Jurgen M., Ashley C. v. Dcs, E.M.

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JURGEN M., ASHLEY C., Appellants,

v.

DEPARTMENT OF CHILD SAFETY, E.M., Appellees.

No. 1 CA-JV 21-0198
FILED 3-1-2022

Appeal from the Superior Court in Maricopa County
No. JD22977, JS20533
The Honorable Michael J. Herrod, Judge

AFFIRMED

COUNSEL

John L. Popilek PC, Scottsdale
By John L. Popilek
Counsel for Appellant Father

Maricopa County Public Advocate, Mesa
By Suzanne W. Sanchez
Counsel for Appellant Mother

Arizona Attorney General’s Office, Tucson
By Autumn Spritzer
Counsel for Appellee Department of Child Safety
 JURGEN M., ASHLEY C. v. DCS, E.M.
Decision of the Court

MEMORANDUM DECISION

Judge Samuel A. Thumma delivered the decision of the Court, in which
Presiding Judge Maria Elena Cruz and Judge Michael J. Brown joined.

T H U M M A, Judge:

¶1 Jurgen M. (Father) and Ashley C. (Mother) appeal an order
terminating their parental rights to their child E.M. Because they have
shown no error, the order is affirmed.

FACTS AND PROCEDURAL HISTORY

¶2 Given behavioral health issues, Father and Mother have had
their parental rights to six other children terminated in the past. During
those proceedings, the Department of Child Safety (DCS) has provided
them various services, including referrals for psychological evaluations,
counseling and parent aides. The parents completed the psychological
evaluations but were unsuccessful in any other services. Three evaluating
psychologists opined that further reunification services would be futile.

¶3 When E.M. was born in May 2020, DCS’ investigation
revealed concerns about feeding the child and the home environment.
Mother denied needing any support to parent E.M. Father echoed that
view, and denied any mental-health issues, despite his history. DCS took
E.M. into custody, filed a dependency petition and also filed a petition to
terminate, alleging prior-termination and mental deficiency as to Mother
and mental illness as to Father.

¶4 Although the court first relieved DCS of any obligation to
provide reunification services, see Ariz. Rev. Stat. (A.R.S.) § 8-
846(D)(1)(b)(2022),1 it quickly rescinded that order. DCS referred parents
for psychological evaluations, a parent aide, a family support coordinator
and transportation. DCS also offered to assist the parents to participate in
counseling through their own insurance, and to help Father to self-refer for
a psychiatric evaluation.

1Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.

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¶5 The parents completed psychological evaluations in August
2020. Mother’s evaluation confirmed her deficiencies, stating she could not
safely be a primary caregiver to a child. Echoing concerns from past
evaluations, Father was diagnosed with behavioral health disorders. The
psychologist opined that Father had a poor prognosis to parent E.M. in the
foreseeable future, adding Father “does not seem to have any awareness or
insight into what would be expected of him to be a parent providing safe
and effective care for a child.”

¶6 Mother participated in services, including through the
Division of Developmental Disabilities (DDD), which worked with her to
develop daily living and self-care skills. Father participated in counseling,
though his counselor expressed concern about his motivation. The parents
missed several visits and Father did not complete a psychiatric evaluation.

¶7 A few months before the termination adjudication, a
psychologist recommended the parents receive a family support
coordinator and a parent aide, so DCS referred them for those services. The
court held a combined dependency and termination adjudication over six
days, ending in March 2021. The court found E.M. dependent and
terminated the parents’ rights. This court has jurisdiction over parents’
timely appeal pursuant to Article 6, Section, 9, of the Arizona Constitution,
A.R.S. §§ 8-235(A), 12-120.21(A) and 12-2101(A) and Ariz. R.P. Juv. Ct. 103-
104.

DISCUSSION

¶8 Parents challenge DCS’ efforts to provide them with
appropriate reunification services. Father also argues that insufficient
evidence supports the termination grounds, and Mother challenges the
finding that termination is in E.M.’s best interests.

