Kristi S. v. Dcs, A.T. ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
KRISTI S., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, A.T., Appellees
No. 1 CA-JV 16-0115
FILED 1-3-17
Appeal from the Superior Court in Maricopa County
No. JD28124
The Honorable Connie Contes, Judge
AFFIRMED
COUNSEL
Jeffrey M. Zurbriggen PC, Phoenix
By Jeffrey M. Zurbriggen
Counsel for Appellant
Arizona Attorney General’s Office, Phoenix
By Amber E. Pershon
Counsel for Appellee Department of Child Safety
KRISTI S. v. DCS, A.T.
Decision of the Court
MEMORANDUM DECISION
Judge Paul J. McMurdie delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Jon W. Thompson joined.
M c M U R D I E, Judge:
¶1 Kristi S. (“Mother”) appeals the juvenile court’s order
terminating her parental rights to A.T. She challenges the sufficiency of the
evidence supporting termination. Because we conclude that the court’s
findings are supported by reasonable evidence, we affirm.
BACKGROUND
¶2 Mother is the biological parent of A.T., born in April 2013.1
Mother has a history of substance abuse, and A.T. was born substance
exposed to methadone, Vicodin, and oxycodone.
¶3 In June 2013, after a domestic violence incident between
Mother and Father, the juvenile court ordered Mother’s parenting time to
be supervised by A.T.’s maternal grandmother. A.T.’s best-interests
attorney filed a dependency petition in April 2014 citing concerns related
to Mother’s history of drug use and domestic violence with Father.2 In
August 2014, for A.T.’s safety, DCS insisted that Mother leave the maternal
grandmother’s home because a hair follicle test was positive for heroin. The
juvenile court found A.T. dependent as to Mother in September 2014.
¶4 DCS set a goal of reunification for Mother concurrent with
severance and adoption and offered services including substance-abuse
testing with TASC, substance-abuse treatment through TERROS, a
psychological and neuropsychological evaluation, a psychiatric evaluation,
individualized counseling with a focus on domestic violence, parent-aide
1 Aaron T. (“Father”) had his parental rights terminated in a March
2016 proceeding. Because Father has not joined in this appeal, we do not
review his termination.
2 The Department of Child Safety (“DCS”) was later substituted as
petitioner in the case.
2
KRISTI S. v. DCS, A.T.
Decision of the Court
services, and parenting classes. From August 2014 to January 2015, Mother
tested positive for high levels of opiates.3 Mother advised DCS that she had
been in a car accident ten years before, which required surgery to put a
metal cage in her back, and had been on prescription pain medication ever
since. Mother participated in a psychiatric evaluation, a psychological
evaluation, a neuropsychological evaluation, domestic violence classes,
parent-aide services, and parenting classes. She failed to complete
substance-abuse treatment and individualized counseling with a focus on
domestic violence.
¶5 DCS was relieved from providing Mother with services in
April 2015 after Mother decided not to contest the first severance petition
filed by maternal grandmother. However, in August 2015 Mother
requested that services be reinstated after DCS withdrew as co-petitioner
from maternal grandmother’s severance petition and filed a new motion for
termination of the parent-child relationship.4 DCS’s motion alleged
grounds pursuant to Arizona Revised Statutes (“A.R.S.”) sections
8-533(B)(3), 8-533(B)(8)(a), and 8-533(B)(8)(c).5
¶6 A contested severance hearing took place in December 2015.
Afterwards, the court ordered severance based upon all of the alleged
grounds, which included Mother’s inability to discharge her parental
responsibilities due to substance abuse, and the child being in an out-of-
home placement for more than nine months with a substantial likelihood
that Mother would not be capable of exercising effective parental care in the
near future. Mother timely appealed. We have jurisdiction pursuant to
Article 6, Section 9, of the Arizona Constitution; A.R.S. § 8-235(A); and
Arizona Rule of Procedure for the Juvenile Court 103(A).
3 Mother stopped testing completely in January 2015 and did not
resume testing even after services resumed in August 2015.
4 Mother did not originally contest the first severance petition when
A.T. was placed with maternal grandmother. After Father filed a motion for
change in physical custody, which was eventually supported by DCS, DCS
decided to withdraw from maternal grandmother’s original severance
petition and file its own. Mother contested DCS’s renewed motion for
termination of parental rights.
5 Absent material revision after the relevant date, we cite a statute’s
current version.
3
KRISTI S. v. DCS, A.T.
