Opinion
No. 1 CA-JV 18-0362
04-04-2019
MARISSA S., Appellant, v. DEPARTMENT OF CHILD SAFETY, A.S., R.B., Appellees.
COUNSEL The Stavris Law Firm, P.L.L.C., Scottsdale By Alison Stavris Counsel for Appellant Arizona Attorney General's Office, Phoenix By Laurie Blevins Counsel for Appellee Department of Child Safety
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. JD31650
The Honorable Jeanne M. Garcia, Judge
AFFIRMED
COUNSEL The Stavris Law Firm, P.L.L.C., Scottsdale
By Alison Stavris
Counsel for Appellant Arizona Attorney General's Office, Phoenix
By Laurie Blevins
Counsel for Appellee Department of Child Safety
MEMORANDUM DECISION
Judge Kenton D. Jones delivered the decision of the Court, in which Presiding Judge Lawrence F. Winthrop and Judge Maria Elena Cruz joined. JONES, Judge:
¶1 Marissa S. (Mother) appeals the juvenile court's order terminating her parental rights to A.S. and R.B. (the Children), arguing the Department of Child Safety (DCS) failed to prove the statutory grounds for severance by clear and convincing evidence and that termination was in the Children's best interests by a preponderance of the evidence. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 A.S. was born substance-exposed to marijuana in August 2015. Mother also tested positive for an antidepressant she could not explain. At the time, the Children's father (Father) was non-compliant with substance abuse testing and counseling services related to an open dependency with other children.
"[W]e view the evidence and reasonable inferences to be drawn from it in the light most favorable to sustaining the court's decision." Jordan C. v. Ariz. Dep't of Econ. Sec., 223 Ariz. 86, 93, ¶ 18 (App. 2009) (citing Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, 282, ¶ 13 (App. 2002)).
¶3 DCS immediately referred Mother for in-home services and implemented a safety plan prohibiting unsupervised contact with Father. By October 2015, Mother had presented for only one of four scheduled urinalysis tests, and that sample was diluted. She was closed out of substance abuse treatment and parenting classes for lack of contact. Mother absconded with A.S. and began residing with Father, who had recently tested positive for methamphetamine, amphetamine, and marijuana and had engaged in domestic violence with Mother.
¶4 In November 2015, DCS filed a petition alleging A.S. was dependent as to Mother on the grounds of neglect and substance abuse. The juvenile court adjudicated A.S. dependent after Mother failed to appear for the pretrial conference and adopted a case plan of family reunification.
The juvenile court later found both the Children were dependent as to Father on the grounds of neglect, substance abuse, and domestic violence. His parental rights were terminated in May 2018. Father did not challenge that order and is not a party to this appeal.
¶5 In February 2016, DCS referred Mother for substance abuse testing and treatment, parent aide and case aide services, supervised visitation, domestic violence counseling, and transportation assistance. Between March and May, Mother missed eleven of fifteen scheduled urinalysis tests and tested positive for methamphetamine, amphetamine, and opiates. Mother attributed the test results to cold medicine and did not engage in services outside of visitation or secure employment or housing.
¶6 In July 2016, the juvenile court granted DCS's motion to change the case plan to severance and adoption. DCS immediately moved to terminate Mother's parental rights based upon the length of time A.S. had been in out-of-home care, and the court set a severance trial for February 2017.
¶7 Mother tested positive for methamphetamine and amphetamine again in July and August 2016 but, after discovering she and Father had conceived another child, completed an intake for substance abuse treatment and began attending counseling and parent aide services regularly. She missed only two of thirty-three scheduled urinalysis tests between September and November 2016. Mother tested positive for opiates twice and provided a prescription for opioid medication. By December 2016, Mother was living in a group home for pregnant women that would not accommodate A.S. At the guardian ad litem's request, the juvenile court continued the severance trial for three months to allow Mother additional time to demonstrate her sobriety. In the meantime, DCS provided Mother with community resources and housing assistance.
The DCS caseworker later discovered Mother had obtained prescriptions from multiple providers, the dates of which were inconsistent with her use.
