Opinion
No. 1 CA-JV 15-0234
01-28-2016
ALVARO P., Appellant, v. DEPARTMENT OF CHILD SAFETY, A.A., Appellees.
COUNSEL John L. Popilek, P.C., Scottsdale By John L. Popilek Counsel for Appellant Arizona Attorney General's Office, Tucson By Cathleen E. Fuller 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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 Maricopa County
No. JD18466
The Honorable Bradley H. Astrowsky, Judge
AFFIRMED
COUNSEL John L. Popilek, P.C., Scottsdale
By John L. Popilek
Counsel for Appellant Arizona Attorney General's Office, Tucson
By Cathleen E. Fuller
Counsel for Appellees
MEMORANDUM DECISION
Judge Randall M. Howe delivered the decision of the Court, in which Presiding Judge Kent E. Cattani and Judge Samuel A. Thumma joined. HOWE, Judge:
¶1 Alvaro P. ("Father") appeals the juvenile court's order terminating his parental rights to his minor child, A.A., on the grounds of substance abuse under A.R.S. § 8-533(B)(3) and time in out-of-home placement for nine and fifteen months under A.R.S. § 8-533(B)(8)(a) and (c), respectively. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 A few days after A.A. was born in January 2012, a Department of Child Safety ("Department") investigator went to the hospital in response to a report that Nicole A. ("Mother") had tested positive for marijuana during her pregnancy. At that time, Father admitted that he also used marijuana. Consequently, the Department petitioned for in-home dependency of A.A. as to both parents—who were not married—alleging neglect and inability to parent due to substance abuse. The juvenile court adjudicated A.A. dependent as to both parents and ordered family reunification as the case plan. The Department provided Father with family preservation services, substance abuse treatment, and urinalysis drug testing through Terros and TASC, two drug treatment centers.
The Department of Child Safety is substituted for the Arizona Department of Economic Security. See S.B. 1001, Section 157, 51st Leg., 2nd Spec. Sess. (Ariz. 2014) (enacted); Ariz. R. Civ. App. P. 27.
¶3 A.A. remained under the juvenile court's supervision for five months then returned to Mother's care. But just two months later, in August 2012, the Department again petitioned for dependency as to both Mother and Father after police arrested Mother for child endangerment. The petition alleged that Father neglected A.A. due to substance abuse because he twice tested positive for cocaine, missed nine urinalysis tests, and was unable to care for A.A. due to work and personal responsibilities. The Department placed A.A. with her maternal grandmother.
¶4 The juvenile court again adjudicated A.A. dependent as to Father and ordered as the appropriate case plan family reunification concurrent with severance and adoption. In addition to the services previously provided, the Department provided Father with parent aide services and individual counseling, and requested that he be psychologically evaluated. The psychologist who evaluated Father recommended a number of additional services including counseling and Narcotics Anonymous classes.
¶5 In February 2013, the Department moved to terminate Father's parental rights, alleging that A.A. had been in her out-of-home placement for six months due to Father's refusal to participate in reunification services. One month later, Father told his case manager that he had relapsed on cocaine and used methamphetamine. The case manager gave him a second referral to Terros, but Father missed his first three visits and failed to maintain contact, so Terros terminated his services. Over the next month, Father missed seven of nine required urinalysis tests and showed a "lack of interest" in his parent aide service. The Department then gave Father a third referral to Terros. During his Terros intake assessment, Father admitted that he began using marijuana and cocaine at the age of sixteen and methamphetamine at the age of twenty-eight.
¶6 The juvenile court conducted a contested severance hearing in September and denied the Department's motion, concluding that the Department had not shown that it had made diligent efforts to provide Father with reunification services before moving for severance. Specifically, the case manager testified that the Department did not provide Father with the services that the psychologist recommended until after it had moved to terminate his parental rights. The court ordered that A.A. remain dependent as to Father and a ward of the state.
¶7 In the following months, Father completed his parent aide referral and increased his participation in other services. He still did not fully comply, however, and his participation in substance abuse services again became sporadic by the following summer. He missed several more urinalysis tests, tested positive for cocaine and alcohol, and received notification from Terros that it would terminate his services if his lack of participation continued. In October 2014, the Department again moved to terminate Father's parental rights, alleging that (1) he was unable to discharge parental responsibilities due to substance abuse, (2) A.A. had been in out-of-home placement for nine months or more, and (3) A.A. had been in out-of-home placement for fifteen months or more.
¶8 In the months between the Department's motion and the severance hearing, Terros reported that Father was disruptive and resistant in his substance abuse classes and that he had promoted drug use during class discussions. Terros also reported that Father refused to accept a relapse prevention packet because he "already knows relapse prevention." In addition, TASC reported that Father had missed more than half of the urinalysis tests required in the two preceding years.
