Appeal in Pima County, Juvenile Action No. S-111, Matter of

• Citation: 25 Ariz.App. 380,543 P.2d 809
• Decision Date: 18 December 1975
• Docket Number: CA-CIV,S--111,No. 2,2
• Parties: In the Matter of the APPEAL IN PIMA COUNTY, JUVENILE ACTION NO.1955.
• Court: Court of Appeals of Arizona

Page 809

543 P.2d 809

25 Ariz.App. 380

In the Matter of the APPEAL IN PIMA COUNTY, JUVENILE ACTION NO. S--111.

No. 2 CA-CIV 1955.

Court of Appeals of Arizona, Division 2.

Dec. 18, 1975.

Review Granted Jan. 27, 1976.

Abruzzo & Wasley, by Anthony J. Abruzzo, Tucson, for appellant

Bruce E. Babbitt, Atty. Gen., Phoenix, by Charles E. Buri, Asst. Atty. Gen., Tucson, for appellee Dept. of Economic Security.

Stolkin, Weiss & Tandy, by Ronald J. Stolkin, Tucson, for the minor.

OPINION

KRUCKER, Judge.

A juvenile court order severing the parental relationship between a mother and child is the subject of this appeal taken by the motehr.

A.R.S. Sec. 8--533 includes as grounds for termination of the parent-child relationship (1) that the parent has neglected the child and (2) that the parent is unable to discharge the parental responsibilities because of mental illness or mental deficiency and there are reasonable grounds to believe that the condition will continue for a prolonged indeterminate period. The juvenile court found that these two grounds for termination existed and ordered severance. The motehr now challenges the sufficiency of the evidence to support the court's findings.

The main witnesses who testified in favor of severance were Pat Silver, a caseworker with the Department of Economic Security, Arthur Taylor, a counselor at Southern Arizona Mental Health Center, and Dr. Frederick Maccabe, Jr., a child psychiatrist who worked with the Children's Unit at the Southern Arizona Mental Health Center. According to Silver, in December, 1971, the natural mother came to D.E.S. for services. The mother stated that her parents had ejected her from their home because they did not approve of the way she cared for her son. The grandfather filed a dependency petition, but it was subsequently dismissed. D.E.S. maintained contact with the mother until November of 1972. Subsequently, D.E.S. became reinvolved in June of 1973 because of a referral from Mr. Taylor, who had been working with the mother in therapy. The mother was under much stress at that time and Taylor was afraid she might hurt the child. He accordingly urged the motehr to place the child in a foster home. The mother agreed to voluntary placement, which continued until October of 1973, when the child was adjudicated a dependent child. He remained in foster homes until the petition for severance was filed in November, 1974. ¹ Silver testified that the mother had visited the child fairly regularly since June of 1973, and that during the eight months before the severance hearing she maintained a schedule of once-a-month visits. The once-a-month limitation was imposed by D.E.S., which had been awarded the care, custody and control of the child in October of 1973. Silver recommended severance because 'she had the feeling' that the mother might be relieved if the court took action so she would not have to be responsible for the child. She also felt the mother had done nothing either to ask that the child be returned or to imporve her personal life so she could provide a home for the child. Silver admitted, however, that at the time of the hearing (March, 1975), she knew nothing about the mother's financial or home condition. According to Silver, when a decision to request severance has been made and a petition filed, D.E.S. no longer provides social services or contact with the mother other than arranging for visitation. Silver said her opinion that the mother had not tried to get her life together so as to be able to take care of her child was predicated on the motehr's conduct during the year and a half before D.E.S. petitioned for severance.

The psychiatrist, Dr. Maccabe, testified substantially as follows. He had had three or four contacts with the mother for periods of 10 to 15 minutes each from April of 1972 to July of 1974. The purpose of these contacts was to evaluate the effects of medication previously prescribed. He had never seen the child. In July of 1974 he wrote a letter to D.E.S. recommending that the parental relationship be severed and the child placed for adoption. In the letter, he stated:

'She has been shown on psychological testing to have many signs of schizophrenic illness, which partially explains her difficulties in relating to her child and her inability to evolve a stable vocational or social adjustment. During treatment she has made only limited progress and has given no indication of being ready or able to assume responsibility for her child. At this point it is unlikely that she will change sufficiently in the forseeable (sic) future to be able to resume care of her child, as her psychological and emotional problems are of a chronic or longstanding nature and have altered very little during our efforts to help her.'

