Opinion
2 CA-JV 2022-0103
02-22-2023
In re Termination of Parental Rights as to V. P.
Janelle A. Mc Eachern, Chandler Counsel for Appellant Kristin K. Mayes, Arizona Attorney General By Autumn Spritzer, Assistant Attorney General, Tucson Counsel for Appellee Department of Child Safety
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Santa Cruz County No. JD20011 The Honorable Thomas Fink, Judge
Janelle A. Mc Eachern, Chandler Counsel for Appellant
Kristin K. Mayes, Arizona Attorney General By Autumn Spritzer, Assistant Attorney General, Tucson Counsel for Appellee Department of Child Safety
Presiding Judge Brearcliffe authored the decision of the Court, in which Judge Eckerstrom and Judge Kelly concurred.
MEMORANDUM DECISION
BREARCLIFFE, PRESIDING JUDGE
¶1 Appellant Emma P. challenges the juvenile court's August 16, 2022 ruling terminating her parental rights to her daughter, V.P., born in August 2020, based on chronic substance abuse. See A.R.S. § 8-533(B)(3). She argues the court erred in finding she had "failed to remedy the circumstances which brought her child into care." We affirm.
The purported father did not participate in the termination hearing, nor did the juvenile court terminate his rights in the ruling now before us on appeal. Additionally, as discussed below, it is not entirely clear whether the court based its ruling as to Emma on both chronic substance abuse and out-of-home placement grounds, as alleged by DCS. See A.R.S. § 8-533(B)(3), (8)(c). We address only the former ground in this ruling.
¶2 We view the evidence in the light most favorable to affirming the juvenile court's ruling. See Christina G. v. Ariz. Dept of Econ. Sec, 227 Ariz. 231, ¶ 13 (App. 2011). The Department of Child Safety (DCS) removed V.P. from Emma's care in August 2020. V.P. was born substance exposed, and Emma had been unable to provide for V.P.'s basic needs. V.P. was adjudicated dependent in October 2020. DCS filed a motion to terminate Emma's parental rights in December 2021, alleging chronic substance abuse and time-in-care grounds. See A.R.S. § 8-533(B)(3), (8)(c). The parties addressed both of the alleged grounds at the two-day contested severance hearing held in April and May 2022. After the hearing, the juvenile court granted DCS's motion, specifically mentioning only the substance abuse ground and finding that termination was in V.P.'s best interests. This appeal followed.
V.P. supported DCS's motion to terminate Emma's parental rights. On appeal, Emma does not specifically challenge the juvenile court's finding that termination of her parental rights was in V.P.'s best interests.
¶3 To sever a parent's rights, the juvenile court must find by clear and convincing evidence that at least one of the statutory grounds for termination exists and by a preponderance of the evidence that severing the parent's rights is in the child's best interests. Kent K. v. Bobby M., 210 Ariz. 279, ¶¶ 32, 41 (2005). We do not reweigh the evidence on appeal; rather, we defer to the juvenile court's factual findings because, as the trier of fact, that court "is in the best position to weigh the evidence, observe the parties, judge the credibility of witnesses, and resolve disputed facts." Ariz. Dept of Econ. Sec. v. Oscar O., 209 Ariz. 332, ¶ 4 (App. 2004). Consequently, we will affirm the order if reasonable evidence supports the factual findings upon which the order is based and it is not clearly erroneous. Jesus M. v. Ariz. Dept of Econ. Sec., 203 Ariz. 278, ¶ 4 (App. 2002).
¶4 To terminate a parent's rights under § 8-533(B)(3), a juvenile court must find by clear and convincing evidence "[t]hat the parent is unable to discharge parental responsibilities because of mental illness, mental deficiency or a history of chronic abuse of dangerous drugs, controlled substances or alcohol and there are reasonable grounds to believe that the condition will continue for a prolonged indeterminate period." The record and the evidence presented at the severance hearing showed that Emma had a lengthy history of substance abuse, beginning with the use of methamphetamine as a teenager, followed by alcohol, marijuana, and heroin, including the use of heroin while she was pregnant with V.P. And although Emma acknowledged the last time she had used "a substance" was in October 2020, evidence showed she had a positive hair follicle test for methamphetamine in April 2021, a test which showed a "pattern" from a longer period of drug use, rather than a one-time use. Emma also tested positive for methamphetamine and cocaine multiple times in February 2022, and she tested positive for marijuana several times between December 2021 and March 2022. In addition, just a month after DCS had filed the motion to terminate, drug paraphernalia and a "black container with [a] black tarry substance" were discovered in Emma's vehicle.
