Catrina K. v. Dcs ( 2017 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
CATRINA K., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, E.K., C.K., J.R., Appellees.
No. 1 CA-JV 17-0218
FILED 12-5-2017
Appeal from the Superior Court in Maricopa County
No. JD27175
The Honorable Susanna C. Pineda, Judge
AFFIRMED
COUNSEL
John L. Popilek, P.C., Scottsdale
By John L. Popilek
Counsel for Appellant
Arizona Attorney General’s Office, Phoenix
By Amber E. Pershon
Counsel for Appellee Department of Child Safety
CATRINA K. v. DCS, et al.
Decision of the Court
MEMORANDUM DECISION
Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge Diane M. Johnsen joined.
C R U Z, Judge:
¶1 Appellant Catrina K. (“Mother”) appeals the superior court’s
order severing her parental rights. For the following reasons, we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 Mother is the biological mother of E.K., born March 2006;
C.K., born June 2008; and J.R.,1 born August 2013.
¶3 In October 2013, neighbors called police to investigate
possible abuse of E.K. by the children’s father.2 Mother was not living with
the family at the time, and her whereabouts were unknown. The
Department of Child Safety (“DCS”) took custody of E.K. and C.K. and
alleged they were dependent as to Mother due to abandonment and
neglect. About three months later, after J.R.’s birth, Mother left J.R. with a
woman who did not have the appropriate paperwork to care for him, and
DCS filed a supplemental petition alleging J.R. was dependent as to Mother
due to neglect.3 E.K. and C.K. were found dependent as to Mother in
January 2014, and J.R. was found dependent as to Mother in June 2014.
1 At the time DCS initiated dependency proceedings regarding J.R., it
believed J.R. had a different father than E.K. and C.K. However, it was later
determined that all three children had the same father.
2 Father later pled guilty to child abuse and was ultimately sentenced
to prison. He is not a party to this appeal.
3 DCS later amended the petition to additionally allege J.R. was
dependent due to substance abuse and Mother’s failure to engage in the
dependency proceedings regarding other children. The superior court
found J.R. dependent as to Mother on all alleged grounds.
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CATRINA K. v. DCS, et al.
Decision of the Court
¶4 DCS moved for severance of Mother’s parental rights to all
three children in January 2015. It alleged Mother was unable to discharge
her parental responsibilities because of a history of chronic abuse of
dangerous drugs, controlled substances, and/or alcohol pursuant to
Arizona Revised Statutes (“A.R.S.”) section 8-533(B)(3); J.R. had been in an
out-of-home placement for a cumulative period of six months or longer
pursuant to A.R.S. § 8-533(B)(8)(b); all three children had been in an out-of-
home placement for a cumulative period of nine months or longer pursuant
A.R.S. § 8-533(B)(8)(a); and E.J. and C.K. had been in an out-of-home
placement for fifteen months or longer pursuant to A.R.S. § 8-533(B)(8)(c).
¶5 Approximately a year-and-a-half after DCS moved for
severance, in June 2016, Mother was incarcerated for a drug-related offense.
One month before the severance hearing’s scheduled date, in March 2017,
Mother moved to continue the hearing, explaining in part that she would
be released from jail shortly after the severance trial,4 was scheduled for an
outpatient drug abuse assessment after her release, and wanted to engage
in services. The superior court denied the motion. Mother moved again for
a continuance during the hearing itself, but the court also denied that
motion.
¶6 At the two-day severance hearing, the DCS case manager
testified DCS offered Mother random substance testing through TASC,
substance abuse assessment and treatment through TERROS, case aide
visitation, parent aide visitation, psychological evaluation, and case
management services. She acknowledged Mother had completed a
substance abuse assessment and participated in some programs while she
was in jail, but she said DCS still believed Mother was unable to parent the
children because Mother had been unable to demonstrate stability or
sobriety outside an institutional setting over the past three years, failed to
complete any of the services offered to her, and had no in-person contact
with the children since 2014. Similarly, she testified DCS did not believe
Mother had made the necessary behavioral changes for reunification with
the children because she had not demonstrated lasting sobriety or stability,
had only recently been released from incarceration and would need to
“start her life over,” and would need nine to twelve months to demonstrate
the behavioral changes necessary to successfully reunite with the children.