Decision of the Court
DISCUSSION
¶7 The right to custody of one’s child is fundamental, but it is not
absolute. Michael J. v. ADES, 196 Ariz. 246, 248, ¶¶ 11-12 (2000). To support
termination of parental rights, one or more of the statutory grounds for
termination must be proven by clear and convincing evidence.
A.R.S. § 8-537(B); Shawanee S. v. ADES, 234 Ariz. 174, 176-77, ¶ 9 (App.
2014). In addition, the court must find by a preponderance of the evidence
that the termination is in the best interests of the child. A.R.S. § 8–533(B);
Mario G. v. ADES, 227 Ariz. 282, 285, ¶ 11 (App. 2011).
¶8 We view the evidence in the light most favorable to sustaining
the juvenile court’s findings. Christina G. v. ADES, 227 Ariz. 231, 234, ¶ 13
(App. 2011). As the trier of fact, the juvenile court “is in the best position to
weigh the evidence, observe the parties, judge the credibility of the
witnesses, and resolve disputed facts.” ADES v. Oscar O., 209 Ariz. 332, 334,
¶ 4 (App. 2004). We will accept the juvenile court’s findings of fact unless
no reasonable evidence supports those findings. Jesus M. v. ADES, 203 Ariz.
278, 280, ¶ 4 (App. 2002).6
A. Reasonable Evidence Supports a Termination of Parental Rights
Under A.R.S. § 8–533(B)(3).
¶9 To justify termination of parental rights under
A.R.S. § 8-533(B)(3), the juvenile court must find (1) that a parent’s “history
of chronic abuse of dangerous drugs, controlled substances or alcohol”
renders the parent unable to discharge parental responsibilities, and (2) that
“there are reasonable grounds to believe that the condition will continue for
a prolonged indeterminate period.” In addition, DCS has an obligation to
make reasonable efforts to provide appropriate services to preserve the
family. Mary Ellen C. v. ADES, 193 Ariz. 185, 191–92, ¶¶ 30-34 (App. 1999).
i. DCS Made Reasonable Efforts to Provide Reunification Services.
¶10 Mother first challenges the court’s finding that DCS made
reasonable efforts to provide reunification services. DCS provided services
starting in April 2014 including substance-abuse testing with TASC,
substance-abuse treatment through TERROS, a psychological and
neuropsychological evaluation, a psychiatric evaluation, individualized
6 Mother claims that the court should review the evidence de novo
alleging that the juvenile court did not apply the correct legal standard to
the facts in resolving the issues. The court finds nothing in the record to
support Mother’s claim and will therefore not review the evidence de novo.
4
KRISTI S. v. DCS, A.T.
Decision of the Court
counseling with a focus on domestic violence, parent-aide services, and
parenting classes. While Mother did complete parent-aide services and
some domestic-violence classes, she stopped attending the classes because
they were too expensive. As a result, DCS provided an alternative in the
form of counseling at no cost, but Mother never attended.
¶11 Mother also never completed the services offered for
substance abuse through TERROS. Mother contends that TERROS would
not allow her to participate in its services as long as she continued to take
her prescription drugs. However, the DCS case worker at the trial testified
that Mother refused TERROS services by signing a letter of refusal.
Furthermore, TERROS offered to send Mother to a halfway house to assist
in treatment, and Mother refused.
¶12 Instead, Mother argues that TERROS should have provided
her with detox services, rather than the recommended halfway-house
services, to help her with her addiction. But, the neuropsychologist who
examined Mother recommended a halfway house, which is why TERROS
offered her those services. The DCS case worker at trial testified that if
Mother wanted to attend a detox center, TERROS was capable of making
that referral as well. Regardless, Mother chose not to participate in the
recommended halfway-house services.
¶13 While it is possible that Mother would have benefited from
detox services, DCS is only required to provide Mother with the
“opportunity to participate in programs designed to help her become an
effective parent.” Matter of Appeal in Maricopa Cty. Juvenile Action No. JS-
501904, 180 Ariz. 348, 353 (App. 1994). DCS is “not required to provide
every conceivable service.” Id. Therefore, the court did not err by implicitly
finding that the halfway house services recommended by TERROS were
sufficient to meet the statutory requirements. Based on the amount of
services provided by DCS, and the testimony of the DCS case worker at the
contested severance hearing, there was sufficient evidence in the record for
the juvenile court to conclude that DCS made reasonable efforts to provide
reunification services.
ii. Sufficient Evidence Supports a Conclusion That Mother Was
Unable to Discharge Her Parental Responsibilities.
¶14 Mother also contends that there was insufficient evidence to
show she was unable to discharge her parental responsibilities due to
substance abuse. Mother admitted at trial that she had a problem with
oxycodone and Xanax. