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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
TOVAH K., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, S.S., N.S., Appellees.
No. 1 CA-JV 16-0449
FILED 6-22-2017
Appeal from the Superior Court in Maricopa County
No. JS18552
The Honorable Cari A. Harrison, Judge
AFFIRMED
COUNSEL
Czop Law Firm PLLC, Higley
By Steven Czop
Counsel for Appellant
Arizona Attorney General’s Office, Phoenix
By JoAnn Falgout
Counsel for Appellee, Department of Child Safety
TOVAH K. v. DCS et al.
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Margaret H. Downie delivered the decision of the Court,
in which Judge Kenton D. Jones and Judge Donn Kessler joined.
D O W N I E, Judge:
¶1 Tovah K. (“Mother”) appeals from an order terminating her
parental rights. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Two of Mother’s children are at issue in these proceedings:
S.S., born in November 2013, and N.S., born in December 2015. The
Department of Child Safety (“DCS”) took custody of S.S. shortly after her
birth, after hospital personnel reported that Mother called S.S. “it,” yelled
at the infant and told her to “shut up,” and engaged in other conduct
leading to concerns about the newborn’s safety. DCS began providing
services with a goal of family reunification.
¶3 In April 2015, DCS petitioned to terminate Mother’s parental
rights to S.S., alleging S.S. had been in an out-of-home placement for more
than 15 months, the circumstances warranting the out-of-home placement
had not been remedied, and there was a substantial likelihood Mother
would be unable to exercise proper and effective parental control in the
near future. See Ariz. Rev. Stat. (“A.R.S.”) § 8-533(B)(8)(c). A severance
trial was set for February 2016.
¶4 In January 2016, DCS took custody of N.S. based on mental
health and safety concerns. The severance trial for S.S. was continued to
July 2016. In June, DCS petitioned to terminate Mother’s parental rights to
N.S., alleging she was unable to discharge her parental responsibilities
due to mental illness. See A.R.S. § 8-533(B)(3).
¶5 After a severance trial regarding both children, the juvenile
court issued an order terminating Mother’s parental rights.1 Mother
1 The children’s father’s rights were also terminated, but he is not a
party to this appeal.
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TOVAH K. v. DCS et al.
Decision of the Court
timely appealed, and we have jurisdiction pursuant to A.R.S. §§ 8-235(A)
and 12-120.21(A)(1).
DISCUSSION
¶6 Mother contends substantial evidence does not support the
order terminating her parental rights. We disagree.
¶7 Parental rights may be terminated if the court finds any one
of the enumerated grounds under A.R.S. § 8-533(B) by clear and
convincing evidence.2 A.R.S. § 8-537(B); Kent K. v. Bobby M., 210 Ariz. 279,
280, ¶ 1 (2005). We view the evidence in the light most favorable to
sustaining the severance order and will affirm unless there is no
reasonable evidence to support it. See Lashonda M. v. Ariz. Dep’t of Econ.
Sec., 210 Ariz. 77, 81–82, ¶ 13 (App. 2005).
I. Fifteen Month Out-of-Home Placement (S.S.)
¶8 To terminate parental rights under A.R.S. § 8-533(B)(8)(c),
the court must find the child has been in an out-of-home placement for 15
months or longer, and despite diligent efforts to provide reunification
services, “the parent has been unable to remedy the circumstances that
cause[d] the child to be in an out-of-home placement and 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.” Section
8-533(B)(8)(c)’s reference to “circumstances” 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.” Jordan C. v. Ariz. Dep’t of
Econ. Sec., 223 Ariz. 86, 96 n.14, ¶ 31 (App. 2009).
¶9 At the outset of the proceedings, Mother acknowledged she
had been diagnosed with depression and bipolar disorder but had
discontinued taking prescribed medication because she disliked the side
effects. At her first individual counseling session in March 2014, Mother
was “angry, confrontational, belligerent, and combative.” She was
“shouting and screaming at the top of her lungs.” When the session
2 The court must also find by a preponderance of the evidence that
termination is in the children’s best interests. Kent K. v. Bobby M., 210
Ariz. 279, 284, ¶ 22 (2005). Because Mother has not challenged the
juvenile court’s best interests findings, we do not address that
requirement. See State v. Moody, 208 Ariz. 424, 452 n.9, ¶ 101 (2004) (claims
not raised in an opening brief are waived).
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TOVAH K. v. DCS et al.
Decision of the Court
ended, the therapist threatened to call police because Mother would not
leave. When Mother did leave, she kicked the door on her way out.
Mother’s angry outbursts continued throughout the case,3 including:
During an October 2014 meeting, Mother became so angry
that security was summoned to remove her. She “[slammed] her
chair back” against the wall as she left.
In June 2015, Mother threatened to punch her therapist in
the face.
