Opinion
No. 1 CA-JV 18-0302
02-28-2019
JENNIFER W., Appellant, v. DEPARTMENT OF CHILD SAFETY, S.W., L.W., M.W., Appellees.
COUNSEL Harris & Winger, PC, Flagstaff By Chad Joshua Winger Counsel for Appellant Arizona Attorney General's Office, Tucson By Autumn Spritzer 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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 Mohave County
No. L8015JD201707019
The Honorable Derek C. Carlisle, Judge
AFFIRMED
COUNSEL Harris & Winger, PC, Flagstaff
By Chad Joshua Winger
Counsel for Appellant Arizona Attorney General's Office, Tucson
By Autumn Spritzer
Counsel for Appellee Department of Child Safety
MEMORANDUM DECISION
Judge Peter B. Swann delivered the decision of the court, in which Presiding Judge James B. Morse Jr. and Judge Jon W. Thompson joined. SWANN, Judge:
¶1 Jennifer W. ("Mother") appeals from the superior court's order severing her rights to S.W., L.W., and M.W. (the "Children"). We affirm because reasonable evidence supports the severance order.
FACTS AND PROCEDURAL HISTORY
¶2 Mother is the biological parent of S.W., born February 2012, L.W., born June 2014, and M.W., born April 2016. Mother has a history of marijuana, methamphetamine, and alcohol abuse, and had her rights to her oldest child terminated in California, partly because of substance abuse.
¶3 In May 2017, the Department of Child Safety ("DCS") received an anonymous report forwarded from the Mohave County Sheriff's Department containing photographs of the inside of Mother's home. The photographs showed Mother's home littered with "bags of trash, clothes, toys, cleaning supplies, used condoms, dirty dishes, empty cans of alcohol, multiple small bags with white residue, glass pipes used to smoke drugs, a small digital scale, and a torch." When it received the report, DCS went to Mother's home for an initial assessment.
¶4 After DCS knocked and rang the doorbell several times, Mother answered and told DCS that she had been sleeping and that the Children's father was at work in Kingman. Mother was uncooperative with DCS, tried to pull papers out of the DCS caseworker's hands, and would not disclose where the Children were. Later, Mother told DCS that the Children had been staying at her mother's ("Grandmother") house for the last two weeks because she had been on vacation in California and when she returned, she decided the home was not safe for children. The DCS caseworker testified that Mother's behavior was consistent with substance abuse.
Father's rights to the Children have been terminated and he is not a party to this appeal.
¶5 Mother maintained that she had not left the house in the condition depicted in the photographs and suggested that Grandmother's boyfriend might have entered her house, scoured through her belongings, and planted the drugs in her house for the photographs. She said she did not file a police report of the alleged break-in because she did not "want to."
¶6 After talking with Mother, DCS filed a dependency petition and placed the Children with Grandmother after discovering that Grandmother had been taking the Children to school daily and to doctor's appointments. During the DCS assessment, all the Children called Grandmother "Mommy" or "Mom" and DCS concluded that Grandmother had likely been the primary caregiver for some time.
¶7 DCS informed Mother that she would need to live a clean and sober lifestyle and referred her to Arizona Families First for a substance abuse assessment and random drug testing at TASC. DCS also provided Mother with parenting classes, psychological testing and evaluation, and supervised visitation. Mother agreed to drug testing, but failed to complete a single urinalysis or hair follicle test. Mother asked for buccal swab testing, which only detects drug or alcohol usage within two hours of the mouth swab, unlike urinalysis tests which can detect drug usage up to three days before the test. Mother was closed out of substance-abuse testing 15 times for failure to test, and often did not call in to see if she had to test.
¶8 Mother claimed that she did not have transportation to the testing facility, but DCS offered her transportation and she "did not respond positively" to that offer. She also claimed that some of the testing hours were inconvenient for her but did not go to testing even when the hours were switched to a different time. In January 2018, Mother claimed that she was unable to complete urinalysis testing because she was not able to "urinate in front of someone." Mother still had not completed any form of drug testing at that point. Mother completed buccal swab testing in February 2018.
¶9 In March 2018, DCS filed a motion to terminate Mother's parental rights, alleging chronic drug abuse and nine months' time-in-care. The court held a trial in June 2018, at which Mother testified that she did not have a drug abuse problem and that she had lied about having a substance abuse problem in the California severance proceedings because she was required to say she had a problem to qualify for services. She testified that she was "angry" that the DCS caseworker assigned to her case was someone whom she disliked in high school, and that was the reason she did not start services sooner. Mother testified that the DCS caseworker told her dyed hair would make a hair follicle test ineffective but then admitted that she did her own research and found out that dye does not affect hair follicle testing.
¶10 Dr. Stephen Gill, a psychologist assigned to Mother's case, testified at trial regarding his evaluation of Mother. Dr. Gill opined that Mother's denial of previous substance abuse in the California case is consistent with current substance abuse, and that the evidence shows the Children are bonded to Grandmother rather than Mother. He also testified that Mother's personality assessment showed that she underreported, meaning she failed to acknowledge minor flaws or weaknesses that most people would acknowledge. Overall, Dr. Gill opined that Mother's behavior is consistent with substance abuse and that Mother was often not present with the Children who were with Grandmother.
¶11 After trial, the superior court severed Mother's parental rights on the grounds of chronic substance abuse and nine months' time-in-care. See A.R.S. § 8-533(B)(3), (8)(a).
