Opinion
No. 1 CA-JV 14-0037
06-26-2014
WILLIE J., Appellant, v. ARIZONA DEPARTMENT OF CHILD SAFETY, D.J., Appellees.
Robert D. Rosanelli, Phoenix By Robert D. Rosanelli Counsel for Appellant Arizona Attorney General's Office, Mesa By Nicholas Chapman-Hushek Counsel for Appellees
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
Appeal from the Superior Court in Maricopa County
No. JS507330
The Honorable James P. Beene, Judge
AFFIRMED
COUNSEL
Robert D. Rosanelli, Phoenix
By Robert D. Rosanelli
Counsel for Appellant
Arizona Attorney General's Office, Mesa
By Nicholas Chapman-Hushek
Counsel for Appellees
MEMORANDUM DECISION
Presiding Judge Randall M. Howe delivered the decision of the Court, in which Judge Michael J. Brown and Judge Jon W. Thompson joined. HOWE, Judge:
¶1 Willie J. ("Father") appeals from the superior court's order terminating his parental rights to his daughter, D.J. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 D.J. was born in November 2009. In September 2012, Father and D.J.'s mother left D.J. at a daycare facility and did not pick her up at the end of the day. Father and the child's mother could not be reached and the daycare contacted Child Protective Services. D.J.'s mother did not return to the daycare facility for D.J. until the next day. ADES took custody of D.J. and placed her in a foster home.
The mother's parental rights to D.J. were subsequently terminated. Father is the only parent subject to this appeal.
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¶3 Two days later, both parents submitted to drug testing and both tested positive for cocaine. ADES subsequently learned that both parents had an extensive history of drug abuse. ADES provided Father with reunification services, including supervised visitation, urinalysis testing, and referrals for substance abuse assessment and treatment. Father did not consistently participate in urinalysis testing or abstain from drugs. Throughout his treatment, Father tested positive for cocaine each time he was tested, and failed to provide a sample at least 40 times. D.J. was adjudicated dependent as to Father in November 2012.
¶4 That same month, ADES petitioned to terminate the parent-child relationship between Father and D.J., based upon Father's substance abuse and his terminations to two other children—I.P. and J.J.—within the previous two years for the same cause. The petition noted that Father has had at least five children removed from his care, in part because of substance abuse issues.
¶5 After a contested severance hearing, the court found that Father has been using illegal substances for twenty-five years, and therefore had a history of substance abuse. It then found Father unable to discharge his parental responsibilities and a reasonable belief existed that his substance abuse will continue for an indeterminate period. The court found that ADES had proven, by clear and convincing evidence, the grounds for severance pursuant to A.R.S. § 8-533(B)(3), for Father's inability to parent due to substance abuse.
¶6 The court then examined whether termination existed under A.R.S. § 8-533(B)(10) due to Father's having his parental rights to other children terminated within the preceding two years for the same cause. The court found that Father's parental rights to J.J. and I.P. were terminated within the proceeding two years, and that "[t]he underlying cause for the aforementioned termination of Father's parental rights was due to his substance abuse issues." The court also found that ADES had satisfied the requirements of A.R.S. § 8-533(B)(10) by clear and convincing evidence.
¶7 After a best interests finding, the court terminated Father's parental rights to D.J. Father timely appeals.
DISCUSSION
¶8 Father argues that the juvenile court erred in terminating his parental rights to D.J. because it erroneously found that he was unable to discharge parental responsibilities due to drug abuse and a reasonable belief existed that his drug abuse would continue for an indeterminate period.
¶9 The juvenile court, as the trier of fact, is in the best position to weigh the evidence, observe the parties, judge the credibility of witnesses, and make findings. Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, 280 ¶ 4, 53 P.3d 203, 205 (App. 2002). We accept the juvenile court's factual findings if reasonable evidence supports them, and we affirm a severance order unless it is clearly erroneous. Id. We view the evidence, and all reasonable inferences therefrom, in the light most favorable to upholding the juvenile court's order. Manuel M. v. Ariz. Dep't of Econ. Sec., 218 Ariz. 205, 207 ¶ 2, 181 P.3d 1126, 1128 (App. 2008).
¶10 To terminate parental rights, the juvenile court must find by clear and convincing evidence that a ground for termination set forth in A.R.S. § 8-533 exists, and by a preponderance of the evidence that termination is in the child's best interest. Kent K. v. Bobby M., 210 Ariz. 279, 280, 288 ¶¶ 1, 41, 110 P.3d 1013, 1014, 1022 (2005). To terminate a parent's rights under A.R.S. § 8-533(B)(3), the juvenile court must make two findings: (1) the parent is unable to discharge parental responsibilities because of a history of chronic abuse of controlled substances, and (2) reasonable grounds exist to believe that the abuse will continue for a prolonged and indeterminate period.
¶11 The court did not err in finding that Father is unable to discharge his parental responsibilities. His drug use puts D.J. at risk for harm. For example, D.J. came into ADES's care because she was left at a daycare past hours and her parents did not come to look for her until the next day. Father has admitted that he does not tend to family matters when he uses cocaine.
¶12 Further, the court also did not err in finding a reasonable belief existed that the abuse will continue for a prolonged and indeterminate period. Father has tested positive for drugs for each drug test. He did not consistently participate in the drug rehabilitation program and failed to submit a drug test on numerous occasions. A parent's failure to remedy drug abuse, knowing that parental rights may be terminated imminently, is evidence that the parent has not overcome dependency on drugs. Raymond F. v. Ariz. Dep't of Econ. Sec., 224 Ariz. 373, 379 ¶ 29, 231 P.3d 377, 383 (App. 2010). Even in his brief, Father admits that "he occasionally uses drugs," and makes no promises or statements of remaining sober. The record supports the court's finding that the drug abuse will continue for a prolonged and indeterminate period.
¶13 Father argues that his previous positive drug tests are due to his kidney disease, which interferes with kidney function and causes false reports of drug use. Father, however, does not point to any evidence in the record to suggest that he is sober and his positive drug tests are the result of his kidney disease. We therefore do not give this argument merit.
¶14 Father also argues that the trial court erred in terminating his parental rights under § 8-533(B)(10). Because we find that clear and convincing evidence exists to support termination under § 8-533(B)(3), we need not address any other claims of error in statutory grounds for termination. Jesus M., 203 Ariz. at 280 ¶ 3, 53 P.3d at 205.
CONCLUSION
¶15 For these reasons, we affirm.