¶9 At the May 2015 contested severance hearing, the case manager testified that Father sporadically participated in substance abuse services since his third referral nearly two years before. She noted that over the course of the dependency, Father had never had a month of full compliance with the required urinalysis testing. She also stated that Terros had changed the intensity of his treatment multiple times in response to his progress or lack thereof, but that Father's participation "always hasn't been pleasant."
The Department also moved to terminate Mother's parental rights, but Mother waived her right to contest the allegations in the motion by failing to appear at a pretrial conference. Accordingly, the juvenile court terminated Mother's parental rights to A.A.
¶10 Further, the case manager testified that the Department had provided Father with bus passes and taxi rides to his services when Father reported he could not get to his classes, but that it stopped providing transportation because Father did not use these services. Moreover, she said that Father had not completed his individual counseling and that although the Department had recently provided him with case aide services, it terminated the services when Father failed to contact the aide. Finally, the case manager testified that A.A. was adoptable and "doing wonderfully" with her maternal grandmother. The case manager said that adoption was in A.A.'s best interests because it would provide A.A. with permanency and consistency and that the placement had been successful.
¶11 In addition to presenting testimony from the case manager, the Department presented testimony from Father. Father testified that he had used cocaine the week before the hearing. When asked if he had a substance abuse problem, Father responded, "Obviously, I do." He also agreed that a parent on cocaine would not be "able to parent a hundred percent" or safely do so. Father also stated that he knew that the Department viewed missed urinalysis tests as positive tests and described the substance abuse services provided as "worthless." However, Father stated that he was "trying" to recover.
¶12 The juvenile court terminated Father's parental rights to A.A. on the grounds of substance abuse and time in out-of-home placement for nine and fifteen months. Specifically, the court found that although Father knew that he needed to demonstrate and maintain sobriety to reunify with A.A., he made only minimal efforts to do so and that his intent to take his treatment seriously was "too little, too late." The juvenile court also found that A.A. had been with her placement for nearly three years and during that time Father failed to complete the reunification services provided by the Department. Finally, the juvenile court found that termination was in A.A.'s best interests. Father timely appealed.
DISCUSSION
¶13 Father argues that insufficient evidence supports the juvenile court's order terminating his parental rights on any of the three grounds. We review a juvenile court's termination order for an abuse of discretion. E.R. v. Dep't of Child Safety, 237 Ariz. 56, 58 ¶ 9, 344 P.3d 842, 844 (App. 2015). We accept the juvenile court's factual findings unless no reasonable evidence supports them, and we will affirm a severance order unless it is clearly erroneous. Bobby G. v. Ariz. Dep't of Econ. Sec., 219 Ariz. 506, 506 ¶ 1, 200 P.3d 1003, 1003 (App. 2008). Additionally, we affirm the juvenile court's order if any one of the statutory grounds is proved and if the termination is in the child's best interests. Raymond F. v. Ariz. Dep't of Econ. Sec., 224 Ariz. 373, 376 ¶ 14, 231 P.3d 377, 380 (App. 2010).
The State argues that Father waived any challenge to the nine months in out-of-home placement ground by failing to specifically challenge any elements of that finding. Father disagrees, stating that he did not waive the issue because he argued that he was actively addressing his substance abuse and relapse issues. But because we can affirm the court's order on the chronic substance abuse ground, we need not resolve this dispute. Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, 249 ¶ 12, 995 P.2d 682, 685 (2000). --------
1. Statutory Ground for Termination
¶14 Father argues that insufficient evidence supports the juvenile court's order terminating his parental rights to A.A. on the chronic substance abuse ground. Although a parent's right to care, custody, and control of his child is fundamental, it is not absolute. Linda V. v. Ariz. Dep't of Econ. Sec., 211 Ariz. 76, 78 ¶ 6, 117 P.3d 795, 797 (App. 2005). To terminate parental rights, the juvenile court must find by clear and convincing evidence the existence of at least one statutory ground under A.R.S. § 8-533 and by a preponderance of the evidence that termination would serve the child's best interests. A.R.S. § 8-533(B); Ariz. R.P. Juv. Ct. 66(C). Additionally, the juvenile court must consider the "availability of reunification services to the parent and the participation of the parent in these services." A.R.S. § 8-533(D). The juvenile court did not abuse its discretion in terminating Father's parental rights or in finding that termination was in A.A.'s best interests.
¶15 As pertinent here, to terminate a parent's rights for chronic substance abuse, the juvenile court must find that: (1) the parent has a history of chronic substance abuse; (2) the parent is unable to discharge parental responsibilities because of his chronic substance abuse; and (3) reasonable grounds exist to believe that the abuse will continue for a prolonged and indeterminate period. A.R.S. § 8-533(B)(3); Raymond F., 224 Ariz. at 377 ¶ 15, 231 P.3d at 381.
