Opinion
No. 1 CA-JV 18-0263
01-24-2019
KARSANDRA B., Appellant, v. DEPARTMENT OF CHILD SAFETY, Z.J., M.B., Appellees.
COUNSEL Denise L. Carroll, Esq., Scottsdale By Denise L. Carroll Counsel for Appellant Arizona Attorney General's Office, Phoenix By Sandra L. Nahigian Counsel for Appellee
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. JD22499
The Honorable Jo Lynn Gentry, Judge
AFFIRMED
COUNSEL Denise L. Carroll, Esq., Scottsdale
By Denise L. Carroll
Counsel for Appellant Arizona Attorney General's Office, Phoenix
By Sandra L. Nahigian
Counsel for Appellee
MEMORANDUM DECISION
Judge David D. Weinzweig delivered the decision of the Court, in which Presiding Judge Kenton D. Jones and Judge Peter B. Swann joined. WEINZWEIG, Judge:
¶1 Karsandra B. ("Mother") appeals the juvenile court's order terminating her parental rights to M.B. and Z.J. We affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 Mother is the biological parent of M.B., born in October 2016, Z.J., born in August 2012, and three children not subject to this appeal: K.B., born in February 2004; K.B., born in May 2000; and D.J., born in July 1996.
¶3 Mother and M.B. tested positive for phencyclidine, or PCP, when she gave birth to M.B. in October 2016. DCS took temporary custody of M.B., Z.J. and K.B., then filed a dependency petition, alleging the children were dependent as to Mother due to substance abuse and her failure to provide for their housing and basic needs. The juvenile court found the children dependent as to Mother in January 2017 and set concurrent case plans of family reunification and severance and adoption.
¶4 DCS offered Mother a variety of services, including a case aide for visitation, two parent-aide referrals, TERROS substance-abuse treatment, urinalysis testing, transportation, referrals for psychiatric and psychological evaluations, individual counseling and a community coordinator.
¶5 Mother initially had success with the services. She called in for urinalysis testing and consistently tested negative. She participated in group therapy at TERROS, graduating from her first group to a "step down" program. The clinician described Mother as "pleasant, friendly" and "motivated." Mother met with her TERROS therapist in December 2016 to discuss her housing needs. The therapist gave Mother a list of resources and helped her develop a plan. The court later appointed a community coordinator to "escalate the question of [Mother's] housing" and assist Mother in obtaining housing resources.
¶6 Between April and August 2017, Mother failed to call in for urinalysis testing six times. She also missed one scheduled test in this timeframe, but otherwise tested negative. As for TERROS, Mother failed to show for seven sessions between May and July 2017; and when she did attend, Mother did not "regularly participate in group discussion," making it difficult to monitor her progress.
¶7 Meanwhile, in June 2017, Mother began receiving parent-aide services for "hands-on assistance in how to parent and best meet the needs of the children," which included four hours of visitation and two hours of one-on-one skills sessions each week. The parent aide reported that Mother's participation in the skills sessions was minimal. Mother did not "implement any of the skills learned during visitation" and "failed to do several assignments by their due dates." Mother also missed several visits and sessions in the months of November and December 2017. The parent aide ultimately closed out the service in February 2018 because Mother had not met her designated goals.
¶8 DCS referred Mother for individual counseling in August 2017. After an initial intake, however, Mother told DCS her counselor said she did not need counseling services. That was untrue. The counselor had in fact recommended treatment. DCS eventually discovered the truth and contacted Mother in November 2017 to discuss Mother's lack of participation. DCS made additional reengagement attempts but the referral eventually expired with minimal participation. DCS submitted a second referral for counseling in March 2018. Given the delayed start, Mother had only completed eight weeks of the year-long counseling at the time of severance. The counselor reported that Mother had made progress.
¶9 DCS referred Mother for a psychological evaluation, which she completed in October 2017. The psychologist offered a poor prognosis that Mother would be able to demonstrate minimally adequate parenting within the foreseeable future, in part because Mother lacked the emotional and mental ability to raise the children. The psychologist opined that a child in Mother's care would be at risk of neglect, noting Mother had no stable housing or employment and expressing concerns about Mother's mental health. The psychologist recommended long-term psychotherapy sessions, for at least one year, parenting classes, and assistance in identifying and applying community resources.
¶10 Mother also had a psychiatric evaluation in October 2017. The psychiatrist diagnosed Mother with "major depressive disorder, recurrent, severe with psychotic symptoms" and prescribed her medications for anxiety, depression and sleep. The psychiatrist also "[e]ncouraged counseling and therapy."
¶11 The juvenile court changed the case plan for M.B. and Z.J. to severance and adoption in January 2018. The decision was based in part on the DCS case manager's report, which questioned Mother's ability to parent and expressed concern that Mother still minimized the negative impact of her drug use and instability on the children. According to the case manager, Mother claimed she had found employment and had been wait- listed for low-income housing, but never documented either, despite DCS's requests.
¶12 In February 2018, DCS moved to terminate Mother's parental rights to M.B. and Z.J. on the grounds of six months', nine months' and fifteen months' time-in-care under A.R.S § 8-533(B)(8)(a)-(c).
