Erica H. v. Dcs, I.B.

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ERICA H., Appellant,

v.

DEPARTMENT OF CHILD SAFETY, I.B., Appellees.

No. 1 CA-JV 19-0101
FILED 12-17-2019

Appeal from the Superior Court in Maricopa County
No. JD36650
The Honorable Karen A. Mullins, Judge

REVERSED

COUNSEL

Law Office of H. Clark Jones, LLC, Mesa
By H. Clark Jones
Counsel for Appellant

Arizona Attorney General's Office, Tucson
By Autumn Spritzer
Counsel for Appellee DCS
 ERICA H. v. DCS, I.B.
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MEMORANDUM DECISION

Judge Diane M. Johnsen delivered the decision of the Court, in which
Presiding Judge Kenton D. Jones and Judge James B. Morse Jr. joined.

J O H N S E N, Judge:

¶1 Erica H. ("Mother") appeals the superior court's order
adjudicating her seven-year-old child, I.B., dependent. Because no
reasonable evidence supported a finding that I.B. was dependent at the time
of the adjudication hearing, we reverse.

FACTS AND PROCEDURAL BACKGROUND

¶2 On November 9, 2018, Mother called police after she and her
ex-boyfriend had an altercation. When officers arrived, Mother appeared
paranoid and anxious. I.B.'s grandmother checked Mother into a crisis-
rehabilitation center. Mother then was transferred for a court-ordered
evaluation in a behavioral-health hospital, where she tested positive for
marijuana and was diagnosed with bipolar disorder. On November 16, the
Department of Child Safety ("DCS") interviewed Mother at the hospital.
She expressed fear that people were watching her through cameras in her
home and were poisoning her food and drink. Mother admitted to DCS
that she used marijuana with her ex-boyfriend a few times. Mental-health
professionals described Mother's state as a manic episode with psychotic
symptoms, and during her stay, Mother received medications. DCS took
custody of I.B.

¶3 In the hospital, Mother's condition improved, and she
expressed a willingness to engage in voluntary mental-health treatment.
On November 26, another division of the superior court declined to order
involuntary treatment and dismissed her mental-health case. Mother
therefore was released from the hospital, which recommended that she
continue taking two medications and follow up with mental-health services
through Partners In Recovery ("PIR").

¶4 Mother kept her initial appointments with PIR. She stopped
taking her medication, however, and did not participate with PIR from
December 5, 2018 to January 23, 2019. After January 23, Mother reengaged
with PIR and continued participating through the time of the dependency

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hearing on March 7, 2019. A mental-health assessment at PIR on January
27 gave her a moderate depression score and recommended further
assessment for depression and substance abuse.

¶5 In the meantime, DCS referred Mother for substance-abuse
testing. Mother consistently tested negative, except for an initial test
indicating a declining marijuana metabolite and a test on February 19 that
returned positive for ETG, indicating the presence of alcohol. By way of
explanation, Mother provided a letter from her employer describing a wine
tasting her employer had required her to participate in at work. Mother
also participated in visits with I.B. through the child's placement and
maintained stable employment and housing.

¶6 After a contested dependency adjudication hearing, the
superior court issued a ruling adjudicating I.B. dependent due to neglect.
Mother timely appealed the dependency order. We have jurisdiction
pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona
Revised Statutes ("A.R.S.") sections 8-235(A) (2019), 12-120.21(A)(1) (2019),
and -2101(A)(1) (2019).1

DISCUSSION

¶7 On appeal, Mother concedes that she "act[ed] irrationally"
and out of a "state of paranoia" in November 2018 due to "marijuana use,
coupled with stressful circumstances with her significant other and her
mother." She maintains, however, that her paranoia – and thus the facts

1 Absent material revision after the relevant date, we cite the current
version of a statute or rule.

In September 2019, roughly six months after the dependency
adjudication, the superior court dismissed the dependency at the
suggestion of DCS, relinquished jurisdiction of Mother and I.B. to the
family division of the superior court and entered a temporary order
granting Mother sole legal decision-making over I.B. Upon receipt of that
order, this court asked the parties to show cause why this appeal should
not be dismissed as moot. Mother objected to dismissal, asserting she
feared that unless the one-time dependency order is reversed or vacated, it
might cause her to be placed on the Department of Economic Security's
Central Registry of persons who have neglected or abused children. See
A.R.S. § 8-804 (2019); see also A.R.S. § 8-533(B)(11) (2019) (prior dependency
may be considered in a severance best-interests analysis).

