Kyle R., Dawna-Jo H. v. Dcs

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

KYLE R., DAWNA-JO H., Appellants,

v.

DEPARTMENT OF CHILD SAFETY, J.R., A.R., Appellees.

No. 1 CA-JV 22-0048
FILED 10-11-2022

Appeal from the Superior Court in Maricopa County
No. JD532906, JS519831
The Honorable Joshua D. Rogers, Judge

AFFIRMED

COUNSEL

Maricopa County Legal Defender’s Office, Phoenix
By Jamie R. Heller
Counsel for Appellant Kyle R.

David W. Bell Attorney at Law, Higley
By David W. Bell
Counsel for Appellant Dawna-Jo H.

Arizona Attorney General’s Office, Tucson
By Dawn Rachelle Williams
Counsel for Appellees
 KYLE R., DAWNA-JO H. v. DCS et al.
Decision of the Court

MEMORANDUM DECISION

Judge Cynthia J. Bailey delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Vice Chief Judge David B. Gass
joined.

B A I L E Y, Judge:

¶1 Kyle R. (“Father”) and Dawna-Jo H. (“Mother”) appeal the
superior court’s order terminating their parental rights to their children.
For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Father and Mother are the parents of J.R., born in 2019, and
A.R., born in 2021. They have extensive histories with the Department of
Child Safety (“DCS”) and have received services from the Department of
Developmental Disabilities (“DDD”) for their behavioral health needs. The
court terminated the parents’ parental rights to three other children in the
past because, despite reunification services, they remained unable to safely
parent them. In past psychological evaluations, both parents were
diagnosed with mental deficiencies and mental-health issues.

¶3 Mother’s evaluations determined she had borderline
intelligence and mental retardation; attention-deficit hyperactivity, post-
traumatic stress, reactive attachment, mood disorders, and schizophrenia.
Mother had a history of suicide attempts. Father accrued diagnoses of
partial fetal alcohol syndrome, an alcohol-related neurodevelopmental
disorder, depressive disorder, and a personality disorder with antisocial
and narcissistic traits. Additionally, Father had an active warrant for
charges of defacing or damaging property and disorderly conduct
involving domestic violence.

¶4 Because of this history, DCS investigated after Mother gave
birth to J.R., who was placed in the neonatal intensive care unit because of
respiratory and feeding problems. After his release from the hospital, he
continued to struggle with respiratory conditions and required breathing
treatments.

¶5 The parents were not enrolled in services to treat their mental
health or support their cognitive limitations. After the investigator came to
the parents’ home, she said “it quickly became evident . . . that [Father and

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Mother] do not have the basic knowledge, skill set, or means to provide for
[J.R.’s] basic needs and ensure his safety.”

¶6 In October 2019, DCS filed a dependency petition and placed
J.R. with an aunt; after a contested adjudication, the superior court found
him dependent in March 2020, adopting a family reunification case plan.
At a December 2020 review hearing, the court changed the case plan to
severance and adoption. In January 2021, DCS moved to terminate the
parents’ parental rights to J.R. under the six- and fifteen-month out-of-home
placement grounds and under the additional ground of mental illness as to
Mother. Arizona Revised Statutes (“A.R.S.”) § 8-533(B)(3), (B)(8)(a), (c).
DCS also took custody of A.R. after her birth and immediately filed
dependency and termination petitions under the mental illness ground.
A.R.S. § 8-533(B)(3).

¶7 DCS asked the parents to pursue mental health services
through their own providers, and both parents indicated they could do so.
Mother obtained mental health services, including counseling and
medication and case management. She made little improvement in
counseling, however, and was discharged for failing to attend
appointments consistently. She also completed a psychiatric evaluation
and was diagnosed with bipolar disorder with the current episode listed as
severely manic with “psych features”; autism spectrum disorder; and post-
traumatic stress disorder. Father refused to participate in mental-health
services and denied he needed them.

¶8 Meanwhile, DCS referred the parents for psychological
evaluations, the Nurturing Parenting Program, and parent aides with
visitation. The parents refused to complete the psychological evaluations.
Additionally, after two parent aides, they still were not retaining the lessons
and had made only a few improvements in their ability to parent. DCS also
asked Father to self-refer for anger management services, but he refused.

¶9 After a two-day adjudication in December 2021, the superior
court terminated the parents’ parental rights on the grounds alleged, as well
as the neglect ground as to A.R. The parents appealed. This Court has
jurisdiction under A.R.S. § 8-235(A).

DISCUSSION

¶10 The parents challenge the court’s order terminating their
rights to A.R. based on neglect and the court’s finding that DCS made
diligent efforts to provide them with appropriate reunification services.

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Additionally, Father challenges the evidence supporting the termination
order of his parental rights to A.R. based on the mental illness ground.

