Jessica P. v. Dep't of Child Safety

• Citation: 471 P.3d 672,249 Ariz. 461
• Decision Date: 28 July 2020
• Docket Number: No. 1 CA-JV 19-0253,1 CA-JV 19-0253
• Parties: JESSICA P., Appellant, v. DEPARTMENT OF CHILD SAFETY, H.P., Appellees.
• Court: Arizona Court of Appeals

249 Ariz. 461

471 P.3d 672

JESSICA P., Appellant,

v.DEPARTMENT OF CHILD SAFETY, H.P., Appellees.

No. 1 CA-JV 19-0253

Court of Appeals of Arizona, Division 1.

FILED July 28, 2020

Review Granted in Part, Denied in Part December 16, 2020^*

Gillespie Shields Goldfarb & Taylor, Phoenix, By Kristina B. Reeves, April Maxwell, Counsel for Appellant

Arizona Attorney General's Office, Mesa, By Lauren J. Lowe, Counsel for Appellee, Department of Child Safety

Arizona Center for Disability Law, Tucson, By Christian Carlsen, Rose A. Daly-Rooney, Counsel for Amicus Curiae, Arizona Center for Disability Law

Arizona Center for Law in the Public Interest, Phoenix, By Anne Ronan, Daniel Adelman, Counsel for Amicus Curiae, Arizona Center for Law in the Public Interest

ACLU Foundation of Arizona, Phoenix, By Victoria Lopez, Counsel for Amicus Curiae, American Civil Liberties Union of Arizona

Mills & Woods Law PLLC, Phoenix, By Thomas A. Connelly, Counsel for Amicus Curiae, the ARC, et al.

NYU School of Law Family Defense Clinic, New York, NY, By Amy Mulzer, Christine Gottlieb, Martin Guggenheim, Counsel for Amicus Curiae, the ARC, et al.

Disability & Civil Rights Clinic, Brooklyn NY, Brooklyn Law School, By Sarah Lorr, Counsel for Amicus Curiae, the ARC, et al.

Judge Jennifer B. Campbell delivered the opinion of the Court, in which Presiding Judge Paul J. McMurdie and Judge Kent E. Cattani joined.

CAMPBELL, Judge:

¶1 Jessica P. ("Mother") appeals from the juvenile court's order terminating her parental rights to her son, Hunter. On appeal, Mother raises an Americans with Disabilities Act ("ADA") claim, a facial constitutional challenge, and a state statutory claim. She also challenges the sufficiency of the evidence supporting the court's order terminating her parental rights on mental deficiency and fifteen months out-of-home placement grounds. For the following reasons, we affirm.

BACKGROUND

¶2 Mother was 20 and living with her mother ("Grandmother") when Hunter was born in April 2014. Mother has an intellectual disability. Grandmother helped take care of Hunter, including taking him to medical appointments. Grandmother also helped Mother, who received Social Security disability benefits, with her finances.

¶3 In September 2016, Mesa Police were called to Banner Desert Hospital where Mother was being treated for a possible sexual assault. Mother tested positive for THC, opiates, and methamphetamine. She told police she sometimes spent time with a 61 year-old man and smoked methamphetamine with him. Hospital staff observed that Mother was "extremely altered" and displaying "twitching type behavior." Grandmother reported that the man had been "grooming" Mother for the past month after meeting him at an extended stay motel where they were residing.

¶4 In November 2016, Mother's grandparents feared for Mother's safety and called Mesa Police to report that Mother was acting out, being combative, and "acting crazy." Police observed that Mother appeared to be under the influence of drugs. They transported her to the hospital for evaluation.

¶5 In late December 2016, DCS received two reports that Mother was neglecting Hunter. Mother and Hunter were still living with Grandmother. The callers alleged that Mother used marijuana and methamphetamine around the child, she had left him home alone on multiple occasions, the home was dirty, and she had been observed giving Hunter drinks of beer and hard liquor. The reports further alleged that Mother spanked the child, physically fought with Grandmother and Mother's significant other in front of the child, and she bit her own grandmother.

¶6 A DCS investigator went to Mother and Grandmother's home and observed that other than a scratch on his cheek, the child was injury-free, and he was dressed appropriately. Aside from summarizing the two reports to DCS discussed supra ¶¶ 4-5, the investigator reported that the home was "free from any safety hazards." The investigator noted that Grandmother reported the child had previously received services from the Department of Developmental Disabilities ("DDD") for an intellectual disability, but that she had discontinued his DDD services "because he was doing well."

