Opinion
No. 1 CA-JV 11-0229
04-12-2012
KRISTIN M., Appellant, v. ARIZONA DEPARTMENT OF ECONOMIC SECURITY, J.G., N.G., Appellees.
Thomas C. Horne, Attorney General By Carol A. Salvati, Assistant Attorney General Attorneys for Appellee Arizona Department of Economic Security Robert D. Rosanelli Attorney for Appellant Kristin M.
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
(Not for Publication - 103(G) Ariz.R.P. Juv. Ct.; Rule 28 ARCAP)
Appeal from the Superior Court in Maricopa County
Cause No. JD16811
The Honorable Joan M. Sinclair, Judge Pro Tempore
Affirmed
Thomas C. Horne, Attorney General
By Carol A. Salvati, Assistant Attorney General
Attorneys for Appellee Arizona Department of Economic Security
Phoenix
Robert D. Rosanelli
Attorney for Appellant Kristin M.
Phoenix GOULD, Judge
¶1 Kristin M. ("Mother") appeals from the juvenile court's order terminating her parental rights to two of her children, J.G. and N.G. ("the children"). Mother argues substantial evidence did not support the juvenile court's findings that: (1) Mother is unable to discharge her parental responsibilities because of a history of drug abuse and there are reasonable grounds to believe the condition will continue for a prolonged indeterminate period pursuant to Arizona Revised Statutes ("A.R.S.") section 8-533(B)(3); (2) the Arizona Department of Economic Security ("ADES") has made a diligent effort to provide Mother with appropriate reunification services as required before terminating parental rights pursuant to A.R.S § 8-533(B)(3), (4), and (8)(c); (3) Mother's conviction and 2.5 year sentence was of such a length as to deprive the children of a normal home for a period of years pursuant to A.R.S. § 8-533(B)(4); and (4) Mother's conviction of child abuse is of such a nature as to prove her unfitness to have future custody and control of the children pursuant to A.R.S. § 8-533(B)(4). Mother does not challenge the court's determination that severance is in the children's best interests. For the following reasons, we affirm.
Factual and Procedural Background
¶2On May 29, 2008, the children were taken into ADES' temporary physical custody after a drug raid of their home. During the search of the home, Mother and the children's father ("Father") were found to be in possession of marijuana, cocaine, drug paraphernalia, and a loaded handgun. The handgun was discovered within reach of the children, one of whom was only six years old. Both Mother and Father were arrested and incarcerated as a result of the raid. Based on the search of the home, Mother was charged and convicted of child abuse, and was subsequently placed on intensive probation.
Father did not appeal the termination of his parental rights and that termination is now final. This decision addresses Mother's rights only.
¶3 As a result of the criminal charges, ADES filed a dependency petition alleging that Mother and Father were unable to parent; ADES sought to place the children in the care, custody, and control of ADES. Mother and Father contested the petition.
¶4 In October 2008, the court found the children were dependent as to Mother and Father and approved a case plan of family reunification. As part of the case plan, ADES provided the following services for Mother: a parent-aide, parenting classes, psychological and psychiatric evaluations, substance abuse assessments and treatment through TERROS, random urinalysis testing ("UAs"), and transportation. Mother was permitted to have two-hour supervised visits with the children twice a week at the discretion of Child Protective Services ("CPS").
¶5 As part of the services ADES provided, Mother participated in substance abuse counseling and treatment through TERROS beginning in 2008. In March 2009 she completed all levels of treatment at TERROS and had maintained sobriety throughout treatment. However, in August 2009, Mother refused to take UAs because she did not want probation to receive the results; she admitted that she had relapsed on THC. Despite this relapse, Mother participated in various programs provided by ADES, including drug treatment rehabilitation services, and made progress toward the case plan goal.
