Opinion
No. 1 CA-JV 14-0023
06-26-2014
CORY B., LISA S., Appellants, v. DEPARTMENT OF CHILD SAFETY, J.B., R.B., Z.B., J.B., Appellees.
Robert D. Rosanelli, Attorney at Law, Phoenix By Robert D. Rosanelli Counsel for Appellant Cory B. Jennifer Perkowski, Attorney at Law, Mesa By Jennifer Perkowski Counsel for Appellant Lisa S. Arizona Attorney General's Office, Tucson By Cathleen E. Fuller Counsel for Appellee DCS
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
Appeal from the Superior Court in Maricopa County
No. JD21398
The Honorable Joan Sinclair, Judge
AFFIRMED
COUNSEL
Robert D. Rosanelli, Attorney at Law, Phoenix
By Robert D. Rosanelli
Counsel for Appellant Cory B.
Jennifer Perkowski, Attorney at Law, Mesa
By Jennifer Perkowski
Counsel for Appellant Lisa S.
Arizona Attorney General's Office, Tucson
By Cathleen E. Fuller
Counsel for Appellee DCS
MEMORANDUM DECISION
Judge Peter B. Swann delivered the decision of the Court, in which Presiding Judge John C. Gemmill and Judge Patricia A. Orozco joined. SWANN, Judge:
¶1 Cory B. ("Father") and Lisa S. ("Mother"), married parents of J.B., R.B., Z.B., and J.B. ("the Children"), appeal the juvenile court's order severing their parental rights. We affirm because reasonable evidence supports the severance order.
FACTS AND PROCEDURAL HISTORY
¶2 In late January 2012, Child Protective Services ("CPS") removed the Children from Father and Mother's care based on reports of homelessness, substance abuse, and neglect. Within the next few months, the juvenile court found that the Children were dependent as to Father and Mother, and ordered that the parents receive reunification services.
¶3 In May 2013, on motion by the Arizona Department of Economic Security ("DES"), the court changed the Children's case plan to severance and adoption. DES thereafter filed a written motion to sever Father's parental relationship with the Children under A.R.S. § 8-533(B)(3) and (B)(8)(c), and to sever Mother's parental relationship with the Children under A.R.S. § 8-533(B)(8)(c). In December 2013, the matter proceeded to a two-day evidentiary hearing.
¶4 The evidence presented at the severance hearing established the following. After the Children were removed from Father and Mother's care, DES offered the couple a variety of reunification services. Both parents were offered psychological evaluations, parent-aide services, parenting classes, supervised visitation, housing assistance, and drug testing. In addition, Father was offered substance-abuse treatment.
¶5 Mother successfully completed drug testing with all negative results. Father, however, tested positive for methamphetamines and alcohol on several occasions, and on several other occasions failed to submit samples for testing. Father denied excessive alcohol use but admitted that he had started using methamphetamine sometime between 2003 and 2005, had been convicted for a felony related to that drug, and had used it "probably monthly." He claimed that he had last used methamphetamine in July or August 2013, but he missed several urinalysis tests in October 2013 and at the time of the December 2013 hearing had not completed any substance-abuse treatment program despite two referrals.
¶6 Mother had at one point informed the CPS case manager that she had separated from Father based on his methamphetamine use, but she reunited with him after a short period. And though she testified at the severance hearing that she would leave Father if forced to choose between him and the Children, she also testified that she did not believe Father had a substance-abuse problem and had never seen him drunk or high.
¶7 Mother maintained consistent full-time employment until July 2013, when she quit her job because she felt unable to balance it with her reunification services. Father worked temporary jobs before securing full-time employment as a mover in June 2013. Both parents participated in supervised visits with the Children, though they failed to provide nutritious snacks for the Children at the visits and had difficulty controlling and disciplining them. Neither parent attended any one-on-one parent-aide sessions, and they attended parenting classes only sporadically.
¶8 The CPS case manager testified that the Children were thriving in foster care and were adoptable. She further testified that one of the Children was in an adoptive placement and a potential adoptive placement had been identified for another of the Children.