¶13 The court held a two-day severance hearing in May 2018. Four witnesses testified, including the DCS case manager, Mother's assigned counselor, the examining psychologist and Mother. The court took the matter under advisement and issued a detailed ruling in July 2018. The court found DCS had proven the statutory ground of fifteen months' time-in-care by clear and convincing evidence and that termination of Mother's parental rights was in the best interests of the children. Accordingly, the court terminated Mother's parental rights to M.B. and Z.J.
¶14 Mother timely appealed. We have jurisdiction under Article 6, Section 9 of the Arizona Constitution, A.R.S. §§ 8-235(A), 12-2101(A)(1), and Arizona Rule of Procedure for the Juvenile Court 103(A).
DISCUSSION
¶15 To terminate parental rights, the juvenile court must find the existence of at least one statutory ground in A.R.S. § 8-533(B) and that termination is in the child's best interests. Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, 248-49, ¶ 12 (2000). We will affirm a severance order unless it is clearly erroneous, and we accept the court's findings of fact unless no reasonable evidence supports them. Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, 280, ¶ 4 (App. 2002).
A. Fifteen Months' Time-in-Care
¶16 Severance based upon fifteen months' time-in-care under A.R.S. § 8-533(B)(8)(c) requires proof that (1) the child has been in an out-of-home placement for at least fifteen months; (2) DCS "has made a diligent effort to provide appropriate reunification services"; (3) "the parent has been unable to remedy the circumstances that cause the child to be in an out-of-home placement"; and (4) "there is a substantial likelihood that the parent will not be capable of exercising proper and effective parental care and control in the near future." The relevant circumstances are those "existing at the time of the severance that prevent a parent from being able to appropriately provide for his or her children." Jordan C. v. Ariz. Dep't of Econ. Sec., 223 Ariz. 86, 96, ¶ 31, n.14 (App. 2009) (quotation omitted).
¶17 Mother challenges only the fourth element on appeal. She argues the court erred in finding a substantial likelihood she would be unable to parent effectively in the near future. The court's decision recounts that DCS removed M.B. and Z.J. because Mother could not provide stable housing and abused drugs. After finding Mother still lacked housing and had not fully demonstrated sobriety, the court concluded "there is no reason to think she can effectively parent in the near future." Reasonable evidence supports the court's finding.
¶18 Mother's failure to secure safe and stable housing was a significant impediment to reunification throughout the dependency. She had received "repeated admonitions" to secure stable housing, along with information and assistance from various sources, yet continued to lack stable housing at the time of severance. Given an absence of income and steady employment, the court also expressed concern about whether Mother could maintain housing even if she secured it.
¶19 Mother had abused PCP for decades. Of her five children, four of them tested positive for PCP at birth, including M.B. and Z.J. Her drug use had also resulted in a previous dependency. Against this backdrop, the court found it "concerning that while mother tests negative, she does not regularly test," including a missed test and call-ins just weeks before the termination hearing. Although recognizing that Mother had successfully completed her first TERROS group, the court remained concerned about her sobriety.
¶20 The court also recognized that Mother had shown improvement in two recently initiated services, including counseling and parent-aide services, and speculated that she might, at some future point, be able to parent. After fifteen months in out-of-home care, however, the court concluded "there is no reason to think [Mother] can effectively parent in the near future."
¶21 At bottom, the juvenile court considered Mother's recent progress and terminated parental rights after weighing the evidence. Jesus M., 203 Ariz. at 282, ¶ 12 ("The resolution of such conflicts in the evidence is uniquely the province of the juvenile court as the trier of fact . . .."). We do not reweigh the evidence on appeal; rather, "[o]ur task for factual findings is solely to confirm that there is some reasonable evidence in the record to sustain them." Ariz. Dep't of Econ. Sec. v. Oscar O., 209 Ariz. 332, 336, ¶ 14 (App. 2004). The record contains reasonable evidence to supports the court's findings.
B. Best Interests
¶22 Mother disputes that termination of her parental rights is in the children's best interest. Termination is in a child's best interest if the child "would derive an affirmative benefit from termination or incur a detriment by continuing in the relationship." Oscar O., 209 Ariz. at 334, ¶ 6. The court may consider whether the child is adoptable, an adoptive placement is immediately available and the existing placement is meeting the child's needs. Raymond F. v. Ariz. Dep't of Econ. Sec., 224 Ariz. 373, 379, ¶ 30 (App. 2010).
¶23 Reasonable evidence supports the court's finding that termination is in the children's best interest. The court heard testimony that the children were adoptable and living together in an adoptive placement that met their needs. The DCS case manager testified the children would benefit from the termination of Mother's parental rights because it would allow them to live in a safe, stable, permanent and drug-free home. By contrast, the case manager opined the children would suffer harm if returned to Mother, including the continued risk of neglect and lack of permanency.
¶24 The court reasoned the children had been in care "far too long" and "[i]t was not in their best interests to . . . linger indefinitely while mother continues to struggle with instability." The record supports this finding. M.B. has been in foster care for her entire life and Z.J. has been in foster care for more than half of his life and subjected to two dependencies.
CONCLUSION
¶25 We affirm.