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Date: 01-04-2018

Case Style:

Maria O. v. Department of Child Safety, P.A., L.A.

Case Number: 1 CA-JV 17-0070

Judge: Winthrop

Court: Arizona Court of Appeals, Division One on appeal from the Superior Court in Maricopa County

Plaintiff's Attorney: Amber E. Pershon

Defendant's Attorney: Clark Jones

Description: ¶1 Maria O. (“Mother”) appeals the juvenile court’s order
terminating her parental rights to her biological children, P.A. and L.A.
(“the children”), on the grounds of mental illness or deficiency and fifteen
months’ out-of-home placement.1 See Ariz. Rev. Stat. (“A.R.S.”) § 8-
533(B)(3), (8)(c) (Supp. 2017). Mother does not argue the court erred in
finding that severance was in the children’s best interests or challenge the
statutory bases for severance found by the court except to argue the court
erred in finding the Department of Child Safety (“DCS”)2 proved it made
diligent efforts to provide her appropriate reunification services or that
such efforts would have been futile. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY3
¶2 P.A. and L.A. were born in 2007 and 2010, respectively.
Mother suffers from dependent personality disorder and depression, which
inhibits her ability to safely parent the children. Father suffers from chronic
schizophrenia, which causes him to experience command hallucinations.
Father has engaged in multiple instances of domestic violence involving
Mother and the children.
1 The juvenile court also terminated the parental rights of the
children’s biological father (“Father”), but he is not a party to this appeal.
2 Over the course of this case, DCS replaced Child Protective Services
(“CPS”), a division of the Arizona Department of Economic Security
(“ADES”). References to DCS in this opinion encompass actions by ADES
and the former CPS.
3 We view the facts and reasonable inferences therefrom in the light
most favorable to upholding the juvenile court’s order. Ariz. Dep’t of Econ.
Sec. v. Matthew L., 223 Ariz. 547, 549, ¶ 7 (App. 2010).
MARIA O. v. DCS, et al.
Decision of the Court
3
¶3 In May 2010, DCS filed a dependency petition, alleging
neglect due to domestic violence in the home4 and concerns about Mother’s
inability to discipline P.A. After an in-home intervention, pursuant to
which DCS provided family preservation services, the court dismissed the
dependency petition in March 2011.
¶4 In May 2012, DCS filed a second dependency petition,
alleging in part that Father had committed domestic violence in the
presence of the children, abused P.A., engaged in sexually inappropriate
behavior in the children’s presence, and had not addressed his mental
health concerns, including taking his medication for schizophrenia. DCS
alleged Mother refused to leave Father and protect the children from
domestic violence and P.A. from Father’s abuse.
¶5 The juvenile court found the children dependent and ordered
DCS to offer Mother parent-aide services, visitation, transportation, a
psychological consultation, a psychiatric evaluation, and domestic violence
counseling services. Further, the court ordered DCS to provide any services
Mother could not access through her own provider, Magellan. DCS asked
Mother to self-refer for mental health services, acquire stable employment
and housing, and have no contact with Father.
¶6 Throughout much of the case, Mother maintained contact
with Father against DCS’ instructions, and told various DCS
representatives that she intended to reunify with Father after the children
were returned to her. Nonetheless, by December 2012, Mother had
obtained an order of protection against Father5 and filed for divorce, which
she obtained in February 2013. In June 2013, DCS offered intensive
counseling for Mother due to its concern that she was co-dependent.
¶7 Two months later, DCS moved to dismiss the dependency
petition. Mother had been participating in services, including individual
counseling, parent-aide services, and classes to address co-dependency
issues with Father. Mother reported seeking another order of protection
against Father, moving, and changing her telephone number. The juvenile
court denied DCS’ motion to dismiss, however, and ordered DCS to refer a
4 Father had allegedly held a knife to Mother’s throat and threatened
to kill her in front of the children.
5 Mother testified she obtained at least four orders of protection
against Father.
MARIA O. v. DCS, et al.
Decision of the Court
4
family reunification team to facilitate overnight visits between Mother and
the children.
¶8 On October 30, 2013, DCS moved to return the children to
Mother’s physical custody because she had fully complied with the
recommended services. Within a month, however, Mother told DCS she
had lost her employment, had no means of transportation, and was unable
to provide for the children. She asked permission to accept financial
assistance from Father’s family and permitted the children’s former foster
placement to care for the children overnight and on weekends to ensure
their needs were met. DCS authorized child-care services for Mother to
assist with her job search and sought to assist her with a housing subsidy.