¶9 As applicable here, to terminate parental rights, a court must
find by clear and convincing evidence that at least one statutory ground in
A.R.S. § 8–533(B) has been proven and must find by a preponderance of the
evidence that termination is in the best interests of the child. See Kent K. v.
Bobby M., 210 Ariz. 279, 288 ¶ 41 (2005); Michael J. v. Ariz. Dep't of Econ. Sec.,
196 Ariz. 246, 249 ¶ 12 (2000). Because the superior court “is in the best
position to weigh the evidence, observe the parties, judge the credibility of
witnesses, and resolve disputed facts,” this court will affirm an order
terminating parental rights as long as it is supported by reasonable
evidence. Jordan C. v. Ariz. Dep’t of Econ. Sec., 223 Ariz. 86, 93 ¶ 18 (App.
2009) (citation omitted). This court “will accept the juvenile court’s findings

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of fact unless no reasonable evidence supports those findings, and we will
affirm a severance order unless it is clearly erroneous.” Jesus M. v. Ariz.
Dep’t of Econ. Sec., 203 Ariz. 278, 280 ¶ 4 (App. 2002). This court does not
reweigh the evidence, but looks “only to determine if there is evidence to
sustain the court’s ruling.” Mary Lou C. v. Ariz. Dep’t of Econ. Sec., 207 Ariz.
43, 47 ¶ 8 (App. 2004).

I. The Court Did Not Err in Finding DCS Provided Parents
Appropriate Reunification Services.

¶10 DCS makes a reasonable effort to provide appropriate
reunification services when it provides a parent with the “time and
opportunity to participate in programs designed to improve the parent’s
ability to care for the child.” Jordan C. v. Ariz. Dep’t of Econ. Sec., 223 Ariz.
86, 94 ¶ 20 (App. 2009). For a disabled parent, DCS must provide
reunification services in compliance with the Americans with Disabilities
Act (ADA). Jessica P. v. Dep’t of Child Safety, 251 Ariz. 34, 39 ¶ 14 (App. 2021).
“[W]hat constitutes a [reasonable] effort will vary by case based on the
family’s unique circumstances.” Donald W. v. Dep’t of Child Safety, 247 Ariz.
9, 23 ¶ 50 (App. 2019).

¶11 DCS need not provide every conceivable service or ensure
that a parent participates in each service it offers. In re Maricopa Cty. Juv.
Action No. JS-501904, 180 Ariz. 348, 353 (App. 1994). DCS must “undertake
measures [that have] a reasonable prospect of success” in reuniting the
family, and futile efforts are not required. Mary Ellen C. v. Ariz. Dep’t of Econ.
Sec., 193 Ariz. 185, 192 ¶ 34 (App. 1999). The court examines the “totality of
the circumstances,” including whether DCS made “reasonable efforts to
assist the parent in areas where compliance proves difficult.” Donald W.,
247 Ariz. at 23 ¶ 50, 26 ¶ 68.

¶12 The parents argue they had insufficient time to participate in
reunification services. This matter proceeded comparatively quickly, in
large part because DCS filed a nearly contemporaneous termination
petition given parents’ history. DCS, however, acted reasonably in
providing services for the parents during this proceeding. DCS
immediately referred them for supervised visits, the parents completed
their psychological evaluations within four weeks after the court
reinstituted DCS’ obligation to provide services. After a psychologist
recommended the parents receive a family support coordinator and a
parent aide, DCS made those services available within weeks.

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¶13 Over the past eight years, DCS has provided the parents
many services. Those services included three psychological evaluations,
counseling, four parent aides, family preservation services and, for Father,
a neuropsychological and psychiatric evaluation. None of those services led
to reunification, and Father’s current evaluating psychologist stated that
further services would be futile.

¶14 Mother also argues that DCS failed to provide her with a
parent aide “that would have worked with Father as the primary care-
taking parent, with Mother in an assistant role.” The parent aide, however,
worked with both parents to improve their primary parenting skills. But
Father resisted participating in the service, leaving Mother to act as the
primary parent. Father did not acknowledge Mother’s inability to be the
primary parent for E.M. until the last day of trial. Thus, parents have not
shown that DCS failed to provide appropriate services.

¶15 Mother argues that she made significant improvements in her
habilitation services, and DCS should have coordinated with them to better
understand how to accommodate her. The evidence shows, however, that
the habilitation services were designed to address Mother’s own daily
living and self-care skills. The focus of this proceeding, however, is
Mother’s ability to parent. Although Mother did make some progress in her
habilitation service, her ability to parent largely remained unchanged.

¶16 Mother received accommodations from the parent aide,
including repetition of lessons, videos, and a hands-on teaching approach.
These efforts aligned with the recommendations by Mother’s evaluating
psychologist that she is a visual learner and could profit from
demonstration, review of videos and “hands-on” interactions with E.M.
Both the DCS investigator and the case manager contacted DDD and
Mother’s habilitation provider, neither of which suggested further
accommodations. The evidence supports the court’s determination that
DCS made reasonable efforts to provide the parents with appropriate
reunification services, including reasonable accommodations under the
ADA for Mother.

