Appeal in Maricopa County Juvenile Action No. JS-4283, Matter of

• Decision Date: 19 October 1982
• Docket Number: JS-4283,CA-JUV,No. 1,1
• Citation: 133 Ariz. 598,653 P.2d 55
• Parties: In the Matter of the APPEAL IN MARICOPA COUNTY JUVENILE ACTION NO.171.
• Court: Arizona Court of Appeals

Page 55

653 P.2d 55

133 Ariz. 598

In the Matter of the APPEAL IN MARICOPA COUNTY JUVENILE ACTION NO. JS-4283.

No. 1 CA-JUV 171.

Court of Appeals of Arizona Division 1, Department C.

Oct. 19, 1982.

Smith, Howard & Deroon by Richard R. Seyffer, Phoenix, for appellant

Robert K. Corbin, Atty. Gen. by C. Eileen Bond, Asst. Atty. Gen., Phoenix, for appellee, Ariz. Dept. of Economic Sec.

Robert G. Robinson, Glendale, for minor children.

OPINION

BROOKS, Judge.

This is an appeal from a juvenile court order which severed the parental rights between appellant and her two minor children. The termination order was based upon the trial court's finding that appellant, the natural mother, had abandoned her children and had made no effort to maintain a parental relationship with the children in accordance with A.R.S. § 8-533(B)(1).

On appeal, the mother argues that the statutory ground of abandonment was not satisfied where she consistently asked for the return of her children and where the finding of abandonment was based upon her refusal to submit to the terms of the integration plan designed to return the children from a foster home to her custody. She also contends that the trial court erred in admitting, over objection, a previously dismissed dependency petition together with various reports and photographs relating to that petition. Finally, she argues that the trial court's order of termination was not supported by the evidence.

Extensive findings of fact were entered by the trial court which, with some amplification from the record, succinctly frame the issues on appeal. They reflect that appellant is Korean and was living in Korea when she married an American serviceman and bore their first child, a daughter, on December 6, 1973. They moved to Glendale, Arizona, where their son was born on December 29, 1975. Marital difficulties ensued and they were divorced in 1977.

On January 28, 1977, a dependency petition was filed as to the daughter based upon an alleged incident where the mother beat the daughter with a wooden toy. On May 2, 1977, the child was found to be dependent, was made a ward of the court and was committed to the care, custody and control of the Arizona Department of Economic Security. In January of 1978, the daughter was returned to appellant and on July 24, 1978, the petition was dismissed with home monitoring to be conducted by the Department of Economic Security.

On April 3, 1979, a dependency petition was filed as to each of the children alleging emotional difficulties of the mother which constituted risks to the children. On November 8, 1979, the children were made wards of the court and were placed in the care, custody and control of the Department of Economic Security which then placed them in a licensed foster home.

When the children were taken from the mother in April, 1979, they had to be removed by the police who were held off by the mother armed with a hatchet and knives, for more than an hour. As a result of this incident, the mother was placed on probation but her probation was revoked and she was incarcerated from approximately December, 1979 until December, 1980. During that period, she was given psychiatric evaluations which, as described by the trial court, varied in diagnosis from "adjustment to adult reaction" to "full blown psychosis." Finally, she was given medication which produced a dramatic positive effect in her mental condition and led to her release from the Maricopa County Hospital. During this time, however, she had developed a deep distrust of psychologists, psychiatrists and social workers which, with limited exceptions, led to a total refusal to see them or cooperate with them during 1980 and early 1981 in their attempt to make evaluations of her ability to be reunited with her children. In January, 1981, appellant was evaluated by Dr. Bencomo, a psychiatrist, who found that she suffered no mental disorder or emotional disturbance which would impair her ability to parent two normal children. Dr. Bencomo advised her to cooperate with the Department of Economic Security caseworkers in a plan for returning the children.

The psychologist who had evaluated the children found that the daughter's personality was "fragile" based, in large part, upon a significant fear of her mother, and that the son did not remember his mother. A reintegration plan was developed in March of 1981 between the caseworkers, the children's psychologist and the attorney for the Department of Economic Security. This plan was designed as a "minimal plan" to protect the children from eminent psychological harm which would be caused by merely thrusting them back into their mother's custody without safeguards. The plan consisted of the following requirements:

1. The mother was to visit the children before their return on as many occasions as necessary to reacquaint the parties and ease the daughter's fears;

2. The mother was to meet with a caseworker and the children's therapist prior to the return of the children to discuss and orient her to the children's present status and needs;

3. The mother was to involve herself and the children with the children's therapist after their return so as to ease and monitor reorientation;

4. There was to be regular, in-home monitoring by the caseworker after the children's return;

5. There was to be regular contact between the mother and a member of her choosing of the Korean community to alleviate isolation and provide support; and

6. The natural mother was to provide a home and support for the children.

This plan was communicated to the mother through her attorney and a conference was arranged for May 5, 1981 in order that the trial court could explain the plan. The conference was held but the mother refused to submit to the plan and demanded the immediate and unconditional return of her children. She had not seen the children since March, 1980 and had made no attempts whatsoever to make contact with them.

Based upon the mother's refusal to cooperate, the Department of Economic Security filed a petition to terminate her parental rights, alleging abandonment and failure to maintain a parental relationship with the children. A three day hearing was held on the petition at which time evidence supporting the above facts was presented. The court concluded that the allegations of the petition were satisfied and terminated the parental relationship pursuant to A.R.S. § 8-533(B)(1) by order dated November 9, 1981 and this appeal followed.

Appellant's first argument is that the trial court could not find abandonment based upon the mother's mere refusal to acquiesce in the plan prepared by the Department of Economic Security. She claims that because she attended all court hearings and consistently asked for the return of her children, the requisite showing of an intentional relinquishment of her parental claims or a conscious disregard of the obligations owed by a parent to a child were not established. Under the facts of this case, we disagree.

Unquestionably, parents have a fundamental liberty interest in the care, custody and management of their children. Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). However, this right is not absolute and, where the welfare of a child is seriously jeopardized, the state must act on behalf of the child. In the Matter of the Appeal in Cochise County Juvenile Action No. 5666-J, 133 Ariz. 157, 650 P.2d 459 (1982).

A.R.S. § 8-533 establishes the grounds for termination of parental...