Opinion
No. 1 CA-JV 18-0441
05-02-2019
GERARDO L., Appellant, v. DEPARTMENT OF CHILD SAFETY, L.L., J.L., Appellees.
COUNSEL David W. Bell Attorney at Law, Higley By David W. Bell Counsel for Appellant Arizona Attorney General's Office, Tucson By Autumn Spritzer 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. JD30716
The Honorable Randall H. Warner, Judge
AFFIRMED
COUNSEL David W. Bell Attorney at Law, Higley
By David W. Bell
Counsel for Appellant Arizona Attorney General's Office, Tucson
By Autumn Spritzer
Counsel for Appellee Department of Child Safety
MEMORANDUM DECISION
Judge Randall M. Howe delivered the decision of the Court, in which Presiding Judge Paul J. McMurdie and Judge Jennifer B. Campbell joined. HOWE, Judge:
¶1 Gerardo L. ("Father") appeals the juvenile court's order terminating his parental rights to his children, L.L. and J.L. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 In June 2015, Shastina S. ("Mother") gave birth to L.L. Although Father had been living with Mother before L.L.'s birth, he was not L.L.'s biological father. Father nevertheless considered himself L.L.'s father. Because Mother and L.L. both tested positive for methamphetamine, the Department of Child Safety removed L.L., petitioned for dependency, and provided reunification services to Mother and Father. The Department dismissed Father from the dependency in April 2016 after it learned that he was not L.L.'s biological father. Father continued to participate in services with Mother, however, until the Department dismissed the dependency in July 2016.
¶3 Around that time, Mother became pregnant by Father with J.L. Mother gave birth to J.L. in December 2016, and they both tested positive for methamphetamine. At that time, Mother and Father had been using methamphetamine "all the time." The Department removed the children, petitioned for a second dependency, and provided reunification services that included supervised visitation, parenting classes, parent-aide services, and substance-abuse testing and treatment. Father and Mother participated in services and the Department dismissed the second dependency in January 2018.
¶4 Within a month of the dismissal, Father and Mother again used methamphetamine. In March 2018, the Department received a hotline report that Mother was using methamphetamine while parenting the children. The Department asked Mother to take a drug test, and she tested positive for methamphetamine. As a result, the Department removed both children and petitioned for a third dependency, alleging that the parents were using methamphetamine and failed to care for their children adequately. Again, Father and Mother received reunification services, including supervised visitation and substance-abuse testing and treatment. In April and May 2018, Father's urinalyses were negative for methamphetamine. After taking a hair-follicle test later in May, however, Father tested positive for methamphetamine and amphetamine. The Department moved to terminate Father's and Mother's parental rights in June 2018 under the grounds of chronic substance abuse and prior removal under A.R.S. § 8-533(B)(3) and (B)(11).
¶5 Leading up to the termination hearing, Father cooperated with substance-abuse testing and treatment and completed his outpatient substance-abuse treatment. After the hair-follicle test, Father's urinalyses were all negative for methamphetamine. He also regularly attended Alcoholics Anonymous ("AA") meetings to maintain his sobriety. Father established that he had employment and a home for the children. Mother, however, unsuccessfully attempted inpatient drug treatment two separate times and continued to use methamphetamine until July 2018.
¶6 At the termination hearing in October 2018, a Department case specialist testified that Mother could maintain her sobriety only for short periods before relapsing. She also testified that the Department's main concern with Father was his failure to protect the children from Mother's substance abuse. She further noted that Father relied on Mother to be the primary caretaker for the children while he worked and provided for the family. The case specialist opined that termination of Father's parental rights would be in the children's best interests because it would lead to a permanent and stable home free of substance abuse. She also stated that the children were in an adoptive placement willing to adopt them and that a new adoptive placement could be found if needed.
¶7 Father testified that he had issues with alcohol and methamphetamine abuse but had stopped using both, stopped associating with friends that enabled his substance abuse, and attended AA meetings to maintain his sobriety. Regarding parental duties, Father testified that Mother provided the majority of the caretaking responsibilities because he generally worked 12-hour days five to six days a week and attended 2-hour AA meetings three to four times a week. Despite Mother's methamphetamine use while caring for the children, Father testified that he believed the children were safe in her care. He also testified that while Mother was pregnant with J.L., he suspected that Mother had started using methamphetamine again. He explained that he did not confront Mother about her substance abuse because he "wasn't sure[,]" and he did not have any concerns about J.L. during the pregnancy or L.L. being in Mother's care while she was using methamphetamine. He also acknowledged that Mother had been using methamphetamine as late as June 2018—the termination petition's filing date. After acknowledging that he was still living with Mother, counsel asked Father to share his plan to prevent Mother from relapsing. Father did not provide a plan, however, and replied only that he had "seen some changes [i]n her[;] she's trying to change more."
¶8 After trial, the court found that the Department had not proved that Father was unable to discharge his parental responsibilities under the chronic substance-abuse ground. It did find, however, that sufficient evidence was presented to terminate Father's parental rights under the prior-removal ground. It found that the children had been removed in a prior dependency and were returned after the dependency was dismissed, but then they were removed again within only a few months. Also, the court found that the Department had made diligent efforts to provide appropriate reunification services. Further, the court determined that Father was unable to discharge his parental responsibilities for two reasons: (1) he would not protect the children from Mother's substance abuse and (2) he had a high risk of relapsing based on his drug history.
¶9 The court determined that terminating Father's parental rights would be in the children's best interests. It found that continuing his parental rights would harm the children because he and Mother would remain sober only when the Department was involved in their lives and that neither parent could provide adequate care for the children while using methamphetamine. Also, the court determined that the "back-and-forth pattern of recovery and relapse" was traumatizing the children. It further found that the children would benefit from terminating Father's parental rights because the children would be freed for adoption and were already living in a placement meeting their needs and willing to adopt. The court terminated Father's parental rights. Father timely appealed.
