In Re Term of Parental Rights as to C.H.

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

IN RE TERMINATION OF PARENTAL RIGHTS AS TO C.H.

No. 1 CA-JV 24-0033
FILED 08-01-2024

Appeal from the Superior Court in Maricopa County
No. JD527370
The Honorable Pamela S. Gates, Judge

VACATED AND REMANDED

COUNSEL

David W. Bell Attorney at Law, Higley
By David W. Bell
Counsel for Appellant

Arizona Attorney General’s Office, Tucson
By Thomas K. Sanders
Counsel for Appellee DCS

Law Office of Lincoln Green Jr. PC, Phoenix
By Lincoln Green
Counsel for Appellee Child
 IN RE TERM OF PARENTAL RIGHTS AS TO C.H.
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Michael S. Catlett delivered the decision of the Court, in
which Judge Jennifer M. Perkins and Vice Chief Judge Randall M. Howe
joined.

C A T L E T T, Judge:

¶1 Chyneika H. (“Mother”) appeals the juvenile court’s
termination of her parental rights as to C.H. (“Child”). Because the record
does not adequately support the juvenile court’s findings that the
Department of Child Safety (“DCS”) made reasonable efforts to reunify the
family or that further reunification services would be futile, we vacate the
court’s order terminating Mother’s parental rights and remand for further
proceedings.

FACTS AND PROCEDURAL HISTORY

¶2 Mother has an extensive history with DCS. She has had her
parental rights to multiple children terminated. In prior proceedings,
Mother failed to participate adequately in DCS’s reunification services.
Most recently, in late 2022, the juvenile court terminated her parental rights
to two children because (1) they were in out-of-home-placement for longer
than fifteen months and (2) the court had terminated Mother’s parental
rights within the prior two years for the same cause (untreated mental
health issues and diminished caregiver abilities).

¶3 In July 2022, Mother gave birth to Child. In May 2023, DCS
petitioned to have Child deemed dependent because Mother did not
provide proper and effective parental care and control due to mental health
issues. The court found Child dependent as to Mother. In late 2023, DCS
petitioned to terminate Mother’s parental rights on two grounds: first,
mental illness, and second, Mother’s parental rights to another child were
terminated within the preceding two years for the same cause. See A.R.S.
§ 8-533(B)(3), (B)(10). We refer to the first ground as the “mental illness
ground,” and the second as the “prior termination ground.”

¶4 To establish the mental illness ground, DCS relied on a
psychological evaluation conducted in 2020 during termination

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proceedings involving a different child. Based on that evaluation, DCS
asserted in 2023 that there was still a “substantial likelihood that Mother
will not be capable of exercising proper and effective parental care and
control in the near future” for Child. To support the prior termination
ground, DCS noted that “Mother had her parental rights terminated [on]
October 12, 2022 due to ongoing concerns of untreated mental health and
diminished caregiver protective capacities.”

¶5 DCS called two witnesses during the termination hearing in
this case—Mother’s DCS case manager and the psychologist who evaluated
Mother in 2020. The psychologist testified that she had diagnosed Mother
with a personality disorder (with schizoid and avoidant characteristics), a
depressive disorder, and borderline intellectual functioning. The
psychologist’s report (issued in January 2021) also diagnosed Mother with
child neglect and post-traumatic stress disorder (“PTSD”). The
psychologist’s opinion, based on the 2020 evaluation, was that Mother’s
prognosis to safely parent her other child in the foreseeable future was
poor. She recommended that Mother receive PhD-level counseling and
thought Dialectical Behavior Therapy (“DBT”) would help Mother’s
personality disorder. She also recommended that Mother receive enhanced
attachment-based, parent-child therapy.

¶6 The psychologist testified that she would have concerns about
Mother’s ability to parent Child if Mother had been inconsistent with
therapy during the intervening time since her 2020 diagnoses. When asked
if she would be concerned if DCS never referred Mother to participate in
DBT, the psychologist replied: “Yes. I’d want to know why that . . . didn’t
happen because it’s an important part.” The psychologist also testified that
it could have benefited Mother to have an updated psychological
evaluation.

¶7 During the summer of 2023, Mother, on her own, saw a
mental health service provider, which conducted a psychiatric evaluation
and provided her with therapy. That provider diagnosed Mother with
Alcohol Use Disorder, Mood Disorder (Bipolar), and PTSD. Mother
attended two therapy sessions and missed four others. DCS did not
communicate with Mother’s therapist or obtain her mental health records
until after petitioning for termination.

¶8 The DCS case manager admitted that he had limited
knowledge of Mother’s current mental health condition and that “[t]here’s
not a lot of information[.]” He admitted DCS “relied heavily” on 2019 and
2020 psychological evaluations in its allegations. And he admitted that DCS

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did not completely follow the recommendations the medical experts made
in those reports. The case manager further acknowledged DCS had no
documentation to suggest the diagnoses stemming from the 2020
evaluation remained applicable in 2023. Comparing the diagnoses from
DCS’s prior psychological evaluations to the diagnoses Mother received
from her private mental health provider in 2023, only one diagnosis (PTSD)
overlapped.

¶9 The case manager testified that DCS did not refer Mother for
PhD-level counseling in this case because “communication has been
inconsistent” and DCS did not “have an actual understanding of what . . .
counseling . . . [Mother] was doing.” The case manager said DCS needed
more information about the type of counseling Mother was receiving to
determine if a referral for a different type of counseling was required.

¶10 The only reunification service DCS provided Mother with
respect to Child was visitation. DCS initially stopped visitation within one
week because no visits took place. But shortly thereafter Mother began
attending visits more consistently.

¶11 Following the hearing, the juvenile court terminated Mother’s
parental rights as to Child. The court reasoned that it “heard credible
testimony from [the 2020 evaluating psychologist] that proved, by clear and
convincing evidence, [Mother] is unable to discharge her parental
responsibilities due to mental illness and mental deficiency.” The court
further said that “credible evidence testimony proved that [Mother’s] level
of participation and commitment is inadequate to address her mental
illness and mental deficien[cy].” The court found “that referral for
additional services would have been futile[,]” because “[t]hroughout
numerous dependencies including this one, [Mother] has failed to
consistently participate in any service or therapy offered by [DCS].” The
court also concluded DCS had proven by a preponderance of the evidence
that terminating Mother’s rights was in Child’s best interests.

¶12 Mother timely appealed. We have jurisdiction. See A.R.S.
§ 8-235(A).

DISCUSSION

¶13 Mother appeals the termination of her parental rights,
arguing the court erred in finding that DCS made reasonable efforts to
reunify her family and that further reunification efforts would be futile.

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Decision of the Court

I. Waiver

¶14 DCS first argues Mother waived her argument that DCS
failed to make reasonable reunification efforts by failing to object to its
services throughout the dependency. Generally, an issue is waived on
appeal if a party fails to raise an argument in the juvenile court. Aleise H. v.
Dep’t Child Safety, 245 Ariz. 569, 573 ¶ 12 (App. 2018).

¶15 Here, Mother raised the issue of insufficient reunification
services in the juvenile court. In fact, a significant portion of the termination
hearing was dedicated to whether DCS had provided sufficient services,
with Mother arguing that it had not. The issue was, therefore, properly
raised and argued before the juvenile court, which was able to decide
whether DCS provided sufficient services.

¶16 DCS relies on Bennigno R. v. Arizona Department of Economic
Security and Shawanee S. v. Arizona Department of Economic Security to
support its waiver argument. But in both cases the parent challenging
termination never argued insufficient services to the juvenile court. In
Bennigno R., the court explained that the parent “maintained during closing
arguments that the sole issue for the court to decide was whether
termination of his rights was in the children’s best interests,” and not
whether sufficient reunification services were provided. 233 Ariz. 345, 349–
50 ¶ 19 (App. 2013). Similarly, in Shawanee S., the court noted that “at the
termination hearing, Mother did not argue that ADES failed to make
reasonable efforts to provide appropriate reunification services.” 234 Ariz.
174, 179 ¶ 17 (App. 2014).

¶17 Moreover, there is a stark difference between the insufficient
services arguments in Benningo R. and Shawanee S. and that in this case. In
those cases, DCS provided a multitude of services. See Benningo R., 233
Ariz. at 349 ¶ 19 (quoting the juvenile court’s finding that DCS provided
“psychological evaluations, visitation, counseling, parenting classes,
substance abuse treatment, and urinalysis testing”); Shawanee S., 234 Ariz.
at 176 ¶ 4 (explaining that “ADES offered Mother a psychological
evaluation and consultation, individual counseling, parent aide services
(including parenting education and supervised visitation), and
transportation”). Yet the parents argued they were entitled to more.