¶7 The investigator spoke with Mother, who reported she had consumed alcohol that morning. Mother told the investigator she believed the neglect reports had been made by a former boyfriend because she had refused to have sex with him. Mother told the investigator that she previously had taken medication for depression and anxiety but was not on medication currently. Mother agreed to drug testing and told the investigator she would test positive for "weed." Mother also told the investigator that she had considered self-harm. After Grandmother agreed to be a safety monitor, the investigator left Hunter in the home pending Mother's urinalysis testing. DCS offered Mother family-preservation services, drug testing, and substance-abuse treatment.

¶8 Mother's urinalysis was positive for alcohol and marijuana. Her hair follicle test was positive for marijuana and "a high level [of] ... methamphetamines." DCS held a Team Decision Meeting in January 2017. At that meeting Mother admitted to having used methamphetamine but said she had only done so one time. She told DCS that Hunter's father was unknown. DCS expressed "concern that Hunter did not currently have DDD services and concern about Mother's lack of understanding about DCS's involvement."

¶9 The next day, DCS removed Hunter from the home because 1) Grandmother, his safety monitor, refused to provide a urinalysis test¹ ; 2) Mother's substance abuse; 3) Mother refused to participate in services; and 4) "[t]he physical or mental condition of [Mother] endangers [the] child's health or safety." DCS placed Hunter in an unlicensed relative placement (a maternal cousin) and filed a dependency petition. DCS alleged Mother was unable to parent Hunter because of both substance abuse and her intellectual disability. The case plan was family reunification. Several days after Hunter was removed, Grandmother went in for urinalysis and was caught using a device to submit a false urine sample.

¶10 A behavioral health agency conducted a rapid-response assessment of the child. The cousin described Hunter as difficult to comfort when upset and told the agency therapist that Hunter would bang his head against walls to the point of injuring himself. The therapist observed that he became very upset when the cousin attempted to engage him in activities. The cousin said that she could not keep Hunter in her home because of his special needs. Two weeks later, DCS placed Hunter in a licensed DDD foster home.

¶11 When Hunter came into care, he was globally delayed, could barely speak, and was "very unsteady on his feet."² He had not had any immunizations

, was underweight and his eating behaviors raised concerns about whether he had been getting enough nourishment. In addition, he had trouble feeding himself, shook when he was eating, and drooled excessively. Initially, he had frequent tantrums and violent outbursts towards other children in daycare. He displayed obsessive compulsive behaviors and appeared to be autistic. Hunter's foster mother took him to a neurologist who diagnosed him with a seizure disorder and put him on medication. Hunter's neurologist and pediatrician referred him to a developmental pediatrician because he was delayed in three or more areas. At the time of trial, Hunter had an Individualized Education Plan ("IEP") and was attending a developmental preschool where he received speech, occupational, and physical therapies. He remained "significantly behind" his peers in preschool.

¶12 The juvenile court found Hunter dependent in late January 2017. DCS asked Mother to complete services, including a substance abuse assessment and treatment at TERROS, random urinalysis testing, case aide services, parent aide services, therapeutic visits,³ individual counseling, and psychological evaluations. In 2018, DCS also provided Mother with several joint counseling sessions with Grandmother when considering the possibility of Mother and Grandmother co-parenting the child. DCS provided Mother with transportation to services and visits.

¶13 Mother was diligent and participated in services "to the best of her abilities." She consistently tested negative for substances after the initial positive tests, successfully completed substance abuse services at TERROS, engaged consistently in both regular visitation and therapeutic visitation, completed parent aide services, and participated in psychological evaluations and individual counseling. At the time of trial, Mother was living in her own apartment and had a job as a caretaker for an 18 year-old with special needs.⁴ Although the DCS case manager agreed that Mother had made behavioral changes and "was doing really well with maintaining her sobriety," the case manager was still concerned that Mother did not understand Hunter's medical and behavioral needs.

¶14 The case aide who supervised visits with Hunter, Mother, and Grandmother starting in June 2018, testified that Mother was consistent, prepared, nurturing, and loving. However, Mother and Grandmother bickered with one another during almost every visit, which upset the child. Hunter would cover his ears, ask why Mother and Grandmother were arguing, and tell them to be nice. The case aide testified that Grandmother acted in a controlling manner towards both Mother and the child.

¶15 In December 2018, the case aide received a phone call inadvertently originating from Grandmother's phone that went to voicemail. The voicemail message was a recording of Grandmother "ranting and raving ... [at Mother] with swear words." The case aide heard Grandmother mention a lawyer and tell Mother "you haven't tried." She heard someone who sounded like Mother yelling back and crying. The case aide believed Grandmother was berating Mother about the dependency case. She reported the incident to Adult Protective...