Opinion
No. 1 CA-JV 18-0361
05-21-2019
AUDREY S., Appellant, v. DEPARTMENT OF CHILD SAFETY, J.S., Appellees.
COUNSEL John L. Popilek, PC, Scottsdale By John L. Popilek Counsel for Appellant Arizona Attorney General's Office, Mesa 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. JD29706
The Honorable Nicolas B. Hoskins, Judge Pro Tempore
AFFIRMED
COUNSEL John L. Popilek, PC, Scottsdale
By John L. Popilek
Counsel for Appellant Arizona Attorney General's Office, Mesa
By Laurie Blevins
Counsel for Appellee Department of Child Safety
MEMORANDUM DECISION
Judge Peter B. Swann delivered the decision of the court, in which Presiding Judge James B. Morse Jr. and Judge Jon W. Thompson joined. SWANN, Judge:
¶1 In this appeal from an order terminating parental rights, Audrey S. ("Mother") argues that the Department of Child Safety did not prove, by clear and convincing evidence, the fifteen months' time-in-care ground for severance. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Mother is the biological parent of J.S., born December 2010; Z.S., born August 2013; I.M., born September 2014; and A.M., born February 2017 (collectively, "Children"). Her parental rights as to J.S., I.M., and A.M. have been terminated, and Z.S. was returned to her father's custody. Mother only appeals her termination of parental rights as to J.S.
J.S.'s putative father did not complete paternity testing nor respond to contact attempts from the Department of Child Safety. He is not a party to this appeal.
¶3 The Department received a report in September 2014 that Mother and I.M. both tested positive for tetrahydrocannabinol ("THC") at I.M.'s birth, and that Mother and maternal grandmother ("Grandmother") had been using illegal drugs in the same home as J.S. and Z.S. The Department offered Mother in-home services, but Mother failed to participate in the recommended substance-abuse treatment or address the family's potential lack of housing, and she continued to leave J.S., Z.S., and I.M. with Grandmother even after safety concerns were identified.
¶4 J.S. was diagnosed with encephalopathy (brain injuries), epilepsy, and a learning disability. He has petite mal seizures, which require medication. Therefore, he is a special-needs child.
¶5 In January 2015, the Department removed J.S., Z.S., and I.M. from Mother's custody, placing J.S. in a foster home trained in the care of special-needs children, and filed a petition for dependency. The court found J.S., Z.S., and I.M. dependent as to Mother. The Department offered Mother reunification services, including individual counseling, behavioral-health assessment and treatment, substance-abuse assessment and treatment, case-management services, and psychological evaluation. Mother participated in some of these services, such as the TERROS out-patient program, parent-aide services, and parenting-skills sessions.
¶6 In March 2015, Mother underwent a psychological evaluation by Dr. Len Sarff and was diagnosed with depression, anxiety, alcohol use disorder, and cannabis use disorder. Dr. Sarff expressed concern for Mother's ability to parent her children independently, because she allowed Grandmother to supervise J.S., Z.S., and I.M., and Grandmother refused to stop using drugs. Dr. Sarff also concluded that Mother made herself "inaccessible to growth opportunities" and that "[h]er strategy has fostered a vicious cycle of increased helplessness, depression, and dependency." Though he pointed out several issues, Dr. Sarff concluded that there was a fair probability that Mother would be able to effectively parent J.S., Z.S., and I.M. if she participated in therapy, demonstrated that she was free from drugs, and participated in child-development classes.
¶7 Mother began drug testing and had consistently negative screens until she tested positive for THC in August 2015 and then had three more positive tests. She moved to Nevada in June 2016, moved back to Arizona in July, and was homeless at that time. Though Mother was re-referred to TERROS when she came back to Arizona, she was denied graduation in November 2016 for not actively engaging in services. Mother claims she missed several group sessions because she did not have transportation.
¶8 In July 2016, Mother was evaluated by another psychologist, Dr. Joseph Bluth. When he saw her again in October, Dr. Bluth concluded that Mother had problems maintaining stability in her life, that it was unlikely she would be able to parent in the near future, that her unstable conditions are likely to continue for a prolonged time, and that she does not view J.S. as having any special needs.
