes her acceptance into this program on appeal, but
again we decline to reweigh the evidence. Jesus M., 203 Ariz. at 280, ¶ 4. The
juvenile court found that “Mother’s several year involvement with [DCS]
ha[d] been a cycle of domestic violence, substance abuse, homelessness, and
out-of-control behavior followed by improvement for a time, and then the
cycle begins again” and was likely to repeat itself in the future. Substantial
evidence supports the court’s findings and we find no error.

II. Best Interests

¶26 Once a court has found at least one statutory ground to
terminate, it may “presume that the interests of the parent and child
diverge.” Kent K., 210 Ariz. at 286, ¶ 35. We thus focus our inquiry at the
best interests stage on “the interests of the child as distinct from those of the
parent.” Id. at 285, ¶ 31. The “child’s interest in stability and security” is the
touchstone of our inquiry. See id. at 286, ¶ 34. Termination of parental rights
is in the child’s best interests “if either: (1) the child will benefit from
severance; or (2) the child will be harmed if severance is denied.” Alma S. v.
Dep’t of Child Safety, 245 Ariz. 146, 150, ¶ 13 (2008). A child benefits from
termination when the child is adoptable or a current adoption plan is in

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place. Demetrius L. v. Joshlynn F., 239 Ariz. 1, 3–4, ¶ 12 (2016). “The existence
and effect of a bonded relationship between a biological parent and a child,
although a factor to consider, is not dispositive in addressing best
interests.” Dominique M. v. Dep’t of Child Safety, 240 Ariz. 96, 98–99, ¶ 12
(App. 2016). The juvenile court must consider the totality of the
circumstances existing at the time of the severance. Alma S., 245 Ariz. at 150,
¶ 13.

¶27 Here, the juvenile court found that the children were all in
adoptive placements and that termination would allow them to be adopted.
While the court acknowledged that “[A.C.] would be heartbroken if Mother
was no longer her in her life” and that J.C. might be conflicted, the
detriment of “continuing [a] parental relationship[] that ha[d] resulted in
chaos, emotional abuse, and repeated exposure to substance abuse and
domestic violence[]” weighed in favor of termination. See Dominique M., 240
Ariz. at 98–99, ¶ 12. The court further found that, as to the Twins, their
adoptive placement was the only home they had really known and they
would be harmed by a continued relationship with Mother. Substantial
record evidence supports these findings, and we find no error.

CONCLUSION

¶28 We affirm.

AMY M. WOOD • Clerk of the Court
FILED: AA

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