¶7 After the hearing, the superior court severed Mother’s rights
to the children on all alleged grounds. It found DCS had proven the
4 Mother was released approximately two weeks before the severance
hearing.
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CATRINA K. v. DCS, et al.
Decision of the Court
grounds for severance pursuant to A.R.S. § 8-533(B)(3) by clear and
convincing evidence due to Mother’s chronic substance abuse issues. It
noted Mother’s history of substance abuse dated back to when she was
thirteen years old; Mother had not been able to discharge her parental
responsibilities since before the initiation of the dependency action; and it
was reasonable to believe Mother’s chronic drug abuse would continue
because, in part, she participated inconsistently in services, tested positive
for illegal substances, was found in possession of illegal substances during
the dependency, and was jailed for a drug-related offense until shortly
before the severance hearing.
¶8 The superior court also found DCS had proven the grounds
for severance pursuant to A.R.S. § 8-533(B)(8)(a), (b), and (c) because the
children had been in an out-of-home placement for well over three years;
DCS had made diligent efforts to provide appropriate reunification services
to Mother; and Mother had been unable to remedy the circumstances that
caused the children to come into care. The court noted, “Mother still [had]
a substance abuse issue that remain[ed] unsolved,” and that “[w]hile
Mother did not use illegal substances during her recent incarceration for
drug related offenses,” DCS had shown that “more than a few months of
sobriety in a controlled setting [was] necessary to remedy the circumstances
that lead to the children coming into care.” It concluded Mother’s history
of non-participation in reunification services supported a finding that her
substance abuse issues would continue for a prolonged and indeterminate
period.
¶9 Finally, the superior court found severance was in the
children’s best interests. It found that although the children were not in an
adoptive placement at the time of the hearing, DCS had found a new
placement that was related to them and “there [was] no question
maintaining a relationship with Mother would be detrimental to the
children.” It also found Mother had no real relationship with the children
and continued to have unresolved substance abuse issues, and it stated the
children deserved a home free from substance abuse.
¶10 Mother timely appealed. We have jurisdiction pursuant to
A.R.S. §§ 8-235(A), 12-120.21(A)(1), and 12-2101(A)(1).
DISCUSSION
¶11 Mother argues the superior court abused its discretion by
severing her parental rights when: (1) insufficient evidence showed
severance was in the children’s best interests; (2) the court denied Mother’s
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CATRINA K. v. DCS, et al.
Decision of the Court
request for a continuance; and (3) insufficient evidence supported the
grounds for severance.
I. Standard of Review
¶12 As the trier of fact in a severance proceeding, the superior
court is in the best position to weigh 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). We therefore view the
evidence and reasonable inferences to be drawn therefrom in the light most
favorable to affirming the court’s order, id., and we will not reverse unless
no reasonable evidence supports its factual findings, Ariz. Dep’t of Econ. Sec.
v. Matthew L., 223 Ariz. 547, 549, ¶ 7 (App. 2010). If reasonable evidence
supports any one ground for severance, we need not address an appellant’s
arguments pertaining to any other ground. Crystal E. v. Dep’t of Child Safety,
241 Ariz. 576, 577, ¶ 5 (App. 2017). Finally, “[m]otions to continue are
addressed to the sound discretion of the trial court and its decision will not
be reversed absent a clear abuse of discretion.” Yavapai Cty. Juv. Action No.
J-9365, 157 Ariz. 497, 499 (App. 1988).
II. Best Interests
¶13 Mother argues insufficient evidence supports the superior
court’s best interests finding. She asserts, in part, that she made substantial
strides towards reunification, demonstrated a clear plan for remaining
sober outside of jail, and had a bond with the children. She also asserts
severance was not in the children’s best interests because at the time of the
severance hearing, the children were placed separately and DCS had
provided no confirmed adoptive placement.
