Opinion
No. 1 CA-JV 16-0169
12-06-2016
ANGELENA A., PEDRO M., Appellants, v. DEPARTMENT OF CHILD SAFETY, A.M., Appellees.
COUNSEL Robert D. Rosanelli Attorney at Law, Phoenix By Robert D. Rosanelli Counsel for Appellant Angelena A. Law Office of Florence M. Bruemmer PC, Anthem By Florence M. Bruemmer Counsel for Appellant Pedro M. Arizona Attorney General's Office, Mesa By Amanda L. Adams 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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 Yavapai County
No. P1300JD201400054
The Honorable Anna C. Young, Judge
AFFIRMED
COUNSEL Robert D. Rosanelli Attorney at Law, Phoenix
By Robert D. Rosanelli
Counsel for Appellant Angelena A. Law Office of Florence M. Bruemmer PC, Anthem
By Florence M. Bruemmer
Counsel for Appellant Pedro M. Arizona Attorney General's Office, Mesa
By Amanda L. Adams
Counsel for Appellee Department of Child Safety
MEMORANDUM DECISION
Judge Donn Kessler delivered the decision of the Court, in which Presiding Judge Kenton D. Jones and Judge Randall M. Howe joined. KESSLER, Judge:
¶1 Angelena A. ("Mother") and Pedro M. ("Father") appeal from the juvenile court's order terminating their parental rights to A.M. ("Child"). For the following reasons, we affirm.
The Child's legal last name was in question, and the child was referred to as both A.A. and A.M. We use A.M. for clarity.
FACTUAL AND PROCEDURAL HISTORY
¶2 Mother and Father are the parents of Child. In October 2015 Mother and Father had their rights terminated to their two older children, A.M. and O.M. (collectively "Older Children"). Mother also had her rights terminated to a third child, M.A., (included with "Older Children") who is not the child of Father and therefore, Father was not a party to that case. The Department of Child Safety ("DCS") first made contact with Mother December 3, 2013, when Mother was taken to Yavapai Regional Medical Center for premature contractions while seven months pregnant with O.M. At that time Mother tested positive for methamphetamine, ecstasy, and marijuana. Mother returned to the hospital December 25, 2013, after falling while getting out of the shower, and again tested positive for marijuana, amphetamine, and methamphetamine. O.M. was born January 30, 2014.
Although Father's biological parentage of A.M. is in question, no other man stepped forward as the biological father of A.M. after DCS published a notice of hearing. Father appeals the severance of the parent-child relationship and thus we assume, solely for purposes of resolving Father's appeal, that Father is the father of A.M.
¶3 In February 2014, Mother was offered a mental health assessment, and substance abuse assessment and treatment with West Yavapai Guidance Clinic. Services were not offered to Father at that time because he was incarcerated due to a domestic violence incident with Mother. Father was, however, later offered services of a psychological evaluation, random urinalyses, counseling, and parenting classes.
¶4 The domestic violence incident for which Father was incarcerated occurred in July 2013 while Mother was pregnant with O.M. The police report from the incident reported that the two had an altercation in which Father pushed Mother hard enough for her to fall back and drop A.M., choked Mother until she almost lost consciousness, and then punched her multiple times in the face and chest. It also reported that M.A. had been present and witnessed the whole incident. Father was not arrested for the incident until February 2014.
¶5 In June 2014, Older Children were placed in DCS care by Mother's voluntary agreement. At that time, the DCS caseworker opined that based on Mother's physical appearance, the sores covering her face, and her behaviors, she might be using drugs again. Father was still incarcerated for the domestic violence incident when Older Children were taken into DCS custody. In August 2014, DCS determined that Older Children needed to remain in temporary custody due to Mother's substance abuse and mental health issues and because Mother was unemployed and unable to provide financially for Older Children's basic needs. Mother continued to receive services through DCS, including substance abuse treatment. She was also required to submit to random drug testing. Mother continued to test positive for drugs including methamphetamine, amphetamine, and marijuana.
¶6 In July 2015 another incident of domestic violence occurred between Father and Mother's three brothers. The brothers assaulted Father with chains and a baseball bat, and a gun was fired during the incident. Mother, pregnant with Child, was present for the incident. The caseworker also testified that sometime around July 2015 Mother was seen with a black eye and that Mother and Father's couple's counselor reported that the couple admitted it was caused by Father.
¶7 In October 2015, Mother's and Father's rights were terminated to Older Children. In that termination proceeding, the court found that both parents had neglected a child or failed to protect a child from neglect, so as to cause an unreasonable risk of harm to a child's health and/or welfare pursuant to Arizona Revised Statutes ("A.R.S.") § 8- 533(B)(2) (2016). The court based this finding on Mother and Father's history of domestic violence and substantial drug abuse which the court found they were not remedying.