¶6 In May 2010, the court granted ADES's petition that the children be placed in Mother's physical custody. Mother successfully completed family reunification services in September 2010, and in October 2010, ADES was prepared to dismiss the dependency contingent upon Mother's submission of a clean UA. However, on October 26, 2010 Mother tested positive for THC and cocaine, and ADES removed the children from Mother's custody in November 2010.
¶7 Throughout the time Mother was subject to ADES' dependency proceeding, she was also serving a term of probation for her child abuse conviction. In February 2011, Mother was arrested for violating her probation due to several positive drug tests for THC and cocaine. Mother was reinstated on probation, and released from custody on March 17. Upon her release from custody, Mother was directed by her probation officer to immediately report to and reside at a halfway house. Mother complied with this directive reluctantly, and only after repeated insistence by her probation officer. Mother was quickly expelled from the halfway house based on suspicions she was selling drugs from the facility and she was under the influence of drugs. As a result, Mother's probation was revoked and she was sentenced to 2.5 years' imprisonment.
¶8 Based upon the revocation of Mother's probation and the resulting prison sentence, ADES changed her case plan from family reunification to severance and adoption. ADES filed a motion to terminate Mother's parental rights. ADES alleged several grounds for the termination, including an allegation under A.R.S. § 8-533(B)(3) that Mother had a history of chronic drug abuse and there were reasonable grounds to believe the condition would continue for a prolonged period. The motion further alleged that severance would serve the children's best interests, that they were currently residing in an adoptive placement, and that they were adoptable.
¶9 After holding a hearing, the juvenile court granted ADES' motion, finding that ADES had met its burden on all alleged grounds for severance. With respect to Mother's substance abuse, the juvenile court considered Mother's testimony regarding her lengthy history of substance abuse. It found that her relapses, after completing substance abuse treatment services, indicated that her chronic substance abuse would continue for a prolonged indeterminate period. The juvenile court found that the children had been in ADES' custody since June 2008 and in an out-of-home placement for longer than fifteen months, and that ADES had made diligent efforts to provide Mother with appropriate reunification services. After finding the evidence supported the statutory grounds to sever, the juvenile court determined that ADES had met its burden to show that severance was in the children's best interests. Mother appealed.
Discussion
¶10 On appeal, "[w]e view the evidence in a severance case in the light most favorable to sustaining the juvenile court's findings." Christina G. v. Ariz. Dep't of Econ. Sec., 227 Ariz. 231, 234, ¶ 13, 256 P.3d 628, 631 (App. 2011). The juvenile court is in the best position to weigh the evidence, observe the parties, judge the credibility of witnesses, and make appropriate findings; we will only reject the court's findings if no reasonable evidence supports them. Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, 280, ¶ 4, 53 P.3d 203, 205 (App. 2002). Because we find one of the statutory grounds on which the court ordered severance is supported by clear and convincing evidence, "we need not address claims pertaining to the other grounds." Id. at ¶ 3 (citing Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, 251, ¶ 27, 995 P.2d 682, 687 (2000)).
¶11 Clear and convincing evidence supports the juvenile court's termination of Mother's parental rights under A.R.S. § 8-533(B)(3). Termination of parental rights on the ground of chronic substance abuse requires proof that Mother was "unable to discharge her parental responsibilities 'because of . . . a history of chronic abuse of dangerous drugs, controlled substances or alcohol' and that there were 'reasonable grounds to believe that the condition w[ould] continue for a prolonged indeterminate period.'" Jennifer G. v. Ariz. Dep't of Econ. Sec. , 211 Ariz. 450, 453, ¶ 12, 123 P.3d 186, 189 (App. 2005) (quoting A.R.S. § 8-533(B)(3)). Because of the "fundamental liberty interest of the natural parents in the care, custody and management of their child" involved, the juvenile court must also find the State fulfilled its duty to make reasonable efforts to preserve the family prior to severance. Mary Ellen C. v. Ariz. Dep't of Econ. Sec., 193 Ariz. 185, 192, ¶ 32, 971 P.2d 1046, 1053 (App. 1999) (quoting Santosky v. Kramer, 455 U.S. 745, 753 (1982). However, there is no duty to make efforts that would be futile. See Jennifer G. , 211 Ariz. at 453, ¶ 12, 123 P.3d at 189.