¶14 Before severing parental rights, the superior court must find
by a preponderance of the evidence that severance is in the children’s best
interests. A.R.S. § 8-533(B); Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 22
(2005). In doing so, the court “must include a finding as to how the
child[ren] would benefit from a severance or be harmed by the continuation
of the relationship.” Maricopa Cty. Juv. Action No. JS-500274, 167 Ariz. 1, 5
(1990). DCS need not show it has a specific adoption plan for the children;
it must only show the children are adoptable or “would benefit
psychologically from the stability an adoption would provide.” Maricopa
Cty. Juv. Action No. JS-501904, 180 Ariz. 348, 352 (App. 1994). The court may
consider the existence and effect of a bonded relationship between a
biological parent and her children, but this factor is not dispositive in
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CATRINA K. v. DCS, et al.
Decision of the Court
addressing best interests. Dominique M. v. Dep’t of Child Safety, 240 Ariz. 96,
98, ¶ 12 (App. 2016).
¶15 Although we recognize and commend Mother’s progress
towards sobriety, sufficient evidence supports the superior court’s best
interests finding. The DCS case manager testified severance was in the
children’s best interests because the children had been in an out-of-home
placement for a significant period, deserved permanency, and were
adoptable. The case manager acknowledged the children were not placed
together in an adoptable placement at the time of the hearing, but she said
DCS had found a potential placement that the children knew and that
would allow the children to be adopted together. She further stated that
even if the potential placement were unable to adopt, the children were
adoptable and DCS could find another adoptive placement. Because this
evidence is sufficient to support the superior court’s best interests finding,
we affirm it.
III. Request for Continuance
¶16 Mother next argues the superior court abused its discretion
by denying her request for a continuance, asserting there was no valid
reason for the denial. She emphasizes that at the time of the denial, DCS
had not found adoptive placements for the children and the only potential
adoptive placement would entail a several-month wait. We will not disturb
the court’s ruling on a motion to continue absent a clear abuse of discretion.
No. J-9365, 157 Ariz. at 499.
¶17 “When an action has been set for trial, hearing or conference
on a specified date by order of the court, no continuance of the trial, hearing
or conference shall be granted except upon written motion setting forth
sufficient grounds and good cause, or as otherwise ordered by the court.”
Ariz. R. Fam. Law P. 77(C)(1). The superior court addresses motions to
continue in its sound discretion. See Henderson v. Henderson, 241 Ariz. 580,
589, ¶ 29 (App. 2017).
¶18 We find no abuse of discretion. In asking for a continuance,
Mother told the superior court that she was soon to be released from jail,
committed to regaining custody of her children, had registered for an
outpatient drug abuse assessment through her probation department, and
had arranged an apartment and job. She also noted there was no permanent
placement secured for the children at the time. Section 8-533(B)(8)(a),
however, does not require the court to wait until the children can be placed
with an adoptable placement or the resolution of the parent’s criminal case
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CATRINA K. v. DCS, et al.
Decision of the Court
before proceeding with a severance hearing, and such an interpretation
would “indefinitely delay determinations regarding children whose best
interests are at risk and require expedient consideration.” See Pima Cty. Juv.
Severance Action No. S-2462, 162 Ariz. 536, 538 (App. 1989). DCS offered
Mother services for over three years before the severance hearing, but
Mother failed to participate during that time. Additionally, the court had
granted Mother two previous continuances. Under these circumstances,
the superior court did not abuse its discretion in denying Mother’s motion
to continue.
IV. Grounds for Severance
¶19 Mother argues insufficient evidence supports the grounds for
severance because she had been sober for ten months, left jail, and entered
in-patient treatment at the time of the severance hearing.
