Opinion
No. 1 CA-JV 13-0012
06-06-2013
JOANNE H., Appellant, v. ARIZONA DEPARTMENT OF ECONOMIC SECURITY, FIONA S., Appellees.
Denise L. Carroll Attorney for Appellant Thomas C. Horne, Attorney General By Michael F. Valenzuela, Assistant Attorney General Attorneys for Arizona Department of Economic Security
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
MEMORANDUM DECISION
(Not for Publication -
103(G) Ariz. R.P. Juv. Ct.;
Rule 28 ARCAP
Appeal from the Superior Court in Maricopa County
Cause No. JD20504
The Honorable Joan M. Sinclair, Judge
AFFIRMED
Denise L. Carroll
Attorney for Appellant
Scottsdale Thomas C. Horne, Attorney General
By Michael F. Valenzuela, Assistant Attorney General
Attorneys for Arizona Department of Economic Security
Phoenix GEMMILL, Judge ¶1 Joanne H. ("Mother") appeals the juvenile court's order terminating her parental relationship with her daughter, F.S. ("Daughter"), pursuant to Arizona Revised Statutes ("A.R.S.") section 8-533(B)(3), (B)(8)(a) (Supp. 2012). For the following reasons, we affirm.
Unless otherwise specified, we cite the current versions of statutes when no material revisions have been enacted since the events in question.
FACTS AND PROCEDURAL HISTORY
¶2 Mother and Douglas R. ("Father") are the biological parents of Daughter, born in 2011. Mother began using alcohol at age 18 or 19, and she was consuming alcohol daily while in her thirties, in 2007. She also used marijuana and methamphetamine. ¶3 In May 2007, a police officer stopped Mother for a moving traffic violation. The officer noted that Mother had bloodshot and watery eyes and smelled of alcohol, and the officer observed Mother's three-year-old son in the car. After being charged with possession or use of marijuana, possession of drug paraphernalia, and aggravated driving while under the influence of intoxicating liquor or drugs, Mother pled guilty to one count of driving while under the influence of intoxicating liquor or drugs under A.R.S. § 28-1381(A)(1) (2012). The court placed Mother on probation for eighteen months. Mother's probation terms included abstaining from alcohol and participating in substance abuse treatment. Two years later, the court discharged Mother from probation because she had completed the requirements, including substance abuse treatment. ¶4 On March 1, 2011, Mother gave birth to Daughter at her home with the assistance of a friend. When Daughter tested positive for amphetamines three days later, Child Protective Services ("CPS") removed Daughter from Mother's care due to substance abuse concerns. Daughter was returned to Mother's care after a negative urinalysis test from Mother and her agreement to participate in additional urinalysis tests and TERROS substance abuse services. Mother declined to schedule an intake appointment with TERROS, stating she needed to find stable housing first; and her services were closed in May 2011, after she failed to contact TERROS. ¶5 In June 2011, Mother was again stopped by a police officer. The officer observed gasoline containers spilling in the back of her truck as she drove. Daughter was in the truck with Mother. Mother said she was homeless and admitted the gasoline was stolen. Daughter was taken into CPS custody amid concerns regarding Daughter's health and Mother's abuse of drugs and alcohol. ¶6 Mother agreed to comply with a protective action plan that required her and Daughter to live at the child's paternal grandparents' home and required Mother to have only supervised contact with Daughter. That plan continued until June 30, 2011, when CPS and Mother agreed to a safety plan. The safety plan contained the same requirements as the protective action plan but also required that Mother participate in random urinalysis tests and substance abuse treatment. Mother, however, did not participate in any urinalysis tests or substance abuse treatment. Additionally, contrary to Mother's agreement to comply with the safety plan, she left the paternal grandparents' home with Daughter on July 11, 2011. ¶7 Because of Mother's failure to comply with the safety plan, her refusal to participate in substance abuse services, and CPS's continued concerns regarding the child's safety, CPS removed Daughter from Mother's care on July 12, 2011, and ADES filed a dependency petition. With regard to Mother, the petition alleged that she was unable to care for Daughter because of her substance abuse problem, neglect, and failure to provide Daughter with a stable home. ¶8 On August 23, 2011, the juvenile court adjudicated Daughter dependent as to Mother. All parties agreed on a family-reunification case plan, and Mother agreed to participate in family-reunification services, including parent-aide services, a psychological consultation, anger-management counseling, a substance-abuse assessment with treatment recommendations, random urinalysis testing, and a hair follicle test. ¶9 On May 15, 2012, based on Mother's lack of compliance with the family-reunification case plan, ADES moved for the termination of Mother's parental rights to Daughter. From August 2011 to November 2012, Mother continued testing positive for methamphetamine and alcohol, did not consistently participate in required urinalysis tests, did not complete substance abuse treatment, and continued to deny having a substance abuse problem. From the date Daughter