Samantha M., Nykkolas S. v. Dcs, K.S. ( 2015 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
SAMANTHA M., NYKKOLAS S., Appellants,
v.
DEPARTMENT OF CHILD SAFETY, K.S., Appellees.
No. 1 CA-JV 15-0049
FILED 11-10-2015
Appeal from the Superior Court in Maricopa County
No. JD510684
The Honorable Brian K. Ishikawa, Retired Judge
AFFIRMED
COUNSEL
Vierling Law Offices, Phoenix
By Thomas A. Vierling
Counsel for Appellant Mother
The Stavris Law Firm, PLLC, Scottsdale
By Christopher Stavris
Counsel for Appellant Father
Arizona Attorney General’s Office, Mesa
By Amanda L. Adams
Counsel for Appellee
SAMANTHA M., NYKKOLAS S. v. DCS, K.S.
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Randall M. Howe delivered the decision of the Court, in
which Judge Jon W. Thompson and Judge Lawrence F. Winthrop joined.
H O W E, Judge:
¶1 Samantha M. (“Mother”) and Nykkolas S. (“Father”) appeal
the trial court’s order terminating their parental rights to K.S., born March
2011, on grounds of substance abuse for Father and time in out-of-home
placement for nine and fifteen months pursuant to court order for both
parents. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
1. The Report to the Department
¶2 Father was addicted to methamphetamine; after one month of
not using, he relapsed. That December day, he and Mother fought in one-
year-old K.S.’s presence. Both parents were physically violent towards each
other. Mother ran into a room with K.S. and slammed the door on Father’s
arm. She locked the door, but Father tried to get in. He punched a hole in
the door; she kneed the door on the other side, attempting to kick Father.
Mother called her sister, who called the Department’s1 hotline and reported
the incident.
¶3 When a case manager spoke to Mother and Father the next
day, they confirmed the report and admitted that they fought frequently.
Mother admitted that K.S. was present during those incidents and was once
hit by an object Father threw. Both parents admitted that Father used
methamphetamine the day before, and Father admitted that he was
addicted. They also reported that they struggled with depression and used
marijuana in front of K.S.
¶4 The Department took temporary custody of K.S. and placed
her with her maternal grandfather and his wife. The Department also
1 The Department of Child Safety was substituted for the Arizona
Department of Economic Security in this matter. See Ariz. R. Civ. App. P.
27; S.B. 1001, Section 157, 51st Leg., 2nd Spec. Sess. (Ariz. 2014) (enacted).
For convenience, we refer to both as “the Department.”
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petitioned for dependency, alleging that K.S. was dependent as to both
parents. It contended that Mother and Father were unable to parent due to
substance abuse, domestic violence, mental health issues, and neglect.
Mother and Father denied the allegations, but the juvenile court
adjudicated K.S. dependent and approved the Department’s family
reunification plan.
¶5 The Department offered services to Mother and Father, and
they agreed to participate in substance abuse assessment and treatment,
demonstrate continued sobriety through random drug testing, participate
in psychological evaluations and follow any recommendations, and
participate in family and individual counseling. They also agreed to
participate in supervised visits, enroll in parenting classes, and maintain
stable housing and employment.
2. The Mental Health Evaluations
¶6 Mother was psychologically evaluated and reported a history
of substance abuse with marijuana, spice, methamphetamine, powder
cocaine, ecstasy, alcohol, and pain pills. The psychologist diagnosed her
with anxiety disorder with panic attacks, major depressive episodes,
amphetamine abuse, poly-substance abuse, severe relationship problems,
and borderline personality characteristics. The psychologist concluded that
Mother displayed “evidence of mental illness suggesting a serious affective
disorder that include[d] an anxiety disorder with panic attacks [and] a
possible bipolar disorder.” He opined that Mother’s “major affective
disorders” and substance abuse could impair her judgment and put K.S. at
serious risk. He recommended that before family reunification occurred,
Mother should have psychiatric intervention, substance abuse intervention,
and relationship therapy, if she stayed with Father. He noted that Mother
would need 6 to 12 months to resolve her issues with Father, maintain
patterns of sobriety, and stabilize her health.
