Opinion
No. 1 CA-JV 14-0282
04-30-2015
BRIANNA W., Appellant, v. DEPARTMENT OF CHILD SAFETY, L.B., Appellees.
COUNSEL The Law Offices of Kelly A. Smith, Yuma By Kelly A. Smith Counsel for Appellant Arizona Attorney General's Office, Mesa By Amanda Adams Counsel for Appellees
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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 Yuma County
No. S1400JD20130189
The Honorable Kathryn E. Stocking-Tate, Judge Pro Tempore
AFFIRMED
COUNSEL The Law Offices of Kelly A. Smith, Yuma
By Kelly A. Smith
Counsel for Appellant
Arizona Attorney General's Office, Mesa
By Amanda Adams
Counsel for Appellees
MEMORANDUM DECISION
Judge Randall M. Howe delivered the decision of the Court, in which Presiding Judge Margaret H. Downie and Judge Patricia K. Norris joined. HOWE, Judge:
¶1 Brianna W. ("Mother") appeals from the juvenile court's order terminating her parental rights to her daughter, L.B. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
We view the evidence in the light most favorable to sustaining the juvenile court's order. Denise R. v. Ariz. Dep't of Econ. Sec., 221 Ariz. 92, 95 ¶ 10, 210 P.3d 1263, 1266 (App. 2009).
¶2 Mother is the biological mother of L.B., born in 2011. In 2012, the Department of Child Safety took L.B. into care after learning that L.B. went to the emergency room for "strangulation marks around her neck" and that Mother had used methamphetamine.
L.B.'s father is deceased.
The Department of Child Safety has replaced Arizona Department of Economic Security.
¶3 In April 2013, DCS filed a dependency petition alleging that L.B. was dependent as to Mother due to neglect and substance abuse. Meanwhile, DCS learned that Mother was unemployed and had been evicted from her apartment. L.B. was found dependent as to Mother in May 2013. The initial case plan was for family reunification. DCS offered Mother numerous services, including drug testing, substance abuse treatment, parent aide services, and visitation. Mother failed to consistently participate in those services.
¶4 In May 2013, DCS received a report that Mother was abusing methamphetamine and had left L.B. with a babysitter for three days. DCS then took custody of L.B., placing her in foster care.
¶5 In June 2013, Mother was arrested for possession of dangerous drugs and drug paraphernalia. Approximately two months later, Mother was arrested for burglary. Mother later admitted to being under the influence of methamphetamine while committing the burglary. Mother was then admitted into an inpatient treatment program, but was discharged in late October 2013 for failing to follow rules. In November 2013, Mother tested positive for methamphetamine and in December 2013 tested positive for marijuana.
¶6 At DCS's request, in March 2014, the juvenile court changed the case plan to severance and adoption. DCS moved to terminate Mother's parental rights to L.B. pursuant to Arizona Revised Statutes ("A.R.S.") sections 8-533(B)(3) (chronic drug abuse), -533(B)(8)(a) (out-of-home placement for nine months or longer), and -533(B)(8)(b) (out-of-home placement for six months or longer). When Mother denied the allegations in DCS's termination petition, the juvenile court set the matter for a contested hearing. Meanwhile, Mother was convicted of burglary and sentenced to three years' probation and ordered to complete a drug court program.
¶7 At the initial severance trial, DCS withdrew its petition to afford Mother more time to pursue reunification services, including substance abuse treatment. The juvenile court asked Mother whether she understood that she would go to prison if she failed drug court; Mother stated that she did. In lieu of withdrawing the petition, the juvenile court continued the severance hearing.
¶8 Before the severance trial, DCS learned that Mother had admitted to the drug court that she had used synthetic cannabis. The drug court sentenced Mother to three days in jail and ordered her to complete an inpatient drug treatment program.
¶9 At the severance hearing, Mother asked for a continuance, arguing that she had been sober for two months and that she was doing well in substance abuse treatment. The juvenile court denied Mother's motion. Through her own testimony, Mother admitted that she did not consistently attend parenting classes; abused methamphetamine for approximately ten years; and was arrested for burglary. Mother's case manager testified that Mother's unresolved substance abuse issues prevented DCS from safely returning L.B. to Mother's care.
