Tovah K. v. Dcs
1 CA-JV 16-0449
| Ariz. Ct. App. | Jun 22, 2017Background
- Mother (Tovah K.) had two children at issue: S.S. (born Nov. 2013) and N.S. (born Dec. 2015); DCS took custody of S.S. shortly after birth and of N.S. in Jan. 2016.
- DCS sought termination of parental rights to S.S. under A.R.S. § 8-533(B)(8)(c) (child in out-of-home placement 15+ months and circumstances unremedied) and to N.S. under A.R.S. § 8-533(B)(3) (parent unable to discharge responsibilities due to mental illness).
- The record documented repeated violent, angry, and threatening outbursts by Mother toward therapists, caseworkers, and parent aides; providers reported fear and safety concerns.
- Mother has diagnoses including long-term depression, bipolar disorder, and anxiety, and she had inconsistently taken medication and engaged sporadically in counseling; two examining doctors testified her condition impairs parenting and is likely to persist.
- Mother acknowledged ongoing struggles with anger and that she was not yet emotionally or financially able to parent; she hoped to improve within months but refused to promise no physical discipline.
- After a severance trial the juvenile court terminated Mother’s rights to both children; Mother appealed and the appeals court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether clear and convincing evidence supported termination under the 15-month out-of-home placement ground (§ 8-533(B)(8)(c)) for S.S. | Mother argued the circumstances that led to removal had been or were being remedied and evidence was insufficient to show she would be unable to parent in the near future. | DCS argued documented, ongoing anger and safety incidents, inconsistent treatment engagement, and professionals’ concerns showed circumstances were unremedied and likely to continue. | Court held evidence supported termination: S.S. had been out of home >15 months and Mother had not remedied the circumstances; substantial likelihood she could not parent in the near future. |
| Whether clear and convincing evidence supported termination for N.S. based on Mother’s mental illness (§ 8-533(B)(3)) | Mother argued her treatment showed progress (therapist testimony of some improvement) and prognosis did not justify severance. | DCS relied on psychological and psychiatric evaluations and Mother’s testimony showing ongoing impairment and risk; experts opined poor prognosis and prolonged indeterminate period. | Court held evidence supported termination: experts and record showed Mother unable to discharge parental responsibilities due to mental illness with reasonable grounds to believe the condition would continue for a prolonged indeterminate period. |
| Credibility and weight of therapist testimony | Mother emphasized her counselor’s view that she made progress and posed no danger based on limited interaction. | DCS emphasized broader documentary record and multiple provider reports of dangerous incidents. | Court deferred to juvenile court’s credibility determinations and found counselor’s limited view contradicted extensive documented incidents. |
| Best interests of the children | Mother did not challenge the juvenile court’s best-interests findings. | — | Court did not address best interests on appeal because Mother waived challenge; termination affirmed. |
Key Cases Cited
- Kent K. v. Bobby M., 210 Ariz. 279 (2005) (standard: severance requires clear and convincing proof of statutory grounds and preponderance that termination is in child’s best interests)
- Lashonda M. v. Ariz. Dep’t of Econ. Sec., 210 Ariz. 77 (App. 2005) (appellate review views evidence in light most favorable to sustaining severance)
- Jordan C. v. Ariz. Dep’t of Econ. Sec., 223 Ariz. 86 (App. 2009) ("circumstances" in § 8-533(B)(8)(c) are those existing at time of severance; trial court best positioned to weigh credibility)
- Denise R. v. Ariz. Dep’t of Econ. Sec., 221 Ariz. 92 (App. 2009) (termination under § 8-533(B)(3) requires reasonable grounds that mental condition will continue for a prolonged indeterminate period)
- In re Maricopa Cty. Juv. Action No. JS-5894, 145 Ariz. 405 (App. 1985) (flexibility in assessing parent’s ability to discharge responsibilities under mental-illness ground)
- In re Maricopa Cty. Juv. Action No. JS-501568, 177 Ariz. 571 (App. 1994) (courts need not leave remediation window open indefinitely; child’s interest may require severance)