NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24, Rule 103(G) Ariz. R. P. Juv, Ct.

MEMORANDUM DECISION

KESSLER, Judge.

¶ 1 The parents, Robert G. ("Father") and Cheryl C. ("Mother") appeal the superior court's order terminating their parental relationship with their daughter, Cheyenne G., pursuant to Arizona Revised Statutes ("A.R.S.") section 8-533(B)(8)(c) (Supp. 2009).1 The Arizona Department of Economic Security ("ADES") confesses error as to Mother, but contends that the trial court did not err in terminating Father's parental rights. For the following reasons, we vacate the order to the extent it terminated the parental rights of Mother, but affirm the order to the extent it terminated the parental rights of Father.

FACTUAL AND PROCEDURAL HISTORY

¶ 2 Mother and Father are the biological parents of Cheyenne G., born April 26, 1997. Never married, Mother and Father ended their three-year relationship before Cheyenne's birth. Father then moved from Arizona to Denver in 1999. He returned to Arizona in 2004 and as part of a family law action, was awarded joint legal and physical custody of Cheyenne.

¶ 3 In the following years, the co-parenting relationship between Mother and Father began to deteriorate. By July 2006, the family court matter had become contentious and the court appointed a parenting coordinator, Dr. David Weinstock, to help Mother and Father minimize and resolve their conflict. Weinstock characterized the two as "clearly a high-conflict family," and noted that the parents would often place their conflict ahead of Cheyenne's needs and well-being, even when Cheyenne was ill and needed immediate care.

¶ 4 Cheyenne began to display signs of anxiety, gain weight, and have emotional and aggressive outbursts in school. The family court ordered a therapist be selected for Cheyenne's anxiety in June 2006. Mother suggested Dr. Linus Pecaut for Cheyenne; when Father objected, Mother began seeing Dr. Pecaut for individual counseling in December 2006.2 The parents could not agree on a therapist for Cheyenne until May 2007.

¶ 5 During this time, around February 2007, Child Protective Services ("CPS") received reports that Cheyenne had been emotionally abused by Father and physically abused by Mother. The department referred the family to the Family Builders program. While Mother willingly participated in the program, Father did not. This made the service ineffective, so Family Builders terminated Mother and Father's participation.

¶ 6 Parents continued to disagree regarding parenting time, child support payments, and planning for Cheyenne's medical, social and educational needs. In view of this disagreement, the family court ordered parents to begin co-parenting counseling in April 2007. In September 2007, Cheyenne began seeing court-appointed psychologist Dr. Robbie Adler-Tapia. Tapia diagnosed Cheyenne with Post-traumatic Stress Disorder ("PTSD"), a reactive attachment disorder ("RAD"), and sensory integration disorder.3 Tapia also reported that at the first meeting Cheyenne displayed signs of poor hygiene, such as strong odor and unclean hair; wore ill-fitting, mismatched clothing; and behaved strangely. Tapia noted that Cheyenne displayed dissociative symptoms when discussing her parents and needed to "retreat" when around either parent.

¶ 7 In early November 2007, Cheyenne contacted Tapia and "express[ed] fear of Father." Cheyenne's best interest attorney filed a private dependency petition under A.R.S. § 8-533(B)(8)(c), alleging that Mother was unable and unwilling to parent Cheyenne due to the child's special needs, the history of emotional abuse, and Mother's failure to protect the child from Father. This petition also alleged that Father was unable and unwilling to parent Cheyenne, given her special needs, his physical intimidation and abuse, his emotional abuse, and his resistance to "any and all interventions" regarding Cheyenne. The juvenile court ordered Cheyenne placed in the physical and legal custody of ADES. Cheyenne was found dependent as to Father in November 2007 after it was confirmed that he had thrown objects at Cheyenne and thrown or broken objects in her presence in rage. Cheyenne was not found dependent as to Mother until March 2008.

¶ 8 The juvenile court then placed Cheyenne into foster care with a family friend. Cheyenne was then placed with another foster care family and has remained with that family since December 2007.