¶10 The juvenile court then terminated Mother's parental rights under A.R.S. § 8-533(B) for chronic drug abuse, out-of-home placement for nine months or longer, and out-of-home placement for six months or longer. The juvenile court also found that severance was in L.B.'s best interest. This appeal followed.
DISCUSSION
¶11 Mother first argues that insufficient evidence supports termination of her parental rights. Specifically, Mother challenges the juvenile court's determination that her chronic substance abuse condition will continue for a prolonged indeterminate period of time. We review termination orders for an abuse of discretion. Xavier R. v. Joseph R., 230 Ariz. 96, 100 ¶ 11, 280 P.3d 640, 644 (App. 2012).
¶12 To terminate parental rights, the juvenile court must find by clear and convincing evidence the existence of at least one of the statutory grounds for termination enumerated in A.R.S. § 8-533(B) and must find by a preponderance of the evidence that termination would serve the child's best interests. Ariz. R.P. Juv. Ct. 66(C); Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, 249 ¶ 12, 995 P.2d 682, 685 (2000). We affirm a court's order terminating a parent's rights unless we conclude, as a matter of law, that no reasonable person could find the essential elements proven by the prescribed evidentiary standard. See Denise R. v. Ariz. Dep't of Econ. Sec., 221 Ariz. 92, 94-95 ¶¶ 6, 9-10, 210 P.3d 1263, 1265-66 (App. 2009). Finally, 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. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, 280 ¶ 3, 53 P.3d 203, 205 (App. 2002).
¶13 Parental rights may be terminated if "the parent is unable to discharge parental responsibilities because of . . . a history of chronic abuse of dangerous drugs, controlled substances or alcohol and there are reasonable grounds to believe that the condition will continue for a prolonged indeterminate period." A.R.S. § 8-533(B)(3); Raymond F. v. Ariz. Dep't of Econ. Sec., 224 Ariz. 373, 377 ¶ 15, 231 P.3d 377, 381 (App. 2010). To sever on this ground, a court must find that reasonable efforts were made to reunify the family, or that such efforts would have been futile. Jennifer G. v. Ariz. Dep't of Econ. Sec., 211 Ariz. 450, 453 ¶ 12, 123 P.3d 186, 189 (App. 2005).
¶14 At the severance hearing, Mother admitted to a ten-year history of abusing methamphetamine. Mother also tested positive for methamphetamine in November 2013; tested positive for marijuana in December 2013; and admitted to the drug court that she had used synthetic cannabis. Mother also failed to consistently participate in the services offered to her, including substance abuse treatment and drug testing. Moreover, as the case manager testified, Mother's unresolved substance-abuse problems prevented DCS from safely returning L.B. to Mother's care. Thus, reasonable evidence supports the juvenile court's finding that Mother had a history of chronic drug abuse that would continue for a prolonged indeterminate period of time.
Because we conclude the juvenile court properly found a statutory basis to terminate Mother's parental rights for chronic drug abuse, we need not address the juvenile court's additional findings of statutory bases to terminate parental rights.
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¶15 DCS also was required to show by a preponderance of the evidence that severance was in L.B.'s best interests. Kent K. v. Bobby M., 210 Ariz. 279, 288 ¶ 41, 110 P.3d 1013, 1022 (2005). The evidence must show either that the child "would derive an affirmative benefit from termination or incur a detriment by continuing in the relationship." Ariz. Dept. of Econ. Sec. v. Oscar O., 209 Ariz. 332, 334 ¶ 6, 100 P.3d 943, 945 (App. 2004) (citation omitted). Here, termination of Mother's parental rights would afford L.B. the opportunity to live in a drug-free environment and further the plan of adoption. Although Mother argues the evidence received should have been weighed differently, this court does not reweigh the evidence. See Jesus M., 203 Ariz. at 282 ¶ 12, 53 P.3d at 207. Because reasonable evidence in the record supports the juvenile court's findings, Mother has not shown that the juvenile court erred in assessing L.B.'s best interests.
