Opinion
1 CA-JV 24-0035
07-30-2024
IN RE TERMINATION OF PARENTAL RIGHTS AS TO A.H.
Law Office of H. Clark Jones, LLC, Mesa By H. Clark Jones Counsel for Appellant Arizona Attorney General's Office, Tucson By Jennifer R. Blum Counsel for Appellee
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County No. JD38837 The Honorable Adele Ponce, Judge
Law Office of H. Clark Jones, LLC, Mesa
By H. Clark Jones
Counsel for Appellant
Arizona Attorney General's Office, Tucson
By Jennifer R. Blum
Counsel for Appellee
Judge Angela K. Paton delivered the decision of the Court, in which Presiding Judge Cynthia J. Bailey and Judge Anni Hill Foster joined.
MEMORANDUM DECISION
PATON, Judge:
¶1 Thalia R. ("Mother") appeals the superior court's order terminating her parental rights to A.H. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 We view the facts in the light most favorable to upholding the superior court's termination ruling. See Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, 250, ¶ 20 (2000).
¶3 In December 2019, the Department of Child Safety ("DCS") removed Mother's three older children from her care due to concerns about her substance abuse and exposure to domestic violence. Mother was pregnant with A.H. while that proceeding was pending, during which she self-reported using methamphetamine (in September 2021) and tested positive for methamphetamine (in December 2021). A.H. was born in January 2022.
¶4 In February 2022, DCS took custody of A.H. and filed a dependency petition alleging substance abuse and domestic violence grounds. Mother pled no contest to the petition, and the superior court found A.H. dependent. In March 2022, Mother's parental rights to her other three children were terminated on out-of-home placement grounds.
¶5 As part of A.H.'s case, DCS provided Mother with substance abuse treatment, drug testing, visitation, and various parenting and family program services. Specifically, DCS referred Mother for substance abuse treatment in January 2022, but that service closed in May 2022 due to Mother's lack of contact. Mother self-referred to a different substance abuse treatment provider and successfully completed treatment in June 2022. That provider recommended she continue substance abuse treatment and domestic violence counseling, and DCS referred her to Terros for those services. Mother scheduled the intake appointment, but the referral closed in August 2022 due to her lack of contact.
¶6 Mother participated in substance abuse testing between A.H.'s birth and May 2022 and did not test positive for substances during that time. But she submitted a diluted sample for her last drug test in May 2022 and stopped calling in to test in June 2022. DCS referred her to Terros again in September 2022, but the service closed due to her lack of contact. And in December 2022, Mother failed to complete a court-ordered hair follicle test.
¶7 In February 2023, DCS moved to terminate Mother's parental rights to A.H. based on six- and nine-month out-of-home placement and prior termination grounds. The superior court changed the case plan to termination and adoption and scheduled a termination hearing. Mother did not appear at the hearing, and the trial proceeded in her absence. In June 2023, the court terminated Mother's parental rights to A.H. on the alleged grounds.
¶8 Mother moved to set aside the termination order. After she filed the motion, DCS informed the court it had not disclosed certain documents prior to the termination hearing due to a data management system issue. In September 2023, the superior court granted Mother's motion to set aside the termination order and scheduled a new termination hearing for December 13, 2023. After the termination hearing, at which Mother was present and testified, the court found the six- and nine-month out-of-home placement and prior termination grounds proven by clear and convincing evidence and terminated Mother's parental rights to A.H.
The superior court also terminated the rights of A.H.'s alleged father and all John Does, none of whom are parties to this appeal.
¶9 Mother timely appealed. We have jurisdiction under Arizona Revised Statutes ("A.R.S.") Sections 8-235(A), 12-120.21(A)(1), and -2101(A)(1).
DISCUSSION
¶10 Mother argues the record lacks reasonable evidence to support the conclusion that she was unable to remedy the circumstances that caused A.H. to be in an out-of-home placement and that she was unable to discharge parental responsibilities at the time of trial. She also argues the court erred in finding DCS made reasonable efforts to provide her with reunification services and that additional services would have been futile.
