Jessica P. v. Dep't of Child Safety

251 Ariz. 34

484 P.3d 148

JESSICA P., Appellant,

v.DEPARTMENT OF CHILD SAFETY, H.P., Appellees.

No. 1 CA-JV 19-0253

Court of Appeals of Arizona, Division 1.

FILED March 18, 2021

Gillespie Shields Goldfarb & Taylor, Phoenix, By Kristina B. Reeves, Counsel for Appellant

Arizona Attorney General's Office, Mesa, By Lauren J. Lowe, Counsel for Appellee, Department of Child Safety

Arizona Center for Disability Law, Tucson, By Christian Carlsen, Rose A. Daly-Rooney, Counsel for Amicus Curiae, Arizona Center for Disability Law

Arizona Center for Law in the Public Interest, Phoenix, By Anne Ronan, Daniel Adelman, Counsel for Amicus Curiae, Arizona Center for Law in the Public Interest

ACLU Foundation of Arizona, Phoenix, By Victoria Lopez, Counsel for Amicus Curiae, American Civil Liberties Union of Arizona

Mills & Woods Law PLLC, Phoenix, By Thomas A. Connelly, Counsel for Amicus Curiae, the ARC, et al.

NYU School of Law Family Defense Clinic, New York, NY, By Amy Mulzer, Christine Gottlieb, Martin Guggenheim, Counsel for Amicus Curiae, the ARC, et al.

Disability & Civil Rights Clinic, Brooklyn Law School, Brooklyn, NY, By Sarah Lorr, Counsel for Amicus Curiae, the ARC, et al.

Judge Jennifer B. Campbell delivered the opinion of the Court, in which Presiding Judge Paul J. McMurdie and Judge Kent E. Cattani joined.

CAMPBELL, Judge:

¶1 In a prior opinion in this appeal by Jessica P. ("Mother"), we held that the Department of Child Safety ("DCS") must comply with the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101 – 12213, when providing reunification services to a disabled parent in a dependency.¹ We concluded, however, that Mother waived her claim that DCS failed to comply with the ADA because she failed to raise the issue in the juvenile court. After considering several other arguments made on appeal, we affirmed the juvenile court's order severing Mother's parental rights.

¶2 Mother filed a petition for review with the Arizona Supreme Court, which granted review, vacated the portion of our opinion concerning Mother's waiver of her ADA claim, and directed us on remand to consider whether the juvenile court committed fundamental error, citing Brenda D. v. Department of Child Safety , 243 Ariz. 437, 447, ¶ 37, 410 P.3d 419, 429 (2018). Consistent with Brenda D . and with our previous opinion, we reiterate that DCS must comply with the ADA in a dependency involving a disabled parent. We conclude, however, that Mother has not sustained her burden to show that fundamental error occurred when the juvenile court found that DCS provided her with appropriate reunification services before severing her parental rights.

BACKGROUND

¶3 Mother has an intellectual disability. She is the parent of a son, Hunter, who was born in 2014. In late December 2016, DCS received two calls reporting that Mother was neglecting the child. At the time, Mother and son were living with her mother, "Grandmother." The callers alleged that Mother used marijuana and methamphetamine around the child, left him home alone on multiple occasions, and that Mother had given the child drinks of beer and hard liquor. The callers further alleged that Mother spanked Hunter, bit her own grandmother, and physically fought with Grandmother and Mother's significant other in front of the child.

¶4 DCS removed Hunter from Mother's custody. When he came into foster care, he was globally delayed, could barely speak, and was "very unsteady on his feet." The juvenile court found Hunter dependent and offered Mother services aimed at reunification, including a drug abuse assessment and treatment, random urinalysis testing, case aide services, parent aide services, therapeutic visits, individual counseling, and psychological evaluations. DCS also provided Mother and Grandmother with joint counseling sessions and provided Mother transportation to and from services and visits.

¶5 Mother diligently participated in services "to the best of her abilities." She consistently tested negative for illegal substances after some initial positive tests, completed substance abuse services, engaged in regular and therapeutic visitation, completed parent aide services, and participated in psychological evaluations and individual counseling. At the time of the severance trial, Mother lived in an apartment and had a job as a caretaker for a teenager with special needs. Nevertheless, DCS remained concerned that Mother did not understand Hunter's medical and behavioral needs.