¶9 In December 2016, while pregnant with A.M., Mother had a positive drug screen for benzodiazepines but had no prescription for that type of medication. On January 31, 2017, the Department moved to terminate Mother's parental rights as to J.S. and I.M., alleging chronic substance abuse, nine- and fifteen-months' out-of-home placement, and six months' out-of-home placement as to I.M. The court dismissed Z.S. from the proceedings and returned her to her father's custody. Mother gave birth to A.M. in February 2017 and the Department filed a dependency petition alleging that Mother was unable to provide proper parental care to A.M. based on her inability to remedy the circumstances that brought J.S. and I.M. into care, as well as mental-health and substance-abuse concerns.
¶10 Mother again had the opportunity to attend group counseling, but she did so only sporadically and remained homeless. She was arrested in Utah for possession of marijuana in spring 2017. At the end of May 2017, she moved to Montana, where she moved within the state four times by August 2017.
¶11 The court held a combined severance trial for J.S. and I.M. and a dependency trial for A.M. in July 2017, at which Mother appeared telephonically. The court terminated her rights to I.M. on the fifteen-months-in-care ground and found A.M. dependent.
¶12 With respect to J.S., the court found that the Department failed to prove that termination of Mother's parental rights was in his best interests, declining to make specific findings regarding the grounds for severance and instead finding that he had no permanency option available in his current placement.
¶13 After trial, Mother, who still lived in Montana, was "either homeless or traveling with a carnival, with a trucker or living with people who she would not identify for brief periods before moving on to another situation." She was rumored to be in Idaho or Nevada, and relatives indicated she might be in Florida. Mother occasionally visited with J.S. by Skype and once visited J.S. in person when passing through Phoenix.
¶14 In February 2018, Mother moved back to Bullhead City, where she lived with her brother ("Brother"). Grandmother soon joined, and the three lived together in a trailer. According to Mother, she was sleeping on the floor and had a "tumultuous relationship with both [Grandmother] and her brother," sometimes getting "kicked [ ] out for no reason." Mother reported moving in with a co-worker in July 2018, only to return to Brother's trailer a week later due to issues with her roommate.
¶15 Mother did not believe that she had caused any harm to the Children, and she asserted that she did not need any services. Though she was offered specialized trauma therapy, she completed only a few sessions and did not acknowledge that her drug issues or troubled upbringing had negatively impacted her parenting abilities. She did not recognize that J.S. had special medical needs and claimed that he had no mental-health or medical conditions prior to the Department's involvement and was unsure whether he had been diagnosed with any conditions, even though he had.
¶16 In April 2018, Department moved J.S. to a new adoptive placement and motioned the court to change the case plan from reunification to severance and adoption. Based on Mother's refusal to remedy the circumstances that placed the Children into care, the Department again moved to sever Mother's parental rights to J.S. on the grounds of nine and fifteen months' out-of-home placement as well as prior termination.
¶17 In June 2018, Mother's therapy sessions were terminated "due to her lack of commitment as well as lack of participation in sessions and her motivation to make the changes necessary to meet the goals set forth by [the Department]."
¶18 The court held a severance trial in August 2018, where J.S.'s licensed foster-care worker testified that J.S.'s epilepsy caused him to have approximately 100 seizures per day. She testified that J.S.'s seizures manifest in the form of eye flutters, require daily medication, and, due to his autism and seizure disorder, put him at risk of "biting [his] tongue, of falling and hitting [his] head, [and] of having difficulties in the community." J.S. therefore requires constant supervision, "extreme consistency," and a structured environment.
¶19 Mother testified that she was living in Brother's trailer, was planning to live in her own trailer once she decided where to park it, and worked at a casino six days a week during the graveyard shift. Mother engaged in visitation with J.S. twice per month, though she once missed a visit because she failed to contact the case manager in time due to oversleeping.
¶20 The court found that the Department did not prove the nine months' time-in-care ground because Mother did participate in services, albeit inconsistently, and her participation was "not so poor as to warrant severance on this ground." The court did find, however, that the Department proved the fifteen months' time-in-care ground (A.R.S. § 8-533(B)(8)(c)) and the prior-termination ground (A.R.S. § 8-533(B)(10)) because J.S. had been in care for approximately 44 months, Mother remained highly unstable, and she did not show that she could meet J.S.'s special needs. The court found that termination of parental rights would be in J.S.'s best interests because he had been placed in a potential adoptive placement that is trained in and understands his special needs. The court severed Mother's parental rights as to J.S.