¶8 Mother graduated from an intensive outpatient substance abuse treatment program to the standard outpatient program in December 2016. She tested positive for opiates once in January 2017, and then provided negative urinalysis samples. She successfully completed individual therapy and was compliant with visitation and parent aide services when she gave birth to R.B. in March 2017. Although DCS identified no safety issues preventing R.B. from remaining with Mother, the DCS caseworker and various service providers expressed concern about Mother's codependent relationship with Father — who continued to abuse substances and refuse all services — her lack of appropriate housing and employment, and whether she could safely and independently care for two young children. Nonetheless, Mother continued to progress through the case plan, DCS withdrew its termination motion, and the juvenile court changed the primary case plan back to family reunification.
¶9 In May 2017, Mother transitioned from the standard outpatient substance abuse treatment program to recovery and maintenance and successfully completed parent aide services. She obtained employment but had yet to secure independent housing that would accommodate her and both the Children. Then, in June, Mother stopped participating in substance abuse testing. Hair follicle samples submitted two weeks apart in August 2017 tested positive for methamphetamine, indicating chronic substance abuse within the prior ninety days. In the following months, Mother also tested positive for opiates and submitted several diluted samples. Mother denied using any illegal substances but was asked to leave the transitional housing program and became homeless.
¶10 DCS removed R.B. from Mother's care and filed a petition alleging she was dependent as to Mother on the grounds of substance abuse. The juvenile court adjudicated R.B. dependent in November 2017 and adopted a case plan for R.B. of family reunification concurrent with severance and adoption.
¶11 Mother was re-referred for substance abuse testing and treatment, a psychiatric evaluation, supervised visitation services and transportation assistance. She submitted eleven diluted urinalysis samples between October and December 2017 and then tested positive for methamphetamine and amphetamine again in January 2018. The juvenile court granted DCS's request to change the case plan to severance and adoption and scheduled a contested hearing on DCS's motion to terminate Mother's parental rights in May 2018. Only then did Mother finally admit she had relapsed on methamphetamine, largely as a result of Father's influence.
¶12 Mother tested positive again in February 2018 and then self-referred to an inpatient substance abuse treatment facility. By the time of trial in May, Mother had graduated from the ninety-day program and moved into a sober-living home. She also reported having started a new job and recently ending her relationship with Father. However, she had violated her curfew twice to spend time with Father and was not testing regularly. Although the Foster Care Review Board recommended Mother be given an additional six months to participate in services, the juvenile court denied Mother's request to continue. For administrative reasons, trial was delayed until June and July, 2018.
¶13 Over the course of the three-day trial, the DCS caseworker detailed Mother's lengthy history of substance abuse, treatment, and relapse. Noting that Mother had shown only a few months' sobriety after several years of frequent diluted and positive tests, sporadic participation in substance abuse treatment, and active concealment of her drug use, the caseworker concluded it was likely that Mother's substance abuse would continue for a prolonged, indeterminate period. Additionally, Mother had thus far failed to demonstrate stability in employment or housing or extricate herself from Father's influence. Mother's counselor agreed that Mother had only recently begun to learn the tools necessary to maintain sobriety and to understand why her association with Father was problematic. The counselor further testified Mother was "early in sobriety," had at best only a "moderate chance" of maintaining sobriety, and would need continued supervision and structure before she would be ready to parent the Children alone.
¶14 Mother testified she began using methamphetamine, heroin, cocaine, and marijuana around age eighteen, in 2010. She quit heroin in 2013 but continued using methamphetamine for the next several years, stopping only during the months she was pregnant with A.S., and then R.B., but still smoked marijuana two to three times per week while pregnant with A.S. Mother admitted she had lied about her drug use and relationship with Father, which had caused lengthy delays in her progress towards reunification. However, Mother believed she had learned the tools necessary to maintain her sobriety while in the inpatient program, had improved her support system, and was determined to prove she could parent the Children on her own. She reported a strong bond with the Children and believed they "deserve their mom in their life."
¶15 The DCS caseworker testified the Children were placed together and bonded to the placement, who was meeting their needs and willing to adopt them. Thus, she believed severance would benefit the Children by providing them with an opportunity for permanency in a safe, stable home.