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II. The Trial Record Supports the Termination Order for Father.

¶17 Father argues insufficient evidence supports the termination
of his parental rights under the mental-illness ground because he and
Mother have changed over their eight-year involvement with DCS. A court
may terminate parental rights if a “parent is unable to discharge parental
responsibilities because of mental illness . . . and there are reasonable
grounds to believe that the condition will continue for a prolonged
indeterminate period.” A.R.S. § 8-533(B)(3). This ground does not require
the court to find a parent is “unable to discharge any parental
responsibilities,” but “establish[es] a standard which permits a trial judge
flexibility in considering the unique circumstances of each termination
case.” In re Appeal in Maricopa Cty., Juv. Action No. JS-5894, 145 Ariz. 405, 409
(App. 1985).

¶18 The court found Father had consistently been diagnosed with
mental illnesses, including ADHD and a personality disorder with
narcissistic and schizoid features, and that his condition will continue for a
prolonged, indeterminate period. Reasonable evidence supports these
findings, which were supported by multiple mental-health professionals.

¶19 Father argues DCS failed to prove he had any mental-health
issues beyond ADHD. Even if he had not waived the issue by raising it for
the first time in his reply, see In re Marriage of Pownall, 197 Ariz. 577, 583 n.5,
¶ 25 (App. 2000), it is not supported by the record. In his current
psychological evaluation, the psychologist had enough information to
diagnose Father with a personality disorder, later testifying that “because
of the fact that [his personality disorder has] endured over time, and has
been seen by other evaluators of him, it would be more than just a rule out
diagnosis.”

¶20 The court also found Father’s mental illnesses render him
unable to discharge his parental responsibilities because he is “inattentive
to the needs of anyone but himself” and lacks insight into Mother’s
deficiencies. Although with substantial concerns noted by Father’s 2017
evaluating psychologist, Father’s current evaluating psychologist
determined that his personality disorder was ongoing, with Father
identifying no changes he needed to make to have E.M. returned to his care.
Nor did Father recognize the extent of Mother’s limitations, though he had
been in a relationship with her for more than a decade while she received
multiple interventions for her mental disability. The psychologist stated
that Father’s mental illness “would expose a child to neglect,” as he would

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likely be unaware of how to provide a safe home environment or meet a
child’s needs.

¶21 Father points to his testimony that he was willing to be E.M.’s
primary caretaker and not leave her alone with Mother. However, the court
rejected Father’s testimony, finding that

Father has not hesitated in his willingness to
leave [E.M.], and his other children in the care
of Mother, despite her intellectual disabilities.
Throughout this case, until trial, Father has
expressed his intention that Mother be the
primary parent. . . . Father has not fully
participated in [services], and has largely left
the parenting issue to Mother.

Reasonable evidence supports these findings. Father also points to his
participation in counseling, parent-aide services, and Mother’s habilitation
services. Although Father participated in each of these services, he delayed
participating in counseling and later stated he only attended because he
was told to do so, resisted engaging in the parent-aide service and resisted
and undermined Mother’s habilitation service to the point the provider had
to pause the training. On this record, reasonable evidence supports the
superior court’s order terminating Father’s parental rights based on mental
illness.2

III. The Trial Evidence Shows Termination Is in E.M.’s Best Interests.

¶22 Mother asserts that the court erred in finding termination was
in E.M.’s best interests because DCS did not sufficiently accommodate her
disability and because she and Father agreed at trial that they would not
leave E.M. alone with Mother. “[A] determination of the child’s best interest
must include a finding as to how the child would benefit from a severance
or be harmed by the continuation of the relationship.” Maricopa Cty. Juv.
Action No. JS-500274, 167 Ariz. 1, 5 (1990). Courts “must consider the totality
of the circumstances existing at the time of the severance determination,
including the child’s adoptability and the parent’s rehabilitation.” Alma S.
v. Dep’t of Child Safety, 245 Ariz. 146, 148 ¶ 1 (2018).

2Accordingly, this court does not address Father’s arguments pertaining to
the prior-termination ground. See Jesus M., 203 Ariz. at 280 ¶ 3.

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 JURGEN M., ASHLEY C. v. DCS, E.M.
Decision of the Court

¶23 Mother’s arguments amount to a request to reweigh the
evidence, which this court will not do. Mary Lou C., 207 Ariz. at 47 ¶ 8.
Moreover, reasonable evidence supports the finding that E.M. would
benefit from termination because she is in an adoptive placement who can
provide for her needs.

CONCLUSION

¶24 The order terminating the parental rights of Mother and
Father is affirmed.

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

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