Maricopa County, Juvenile Action No. JS-378, In re

• Decision Date: 10 January 1974
• Docket Number: No. 1,JS--378,CA-JUV,1
• Citation: 517 P.2d 1095,21 Ariz.App. 202
• Parties: In the Matter of the Appeal in MARICOPA COUNTY, JUVENILE ACTION NO.12.
• Court: Arizona Court of Appeals

Page 1095

517 P.2d 1095

21 Ariz.App. 202

In the Matter of the Appeal in MARICOPA COUNTY, JUVENILE ACTION NO. JS--378.

No. 1 CA-JUV 12.

Court of Appeals of Arizona, Division 1, Department B.

Jan. 10, 1974.

Hendrickson & Gadzia, by William H. Gadzia, Mesa, for appellant

Gary K. Nelson, Atty. Gen., by Harold J. Merkow and Michael Flam, Asst. Attys. Gen., Phoenix, for appellee.

OPINION

JACOBSON, Chief Judge, Division 1.

This appeal by the natural mother from an order of the Maricopa County Juvenile Court reversing her parental rights to her minor children raises the issue of whether the Department of Public Welfare (now Department of Economic Security) has met its burden of proof so as to justify the termination of the parent-child relationship.

The background facts in this case are as follows: On November 18, 1971, a dependency petition was filed in Maricopa County Juvenile Court alleging that the three minor children of appellant mother were dependent and neglected children because of the mother's mental illness. ¹ As a result of this petition the juvenile court on January 28, 1972 found the children to be dependent and made them wards of the court and committed the care, custody and control of the children to the Maricopa County Department of Public Welfare. This dependency finding was reviewed on July 26, 1972 and again on October 11, 1972, and the juvenile court continued the dependency status of the minor children.

On October 24, 1972, the petition which is the subject matter of this appeal was filed seeking the termination of the parent-child relationship between appellant and her minor children on the grounds that the appellant was unable to discharge her parental responsibilities because of mental illness or mental deficiency and there existed reasonable grounds to believe that this condition would continue for a prolonged indeterminate period. ² A hearing was not held on this petition until June 15, 1973 and a continued hearing was held on July 6, 1973. Following these hearings, the juvenile court on July 13, 1973, on findings of fact, entered its order terminating the parent-children relationship. This appeal followed.

The sole issue presented by this appeal is whether the evidence presented supports the juvenile court's findings that the natural mother is now and was at the time of filing the petition: (1) unable to discharge her parental responsibilities, (2) that this was because of a mental illness or a mental deficiency; and (3) that the mental condition will continue for a prolonged indeterminate period.

In reviewing this issue we first note that 'The court's findings with respect to grounds for termination shall be based upon a preponderance of the evidence . . ..' A.R.S. § 8--537(B). We are also aware that findings of the trier of fact shall not be set aside unless they are clearly erroneous, that is, there is no reasonable evidence to support them. Ashley v. Kramer, 8 Ariz.App. 27, 442 P.2d 564 (1968).

The Department of Public Welfare attempted to meet its burden of proof as to the present mental condition of the appellant through three doctors. Dr. Lillian Weiss, a clinical psychologist employed by the Maricopa County Hospital, was called to testify. Dr. Weiss stated that she had seen the appellant as an out patient at the hospital nine times beginning in September, 1971 and that the last time she had observed her was in November, 1971. She testified that:

'Q. Dr. Weiss, do you feel qualified to testify as to the condition of (the mother) . . .?

'A. No.

'Q. . . . this day? What is it? June 15, 1973?

'A. No, because I haven't been seeing her that regularly and I really haven't been responsible for her. She's been followed at St. Luke's.'

Dr. Weiss did testify that as of November 18, 1971, she was of the opinion that the appellant was incapable of taking care of her children, but felt that to be sure on this point a home visit was necessary, as compared to office visits which was the only environment in which Dr. Weiss had interviewed the appellant. Dr. Weiss further testified that appellant's condition had improved when she saw her informally in June 1973, as compared to her condition in November, 1971. She testified:

'Q. Well, do you feel that with treatment and medication that she would be more relaxed and she would probably be more able to take care of herself and the children?

'A. Yes, yes.

'Q. Do you have any personal knowledge of how (the mother) has cared for her children in the home?

'A. I have never been in the home. I have never seen the children, no.'

Dr. Moran Menendez, a psychiatrist on the staff at St. Luke's Hospital at the times pertinent to his testimony, was also called to testify. Dr. Menendez testified that he had no contact with the appellant since July, 1972. At that time he diagnosed appellant's condition as being mentally retarded and also suffering from chronic undifferentiated schizophrenia. He further testified that while traditional long term psychotherapy would not improve appellant's condition and that her intelligence limits could not be transcended, he did believe her schizophrenic condition would respond to medication which he prescribed. He went on to state:

'Q. Would it be fair to say that if she did not take Melloril therapy she would revert to those symptoms you have just described?

'A. No, that wouldn't be fair. Very often a person has a psychiatric episode and there's a natural history of illness, will follow a course of remission so conceivably a year later she would be on no medication and not need it and not have regressed.

'Q. At some later time, if she was not on the medication, is it possible that the symptoms would reoccur?

'A. Yes, but, it would be very hard to predict distinctly what the odds would be.

'Q. You indicated based upon the history and the information available to you that with the type of treatment you have prescribed there would be a possibility of (the mother) getting to the point where she would function adequately but you declined to speculate as to the likelihood of that possibility occurring or to the degree to which this could occur, is that correct?

'A. Yes.

'Q. Now, I'm not sure whether you're talking about functioning adequately in terms of herself or functioning adequately in terms of the parent-child relationship, which did you have in mind? Or is there a...