¶16 After taking the matter under advisement, the juvenile court found DCS had proved by clear and convincing evidence that it had made diligent efforts to provide appropriate reunification services. Nonetheless, termination of Mother's parental rights was warranted as to both Children based upon Mother's chronic substance abuse and as to A.S. based upon Mother's failure to remedy the circumstances causing A.S. to be in out-of-home care for longer than fifteen months. See Ariz. Rev. Stat. (A.R.S.) § 8-533(B)(3), (8)(c). The court also found severance was in the Children's best interests and entered an order terminating Mother's parental rights. Mother timely appealed, and we have jurisdiction pursuant to A.R.S. §§ 8-235(A), 12-120.21(A)(1), -2101(A)(1), and Arizona Rule of Procedure for the Juvenile Court 103(A).
Absent material changes from the relevant date, we cite the current version of rules and statutes.
DISCUSSION
I. DCS Made Diligent Efforts to Provide Reunification Services.
¶17 To warrant termination of parental rights in this setting, DCS must prove it made diligent efforts to provide a parent with appropriate reunification services. See A.R.S. § 8-533(B)(8) (requiring diligent reunification efforts when termination is based upon the child's length of time in out-of-home care); Mary Lou C. v. Ariz. Dep't of Econ. Sec., 207 Ariz. 43, 49, ¶¶ 14-15 (App. 2004) (requiring diligent reunification efforts when termination is based upon the parent's chronic substance abuse). Mother argues DCS failed to provide her adequate reunification services because she eventually self-referred for inpatient substance abuse treatment. DCS is diligent in providing reunification services when it "provide[s] a parent with the time and opportunity to participate in programs designed to improve the parent's ability to care for the child." Mary Ellen C. v. Ariz. Dep't of Econ. Sec., 193 Ariz. 185, 192, ¶ 37 (App. 1999) (citing Maricopa Cty. Juv. Action No. JS-501904, 180 Ariz. 348, 353 (App. 1994)). We defer to the juvenile court's factual findings, including those regarding DCS's diligence in providing services, so long as they are supported by substantial evidence. See Lashonda M. v. Ariz. Dep't of Econ. Sec., 210 Ariz. 77, 81-82, ¶¶ 13, 16 (App. 2005) (citing Jesus M., 203 Ariz. at 280, ¶ 4).
¶18 Mother also suggests the juvenile court should have continued the severance trial to allow her additional time to prove her sobriety. We review an order denying a continuance for an abuse of discretion. See Yavapai Cty. Juv. Action No. J-9365, 157 Ariz. 497, 499 (App. 1988) (citation omitted).
¶19 The record reflects Mother was referred for substance abuse testing and treatment, parent aide services, counseling, community resources, and visitation — all designed to address DCS's concerns regarding her substance abuse and ability to provide a safe and stable home for the Children. Although Mother went through the motions of participating in those services, she continued, unbeknownst to DCS, to use methamphetamine and maintain an unhealthy relationship with Father. Mother admitted that her prolonged concealment of the circumstances prevented DCS from assessing her for other services, such as inpatient substance abuse treatment. Moreover, Mother proved she was able to obtain the service immediately after acknowledging her relapse and actually participated in and completed the service before trial. Therefore, the source of her referral is immaterial.
¶20 In sum, substantial evidence supports the juvenile court's finding that it was not a lack of time or services that prevented Mother from proving her willingness and ability to parent. Accordingly, we find no error in the court's conclusion that DCS made diligent efforts to provide reunification services, nor any abuse of discretion in the denial of Mother's request for additional time.
II. DCS Proved Severance was Warranted by Clear and Convincing Evidence.
¶21 To terminate parental rights, the juvenile court must find at least one statutory ground for severance by clear and convincing evidence. See Kent K. v. Bobby M., 210 Ariz. 279, 288, ¶ 42 (2005). A parent's rights may be terminated pursuant to A.R.S. § 8-533(B)(3) when: (1) the parent has a history of chronic abuse of controlled substances; (2) the parent is unable to discharge parental responsibilities as a result of the substance abuse; and (3) there are reasonable grounds to believe that the condition will continue for a prolonged, indeterminate period. Raymond F. v. Ariz. Dep't of Econ. Sec., 224 Ariz. 373, 377, ¶ 15 (App. 2010). We will affirm a termination order "unless we must say as a matter of law that no one could reasonably find the evidence to be clear and convincing." Denise R. v. Ariz. Dep't of Econ. Sec., 221 Ariz. 92, 94, ¶ 7 (App. 2009) (quoting Murillo v. Hernandez, 79 Ariz. 1, 9 (1955)).