At the hearing, the doctor expressed his opinion that it was unlikely the mother would be able to adequately care for her minor child. His stated reason was:

'Oh, combining of the earlier diagnosis of a schizophrenic illness, plus the observations over a period of relatively little change in consistency, reliability, planning, general life adjustment, that sort of thing.'

On cross-examination, the doctor admitted that the basis of this opinion was the information furnished to him by Taylor and psychological testing done in 1973. When asked whether any testing or any type of work had been done with the child, the doctor stated:

'No, the child has never been in question in terms of behavior or problems of that sort, nor has the relationship between the child and the mother been at question except to the extent that (mother) has had the trouble with being consistent, with being reliable or responsible and with handling her own feelings under stress and that this has not to my knowledge ever been a question of sort of impaired relationship with the child except under those sort of drastically dangerous moments.'

The 'drastically dangerous moments' to which the doctor was apparently referring were two incidents in April of 1972 which caused the mother to seek help at the Southern Arizona Mental Health Center. According to Dr. Maccabe, the mother was concerned about injuring the child. Although the doctor was of the opinion that 'this is a case of an extreme schizophrenic illness', he admitted that it was possible to cure schizophrenia. Furthermore, although he admitted it was possible that the mother's mental condition had changed from 1973 to 1975, he did not believe it would have changed sufficiently for him to alter his recommendation of severance. According to the doctor, the fact that the mother was then doing a good job at work and had a more permanent residence than before would not alone indicate that she would be able to take responsibility for the child. He stated:

'I find that up to a month ago she was not working or up to three months ago she was living elsewhere. There has been very recent changes (sic). If I were considering her for adoption I would want to see that she had been vocationally and residentially and socially stable for at least a couple of years. And, an unfortunate thing is we don't have that kind of time lag.' (Emphasis added)

The doctor stated that his concern for any child is that it have a stable, steady home of some sort and that the stability be consistent. He was not sure the mother was ready at that point to take over the care of the child. When asked whether the mother would be able to seek help from the Southern Arizona Mental Health Center to overcome her problems if severance were not ordered and the status quo maintained, he responded:

'Yes, of course. It might be with our having had to take this kind of a stand that she might prefer to start with somebody who she would feel more comfortable with. That I couldn't see as any objection in that. I think she should have her choice. The only caution I would offer the Court is that it's just--well, it's that much more time in the child's life which is pretty crucial, five, six years, I would think. It's more important and I think I wouldn't recommend continuation unless there was some relation. I find it a difficult thing to have to put into words and I am sorry to have to say it this way. I wish I didn't have to do it.

Q. So, at this time in the child's life, some kind of final disposition would be in his best interest?

A. U-huh.'

The doctor responded as follows concerning the effect on the child of continued foster care:

'A. It's not directly predictable. In other words, it's a question of how strong the child's inner resources are and what sort of things do happen. If I'm able to say that the child is likely to continue to have the difficulties, then I would like to do something to prevent it for the child's sake.

Q. Would it be safe to assume that any such bouncing around would be detrimental in some facet or another to the child?

A. Yes.'

The doctor admitted he had never seen the child and his recommendation of severance was 'not made on the child but on the difficulty his mother has had in providing a consistent home for him.'

Art Taylor, the therapist, testified substantially as follows. His first contact with the mother was in the latter part of January, 1973. He saw her at a routine intake 'where she wanted to have her son evaluated'. During the interview, however, the motehr mentioned several occasions when she had physically abused the child--an attempted smothering with a pillow and an uncontrolled slapping of the child. The child, then approximately one and a half years old, accompanied the mother. According to the therapist, he observed no particular abnormality in the child's behavior and concluded that the child had no emotional disorder. The therapist was of the opinion that the mother had come to him because she was concerned about her reaction to the child. At a subsequent staff consultation, the information elicited from the mother at the intake was evaluated. The staff recommended that because of ...