We cite to the current version of statutes unless changes material to the decision have occurred.
¶8 On December 6, 2015, Mother gave birth to Child. On December 8, 2015, DCS took Child into temporary custody and filed a petition alleging Child was dependent. At the time, Father was incarcerated for violating the terms of his probation. On December 31, 2015, DCS moved to sever Mother's rights on the grounds of prior severance within two years, neglect, and substance abuse. DCS also moved to sever Father's parental rights on neglect and prior-severance grounds.
¶9 At the hearing, Mother denied using drugs while pregnant with Child. However, reports showed that she tested positive for methamphetamine and amphetamine three times while pregnant with Child. One of those positives was just weeks before Child was born. Additionally, following the birth of Child, Mother had a positive drug test, as well as a diluted drug test, and multiple missed tests. Mother testified that she has struggled with substance abuse since she was thirteen. Mother was also previously convicted of drug-related charges and child endangerment for having children in the car while using drugs. The case manager testified that she believed Mother's substance abuse could continue for an indeterminate period of time. Father testified that he had not been using drugs, but he also tested positive for drugs less than a month before the hearing.
Father was incarcerated from August 2015 through February 2016 for violating the terms of his probation.
¶10 The juvenile court terminated Mother's parental rights on the grounds of a prior severance within two years, drug abuse, and neglect, and terminated Father's rights on the grounds of a prior severance within two years and neglect. Mother and Father timely appealed. We have jurisdiction pursuant to A.R.S. §§ 8-235(A) (2014), 12-120.21(A)(1) (2003), and 12-2101(A)(1) (Supp. 2014).
Mother also appeals the juvenile court's order finding Child dependent. However, the termination of the parent-child relationship renders that appeal moot. Rita J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 512, 515, ¶ 10 (App. 2000) (finding an otherwise appealable order from permanency hearing essentially moot due to later order terminating parental rights); Vinson v. Marton & Assocs., 159 Ariz. 1, 4 (App. 1988) (citation omitted) (holding that when circumstances in a case change to the extent that a reviewing court's action would have no effect on the parties, the issue becomes moot for purposes of appeal). We therefore do not address that argument.
DISCUSSION
¶11 A parent's right to custody and control of his or her own child is fundamental, Santosky v. Kramer, 455 U.S. 745, 753 (1982), but not absolute, Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, 248, ¶¶ 11-12 (2000). To justify severance of a parental relationship, the State must prove by clear and convincing evidence one of the statutory grounds in A.R.S. § 8-533(B). Michael J., 196 Ariz. at 249, ¶ 12. The State must also prove by a preponderance of the evidence that severance of the parent-child relationship is in the best interest of the child. Kent K. v. Bobby M., 210 Ariz. 279, 288, ¶ 41 (2005).
¶12 Because the juvenile court is in the best position to weigh the evidence and judge credibility, "we 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." Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, 280, ¶ 4 (App. 2002) (citations omitted). We do not reweigh the evidence, but "look only to determine if there is evidence to sustain the court's ruling," Mary Lou C. v. Ariz. Dep't of Econ. Sec., 207 Ariz. 43, 47, ¶ 8 (App. 2004) (citation omitted), and reverse only if no reasonable evidence supports the ruling, Raymond F. v. Ariz. Dep't of Econ. Sec., 224 Ariz. 373, 376, ¶ 13 (App. 2010) (citation omitted). I. Sufficient Evidence Supports Termination of Mother's Parental Rights
¶13 Pursuant to A.R.S. § 8-533(B)(10), the parent-child relationship may be terminated if "the parent has had parental rights to another child terminated within the preceding two years for the same cause and is currently unable to discharge parental responsibilities due to the same cause." This Court has found that "same cause" refers to the same factual cause that led to the termination of parental rights in the first termination. Mary Lou C., 207 Ariz. at 48, ¶ 11. The same statutory grounds for the previous termination do not need to be found. Id. Here, the statutory grounds of the previous termination were abuse and neglect under A.R.S. § 8-533(B)(2). The juvenile court found the statutory grounds to be met based on the factual cause of a history of domestic violence and Mother's and Father's substance abuse issues.
¶14 Mother argues that the cause of the previous termination no longer exists because she is actively engaged in reunification services and her prior issues are in her past and therefore, the juvenile court erred in severing her rights under A.R.S. § 8-533(B)(10). However, Mother tested positive for drugs three times during her pregnancy, one of those times being just weeks before Child was born. The caseworker testified that such behavior could cause Child to be substance-exposed in utero which could lead to various health issues. Additionally, after Child was born Mother again had a positive drug test and had multiple missed tests as well as a diluted test. According to the DCS case manager, missed and diluted tests are considered positive drug tests by DCS.