¶11 A parent’s right to custody and control of his own child, while
fundamental, is not absolute. Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz.
246, 248, ¶¶ 11-12 (2000). Severance of a parental relationship may be
warranted where the state proves one statutory ground under A.R.S. § 8-
533 by “clear and convincing evidence.” Id. at 249, ¶ 12. “Clear and
convincing” means the grounds for termination are “highly probable or
reasonably certain.” Kent K. v. Bobby M., 210 Ariz. 279, 284-85, ¶ 25 (2005).
The court must also find that severance is in the child’s best interests by a
preponderance of the evidence. Id. at 288, ¶ 41.

¶12 This court “will accept the juvenile court’s findings of fact
unless no reasonable evidence supports those findings and 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 “look[s] 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. Neglect Ground.

¶13 The parties agree the superior court erred by terminating the
parents’ rights to A.R. under the neglect ground because DCS never alleged
that ground in its motion. We, therefore, do not consider that ground. See
Roberto F. v. Ariz. Dep’t of Econ. Sec., 232 Ariz. 45, 55, ¶ 44 (App. 2013)
(“Adequate notice is a fundamental element of due process.”).

¶14 But we will affirm the superior court’s order terminating
parental rights if reasonable evidence supports any of the statutory grounds
on which the court ordered termination. See Jesus M., 203 Ariz. at 280, ¶ 3.
Thus, although it was error for the court to terminate the parents’ rights to
A.R. under the neglect ground, reasonable evidence supports its order
terminating the parents’ rights on other statutory grounds.

II. Diligent Efforts.

a. Waiver.

¶15 Both parents assert that DCS failed to make a diligent effort
to provide them with appropriate reunification services. Before seeking to
terminate parental rights under the mental illness ground, DCS must make
reasonable efforts to provide a parent with appropriate reunification

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services, Mary Ellen C. v. Ariz. Dep’t of Econ. Sec., 193 Ariz. 185, 186, ¶ 1 (App.
1999), and before seeking termination under the out-of-home ground must
make diligent efforts to provide appropriate reunification services. A.R.S.
§ 8-533(B)(8). DCS does so by allowing the parent the “time and
opportunity to participate in programs designed to improve the parent’s
ability to care for the child.” Id. at 192, ¶ 37. DCS must “undertake measures
[that have] a reasonable prospect of success” in reuniting the family. Id., at
192, ¶ 34. Additionally, DCS must “maintain consistent contact with the
parent[] and make reasonable efforts to assist the parent in areas where
compliance proves difficult.” Donald W. v. Dep’t of Child Safety, 247 Ariz. 9,
23, ¶ 50 (App. 2019). Nonetheless, it is not required “to undertake
rehabilitative measures that are futile,” Mary Ellen C., 193 Ariz. at 192 ¶ 34,
or to duplicate a service the parent receives elsewhere. See Pima Cnty.
Severance Action No. S-2397, 161 Ariz. 574, 577 (App. 1989).

¶16 DCS contends the parents waived this argument by failing to
raise it before trial. See Shawanee S. v. Ariz. Dep’t of Econ. Sec., 234 Ariz. 174,
179, ¶ 18 (App. 2014) (holding a parent may waive concerns about services
if not timely raised in superior court). Here, the court found that “although
both parents have contested the necessity of services, they have not
challenged the adequacy of the services provided or offered by” DCS.
Indeed, the parents failed to object to the superior court’s several findings
throughout the case that DCS was making reasonable efforts to finalize the
permanency plan.

¶17 They suggest this Court can deem their counsels’ cross-
examination of the case manager at trial an objection to DCS’s efforts to
provide services. Additionally, the record shows that Mother objected to
the court’s reasonable-efforts finding once, on the first day of trial. But the
dependency process “demands that parents voice their concerns about
services to the juvenile court in a timely manner” to allow that court “a
reasonable opportunity to address the matter and ensure” DCS follows its
statutory obligation. Id. at 178-79, ¶16, ¶18. Here, the parents’ failure to
timely object or voice concerns regarding services deprived the superior
court of a reasonable opportunity to address any issues before trial.
Nevertheless, given the important rights at stake in termination
proceedings, we decline to apply waiver here. See id. at 178, ¶ 14 (noting a
parent may raise reunification services issues at trial).

b. Mother.

¶18 Turning to the merits, Mother received several services
during the dependency, including a psychological evaluation, a

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BioPsychoSocial assessment, a psychiatric evaluation, medication
management, mental health and DCS case management, individual
counseling, anger management counseling, the Nurturing Parenting
Program, parent aides with visitation, habilitation services, and
transportation assistance.

¶19 Nonetheless, Mother argues the case manager referred her to
other agencies for counseling and failed to regularly contact those agencies
about her progress or assist her “when it was clear that she was not
receiving” that service. DCS is not required to duplicate services, however.
See S-2397, 161 Ariz. at 577. Here, Mother had counseling available through
her mental health provider from January 2020 to March 2021. Yet, in that
time, she attended only a few sessions.

¶20 She then changed her mental health service provider in
Summer 2021 because she felt she could receive better services elsewhere.
Thus, for about four months, Mother was not receiving mental health
services. Although Mother maintained contact with the case manager
during this time, she did not indicate any issues with the transfer or request
any help. Moreover, the case manager scheduled at least one meeting with
Mother during this time, but she did not show up.

¶21 Regardless, Mother had a case manager through her medical
insurance who was overseeing the transfer. Mother testified that this case
manager had to handle the transfer so services would be covered through
her insurance. Once Mother began services with the new provider, she was
waitlisted for counseling. Nonetheless, she told the DCS case manager the
opposite—that she was receiving and participating in counseling. Thus,
even if DCS should have been more diligent in contacting Mother’s mental
health case manager, on this record, we find no error.

¶22 Next, Mother asserts that DCS failed to provide her with
another psychological evaluation after December 2019. Mother, however,
refused to finish the psychological evaluation DCS had referred her for,
despite several reminders by the case manager. Additionally, Mother
received similar assessments during the dependency, including a
BioPsychoSocial and a psychiatric assessment.

¶23 Mother also points to a six-month gap between her parent
aide referrals. Absent a court order otherwise, DCS had an obligation to
provide Mother with visitation. See Maricopa Cnty. Juv. Action No. JD-5312,
178 Ariz. 372, 374-75 (App. 1994) (holding parents in dependency
proceedings retain the right to associate with their children).

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¶24 Here, the case manager testified that the gap was due to the
“significant waiting list for [parent aides] at that time,” but that DCS also
had “a case aide . . . do a couple of visits in between because it was taking
so long” to have a parent aide assigned. On this record, we cannot say
DCS’s actions constitute a failure to provide Mother appropriate visitation
services. And parents did not raise this issue in the superior court. Even
so, Mother does not show how additional visits would have remedied her
mental health issues or parenting deficits, particularly when she
participated in the parent aide service after this time and only enhanced a
few parenting skills.

¶25 Mother next argues the case manager waited almost a year to
send her a letter detailing the services she needed to complete for
reunification. The record shows, however, that DCS was diligent in
contacting and communicating with Mother in other ways about services.
Both case managers attempted several times to meet with the parents. The
second case manager maintained contact with the parents through text, e-
mail, and voicemail and discussed service requirements often. Moreover,
DCS listed its service requirements in court reports, and services were
discussed at regular court hearings.

¶26 Finally, Mother and Father dispute the case manager’s
testimony that their home was dangerous for children, arguing that DCS
did not evaluate their current home. But the superior court did not base its
termination order on, or make any specific findings, regarding the
condition of the parents’ home. And the case manager explained her
testimony pertained only to the parents’ first home.

c. Father.

¶27 Father likewise challenges whether DCS made a diligent
effort to provide him with appropriate services, arguing it did not afford
him enough time or opportunity to participate in anger management or
counseling. Additionally, he takes issue with the court’s finding that DCS
“referred [him] for domestic violence counseling and individual counseling
to address mental health.” Although DCS did not provide Father with
direct referrals, as the finding suggests, counseling was available to him,
and he failed to engage.

¶28 Here, Father had the opportunity to participate in mental
health services, a psychological evaluation, anger management counseling,
case management services, the Nurturing Parenting Program, and parent
aides with visitation.

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¶29 Regarding mental health services specifically, Father initially
had comprehensive mental health services and counseling available
through his own provider, but he stopped engaging in them. Additionally,
when Father indicated he was having trouble transferring his mental health
services to another provider, the case manager offered to assist him, but he
did not take advantage of the offer. DCS referred Father for a psychological
evaluation shortly after the dependency began, but he refused to complete
it, even with the case manager’s repeated prompting. Had Father
completed it, the evaluating psychologist could have recommended
additional services, such as anger management or counseling, earlier in the
dependency.

¶30 Regardless, when DCS finally asked Father to self-refer for
counseling, he refused. Thus, Father contributed to the initial delay in
services, and considering his refusal to participate in any mental health
services, he has not shown how any alleged error by DCS would have
affected the outcome of the case.

¶31 Father also generally asserts the case manager was not
diligent in communicating with him about services. The record shows,
however, that the first case manager met with the parents multiple times,
though Father still claimed he did not know what services he needed to
participate in. The record belies Father’s claim, as he was prompted
multiple times to complete the psychological evaluation and, during this
time, he participated in the parent-aide service and visitation.