¶9 The juvenile court found that DES had proven the grounds alleged for severance and that severance was in the Children's best interests. The court therefore severed Father and Mother's parental relationships with the Children. Both Father and Mother timely appeal.
DISCUSSION
¶10 Father and Mother contend that DES failed to present sufficient evidence to support severance of their respective parental rights. We conclude that reasonable evidence supported both severances.
¶11 To sever a parent-child relationship, the juvenile court must find by clear and convincing evidence that at least one of the grounds set forth in A.R.S. § 8-533(B) exists, and must find by a preponderance of the evidence that severance is in the child's best interests. Kent K. v. Bobby M., 210 Ariz. 279, 288, ¶ 41, 110 P.3d 1013, 1022 (2005); Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, 249, ¶ 12, 995 P.2d 682, 685 (2000). We accept the court's findings of fact unless they are not supported by any reasonable evidence, and we will affirm the severance order unless it is clearly erroneous. Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, 280, ¶ 4, 53 P.3d 203, 205 (App. 2002). I. REASONABLE EVIDENCE SUPPORTS THE JUVENILE COURT'S FINDINGS IN SUPPORT OF SEVERANCE OF FATHER'S PARENTAL RIGHTS.
A. Reasonable Evidence Supports the Juvenile Court's Finding that Severance of Father's Parental Rights Was Warranted Under A.R.S. § 8-533(B)(3).
¶12 Father's parental rights were severed under A.R.S. § 8-533(B)(3) and (B)(8)(c). Under § 8-533(B)(3), DES was required to prove that Father was unable to discharge parental responsibilities because of a history of chronic abuse of dangerous drugs or controlled substances, and that there were reasonable grounds to believe that the condition would continue for a prolonged indeterminate period. DES was also required to show that it had made reasonable efforts to provide reunification services to Father 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). The evidence was sufficient to satisfy this burden of proof. By Father's own admission, he had used methamphetamine on a regular basis for some eight to ten years. After the Children were removed from his care, he tested positive for methamphetamines on several occasions, missed several urinalysis tests, and failed to complete substance-abuse treatment despite being given multiple opportunities to do so.
¶13 Father contends that "there is no evidence in the record that [he] continues to abuse drugs and no evidence that any such condition would now prevent him from discharging his parental responsibilities." The record indicates, however, that Father missed several urinalysis tests only months before the severance hearing. Moreover, even if Father had maintained sobriety for the four or five months before the hearing, as he claimed, the court had discretion to consider his current sobriety in view of his consistent inability to abstain from drug use and complete substance-abuse treatment over the 23 months for which the Children had been removed from his care. See Raymond F. v. Ariz. Dep't of Econ. Sec., 224 Ariz. 373, 378-79, ¶¶ 24-29, 231 P.3d 377, 382-83 (App. 2010). Reasonable evidence supports the court's finding that severance was warranted under A.R.S. § 8-533(B)(3). Because only one statutory ground was required to support the severance order, we need not address whether the evidence also supports severance under § 8-533(B)(8)(c). See Jesus M., 203 Ariz. at 280, ¶ 3, 53 P.3d at 205.
B. Reasonable Evidence Supports the Juvenile Court's Finding that Severance of Father's Parental Rights Was in the Children's Best Interests.
¶14 In considering whether severance of parental rights is in a child's best interests, the court is required to determine "how the child would benefit from a severance or be harmed by the continuation of the relationship," Maricopa Cnty. Juv. Action No. JS-500274, 167 Ariz. 1, 5, 804 P.2d 730, 734 (1990), by balancing the totality of the evidence, Maricopa Cnty. Juv. Action No. JS-9104, 183 Ariz. 455, 461, 904 P.2d 1279, 1285 (App. 1995), abrogated on other grounds by Kent K., 210 Ariz. 279, 110 P.3d 1013. One relevant factor to the best-interests determination is whether the child would be at risk of abuse or neglect if placed in the parent's care. Christina G. v. Ariz. Dep't of Econ. Sec., 227 Ariz. 231, 238, ¶ 27, 256 P.3d 628, 635 (App. 2011); Linda V. v. Ariz. Dep't of Econ. Sec., 211 Ariz. 76, 80, ¶ 17, 117 P.3d 795, 799 (App. 2005). Other relevant factors include (but are not limited to) whether an adoptive placement is immediately available, whether the existing placement is meeting the child's needs, and whether the child is adoptable. Raymond F., 224 Ariz. at 379, ¶ 30, 231 P.3d at 383.