By late December 2013, however, Mother was still unemployed and
communicated thoughts of suicide to the foster mother. The children were
removed from Mother’s home in December 2013 and remained out of her
home through the termination of parental rights in December 2016.
¶9 DCS moved for a change in physical custody, which the
juvenile court granted in January 2014. Meanwhile, Mother spent
Christmas with Father. Over the ensuing months, Mother lacked stable
housing, continued to display erratic behavior and emotional instability,
stalked members of the foster family, and renewed contact with Father.
¶10 DCS gave Mother referrals for a second parent aide, Ph.D.-
level counseling, psychiatric services, and resources for domestic violence
classes. Mother completed the psychiatric evaluation in October 2014 and
was prescribed medication for depression. When she lost her job later in
the month, Mother again sought assistance from Father, who rented her a
motel room. In November, she again turned to Father and his family for
help despite having an active order of protection against Father, and was
with him when he was arrested for violating the order of protection.
¶11 In January 2015, the juvenile court granted DCS’ contested
motion to change the case plan to severance and adoption. In February
2015, DCS moved to terminate Mother’s parental rights.
¶12 In October 2015, Mother accompanied Father to a criminal
defense attorney’s office, despite having an order of protection in place.
That same month, Mother underwent a psychological evaluation by Dr.
James Thal, who diagnosed her with chronic depression and dependent
personality disorder. The next month, Mother encountered Father at a
church function and left the event with him. Mother later informed her case
MARIA O. v. DCS, et al.
Decision of the Court
5
manager that she intended to reunite with Father if the children were
returned to her. In February 2016, Mother again had contact with Father.
¶13 The juvenile court held the contested severance hearing over
seven days between May and December 2016. On February 7, 2017, the
court issued its order terminating Mother’s parental rights on the grounds
of mental illness or deficiency and fifteen months’ out-of-home placement.
¶14 We have jurisdiction over Mother’s timely appeal pursuant to
A.R.S. §§ 8-235(A) (2014), 12-120.21(A)(1) (2016), and 12-2101(A)(1) (2016).
ANALYSIS
¶15 Mother argues the juvenile court erred in finding DCS made
diligent efforts to provide appropriate reunification services; specifically,
she takes issue with the parent-aide, housing-assistance, and counseling
services offered to her. Even assuming Mother did not waive her argument,
reasonable evidence supports the court’s finding that DCS satisfied the
diligent-efforts requirement by clear and convincing evidence.
¶16 We review the juvenile court’s severance of parental rights for
an abuse of discretion. Frank R. v. Mother Goose Adoptions, 239 Ariz. 184,
190, ¶ 21 (App. 2016). As the trier of fact in a termination proceeding, the
juvenile court is in the best position to weigh the evidence, observe the
parties, judge witnesses’ credibility, and resolve disputed facts. Jordan C. v.
Ariz. Dep’t of Econ. Sec., 223 Ariz. 86, 93, ¶ 18 (App. 2009) (citation omitted).
¶17 A court may sever a parent’s rights if it finds by clear and
convincing evidence that one of the statutory grounds for severance is met
and finds by a preponderance of the evidence that severance is in the best
interests of the children. A.R.S. § 8-533(B); Kent K. v. Bobby M., 210 Ariz.
279, 284, ¶ 22 (2005).
¶18 Before terminating a parent’s rights under § 8-533(B)(8)(c), the
court must find DCS made a diligent effort to provide appropriate
reunification services to the parent. A.R.S. § 8-533(B)(8); see also Mary Ellen
C. v. Ariz. Dep’t of Econ. Sec., 193 Ariz. 185, 192, ¶ 34 (App. 1999) (requiring
efforts to reunify the family before termination due to mental illness). DCS
fulfills its diligent-efforts obligation if it provides the parent “with the time
and opportunity to participate in programs designed to help her become an
effective parent.” Maricopa Cty. Juv. Action No. JS-501904, 180 Ariz. 348, 353
(App. 1994). However, DCS is not required to provide every conceivable
service, ensure a parent participates in each service, or provide services that
are futile or without a reasonable prospect of success. Christina G. v. Ariz.
MARIA O. v. DCS, et al.
Decision of the Court
6
Dep’t of Econ. Sec., 227 Ariz. 231, 235, ¶ 15 (App. 2011) (citations omitted);
Mary Ellen C., 193 Ariz. at 192, ¶ 34.
I. Parent Aide – Interpreter
¶19 Mother is a native Brazilian whose first language is Brazilian
Portuguese, and she argues that reunification services were insufficient
because she was not provided with a Portuguese-speaking parent aide or
interpreter with her parent aide, as was recommended by Dr. Thal after her
October 2015 psychological evaluation. She further argues that DCS should
have provided her with other service providers who spoke Brazilian
Portuguese or were accompanied by interpreters who did so. The record