A. Chronic Substance Abuse
¶22 Mother first suggests the juvenile court erred in concluding she had a chronic substance abuse problem because she had demonstrated three months of sobriety. However, a temporary period of abstinence from drugs does not outweigh a significant history of abuse or consistent inability to abstain during the case. Raymond F., 224 Ariz. at 379, ¶ 29 ("It is not the number of times that [the parent] has tested positive or negative for drug abuse that is key, but rather, it is the fact that [the parent] has consistently failed to abstain from drugs."). The record here reflects that Mother used a variety of illegal drugs consistently over the course of eight years despite the risks to her health and relationship with the Children. These circumstances reflect chronic substance abuse.
B. Discharge of Parental Responsibilities
¶23 Mother argues there was insufficient evidence to demonstrate that her drug abuse interfered with her ability to discharge her parental responsibilities because she successfully completed parent aide services and was observed to parent appropriately during visitation. We again disagree.
¶24 The term "parental responsibilities" in A.R.S. § 8-533(B)(3) refers to "those duties or obligations which a parent has with regard to [her] child." Raymond F., 224 Ariz. at 378, ¶ 20 (citations omitted). "The term is not intended to encompass any exclusive set of factors but rather to establish a standard which permits a trial judge flexibility in considering the unique circumstances of each termination case." Maricopa Cty. Juv. Action No. JS-5894, 145 Ariz. 405, 409 (App. 1985). This Court has held, however, that a parent is incapable of discharging parental responsibilities if she cannot make appropriate decisions for a child, fails to protect the child from harm, or demonstrates an inability to provide a safe home for the child. Raymond F., 224 Ariz. at 378, ¶¶ 21-22; cf. JS-5894, 145 Ariz. at 408 (finding that "establishment of a personal relationship with one's child is necessarily a parental responsibility" but that achievement alone was insufficient to defeat severance based upon chronic substance abuse).
¶25 We agree with the juvenile court that "[i]t is axiomatic that a parent who is abusing illegal substances cannot meet the rigors of day-to-day parenting of a child," and particularly "when the child at issue is of a young age." Moreover, the evidence here shows that while Mother can parent appropriately for a few hours of supervised visitation each week, her continued use of illegal drugs prevented her from completing the essential task of providing a safe, stable, drug-free home for the Children for any appreciable length of time. The record thus supports the finding that Mother's substance abuse interfered with her ability to parent.
C. Likelihood of Future Substance Abuse
¶26 Mother argues the juvenile court erred in concluding her chronic substance abuse would continue for a prolonged, indeterminate period because she claims to have resolved the issue after completing inpatient substance abuse treatment. But the court did not agree that inpatient treatment was the panacea for Mother's chronic substance abuse, finding instead that "Mother has had . . . the skills to rid herself of [Father] and illegal drugs for a long time" and simply failed to put the Children's needs and desires above her own. We will not second-guess the fact-finder's evaluation of Mother's testimony. See Ariz. Dep't of Econ. Sec. v. Oscar O., 209 Ariz. 332, 334, ¶ 4 (App. 2004) (noting the juvenile court, as the trier of fact, "is in the best position to weigh the evidence, observe the parties, judge the credibility of witnesses, and resolve disputed facts") (citing Jesus M., 203 Ariz. at 280, ¶ 4).
¶27 Other circumstances also support the juvenile court's finding that there was a reasonable likelihood that Mother's substance abuse would continue. See Jennifer S. v. DCS, 240 Ariz. 282, 287, ¶ 20 (App. 2016) (directing the court to consider "the length and frequency of [a parent]'s substance abuse, the types of substances abused, behaviors associated with the substance abuse, prior efforts to maintain sobriety, and prior relapses" in evaluating a future ability to parent). Specifically, Mother continued to use drugs for more than two years after the dependency was initiated, hid her drug use with apparent success despite constant community support and random drug testing, and lied about her sobriety in the face of numerous diluted and positive tests — all while knowing the loss of the Children was imminent. See Raymond F., 224 Ariz. at 379, ¶ 29 ("[The parent]'s failure to remedy his drug abuse[,] despite knowing the loss of his children was imminent, is evidence he has not overcome his dependence on drugs and alcohol."); see also Jennifer S., 240 Ariz. at 288, ¶ 25 (concluding a parent's "efforts to achieve and maintain sobriety in the months immediately preceding the severance hearing . . . d[id] not outweigh her significant history of drug abuse or her demonstrated inability to remain sober during much of the case").
