Kara B. v. Dcs, A.B. ( 2021 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
KARA B., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, A.B., Appellees.
No. 1 CA-JV 21-0001
FILED 6-15-2021
Appeal from the Superior Court in Maricopa County
No. JD15968
JS20278
The Honorable Julie Ann Mata, Judge
AFFIRMED
COUNSEL
Law Office of H. Clark Jones, LLC, Mesa
By H. Clark Jones
Counsel for Appellant
Arizona Attorney General’s Office, Phoenix
By JoAnn Falgout
Counsel for Appellee Department of Child Safety
KARA B. v. DCS, A.B.
Decision of the Court
MEMORANDUM DECISION
Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Paul J. McMurdie and Judge Cynthia J. Bailey joined.
W I N T H R O P, Judge:
¶1 Kara B. (“Mother”) appeals the juvenile court’s order
terminating her parental rights to A.B. (born September 7, 2018), arguing
insufficient evidence supported the grounds for termination. For the
following reasons, we affirm.
FACTS1 AND PROCEDURAL HISTORY
¶2 Mother has a long history of drug abuse and involvement
with the Department of Child Safety (“DCS”). Mother herself was a
dependent child and went through twenty-six different foster placements
before she aged out of the system. She first used methamphetamine around
the age of eleven, although she stated she did not use it regularly until
around age twenty.
¶3 In 2009, the court terminated Mother’s parental rights to her
first child on the substance-abuse ground pursuant to Arizona Revised
Statutes (“A.R.S.”) section 8-533(B)(3). Throughout that case, Mother
consistently refused to participate in drug testing and insisted she was not
abusing any substances, but then tested positive for methamphetamine. In
2015, two more of Mother’s children were placed in DCS custody based on
neglect and Mother’s inability to parent due to substance abuse. During the
pendency of that case, Mother again tested positive for methamphetamine.
Mother consented to terminate her parental rights to those two children in
August 2016.
¶4 When A.B. was born, Mother tested positive for
amphetamines at the hospital and admitted to using methamphetamine
during the early months of her pregnancy. Accordingly, a nurse contacted
DCS. A DCS case manager met Mother at the hospital, at which point
Mother stated she wanted to sign over her parental rights to A.B. to a friend
1 We review the facts and reasonable inferences therefrom in the light
most favorable to affirming the juvenile court’s order. Ariz. Dep’t of Econ.
Sec. v. Matthew L., 223 Ariz. 547, 549, ¶ 7 (App. 2010).
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KARA B. v. DCS, A.B.
Decision of the Court
visiting her in the hospital. DCS removed A.B. from Mother’s care and filed
a dependency petition alleging that Mother had neglected A.B. due to
substance abuse and was unwilling or unable to parent A.B. based on her
desire to sign over her parental rights to a friend.
¶5 A few days after DCS removed A.B. from Mother’s care,
Mother participated in a team decision-making meeting with DCS. At the
start of the meeting, Mother produced printouts of guardianship
paperwork and stated the meeting was unnecessary because she was
willing to sign over permanent guardianship of A.B. to her friend. DCS
ended the meeting prematurely after Mother exhibited “bizarre” and
combative behaviors, including hitting the table, constantly interrupting
others, name-calling, and calling the police but leaving before they arrived.
¶6 To reunite with A.B., DCS requested Mother demonstrate,
among other things, her ability to maintain sobriety, control her impulses,
and understand and articulate how her substance abuse issues impacted
her ability to parent safely. DCS provided or referred Mother for services
to help her overcome her substance abuse issues, including supervised
visitation, parent-aide services, transportation, psychological services, and
substance abuse testing and treatment.
¶7 Mother was unsuccessfully closed out of substance abuse
treatment and parent-aide services on multiple occasions for non-
participation. Mother self-referred to Focus Family, where she completed
parenting, substance abuse, and domestic violence classes. However, Focus
Family did not require Mother to complete any drug testing. Through the
pendency of this case, Mother refused to participate in required substance
abuse testing, even when explicitly ordered by the court.2
¶8 In November 2019, in a separate action, DCS filed a petition
to terminate Mother’s parental rights to A.B., alleging multiple grounds for
severance. After a two-day combined dependency and severance hearing,
the court entered an order finding A.B. dependent as to Mother and
terminating Mother’s parental rights to A.B. based on multiple grounds,
including the substance-abuse ground pursuant to A.R.S. § 8-533(B)(3).