was adjudicated dependent as to Mother, Mother missed 39 of her 80 required urinalysis tests. She tested positive for methamphetamine four times and alcohol twice, and she provided five diluted tests. In addition, Mother participated in a hair follicle test in February 2012, the results of which were positive for methamphetamine. During the four months preceding Mother's severance hearing in December 2012, she participated in only one out of 28 required urinalysis tests. ¶10 In the meantime, beginning in April 2012 Mother was involved in individual and group counseling sessions with Bonnie Tokoph, a licensed counselor. Although Tokoph does not provide services on behalf of ADES, Mother paid Tokoph for counseling regarding alcohol and substance abuse. At trial, Tokoph testified that Mother never appeared to be under the influence of drugs when she saw Mother two times per week and that she did not believe Mother was currently using illegal drugs. Tokoph further indicated that she believed Mother was capable of parenting a child. Tokoph, however, did not perform any type of random drug testing on Mother as part of the substance abuse counseling. ¶11 Mother's ongoing CPS case manager, Claudia Hoff, testified that Mother has an ongoing substance abuse problem. Hoff explained CPS's urinalysis testing policy to Mother, including that CPS considered all of the following to be a positive test: failure to call in for testing, a missed urinalysis test, and a diluted urinalysis test. Although Mother was informed of CPS's policy and the importance of demonstrating her sobriety, she stopped participating in those tests. Hoff explained that Mother had not demonstrated a sufficient period of sobriety and had not made the necessary behavioral changes to regain custody of Daughter. ¶12 At the time of the severance hearing, Daughter was living with her paternal grandparents who were meeting all of Daughter's needs and were willing to adopt her. Hoff testified that Daughter did not have any special needs, she was adoptable, and she deserved permanency. Further, Hoff opined termination of Mother's parental rights was in Daughter's best interest. ¶13 Following the severance hearing, the juvenile court found by clear and convincing evidence the grounds of substance abuse and nine months of out-of-home placement set forth in A.R.S. § 8-533(B)(3) and (B)(8)(a) existed and by a preponderance of the evidence that termination was in Daughter's best interest. On December 24, 2012, the juvenile court filed a signed order terminating Mother's parental rights to Daughter. ¶14 Mother timely appeals, and we have jurisdiction under A.R.S. §§ 8-235(A) (2007), 12-120.21(A)(1) (2003), and 12-2101(A)(1) (Supp. 2012).
Father's parental rights to Daughter were terminated on November 27, 2012, and are not subject to this appeal.
--------
ANALYSIS
¶15 "The juvenile court, as the trier of fact in a termination proceeding, is in the best position to weigh the evidence, observe the parties, judge the credibility of witnesses, and make appropriate findings." Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, 280, ¶ 4, 53 P.3d 203, 205 (App. 2002) (citation omitted). Therefore, this court "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." Id. We view the evidence in the light most favorable to upholding the juvenile court's decision. Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, 250, ¶ 20, 995 P.2d 682, 686 (2000) (citation omitted). The juvenile court's interpretation of the statute, however, will be reviewed de novo. Kimu P. v. Ariz. Dep't of Econ. Sec., 218 Ariz. 39, 43, ¶ 13, 178 P.3d 511, 515 (App. 2008). ¶16 Although the right to have custody of one's child is fundamental, it is not absolute. See Michael J., 196 Ariz. at 248, ¶¶ 11-12, 995 P.2d at 684. To terminate parental rights, the juvenile court decision must be supported by clear and convincing evidence that a statutory ground set forth in A.R.S. § 8-533 exists and by a preponderance of the evidence that severance is in the child's best interest. Id. at 249, ¶ 12, 995 P.2d 682 at 685; Kent K. v. Bobby M., 210 Ariz. 279, 288, ¶ 41, 110 P.3d 1013, 1022 (2005). "If clear and convincing evidence supports any one of the statutory grounds" for severance, we need not consider claims pertaining to the other grounds. Jesus M., 203 Ariz. at 280, ¶ 3, 53 P.3d at 205; see also A.R.S. § 8-533(B) (termination warranted if any of listed circumstances exists). ¶17 To satisfy the statutory requirement for parental termination due to substance abuse, the juvenile court must find by clear and convincing evidence that: "1) [the] parent has a history of chronic abuse of controlled substances or alcohol; 2) [the] parent is unable to discharge parental responsibilities because of his chronic abuse of controlled substances or alcohol; and 3) there are reasonable grounds to believe that the condition will continue for a prolonged and indeterminate period." Raymond F. v. Ariz. Dep't of Econ. Sec., 224 Ariz. 373, 377, ¶ 15, 231 P.3d 377, 381 (App. 2010). Additionally, the requisite showing of best interests is achieved if it is proven by a preponderance of the evidence that the child will benefit from the termination or would be harmed if the relationship continued. James S. v. Ariz. Dep't of Econ. Sec., 193 Ariz. 351, 356, ¶ 18, 972 P.2d 684, 689 (App. 1998).