¶7 The psychologist evaluated Father the same day. Father
admitted that he had used marijuana, spice, crystal methamphetamine,
powder cocaine, painkillers, ecstasy, and alcohol. Father reported that he
had a methamphetamine problem and that he had recently used marijuana.
The psychologist diagnosed Father with bipolar disorder, severe
relationship discord, amphetamine dependence, and poly-substance abuse.
He concluded that Father’s substance abuse and bipolar disorder “affected
his parenting because of the dynamics of his interpersonal relationships, the
impact of his judgment, [and] the distortion in his mood management.” The
psychologist recommended that Father receive substance abuse treatment;
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psychiatric stabilization; relationship therapy, if he stayed with Mother;
and a drug relapse prevention program because he was a high risk for
relapse. The psychologist concluded: “[I]f [Father did] not embrace
treatment and follow through with treatment and maintain sobriety, the
conditions and significant risk factors and poor prognosis [would] continue
for a prolonged and indeterminate period of time.”
¶8 Mother and Father also participated in psychiatric
evaluations. Mother reported that Father was physically and emotionally
abusive and that K.S. was often “scared” when she witnessed the abuse. But
Mother reported that she would repeatedly reconcile with Father and that
they lived together on and off. The psychiatrist diagnosed Mother with
cannabis dependence in early remission, mood disorder, anxiety disorder,
and history of poly-substance abuse.
¶9 The psychiatrist opined that Mother’s substance abuse and
untreated mood and anxiety disorder would impact her ability to parent
and would place K.S. at risk of neglect and abuse. The psychiatrist
recommended that Mother have monitored urinalyses for one year of
proven sobriety. He also recommended individual therapy to address her
substance abuse, mood and anxiety disorders, domestic violence, anger
management, co-dependency, and need for attention and self-harm
behavior to get attention. The psychiatrist further recommended anger
management and domestic violence trainings, substance abuse programs,
parent aide services, parenting classes, relationship counseling with Father,
and a psychiatric follow-up. He concluded that reunification should not
occur until Mother’s treatment providers indicated that she was substance
free, psychiatrically stable, and able to independently care for K.S.
¶10 Father reported to the psychiatrist a history of domestic
violence and admitted that he had thrown items at Mother, Mother had
struck him, and Mother had swung at him with K.S. in her arms. The
psychiatrist diagnosed Father with mood disorder and histories of poly-
substance abuse, amphetamine dependence in early full remission, and
cannabis dependence in early full remission.
¶11 The psychiatrist opined that Father’s substance abuse would
impact his ability to parent because he was likely to spend a significant
amount of time obtaining, using, and recovering from the effects of drugs,
placing the child at risk of abuse and neglect. The psychiatrist
recommended that Father have monitored urinalyses for one year of
proven sobriety. He also recommended that Father complete a substance
abuse treatment program and an outpatient substance abuse program, one
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year of individual counseling, anger management and domestic violence
training, parent aide supervision, parenting classes, and relationship
counseling with Mother. If Father followed the recommendations,
remained sober, and maintained a healthy relationship with Mother
without resorting to domestic violence, then the Department could consider
reunification.
3. The Services Offered to Mother and Father
¶12 Mother and Father completed the substance abuse
assessment and began participating in intensive outpatient (“IOP”)
treatment programs. But Mother attended inconsistently and had to be put
on an “attendance contract.” If she breached the contract, her treatment
would immediately stop. Six month later, she completed the treatment
program and entered a mandatory six-month aftercare program. Although
Mother was initially resistant to the aftercare treatment, she eventually
completed the program eight months later. During her substance abuse
treatment, however, Mother tested positive for marijuana for the first
couple of months and was not taking random drug testing throughout.
¶13 Father continued testing positive for methamphetamine and
marijuana and did not comply with his substance abuse treatment. Father
was put on an attendance contract for his IOP treatment, but he broke the
contract and his treatment ended. The Department issued Father another
referral and recommended that he participate in outpatient services twice
per week. Father started another treatment—testing positive for
methamphetamine during intake and admitting that he had relapsed—but
that treatment also ended because he did not engage in the service. Father
only participated in one group session and failed to engage in further
treatment services.
