Opinion
1 CA-JV 21-0270
04-07-2022
DON L., Appellant, v. DEPARTMENT OF CHILD SAFETY, A.J., D.L., Appellees.
David W. Bell Attorney at Law, Higley By David W. Bell Counsel for Appellant Arizona Attorney General's Office, Tucson By James William Rappaport Counsel for Appellees
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County No. JD37943 The Honorable Lori Bustamante, Judge
David W. Bell Attorney at Law, Higley By David W. Bell Counsel for Appellant
Arizona Attorney General's Office, Tucson By James William Rappaport Counsel for Appellees
Judge James B. Morse Jr. delivered the decision of the Court, in which Presiding Judge Jennifer B. Campbell and Judge Randall M. Howe joined.
MEMORANDUM DECISION
MORSE, JUDGE:
¶1 Don L. ("Father") appeals the superior court's order terminating his parental rights to his child. For the following reasons, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 Father and Jazmyn J. ("Mother") are the parents of D.L. Mother tested positive for marijuana three times while pregnant with D.L.'s older half-sibling, A.J., who was born substance-exposed to marijuana. The court adjudicated A.J. dependent, but eventually returned the child to Mother's care.
¶3 About two years later, the Department of Child Safety ("DCS") received reports that Mother and Father were neglecting A.J. Soon afterwards, DCS learned that during her pregnancy with D.L., Mother had tested positive three times for various substances, including marijuana, opiates, and methamphetamine, and D.L. was born substance-exposed to marijuana and amphetamine. Additionally, at the time of D.L.'s birth, Mother exhibited erratic behavior in the hospital, including pretending "to code" (common slang for a cardiac arrest) until hospital staff tried to intubate her. Finally, the parents lacked stable housing.
¶4 DCS interviewed Mother, who claimed D.L.'s positive amphetamine test was caused by her pain-management medications. But Mother did not respond to DCS's request for a list of her medications. Moreover, DCS learned that Mother's past providers had counseled her about abusing the medications. DCS offered Mother an opportunity to submit a urinalysis sample to determine if her medications were causing a positive result for amphetamines. She tested positive for only opioids and marijuana.
¶5 When DCS interviewed Father, he expressed no concerns about Mother's use of multiple substances while pregnant with D.L. He also denied that Mother was abusing illegal drugs or medications, even after learning about the past concerns expressed by Mother's doctors. Father also denied abusing any substances and an initial drug test came back with negative results for elicit substances.
¶6 After the investigation, DCS took custody of D.L. and A.J. And petitioned for a dependency. Father did not contest the dependency petition, and the court adjudicated D.L. dependent.
Because Mother is no longer a party to this appeal, and Father is not A.J.'s legal father, we do not address any additional facts relating to A.J.
¶7 Meanwhile, DCS referred Father for substance-abuse testing and treatment and a parent aide to assist with visitation. Father knew that any missed drug tests would be considered a positive result by DCS. Although Father submitted some negative tests, he was inconsistent in engaging in testing overall and missed several opportunities to test, including a three-month span during which he did not test at all. Additionally, Father refused to complete a hair-follicle test. He also failed to engage in substance-abuse treatment, though his treatment provider recommended he participate in a standard outpatient program.
Although the DCS case manager testified that individual counseling was required as part of Father's case plan, DCS provided no evidence that the case manager relayed this requirement to Father either personally or through a service letter. Nor did DCS allege in its termination motion that it was a service he received. Regardless, the superior court did not consider Father's participation or non-participation in counseling in its final order, so this Court also will not consider it as a factor.
¶8 DCS referred Father for substance-abuse treatment a second time, but the provider did not recommend he receive any further treatment. Nonetheless, the next month he tested positive for marijuana before he obtained a medical marijuana card and before recreational marijuana use became legal. Father then refused to submit to drug testing for the remaining ten months of the dependency.
¶9 Father failed to participate fully in the parent-aide service and visitation. For the first half of the dependency, Father cancelled or missed several visits. DCS then referred Father for parent-aide services but terminated the service due to his inconsistent participation. DCS referred Father for a second parent-aide service, but he attended less than half the skill sessions and failed to meet all but one of the program goals.
¶10 About two years after petitioning for the dependency, DCS moved to terminate Father's parental rights under the nine-month out-of-home placement ground. After a two-day termination hearing, the superior court terminated Father's parental rights. Father appealed. We have jurisdiction under A.R.S. § 8-235.
DISCUSSION
¶11 According to Father, the superior court abused its discretion by finding that he substantially neglected or willfully refused to remedy the circumstances causing his child's out-of-home placement. A parent's right to custody and control of his own child, while fundamental, is not absolute. Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, 248-49, ¶¶ 11-12 (2000). Severance of a parental relationship may be warranted where the State proves one statutory ground under A.R.S. § 8-533 by "clear and convincing evidence." Id. "Clear and convincing" means the grounds for termination are "highly probable or reasonably certain." Kent K. v. Bobby M., 210 Ariz. 279, 284-85, ¶ 25 (2005). The court must also find that severance is in the child's best interest by a preponderance of the evidence. Id. at 285, ¶ 29.
¶12 This Court "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). 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).