History of Chronic Drug Abuse
¶18 The record supports the juvenile court's finding that Mother's substance abuse was chronic. For substance abuse to be considered chronic, constant use need not be proven. Raymond F., 224 Ariz. at 377, ¶ 16, 231 P.3d at 381. ¶19 Mother's history of alcohol and methamphetamine abuse indicates an addiction that has continued for an extended period of time. Mother began using alcohol at 18 or 19 years of age and was drinking daily in 2007, four years prior to Daughter's birth. She pled guilty to one count of driving while under the influence of intoxicating liquor or drugs in 2008. In July 2011, one year after completing the required substance abuse treatment plan associated with her probation, Mother tested positive for methamphetamine. ¶20 Recently, Mother has persisted in her methamphetamine use, notwithstanding the services offered to her such as substance abuse treatment, random urinalysis testing, parent-aide services, a psychological consultation, and anger- management counseling. From August 2011 to November 2012, Mother missed 39 of her 80 randomly scheduled urinalysis tests and tested positive for meth or alcohol on six occasions. On this record, reasonable evidence exists to support the juvenile court's finding that there was a history of chronic drug abuse.
Inability to Discharge Parental Responsibilities
¶21 To support termination under A.R.S. § 8-533(B)(3), the juvenile court "must find that [Mother's] drug abuse hinders [her] ability to be an effective parent." Raymond F., 224 Ariz. at 377, ¶ 19, 231 P.3d at 381. This statute, however, does not "require that the parent be found unable to discharge any parental responsibilities but rather that the parent be unable to discharge 'the parental responsibilities.'" Maricopa Cnty. Juv. Action No. JS-5894, 145 Ariz. 405, 408, 701 P.2d 1213, 1216 (App. 1985) (emphasis in original). "[T]he term 'parental responsibilities' is capable of being understood by persons of ordinary intelligence as referring to those duties or obligations which a parent has with regard to his child." Id. at 408-09, 701 P.2d at 1216-17 (citation omitted). "The term is not intended to encompass any exclusive set of factors but rather to establish a standard which permits a [juvenile court] judge flexibility in considering the unique circumstances of each termination case . . . ." Id. at 409, 701 P.2d at 1217. ¶22 Reasonable evidence supports that Mother has exhibited a lack of responsibility in regard to her children's safety. In 2007, prior to Daughter's birth, Mother drove under the influence of intoxicating liquor or drugs while her three-year-old son was in the car. Mother also gave birth to Daughter, who subsequently tested positive for methamphetamine, at home without any medical professional or a midwife to assist, thereby risking Daughter's safety. Additionally, in 2011, Mother was stopped by police after being observed driving a truck with gasoline containers spilling in the back of her truck. At that time Mother admitted the gasoline was stolen, and Daughter was taken into CPS custody due, in part, to concerns that Mother was using methamphetamine. ¶23 Mother has minimized her responsibility for Daughter's removal, even blaming CPS for her methamphetamine use. Since Daughter was removed, Mother has continued to take actions inconsistent with the duties and obligations of a parent. She has failed to take responsibility for her drug use by missing a significant number of required urinalysis tests and testing positive for meth and alocohol. We conclude that the evidence was sufficient to support the juvenile court's finding that Mother was unable to discharge parental responsibilities as required by statute.