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supporting a dependency in this case – dissipated by late November 2018,
around the time the court dismissed her mental-health case.

¶8 We review the court's dependency determination for an abuse
of discretion and will affirm unless no reasonable evidence supports the
court's findings. Louis C. v. Dep't of Child Safety, 237 Ariz. 484, 488, ¶ 12
(App. 2015). The superior court "is in the best position to weigh the
evidence, observe the parties, judge the credibility of witnesses, and resolve
disputed facts." Ariz. Dep't of Econ. Sec. v. Oscar O., 209 Ariz. 332, 334, ¶ 4
(App. 2004). The superior court may find a child dependent by a
preponderance of the evidence. Louis C., 237 Ariz. at 490, ¶ 23. A
dependent child is one who is adjudicated to be "[i]n need of proper and
effective parental care and control and who has no parent . . . willing to
exercise or capable of exercising such care and control." A.R.S. § 8-
201(15)(a)(i) (2019). The superior court "must consider the circumstances as
they exist at the time of the dependency adjudication hearing in
determining whether a child is a dependent child." Shella H. v. Dep't of Child
Safety, 239 Ariz. 47, 48, ¶ 1 (App. 2016).

¶9 Here, the superior court based its dependency ruling on its
finding that "Mother's use of marijuana together with her mental health
issues create paranoia and anxiety rendering Mother unable to provide
adequate parental supervision or protective capacity regarding the child."
There is little question that Mother was unable to supervise or otherwise
parent I.B. while she was suffering from paranoia-like symptoms in
November 2018. Doctors noted that Mother then exhibited illogical
thoughts, persecutory delusions, and symptoms of mania, including
anxiety, hypervigilance and racing thoughts. The issue, however, is
whether the record supports a finding that I.B. lacked a parent able and
willing to exercise effective parental care and control at the time of the
dependency adjudication in March 2019.

¶10 According to the record, Mother's condition improved during
her hospitalization, and she told providers she wanted to continue with
voluntary treatment upon her release. Based in part on Mother's
willingness to engage in voluntary mental-health treatment, another
division of the superior court dismissed a petition for further court-ordered
treatment. Once home, Mother kept her initial appointments with PIR, but
she testified she objected to the side effects of the medications the hospital
prescribed, and preferred to pursue counseling instead. Consistent with
Mother's account, the record of her intake appointment at PIR shows that
she told the physician that she was not taking her medications and the
physician explained to her the "[p]otential risks, benefits and side effects"

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of the medications and concluded that Mother "understood and made an
informed decision."

¶11 Mother did not immediately return to PIR after her intake
appointment, and PIR's records reflect that she explained her AHCCCS
coverage had expired and she needed to accumulate 30 days of paystubs to
reapply. Despite PIR's outreach attempts, Mother did not participate with
PIR between December 5, 2018 and January 23, 2019, although she testified
she continued to participate in a peer-support group.

¶12 On January 24, however, she returned to PIR for a "well
check" and asked for a counseling referral. The record of that visit reflects
no concerns by PIR with her mental-health condition. PIR arranged for an
assessment to be performed on February 7, but then rescheduled that
appointment until February 27, just a week before the adjudication hearing.

¶13 On appeal, DCS argues Mother's delay in engaging with PIR
supported "an inference of [her] lingering paranoia." Although it is
concerning that Mother broke off from PIR a week after she was released
from the hospital, the record does not support DCS's suggestion that she
suffered lingering paranoia symptoms. At most, and in contrast to the
mania-like symptoms she displayed in November, Mother admitted that
she got "depressed for a little while" after leaving the hospital. After Mother
reengaged with PIR on January 24, however, her provider noted no
apparent mental-health symptoms. Mother "was dressed to occasion,
hygiene up kept with clear understandable speech" and "good eye contact."
The provider engaged in a logical discussion with Mother, who expressed
interest in a counseling referral. At that time, the provider listed counseling
as the only barrier to progress.

¶14 After January 24, Mother dutifully took advantage of mental-
health treatment through PIR. She kept her appointments, completed a
comprehensive assessment, completed a counseling-intake session,
engaged in peer-support groups and pursued vocational-rehab assistance.
PIR records show no concerns about Mother's mental-health symptoms or
about Mother's ability to parent I.B. On February 7, PIR noted that Mother
displayed some anxiety. Despite this, Mother engaged in a logical
conversation with her PIR provider, who noted the only barrier to progress
was her "court/child custody" issue.

