Sara K. v. Dcs, N.K.

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

SARA K., Appellant,

v.

DEPARTMENT OF CHILD SAFETY, N.K., Appellees.

No. 1 CA-JV 18-0465
FILED 6-20-2019

Appeal from the Juvenile Court in Maricopa County
No. JD27706
The Honorable M. Scott McCoy, Judge

AFFIRMED

COUNSEL

Robert D. Rosanelli Attorney at Law, Phoenix
By Robert D. Rosanelli
Counsel for Appellant

Arizona Attorney General’s Office, Phoenix
By Sandra L. Nahigian
Counsel for Appellee, Department of Child Safety
 SARA K. v. DCS, N.K.
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Michael J. Brown delivered the decision of the Court, in
which Judge Jon W. Thompson and Judge Kenton D. Jones joined.

B R O W N, Judge:

¶1 Sara K. (“Mother”) appeals from the juvenile court’s order
terminating her parental rights to her daughter, N.K., born in 2016 (“the
child”).1 The only issue before us is whether the court’s diligent efforts
finding is supported by reasonable evidence. For the following reasons, we
affirm.

BACKGROUND

¶2 About one month after the child was born, the Department
of Child Safety (“DCS”) dispatched an investigator to Mother’s home. The
investigator observed various loose items cluttering the floor, dirt covering
the walls, and several unknown adults—reportedly homeless
individuals—who the family had allowed inside to do laundry. DCS
removed the child from the home, and she was placed with a licensed foster
family.

¶3 In January 2017, Mother participated in a psychological
evaluation with Dr. James Holmes, who ultimately diagnosed her with
“Intellectual Disability, Mild.” Holmes opined that Mother was unlikely to
demonstrate adequate independent parenting skills in the foreseeable
future because “deficits related to her intellectual disability, which have
persisted throughout her life, have impacted her parenting skills and
abilities and will likely remain stable and continue for a prolonged,
indeterminate period of time.” But Holmes’s prognosis was not altogether
negative, suggesting that Mother could benefit from continued counseling,
especially with a doctoral level clinician, and that DCS could consider
referring Mother for services through the Division of Developmental
Disabilities (“DDD”).

1 The juvenile court also terminated the parental rights of the child’s
father, J.M., (“Father”). He is not a party to this appeal.

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Decision of the Court

¶4 After the juvenile court found the child dependent as to
Mother, DCS moved to terminate Mother’s parental rights, alleging (1) she
could not discharge parental responsibilities because of a mental deficiency
that will continue for a prolonged indeterminate period and (2) the child
had been in an out-of-home placement for more than 15 months, Mother
had not remedied the circumstances causing the placement, and her mental
deficiency and sporadic participation in services made it unlikely that she
could properly parent in the near future. Ariz. Rev. Stat. § 8-533(B)(3),
(B)(8)(c). The juvenile court held a hearing, receiving testimony from
Holmes, Mother, and DCS case manager David Tilley. The court
terminated Mother’s rights on both grounds alleged and this timely appeal
followed.

DISCUSSION

¶5 Before terminating a parent-child relationship, the juvenile
court must first find at least one statutory ground by clear and convincing
evidence. Christina G. v. Ariz. Dep’t of Econ. Sec., 227 Ariz. 231, 234, ¶ 12
(App. 2011). As a necessary element to overcome a parent’s fundamental
right to custody of his or her child, the court must also find that DCS made
diligent efforts to provide appropriate reunification services before it can
terminate parental rights under either § 8-533(B)(3) or (B)(8)(c). See Mary
Ellen C. v. Ariz. Dep’t of Econ. Sec., 193 Ariz. 185, 192, ¶ 32 (App. 1999). DCS
need not provide services that would be futile, nor ensure parents
participate in the services offered, but DCS must at least provide “the
parent[s] ‘with the time and opportunity to participate in programs
designed to help [them] to become an effective parent.’” Christina G., 227
Ariz. at 235, ¶¶ 14, 15 (citation omitted). DCS does not provide that
opportunity, however, “when it neglects to offer the very services that its
consulting expert recommends.” Mary Ellen C., 193 Ariz. at 192, ¶¶ 34, 37.
Because we do not weigh the evidence on appeal, “[w]e accept the . . .
court’s findings of fact unless no reasonable evidence supports them.”
Christina G., 227 Ariz. at 234, ¶ 13.

¶6 Mother argues that reasonable evidence does not support the
court’s finding that DCS made reasonable reunification efforts. To address
this issue, we start by recognizing that Mother has had extensive
involvement with DCS prior to this case. In August 2015, the juvenile court
terminated her parental rights to her older child (born in 2013) under the
same grounds alleged here. In that proceeding, DCS established it had
provided Mother with various services, including parent-aide services,
case-aide services, a bonding and best interests assessment, and
transportation. Although DCS offered these services, Mother failed to

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Decision of the Court

consistently engage with them and “was unable to make significant
behavioral changes that would indicate that she is able to safely parent any
young child.” At the time, DCS also provided Mother with a psychological
evaluation from Dr. Daniel Juliano, who opined that her condition was “not
really a mental health issue,” but rather “a cognitive disorder of
significance” that mental health services could not properly address.
Although Juliano ultimately did not recommend any specific services, DCS
referred Mother to DDD services but they were closed out unsuccessfully
due to her lack of participation.

