Opinion
No. 2 CA-JV 2017-0184
03-13-2018
LIYAH L., Appellant, v. DEPARTMENT OF CHILD SAFETY AND A.A., Appellees.
COUNSEL Domingo DeGrazia, Tucson Counsel for Appellant Mark Brnovich, Arizona Attorney General By Michelle R. Nimmo, Assistant Attorney General, Tucson Counsel for Appellee Department of Child Safety
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f); Ariz. R. P. Juv. Ct. 103(G). Appeal from the Superior Court in Pima County
No. JD20160289
The Honorable Alyce L. Pennington, Judge Pro Tempore
AFFIRMED
COUNSEL Domingo DeGrazia, Tucson
Counsel for Appellant Mark Brnovich, Arizona Attorney General
By Michelle R. Nimmo, Assistant Attorney General, Tucson
Counsel for Appellee Department of Child Safety
MEMORANDUM DECISION
Chief Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Staring and Judge Brearcliffe concurred. ECKERSTROM, Chief Judge:
¶1 Liyah L. challenges the juvenile court's order terminating her parental rights to her daughter, A.A., on grounds of chronic substance abuse and fifteen-month, court-ordered, out-of-home care. See A.R.S. § 8-533(B)(3), (B)(8)(c). She argues there was insufficient evidence to support statutory grounds for termination or the court's finding that termination was in A.A.'s best interests. Finding no error, we affirm.
We are unable to determine why Liyah's appellate brief refers to her daughter by the initials "E.P." Consistent with the juvenile court's termination order, we refer to her in this decision by the initials A.A.
Factual and Procedural Background
¶2 "[W]e view the evidence and reasonable inferences to be drawn from it in the light most favorable to sustaining the [juvenile] court's decision." Jordan C. v. Ariz. Dep't of Econ. Sec., 223 Ariz. 86, ¶ 18 (App. 2009). Shortly after A.A.'s birth in April 2016, the Department of Child Safety (DCS) removed her from Liyah's custody based on Liyah's admission that she had used heroin during the first and second trimesters of her pregnancy. A.A. was adjudicated dependent in July, after Liyah admitted allegations that she had used heroin intravenously since July 2015, engaged in domestic violence with A.A.'s father, Michael A., and lacked the financial resources to provide for A.A.'s basic needs.
Michael's parental rights to A.A. were terminated in March 2017. He is not a party to this appeal.
¶3 DCS initially offered Liyah services including random urinalysis testing, Family Drug Court, parent-education classes, healthy-relationships classes, Team Decision Making meetings, Child and Family Team meetings, and visitation. But from April 2016 to June 2017, Liyah failed to fully comply with random urinalysis and, when she did participate, she often tested positive for illegal substances. During this same period of time, she did not promptly engage in all of the services offered to her, and she inconsistently visited A.A., admitting that she had skipped some visits because she was "high." She relapsed while in a residential treatment program and left without a successful discharge, and she was terminated from participation in Family Drug Court.
¶4 In January 2017, the juvenile court changed the case-plan goal to severance and adoption. In February, DCS filed a motion to terminate Liyah's parental rights, but in June, it reported Liyah's compliance had improved, and it moved to withdraw the motion in order to afford her additional time to resolve the dependency. Although the court granted the motion, it admonished Liyah that she needed "to have no missed calls for her drug testing, no positive tests, and no diluted tests" in order to continue with a concurrent plan that included the goal of reunification.
¶5 Liyah subsequently participated in a parent-child relationship assessment, but the assessor reported that Liyah and A.A. showed a "high amount of distress in [their] relationship," Liyah appeared unable to "read [A.A.'s] cues," and there were "cumulative risk factors that need[ed] to be considered before moving toward reunification." And, on June 22, 2017, notwithstanding the juvenile court's admonishment less than two weeks before, Liyah tested positive for methamphetamine. The court reinstated the case-plan goal of severance and adoption. DCS filed a motion to terminate Liyah's rights on grounds that she suffered from chronic, disabling substance abuse that was likely to continue for a prolonged, indeterminate period, see § 8-533(B)(3), and had been unable to remedy the circumstances causing A.A. to be in court-ordered care for more than fifteen months, with a reasonable likelihood that she would be unable to parent effectively in the near future, see § 8-533(B)(8)(c).
¶6 At the termination adjudication hearing in October 2017, evaluating psychologist Jill Plevell testified about her findings that Liyah "manifested limited knowledge of normal development and practical parenting," having been exposed in her family-of-origin to "parental modeling of substance abuse and domestic violence." In her report, Dr. Plevell had opined that, absent effective changes, "a child in [Liyah's] care . . . is at an elevated risk for neglect," and she reported Liyah's condition appeared most consistent with an unspecified mood disorder, a stimulant-use disorder, an opioid-use disorder in early remission; and an alcohol-use disorder in sustained, full remission. She testified that evidence of Liyah's recent sobriety, from late June until mid-October 2017, was insufficient to reduce the risk Liyah's substance abuse posed to A.A., particularly in light of Liyah's significant substance-abuse history.
Liyah testified that she had begun using heroin and methamphetamine "[o]n a daily basis" at the age of thirteen.
¶7 In a ten-page, under-advisement ruling, the juvenile court detailed that history, including Liyah's unsuccessfully terminated inpatient treatment "from the approximate age of 14 through 16" and her inability to maintain sobriety while pregnant with A.A. The court acknowledged that Liyah, who had been unemployed since A.A. was born, had started a job on September 1, 2017, had engaged in individual therapy, and had completed "Substance Abuse Education, domestic violence classes, Healthy Relationships, parenting groups, and [a] Relapse Prevention [class]." But the court also noted that many of the substance abuse classes Liyah attended, from January through June 2017, were completed while she continued to use drugs.