¶12 Clear and convincing evidence supports the finding that Mother has a history of chronic drug abuse, which would continue for a prolonged indeterminate period and render her unable to discharge her parental responsibilities. Mother stated that she smoked marijuana while pregnant with all of her children; in fact, CPS first became involved with Mother when N.G., her youngest, was born substance exposed in February 2008. Mother's history of drug use, including using cocaine, painkillers and marijuana, began when she was fifteen years old. Her habit had progressed from daily cocaine use to regular marijuana use by the time she was seventeen years old. At the severance hearing, Mother testified that she had abused marijuana for about twelve or thirteen years. With regard to her drug use, Mother has stated that she was "a functioning addict. Everything [about her] stays the same when [she] use[s]." Mother's drug use was diagnosed as self-medication for psychiatric symptoms. Despite regaining custody of her children and completing three years of substance abuse counseling and treatment, Mother relapsed once again and tested positive for cocaine. Furthermore, Mother is currently serving a 2.5 year prison term for violating her probation because of her chronic drug use. Mother's choice to use drugs in violation of her probation indicates that her history of chronic drug use has rendered her unable to discharge her parental responsibilities.
Mother challenges the accuracy of the drug tests stating that her positive test result for methamphetamine in April 2010 was a false positive. Mother does not provide any explanation, though, for her positive test results for cocaine on December 30, 2010 and January 7, 2011 and for cocaine and THC on November 15, 2010. We defer to the juvenile court's findings of fact unless no reasonable evidence supports them. Jennifer B. v. Ariz. Dep't of Econ. Sec., 189 Ariz. 553, 555, 944 P.2d 68, 70 (App. 1997).
--------
¶13 ADES has made diligent efforts to provide Mother with appropriate reunification services, including drug rehabilitation. Mother began receiving substance abuse counseling and treatment from TERROS in 2008. Throughout the dependency, Mother was not compliant with regularly submitting to drug screens. After completing treatment in March 2009, Mother relapsed on THC and was "almost at rock bottom." Mother refused services offered to her in September 2009 stating: "I have already completed IOP, SOP, and aftercare with flying colors . . . it's too time consuming I'm not a crackhead or a tweeker I smoked a blunt I'm drug free now . . . I don't have the time and I'm not doing it again." When she was referred to TERROS again she refused to participate in groups because she felt they were not effective and she had previously "manipulated the system, gone through the motion[s] at groups and graduated from TERROS already."
¶14 The juvenile court properly concluded that further efforts at drug rehabilitation would be futile. This was made clear at the severance hearing. Despite three years of substance abuse counseling and treatment provided by ADES, Mother testified that she had nothing to learn from the family reunification team and that she felt the substance abuse treatment was a joke. According to Mother's own statements, any further reunification services to be provided by ADES would have been futile.
¶15 Mother's testimony and the history of her drug use, in light of years of services provided by ADES, support the finding that she is unable to parent due to a history of chronic drug abuse, that her condition would continue for a prolonged indeterminate period, and that ADES made a diligent effort to provide drug rehabilitation/reunification services. Because we find one of the statutory grounds on which the court ordered severance is supported by clear and convincing evidence, "we need not address claims pertaining to the other grounds." Jesus M., 203 Ariz. at 280, ¶ 3, 53 P.3d at 205 (citing Michael J. , 196 Ariz. at 251, ¶ 27, 995 P.2d at 687).
Conclusion
¶16 For the reasons above, we affirm the juvenile court's order terminating Mother's parental rights as to J.G. and N.G.
_________________
ANDREW W. GOULD, Judge
CONCURRING:
_________________
MAURICE PORTLEY, Presiding Judge
_________________
ANN A. SCOTT TIMMER, Judge