¶28 Reasonable evidence supports the juvenile court's findings and conclusions that termination of Mother's parental rights to the Children was warranted upon the basis of her chronic, unresolved substance abuse. We find no error.
"If clear and convincing evidence supports any one of the statutory grounds on which the juvenile court ordered severance, we need not address claims pertaining to the other grounds." Jesus M., 203 Ariz. at 280, ¶ 3 (citing Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, 251, ¶ 27 (2000)). Accordingly, we do not address Mother's argument that DCS failed to prove severance was warranted as to A.S. based upon the length of time she was in out-of-home care. --------
III. DCS Proved Termination was in the Children's Best Interests by a Preponderance of the Evidence.
¶29 Mother argues the juvenile court abused its discretion by finding termination was in the Children's best interests because she shares a bond with them and has the means and resources to provide for them. We review the best interests finding for an abuse of discretion and will reverse only if "as a matter of law, no reasonable fact-finder could have found the evidence satisfied the applicable burden of proof." See Titus S. v. DCS, 244 Ariz. 365, 369, ¶ 15 (App. 2018) (citing Mary Lou C., 207 Ariz. at 47, ¶ 8, and Denise R., 221 Ariz. at 94-95, ¶¶ 9-10).
¶30 The existence of a bond between the parent and child, "although a factor to consider, is not dispositive in addressing best interests." Dominique M. v. DCS, 240 Ariz. 96, 98, ¶ 12 (App. 2016) (citing Bennigno R. v. Ariz. Dep't of Econ. Sec., 233 Ariz. 345, 351, ¶ 30 (App. 2013)). Rather, the juvenile court must consider all relevant facts and determine, upon a case-by-case basis, whether a preponderance of the evidence supports a finding that the child "would derive an affirmative benefit from termination or incur a detriment by continuing in the relationship." Oscar O., 209 Ariz. at 334, ¶ 6; accord Demetrius L. v. Joshlynn F., 239 Ariz. 1, 4, ¶ 16 (2016). The benefit to the child, particularly where the child has been out of the parent's care for a lengthy period, is the opportunity for permanency in lieu of remaining indefinitely in a situation where "parents maintain parental rights but refuse to assume parental responsibilities." Oscar O., 209 Ariz. at 337, ¶ 16 (quoting Maricopa Cty. Juv. Action No. JS-6520, 157 Ariz. 238, 243 (App. 1988), and citing James S. v. Ariz. Dep't of Econ. Sec., 193 Ariz. 351, 356, ¶ 18 (App. 1998)) (emphasis omitted). The court may also consider whether the presence of a statutory ground for severance will have a negative effect upon the child. Bennigno R., 233 Ariz. at 350, ¶ 23 (quoting Maricopa Cty. Juv. Action No. JS-6831, 155 Ariz. 556, 559 (App. 1988)).
¶31 The record reflects A.S. had been in an out-of-home placement for nearly three years. Despite this lengthy period and the subsequent removal of R.B., the juvenile court found Mother had yet to show she was able to "be an appropriate parent, free from substance abuse long term, free from a domestically violent relationship long term, and with a stable home and job." The court acknowledged Mother's bond with and love for the Children but ultimately determined it was not in their best interests to delay permanency any longer. Instead, the court found the Children were adoptable, in an adoptive placement together, and would benefit from the opportunity to be adopted into a permanent, stable, and safe home. The court's finding that severance was in the Children's best interests is supported by the record, and we find no abuse of discretion. See Alma S. v. DCS, 245 Ariz. 146, 152, ¶ 21 (2018) (affirming the best interests finding where the record indicated "[the] children were excelling in their out-of-home placements, the foster parents were planning to adopt the children, . . . the children [we]re otherwise adoptable . . . [and] [the parent] was still inclined to endanger the children despite her rehabilitative progress").
CONCLUSION
¶32 The juvenile court's order terminating Mother's parental rights to the Children is affirmed.