Opinion
1 CA-JV 21-0340
05-03-2022
ANDREA V., Appellant, v. DEPARTMENT OF CHILD SAFETY, A.V., B.V., S.W., Appellees.
John L. Popilek, PC, Scottsdale By John L. Popilek Counsel for Appellant Arizona Attorney General's Office, Tucson By Jennifer R. Blum Counsel for Appellee Department of Child Safety
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County No. JD37999 The Honorable Robert Ian Brooks, Judge
John L. Popilek, PC, Scottsdale By John L. Popilek Counsel for Appellant
Arizona Attorney General's Office, Tucson By Jennifer R. Blum Counsel for Appellee Department of Child Safety
Judge Angela K. Paton delivered the decision of the Court, in which Presiding Judge Paul J. McMurdie and Vice Chief Judge David B. Gass joined.
MEMORANDUM DECISION
PATON, JUDGE
¶1 Andrea V. ("Mother") appeals the superior court's order terminating her parental rights to A.V., B.V., and S.W. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Mother has seven biological children. Her parental rights to the four older children were terminated approximately ten years ago on grounds of substance abuse and domestic violence. The younger children, A.V., B.V., and S.W. were born in 2017, 2018, and 2020, respectively.
¶3 In September 2019, Mother fell asleep at a bus stop, leaving A.V. and B.V. unsupervised. A City of Phoenix employee called the police when he saw two-year-old A.V. wander into the street. After returning A.V. to Mother, the employee watched as A.V. tried to drink from one of several beer cans Mother had around her. When police arrived, Mother told them her boyfriend recently kicked her out of his house and she was on her way to her aunt's house. Police allowed Mother to leave with the children but reported the incident to the Department of Child Safety ("DCS").
¶4 DCS learned that Mother moved to Arizona in 2018 while Nevada's child welfare agency was investigating her substance abuse issues. DCS asked Mother to submit to a "rule-out" substance test. Mother, however, did not test and disappeared with A.V. and B.V. As a result, DCS moved for temporary custody of the children and asked the superior court to find them dependent as to Mother. The superior court granted DCS's motion but DCS could not locate the children to take them into custody.
¶5 In June 2020, a Phoenix hospital reported to DCS that Mother had given birth to S.W., who was born substance-exposed to alcohol and marijuana. On DCS's motion, the superior court found S.W. dependent as to Mother and granted DCS temporary custody of the child. A few days later, Mother turned A.V. and B.V. over to DCS.
¶6 DCS offered Mother reunification services, including substance abuse testing and treatment, supervised visitations, parent-aide services, a psychological evaluation, and counseling referrals. Mother initially participated in substance abuse treatment but continued to test positive for alcohol and marijuana. In December 2020, Mother stopped participating in services altogether and was closed out of substance abuse treatment and parent-aide services. In early 2021, while her dependency was pending in Arizona, Mother moved to Nevada. DCS referred her for testing in Nevada, but she did not regularly test. Her last test was in August 2021. To her credit, Mother consistently visited the children in Arizona starting in April 2021.
¶7 DCS moved to terminate Mother's parental rights as to A.V., B.V., and S.W. in June 2021. After a two-day trial in October 2021, the superior court terminated Mother's parental rights based on the substance abuse ground under A.R.S. § 8-533(B)(3). The superior court denied the Department's motion to terminate Mother's parental rights on mental health grounds.
¶8 Mother timely appealed. We have jurisdiction under Article 6, Section 9, of the Arizona Constitution, A.R.S. §§ 12-120.21(A)(1) and -2101(A)(1).
DISCUSSION
¶9 We will affirm a termination order unless it is clearly erroneous and we accept the superior court's factual findings unless no reasonable evidence supports them. Jesus M. v. Ariz. Dep't of Econ. Sec, 203 Ariz. 278, 280, ¶ 4 (App. 2002). To terminate parental rights, the superior court must find: (1) clear and convincing evidence supporting at least one statutory ground under A.R.S. § 8-533(B) and (2) that termination is in the children's best interests by a preponderance of the evidence. Jeffery P. v. Dep't of Child Safety, 239 Ariz. 212, 213, ¶ 5 (App. 2016).
¶ 10 Arizona Revised Statutes § 8-533(B)(3) provides that sufficient evidence to terminate the parent-child relationship exists when: (1) "the parent is unable to discharge parental responsibilities" because of a (2) "history of chronic abuse of dangerous drugs, controlled substances or alcohol" and (3) "there are reasonable grounds to believe that the condition will continue for a prolonged indeterminate period." In determining whether a parent's substance abuse will "continue for a prolonged indeterminate period," courts may consider the length and frequency of the substance abuse, prior efforts to maintain sobriety, and prior relapses. See Jennifer S. v. Dep't of Child Safety, 240 Ariz. 282, 287, ¶¶ 19-20 (App. 2016).
¶11 Mother argues reasonable evidence did not support the superior court's finding that her substance abuse would "continue for a prolonged indeterminate period." We disagree. Mother's twenty-one-year history of substance abuse, her repeated failure to complete substance abuse treatment, and her ongoing failure to maintain sobriety provide sufficient evidence her substance abuse will continue for a "prolonged, indeterminate period." See Raymond F. v. Ariz. Dep't of Econ. Sec., 224 Ariz. 373, 378-79, ¶¶ 24-29 (App. 2010).
¶12 Mother began using alcohol and marijuana when she was sixteen years old and, as the superior court noted, has had "no real period of sobriety" since then. Mother knew she needed to abstain from drinking alcohol and using drugs to regain custody of her children but continued to test positive for alcohol and marijuana throughout the dependency and termination proceedings.
¶13 At trial, Mother testified that she continues to use alcohol and marijuana. Her psychologist testified that Mother would need to be "very determined" to overcome her prolonged battle with substances and Mother showed no such determination. Mother's failure to remedy her substance abuse, despite facing the imminent loss of her children, is evidence she has not overcome her dependence on drugs and alcohol and is not likely to do so in the near future. See Raymond F., 224 Ariz. at 379, ¶ 29. A child's interest in permanency must take precedence over a parent's uncertain struggle with drugs. Id. (citation omitted). Accordingly, sufficient evidence supports the superior court's finding that Mother's substance abuse was likely to continue for a prolonged indeterminate period.
CONCLUSION
¶14 We affirm.