Trevor H., Jamie W. v. Dcs, L.H. ( 2016 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
TREVOR H., JAMIE W., Appellants,
v.
DEPARTMENT OF CHILD SAFETY, L.H., Appellees.
No. 1 CA-JV 15-0227
FILED 1-21-2016
Appeal from the Superior Court in Yavapai County
No. JD 2003-0070
The Honorable Anna C. Young, Judge
AFFIRMED
COUNSEL
Law Office of Florence M. Bruemmer, P.C., Anthem
By Florence M. Bruemmer
Counsel for Appellant Mother
Robert D. Rosanelli, Attorney at Law, Phoenix
By Robert D. Rosanelli
Counsel for Appellant Father
Arizona Attorney General’s Office, Phoenix
By Nicholas Chapman-Hushek
Counsel for Appellee Department of Child Safety
TREVOR H., JAMIE W. v. DCS, L.H.
Decision of the Court
MEMORANDUM DECISION
Judge Maurice Portley delivered the decision of the Court, in which
Presiding Judge Margaret H. Downie and Judge Patricia A. Orozco joined.
P O R T L E Y, Judge:
¶1 Trevor H. (“Father”) and Jamie W. (“Mother”) challenge the
order terminating their parental rights to their child, L.H. They argue there
was insufficient evidence to support the termination order. For the
following reasons, we affirm.
FACTS1 AND PROCEDURAL HISTORY
¶2 The parents have a history with the child welfare system, now
managed by the Department of Child Safety. 2 Their parental rights to three
children were terminated in 2006. L.H. was removed from their care in
2007, found to be dependent, but returned in 2009. She was subsequently
removed in July 2013 after the Department received a report that the family
had been evicted, was homeless, and the then five year old, who had some
slight developmental issues, was wearing a diaper. The Department filed
a dependency petition and L.H. was found dependent. The case plan was
initially family reunification but, at the Department’s request, the juvenile
court added severance and adoption to the plan.
¶3 After the permanency plan was changed to severance and
adoption, the Department moved to terminate the rights of the parents
based on their mental illness, chronic drug abuse, and because the child had
been in an out-of-home placement for fifteen months or longer. After the
severance trial, the juvenile court issued findings of fact and conclusions of
law, and terminated Mother and Father’s parental rights. Both parents
1“We view the facts in the light most favorable to upholding the juvenile
court’s order.” Ariz. Dep’t of Econ. Sec. v. Matthew L., 223 Ariz. 547, 549, ¶ 7,
225 P.3d 604, 606 (App. 2010).
2 The Department of Child Safety is the successor to the Arizona
Department of Economic Security for child welfare matters. We refer to
both as “the Department.” See S.B. 1001, 51st Leg., 2d Spec. Sess. (Ariz.
2014).
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TREVOR H., JAMIE W. v. DCS, L.H.
Decision of the Court
appealed, and we have jurisdiction under Arizona Revised Statutes
(“A.R.S.”) sections 8-235, 12-120.21(A)(1), and -2101(A)(1).3
DISCUSSION
¶4 Both parents argue that the juvenile court erred in terminating
their parental rights. They contend: (1) the Department failed to prove they
could not parent because of chronic substance abuse; (2) the Department
failed to prove that they could not parent because of a mental illness; and
(3) the Department failed to prove the time-in-care allegation. Mother
separately argues that the Department failed to make reasonable
reunification efforts and that the court erred by determining termination
was in the child’s best interests.4
¶5 The juvenile court may terminate parental rights if the
Department proves any one of the statutory grounds for termination by
clear and convincing evidence, Christy C. v. Ariz. Dep’t of Econ. Sec., 214 Ariz.
