Mary Ellen C. v. Arizona Dept. of Economic Sec.

Decision Date19 January 1999
Docket NumberNo. 1CA-JV,1CA-JV
Citation971 P.2d 1046,193 Ariz. 185
Parties, 287 Ariz. Adv. Rep. 41 MARY ELLEN C., Appellant, v. ARIZONA DEPARTMENT OF ECONOMIC SECURITY and Destiny C., Appellees. 98-0130.
CourtArizona Court of Appeals

FIDEL, Judge.

¶1 It is well established that the State, before acting to terminate parental rights, has an affirmative duty to make all reasonable efforts to preserve the family relationship. See Maricopa County Juv. Action No. JS-6520, 157 Ariz. 238, 241, 756 P.2d 335, 338 (App.1988); see also Maricopa County Juv. Action No. JA 33794, 171 Ariz. 90, 91-92, 828 P.2d 1231, 1232-33 (App.1991). The case law has been inconsistent, however, in establishing whether this affirmative duty entails an obligation to make a reasonable effort to rehabilitate a parent who suffers from a disabling mental illness. We hold in this opinion that, although the State is not obliged to undertake futile rehabilitative measures, it is obliged to undertake those which offer a reasonable possibility of success. We then consider whether the State met its obligation to make a reasonable rehabilitative effort in the underlying case. Finding that the State did not make such an effort, we reverse the juvenile court termination order that gives rise to this appeal.


¶2 Mary Ellen C. is the natural mother of three daughters, one of whom, Destiny C., is the subject of this proceeding. Destiny, born July 15, 1990, in Phoenix, Arizona, is presently eight years old. Destiny's putative birth father is deceased.

¶3 On May 15, 1995, a Child Protective Services (CPS) caseworker investigated a report that Mary kept rats in her apartment and that she frequently left Destiny, then four, and her thirteen-year-old sister Jennifer home alone. The caseworker found the home to be filthy; ten to twenty-five rats occupied unclean cages in the children's bedroom, and the apartment emitted a strong odor.

¶4 Later that day, police discovered that Mary was the subject of outstanding arrest warrants. When they returned to Mary's apartment to arrest her, CPS took temporary custody of Destiny and Jennifer.

¶5 Mary spent five nights in jail. Shortly after her release, she was evicted from her apartment and lived with a friend for approximately six weeks. A period of homelessness followed, during which Mary sought assistance from a church and spent one night in a shelter. Eventually, Mary moved into a one-bedroom trailer with a friend, where she remained until approximately July 1997, when she took up residence with the parents of Harold H., a man to whom she had become engaged.

¶6 Meanwhile, after a contested hearing on October 31, 1995, the juvenile court adjudicated the children dependent, placed Jennifer in a group foster home, and placed Destiny with a foster family. Destiny has remained in the same placement since 1995, and her foster parents wish to adopt her.

¶7 By February 1996, CPS had maintained custody of Mary's children for the better part of a year, yet had not referred her to parenting classes; had referred her for a clinical interview in November 1995, but had not yet referred or directed her to counseling; and, aside from arranging visitation, 1 had not yet provided her any services directed toward reunification with her children. Witness Sue Weil, who became Mary's caseworker in February 1996, could not explain "why services were not started prior to the time I got the case."

¶8 In April 1996, Weil referred Mary to parenting classes, which she attended and completed. And two months later, more than a year after CPS took custody of Mary's children, Weil referred her to Dr. Armando Bencomo for psychological evaluation.

¶9 Dr. Bencomo interviewed Mary on June 18, 1996, reviewed referral information from CPS, administered psychological tests, and concluded that Mary suffered from major depression, post-traumatic stress disorder, a possible learning disability or borderline IQ, and dependent personality disorder with self-defeating features. Although Dr. Bencomo rendered a guarded prognosis, he also held out the prospect that, with intensive psychiatric services, Mary might be turned around:

This client is poorly equipped to function independently, much less to take care of a child. She needs intensive mental health services. She should be evaluated psychiatrically with consideration of antidepressant medication and perhaps another medication to help her with her increasing paranoid ideation. She would probably benefit from participation in a day treatment program more than from individual counseling alone. Ideally, she should be on SSI and in a semi-sheltered residential program where she can have a reasonable level of nutrition and adequate housing.