Reasonable Belief that Chronic Drug Use will Continue
¶24 To satisfy the requirements of A.R.S. § 8-533(B)(3), "ADES must also prove there are reasonable grounds to believe that the condition causing an inability to parent will continue for a prolonged and indeterminate period." Raymond F., 224 Ariz. at 378, ¶ 25, 231 P.3d at 382. Evidence of Mother's "significant history of drug use, recent drug use, and failure to complete various reunification services [is] sufficient evidence to show that her drug abuse [will] continue for a prolonged, indeterminate period." Id. at 378-79, ¶ 26, 231 P.3d at 382-83 (citation omitted). Further, Mother's failure to maintain sobriety at a time when doing so will result in the termination of parental rights is "evidence [she] has not overcome [her] dependence on drugs and alcohol." Id. at 379, ¶ 29, 231 P.3d at 383. ¶25 Mother contends that she has successfully attended substance abuse classes, an equivalent to the TERROS program, under Tokoph since April 2012. At trial, Tokoph vouched for Mother stating she did not believe Mother was currently using illegal drugs and that Mother was capable of parenting a child. Mother argues that CPS should have worked with the provider of Mother's choice and their failure to do so negated the contention that Mother was refusing services. Further, although Mother missed multiple required drug tests after June 2012, Mother did not receive a positive test result for alcohol or methamphetamine after that date, including the seven tests taken in July 2012 and one in August 2012. ¶26 We determine, however, that the record supports the juvenile court's finding of continued chronic drug use. At the time of trial, Mother had not provided any urinalysis tests for almost four months. Despite knowing that the loss of her Daughter was imminent, Mother failed to remedy her substance abuse problem. After Daughter's removal and the dependency hearing in August 2011, Mother tested positive for methamphetamine four times and alcohol twice, in addition to five diluted tests. Mother additionally tested positive for methamphetamine in a hair follicle test performed in February 2012. Mother has exhibited a marginal commitment to a clean and sober lifestyle. Thus, sufficient evidence exists to find Mother's condition would continue for a prolonged and indefinite period of time.
Best Interests of the Child
¶27 Under A.R.S. § 8-533(B), a juvenile court must consider the best interests of the child when ruling on a termination petition. "The best interest requirement may be met if, for example, the petitioner proves that a current adoptive plan exists for the child, or even that the child is adoptable[,]" Mary Lou C. v. Ariz. Dep't of Econ. Sec., 207 Ariz. 43, 50, ¶ 19, 83 P.3d 43, 50 (App. 2004) (internal citations omitted), or that the existing placement is meeting the child's needs. Audra T. v. Ariz. Dep't of Econ. Sec., 194 Ariz. 376, 377, ¶ 5, 982 P.2d 1290, 1291 (App. 1998). A "best interests inquiry focuses primarily upon the interests of the child, as distinct from those of the parent." Kent K., 210 Ariz. at 287, ¶ 37, 110 P.3d at 1021. ¶28 At the time of trial, Daughter was living with her paternal grandparents, her needs were being met, and the paternal grandparents were willing to adopt her. Further, Hoff opined that Daughter was adoptable. The evidence is sufficient to support the juvenile court's finding that it is in the best interests of Daughter that Mother's rights be severed so she can be legally free for adoption.
CONCLUSION
¶29 Reasonable and substantial evidence supports the severance order based on substance abuse. See A.R.S. § 8-533(B)(3) (court may sever rights due to an inability to discharge parental responsibilities based on chronic substance abuse). We therefore need not address the additional ground for termination found by the juvenile court. See Michael J., 196 Ariz. at 251, ¶ 27, 995 P.2d at 687 (because court affirmed one ground for termination, it need not determine whether severance was justified according to additional grounds). Additionally, sufficient evidence supports the finding that severance is in Daughter's best interests. ¶30 For the foregoing reasons, we affirm the juvenile court's decision terminating Mother's parental rights to Daughter.
___________
JOHN C. GEMMILL, Judge
CONCURRING: ______________________
PATRICIA K. NORRIS, Presiding Judge
______________________
MICHAEL J. BROWN, Judge