¶14 Mother received two referrals for individual counseling, but
the first terminated because she did not attend and the second because she
did “not feel comfortable with her therapist.” Another therapist offered to
do individual sessions with Mother, but she did not accept the offer. Father
hired his own therapist, and although Father’s treatment closed
successfully, he relapsed the same month his treatment ended.
¶15 The Department referred Mother and Father to couples
counseling, but they stopped attending after two sessions because they had
ended their relationship. The Department also set Mother and Father up
with domestic violence and anger management groups, and although they
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completed their intakes, they reported that they were unable to attend due
to scheduling conflicts.
¶16 Meanwhile, Father and Mother participated in parent aide
services. But Father’s terminated unsuccessfully. Father had relapsed, and
the parent aide decided that Father was a threat to K.S. because he attended
several visits under the influence of drugs. The parent aide reported that
during the last few visits, Father appeared irritable and did not interact with
the child.
¶17 Mother’s also terminated unsuccessfully. The parent aide
reported that since Father’s lapse, Mother only attended four of the twelve
supervised visits and none of the one-on-one parenting skills training
sessions. The parent aide also reported that Mother said “she just wanted
to log a couple of hours with [K.S.] so it didn’t look like she wasn’t
participating because she had been advised . . . that she was being
noncompliant.” The parent aide reported that many visits ended early
because K.S. was hungry and neither parent provided food.
¶18 After Father and Mother broke up, Mother told their parent
aide that she would not give up on her relationship with Father. She also
gave conflicting information about their relationship status; sometimes
saying they were together, other times they had separated. Because of
Mother’s inconsistent statements, the parent aide noted in several monthly
reports that Mother was still involved with Father, but was “hiding it and
lying about it to [the parent aide] and her family as well as [the
Department].”
¶19 The Department moved to terminate Mother and Father’s
parental rights to K.S. It alleged that Father was unable to discharge his
parental responsibilities due to chronic substance abuse and that Mother
and Father had substantially neglected or willfully refused to remedy the
circumstances that caused K.S. to remain in an out-of-home placement for
nine months and were unable to remedy the circumstances that caused K.S.
to remain in an out-of-home placement for fifteen months, both pursuant
to court order. The Department also alleged that termination was in K.S.’s
best interests.
¶20 After the Department filed its termination petition, Mother
and Father reconciled and began living together again. Over the next nine
months, the Department continued to offer Mother and Father services,
including random drug testing, individual and couples counseling, parent
aide services, and supervised visits and substance abuse services for Father.
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But Mother and Father failed or refused to participate in many of the
services provided, including domestic violence and anger management
classes.
¶21 The Department issued Father a third referral for substance
abuse treatment. Although Father completed the treatment program, he
was once again put on an attendance contract. Father’s treatment closed
unsuccessfully because he did not complete the aftercare treatment
program. Further, Father continued testing positive for marijuana and
admitted to his case manager that he and Mother interacted with
individuals who smoked marijuana. The Department learned that between
April and August of that year, Father had obtained no less than thirteen
prescriptions for oxycodone and hydro-condone from eight different
providers and that he had filled them at various pharmacies. One month
before the severance hearing, Father and Mother once again ended their
relationship.
4. Termination of Parental Rights
¶22 At the severance hearing, the case manager testified that for
the last two years, Mother and Father had made little progress. She
explained that Father had not completed his drug treatment, Mother and
Father had not completed individual or couples counseling, they had not
followed the mental health recommendations, and the Department
continued to be concern about domestic violence. The case manager also
testified that K.S. had been in an out-of-home placement for over twenty-
five months, that she was adoptable, and that she was placed with her
maternal grandfather and his wife, who were meeting all her needs and
were willing to adopt her.
¶23 The trial court terminated Mother and Father’s parental rights
to K.S. on grounds of chronic substance abuse for Father and nine and
fifteen months in out-of-home placement pursuant to court order for both
parents. It also found that termination was in K.S.’s best interests. Mother
and Father timely appealed.
DISCUSSION
¶24 Mother and Father argue that insufficient evidence support
the juvenile court’s order terminating their parental rights to K.S. and its
finding that termination was in the child’s best interests. We review a
juvenile court’s termination order for an abuse of discretion. E.R. v. Dep’t of
Child Safety, 237 Ariz. 56, 58 ¶ 9, 344 P.3d 842, 844 (App. 2015). We accept
the court’s factual findings unless no reasonable evidence supports those
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findings, and we will affirm a severance order unless it is clearly erroneous.