¶ 9 At the time of the dependency petition, a reunification plan was implemented, initially offering psychological evaluations, parent-aide services, parenting classes, parental participation in or continuation of individual counseling, and Cheyenne's continued counseling with Tapia.

¶ 10 Dr. Kathryn Menendez conducted Father's psychological exam. She noted that Father brought a list of activities they had done together to portray himself as actively involved with Cheyenne. However, during the sessions, Father raised money issues regarding his child support payments, and continually tried to discredit Mother.

¶ 11 Menendez completed a psychological report on Mother, finding an unspecified relational problem but no mental illness, substance abuse, or mental deficiency. Menendez believes that Mother is a high-functioning parent and capable of parenting her child. Mother showed no signs of instability regarding her job or income; Menendez expressed concern only for Mother's stability issues regarding her relationship with Father. In fact, Menendez stated that she would have no concerns if Cheyenne were placed with Mother.

¶ 12 In the months following the filing of the dependency petition, Mother independently enrolled in and completed approximately twenty parenting classes. As a result, when Sara Hunn was assigned as Mother and Father's parent aide in February, 2008, Mother had already completed her required parenting classes. During the four sessions he had with Sara Hunn and Mother, Father refused to discuss co-parenting issues or participate in any discussion until Mother fixed her alleged mental health issues. He presented with a nonchalant attitude, shrugging when Hunn told him that unless he participated in the co-parenting exercises, he would have his parental rights severed. Father was subsequently assigned to parent aide Virginia Bagby in April 2008.

¶ 13 Mother began supervised visits with Hunn and Cheyenne in April 2008, successfully completing her parent-aide session in August 2008. Hunn found Mother's interactions with Cheyenne to be positive and reported that Mother was "very open to discussing parenting and co-parenting." Furthermore, Hunn observed Mother taking steps to address Cheyenne's sensory integration issues while clothing shopping, to redirect the conversation from forbidden topics, and to provide positive and patient feedback for Cheyenne. Upon Mother's completion of the program, Hunn recommended that ADES either place Cheyenne in Mother's care or allow unsupervised visits.

¶ 14 Both Mother and Father began therapeutic supervised visits with Cheyenne through Southwest Human Development in April 2008. Lisa Gianetto supervised Mother's visits and reported that Mother was receptive to parenting recommendations, encouraged and "validated Cheyenne's feelings," and "demonstrated the ability to follow Cheyenne's lead" regarding Cheyenne's special needs. Rheeanon Fontes supervised Father for about six months, noting that Father was open to advice and willing to apply it to his parenting, and that she thought Father and Cheyenne shared a close bond that improved over the course of the six months.

¶ 15 Virginia Bagby supervised Father's therapeutic visits with Cheyenne from April 2008 to December 2008. Bagby reported that Father had difficulty managing his emotions or putting Cheyenne's needs above his own.

¶ 16 In August of 2008, co-parenting counseling with Dr. Bluth was added to the reunification plan. Bluth's therapy was focused on "conflict resolution," but he saw only "minimal" success in achieving communication goals between the parents. While Mother seemed eager to improve, Father was distrustful of Mother, again accused her of mental illness, and did not participate in the therapy. Father missed two meetings with Bluth in March 2009. Bluth closed the case in July 2009 due to lack of progress in co-parenting.

¶ 17 Dr. Glen Moe completed a psychological exam of Cheyenne in August 2008, diagnosing her with PTSD, RAD (inhibited type), anxiety, and history of neglect. He noted that Cheyenne is of high intelligence, and ruled out sexual abuse. He found that Cheyenne, while open and responsive in discussing her relationship with her foster parents, was "very emotionally restricted as far as her ability to describe her family relationships." Cheyenne expressed to Moe that she felt her mother was controlling and distant and expressed a greater feeling of acceptance from Father. Cheyenne told Moe that Father would help her with homework and did more activities, like trips to Disneyland, with her. In his follow-up evaluation of Cheyenne one year later, Moe found that while she still suffered from PTSD and RAD, she no longer displayed anxiety symptoms and was more outgoing and upbeat. Following his 2009 exam of Cheyenne, Moe led Cheyenne and Mother in a bonding assessment, which he said went "very well." They greeted one another warmly and expressed emotion, and Mother was able to redirect some of Cheyenne's behaviors in a positive way. Father was scheduled for two bonding assessments with Moe, but due to car trouble and an inability to confirm the rescheduled date with him, did not attend either session.