¶8 As for Liyah's present and future ability to parent, relevant to both of the grounds alleged, the juvenile court considered her many missed visitation appointments and testimony from the parent-child relationship therapist, who reported that Liyah had made some "small steps" but could require six to eighteen months of additional therapy, along with gradual increases in parenting time. And, in the therapist's opinion, returning A.A. to Liyah prematurely could cause emotional damage to the child.
¶9 In its ruling, the juvenile court provided an analysis of each of the considerations relevant to the statutory grounds for termination and concluded DCS had proven both grounds alleged by clear and convincing evidence. The court further found, by a preponderance of the evidence, that termination was in A.A.'s best interests, noting that she is "bonded to her foster family including her foster siblings," that her foster parents wish to adopt her, and that, "[g]iven her age and temperament, she would be very adoptable, even if the current placement decided not to adopt." This appeal followed.
Discussion
¶10 A juvenile court may terminate a parent's rights if it finds clear and convincing evidence of a statutory ground for severance and finds by a preponderance of the evidence that termination is in the child's best interests. A.R.S. §§ 8-533(B), 8-537(B); Kent K. v. Bobby M., 210 Ariz. 279, ¶ 41 (2005). "[W]e will affirm a termination order that is supported by reasonable evidence." Jordan C., 223 Ariz. 86, ¶ 18. That is, we will not reverse a termination order for insufficient evidence unless, as a matter of law, no reasonable fact-finder could have found the evidence satisfied the applicable burden of proof. See Denise R. v. Ariz. Dep't of Econ. Sec., 221 Ariz. 92, ¶ 10 (App. 2009).
¶11 On appeal, Liyah first argues the evidence was insufficient for a reasonable person to conclude termination was warranted due to her chronic substance abuse. She does not dispute the juvenile court's findings regarding her history before and during the dependency proceedings, but argues, "Through random urine analysis, she . . . proved sobriety and that she had achieved a stable lifestyle that fostered sobriety," such that "[her] prior substance abuse issue had been addressed and her history did not presently compromise her ability to parent."
¶12 As described above, ample evidence supported the juvenile court's findings related to Liyah's chronic substance abuse. That court is "in the best position to weigh the evidence, observe the parties, judge the credibility of witnesses, and resolve disputed facts," and we will not reweigh evidence on review. Ariz. Dep't of Econ. Sec. v. Oscar O., 209 Ariz. 332, ¶¶ 4, 14 (App. 2004); see also Raymond F. v. Ariz. Dep't of Econ. Sec., 224 Ariz. 373, ¶¶ 16, 29 (App. 2010) ("drug abuse need not be constant to be considered chronic"; "temporary abstinence" did not outweigh father's "consistent inability" throughout pendency of case to maintain sustained sobriety).
¶13 For similar reasons, we reject Liyah's challenges to termination on time-in-care grounds. She maintains, "The circumstance that caused the minor to be in out-of-home placement had been remedied as evidenced by her numerous certificates admitted at trial and proof of sobriety." But the juvenile court clearly and carefully identified contrary evidence of circumstances that rendered Liyah unable to parent presently and created a reasonable likelihood that she would be unable to parent effectively in the near future, despite DCS's diligent efforts to provide appropriate reunification services.
We are somewhat at a loss to understand Liyah's challenge to the juvenile court's order finding DCS made a diligent effort to provide appropriate reunification services, as required by § 8-533(B)(8). She writes, "In the under advisement ruling the trial court laid out the basis for reasonable efforts findings under the first alleged ground, then jumped to the second alleged ground and found that diligent efforts were made but did so without citing additional proof of efforts made." But the juvenile court specifically listed services provided that formed the basis of its diligent-efforts finding, and, as the court noted, Liyah testified that there were no additional services DCS could have offered to assist her. --------
¶14 In challenging the juvenile court's determination of best interests, Liyah does not dispute its findings that A.A. is adoptable, in an adoptive home, and bonded with her foster family. And we have held such evidence is sufficient to support a best-interests finding. See Audra T. v. Ariz. Dep't of Econ. Sec., 194 Ariz. 376, ¶ 5 (App. 1998) (court may consider "the immediate availability of an adoptive placement" or "whether an existing placement is meeting the needs of the child" in support of best interests); Mary Lou C. v. Ariz. Dep't of Econ. Sec., 207 Ariz. 43, ¶ 19 (App. 2004) (best interests may be established by showing current adoptive plan or that child is adoptable). Instead, she repeats her arguments challenging the statutory grounds for severance and contends her interests and A.A.'s interests had not "diverged sufficiently" to justify a best-interests finding or termination of her parental rights. We have already concluded sufficient evidence supported the court's finding of statutory grounds, as detailed in its ruling. Accordingly, we need not further address this derivative argument regarding best-interests.
Disposition
¶15 The juvenile court's ruling includes its well-reasoned analysis of the evidence received in the context of the applicable law, and its findings are supported by the record. We find no abuse of discretion, and we need not restate the court's analysis in full detail here. See Jesus M. v. Ariz. Dep't of Econ Sec., 203 Ariz. 278, ¶ 16 (App. 2002), citing State v. Whipple, 177 Ariz. 272, 274 (App. 1993). Instead, we adopt it, and we affirm the court's termination of Liyah's parental rights.