¶16 Mother next argues that the juvenile court erred in denying her request for a continuance at the second termination hearing. We review the denial of a motion to continue for abuse of discretion. State v. Hein, 138 Ariz. 360, 368, 674 P.2d 1358, 1366 (1983). The trial court has substantial discretion because it "is the only party in a position to judge the inconvenience of a continuance to the litigants, counsel, witnesses, and the court, and further is the only party in a position to determine whether there are 'extraordinary circumstances' warranting a continuance and whether 'delay is indispensable to the interests of justice' as required by Arizona Rules of Criminal Procedure 8.5(b)." Id.
¶17 Here, at DCS's request, the juvenile court had already granted Mother a continuance at the first severance hearing to afford her more time to pursue substance abuse treatment. At that hearing, the juvenile court warned Mother about the consequences of not complying with the drug court program. The juvenile court was not required to grant Mother a second continuance based on her assertion that she had been sober for two months. Thus, the juvenile court did not abuse its discretion in denying Mother's continuance request.
¶18 Mother finally argues that she was denied effective assistance of counsel during the severance proceedings. Specifically, she claims that her counsel failed to: (1) "object to the only evidence that [Mother] had not been 100 percent compliant [with drug habilitation] since the last [severance] hearing;" (2) object to Mother's admission to the drug court judge that she had used synthetic cannabis as hearsay; and (3) call Mother's probation officer to testify at the severance hearing to elicit testimony that Mother likely only used synthetic cannabis once and that Mother "has a brain injury that affects her memory."
¶19 In severance proceedings, the "ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result is being challenged." John M. v. Ariz. Dep't of Econ. Sec., 217 Ariz. 320, 324 ¶ 14, 173 P.3d 1021, 1025 (App. 2007) (quoting Strickland v. Washington, 466 U.S. 668, 696 (1984)). To establish ineffective assistance of counsel, a party must show both that the attorney's representation fell below prevailing professional norms and that a reasonable probability exists that, but for the attorney's errors, the result of the proceeding would have been different. John M., 217 Ariz. at 325 ¶¶ 17-18, 173 P.3d at 1026; accord Strickland, 466 U.S. at 690-94 (1984). Further, to establish prejudice, Mother must do more than show counsel's errors had some conceivable effect on the proceeding's outcome. See State v. Whalen, 192 Ariz. 103, 110, 961 P.2d 1051, 1058 (App. 1997). She must demonstrate "that the severance proceedings in this case were fundamentally unfair; that the result of the hearing is unreliable; or that, had counsel conducted himself differently, the juvenile court would have reached a different result." John M., 217 Ariz. at 325 ¶ 19, 173 P.3d at 1026.
¶20 This issue is readily resolved by Mother's failure to demonstrate any prejudice resulting from her counsel's performance. That is, even if we were to assume Mother's counsel's performance fell below an objective standard of reasonableness, Mother cannot demonstrate a reasonable probability that, but for her counsel's errors, the outcome would have been different. Mother speculates that her counsel could have objected to evidence that she did not comply with drug rehabilitation on reliability grounds, but fails to specify how such an objection would have undermined her admission that she had abused methamphetamine for over ten years. Moreover, her argument about her counsel's failure to object to hearsay that she used synthetic cannabis is belied by her contention that her counsel should have elicited testimony from Mother's probation officer that she only used synthetic cannabis once. Finally, although the probation officer could have testified that Mother's brain injury affected her memory, such testimony would have only affected the weight of the evidence supporting termination of her parental rights. See Jesus M., 203 Ariz. at 282 ¶ 12, 53 P.3d at 207 (stating that this Court—on appeal—does not reweigh the evidence). Because Mother offers little more than speculation, she has failed to demonstrate that she has been prejudiced. Consequently, we find no merit to her claim that she received ineffective assistance of counsel.
CONCLUSION
¶21 For the foregoing reasons, we affirm.