¶ 18 In September 2008, ADES referred Father to Dr. Daniel Christiano for individual therapy. Father participated in the therapy, but Christiano found him "overbearing," and reported that he tended to "overreact" and to exhibit "controlling behavior" when anxious. The Department also referred Father to Ameripsych for anger management, but Father failed to keep in contact with Ameripsych and his case was closed for "lack of engagement." Finally, Father was offered an eleven-week high-conflict parenting class, which Father declined.

¶ 19 In January 2009, Bagby began supervising Mother's therapeutic visits with Cheyenne, while Gianetto began to supervise Father's. Bagby's visits continued until July 2009, and Bagby found that Mother continually displayed the parenting skills they discussed and Cheyenne and Mother's relationship strengthened during the visits. Bagby recommended that unsupervised visits should begin.

¶ 20 Thus, as of January 2009, every therapist and therapy professional who had worked with Mother and Cheyenne indicated that unsupervised visits could take place between Mother and Cheyenne. At a second staff meeting in March of 2009, a plan was created to begin unsupervised visits, with the consent of both parents. However, these visits did not occur, largely because Father refused to cooperate on the visitation plan.

¶ 21 Dr. Pyburn offered the family co-parenting and parent/child therapy from April 2009 to November 2009 and expressed concern that conflicts between the parents took precedence over Cheyenne's best interest. According to Pyburn, Father was not cooperative, which hindered progress and made co-parenting impossible for the parents. Believing that no one could make progress in co-parenting therapy with Mother and Father, Pyburn resigned from the case. Additionally, Pyburn had concerns for her own safety, since Father had represented to her that Mother knew where Pyburn lived and would injure her. These threats seemed actually to be Father's thoughts and made Pyburn fearful of Father. Pyburn noted that Mother never made her feel unsafe.

¶ 22 In April 2009, CPS case manager Mecca Temple reported that reunification was "contingent upon the parents effectively demonstrating their ability to set their own interests aside and co-parent Cheyenne appropriately" but that neither parent had made necessary behavioral changes. Temple noted that Mother has completed all the services that Temple and CPS had required Mother to complete. As to Father, Temple reported that he had not participated in individual counseling since March 2009, had been unwilling to co-parent and resistant to co-parenting therapy, had "attack[ed] every professional in [the] case," and had indicated to CPS that he did not want to parent Cheyenne full-time. Temple worried that Cheyenne would be at risk of neglect or abuse in Father's care because he "manipulate[d] and control[led] her thoughts," especially regarding Mother. ADES set a case plan of guardianship, to which Father approved but Mother objected.

¶ 23 Soon after, Abigail Eiler ("Rowe") of Southwest Human Development began supervising Father's visits with Cheyenne, and noticed Father's behavior regressing during the therapeutic supervised visits. He presented with a sarcastic attitude, "aggressive body language," and difficulty managing his anger, and threw tantrums when Cheyenne was late. In July 2009, Father locked Cheyenne and Rowe in his home, causing visits to be moved to CPS offices and a new therapeutic visitation specialist, Diane Kowitt, was assigned to Father. These sessions began in October 2009 and ended in December 2009. Father was resistant to Kowitt's redirections and her therapeutic suggestions and Father would frequently become upset during the visits, raising his voice, making threats, and including Cheyenne in the outbursts by yelling at her. He refused to fill out a required form, and violated Kowitt's rules by speaking to Cheyenne about the case. He threatened Kowitt personally, following her to her car and making a specific reference to the city where she lived and her former married name (information she had not given him). Father also emailed Kowitt approximately thirty to forty times with demands for "proof" and her documents.

¶ 24 From July 2009 to April 2010, Rowe also supervised visits between Mother and Cheyenne. Rowe found that Mother demonstrated "consistent parenting," has been able to read Cheyenne's verbal and nonverbal cues, and has been helpful and patient with Cheyenne's dissociative disorder. In May 2010, Rowe reported that Mother was demonstrating effective parenting skills.

¶ 25 In November 2009, ADES moved for severance of Mother and Father's parental rights. At that time, Cheyenne had been in an out-of-home placement for more than two years. The placement was willing to adopt and able to meet Cheyenne's social, educational, physical and emotional needs. In September 2010, the trial court terminated Mother and Father's parental rights under A.R.S. § 8-533(B)(8)(c) due to their inability to rectify the parental conflict which caused the child to be in an out-of-home placement and the fact that they would not be capable of exercising proper and effective parental care and control in the near future. As part of its ruling, the court held that both parents have been "unable to show that they can effectively co-parent the child. The child would suffer emotionally if severed from only one parent."

STANDARD OF REVIEW

¶ 26 On appeal, "we will accept the juvenile court's findings of fact unless no reasonable evidence supports those findings, and we will affirm a severance order unless it is clearly erroneous." Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, 280, ¶ 4, 53 P.3d 203, 205 (App. 2002). Furthermore, we will examine the facts in the light most favorable to sustaining the juvenile court's judgment. Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, 250, ¶ 20, 995 P.2d 682, 686 (2000) (citing In re Maricopa Cnty. Juv. Action No. JS-8490, 179 Ariz. 102, 106, 876 P.2d 1137, 1141 (1994)).

¶ 27 To terminate parental rights, the trial court must find by clear and convincing evidence the existence of at least one statutory ground provided in A.R.S. § 8-533(B). Denise R. v. Ariz. Dep't of Econ. Sec., 221 Ariz. 92, 93, ¶ 1, 210 P.3d 1263, 1264 (App. 2009); Michael J., 196 Ariz. at 249, ¶ 12, 995 P.2d at 685. The trial court found that severance was proper under A.R.S. § 8-533(B)(8)(c). Since it is undisputed Cheyenne was in out-of-home placement for fifteen months or longer pursuant to a court order, the only issues are whether the state proved, by clear and convincing evidence, that ADES made a diligent effort to provide appropriate reunification services and that:

A.R.S. § 8-533(B)(8)(c).

DISCUSSION

¶ 28 Mother argues that: (1) There was insufficient evidence that she was unable to remedy the circumstances causing Cheyenne to remain in an out-of-home placement and that there was a substantial likelihood that she would not be capable of exercising proper and effective parental care and control in the near future; (2) ADES failed to provide appropriate reunification services to Mother; and (3) severance from Mother was not in Cheyenne's best interest. ADES concedes this first issue.

¶ 29 Father argues that: (1) The trial court erred in finding that ADES made a diligent and reasonable effort to provide appropriate reunification services to him; and (2) The record does not support the trial court's finding that Father failed to remedy the circumstances causing Cheyenne to remain in out-of-home placement. The State contends that the record supports the trial court's finding that it provided adequate services to Father, that Father failed to remedy the conditions which led to out-of-home placement, and Father could not provide effective care in the near future.

I. Mother

¶ 30 Mother contends, and the State concedes, that she has remedied the circumstances causing Cheyenne to remain in foster care. We agree.

¶ 31 Parents who make appreciable, good faith efforts to comply with remedial programs outlined by ADES will not be found to have substantially neglected to remedy circumstances that caused out-of-home placement of child, for purposes of termination of parental rights. In re Maricopa Cnty. Juv. Action No. JS-501568, 177 Ariz. 571, 576, 869 P.2d 1224, 1229 (App. 1994). Therefore, if a parent successfully completes all offered services, and the services provided the required reasonable opportunity of success for reunification, the parent will have remedied the circumstances which cause her child to be placed in foster care.5

¶ 32 The trial court held that Mother was unable to remedy the circumstances that had caused the out-of-home placement. Specifically, the trial court held that the parents "have been unable to show that they can effectively co-parent the child" and that severing only one parent's rights would harm the child.