¶13 The superior court may terminate a parent's rights if "[t]he child has been in an out-of-home placement for a cumulative total period of nine months or longer pursuant to court order," DCS made diligent reunification efforts, but nonetheless, "the parent has substantially neglected or wilfully refused to remedy the circumstances that cause the child to be in an out-of-home placement." A.R.S. § 8-533(B)(8)(a). This ground focuses on the "level of the parent's effort to cure the circumstances rather than the parent's success in actually doing so." Mariana P. v. Ariz. Dep't of Econ. Sec., 214 Ariz. 326, 329, ¶ 20 (App. 2007).
¶14 Father first argues the superior court conflated the legal standards set forth in the fifteen-month termination ground and the nine-month ground. Although the superior court specifically differentiated between the two grounds in its termination order, Father asserts the court "improperly factored in the length of time . . . that the case had been open as support for the nine month" ground, and by doing so, the court "was essentially bootstrapping the fifteen month[] time in care findings into its [termination] decision." Father's assertion is not persuasive. The nine-month ground requires a child to be in an out-of-home placement for "nine months or longer." A.R.S. § 8-533(B)(8)(a). The court specifically noted this requirement, and within that context, found D.L. had been in an out-of-home placement for a "period exceed[ing] the nine months contemplated by statute" and only then found D.L. has "been in out of home care for two years." There is no indication that the court misapplied the statute.
¶15 Second, Father argues that the superior court improperly considered irrelevant evidence-his failure to drug test consistently-because DCS had not alleged substance abuse as a specific ground for termination. See A.R.S. § 8-533(B)(3). Nothing prevents the superior court from considering evidence about substance-abuse testing if it is relevant to the "circumstances" causing a child's "out-of-home placement." A.R.S. § 8-533(B)(8)(a). Nor is DCS required to allege a particular termination ground as each is synonymous with parental unfitness. See Alma S. v Dep't of Child Safety, 245 Ariz. 146, 150, ¶ 9 (2018).
¶16 Moreover, substance abuse was a main issue in the case and the very reason for D.L.'s out-of-home placement. See Yauch v. S. Pacific Transp. Co., 198 Ariz. 394, 401-02, ¶ 19 (App. 2000) ("[Evidence is relevant if it 'relates to a consequential fact' that is placed in issue by 'the pleadings and the substantive law' and if it 'alter[s] the probability, not prove[s] or disprove[s] the existence, of a consequential fact.'" (citations omitted)). Father denied that Mother's substance abuse was a problem and took no protective action despite Mother's multiple positive tests for controlled substances during her pregnancy and at D.L.'s birth. Father suggests that his own substance abuse was not relevant because his substance-abuse-treatment provider did not recommend he participate in further treatment during his second referral. Yet, he disregards his initial recommendation for substance-abuse treatment, which he did not complete. Additionally, although Father repeatedly claimed he did not use drugs, he tested positive for marijuana a year into the dependency and then stopped drug testing altogether. Evidence of Father's drug testing was therefore relevant to the termination issue.
¶17 Third, Father argues the superior court disregarded the fact that his surgery early in the dependency made it difficult for him to comply with services. The court's order belies his contention. The court thoroughly reviewed the reasons Father gave for failing to drug test or attend visitation and recognized he "had some legitimate issues" affecting his ability to participate, but ultimately determined his "excuses are overflowing and diminish [his] credibility." As the court found, the record reflects Father gave numerous excuses about why he could not attend visits that were not related to Father's initial medical issue.
¶18 Fourth, Father contends the superior court ignored his repeated attempts to communicate with DCS and the parent aide regarding visitation scheduling issues. Contrary to his argument, the records show the parent aide accommodated Father's work schedule by offering weekend visits. The parent aide also tried to accommodate the parents' several late requests to reschedule visits for reasons other than work.
¶19 Finally, Father argues the superior court erred in finding he had substantially neglected or willfully refused to remedy the circumstances causing D.L.'s out-of-home placement. Specifically, Father claims that because he participated in substance-abuse and parent-aide services, albeit inconsistently, he did not substantially neglect or willfully refuse to comply with services. Under the nine-month ground, however," [termination is not limited to those who have completely neglected or willfully refused to remedy [the] circumstances," and may apply when a parent "makes only sporadic, aborted attempts to remedy" such circumstances. In re Maricopa Cnty. Juv. Action No. JS-501568, 177 Ariz. 571, 576-77 (App. 1994).
¶20 Here, Father made sporadic, aborted attempts to remedy the circumstances causing D.L.'s out-of-home placement. The Department's case plan required him to provide a home free of substance abuse, recognize the dangers that can result from exposing D.L. to substance abuse, and demonstrate preparedness and attachment by attending visitation regularly with necessary supplies.
¶21 Despite these goals, Father failed to meaningfully participate in drug testing or visitation. Nor did he meet his parenting goals or successfully complete the parent-aide service. Indeed, the superior court found the parent-aide records replete with the parents' excuses why they could not attend or appear on time for visits, and reasonable evidence in the record supports this finding. Finally, Father failed to recognize how Mother's substance abuse impairs her ability to parent D.L. and places him at risk of harm.
¶22 Although Father asserts the court did not give enough consideration to his achievement of stable housing and employment and the positive parent-aide notes, his assertion is a request to reweigh the evidence, which this Court will not do. Jesus M., 203 Ariz. at 282, ¶ 12.
¶23 Overall, reasonable evidence supports the superior court's finding that Father substantially neglected or willfully refused to remedy the circumstances causing D.L.'s out-of-home placement.
CONCLUSION
¶24 For the foregoing reasons, we affirm.