Opinion
No. 1 CA-JV 16-0172
12-13-2016
LAURIE H., Appellant, v. DEPARTMENT OF CHILD SAFETY, I.G., A.H., Appellees.
COUNSEL David W. Bell, Mesa Counsel for Appellant Arizona Attorney General's Office, Tucson By Laura J. Huff 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. JD27012
The Honorable Cari A. Harrison, Judge
AFFIRMED
COUNSEL David W. Bell, Mesa
Counsel for Appellant Arizona Attorney General's Office, Tucson
By Laura J. Huff
Counsel for Appellee Department of Child Safety
MEMORANDUM DECISION
Judge Samuel A. Thumma delivered the decision of the Court, in which Presiding Judge Patricia K. Norris and Judge Margaret H. Downie joined. THUMMA, Judge:
¶1 Laurie H. (Mother) timely appeals the superior court's order terminating her parental rights to I.G. and A.H., arguing termination was improperly based on her use of "medically prescribed marijuana." Because Mother has shown no error, the order is affirmed.
FACTS AND PROCEDURAL HISTORY
This court views the evidence in a light most favorable to sustaining the superior court's findings. See Manuel M. v. Ariz. Dep't of Econ. Sec., 218 Ariz. 205, 207 ¶ 2 (App. 2008).
¶2 In September 2013, the Department of Child Safety (DCS) filed a dependency petition alleging Mother's mental and physical illnesses, coupled with her chronic substance abuse, meant she was unable to parent I.G. (born in 2010) and A.H. (born in 2012). In April 2014, the children were found dependent as to Mother, when she stipulated to neglect based on her mental health issues, and the court adopted a family reunification case plan.
¶3 DCS provided Mother with various reunification services, including substance abuse assessments and treatment through TERROS, urinalysis testing through TASC, individual counseling, psychological evaluation and psychiatric evaluation. Among other things, these services were intended to address Mother's behavioral health and medical issues, which included obsessive-compulsive disorder, social anxiety, bipolar disorder, epilepsy, post-traumatic stress disorder, grand mal seizures and fibromyalgia.
¶4 Mother told DCS that she had obtained a medical marijuana card in May 2012, and was using marijuana daily for treatment. Based on this marijuana use, Mother stopped taking all prescribed medications, including those to treat her behavioral health issues. Mother later testified that she began using marijuana in 1998 and had continued to use it on and off since that time. Mother testified she moved to Arizona in 2013 and had used marijuana since that time. Mother admitted using marijuana daily for the past several years. Although Mother also testified she had a card to use marijuana pursuant to the Arizona Medical Marijuana Act (AMMA), Arizona Revised Statutes (A.R.S.) sections 36-2801 to -2819 (2016), the record shows her AMMA card lapsed from June 2014 to November 2015. Nevertheless, Mother continued to use marijuana illegally during that time.
Absent material revisions after the relevant dates, statutes cited to refer to the current version unless otherwise indicated. --------
¶5 Mother participated in psychological and psychiatric evaluations with Drs. James Thal and Richard Rosengard. Drs. Thal and Rosengard opined that Mother was using marijuana as a psychological crutch, and that marijuana was ineffective in treating her medical needs. After participating in these evaluations, Mother failed to successfully complete other services offered. Despite recommendations that Mother participate in a psychiatric assessment, including to assess her need for medication to address her mental health issues, Mother failed to follow through with the recommendations of either doctor. Mother failed to consistently participate in drug screenings, testing positive for marijuana when she did participate. Mother also refused to actively participate in the substance abuse services offered through TERROS, and on numerous occasions she affirmatively stated that she did not believe that she had a drug problem, and was not willing to stop using marijuana.
¶6 In June 2015, at the request of DCS and over Mother's objection, the court changed the case plan to severance and adoption. By that time, the children had been in care for nearly two years. DCS' motion to terminate alleged (1) substance abuse; (2) nine-months time-in-care and (3) 15-months time-in-care. See A.R.S. § 8-533(B)(3), (B)(8)(a), (B)(8)(c). After a three-day severance adjudication, in April 2016 the court granted the motion to terminate on all three grounds, also finding termination was in the best interests of the children. This court has jurisdiction over Mother's timely appeal pursuant to A.R.S. §§ 8-235, 12-120.21(A)(1) and 12-2101(A)(10) and Arizona Rules of Procedure for the Juvenile Court 103-04.