¶18 Here, Mother did not neglect to raise her insufficient services
argument with the juvenile court. She squarely raised the issue, and the
juvenile court addressed it. See Shawanee S., 234 Ariz. at 179 ¶ 18 (applying
waiver ensures the juvenile court had “a reasonable opportunity to address

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the matter and ensure that ADES was in compliance with its obligation to
provide appropriate reunification services as ordered by that court”).
Moreover, unlike in Benningo R. and Shawanee S., Mother is not complaining
that DCS, while providing some services, should have provided more.
Instead, Mother argues that DCS “seemingly relied on Mother’[s] past
failings as reason not to follow through with any recommended services in
the present case.” Because Mother also made that argument in the juvenile
court, we address its merits. See Adams v. Valley Nat’l Bank of Ariz., 139 Ariz.
340, 342 (App. 1984) (courts prefer to decide cases on their merits).

II. Reunification Efforts

¶19 Mother asserts the juvenile court erred in finding that DCS
made reasonable efforts to reunify her with Child. To terminate a parent’s
rights, the juvenile court must find by clear and convincing evidence that
at least one of the grounds in § 8-533(B) exists and must find by a
preponderance of the evidence that termination is in the child’s best
interests. 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). This court “will affirm
a termination order unless the juvenile court abuses its discretion or the
court’s findings are not supported by reasonable evidence.” Timothy B. v.
Dep’t of Child Safety, 252 Ariz. 470, 474 ¶ 14 (2022). We will accept the
juvenile court’s factual findings if supported by reasonable evidence and
inferences. Brionna J. v. Dep’t of Child Safety, 255 Ariz. 471, 478 ¶ 30 (2023).
We will not disturb the juvenile court’s conclusions for insufficient
evidence unless no one could reasonably find the evidence to be sufficient.
Id. at 479 ¶ 31.

¶20 “Arizona courts have long required the State, in mental-
illness-based severances, as in others, to demonstrate that it has made a
reasonable effort to preserve the family.” Mary Ellen C. v. Ariz. Dep’t of Econ.
Serv., 193 Ariz. 185, 192 ¶ 33 (App. 1999). Such efforts are also required
when DCS seeks termination under the prior termination ground. See, e.g.,
Tanya K. v. Dep’t of Child Safety, 240 Ariz. 154, 157 ¶ 11 (App. 2016).

¶21 When services are required, DCS must provide the time and
opportunity for parents to participate in programs directed toward
reunification but “need not provide every conceivable service[.]” Jessica P.
v. Dep’t of Child Safety, 251 Ariz. 34, 39 ¶ 17 (App. 2021). Nor must DCS
ensure parent participation in provided services or leave the reunification
window open indefinitely. Maricopa Cnty. Juv. Action No. JS-501904, 180
Ariz. 348, 353 (App. 1994); Maricopa Cnty. Juv. Action No. JS-501568, 177
Ariz. 571, 577 (App. 1994). But services must be “designed to improve the

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parent’s ability to care for the child.” Jordan C. v. Ariz. Dep’t of Econ. Ser.,
223 Ariz. 86, 94 ¶ 20 (App. 2009). When reviewing reunification services,
we must ask whether “no other services could be provided which had not
already been offered that might preserve the family.” Pima Cnty. Severance
Action No. S-2397, 161 Ariz. 574, 577 (App. 1989).

¶22 Here, DCS did not make reasonable reunification efforts to
provide services to Mother. See A.R.S. § 8-846(A). To the contrary, DCS
provided Mother only with visitation. Most importantly, DCS neglected to
provide Mother with an updated psychological evaluation, which was
essential to determining whether Mother’s parental rights should be
terminated under the mental illness or prior termination grounds.

¶23 In pertinent part, the mental illness ground required DCS to
show that Mother is unable to discharge parental responsibilities due to
mental illness. See A.R.S. § 8-533(B)(3). Similarly, under the prior
termination ground, DCS was required to show that Mother had her
parental rights to at least one other child terminated within the preceding
two years for the same cause—which here, was for mental illness. See A.R.S.
§ 8-533(B)(10). Thus, DCS was responsible for providing services related to
improving Mother’s mental health with the aim of enhancing her parenting
abilities and preserving the family. See Mary Ellen C., 193 Ariz. at 192 ¶ 33
(“Arizona courts have long required the State, in mental-illness-based
severances, as in others, to demonstrate that it has made a reasonable effort
to preserve the family.”).

¶24 Mother’s DCS case manager acknowledged “[t]here [was] not
a lot of information” about Mother’s mental health status at the time of the
termination hearing. The psychologist who previously evaluated Mother
in 2020 testified that Mother could have benefited from an updated
psychological evaluation before DCS pursued termination. DCS argues,
however, that “Mother never requested an updated psychological
evaluation.” That argument misses the mark. The onus was on DCS to
provide appropriate mental-health services, not on Mother to request them.
See id. at 186 ¶ 1 (“It is well established that the State, before acting to
terminate parental rights, has an affirmative duty to make all reasonable
efforts to preserve the family relationship.”).

