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Melissa W. v. Department of Child Safety & P.T.

Court of Appeals of Arizona, Second Division

August 13, 2015

MELISSA W., Appellant,
v.
DEPARTMENT OF CHILD SAFETY AND P.T., Appellees

Appeal from the Superior Court in Pima County. No. JD20130120. The Honorable Brenden J. Griffin, Judge.

For Appellant: Richard Beck, Sahuarita.

For Appellee Department of Child Safety: Mark Brnovich, Arizona Attorney General, By Cathleen E. Fuller, Assistant Attorney General, Tucson.

Eckerstrom, Chief Judge authored the opinion of the Court, in which Miller, Presiding Judge and Espinosa, Judge concurred.

OPINION

ECKERSTROM, Chief Judge:

[¶1] Melissa W. appeals from the juvenile court's order terminating her parental rights to her son P., born in May 2013, on mental illness grounds. See A.R.S. § 8-533(B)(3). She argues the court erred by drawing an adverse inference based on her failure to testify and because it " did not state the

Page 151

inferences made nor the weight given to such inferences." We affirm.

[¶2] The Department of Child Safety (DCS)[1] removed P. from Melissa's care in August 2013 because Melissa was refusing to comply with her prescribed medication to control her mental illness, and she was consequently suffering from severe paranoia and hallucinations. She was later diagnosed with schizophrenia or, alternatively, psychosis induced by substance abuse. Her delusions included a belief that she and her baby were robots; further, there was evidence that the baby was not removed from the crib for long periods and was developing cranial abnormalities. DCS filed a dependency petition, and the juvenile court adjudicated P. dependent in February 2014.

[¶3] The juvenile court changed the case plan from reunification to a concurrent plan of reunification and severance and adoption in September 2014, and DCS filed a motion to terminate Melissa's parental rights on mental illness grounds. The court granted DCS's motion after a contested severance hearing at which Melissa did not testify.[2] Citing, inter alia, Gordon v. Liguori, 182 Ariz. 232, 895 P.2d 523 (App. 1995), the court stated in its ruling that " the circumstances here warrant drawing an adverse inference against [Melissa] for choosing not to testify." It observed that Melissa

was in a unique position to explain whether and how she benefited from services . . . [and] could have explained . . . how her recent relapse would make her stronger in recovery; how it was her medication that was preventing her from visibly connecting with P[.]; why she decided not to continue with parent-child therapy; and whether . . . any parenting support from [Melissa]'s adult daughter was available and . . . how that support might have made it possible for [Melissa] to parent P[.]

This appeal followed.

[¶4] In Liguori, we noted that " under limited circumstances" a trier of fact could " draw an adverse inference from the failure to present testimony." 182 Ariz. at 236, 895 P.2d at 527. We identified three factors a court might consider:

(1) whether the witness was under the control of the party who failed to call him or her, (2) whether the party failed to call a seemingly available witness whose testimony it would naturally be expected to produce if it were favorable, and (3) whether the existence or ...

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