¶6 Mother underwent two psychological evaluations with Dr. James Thal, who determined Mother's IQ is 65 - placing her in the intellectually disabled range. Dr. Thal diagnosed Mother with mild intellectual disability, alcohol use disorder in early remission, methamphetamine use disorder in early remission, and a rule-out diagnosis of bipolar I disorder. Given Mother's intellectual disability, Dr. Thal opined that it is "exceedingly difficult for [her] to acquire, understand, retain, and implement basic parenting knowledge and skills." He believed that even with services, Mother would be unlikely to achieve a minimally adequate parenting level. Dr. Thal further opined that Hunter could not be safely returned to Mother's sole custody, then or in the foreseeable future, because he would be at risk in her care. Dr. Thal concluded that Mother's prognosis for demonstrating minimally adequate parenting skills in the foreseeable future was poor.

¶7 Over a year later, Dr. Thal reassessed Mother to determine if her participation in services had improved her parenting abilities to a minimally adequate level. Mother continued to deny that Hunter had emotional or behavioral problems, and she asserted that Hunter was doing well for his age. Mother also continued to minimize her substance abuse issues. After the evaluation, Dr. Thal again determined that Mother's prognosis for demonstrating minimally adequate parenting skills was poor:

[Mother] has participated in a wide range of services but, not surprising given the nature of her mental deficiency, there are not significant changes in her parenting profile. This is an intellectually disabled young woman who has substantial difficulty with concepts, timeframes, and retaining factual information. She is more than willing to follow directives and she clearly loves [the child]. However, placing Hunter in [Mother]’s sole and independent care would likely place the child at risk for inadvertent neglect, impaired decision-making, and significant under-stimulation of the child's already reportedly compromised learning abilities.

¶8 Hunter, Mother, Grandmother, and the child's foster family participated in a bonding assessment with Dr. S. Bryce Bennett. Dr. Bennett noted that Mother "seemingly had no understanding of [Hunter's] medical needs" and had difficulty responding to his cues. Dr. Bennett continued to have concerns about Grandmother's ability to meet Hunter's needs and concluded that it was not in his best interests to be placed in her care. Dr. Bennett concluded that Hunter's foster parents provided him with a safe and stable home and could meet his special needs.²

¶9 DCS filed a motion to terminate Mother's parental rights in August 2018 pursuant to A.R.S. § 8-533(B)(3) (mental deficiency) and (B)(8)(c) (fifteen months out-of-home placement).

¶10 A third psychological evaluation of Mother was conducted by Dr. Lee Underwood midway through the severance trial. Dr. Underwood's diagnosis of mild intellectual disability was consistent with Dr. Thal's diagnosis. Dr. Underwood did not recommend that Hunter be returned to Mother's sole care. Instead, he concluded that she could parent only in a co-parenting model.

¶11 After a seven-day trial, the juvenile court terminated Mother's parental rights to Hunter based on fifteen months out-of-home placement and mental deficiency.³ The court found that severance was in Hunter's best interests, even though Mother loved him and was bonded with him, and that DCS had made reasonable efforts to provide reunification services. Mother timely appealed.

DISCUSSION

I. Americans With Disabilities Act

¶12 Mother argues that the juvenile court erred by not considering whether DCS's reunification efforts complied with the ADA, and that DCS failed to prove it provided her with services that reasonably accommodated her mental disability. Because Mother failed to raise this claim in the juvenile court, we review only for fundamental error. Brenda D. , 243 Ariz. at 447, ¶ 37, 410 P.3d at 429.

¶13 The ADA prohibits public entities from discriminating against disabled persons by excluding them from participation in or denying them the benefits of public services and programs. 42 U.S.C. § 12132. The ADA imposes an affirmative duty on public entities to make "reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless ... the modifications would fundamentally alter the nature of the service" provided. 28 C.F.R. § 35.130(b)(7)(i). A mental impairment that substantially limits one or more major life activities of an individual is a disability. 42 U.S.C. § 12102(1)(A). A mental impairment includes "intellectual disability, organic brain syndrome, emotional or mental illness, and specific learning disability." 28 C.F.R. § 35.108(b)(1)(ii).

¶14 As a public child welfare agency, DCS must provide a disabled parent in a dependency with reunification services that comply with the ADA. See Lucy J. v. Dep't of Health & Soc. Servs. , 244 P.3d 1099, 1115–16 (Alaska 2010) (ADA requires family reunification services to be provided in a manner that takes a parent's disability into account); In re S.K. , 440 P.3d 1240, 1248, ¶ 25 (Colo. App. 2019) ("ADA does not restrict a juvenile court's authority to terminate parental rights when the parent, even after reasonable accommodation of a disability, is unable to meet his or her child's needs," and while the ADA "is not a defense to termination of parental...