Although the record does not show that Father formally established parental rights to L.L., the Department requested the termination of his parental rights to L.L, which the court granted. The court also terminated Mother's parental rights and the parental rights of John Doe, L.L.'s biological father. Neither Mother nor John Doe is a party in this appeal. --------
DISCUSSION
¶10 Father argues that because the juvenile court found that the Department had not proved the chronic substance-abuse ground, it erred by terminating his parental rights under the prior-removal ground based on his risk of relapse and inability to protect the children from Mother's substance abuse. We review a juvenile court's termination order for an abuse of discretion. E.R. v. Dep't of Child Safety, 237 Ariz. 56, 58 ¶ 9 (App. 2015). Additionally, we will affirm an order terminating parental rights so long as reasonable evidence supports the order. Jordan C. v. Ariz. Dep't of Econ. Sec., 223 Ariz. 86, 93 ¶ 18 (App. 2009). To terminate parental rights, the juvenile court must find by clear and convincing evidence the existence of at least one of the statutory grounds for termination and find by a preponderance of the evidence that termination is in the children's best interests. Jennifer S. v. Dep't of Child Safety, 240 Ariz. 282, 286 ¶ 15 (App. 2016).
1. Statutory Ground for Termination
¶11 As pertinent here, to terminate parental rights under the prior-removal ground, the juvenile court must find by clear and convincing evidence that (1) the children were previously cared for in an out-of-home placement under court order; (2) the agency responsible for the children's care made diligent efforts to provide appropriate reunification services; (3) the children were subsequently returned to the parent's care; and (4) within 18 months after the children were returned, the children were removed again and the parent was currently unable to discharge parental responsibilities. A.R.S. § 8-533(B)(11).
¶12 The juvenile court is not required to find that a parent is unable to discharge any parental responsibilities; it need only find that a parent is unable to discharge parental responsibilities generally. See Raymond F. v. Ariz. Dep't of Econ. Sec., 224 Ariz. 373, 378 ¶ 19 (App. 2010). The term "parental responsibilities" does not refer to an exclusive set of factors but instead gives the juvenile court flexibility to consider the unique circumstances of each case. Id. at ¶ 20. Parental responsibilities include the duties to protect the children and to provide good physical care and emotional security. Maricopa Cty. Juv. Action No. JS-5209, 143 Ariz. 178, 185-186 (App. 1984). The term also includes a parent's duty to make appropriate decisions that do not endanger the children, such as leaving the children in the care of an unsafe individual. See Raymond F., 224 Ariz. at 378 ¶ 21.
¶13 Although Father's efforts to work to provide for his children and to maintain his sobriety are commendable, the record nevertheless supports termination based on the prior-removal ground. In December 2016, the children were removed from Father's care and placed in an out-of-home placement. During that time, the Department made diligent efforts to provide appropriate reunification services to Father, including substance-abuse testing and treatment. Then, pursuant to a court order, the children were returned to Father's care in January 2018. Less than 18 months later, however, they were once again removed from Father's care. Next, the court found that Father was currently unable to discharge his parental responsibilities because he would not protect the children from Mother's substance abuse. The record supports this finding. Father worked long hours five to six days per week and attended multiple 2-hour AA meetings per week, and he left the children in Mother's care as the primary caregiver. Despite suspecting that she was abusing methamphetamine while pregnant with J.L. and caring for L.L., Father did not confront her. After J.L.'s birth, he thought that the children were safe in her care even though he knew by then that Mother was abusing methamphetamine. Furthermore, when asked, Father did not have a plan to prevent Mother from relapsing but simply stated that she was trying to change. Accordingly, the court correctly found that a statutory ground had been established.
¶14 Father argues that the court erred by finding that he "could not protect the children because he resides with Mother." He notes that he was never "informed [] that he could only reunify with the children if Mother resided elsewhere." Father misunderstands the record, however. The court never found that Father had failed to protect the children because he resided with Mother. Instead, it found that Father could not protect the children because he had done nothing to prevent Mother from abusing methamphetamine while pregnant or caring for the children in the past and that he would not protect them from Mother's substance abuse if she relapses in the future. As stated earlier, the court's findings are sufficiently supported by the record. Thus, this argument fails.
¶15 Father also argues that the court erred by finding that he was unable to discharge his parental responsibilities due to his substance-abuse history under the prior-removal ground despite having concluded that the Department had not proved that he failed to discharge his parental responsibilities under the chronic substance-abuse ground. Because this Court affirms the termination of Father's parental rights based on his inability to protect the children from Mother's substance abuse, we do not address this argument.
2. Best Interests
¶16 Although Father does not challenge the juvenile court's best-interests finding, the record adequately supports the finding that terminating his parental rights would be in the children's best interests. Terminating parental rights is in the children's best interests if the children will benefit from the termination or will be harmed if the relationship continues. Shawanee S. v. Ariz. Dep't of Econ. Sec., 234 Ariz. 174, 179 ¶ 20 (App. 2014). In determining whether the children will benefit from termination, relevant factors include whether the current placement is meeting the children's needs, an adoption plan is in place, and if the children are adoptable. Demetrius L. v. Joshlynn F., 239 Ariz. 1, 3-4 ¶ 12 (2016).
¶17 Here, the case manager testified that the children were in an adoptive placement that met their needs and was willing to adopt them and that a new placement could be located if needed. She also stated that terminating Father's parental rights would help lead to a permanent and stable home free of substance abuse. Thus, the juvenile court did not abuse its discretion in finding that terminating Father's parental rights was in the children's best interests.
CONCLUSION
¶18 For the foregoing reasons, we affirm.