¶21 Mother appeals.
DISCUSSION
¶22 Termination of parental rights requires clear and convincing evidence of a statutory ground set out in A.R.S. § 8-533(B), Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, 249, ¶ 12 (2000), and proof by a preponderance of the evidence that termination is in the best interests of the child, Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 22 (2005). The juvenile court is in the best position to "weigh the evidence, judge the credibility of the parties, observe the parties, and make appropriate factual findings." In re Pima Cty. Dependency Action No. 93511, 154 Ariz. 543, 546 (App. 1987). We review a severance ruling for an abuse of discretion and defer to the court's credibility determinations and factual findings. Mary Lou C. v. Ariz. Dep't of Econ. Sec., 207 Ariz. 43, 47, ¶ 8 (App. 2004). We will not reweigh the evidence, but will only determine if evidence exists to support the court's ruling. Id.
¶23 Mother contends that the court erred because its findings under A.R.S. § 8-533(B)(8)(c) and (B)(10) are not supported by the evidence.
Mother does not challenge best interests. Therefore, we do not address the court's best-interests finding. See Michael J., 196 Ariz. at 249, ¶ 13.
¶24 Under A.R.S. § 8-533(B)(8)(c), a court may terminate parental rights when the child has been in an out-of-home placement for a cumulative period of fifteen months or longer, the Department has made a diligent effort to provide appropriate reunification services, the parent has been unable to remedy the circumstances that cause the child to be in an out-of-home placement, and there is a substantial likelihood that the parent will not be capable of exercising proper and effective parental care in the near future.
¶25 J.S. was in an out-of-home placement for approximately 44 months, which exceeds the fifteen-month requirement under A.R.S. § 8-533(B)(8)(c). The Department also made a diligent effort to reunite Mother with J.S. by providing her with psychological evaluations, referrals for trauma therapy, and visits with J.S., in which Mother only sometimes participated.
¶26 Mother contends that she has achieved stability because she has "sworn off [unhealthy] relationships," lives a "stable life" in Bullhead City, obtained employment, and made arrangements to purchase a trailer as a permanent residence. She contends that the court failed to consider the evidence of a significant psychological breakthrough that propelled those positive lifestyle changes.
¶27 There was sufficient evidence for the court to reasonably conclude that Mother's history of chronic homelessness and instability showed that she was unable to remedy the circumstances that caused J.S. to be placed into care. Mother lived in over 20 different places after the case commenced and reported moving around frequently, sometimes week-to-week. Though Mother contended that she planned to move into a trailer on her own, the court concluded that this possibility was "too speculative" based on her history over the previous 44 months. The court also concluded that Mother's three-month employment, though positive, was "insufficient 44 months into the case." This conclusion was reasonable based on Mother's inconsistent employment throughout the duration of the case.
¶28 Mother also contends that she had a "psychological breakthrough" where she decided to no longer engage in romantic relationships because they were unhealthy. Though her decision to escape unhealthy relationships is laudable, Mother repeatedly refused to address other aspects of her psychological well-being by denying that her behavior affected the Children in any way, discontinuing treatment, and declining further mental-health services. The court reasonably concluded that Mother had not remedied mental-health circumstances that placed J.S. into care.
¶29 Mother's failure to achieve stable housing or employment over the course of the dependency also demonstrated that she was unlikely to exercise proper and effective parental care in the near future. Especially with regard to J.S.'s special needs, Mother's instability and lack of understanding of his disability show that she is unlikely to provide a stable environment.
¶30 The Department has proved, by clear and convincing evidence, that J.S. was in an out-of-home placement for more than fifteen months, that the Department provided appropriate reunification services, and that Mother was unlikely to exercise proper parental care in the future because she did not remedy the circumstances that put J.S. into care. Therefore, we find no error in the court's determination that severance was warranted under A.R.S. § 8-533(B)(8)(c).
We therefore do not address whether the evidence also supported severance under § 8-533(B)(10). See Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, 280, ¶ 3 (App. 2002) ("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."). --------
CONCLUSION
¶31 Because reasonable evidence supported the court's order severing Mother's parental rights to J.S., we affirm.