2 Mother testified she was “clean and sober,” but refused to drug test
because she wanted to “stand up against the system” and assert her right
to privacy and right against self-incrimination.
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KARA B. v. DCS, A.B.
Decision of the Court
¶9 Mother filed a timely notice of appeal. We have jurisdiction
pursuant to A.R.S. § 8-235(A) and Arizona Rule of Procedure for the
Juvenile Court 103(A).
ANALYSIS
I. Standard of Review
¶10 We review the juvenile court’s order severing parental rights
for an abuse of discretion, and we will not disturb the order unless no
reasonable evidence supports its factual findings. E.R. v. Dep’t of Child
Safety, 237 Ariz. 56, 58, ¶ 9 (App. 2015); Matthew L., 223 Ariz. at 549, ¶ 7.
The court may sever parental rights if it finds clear and convincing evidence
of one of the statutory grounds for severance and finds, by a preponderance
of the evidence, that severance is in the child’s best interests. See A.R.S.
§§ 8-533(B), -537(B); Kent K. v. Bobby M., 210 Ariz. 279, 281-82, 288, ¶¶ 7, 41
(2005).
¶11 As the trier of fact in a termination proceeding, the juvenile
court “is in the best position to weigh the evidence, observe the parties,
judge the credibility of witnesses, and resolve disputed facts.” Jordan C. v.
Ariz. Dep’t of Econ. Sec., 223 Ariz. 86, 93, ¶ 18 (App. 2009) (quoting Ariz. Dep’t
of Econ. Sec. v. Oscar O., 209 Ariz. 332, 334, ¶ 4 (App. 2004)). We do not
reweigh evidence on appeal. Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz.
278, 282, ¶ 12 (App. 2002).
II. Termination of Parental Rights Pursuant to A.R.S. § 8-533(B)(3)
¶12 Pursuant to A.R.S. § 8-533(B)(3), the court may terminate
parental rights if “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.”
¶13 Mother argues the court abused its discretion in finding DCS
proved by clear and convincing evidence the chronic substance-abuse
ground for termination pursuant to A.R.S. § 8-533(B)(3). She does not
dispute that she has a history of chronic substance abuse nor that there were
reasonable grounds to believe that such substance abuse will continue.
However, she contends there was insufficient evidence showing she was
currently unable to discharge her parental responsibilities because of
substance abuse, based on her strong bond with A.B., participation “in
numerous services designed to help her attain and maintain sobriety,” and
appropriate parental behavior during visits with A.B. Mother argues the
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KARA B. v. DCS, A.B.
Decision of the Court
court abused its discretion in concluding substance abuse precluded her
from parenting without any “hard evidence” of her substance abuse.
¶14 Here, Mother demonstrated some appropriate parenting
behaviors during visits with A.B. and participated in parenting and
substance abuse classes with Focus Family to improve her ability to parent.
But Mother has a long history of being unable to discharge her parental
responsibilities due to substance abuse, which previously led to the
termination of her parental rights to three other children. In connection
with this action, Mother exhibited “bizarre” and combative behavior in at
least one team decision-making meeting with DCS. A psychologist who
evaluated Mother concluded her methamphetamine abuse could lead her
to neglect and provide inadequate attention to a young and vulnerable
child. The juvenile court also noted Mother has a history of impulsive
behaviors, along with a lack of self-control, and concluded it was “not
convinced [Mother] could meet the rigors of day-to-day parenting of a
young child without assurances of attempts at sobriety.”
