Jennifer P. v. Dcs, D.D. ( 2018 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
JENNIFER P.,
Appellant,
v.
DEPARTMENT OF CHILD SAFETY, D.D.,
Appellees.
No. 1 CA-JV 17-0583
FILED 6-26-2018
Appeal from the Superior Court in Maricopa County
No. JD33054
The Honorable M. Scott McCoy, Judge
AFFIRMED
COUNSEL
David W. Bell, Attorney at Law, Higley
By David W. Bell
Counsel for Appellant
Arizona Attorney General's Office, Phoenix
By JoAnn Falgout
Counsel for Appellee DCS
JENNIFER P. v. DCS, D.D.
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Diane M. Johnsen delivered the decision of the Court, in
which Judge Paul J. McMurdie and Judge David D. Weinzweig joined.
J O H N S E N, Judge:
¶1 Jennifer P. ("Mother") appeals the superior court's order
severing her parental rights to her child, arguing that the court erred in
finding that severance was in her child's best interests. Because substantial
evidence supports the court's best-interests finding, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 Mother has a long history of abusing various drugs and
alcohol. In August 2016, the Department of Child Safety ("DCS") received
a report that Mother was addicted to heroin and other drugs and was
bringing along her child, then six years old, when she visited her drug
dealer. DCS filed a dependency petition, alleging that Mother had
neglected her child because of her substance abuse and mental-health
issues.1 A drug-treatment center diagnosed Mother with a substance-abuse
disorder involving heroin and opiate pills. A psychologist who examined
Mother reported that she displayed attitudes and beliefs that were
inappropriate for a parent, and he recommended that her child not be
returned to her care until she demonstrated that she was sober for six
months to a year. The superior court found the child dependent as to
Mother in November 2016.
¶3 During the dependency, DCS referred Mother to various
services, but Mother did not consistently participate in them. After initially
complying, Mother's participation in group therapy became sporadic.
Mother missed most of the scheduled drug tests throughout the
dependency, giving various excuses for missing those tests. In December
2016, Mother tested positive for oxycodone at a methadone clinic where she
was receiving treatment. At another methadone clinic, Mother tested
positive for methamphetamine and opiates other than methadone in
1 DCS also alleged the child was dependent as to his father, and the
court ultimately severed his parental rights when it severed Mother's. The
father is not a party to this appeal.
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JENNIFER P. v. DCS, D.D.
Decision of the Court
January 2017, and she tested positive for methamphetamine again in April
2017. In August 2017, police arrested Mother for an outstanding warrant
and found drug paraphernalia in her possession. In September 2017,
Mother was closed out of drug treatment for lack of compliance. DCS also
provided Mother with a referral to a parent-aide service, but Mother was
closed out of that service because of lack of contact. Mother also did not
consistently take advantage of the opportunity for supervised visits with
her child.
¶4 After removing the child from Mother's care in 2016, DCS
placed him with his half-sister and the half-sister's father, where he
remained throughout the dependency. The child formed strong bonds with
both his half-sister and her father and enjoyed being with them; he also did
well in school and participated in extracurricular activities. The half-sister's
father provided a safe and stable home and was willing to adopt the child.
¶5 DCS moved for severance in August 2017 on grounds of
chronic substance abuse pursuant to Arizona Revised Statutes ("A.R.S.")
section 8-533(B)(3) (2018) and nine months' time in care pursuant to A.R.S.
§ 8-533(B)(8)(a).2 At the close of evidence at the severance hearing on
December 11, 2017, the court stated it would terminate Mother's parental
rights on both grounds and ordered DCS to file proposed findings of fact
and conclusions of law. DCS did so, and the court entered a formal order
incorporating the findings and conclusions.
¶6 Mother timely appealed. We have jurisdiction pursuant to
Article 6, Section 9, of the Arizona Constitution and A.R.S. §§ 8-235(A)
(2018), 12-120.21(A)(1) (2018) and -2101(A)(1) (2018).
DISCUSSION
¶7 Mother does not contest the grounds for severance; she
argues only that insufficient evidence supported the superior court's
finding that severance was in the best interests of her child. In particular,
Mother argues DCS failed to show that her child would affirmatively
benefit from severance or suffer a detriment if severance were denied.
