Opinion
2 CA-JV 2022-0004
06-03-2022
Monica D., Appellant, v. Department of Child Safety and A.D., Appellees.
Janelle A. McEachern, Chandler Counsel for Appellant Mark Brnovich, 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Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court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 Pinal County No. S1100JD201900277 The Honorable Barbara A. Hazel, Judge
Janelle A. McEachern, Chandler
Counsel for Appellant
Mark Brnovich, Arizona Attorney General
By Autumn Spritzer, Assistant Attorney General, Tucson
Counsel for Appellee Department of Child Safety
Chief Judge Vásquez authored the decision of the Court, in which Presiding Judge Eckerstrom and Judge Espinosa concurred.
MEMORANDUM DECISION
VÁSQUEZ, CHIEF JUDGE
¶1 Monica D. appeals the juvenile court's December 2021 ruling terminating her parental rights to her son, A.D., born in April 2012, based on a history of chronic substance abuse and length of time in court-ordered care. See A.R.S. § 8-533(B)(3), (8)(c). She argues the court erred in finding she had "failed to remedy the circumstances which brought her child into care." We affirm.
The juvenile court also terminated the parental rights of A.D.'s father. He is not a party to this appeal.
Factual and Procedural Background
¶2 We view the evidence in the light most favorable to affirming the juvenile court's ruling. See Christina G. v. Ariz. Dep't of Econ. Sec, 227 Ariz. 231, ¶ 13 (App. 2011). In the summer of 2019, Monica was arrested in Las Vegas, and A.D. was left in the care of his maternal grandmother. A few months later, Monica contacted A.D.'s maternal great-uncle and great-grandmother, who live at the same residence in Casa Grande, and asked if they could care for A.D. because the maternal grandmother was no longer able to do so. They agreed and relocated A.D. to Casa Grande.
A.D. has a half-sister, L.B., who resides in New Mexico with her father and is not a party to this proceeding.
¶3 A private dependency petition was filed in November 2019, alleging that A.D. was dependent as to Monica due to neglect. Based on its welfare finding, the juvenile court ordered A.D. to remain with the maternal great-uncle and great-grandmother, noting that Monica had "voluntarily left the child in the care and control of [the] maternal family" but had "not maintained contact with [them] regarding care and custody of the child."
Nevada and New Mexico both declined jurisdiction in this matter under the Uniform Child Custody Jurisdiction and Enforcement Act.
¶4 At the preliminary protective hearing, the juvenile court granted a motion by the Department of Child Safety (DCS) to substitute as petitioner, and DCS later filed an amended dependency petition. The court set a case plan goal of family reunification and ordered DCS to provide reunification services. Monica was released from jail in January 2020 but remained in Nevada. She had occasional telephone and video contact with A.D., supervised first by the maternal great-uncle and great-grandmother and later by a DCS case aide. Monica's participation in other services at that time was largely unknown because she failed to communicate with the caseworker.
¶5 Monica was arrested in Reno in April 2020 for possession of a controlled substance. In September 2020, she "turned [her] self in" to law enforcement for an outstanding warrant. Monica was sentenced to prison for grand larceny in January 2021, and she remained in custody until July 2021. Although Monica asserted she had attended a "self-help" class in prison, she offered no proof of that class, and nothing in the record before us establishes that she participated in any drug-related services during this period. After being released from prison, Monica was placed on parole, which was set to end in May 2022. Because of the terms of her parole, Monica was unable to travel outside of Nevada without permission and for no more than two weeks at a time.
¶6 Meanwhile, in April 2021, the juvenile court changed the case plan to severance and adoption. DCS subsequently filed a petition for termination of the parent-child relationship. It alleged that Monica was unable to discharge her parental responsibilities because of a history of chronic substance abuse, § 8-533(B)(3), and A.D.'s length of time in court-ordered care, § 8-533(B)(8)(c).
¶7 After a two-part contested severance hearing, the juvenile court granted the petition for termination of the parent-child relationship. The court found DCS had established both alleged statutory grounds and termination of Monica's parental rights was in A.D.'s best interests. This appeal followed.
Discussion
¶8 Monica argues the juvenile court "clearly erred" by finding she "had failed to remedy the circumstances which brought her child into care." This court "will affirm a termination order that is supported by reasonable evidence." Jordan C. v. Ariz. Dep't of Econ. Sec, 223 Ariz. 86, ¶ 18 (App. 2009). Put another way, we will not reverse a termination order unless, as a matter of law, no reasonable factfinder 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). We defer to the juvenile court, as the factfinder, to weigh the evidence, judge the credibility of the witnesses, and resolve disputed facts. Jesus M. v. Ariz. Dep't of Econ. Sec, 203 Ariz. 278, ¶ 12 (App. 2002).