445, 449, ¶ 12, 153 P.3d 1074, 1078 (App. 2007) (citation omitted), and
establishes that termination is in the best interests of the child, by a
preponderance of the evidence. Matthew L., 223 Ariz. at 549, ¶ 7, 225 P.3d
at 606 (citation omitted). We will only disturb a court’s determination if it
is unsupported by substantial evidence, Desiree S. v. Dep’t of Child Safety,
235 Ariz. 532, 534, ¶ 7, 334 P.3d 222, 224 (App. 2014), recognizing that the
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
appropriate findings,” Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 280,
¶ 4, 53 P.3d 203, 205 (App. 2002) (citation omitted). And we will affirm the
termination so long as one of the statutory grounds is supported by
substantial evidence. See Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246,
249, ¶ 12, 995 P.2d 682, 685 (2000).
3We cite the current version of the statute unless otherwise stated.
4Father did not join with Mother’s two separate challenges and has waived
those arguments on appeal. See State v. Carver, 160 Ariz. 167, 175, 771 P.2d
1382, 1390 (1989) (failure to argue claim on appeal constitutes abandonment
and waiver of that claim).
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TREVOR H., JAMIE W. v. DCS, L.H.
Decision of the Court
I. Chronic Substance Abuse
¶6 The juvenile court terminated the rights of the parents based
on chronic substance abuse. Section 8-533(B)(3) requires the court to find:
That 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.
A.R.S. § 8-533(B)(3).
¶7 In addition to proving that the substance abuse will continue
for a prolonged indeterminate period, the court must also find that the
Department made a diligent effort to provide appropriate reunification
services or that such efforts would have been futile. Jennifer G. v. Ariz. Dep’t
of Econ. Sec., 211 Ariz. 450, 453, ¶ 12, 123 P.3d 186, 189 (App. 2005). Chronic
drug abuse “need not be constant to be considered chronic,” but can be a
“condition that has existed or continued for a long time,” see Raymond F. v.
Ariz. Dep’t of Econ. Sec., 224 Ariz. 373, 377, ¶ 16, 231 P.3d 377, 381 (App.
2010) (citations omitted), and the Department bears the burden of proving
by clear and convincing evidence that a parent’s chronic drug abuse
prevents them from parenting, and would make them incapable of
“parenting effectively in the near future.” See Jordan C. v. Ariz. Dep’t of Econ.
Sec., 223 Ariz. 86, 97, ¶ 33, 219 P.3d 296, 307 (App. 2009).
A. Evidence of Mother’s Drug Abuse
¶8 Although the Department had other concerns about the
parents, it became concerned about Mother and Father’s substance abuse
after they had been observed taking prescription drugs excessively during
a supervised visit with L.H. Mother initially refused to complete random
urinalysis and hair follicle testing, and later failed to consistently participate
in screenings arranged by the Department. Additionally, Mother was
evaluated by Dr. Gill, a licensed psychologist, who recommended that she
participate in a 12-step program and address her use of opiates with her
doctors to rule out the possibility of substance abuse so she could “prove to
the world that you’re clean as a whistle,” even though she had a low
probability of substance abuse.
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TREVOR H., JAMIE W. v. DCS, L.H.
Decision of the Court
¶9 Mother participated in the urinalysis testing between August
2014 and November 2014, but the results were positive for opiates. She also
tested positive for medications that were only prescribed to Father. She,
however, refused to follow a court order that she comply with Dr. Gill’s
recommendations; she did not attend a 12-step program and did not consult
with her doctors about her use of opiates; and she did not participate in
testing after November 2014.
¶10 At trial, Mother denied having a substance abuse issue and
presented evidence that her use of the antidepressant Zoloft could have
caused her positive opiate results. The Department responded by
submitting exhibits demonstrating that Zoloft would not cause a false
positive for opiates. The court, in weighing the evidence, determined that
the Department met its burden as to chronic substance abuse.
