In re Parental Rights as to C.H.

1

IN RE TERMINATION OF PARENTAL RIGHTS AS TO C.H.

No. 1 CA-JV 24-0033

Court of Appeals of Arizona, First Division

August 1, 2024

Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court

Appeal from the Superior Court in Maricopa County No. JD527370 The Honorable Pamela S. Gates, Judge

David W. Bell Attorney at Law, Higley By David W. Bell Counsel for Appellant

Arizona Attorney General's Office, Tucson By Thomas K Sanders Counsel for Appellee DCS

Law Office of Lincoln Green Jr. PC, Phoenix By Lincoln Green Counsel for Appellee Child

Presiding Judge Michael S. Catlett delivered the decision of the Court, in which Judge Jennifer M. Perkins and Vice Chief Judge Randall M. Howe joined.

MEMORANDUM DECISION

CATLETT, JUDGE

¶1 Chyneika H. ("Mother") appeals the juvenile court's termination of her parental rights as to C.H. ("Child"). Because the record does not adequately support the juvenile court's findings that the Department of Child Safety ("DCS") made reasonable efforts to reunify the family or that further reunification services would be futile, we vacate the court's order terminating Mother's parental rights and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

¶2 Mother has an extensive history with DCS. She has had her parental rights to multiple children terminated. In prior proceedings, Mother failed to participate adequately in DCS's reunification services. Most recently, in late 2022, the juvenile court terminated her parental rights to two children because (1) they were in out-of-home-placement for longer than fifteen months and (2) the court had terminated Mother's parental rights within the prior two years for the same cause (untreated mental health issues and diminished caregiver abilities).

¶3 In July 2022, Mother gave birth to Child. In May 2023, DCS petitioned to have Child deemed dependent because Mother did not provide proper and effective parental care and control due to mental health issues. The court found Child dependent as to Mother. In late 2023, DCS petitioned to terminate Mother's parental rights on two grounds: first, mental illness, and second, Mother's parental rights to another child were terminated within the preceding two years for the same cause. See A.R.S. § 8-533(B)(3), (B)(10). We refer to the first ground as the "mental illness ground," and the second as the "prior termination ground."

¶4 To establish the mental illness ground, DCS relied on a psychological evaluation conducted in 2020 during termination proceedings involving a different child. Based on that evaluation, DCS asserted in 2023 that there was still a "substantial likelihood that Mother will not be capable of exercising proper and effective parental care and control in the near future" for Child. To support the prior termination ground, DCS noted that "Mother had her parental rights terminated [on] October 12, 2022 due to ongoing concerns of untreated mental health and diminished caregiver protective capacities."

¶5 DCS called two witnesses during the termination hearing in this case-Mother's DCS case manager and the psychologist who evaluated Mother in 2020. The psychologist testified that she had diagnosed Mother with a personality disorder (with schizoid and avoidant characteristics), a depressive disorder, and borderline intellectual functioning. The psychologist's report (issued in January 2021) also diagnosed Mother with child neglect and post-traumatic stress disorder ("PTSD"). The psychologist's opinion, based on the 2020 evaluation, was that Mother's prognosis to safely parent her other child in the foreseeable future was poor. She recommended that Mother receive PhD-level counseling and thought Dialectical Behavior Therapy ("DBT") would help Mother's personality disorder. She also recommended that Mother receive enhanced attachment-based, parent-child therapy.

¶6 The psychologist testified that she would have concerns about Mother's ability to parent Child if Mother had been inconsistent with therapy during the intervening time since her 2020 diagnoses. When asked if she would be concerned if DCS never referred Mother to participate in DBT, the psychologist replied: "Yes. I'd want to know why that . . . didn't happen because it's an important part." The psychologist also testified that it could have benefited Mother to have an updated psychological evaluation.

¶7 During the summer of 2023, Mother, on her own, saw a mental health service provider, which conducted a psychiatric evaluation and provided her with therapy. That provider diagnosed Mother with Alcohol Use Disorder, Mood Disorder (Bipolar), and PTSD. Mother attended two therapy sessions and missed four others. DCS did not communicate with Mother's therapist or obtain her mental health records until after petitioning for termination.