shows, however, that Mother speaks English and possesses a level of
English comprehension sufficient to freely communicate and take
advantage of services provided in English.6 Moreover, she successfully
completed two parent-aide referrals, apparently without ever expressing
difficulty with a language barrier.7 Nonetheless, even after Mother’s
successful completion of the parent-aide referrals, Mother’s issues of
instability and co-dependency—neither of which the parent-aide services
were designed to address—remained, threatening the children’s safety.
Further, Mother testified during five of the seven trial days, affording the
juvenile court considerable time to carefully observe her before finding she
understood questions in English and was fully conversant in English. The
juvenile court did not abuse its discretion in concluding that reunification
services were sufficient despite the lack of service providers or interpreters
who spoke Brazilian Portuguese.
II. Housing Assistance
¶20 Mother also argues DCS failed to provide her with housing
assistance, which forced her to live in shelters or her car, or to rely on Father
for housing. However, Mother initially received vocational and housing
resource assistance, and by December 2012, had obtained employment and
6 At the severance trial, several of Mother’s service providers testified
Mother had no difficulty communicating with them in English, and Mother
repeatedly stated she was comfortable speaking English and desired an
interpreter only because she became nervous during legal proceedings.
7 Mother does not claim on appeal that she ever complained that her
parent aides or other service providers did not speak Brazilian Portuguese,
and at trial, Dr. Thal acknowledged she likely would have expressed
difficulty with a language barrier if she believed one existed.
MARIA O. v. DCS, et al.
Decision of the Court
7
her own apartment. Nonetheless, Mother was unable to maintain steady
employment, largely due to attendance and emotional issues, and her
housing issues were the direct result of her inability to maintain
employment. DCS also provided Mother with transportation assistance in
the form of bus passes, authorized child-care services for Mother to assist
with her job searches, and in approximately December 2013, submitted a
referral for a housing subsidy. However, DCS did not follow up on the
referral because shortly thereafter, the children were returned to the foster
placement due to Mother’s emotional instability and suicidal ideations, and
the housing subsidy required Mother to have custody of the children. Over
approximately four and one-half years, Mother struggled to maintain
employment—and therefore stable housing. Reasonable evidence supports
the conclusion that DCS made diligent efforts to provide Mother with
appropriate reunification services designed to help her obtain steady
employment, income, and housing, and that further efforts would have
been futile.
III. Additional Mental Health Services
¶21 Mother argues DCS should have referred her for additional
counseling and another psychiatric evaluation after her October 2015
psychological evaluation with Dr. Thal, who recommended she “make
contact again with her psychiatric provider and consider re-starting her
antidepressant medication,” and “continue working with a therapist to
address depression and [her] dangerously unhealthy dependence on
[Father].” After Dr. Thal’s evaluation, DCS asked Mother to self-refer to her
previous provider, Jewish Family and Children Services, for counseling and
medication regulation, and she received additional mental health services
and counseling through Dr. Mark Magier from July through November
2016 pursuant to a referral by DCS.8 Further, Mother admits she “was able
to find counselors/therapists on her own throughout the case,” and does
not allege, much less show, that the services she received were inadequate
or explain how any additional services would have benefitted her.
Moreover, Dr. Thal opined that the safety and welfare of the children would
be jeopardized if they were in Mother’s care and custody, and he
recommended they not be reunited with her if she remained in her
“unhealthy and volatile relationship” with Father, a relationship she
continued throughout the dependency, including during the severance
trial. Accordingly, Dr. Thal concluded it would “likely be necessary to
consider alternative long[-]term placement plans for the children.” On this
record, the juvenile court did not err in finding that DCS made reasonable
8 Dr. Magier noted that Mother needed to stay away from Father.
MARIA O. v. DCS, et al.
Decision of the Court
8
and/or diligent efforts to provide reunification services and any additional
services beyond those offered would be futile.

Outcome: ¶22 Although Mother participated in numerous services offered
by DCS and through other providers over several years, Mother did not
rectify the core issues that led to the children being removed from her care.
Accordingly, we affirm the juvenile court’s severance order.

Plaintiff's Experts:

Defendant's Experts:

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