Once she is having her survival needs adequately met and is stabilized psychiatrically, she would benefit from referral to the state Vocational Rehabilitation agency.

I doubt that Mary can sufficiently address all of her mental health issues in less than one year. Long term foster care or relative placement for Jennifer may be appropriate, and Destiny might be a candidate for adoption. However, intensive psychiatric services might turn Mary around sooner than I expect, so you may wish to wait another six months before changing the case plan, in order to see if she avails herself of services and improves in her emotional and social adjustment.

¶10 CPS did not follow Dr. Bencomo's recommendation to await a trial of intensive psychiatric services before changing the case plan. Nor did CPS make any significant effort to assist Mary to receive psychiatric services. Instead, in August 1996, after reviewing Dr. Bencomo's report, caseworker Weil provided Mary with the phone number for ComCare, the State's contract mental health provider, and encouraged her to "self-refer." Then, in November 1996, CPS changed Destiny's case plan to "severance and adoption" because, as Weil explained, Destiny had been in a stable foster placement for eighteen months and Mary "had made some progress but not very much" in stabilizing her living arrangements and mental health. In November 1996, however, although Mary had diligently followed-up on Weil's referral to ComCare, she still had a month to wait before receiving even a psychiatric evaluation from ComCare.

¶11 Mary did manage to receive some counseling and medication through ComCare before the end of 1996, and in January 1997, on her own initiative, she obtained a job as a waitress. Around this time, Ms. Weil noted "a change in her affect, her verbalizations. She wasn't as defensive or hopeless...." Yet neither Ms. Weil, who left the case in January 1997, nor her successor, Joan Johnson, obtained ComCare records or reports concerning Mary's progress.

¶12 In February 1997, the State petitioned to sever Mary's parental relationship with Destiny. As grounds, the State alleged that Mary suffered from a mental illness that rendered her incapable of parenting the child, that this circumstance was likely to "continue for a prolonged indefinite period," and that Mary had not remedied and was unlikely to remedy the conditions that had necessitated Destiny's out-of-home placement for a period exceeding eighteen months. See Ariz.Rev.Stat. Ann. ("A.R.S.") § 8-533(B)(3) and (B)(7)(b).

¶13 In October 1997, Dr. David Young conducted a psychological evaluation of Mary pursuant to court order. Dr. Young interviewed Mary, administered psychological tests, and reviewed information provided by CPS, including Dr. Bencomo's psychological evaluation of June 1996. During the interview, Mary reported that she had received approximately six counseling sessions from ComCare. Dr. Young did not seek or review ComCare records or reports.

¶14 Dr. Young diagnosed (1) dysthymia, 2 (2) parent/child relational problem, (3) neglect of child, and (4) borderline personality disorder. He reported that Mary's lack of progress after an extended period of services from CPS rendered her prospects for functional improvement "dismal."

¶15 The juvenile court conducted a severance hearing in March and April 1998. Dr. Young testified that Mary's "disorder and how she handles her problems are having a significant negative impact upon her parenting of a child." When asked if Mary's borderline personality disorder rendered her incapable of discharging her parental responsibilities, he responded, "[a]t the level that she is displaying it, yes."

¶16 Dr. Young acknowledged that all of Mary's diagnosed conditions were amenable to treatment. He rendered a negative prognosis, however, based upon what he understood to be Mary's minimal accomplishments since the time of Destiny's removal:

Based upon her performance in the past she is likely not going to be able to accomplish those things that have been asked of her in the foreseeable future. To rectify those things would require a great deal of effort, consistency and commitment. Based upon the past review of her efforts and accomplishments they have been quite poor. It is likely that she is not going to be able to make the major changes in the foreseeable future.

¶17 Dr. Young was asked to elaborate on the history and assumptions that underlay his negative assessment of Mary's progress:

A. I had asked her what she had accomplished and she had outlined to me what I reported in my report.

Q. Which would be what?

A. Well, she was residing with her boyfriend. She was not employed. She was not in therapy at the time. She was not on medications for sleep. And that is essentially what she outlined to me what she had accomplished.

Q. Did you explore at all with either her or CPS why she was not in counseling at the time?

A. I'm not sure why she was not in...

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