¶8 The DCS case manager admitted that he had limited knowledge of Mother's current mental health condition and that "[t]here's not a lot of information[.]" He admitted DCS "relied heavily" on 2019 and 2020 psychological evaluations in its allegations. And he admitted that DCS did not completely follow the recommendations the medical experts made in those reports. The case manager further acknowledged DCS had no documentation to suggest the diagnoses stemming from the 2020 evaluation remained applicable in 2023. Comparing the diagnoses from DCS's prior psychological evaluations to the diagnoses Mother received from her private mental health provider in 2023, only one diagnosis (PTSD) overlapped.

¶9 The case manager testified that DCS did not refer Mother for PhD-level counseling in this case because "communication has been inconsistent" and DCS did not "have an actual understanding of what . . . counseling . . . [Mother] was doing." The case manager said DCS needed more information about the type of counseling Mother was receiving to determine if a referral for a different type of counseling was required.

¶10 The only reunification service DCS provided Mother with respect to Child was visitation. DCS initially stopped visitation within one week because no visits took place. But shortly thereafter Mother began attending visits more consistently.

¶11 Following the hearing, the juvenile court terminated Mother's parental rights as to Child. The court reasoned that it "heard credible testimony from [the 2020 evaluating psychologist] that proved, by clear and convincing evidence, [Mother] is unable to discharge her parental responsibilities due to mental illness and mental deficiency." The court further said that "credible evidence testimony proved that [Mother's] level of participation and commitment is inadequate to address her mental illness and mental deficien[cy]." The court found "that referral for additional services would have been futile[,]" because "[t]hroughout numerous dependencies including this one, [Mother] has failed to consistently participate in any service or therapy offered by [DCS]." The court also concluded DCS had proven by a preponderance of the evidence that terminating Mother's rights was in Child's best interests.

¶12 Mother timely appealed. We have jurisdiction. See A.R.S. § 8-235(A).

DISCUSSION

¶13 Mother appeals the termination of her parental rights arguing the court erred in finding that DCS made reasonable efforts to reunify her family and that further reunification efforts would be futile.

I. Waiver

¶14 DCS first argues Mother waived her argument that DCS failed to make reasonable reunification efforts by failing to object to its services throughout the dependency. Generally, an issue is waived on appeal if a party fails to raise an argument in the juvenile court. Aleise H. v. Dep't Child Safety, 245 Ariz. 569, 573 ¶ 12 (App. 2018).

¶15 Here, Mother raised the issue of insufficient reunification services in the juvenile court. In fact, a significant portion of the termination hearing was dedicated to whether DCS had provided sufficient services, with Mother arguing that it had not. The issue was, therefore, properly raised and argued before the juvenile court, which was able to decide whether DCS provided sufficient services.

¶16 DCS relies on Bennigno R. v. Arizona Department of Economic Security and Shawanee S. v. Arizona Department of Economic Security to support its waiver argument. But in both cases the parent challenging termination never argued insufficient services to the juvenile court. In Bennigno R., the court explained that the parent "maintained during closing arguments that the sole issue for the court to decide was whether termination of his rights was in the children's best interests," and not whether sufficient reunification services were provided. 233 Ariz. 345, 34950 ¶ 19 (App. 2013). Similarly, in Shawanee S., the court noted that "at the termination hearing, Mother did not argue that ADES failed to make reasonable efforts to provide appropriate reunification services." 234 Ariz. 174, 179 ¶ 17 (App. 2014).

¶17 Moreover, there is a stark difference between the insufficient services arguments in Benningo R. and Shawanee S. and that in this case. In those cases, DCS provided a multitude of services. See Benningo R., 233 Ariz. at 349 ¶ 19 (quoting the juvenile court's finding that DCS provided "psychological evaluations, visitation, counseling, parenting classes, substance abuse treatment, and urinalysis testing"); Shawanee S., 234 Ariz. at 176 ¶ 4 (explaining that "ADES offered Mother a psychological evaluation and consultation, individual counseling, parent aide services (including parenting education and supervised visitation), and transportation"). Yet the parents argued they were entitled to more.

¶18 Here, Mother did not neglect to raise her insufficient services argument with the juvenile court. She...