¶16 The juvenile court did not err in finding each statutory element satisfied here. First, the record shows that Father has a history of chronic substance abuse. Father began using cocaine at the age of sixteen and continued to do so throughout the three years of A.A.'s dependency. Father also admitted that he had used the drug as recently as the week before his second severance hearing and he did not hesitate in admitting that he "obviously" had a substance abuse problem. Further, Father failed to successfully complete his reunification services and failed to submit to more than half of his required urinalysis tests. Despite brief periods of compliance with his substance abuse treatment, Father repeatedly relapsed throughout the three years of A.A.'s dependency. See Raymond F., 224 Ariz. at 379 ¶ 29, 231 P.3d at 383 ("Father's failure to remedy his drug abuse, despite knowing the loss of his children was imminent, is evidence that he has not overcome his dependence on drugs . . . ."). Father counters that his "sporadic" use of cocaine does not amount to chronic substance abuse for purposes of severance under this statutory ground. However, "drug abuse need not be constant to be considered chronic." Id. at 377 ¶ 16, 231 P.3d at 381.
¶17 Additionally, sufficient evidence supports the finding that Father was unable to discharge his parental responsibilities. While "parental responsibilities" does not encompass an exclusive set of factors, id. at 378 ¶ 20, 231 P.3d at 382, it does include providing the child with food, shelter, education, and ordinary medical care, Matter of Appeal in Maricopa Cty. Juv. Action No. JS-5209 & No. JS-4963, 143 Ariz. 178, 185, 692 P.2d 1027, 1034 (App. 1984). Father could not provide A.A. any of these necessities because she remained in her out-of-home placement. Father knew that to reunify with his daughter he needed to demonstrate and maintain sobriety, but he did not do so. Moreover, Father acknowledged that a person on cocaine could not safely parent a child.
¶18 Finally, the evidence supports the finding that reasonable grounds existed to believe that Father's abuse would continue for a prolonged and indeterminate period. Although Father stated that he was trying to recover, the record shows that in the months leading to the severance hearing, he was disruptive and resistant in his Terros substance abuse classes and even refused a relapse prevention packet. Father stated that he did not need the packet because he already knew how to prevent relapses, yet he used cocaine one week before his hearing. The Terros reports also stated that Father promoted drug use during his substance abuse classes.
¶19 The record further shows that the Department made diligent efforts to provide Father with reunification services and that Father failed to make the necessary sobriety changes to permit reunification. The Department gave Father three referrals to Terros for substance abuse treatment as well as referrals to urinalysis testing at TASC, parent and case aide services, and individual counseling. The Department even provided Father with bus passes and taxi rides to his services when he could not attend due to transportation issues. But Father's participation in his services was inconsistent throughout A.A.'s dependency. Thus, the juvenile court did not err in terminating Father's parental rights on the ground of chronic substance abuse.
2. The Child's Best Interests
¶20 The record also shows that the termination of Father's parental rights was in A.A.'s best interests. Termination of parental rights is in a child's best interests if the child will benefit from the termination or will be harmed if the relationship continues. Shawanee S. v. Ariz. Dep't of Econ. Sec., 234 Ariz. 174, 179 ¶ 20, 319 P.3d 236, 241 (App. 2014). In determining a child's best interests, the juvenile court may consider whether the child's current placement meets the child's needs, whether an adoption plan is in place, and whether the child is adoptable. Tina T. v. Dep't of Child Safety, 236 Ariz. 295, 300 ¶ 19, 339 P.3d 1040, 1045 (App. 2014); Mario G. v. Ariz. Dep't of Econ. Sec., 227 Ariz. 282, 288 ¶ 26, 257 P.3d 1162, 1168 (App. 2011). The juvenile court need only find that termination is in the child's best interests by a preponderance of the evidence. Kent K. v. Bobby M., 210 Ariz. 279, 288 ¶ 41, 110 P.3d 1013, 1022 (2005).
¶21 Here, reasonable evidence supports the juvenile court's finding that termination of Father's parental rights was in A.A.'s best interests. A.A. had been in her maternal grandmother's care for nearly her entire life. The record shows that A.A. had developed a bond with her grandmother and that adoption would be in A.A.'s best interests because it would provide her with permanency and consistency. The case manager also testified that A.A. was adoptable and that her placement was meeting her needs. Finally, the Department progress report stated that A.A.'s grandmother was willing to adopt her. Accordingly, the juvenile court did not abuse its discretion in finding that termination was in A.A.'s best interests.
CONCLUSION
¶22 For the foregoing reasons, we affirm.