¶20 Pursuant to A.R.S. § 8-533(B)(8)(a),5 the superior court may
sever parental rights if “[t]he child has been in an out-of-home placement
for a cumulative total period of nine months or longer pursuant to court
order . . . and the parent has substantially neglected or wilfully refused to
remedy the circumstances that cause the child to be in an out-of-home
placement.”6 Severance on this ground is not appropriate when a parent
has made “appreciable, good faith efforts to comply with remedial
programs outlined by [DCS],” but it may be appropriate in cases where the
parent “disappears for months at a time and makes only sporadic, aborted
5 Because we conclude sufficient evidence supported severance under
A.R.S. § 8-533(B)(8)(a) for all three children, we do not address Mother’s
claims pertaining to A.R.S. § 8-533(B)(3), (8)(b), or (8)(c). See Crystal E., 241
Ariz. at 577, ¶ 5 (clarifying that if clear and convincing evidence supports
any one ground for severance, appellate court need not address claims
pertaining to other grounds).
6 Mother does not challenge the superior court’s findings that DCS
made diligent efforts to provide her with appropriate reunification services
or that the children were in an out-of-home placement for over three years.
She therefore concedes the accuracy of those findings, see Michael J. v. Ariz.
Dep’t of Econ. Sec., 196 Ariz. 246, 249, ¶ 13 (2000), and we address only
whether sufficient evidence supports the court’s finding that Mother “ha[d]
substantially neglected or wilfully refused to remedy the circumstances that
cause[d] the child[ren] to be in an out-of-home placement[,]” see A.R.S. § 8-
533(B)(8)(a).
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CATRINA K. v. DCS, et al.
Decision of the Court
attempts to remedy” the circumstances. See Maricopa Cty. Juv. Action No.
JS-501568, 177 Ariz. 571, 576 (App. 1994).7 At a minimum, A.R.S. § 8-
533(B)(8)(a) requires the parent demonstrate “something more than trivial
or de minimus efforts at remediation.” Id. at n.1.
¶21 Although, as Mother notes, the children’s guardian ad litem
testified it was “possible, very possible, more likely than not” that Mother
would be in a position in the near future to parent the children, ample
evidence supports the superior court’s finding that Mother “ha[d]
substantially neglected or wilfully refused to remedy the circumstances that
cause[d] the child[ren] to be in an out-of-home placement” pursuant to
A.R.S. § 8-533(B)(8)(a). The DCS case manager testified DCS did not believe
Mother had made the necessary behavioral changes for reunification with
the children because she had not demonstrated lasting sobriety or stability,
had only recently been released from incarceration and would need to
“start her life over,” and would need nine to twelve months to be able to
demonstrate the behavioral changes necessary to successfully reunite with
the children. Similarly, she testified DCS still believed Mother was unable
to parent the children because she had been unable to demonstrate stability
or sobriety outside an institutional setting over the past three years, failed
to complete any of the services offered to her, and had no in-person contact
with the children since 2014. She acknowledged Mother had completed a
substance abuse assessment through TERROS, but she said that before her
incarceration, Mother tested sporadically at TASC, was eventually closed
out of TASC and TERROS due to lack of engagement, and tested positive
for methamphetamine, cocaine, and marijuana during the severance
proceedings. She noted Mother was unable to test from October 2016 to the
date of the hearing because Mother was incarcerated for a drug-related
offense, Mother’s parent aide was closed out unsuccessfully after three
months due to no contact from Mother, and Mother did not attend her
psychological evaluation. DCS, TERROS, and TASC records support this
testimony. This evidence supports the superior court’s finding that Mother
“ha[d] substantially neglected or wilfully refused to remedy the
circumstances that cause[d] the child[ren] to be in an out-of-home
placement” pursuant to A.R.S. § 8-533(B)(8)(a); therefore, we affirm the
court’s findings regarding the grounds for severance.
7 These cases were transferred from the Arizona Department of
Economic Security to DCS in May 2014. See 2014 Ariz. Sess. Laws, ch. 1,
§ 157(D) (2nd Spec. Sess.).
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CATRINA K. v. DCS, et al.
Decision of the Court
CONCLUSION
¶22 We affirm the superior court’s order severing Mother’s
parental rights.
AMY M. WOOD • Clerk of the Court
FILED: AA
9