Bobby G. v. Ariz. Dep’t of Econ. Sec., 219 Ariz. 506, 508 ¶ 1, 200 P.3d 1003, 1005
(App. 2008). Further, we will affirm the termination if any of the statutory
grounds is proven and if termination is in the child’s best interests. Raymond
F. v. Ariz. Dep’t of Econ. Sec., 224 Ariz. 373, 376 ¶ 14, 231 P.3d 377, 380 (App.
2010). The juvenile court did not abuse its discretion in terminating Mother
and Father’s parental rights on ground of fifteen months in out-of-home
placement pursuant to court order and finding that termination was in the
child’s best interests.
1. Statutory Ground for Termination
¶25 As relevant to our disposition of this appeal, Mother and
Father first argue that insufficient evidence supports the juvenile court’s
order terminating their parental rights on ground of fifteen months in out-
of-home placement pursuant to court order. A parent’s right to care,
custody, and control his or her child has long been recognized as
fundamental, but that right is not absolute. Linda V. v. Ariz. Dep’t of Econ.
Sec., 211 Ariz. 76, 78 ¶ 6, 117 P.3d 795, 797 (App. 2005). The State may
terminate a parent’s fundamental right to a child under statutorily
enumerated conditions after following specified procedures. Id.¶26 As pertinent here, to terminate parental rights for time in an
out-of-home placement, the juvenile court must find by clear and
convincing evidence that (1) the child had been in an out-of-home
placement for a cumulative total period of fifteen months or longer
pursuant to court order; (2) the parent has been unable to remedy the
circumstances that caused the child to be in an out-of-home placement; and
(3) a substantial likelihood exists that the parent will be incapable of
exercising proper and effective parental care and control in the near future.
A.R.S. § 8–533(B)(8)(c); Kent K. v. Bobby M., 210 Ariz. 279, 288 ¶ 41, 110 P.3d
1013, 1022 (2005). In its determination, the court must consider “the
availability of reunification services to the parent and the participation of
the parent in these services.” A.R.S. § 8–533(D).
¶27 Here, reasonable evidence supports the juvenile court’s
termination on ground of fifteen months in out-of-home placement
pursuant to court order. By the time of the severance hearing, K.S. had been
in an out-of-home placement pursuant to court order for more than two
years. The record shows that during that time, Father and Mother failed to
address their domestic violence and mental health issues and Father his
substance abuse issue and that substantial likelihood exists that Father and
Mother would not be able to exercise proper and effective parental care and
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control in the near future. Although both parents reported relationship
problems—including physical altercations against each other—to their case
manager and parent aide and during their mental health evaluations,
Mother and Father continued to live together. They also refused to attend
couples counseling and domestic violence and anger management
trainings. In fact, the record shows that even though Mother and Father told
their case manager and parent aide that they ended their relationship, both
individuals suspected that Mother and Father were still together and was
simply hiding it. Moreover, even though Mother and Father separated on
the eve of the severance hearing, their case manager testified that she did
not think they would remain apart long because of their history of
reconciling.
¶28 Father and Mother also failed to address their mental health
issues, even though doctors gave them specific recommendations. Mother
was diagnosed with various mental health issues, including anxiety
disorder with panic attacks, major depressive episodes, and severe
relationship problems. A psychiatrist told Mother that her substance abuse
and untreated mood and anxiety disorder would impact her ability to
parent and would place K.S. at risk of neglect and abuse. He also told her
that reunification should not occur until her treatment providers indicated
that she was substance free, psychiatrically stable, and able to
independently care for K.S.
¶29 Father was also diagnosed with various mental health issues,
including bipolar disorder, severe relationship discord, amphetamine
dependence, and poly-substance abuse. A psychologist told Father that he
needed to embrace treatment and follow through with it and maintain
sobriety, or else the significant risk factors would continue for a prolonged
and indeterminate period of time. Similarly, a psychiatrist told Father that
if he actively followed the recommendations, remained sober, and
maintained a healthy relationship with Mother without resorting to
domestic violence, only then would the Department consider reuniting him
with K.S.