¶15 Early in this case, DCS informed Mother she would need to
maintain sobriety and demonstrate an ability to effectively parent to be
reunited with A.B. Although Mother testified that she was not abusing
substances, she has in previous dependency actions likewise insisted she
was sober, similarly refused to participate in testing, and upon court order,
subsequently tested positive for methamphetamine. In the present
dependency/severance action, the court could reasonably infer Mother had
continuing substance abuse issues based on her consistent refusal to submit
to drug testing during the pendency of the case, even when ordered to do
so by the court. See Montoya v. Superior Court, 173 Ariz. 129, 131 (App. 1992)
(explaining the court could “draw a negative inference” when a father
invoked the Fifth Amendment rather than answer questions about his past
drug use in a custody proceeding); see also State v. Harvill, 106 Ariz. 386, 391
(1970) (“[T]he probative value of direct and circumstantial evidence [is]
intrinsically similar; therefore, there is no logically sound reason for
drawing a distinction as to the weight to be assigned each.”). Mother could
have rebutted that negative inference by complying with requested drug
tests and demonstrating sobriety, but she was unwilling to do so. See
Montoya, 173 Ariz. at 131. On this record, the juvenile court did not abuse
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Decision of the Court
its discretion in concluding Mother could not discharge her parental
responsibilities due to her history of chronic substance abuse. 3
III. Best Interests of the Child
¶16 Mother does not challenge, and has therefore waived any
argument regarding, the juvenile court’s finding that termination of her
parental rights was in the child’s best interests. See Crystal E. v. Dep’t of
Child Safety, 241 Ariz. 576, 577, ¶ 5 (App. 2017). Still, we note reasonable
evidence supports that finding. See generally Maricopa Cnty. Juv. Action No.
JS-500274, 167 Ariz. 1, 5 (1990) (“[B]est interests of the child are a necessary,
but not exclusively sufficient, condition for an order of termination.”).
Here, the juvenile court acknowledged Mother’s strong bond with A.B. but
concluded A.B.’s need for permanence and stability in a substance-free
household was paramount. See Maricopa Cnty. Juv. Action No. JS-6831, 155
Ariz. 556, 559 (App. 1988) (“In most cases, the presence of a statutory
ground will have a negative effect on the child[.]”). A.B. has been out of
Mother’s care and lacked permanency for almost three years. During those
years, Mother has failed to follow the court’s directives to complete drug
testing to address relevant safety concerns, and “a child’s interest in
permanency must prevail over a parent’s uncertain battle with drugs.” See
Jennifer S. v. Dep’t of Child Safety, 240 Ariz. 282, 287, ¶ 17 (App. 2016). At the
time of the adjudication hearing, A.B. was in an adoptive placement that
has provided “a loving and nurturing home environment,” and A.B. has
“thrived in their care.” See Oscar O., 209 Ariz. at 334, ¶ 6 (recognizing the
availability of a current adoptive placement supports a finding that
severance is in the child’s best interests). Accordingly, reasonable evidence
supports the juvenile court’s conclusion that severing Mother’s parental
rights was in A.B.’s best interests.
IV. Dependency Adjudication
¶17 Mother also appeals the court’s dependency finding, arguing
it was supported by insufficient evidence. Here, DCS filed the petition to
terminate Mother’s parental rights to A.B. in a separate action (No. JS20278)
from the dependency action (No. JD15968), and a dependency adjudication
3 “If clear and convincing evidence supports any one of the statutory
grounds on which the juvenile court ordered severance, we need not
address claims pertaining to the other grounds.” Jesus M., 203 Ariz. at 280,
¶ 3. Accordingly, we do not address Mother’s arguments related to the
time-in-care grounds for severance pursuant to A.R.S. § 8-533(B)(8).
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KARA B. v. DCS, A.B.
Decision of the Court
is not a prerequisite to a termination petition or severance trial. See generally
A.R.S. § 8-533(B). Moreover, permanent resolution of a case through
termination of parental rights makes the appeal of the dependency finding
moot. See Sandblom v. Corbin, 125 Ariz. 178, 182 (App. 1980) (explaining a
case becomes moot when the relief sought would no longer have any
practical effect on the parties); Rita J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz.
512, 515 (App. 2000) (“[T]he findings made after a permanency hearing will
be subsumed by a severance proceeding, should one follow, or by some
other permanent resolution of the dependency action.”). Thus, because we
affirm the court’s termination order, we need not address Mother’s
arguments regarding the sufficiency of the evidence supporting the
dependency adjudication. And, even if this issue were not moot, the court’s
dependency finding was supported by ample evidence that Mother was
unable to exercise proper parental care and control due to her chronic
substance abuse. See A.R.S. § 8-201(15)(a).
CONCLUSION
¶18 For the foregoing reasons, we affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
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