¶8 Termination of parental rights requires clear and convincing
evidence of a statutory ground set out in § 8-533(B), Michael J. v. Ariz. Dep't
of Econ. Sec., 196 Ariz. 246, 249, ¶ 12 (2000), and proof by a preponderance
of the evidence that termination is in the best interests of the child, see Kent
2 Absent material revision since the relevant date, we cite a statute's
most current version.
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JENNIFER P. v. DCS, D.D.
Decision of the Court
K. v. Bobby M., 210 Ariz. 279, 288, ¶ 41 (2005). Because the superior court "is
in the best position to weigh the evidence, observe the parties, judge the
credibility of witnesses, and resolve disputed facts," we will affirm an order
terminating parental rights if it is supported by reasonable evidence. Jordan
C. v. Ariz. Dep't of Econ. Sec., 223 Ariz. 86, 93, ¶ 18 (App. 2009).
¶9 DCS can establish that severance is in the best interests of the
child "by either showing an affirmative benefit to the child by removal or a
detriment to the child by continuing in the relationship." See Jesus M. v.
Ariz. Dep't of Econ. Sec., 203 Ariz. 278, 282, ¶ 14 (App. 2002). When the
superior court severs a parent-child relationship, the court "must include a
finding as to how the child[] would benefit from a severance or be harmed
by the continuation of the relationship." Xavier R. v. Joseph R., 230 Ariz. 96,
99-100, ¶ 11 (App. 2012); see also A.R.S. § 8-538(A) (2018) (order terminating
parental rights "shall recite the findings on which the order is based"). We
do not reweigh the evidence and defer to the superior court's factual
findings unless they are clearly erroneous. Mary Lou C. v. Ariz. Dep't of Econ.
Sec., 207 Ariz. 43, 47, ¶ 8 (App. 2004). A finding of fact is not clearly
erroneous unless no reasonable evidence supports it. Id.
¶10 "In combination, the existence of a statutory ground for
severance and the immediate availability of a suitable adoptive placement
for the child[] frequently are sufficient to support a severance order." Ariz.
Dep't of Econ. Sec. v. Oscar O., 209 Ariz. 332, 335, ¶ 8 (App. 2004). In Mary
Lou C., 207 Ariz. at 50-51, ¶¶ 20-22, we affirmed the superior court's best-
interests finding when the child was in an appropriate adoptive placement
and the mother had a history of substance abuse that rendered her unable
to parent.
¶11 Here, similar facts dictate the same result. The court
supported its conclusion that severance would serve the child's best
interests by finding that "[t]he child is residing in an adoptive placement
which is meeting all of his needs" and that severance would further the
adoption, "which would provide the child with permanency and stability."
¶12 The evidence supports the court's findings. Mother's
caseworker testified the child was in an adoptive placement that was
meeting his needs and he would benefit from the stability of a permanent
home. The caseworker's testimony was substantial evidence of the
adoptive placement and its attendant affirmative benefits of permanency
and stability. The substantial evidence of a suitable adoptive placement,
coupled with Mother's chronic substance abuse, sufficiently supports the
finding that severance was in her child's best interests.
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JENNIFER P. v. DCS, D.D.
Decision of the Court
¶13 Mother argues that the superior court did not "give proper
weight" to other evidence, including excerpts from DCS reports showing
that Mother and her child expressed love for each other, the child enjoyed
his visits with Mother and would express sadness when those visits would
end, and Mother interacted appropriately and positively with the child
during visits. Mother contends that if the court had properly considered
the totality of circumstances, its only possible reasonable conclusion would
have been that severance would harm the child more than it would benefit
him. But we do not reweigh the evidence and will affirm a severance order
when substantial evidence supports it, as it does here. See Mary Lou C., 207
Ariz. at 47, ¶ 8.
¶14 Finally, Mother suggests that the superior court misconstrued
the severance statute as requiring termination when there are grounds for
severance and the child is in an adoptive placement. She cites no record
support for this argument, however, and we see none.
CONCLUSION
¶15 Because Mother did not challenge the grounds for severance
and substantial evidence supports the superior court's finding that
severance was in the child's best interests, we affirm the order severing
Mother's parental rights.
AMY M. WOOD • Clerk of the Court
FILED: AA
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