¶15 DES presented evidence that the Children had been in out-of-home placement for nearly two years and that during this time Father had failed to demonstrate a consistent recovery from substance abuse and had failed to complete reunification services designed to enable him to maintain sobriety and effectively parent the Children. DES also presented evidence that the Children were thriving in foster care, that they were adoptable, that one of them was in an adoptive placement, and that a potential adoptive placement had been identified for another of them. The court reasonably concluded that severance of Father's parental rights was in the Children's best interests. II. REASONABLE EVIDENCE SUPPORTS THE JUVENILE COURT'S FINDINGS IN SUPPORT OF SEVERANCE OF MOTHER'S PARENTAL RIGHTS.
A. Reasonable Evidence Supports the Juvenile Court's Finding that Severance of Mother's Parental Rights Was Warranted Under A.R.S. § 8-533(B)(8)(c).
¶16 Mother's parental rights were severed under A.R.S. § 8-533(B)(8)(c). Under § 8-533(B)(8)(c), DES was required to prove that the Children had been in out-of-home placement for 15 months or longer pursuant to court order, that DES had made a diligent effort to provide appropriate reunification services to Mother, that Mother had been unable to remedy the circumstances that caused the Children to be in out-of-home placement, and that there was a substantial likelihood that Mother would not be capable of exercising proper and effective parental care and control in the near future. The evidence was sufficient to satisfy this burden of proof. The evidence showed that the Children had been in foster care for well over 15 months and that during that time Mother was offered a variety of services designed to enable her to meet the Children's needs, but she failed to participate in several of the services. The evidence also showed that Mother was voluntarily unemployed, was dependent on Father for support, and denied Father's substance abuse.
¶17 Mother contends that the CPS case manager's testimony "made clear . . . that one of the conditions of Mother's successful reunification was to separate from Father, but that condition was not communicated to Mother" and she was not provided separation services, which "set [her] up for severance." The record shows, however, that DES did not require Mother to separate from Father. Accordingly, no separation services were required. What the case manager actually testified to was that Mother's decision to continue her relationship with a chronic drug user raised concerns about her ability to provide the Children with a safe and stable home -- a relevant consideration with respect to both § 8-533(B)(8)(c) and the best-interests inquiry. Based on this consideration, Mother's failure to participate in parent-aide services and parenting classes, and her decision to forgo employment, the court reasonably concluded that Mother had failed to remedy her inability to meet the Children's needs and was not likely to be capable of exercising proper and effective parental care and control in the near future. Severance under § 8-533(B)(8)(c) was thus appropriate.
B. Reasonable Evidence Supports the Juvenile Court's Finding that Severance of Mother's Parental Rights Was in the Children's Best Interests.
¶18 Mother contends that severance was not in the Children's best interests because the Children love her and there is no guarantee that they will be placed in suitable adoptive homes. To be sure, the child-parent bond and the uncertainty inherent in the foster- and adoptive-care systems are relevant to the best-interests inquiry. It was not error, however, for the court to conclude that severance was in the Children's best interests after weighing these factors against the evidence of the Children's adoptability, Mother's refusal to participate in parenting services, and Mother's denial of her partner's drug use. See JS-9104, 183 Ariz. at 461, 904 P.2d at 1285.
CONCLUSION
¶19 For the reasons set forth above, we affirm the juvenile court's order severing Father and Mother's parental relationships with the Children.