¶11 Moreover, there was testimony about Mother’s future ability
to parent her child. Although Dr. Gill gave a guarded prognosis that
Mother would be able to minimally parent the child in the foreseeable
future, he also expressed concern that her pattern of behavior would
continue given her depression, sleep disturbance, along with her history
with the Department and past struggles parenting and providing for her
children. Given his testimony and other evidence, the court, as a trier of
fact, determined that Mother would not be able to parent in the
indeterminate future because of her substance abuse. Based on the record,
we cannot say that the court abused its discretion by finding that Mother’s
chronic drug abuse supported the termination of her parental rights.
B. Evidence of Father’s Drug Abuse
¶12 Father had a history of drug use and Dr. Gill testified about
that history. Dr. Gill also testified that Father told him during the
evaluation that Father had been diagnosed with a degenerative disc
disease, and he had been receiving treatment for three years, including
prescriptions for opiates for his pain. During his urinalysis testing, Father
was positive for opiates, as well as THC5 several times between July 2013
and July 2014. He, however, stopped participating in the urinalysis testing
in November 2014. Although Dr. Gill testified that Father had a low
probability of drug abuse, Father did not, as the court ordered, participate
in a 12-step program or address his opiate usage with his doctors. Given
Father’s history and his failure to take advantage of the services the
5THC is the “active component in marijuana.” State v. Lucero, 207 Ariz.
301, 302-03, ¶ 4, 85 P.3d 1059, 1060-61 (App. 2004).
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TREVOR H., JAMIE W. v. DCS, L.H.
Decision of the Court
Department offered to address the issue, the evidence supported the
finding that his substance abuse was unlikely to change. Consequently, the
court did not abuse its discretion by finding the Department had proven
that Father had a chronic drug abuse problem that warranted terminating
his parental rights.
II. The Department’s Effort to Achieve Reunification
¶13 Mother also argues the Department failed to offer reasonable
services to reunify her with L.H. Because Mother failed to object to the
sufficiency of the services offered by the Department before the start of the
severance trial, she cannot raise the argument on appeal. See Shawanee S. v.
Ariz. Dep’t of Econ. Sec., 234 Ariz. 174, 179, 319 P.3d 236, 241 (App. 2014)
(when juvenile court record shows ADES has been ordered to provide
specific services in furtherance of case plan, and court finds ADES made
reasonable efforts to provide such services (including a finding that ADES
made diligent effort to provide appropriate reunification services pursuant
to A.R.S. § 8–533(B)(8)), “a parent who does not object in the juvenile court
is precluded from challenging that finding on appeal.”). Here, the juvenile
court specifically noted that the Department had made reasonable efforts to
provide Mother and Father with rehabilitative services in its findings of fact
and conclusions of law. Consequently, Mother cannot challenge the
finding.
III. Best Interests Determination
¶14 To find that termination is in a child’s best interests, the
juvenile court must find that the child would either benefit from the
termination or be harmed by continuing the parental relationship. Christina
G. v. Ariz. Dep’t of Econ. Sec., 227 Ariz. 231, 237-38, ¶ 26, 256 P.3d 628, 634-
35 (App. 2011) (citation omitted). The best interest requirement may be met
if the Department proves that “a current adoptive plan exists for the child,”
or that the child is adoptable. Mary Lou C. v. Ariz. Dep’t of Econ. Sec., 207
Ariz. 43, 50, ¶ 19, 83 P.3d 43, 50 (App. 2004).
¶15 The juvenile court found that “termination will further the
case plan of adoption and the child will have a permanent, stable home.”
Mother, Father, and the case manager all testified that L.H. was adoptable
and, at the time of the trial, the Department had identified two prospective
adoptive families for L.H. Moreover, termination and adoption was in the
child’s best interests given that she had witnessed domestic violence, and
had been physically injured by Mother’s inappropriate discipline. The
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Decision of the Court
evidence, as a result, supports the finding that termination was in L.H.’s
best interests.
CONCLUSION
¶16 Based on the foregoing, we affirm the juvenile court’s
termination of Father and Mother’s parental rights to L.H.
:ama
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