¶25 Moreover, DCS’s retained expert recommended Mother
receive PhD-level counseling/treatment, DBT, and enhanced attachment-
based, parent-child therapy. Mother’s case manager acknowledged DCS
did not follow those recommendations and DBT was never provided. See
id. at 192 ¶ 37 (explaining DCS does not provide sufficient opportunities to

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a parent or make a “concerted effort to preserve” the family “when it
neglect[s] to offer the very services that its consulting expert
recommends.”).

¶26 The case manager testified that, “until . . . recently,” DCS did
not “have an actual understanding of what . . . counseling . . . [Mother] was
doing.” The case manager also mentioned that DCS “needed to get more
information about what that counseling looked like to see if [the counseling
Mother was attending] was sufficient or if [DCS] needed to [make a
referral].” In other words, DCS prematurely petitioned to terminate
Mother’s parental rights when crucial information regarding counseling
was necessary but not obtained. DCS did not establish that “all other efforts
to preserve the relationship [had] failed.” Id. at 192 ¶ 32.

¶27 The only reunification service DCS provided Mother during
Child’s dependency proceedings was visitation. Considering Mother’s
mental health situation and the evidence adduced at the termination
hearing, more was required of DCS before termination could occur. The
juvenile court erred in finding DCS made reasonable efforts to reunify
Mother with Child.

III. Futility

¶28 Mother also argues that the juvenile court erred in
determining that further reunification efforts would be futile. This court
has previously held that DCS is not “obliged to undertake futile
rehabilitative measures.” Id. at 187 ¶ 1. However, “it is obliged to
undertake [measures] which offer a reasonable possibility of success.” Id.
For the juvenile court to make a futility finding, DCS is required to
“introduce clear and convincing evidence that additional services would
have been futile.” Id. at 193 ¶ 39. This heightened standard requires DCS
to demonstrate that it is highly probable or reasonably certain that further
services would be futile. Kent K., 210 Ariz. at 284–85 ¶ 25; Vanessa H. Ariz.
Dep’t of Econ. Sec., 215 Ariz. 252, 256 ¶ 18 (App. 2007).

¶29 The juvenile court erred in finding that further reunification
efforts would have been futile. The record indicates, instead, that Mother
could have benefitted from additional mental-health evaluations and
treatment, neither of which she was offered during these proceedings.
During the dependency proceedings, DCS relied primarily on the report
issued after the 2020 psychological evaluation in fashioning reunification
services. But DCS’s testifying psychologist, who conducted the 2020
evaluation, agreed “Mother could benefit from an updated psychological

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evaluation.” Although Mother obtained her own psychiatric evaluation in
2023 (after DCS petitioned for termination), that evaluation did not address
how Mother’s mental health impacts her ability to parent. The 2023
evaluation, however, does support that Mother’s mental health situation
may have changed since 2020 because only one of the diagnoses contained
therein (PTSD) was the same as those stemming from the 2020 evaluation.

¶30 Not only did DCS fail to provide an updated psychological
evaluation, it also failed to provide the services recommended after the 2020
evaluation it relies upon. Again, DCS’s testifying psychologist agreed those
services could have been helpful.

¶31 DCS did not establish that Mother would have refused to
participate in an updated psychological evaluation or subsequent mental-
health services. DCS did not establish that Mother had refused or neglected
services during the pendency of the dependency proceedings in this case.
To the contrary, the sole reason DCS could present the juvenile court with
any updated information about Mother’s mental health status was because
Mother took the initiative to obtain her own psychiatric evaluation. Having
done so, we cannot say that DCS established a high probability that Mother
would have refused to undergo an updated evaluation focused on her
ability to parent or to undergo any recommended mental health treatment
stemming from such an evaluation.

¶32 DCS also did not establish with a high probability that
Mother’s mental health situation is such that she would not have benefited
from such treatment. Although we understand that Mother has not
adequately taken advantage of DCS services during prior termination
proceedings, the circumstances to be considered for termination are those
“at the time” of the termination hearing. See Shella H. v. Dep’t Child Safety,
239 Ariz. 47, 50 ¶ 12 (App. 2016). The circumstances at the time of the
hearing in this case did not clearly and convincingly establish a high
probability that further reunification services would have been futile.

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CONCLUSION

¶33 We vacate the juvenile court’s termination order and remand
for further proceedings consistent with this decision.

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

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