¶32 Once the second case manager took over, she attempted to
meet with the parents eleven times to discuss services to no avail. The case
manager also attempted to speak with Father over the phone, but he
indicated he “didn’t want to do any services.” Moreover, although Father
disagreed about whether he needed mental health services, he recognized
DCS’s request to participate in them because he informed the case manager
about his difficulty in transferring the service. Overall, the record shows
that Father understood what services he needed to engage in but refused to
participate in most of them. See Maricopa Cnty. Juv. Action No. JS-501904,
180 Ariz. 348, 353 (App. 1994) (explaining DCS is not required to ensure
parents participate in the services offered).

III. Mental Illness Ground as to Father.

¶33 Finally, Father contends no reasonable evidence supports
termination of his rights under the mental illness ground, arguing the order
is based on an old psychological evaluation, dated DDD records, and the

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case manager’s testimony. The superior court may terminate a parent’s
rights if “the 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).

¶34 Father faults the court for relying on mental health reports
that were at least four years old, but his own refusal to participate in mental
health services during this case, including an updated psychological
evaluation, prevented the court from relying on more current information.

¶35 Nevertheless, reasonable evidence supports the court’s
finding that Father suffers from mental illness that renders him unable to
discharge his parental responsibilities and that his condition will continue
for a prolonged, indeterminate period. Since childhood, Father has been
repeatedly diagnosed with fetal-alcohol syndrome, which led to a
neurodevelopmental disorder. In 2017, Father was diagnosed with a
personality disorder with antisocial and narcissistic traits. That
psychologist noted Father “was identified at an early age as having severe
emotional problems,” which escalated to physical aggression as he aged.
She explained that as part of the personality disorder, Father “totally lacks
empathy, does not care about other people, other than the role they play in
meeting or thwarting his wants and desires. The world revolves completely
around [Father], and although he is capable of registering other people’s
suffering, including that which he causes, he just doesn’t care.”

¶36 The psychologist concluded that Father “is totally unable to
parent at this time. He does not see other people as human beings with
names, identities, and valid needs separate from his own.” For that reason,
she opined that a child in Father’s care would be at a huge risk of neglect
and physical harm. Further, she found his prognosis for change as “very
poor[] due to the ingrained and habitual nature of his distorted beliefs and
poorly controlled impulses combined with his conviction that he is fine.”
As to services, the psychologist stated that Father “has been the
unimpressed recipient for years of ongoing and intensive mental health
resources . . . with very little to show for it.” She could not identify any
further services that would help Father.

¶37 The superior court considered this most recent psychological
evaluation, and along with other evidence found:

Father continues to exhibit the mental health issues set forth
in the 2017 psychological evaluation[,] and . . . he has not

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taken any steps to address these issues. Indeed, Father
refused to complete the psychological evaluation for which he
was referred in this case or even acknowledge that he has any
mental health issues. He also continues to have almost all of
the same diminished protective capacities as Mother.

¶38 To be sure, Father denied that he needed mental health
assistance or had any mental health issues. He refused to participate in
mental health services or to speak to the case manager about it.
Additionally, Father displayed explosive anger during the dependency and
rigidity, including refusing to be redirected after picking the children up by
the wrists.

¶39 Similarly, the parent aide reported the parents’ main barriers
to progressing in the service was their resistance to change and
unwillingness to control their emotions and impulses. After nine months
of participating in the parent-aide service, Father had only enhanced two of
sixteen parenting goals. He remained diminished in the following
protective capacities: (1) controls impulses, (2) takes action, (3) sets aside his
needs for the children, (4) demonstrates adequate parenting skills, (5)
adaptability, (6) self-awareness, (7) intellectual ability, (8) recognize threats,
(9) recognize the children’s needs, (10) understand protective role, (11)
articulate a protection plan, (12) meets own emotional needs, (13) tolerance,
and (14) stability.

¶40 Father points to the two goals he did enhance: expressing
love, empathy, and sensitivity to the children and being positively attached
to them. Although the parent aide found Father had enhanced these skills,
she noted continuing concerns in these areas, reporting that the parents
“struggle[] with ordering their lives according to what is best for the
child[ren], displaying their affection for the child[ren], and identifying the
closeness of the relationship with the child[ren].” Overall, reasonable
evidence supports the superior court’s termination order. 1

1 Mother does not challenge the mental illness ground as to A.R. or
the grounds alleged as to J.R., and Father does not challenge the grounds as
to J.R. Any arguments as to those grounds are therefore waived. See Crystal
E. v. Dep’t of Child Safety, 241 Ariz. 576, 577-78, ¶ 5 (App. 2017).

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CONCLUSION

¶41 For the foregoing reasons, we affirm.

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

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