¶ 33 The record does not support that Mother failed to remedy the conditions which caused out-of-home placement or that she cannot offer appropriate parental care and control in the near future. Mother made a good faith effort to comply and successfully complied with each service offered. Mother made timely appointments with her assigned doctors and attended all scheduled activities in addition to the services she arranged on her own. On multiple occasions, she applied therapeutic techniques she had learned in her parenting. Every professional who worked with Cheyenne and Mother reported that Mother had successfully completed her tasks and was capable of unsupervised parenting.

¶ 34 The crux of the problem, however, is that Mother was unsuccessful in co-parenting therapy due to Father's repeated and relentless refusal to co-parent with her.6 Despite evidence that Father caused the co-parenting relationship to break down, ADES never sought reunifying Cheyenne with just Mother. Temple reported the ADES only considered reunification if both parents were willing and able to effectively co-parent Cheyenne.

¶ 35 In its brief, ADES concedes that "the record demonstrates that Mother's inability to effectively co-parent Cheyenne was solely predicated on Father's resistance and blatant refusal to co-parent."7 We agree that the termination of Mother's parental rights cannot stand, given her demonstrated parenting capabilities and good faith effort to comply with provided services and therapeutic interventions. Accordingly, the court erred in finding that sufficient evidence exists that Mother was unable to remedy the circumstances causing Cheyenne's out-of-home placement and that Mother could not provide appropriate parental care and control under A.R.S. § 8-533(B)(8)(c).8 Moreover, the evidence supports the conclusion that, without Father's lack of cooperation, Mother was able to provide adequate and appropriate parental care to Cheyenne.

¶ 36 This leaves only the trial court's determination that severance of only one parent's rights would result in the child suffering emotionally. At best, this conclusion supports only a finding that a severance might be in the child's best interests because of Father's conduct. It does not support the statutory basis for severing Mother's parental rights under A.R.S. § 8-533(B)(8)(c). As such, it is not sufficient to terminate Mother's rights. When the statutory ground for termination has not been established, the court may not sever even if the termination is determined to be in the child's best interests. In re Maricopa Cnty. Juv. Action No. JA 33794, 171 Ariz. 90, 94, 828 P.2d 1231, 1235 (App. 1991).

II. Father

¶ 37 The trial court terminated Father's parental rights under A.R.S. § 8-533(B)(8)(c). Father asserts that ADES "did not provide [him] with the services appropriate to meet [the goal of co-parenting]," alleging that Dr. Pyburn and Dr. Bluth were incompetent to provide co-parenting therapy and were therefore ineffective. Father also claims that insufficient evidence supports the trial court's finding that he was unable to remedy the circumstances that caused Cheyenne to remain in out-of-home placement. We disagree.

¶ 38 Before seeking to terminate a parent's rights under A.R.S § 8-533(B)(8)(c), ADES has a statutory duty to make a diligent effort to provide appropriate reunification services to the parent. ADES must undertake measures that offer a reasonable opportunity of success for reunifying the parent and child; ADES is not, however, required to undertake futile rehabilitative measures. Mary Ellen C. v. Ariz. Dep't of Econ. Sec., 193 Ariz. 185, 192, ¶ 39, 971 P.2d 1046, 1053 (App. 1999). Furthermore, ADES is not required to "ensure that a parent participates in each service that it offers" and does not breach its duty when a parent is uncooperative. In re Maricopa Cnty. Juv. Action No. JS-501904, 180 Ariz. 348, 353, 884 P.2d 234, 239 (App. 1994). The State fulfills its statutory burden of diligent effort when it provides "the time and opportunity to participate in programs designed to help [the parent] become an effective parent." In re Maricopa Cnty. Juv. Action No. JS-501904, 180 Ariz. at 353, 884 P.2d at 239.

¶ 39 Father alleges that Dr. Bluth was incapable of providing co-parenting therapy, as he was "unaware of this specific form of therapy." However, Bluth had been originally assigned to provide Father and Mother with "conflict resolution therapy," a form of therapy he had experience and success providing. According to Bluth, Father's therapy was unsuccessful not because Bluth lacked the skills or knowledge to provide conflict resolution therapy, but because Father did not participate and constantly expressed distrust of and animosity toward Mother.