DISCUSSION
¶12 The superior court is in the best position to "weigh the evidence, judge the credibility of the parties, observe the parties, and make appropriate factual findings." Pima Cty. Dependency Action No. 93511, 154 Ariz. 543, 546 (App. 1987). We review a severance ruling for an abuse of discretion and defer to the superior court's credibility determinations and factual findings. Mary Lou C. v. Ariz. Dep't of Econ. Sec., 207 Ariz. 43, 47, ¶ 8 (App. 2004). We will not reweigh the evidence, but will only determine if evidence exists to support the court's ruling. Id. I. REASONABLE EVIDENCE SUPPORTS THE SUPERIOR COURT'S ORDER SEVERING MOTHER'S RIGHTS UNDER A.R.S. § 8-533(B)(3).
¶13 Mother argues the superior court erred because its findings under A.R.S. § 8-533(B)(3) are not supported by the evidence presented. A court may terminate parental rights when a parent is unable to discharge parental responsibilities because of "a history of chronic abuse of dangerous drugs . . . and there are reasonable grounds to believe that the condition will continue for a prolonged indeterminate period." A.R.S. § 8-533(B)(3). Chronic substance abuse is not necessarily constant, but rather long-lasting. Raymond F. v Ariz. Dep't of Econ. Sec., 224 Ariz. 373, 377, ¶ 16 (App. 2010). The court must also find that DCS made reasonable efforts to reunify the family or that those efforts would have been futile. Jennifer G. v. Ariz. Dep't of Econ. Sec., 211 Ariz. 450, 453, ¶ 12 (App. 2005).
Mother also briefly contends that "the statutory basis for the chronic substance abuse ground is unconstitutional as it fails to require judicial analysis of remedial services provided and parental participation therein." She does not develop this argument throughout her brief, and we consider it waived. See Crystal E. v. Dep't of Child Safety, 241 Ariz. 576, 577-78, ¶ 5 (App. 2017) (recognizing that the failure to develop an argument on appeal typically results in abandonment and waiver of the issue) (citation omitted).
¶14 Here, Mother argues she completed DCS services, including drug testing by buccal swab, and that there is no evidence showing chronic substance abuse. Mother further argues that her psychological evaluation states that she has a low probability of having a moderate to severe substance abuse disorder, and that the court erroneously ignored the evaluation's findings to conclude she has a chronic substance abuse problem.
¶15 There was sufficient evidence for the court to reasonably conclude that Mother's history of drug use coupled with her failure to submit to any urinalysis or hair follicle testing indicates chronic substance abuse. Indeed, Mother missed 15 weeks of drug testing. See Raymond F., 224 Ariz. at 379, ¶ 27 (including a two-month period in which the parent did not submit to drug and alcohol testing as evidence that drug abuse would continue). Though Mother argued that she could not provide a urinalysis test because of "female issues" and testified that the DCS caseworker told her a hair follicle test would be inaccurate if she dyed her hair, she later admitted her own research indicated hair follicle tests were not affected by hair dye. She therefore had no reason to delay hair follicle testing. Mother's few buccal swab tests are unconvincing because they only detect drug use up to two hours before the test. Though her psychological evaluation indicated she had a low probability of having a substance abuse disorder, the evaluation is a "self-report" measure, which solely shows she "did not produce a random answering pattern" on the test and "did not admit to a drug and alcohol history." Dr. Gill testified that Mother's denial of a substance abuse problem in the California proceedings is consistent with substance abuse, and that her underreporting of even minor psychological conditions indicates her psychological test was of questionable validity. The court found that Mother's testimony suggesting someone broke into her house and planted drugs to incriminate her was not credible, and we do not find that the court abused its discretion in doing so. II. REASONABLE EVIDENCE SUPPORTS THE COURT'S FINDING THAT SEVERANCE OF MOTHER'S PARENTAL RIGHTS SERVED THE CHILDREN'S BEST INTERESTS.
Mother also challenges the superior court's finding of nine months' time-in-care. Because we affirm on chronic substance abuse, however, we need not address other grounds for severance. See Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, 280, ¶ 3 (App. 2002). --------
¶16 Mother argues severance is not in the Children's best interests because there was no evidence that she ever harmed the Children, because she is capable of engaging in services, and because very little would change for the Children after severance termination.
¶17 We accept the superior court's findings if reasonable evidence supports them, and will affirm a severance order unless clearly erroneous. Demetrius L. v. Joshlynn F., 239 Ariz. 1, 3, ¶ 9 (2016). The moving party must prove by a preponderance of the evidence that severance of parental rights is in the child's best interests. Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 22 (2005). The petitioner may show severance is in the child's best interests if continued custody by the parent would harm the child, or if removal would benefit the child. Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, 282, ¶ 14 (App. 2002). The requirement may also be met if the moving party shows that there exists an adoptive plan for the child, or if the child is adoptable. Demetrius L., 239 Ariz. at 3-4, ¶ 12.
¶18 Here, the superior court found that severing Mother's parental rights to the Children would further the plan of adoption and would provide Children with permanency and stability. The court found that their placement with Grandmother met all the Children's needs and is the least restrictive placement. Though Mother argues that she has never harmed the Children, the best interests determination does not require a finding that the parent harmed the children, see A.R.S. § 8-533(B), but rather that continued custody by the parent would harm them or that removal would benefit them. Jesus M., 203 Ariz. at 282, ¶ 14. The court properly found that removal of the Children from Mother's care would benefit the Children because it would provide them with a stable home environment and permanency. Grandmother can determine whether the Children would benefit from further contact with Mother. Children's placement with Grandmother could still allow Mother to maintain contact, but the Children will no longer be in harm's way. Therefore, we find no error in the court's determination that severance was in the Children's best interests.
CONCLUSION
¶19 Because reasonable evidence supported the superior court's order severing Mother's parental rights to the Children, we affirm.