¶9 The juvenile court may terminate a parent's rights if it finds by clear and convincing evidence that at least one of the statutory grounds for termination exists and by a preponderance of the evidence that termination of the parent's rights 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). As relevant here, § 8-533(B)(3) provides, as a ground for termination, "[t]hat the parent is unable to discharge parental responsibilities because of . . . 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." In addition, § 8-533(B)(8)(c) allows the court to sever a parent's rights if (1) "[t]he child has been in an out-of-home placement for a cumulative total period of fifteen months or longer pursuant to court order or voluntary placement," (2) "the parent has been unable to remedy the circumstances that cause the child to be in an out-of-home placement," and (3) "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." See In re Maricopa Cnty. Juv. Action No. JS-8441, 175 Ariz. 463, 468 (App. 1993) (construing "circumstances which cause the child to be in out-of-home placement" to mean circumstances existing at time of severance rather than at time of initial dependency petition), abrogated on other grounds by Kent K., 210 Ariz. 279, ¶¶ 12, 22. DCS is also required to make "a diligent effort to provide appropriate reunification services." § 8-533(B)(8); see also Mary Lou C. v. Ariz. Dep't of Econ. Sec, 207 Ariz. 43, ¶¶ 14-15 (App. 2004) (requiring reasonable efforts under § 8-533(B)(3)).
¶10 Monica maintains that, by the time of the contested severance hearing, she "was making sincere, active efforts to remedy the circumstances which brought her child into care." Specifically, she points out that she "was released from prison, was compliant with probation services, had housing with her mother and later with her domestic partner" and that she "was in contact with her son and was providing gifts including shoes to him."
¶11 Monica seems to conflate the elements of § 8-533(B)(3) and § 8-533(B)(8)(c). Unlike § 8-533(B)(8)(c), § 8-533(B)(3) does not include the requirement that "the parent has been unable to remedy the circumstances that cause the child to be in an out-of-home placement." Instead, it requires that the condition of the parent's substance abuse "will continue for a prolonged indeterminate period." § 8-533(B)(3). Section 8-533(B)(8)(c) thus focuses on the parent's failure to correct the problem, while § 8-533(B)(3) recognizes that certain conditions may continue despite a parent's efforts.
¶12 However, even considering the requirement that "the parent has been unable to remedy the circumstances that cause the child to be in an out-of-home placement," Monica has failed to establish that the juvenile court erred. § 8-533(B)(8)(c). As the court recognized, the record shows Monica started to make progress on the case plan, particularly after being released from prison in July 2021. According to her parole officer, Monica had no positive drug tests after being released from prison in July 2021. She had three or four in-person visits with A.D. and purchased shoes and toys for him. She also obtained housing and employment.
On the first day of the contested severance hearing, Monica testified that she had not yet obtained employment. However, on the second day of the hearing, about a month later, she testified that she had recently begun working. As DCS points out, the juvenile court's December 2021 ruling states that Monica "remains unemployed." It is unclear whether this was a clerical error, but, in any event, Monica does not challenge the statement on appeal. We therefore do not address it further. See Crystal E. v. Dep't of Child Safety, 241 Ariz. 576, ¶ 6 (App. 2017) ("[W]e adhere to the policy that it is generally not our role to sua sponte address issues not raised by the appellant."); Christina G., 227 Ariz. 231, n.6 (failure to develop argument on appeal usually results in abandonment and waiver).
¶13 That said, Monica has an established history of substance abuse. She was arrested in June 2018 for a probation violation-testing positive for cocaine-and she was in prison or jail at least three times-largely related to her substance abuse-during this proceeding. She admitted to being "addicted to meth," in addition to using cocaine and marijuana and drinking alcohol. As the caseworker explained, Monica needed to establish an extended period of sobriety-at least six months-outside of a controlled setting. But at the time of the contested severance hearing, Monica had only established her sobriety for two to three months since being released from prison. In addition, after completing her intense outpatient treatment in September 2021, Monica did not immediately enroll in additional drug-related services, and she also failed to provide the caseworker with requested documentation.
By the second day of the hearing in October 2021, Monica had attended individual counseling, parenting classes, and another outpatient drug program.
¶14 Moreover, Monica admitted that she could not financially support A.D. at the time of the hearing. She stated that A.D.'s "doing great where he's at" and that she did not "want to take him away from that [until she was] settled," suggesting it would be "around a few months." And her parole was not scheduled to end until May 2022. But" [l]eaving the window of opportunity for remediation open indefinitely is not necessary." In re Maricopa Cnty. Juv. Action No. JS-501568, 177 Ariz. 571, 577 (App. 1994). Monica had nearly two years over the course of this proceeding, yet she waited until the final few months before the hearing to make meaningful progress toward reunification. See id. (parent's successful efforts at recovery, while commendable, were "too little, too late" for purposes of severance). The juvenile court therefore did not err in granting the petition for termination of the parent-child relationship.
Disposition
¶15 For the foregoing reasons, we affirm the juvenile court's ruling terminating Monica's parental rights to A.D.