In March 2016, when discussing the cleanliness of her home,
Mother began yelling and refused visits in the DCS office, saying,
“Fuck it take [the children] cause I’m not going . . . .”
In April 2016, Mother stated she had “a stupid people
problem” not an anger management problem.
In late April 2016, Mother told a parent aide, “you should
not be telling me how to be a parent or how to keep my house clean
[because] I know more than you and can parent better than you.”
¶10 Mother also had continuous issues with her case managers
and parent aides. The current case manager testified she is afraid of
Mother and felt unsafe around her due to her anger and abusive behavior.
Mother required two parent aides because the aides were afraid to be
alone with her.
¶11 Although individual counseling with anger management
was offered three times, Mother did not consistently participate until
January 2016. Her counselor at the time of the severance trial — Daniel
Huyser — testified that Mother made “some real progress” in managing
her anger, but admitted he had not read the therapy or parent aide
records. Based on his “limited interaction,” Huyser testified there was no
indication Mother would be a danger to her children. The juvenile court
rejected Huyser’s opinion, finding it “directly contrary to the evidence of
documented anger incidents.” See Jordan C., 223 Ariz. at 93, ¶ 18 (The
juvenile court “is in the best position to weigh the evidence, observe the
parties, judge the credibility of witnesses, and resolve disputed facts.”).
3 Mother testified she did not remember several of these episodes,
but admitted she has trouble remembering once she gets “in a rage.”
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TOVAH K. v. DCS et al.
Decision of the Court
¶12 Reasonable evidence supports the conclusion that Mother
was unable to remedy the circumstances that brought S.S. into care more
than 15 months earlier and that there was a substantial likelihood she
would be incapable of exercising proper and effective parental care and
control in the near future.
II. Mental Illness (N.S.)
¶13 The court may terminate parental rights if it finds a parent is
“unable to discharge parental responsibilities because of mental illness”
and “there are reasonable grounds to believe that the condition will
continue for a prolonged indeterminate period.” A.R.S. § 8-533(B)(3);
Denise R. v. Ariz. Dep’t of Econ. Sec., 221 Ariz. 92, 95, ¶ 11 (App. 2009).
Terminating parental rights based on mental illness does not require proof
that the parent is incapable of exercising any parental responsibilities. In
re Maricopa Cty. Juv. Action No. JS-5894, 145 Ariz. 405, 408 (App. 1985). The
court instead has “flexibility in considering the unique circumstances of
each termination case before determining the parent’s ability to discharge
his or her parental responsibilities.” Id. at 409.
¶14 Mother underwent a psychological evaluation by
Dr. DiBacco and a psychiatric evaluation by Dr. Rosengard. Dr. DiBacco
testified that Mother’s long-term depression could be debilitating and her
anxiety could “compromise her functioning,” rendering her “emotionally
and physically unavailable to parent the children.” He opined that
Mother had “just begun the journey” toward significant behavioral
changes and that she posed a “mild or moderate risk to her children for
neglect.”
¶15 Dr. Rosengard opined that there was “poor potential” for
Mother to parent safely. He testified that Mother exhibited more hostility
during his evaluation than he had seen “in over 90 percent” of the
evaluations he has performed in the past 15 years. Regarding her
progress with Huyser, Dr. Rosengard testified that the therapy was
“relatively short-lived and didn’t amount to much consequentially.” He
believed Mother’s prognosis was worse than when he first saw her
because, “the longer they’re not doing well, the poorer the prognosis.” He
opined that her condition would continue for a prolonged indeterminate
period.
¶16 Mother herself testified she cannot presently care for her
children emotionally or financially. She agreed she is “still in the
beginning stages” of managing her anger and that it would not be
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TOVAH K. v. DCS et al.
Decision of the Court
appropriate to return the children if she continued having similar anger
episodes, though she felt “about 75 percent” confident another episode
would not occur. Mother testified that she hoped to be “in a position both
mentally and financially within the next 3 to 6 months” to reunite with the
children. Mother refused to commit to avoiding physical discipline,
stating she would “do everything in [her] power” to control herself, but
that sometimes “you’re in the moment and something happens and you
forget.”
¶17 The juvenile court found that Mother “has a significant
anger management issue that clearly puts her children at risk” and that
this circumstance was likely to continue for a prolonged indeterminate
period. The record supports this determination, justifying the termination
of Mother’s parental rights to N.S. See In re Maricopa Cty. Juv. Action No.
JS-501568, 177 Ariz. 571, 577 (App. 1994) (“Leaving the window of
opportunity for remediation open indefinitely is not necessary, nor do we
think that it is in the child’s or the parent’s best interests.”).
CONCLUSION
¶18 For the foregoing reasons, we affirm the order terminating
Mother’s parental rights.
AMY M. WOOD • Clerk of the Court
FILED: AA
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