¶5 DCS offered Emma multiple services during the dependency, including drug testing, individual counseling, parenting classes, and supervised visits. Emma complied with required drug testing less than fifty percent of the time and did not establish proof of sustained sobriety. The juvenile court noted a specific instance when Emma sent another individual to complete a drug test on her behalf, an incident Emma denied. Emma testified she had never "held down a job in a consistent period long enough" to warrant filing an income tax return, nor did she provide DCS with evidence of employment details or her housing situation, as her case plan required.
¶6 In addition, Emma did not comply with the conditions of her ongoing probation for two prior convictions, including her failure to report for drug tests and attend substance abuse treatment and cognitive skills classes. She was thus in danger of having her probation revoked. Her DCS case manager testified it was in V.P.'s best interests to terminate Emma's parental rights in order to provide V.P. with permanency and stability and to permit her to remain with the maternal grandmother and step-grandfather, who want to adopt her.
¶7 On appeal, Emma does not specifically argue the juvenile court lacked sufficient evidence to find grounds for chronic substance abuse, nor does she directly challenge that V.P. has been in out-of-home care for more than fifteen months or that DCS has made reasonable reunification efforts. Rather, the focus of her argument seems to be that she continues to make "sincere, active efforts to remedy the circumstances which brought her child into care." This is a required finding under § 8-533(B)(8)(c), but not under § 8-533(B)(3). And, although Emma notes the court "found" she suffers from substance abuse, she "[f]urther" cites to the out-of-home placement ground pursuant to § 8-533(B)(8)(c), without stating that the court relied on that ground in its ruling or that she is challenging it on that basis. Nor, as we previously noted, is it clear that the court did, in fact, rely on that ground.
¶8 Emma also cites Marina P. v. Ariz. Dept of Econ. Sec, 214 Ariz. 326, ¶ 22 (App. 2007), in support of her argument that the juvenile court should look at the circumstances at the time of the severance. Notably, however, the relevant portion of that case stands for the stated proposition in the context of an out-of-home placement under § 8-533(B)(8), once again, a ground it is not clear the juvenile court relied upon here. Id. To further confuse matters, Emma ultimately concludes the court "clearly erred when it found that [her] performance fell below the threshold required by [§] 8-533(B)(8)(a)," a ground neither alleged in DCS's motion to terminate nor addressed by the court.
¶9 Assuming Emma's argument could be construed as challenging termination under the substance abuse ground, there is sufficient evidence in the record to sustain the juvenile court's ruling on that basis, and thus we need not address the out-of-home placement ground. See Jesus M., 203 Ariz. 278, ¶ 3 ("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."). Here, evidence that Emma used methamphetamine, cocaine, and marijuana after DCS had filed the motion to terminate her parental rights, and her continued probation violations, including her failure to comply with drug testing, is significant. That Emma failed to remain drug free strongly supports a conclusion that her drug dependency would prevent her from fulfilling her parental duties in the future, as the court concluded. See Raymond F. v. Ariz. Dept of Econ. Sec., 224 Ariz. 373, ¶ 29 (App. 2010) (father's failure to remedy substance abuse "despite knowing the loss of his children was imminent" supports conclusion abuse will persist and "negatively affect his parenting abilities"). And, as also observed in Raymond F., a parent's "drug abuse need not be constant to be considered chronic" for purposes of § 8-533(B)(3). Id. ¶ 16.
¶10 In addition, termination under § 8-533(B)(3) "does not require that the parent be found unable to discharge any parental responsibilities" but rather "establishes] a standard which permits a trial judge flexibility in considering the unique circumstances of each termination case before determining the parent's ability to discharge his or her parental responsibilities." In re Maricopa Cnty. Juv. Action No. JS-5894, 145 Ariz. 405, 408-09 (App. 1985). The juvenile court noted Emma had often missed or arrived late for visits with V.P., including V.P.'s birthday, findings amply supported by the record. In addition, Emma did not provide proof of sustained employment or income or evidence of a safe and stable residence.
¶11 In light of the record before us, we find Emma's assertion that she "had addressed DCS'[s] concerns regarding her substance abuse history" and that her participation in services had not been "de minimis" unavailing. The record supports the juvenile court's conclusions that Emma had "been unable to sustain sobriety or remedy her substance abuse despite knowing that she is likely to lose her child," and that she had "shown no progress towards sustained sobriety." We further find ample evidence in the record supporting the court's determination that Emma's continuing inability to control her drug dependency was unlikely to abate and interfered with her ability to effectively parent V.P.
¶12 Moreover, to the extent Emma implicitly asks us to reweigh the evidence presented to the juvenile court, we will not do so. See Jesus M., 203 Ariz. 278, ¶ 12. We will defer to that court's resolution of conflicting inferences when, as in this case, they are supported by the record, In re Pima Cnty. Adoption No. B-6355 & H-533, 118 Ariz. 111, 115 (1978).
¶13 We affirm the juvenile court's order severing Emma's parental rights to V.P.