Mother also argues the juvenile court erred in finding a nexus between the prior abuse or neglect of Older Children to allow for termination of Child pursuant to A.R.S. § 8-533(B)(2); and that her drug abuse problem prevents her from discharging her parental responsibilities under A.R.S. § 8-533(B)(3). However, because we affirm on the prior termination ground we need not address these arguments. Jesus M., 203 Ariz. at 280, ¶ 3 (citations omitted) ("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.").
¶15 Furthermore, the DCS case manager testified that, due to the drug use, DCS was concerned about Mother's ability to meet Child's needs. Because the record contained evidence of Mother's continued drug abuse, the juvenile court could reasonably find that the same factual cause that led to the first termination still existed and that Mother was therefore unable to care for Child. We therefore affirm the termination of Mother's parental rights to Child. II. Sufficient Evidence Supports Termination of Father's Parental Rights
Mother does not argue that the court erred in finding that severance was in the best interest of the Child. Accordingly, we will not address that factor as to Mother.
¶16 Father argues that the juvenile court erred in severing his rights based on a previous termination within the preceding two years under A.R.S. § 8-533(B)(10). Father asserts that the juvenile court terminated his parental rights to Older Children due to domestic violence and incarceration. However, the minute entry from the previous termination states that Father's rights were terminated due to neglecting or failing to protect a child from neglect, so as to cause an unreasonable risk of harm to a child's health and/or welfare. The facts the court relied on in making that judgment included domestic violence and substance abuse. The court found that the "parents have not been fully compliant in addressing their substance abuse issues such that it cannot be said the issue has been remedied." Therefore, substance abuse would be the same factual cause for termination of both the Older Children and Child. See Mary Lou C, 207 Ariz. at 48, ¶ 11.
Father also argues that the juvenile court erred in terminating his rights on the grounds of neglect under A.R.S. § 8-533(B)(2). However, because we affirm on the prior termination ground, we need not address these arguments. Jesus M., 203 Ariz. at 280, ¶ 3 (citations omitted). --------
¶17 Father was incarcerated between August 2015 and February 2016, in part for failing to drug test as a term of his probation. As addressed above, DCS treats missed drug tests as though they were positive. Additionally, Father tested positive for codeine just weeks before the severance hearing. Furthermore, the DCS case manager testified that DCS was concerned about Father's ability to parent Child because of his substance abuse. Because the record supports the finding that Father had not remedied his substance abuse issue, the court did not abuse its discretion in terminating Father's rights based on a prior termination within the preceding two years.
¶18 Additionally, Father argues that he was not given enough time to "prove himself" because the dependency and termination were filed at the same time. Father argues that he was involved with services and working to better himself and therefore the court erred in finding that he was unable to discharge his parental responsibilities. The State is required to demonstrate that it has made reasonable efforts to preserve the family. Vanessa H. v. Ariz. Dep't. of Econ. Sec., 215 Ariz. 252, 255, ¶ 18 (App. 2007) (citation omitted). However, this does not require the State to undertake futile rehabilitative measures. Id. at 256, ¶ 18 (citation omitted). This Court "presumes that the juvenile court made every finding necessary to support the severance order if reasonable evidence supports the order. . . . [W]e may examine the record to determine whether the facts support that implicit finding." Mary Lou C., 207 Ariz. at 50, ¶ 17 (citations omitted).
¶19 Although the juvenile court did not make an express finding that additional time for Father to prove himself was futile, the record supports such a finding. Older Children had been in DCS custody and care for over a year when the parents' rights were terminated as to them. In that time, Father did not prove himself capable of parenting and was not fully engaged in the services offered. DCS' motion to terminate Father's rights to Child occurred just two months after that earlier severance. Therefore, the same evidence relevant to Older Children was relevant here and DCS was not required to allow Father additional time to prove himself when the services provided just months before had proved futile.
¶20 Father also argues that termination was not in the best interest of Child. To show that termination is in the best interest of Child, DCS needed to prove that Child "would derive an affirmative benefit from termination or incur a detriment by continuing in the relationship." Ariz. Dep't of Econ. Sec. v. Oscar O., 209 Ariz. 332, 334, ¶ 6 (App. 2004) (emphasis added) (citations omitted). "The existence of a current adoptive plan is one well-recognized example of such a benefit." Id. (citations omitted).
¶21 The DCS case manager testified that Child was in an adoptive placement and that termination would provide him with stability. The juvenile court found that termination was in the best interest of Child to further the case plan of adoption and to provide Child with a permanent, stable home. Because an adoptive plan is a recognized benefit of termination, the court did not abuse its discretion in deciding termination was in the best interest of Child. Therefore, the evidence supports the termination of the parent-child relationship as being in Child's best interest.
CONCLUSION
¶22 For the foregoing reasons, we find that sufficient evidence supported the juvenile court's decision to terminate parental rights as to both Mother and Father and that termination is in Child's best interest. Therefore, we affirm.