Parents Not Entitled To Unlimited Time Or Every Conceivable Service In Family Dependency Cases

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(Photo by Tim Evanson/Creative Commons)

The state agency responsible for trying to keep families together when in the best interest of the child does not have to provide “every conceivable service” or ensure a parent actually participates in the services offered, according to a recent decision by the Arizona Court of Appeals.

Nor is a juvenile court required to provide a parent with unlimited time to take positive steps toward rehabilitation and reunification.

Read more by Terri Jo Neff >>

That is the conclusion in a case out of Santa Cruz County where a judge last November terminated the parental rights of a woman to two of her children, finding such an action was in the best interests of the children, based in part on the mother’s mental health impairment and inability to remedy the circumstances causing the children to remain in a court-ordered, out-of-home placement for longer than 15 months.

The mother and one of the children appealed the ruling with the help of court-appointed attorneys. On appeal, the child contended the Santa Cruz County judge erred in finding severance from his mother was in the child’s best interest.

And in the mother’s appeal, she argued the juvenile court judge erred in finding she failed to remedy the circumstances which brought her children into state care. The woman also argued the Arizona Department of Child Safety (DCS) failed to provide appropriate services “to assist in her efforts.”

A seven-page, unanimous appellate decision authored earlier this month by Presiding Judge Peter Eckerstrom affirmed the severance, noting that when a judge considers a severance petition, the child’s interest “in stability and security must be the court’s primary concern.”

According to the court file, the woman and her children came to DCS’s attention in early 2019 after school officials reported the kids had ongoing “hygiene issues” and that one of the children was not receiving seizure medication as needed. The mother also failed to make -or missed- medical appointments for the children, who were often left home alone at night.

The mother began receiving DCS-provided services and in July 2019 two of her children were adjudicated in July 2019 as dependent on the state. Those services continued, but eventually various providers reported the mother was not making progress.

DCS also eventually learned three of the mother’s children had reported being sexually abused by a maternal uncle, but the mother “did not believe the children and failed to keep the uncle away from them. (The uncle was later convicted and incarcerated.)

Eckerstrom noted that a psychological evaluation found the mother had a “low to average” intellectual ability, along with a learning disability and “unresolved trauma.” The psychologist recommended several detailed services for the mother, including an in-home training team conducted by a mental health professional with observational feedback training.

The recommendations also included counseling by a Master-level therapist, as well as parenting discussion groups, parenting classes, and vocational rehabilitation services.

One of the psychologist’s recommendation was to return the minor children to their mother’s care, but DCS determined it could not safely return the children, according to court records. While in out-of-home care, the two children reported various acts of physical, emotional, and sexual abuse by various relatives, including their mother.

For over a year, the mother received various specialized assistance from DCS via at least four licensed professionals. The children also received various services, but by July 2020, the son removed from his mother’s care was diagnosed with post-traumatic stress disorder, anxiety, and attention deficit / hyperactivity disorder.

The therapist determined the boy born in 2009 was emotionally and academically at half of his chronological age, and had several recurring physical, emotional, and behavioral issues due to his prior abuse and trauma. The boy’s therapist also observed the mother denied accountability for the boy’s  problems “and expressed no interest in helping him overcome his trauma,” Eckerstrom wrote in the appellate decision.

Over the next few months the boy was in and out of several placements after which he asked to be returned to his mother’s care. Unfortunately, the court record shows the boy experienced trauma responses and showed distress before and after visits with his mother, and a case manager observed the boy’s behavioral issues -which included anger, age inappropriate sexual activity, and food hoarding- improved when he was not having contact with his mother.

Then in early 2021, DCS filed a petition to terminate the mother’s parental rights as to the two children. This requires a juvenile court to find “by clear and convincing evidence” that at least one statutory ground exists for severance. The judge must also find by “a preponderance of the evidence” that terminating the parent’s rights is in the child’s best interests.

After a five-day trial, a Santa Cruz County judge granted DCS’s petition in July 2021.

In the appeal which followed, the mother argued DCS failed to consider her special needs and failed to provide all the services recommended in her psychological evaluation.  According to the mother, DCS instead provided only “the typical range of counsel and parenting aide services.”

The appellate decision authored by Eckerstrom notes the court of appeals views the evidence “in the light most favorable to upholding” the lower court’s ruling.

DCS makes reasonable efforts to afford family reunification services when it provides a parent with the time and opportunity to participate in programs designed to help the parent become an effective parent.  Such reasonable efforts must include seeking to “reasonably accommodate disabilities from which a parent may suffer,” Eckerstrom noted.

However, DCS need not “undertake futile reunification efforts and is required to undertake only those measures with a reasonable prospect of success,” Eckerstrom wrote, adding that DCS provided the mother “with numerous services, many of which were tailored to address her cognitive limitations.”

As to the claim by the boy’s attorney that severance was not in the child’s best interest, Eckerstrom wrote that the Santa Cruz County judge “emphasized the risks to the children” if the mother’s parental rights were not terminated. The judge had even referenced the “extensive” physical, emotional, and developmental injuries the children sustained from abuse allowed by, or even committed by, the mother.

Attorneys for the mother and the boy have until June 3 to petition the Arizona Supreme Court to review the appellate decision. If no petition is filed, the unanimous decision will be mandated to the Santa Cruz Superior Court.