¶15 Furthermore, Mother's comprehensive assessment,
completed at PIR on February 27, showed Mother had only "moderate
depression" and "mild anxiety" and recommended "further assessment" for

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the depression. It also noted "[n]o current medical problems reported or
detected" and "[n]o emotional, behavioral or cognitive conditions or
complications reported or detected." The assessment showed Mother was
in the "preparation or action" stage of change, "[w]illing to abstain from all
mind-altering substances," and "engaged in [the] treatment process."
Notably, the assessment concluded that Mother "is currently stable and has
not been [symptomatic] since her first episode in November" of 2018.
Likewise, Mother, I.B.'s placement and the case manager testified that
Mother had not shown any symptoms like those she experienced in early
November.

¶16 The case manager testified at the dependency hearing that
Mother had "no real treatment plan." The record shows, however, that PIR
developed a treatment plan for Mother that placed her at a voluntary,
supportive level of care. Mother's treatment plan included visiting her
primary care physician and a registered nurse once per year, seeing a
behavioral-health medical professional once every three months, and
meeting with her case manager once a month. Mother's plan also included
counseling, peer-support groups and vocational rehab. Mother received a
copy of the plan, agreed to it and was engaging in the recommended
services to the extent possible by the dependency hearing.

¶17 DCS asserts Mother denied her bipolar diagnosis and points
to her decision to discontinue medication after leaving the hospital as
evidence supporting a dependency at the time of the adjudication hearing.
Indeed, the case manager testified that Mother "didn't feel that she needed
any help or treatment." But Mother acknowledged her bipolar diagnosis at
the dependency hearing. Additionally, PIR knew of Mother's decision not
to continue with medication and completed a treatment plan for her that
instead required regular oversight by a behavioral-health medical
professional. The treatment plan did not foreclose the use of medication,
requiring that Mother "will work with PIR to manage symptoms through
medication and engagement with services." Mother's testimony reflects
this:

Q: And you were diagnosed with bipolar disorder in
November of 2018, correct?

A: Yes.

* * *

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Q: Are you interested in working on the diagnosis of bipolar
to see if you can make sure that you have appropriate therapy
and such?

A: Yes.

Q: Okay. When you went to Partners In Recovery, did they
suggest a course of treatment for you, for the bipolar . . . ?

A: Yeah. Once I talked to the doctor and we did my intake,
she said, what do you think we should do. And I said, I really
don't feel like the medications were alleviating symptoms; in
fact, I experienced a lot . . . more negative side effects. And
she said, . . . depending on how you do with counseling, if
you become symptomatic or if you . . . feel like you're anxious
or anything, definitely see me, and we'll work out a treatment
plan with something small, because I am sensitive to
medication. But she said definitely talk to someone and
continue to seek peer support and familial support.

Q: Okay. And so the course of treatment was peer support -

A: Counseling.

Q: – counseling, and then medications if necessary.

A: Yes.

¶18 To be sure, under other circumstances, a parent's delay in
seeking services, denial of a diagnosis, and refusal to take medication might
support a dependency finding, particularly if coupled with evidence of
immediate symptoms or recurring episodes that render the parent unable
to safely supervise a child or meet a child's needs. Here, however, the
record contained no evidence that Mother had any mental-health issues
before November 2018 and no reported significant issues afterwards. At
the time of the adjudication hearing, Mother had stable employment and
housing, which DCS had approved as safe for I.B. Mother lived alone, was
no longer maintaining a relationship with her ex-boyfriend, and visited
with I.B. almost every day. The child's placement had no concerns about
Mother's interactions with I.B., testifying they had all been appropriate and
loving.

¶19 At the dependency hearing, DCS presented no evidence that
Mother's mental-health issues were likely to render her incapable of

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providing I.B. with necessities or proper and effective parental care and
control immediately or even in the near future. DCS points to the February
27 comprehensive assessment, in which Mother scored in the moderate
range for depression and the mild range for anxiety. Despite these scores,
PIR placed her at a low-risk level in all concerning categories, including
"Emotional, Behavioral or Cognitive Conditions/Complications" and did
not add anything further to Mother's treatment plan. At the hearing, the
DCS case manager maintained that "there's no guarantee that tomorrow
[Mother] doesn't have another episode or psychotic break." On this record,
the case manager's testimony was mere conjecture, and is insufficient to
support a finding that DCS had proved I.B. was dependent at the time of
the adjudication hearing.

CONCLUSION

¶20 For the foregoing reasons, we reverse the order adjudicating
I.B. a dependent child.

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

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