¶7 As to this termination proceeding, DCS began providing
Mother with services in November 2016, soon after removing the child from
her home, with joint supervised visits for Mother and Father. Next came
Dr. Holmes’s January 2017 evaluation, suggesting Mother would benefit
from continued counseling, particularly from a doctoral level clinician, and
DDD services. Through February, case aides overseeing Father’s and
Mother’s joint visits reported “no concerns” about their ability to parent,
and the two began parent-aide services in March. Nevertheless, as early as
April, DCS expressed concerns about the prospects for Mother’s future
participation, given that (1) she had already missed visits when Father was
absent; (2) Father had disclosed his intent to end their relationship; and (3)
Mother was unlikely to be able to parent independently.

¶8 While parent-aide services were ongoing, in May, Tilley
consulted with “unit psychologist Dr. Hunt” who recommended that
Mother participate “in psychological counseling to help her understand her
disability and her limitations.” Acting on Hunt’s recommendation, DCS
referred her for individual counseling. Mother did not begin counseling at
Applied Behavioral Interventions (“ABI”) until October 2017, however,
because DCS was searching for a therapist commensurate with Holmes’s
recommendations.

¶9 By the time ABI began providing Mother with counseling, her
personal situation had changed. As of June 2017, she no longer lived with
Father. The two had “not let their tumultuous relationship hinder their
desire to care for” the child, though, and they resumed supervised
visitation in October as well. At this point, visits went well for the most
part, although Mother once ignored the child after she and Father got into
an argument before arriving.

¶10 Near the end of 2017, Mother’s engagement with the services
DCS offered her started to decline. In December, Mother began frequently
cancelling supervised visitation without offering any make-up dates. This

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Decision of the Court

trend continued into the new year—Mother completed only a handful of
visits in January 2018, with Father attending just one. After that, Father
“began refusing visits” and “requested to relinquish his rights,” a
concerning development given Mother’s tendency to not visit the child
without him. Mother last visited the child with a case aide present on
February 6 and would eventually be closed out of visitation services in
June.2 Also in January, ABI “severed its contact with [DCS] and [Mother’s]
counseling ended” until DCS could locate a new counseling service for her.

¶11 It was not until April, after the juvenile court had ordered the
case plan changed to severance and adoption, that DCS referred Mother for
individual counseling again, a delay it attributes to ABI’s refusal to turn
over Mother’s medical records. When she was finally assigned to Desert
Edge Mentoring Services (“Desert Edge”), Mother did not engage with their
services. Before completing her intake on May 16, she cancelled her first
two appointments and did not attend a third. Once she completed her
intake, Mother called in to cancel all counseling sessions and Desert Edge
eventually discharged her for nonattendance at the end of June.

¶12 Around this time, Tilley also assisted Mother in applying for
DDD services. DDD determined she was eligible in May and conducted an
initial planning team meeting in June. At the termination hearing
conducted in August and October 2018, Mother’s progress with DDD
remained unknown.

¶13 Despite the foregoing, Mother argues DCS denied her
appropriate reunification services by failing to abide by Holmes’s
recommendation that she be provided therapeutic visits from a
psychologist and to ensure the counseling she did receive went on
uninterrupted. The evidence is to the contrary. Holmes testified at the
hearing that, as far as improving her ability to parent, the services offered
through ABI and Desert Edge would assist Mother in a similar way as those
he first recommended. And though there was a nine-month delay before
counseling began, Tilley attributed the delay to DCS’s search for a properly
credentialed therapist who could offer Mother the type of service Holmes
recommended. Put another way, although it might be that DCS could have
provided some form of counseling sooner, it is also likely that such
counseling would have fallen short of Holmes’s recommendations. It is
true that the second counseling referral was also delayed, but the reason for
this delay was ABI’s failure to turn over medical records—which would

2 Mother privately arranged two visits with the child’s placement in
2018.

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Decision of the Court

have been necessary for subsequent counseling. In the end, once Mother
was assigned to Desert Edge, she called ahead to cancel all but one session
with them.

¶14 Mother also argues that DCS failed to ensure that she
ultimately received the DDD services that Holmes suggested. Tilley
testified that in letters and conversations he consistently informed Mother
of the services she should pursue. Mother also acknowledges that Tilley
assisted her in applying for DDD services in April and that she had a DDD
consultation in June. At its core, then, Mother’s argument is that after DCS
provided her with the time and opportunity to participate in DDD services,
it was required to go a step further and ensure she participated in those
services. But DCS “is not required to . . . ensure that a parent participates
in each service it offers.” Maricopa Cty. Juv. Action No. JS-501904, 180 Ariz.
348, 353 (App. 1994). Significantly, Mother—who was discharged from
DDD in 2015 for nonparticipation in the first termination—had largely
stopped participating in the other services DCS offered her by the time of
the second termination hearing. After providing her with various services
for nearly two years, including helping her obtain DDD services, the
decision not to wait even longer to see whether Mother would fail to
participate in DDD services once again does not render DCS’s efforts
unreasonable.

¶15 Based on the record before us, we cannot say that no
reasonable evidence supports the juvenile court’s finding that DCS made
reasonable efforts to provide Mother with reunification services.

CONCLUSION

¶16 The juvenile court’s order terminating Mother’s parental
rights is affirmed.

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

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