¶11 To terminate the parent-child relationship, the superior court must find that clear and convincing evidence establishes at least one statutory ground for termination. Alma S. v. Dep't of Child Safety, 245 Ariz. 146, 149, ¶ 8 (2018); see also A.R.S. § 8-533(B) (listing grounds for termination). The superior court "is in the best position to weigh the evidence[.]" Ariz. Dep't of Econ. Sec. v. Oscar O., 209 Ariz. 332, 334, ¶ 4 (App. 2004). We will affirm the superior court's decision if clear and convincing evidence supports it. Brionna J. v. Dep't of Child Safety, 255 Ariz. 471, 47879, ¶¶ 30-31 (2023).
The superior court must also find that termination is in the child's best interests, which we do not address here because Mother has not challenged the court's best interests finding. Alma S., 245 Ariz. at 150, ¶ 8.
¶12 A court may terminate parental rights under the prior termination ground 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." A.R.S. § 8-533(B)(10). Termination for the same cause is different from termination on the same grounds. See Mary Lou C. v. Ariz. Dep't of Econ. Sec., 207 Ariz. 43, 48, ¶ 11 (App. 2004). The "same cause" is the underlying factual cause preventing the parent from meeting the child's needs. See id. at ¶ 11. DCS must prove it made reasonable efforts to provide Mother with appropriate services to alleviate the cause or that such efforts would be futile. Id. at 49, ¶ 15.
¶13 Here, Mother's parental rights to her other three children were terminated on out-of-home placement grounds in March 2022, less than two years before DCS moved to terminate her parental rights to A.H. Mother failed to consistently drug test to prove her sobriety during the termination proceedings involving her three other children. As previously mentioned, in September 2021, after her older children were found dependent and while pregnant with A.H., Mother self-reported using methamphetamine. And she tested positive for methamphetamine less than two months before A.H. was born.
¶14 To her credit, Mother occasionally drug tested after A.H.'s birth, but the final test she submitted was in May 2022, and she stopped calling in the following month. The court ordered Mother to resume drug testing, but she did not comply. Although Mother testified that she had not seen the individual who was the source of DCS's domestic violence concerns since June 2023, she declined to participate in the domestic violence services that both DCS and her self-referred treatment center recommended. She failed to consistently test and prove sobriety during both termination cases. Accordingly, her failure to consistently test to prove sobriety and participate in substance abuse treatment and domestic violence counseling during both termination cases meant that these issues were the same underlying cause for each of her termination proceedings. The court did not err by finding she was unable to remedy those circumstances as to A.H.
¶15 Mother also contends the court erred in finding that DCS made reasonable reunification efforts or that doing so would be futile. She asserts that DCS did not provide her services between the time that the first termination order was set aside to the second termination hearing. DCS responds that Mother has waived this argument by failing to raise it before the superior court.
¶16 The decision to find waiver is discretionary. Aleise H. v. Dep't of Child Safety, 245 Ariz. 569, 573, ¶ 13 (App. 2018). We agree that Mother waived her services argument by failing to raise any adequacy of services argument below. See Bennigno R. v. Ariz. Dep't of Econ. Sec., 233 Ariz. 345, 349-50, ¶ 19 (App. 2013) (holding that the parent waived his challenge to the sufficiency of reunification services by failing to raise it before the superior court). Waiver aside, even assuming DCS failed to provide services after the first termination order was set aside, the evidence- including Mother's own testimony-supports the court's finding that additional services would have been futile. See Jessica P. v. Dep't of Child Safety, 251 Ariz. 34, 39, ¶¶ 17-18 (App. 2021) (determining that the parent failed to overcome the court's futility ruling because she merely speculated that further services would have changed the outcome of the termination trial).
¶17 Mother testified that she stopped participating in services because she felt they were unnecessary. She claimed she stopped participating in drug testing because her February 2022 test was negative, and she had completed her self-referred substance abuse program. She testified that her provider recommended continuing outpatient substance abuse and domestic violence treatment, which DCS referred her to, but she did not participate. When asked if she needed substance abuse treatment, she responded, "No[,]" reasoning that she had completed a substance abuse program and been sober for a year. While she acknowledged that she needed to prove sobriety to have A.H. returned to her, she testified she stopped testing in June 2022.
¶18 Thus, reasonable evidence supported the superior court's termination on the prior termination ground. Because only one statutory ground is required to support a termination, we do not address Mother's arguments regarding the out-of-home placement grounds. See Crystal E. v. Dep't of Child Safety, 241 Ariz. 576, 578, ¶ 5 (App. 2017).
CONCLUSION
¶19 We affirm.