¶ 40 Father further claims that Dr. Pyburn, also contracted to provide co-parenting therapy, lacked the skills to provide that therapy. Pyburn's letter asking to be relieved from the assignment stated that "the skill set necessary to effect change with [Mother and Father] is not one that I possess." However, at trial Pyburn clarified that she felt no one could make progress in this case due to Father's resistance to co-parenting therapy.9

¶ 41 Even excepting Dr. Bluth and Dr. Pyburn's services, ADES provided ample opportunity for Father to remedy the circumstances causing the out-of-home placement. ADES provided Father with the time and opportunity to participate in several services, including co-parenting therapy, individual counseling, conflict resolution therapy, co-parenting skills services, a psychological evaluation, and high-conflict parenting classes. The Department also referred Father for anger-management services. Although Father participated in a few of the services, he did not participate in all of them or even most. The evidence reflects that his limited participation in the services largely centered on his animosity towards Mother; for instance, he spent his time with Dr. Menendez attempting to discredit Mother, he repeatedly refused to work with assigned professionals due to Mother's "mental illness," and he was "uncooperative" when working with Mother. The record shows most of his participation without Mother was marked by his overbearing, controlling nature and his tendency to have tantrums and outbursts. There is also evidence he threatened two of ADES's therapists, causing them fear for their personal and professional safety.

¶ 42 Father also argues that he has shown that he is capable of parenting Cheyenne, given her "extraordinary mental health issues." He contends that Cheyenne's "severe mental illness" causes her to dissociate and precludes her from normal relationships. Since she is able to communicate with Father, Father argues that his relationship with Cheyenne is healthy and that this communication proves he is capable of caring for Cheyenne.

¶ 43 However, nearly every therapist and professional who worked with Father and Cheyenne together opined that although the two had open communication, it was not necessarily positive communication, nor indicative of a healthy parent-child relationship. For instance, they testified that Father would often manipulate Cheyenne's thoughts, place his needs above hers, and have outbursts in Cheyenne's presence, startling her. When asked to modify behaviors in supervised visits, Father frequently became upset and refused to modify his parenting style. Furthermore, case manager Mecca Temple reported that Father had indicated to CPS that he did not want to parent Cheyenne full-time. Therefore, reasonable evidence supports the court's finding that Father was neither willing nor able to parent Cheyenne in the near future.

¶ 44 While Father does not address whether severance of his parental rights was in Cheyenne's best interests, we address it on appeal because this involves child custody. To show that termination is in a child's best interest, the State must prove that the child may benefit from the termination or be harmed if termination does not occur. Raymond F. v. Ariz. Dep't of Econ. Sec., 224 Ariz. 373, 379, ¶ 30, 231 P.3d 377, 383 (App. 2010). Since there is evidence Father is unwilling and incapable of parenting Cheyenne full-time, Cheyenne would be harmed if Father's rights were not terminated. Moreover, even under the trial court's ultimate conclusion to terminate both parents' rights, Cheyenne is adoptable, and the foster family has expressed interest in immediate adoption. Additionally, the record shows her current placement meets her social, educational and emotional needs. However, based on our decision today, Mother has also shown that she can provide for Cheyenne's psychological and physical needs. Therefore, the court did not err in terminating Father's parental rights.

¶ 45 Because reasonable evidence supports the trial court's finding that ADES made a diligent effort to provide reunification services to Father, that Father was unable to remedy his inability to co-parent, that Father is unable and unwilling to parent Cheyenne full-time, and that severance of his rights are in Cheyenne's best interests, we affirm the trial court's order terminating Father's parental rights.

CONCLUSION

¶ 46 For the foregoing reasons, we affirm the trial court's decision to terminate Father's parental rights, but vacate the order to terminate Mother's rights. We remand this matter to the trial court for further proceedings consistent with our decision.

PATRICIA A. OROZCO, Presiding Judge, MICHAEL J. BROWN, Judge, concurring.