¶30 But the record shows that even with these diagnoses and the
recommendation that Father and Mother actively engage in services before
reunification occurs, both parents did not make serious efforts to comply
with the services offered. This remained true even after the court changed
the case plan to severance and adoption. In fact, Mother and Father failed
to fully engage in domestic violence and anger management groups,
completing only the intake process. They also failed to successfully
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complete parent aide services; Mother because she did not engage in the
services and Father because he attended sessions impaired.
¶31 Further, although Mother completed substance abuse
treatment and recovery maintenance, she did not fully engage in individual
counseling and was re-referred on separate occasions after being
terminated for not engaging in treatment. During the entire proceeding,
Mother failed to fully recognize the safety concerns presented by Father’s
substance abuse and domestic violence conflicts within their relationship—
admitting to her parent aide that she would never give up on Father and
repeatedly reconciling with Father.
¶32 Father has failed to address his substance abuse issues. Father
admitted that he had an extensive history of substance abuse, including
marijuana and methamphetamine. But despite warnings from the case
manager and doctors, Father did not make serious efforts to comply with
the substance abuse programs. Over the course of the dependency
proceedings, Father submitted inconsistently to urinalysis testing and
tested positive several times for marijuana and methamphetamine.
Moreover, Father was referred to substance abuse assessment and
treatment on three separate occasions and terminated for the third time
unsuccessfully for lack of participation in the aftercare treatment program.
¶33 Moreover, the record shows that the Department has made a
diligent effort to provide the appropriate reunification services to Mother
and Father, including urinalysis testing, substance abuse assessments and
treatment, psychological and psychiatric evaluations, individual and
couples counseling, domestic violence and anger management trainings,
parent aide services, parenting classes, and transportation. The record also
shows that even though Mother and Father terminated unsuccessfully for
certain services, the Department offered additional referrals to support
Mother and Father. Consequently, the record supports the juvenile court’s
order terminating Mother and Father’s parental rights on ground of fifteen
months in out-of-home placement pursuant to court order. We need not
address the other grounds. See Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz.
246, 251 ¶ 27, 995 P.2d 682, 687 (2000) (providing that if sufficient evidence
supports any one of the statutory grounds upon which the juvenile court
ordered severance, the appellate court need not address the claims
pertaining to the other grounds).
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2. The Child’s Best Interests
¶34 Mother and Father next argue that the evidence does not
support the juvenile court’s finding that termination was in the child’s best
interests. A finding of one of the statutory grounds for severance under
A.R.S. § 8–533, standing alone, does not permit termination of parental
rights; severance must also be in the child’s best interests. A.R.S. § 8–533
(B). Severance of a parent’s parental rights is in the child’s best interests if
the Department proves that the child would either benefit from the
termination or be harmed by the continuation of the parent-child
relationship. Id. In determining whether the child would benefit, relevant
factors to consider include whether the current placement is meeting the
child’s needs, whether there is an adoption plan is in place, and whether
the child is adoptable. See Tina T. v. Dep’t of Child Safety, 236 Ariz. 295, 300
¶ 19, 339 P.3d 1040, 1045 (App. 2014); Mario G. v. Ariz. Dep’t of Econ. Sec.,
227 Ariz. 282, 288 ¶ 26, 257 P.3d 1162, 1168 (App. 2011). The juvenile court
need only find by a preponderance of the evidence that termination is in
the child’s best interests. Kent K., 210 Ariz. at 288 ¶ 41, 110 P.3d at 1022.
¶35 Here, reasonable evidence supports the juvenile court’s
finding that termination was in K.S.’s best interests. When the Department
took custody of K.S., it placed her with her maternal grandfather and his
wife—where she remained for the entire course of the proceedings. The
case manager testified that K.S. would benefit from severance. She
explained that K.S. was adoptable and that her maternal grandfather and
his wife were meeting all the child’s needs and that if given the opportunity,
they would adopt her. Consequently, the juvenile court did not abuse its
discretion in terminating Mother and Father’s parental rights to K.S. and
finding that termination was in the child’s best interests.
CONCLUSION
¶36 For the foregoing reasons, we affirm.
:ama
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