DISCUSSION
¶7 As applicable here, to terminate parental rights, a court must find by clear and convincing evidence that at least one statutory ground articulated in A.R.S. § 8-533(B) has been proven and must find by a preponderance of the evidence that termination is in the best interests of the child. See Kent K. v. Bobby M., 210 Ariz. 279, 288 ¶ 41 (2005); Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, 249 ¶ 12 (2000). Because the superior court "is in the best position to weigh the evidence, observe the parties, judge the credibility of witnesses, and resolve disputed facts," this court will affirm an order terminating parental rights as long as it is supported by reasonable evidence. Jordan C. v. Ariz. Dep't of Econ. Sec., 223 Ariz. 86, 93 ¶ 18 (App. 2009) (citation omitted).
¶8 Under the 15-months time-in-care ground, along with best interests and a diligent effort to provide appropriate reunification services, DCS was required to show that the children were
[1] in an out-of-home placement for a cumulative total period of fifteen months or longer pursuant to court order . . ., [2 Mother] has been unable to remedy the circumstances that cause the child[ren] to be in an out-of-home placement and [3] there is a substantial likelihood that . . .[Mother] will not be capable of exercising proper and effective parental care and control in the near future.A.R.S. § 8-533(B)(8)(c). Mother does not challenge the superior court's finding that DCS provided appropriate reunification services, that the children had been in out-of-home placement pursuant to court order for nearly three years by the time severance was granted or that severance was in the best interests of the children. Instead, Mother argues the superior court's findings that she was unable to remedy the circumstances causing the placement and there was a substantial likelihood she could not parent in the near future were flawed because they were based on her use of medical marijuana. Specifically, Mother argues "[t]he ongoing bias against those who use medically prescribed marijuana, as occurred in this case by the court and state agents, has unfairly deprived [Mother] of her right to care for and maintain custody of her children." The record does not support Mother's argument.
¶9 The superior court's detailed findings noted, independent of her marijuana use, Mother "failed to participate in ongoing random urinalysis testing to demonstrate sobriety and failed to participate in and successfully complete substance abuse treatment;" "has not followed through on the recommendations of Dr. Thal or Dr. Rosengard;" and "is not effectively treating her mental health issues, fibromyalgia or seizure disorder. (She continues to have angry outbursts and grand mal seizures.) She is not under the care of a psychiatrist or a rheumatologist."
¶10 The court also noted that, although Mother
has made some progress, her documented behavior confirms that many of her issues have not been resolved at this time. Dr. Thal affirmed that without the participation in ongoing psychiatric services for medication assessment, substance abuse treatment and alternative therapies for treating her medical conditions (i.e. discontinuing marijuana and following recommendations of medical providers for appropriate treatment modalities), Mother is not capable of exercising proper and effective parental care and control in the near future.These findings, which are supported by the evidence received at trial, support the superior court's order terminating Mother's parental rights. Yvonne L. v. Ariz. Dep't of Econ. Sec., 227 Ariz. 415, 422 ¶ 27 (App. 2011) (noting this court looks "'to determine whether there was substantial evidence' to sustain the court's findings") (quoting Lashonda M. v. Dep't of Econ. Sec., 210 Ariz. 77, 81 ¶ 13 (App. 2005)).
¶11 It is true, as Mother argues, that the superior court noted "[s]he refuses to consider alternative treatments to using marijuana for her medical conditions." The court, however, relied on Dr. Thal's testimony that Mother's use of medical marijuana is "not effective. He said 'If this is how she acts while she is on [marijuana], she should ask for her money back. It's not working.'" Contrary to Mother's argument, this conclusion does not suggest that the court terminated Mother's parental rights based on her legal use of medical marijuana or improperly discriminated against her in contravention of A.R.S. § 36-2813. Instead, it reflects that the court terminated Mother's parental rights based on her inability to parent.
¶12 Mother concedes that she has used marijuana "every day for the past several years." She does not, however, address the fact that, from June 2014 to November 2015, she used marijuana illegally because she allowed her AMMA card to lapse. Nor has Mother shown the superior court could not properly consider her illegal use of marijuana in determining whether to terminate her parental rights under A.R.S. § 8-533(B)(8)(c).
¶13 On this record, Mother has not shown the superior court erred in granting the motion to terminate her parental rights based on 15-months time-in-care. Given this conclusion, this court need not address Mother's argument that termination on the other grounds was improper. Jesus v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, 280 ¶ 3 (App. 2002) (noting if one ground for severance is properly shown, this court "need not address claims pertaining to the other grounds").
CONCLUSION
¶14 The superior court's order terminating Mother's parental rights to I.G. and A.H. is affirmed.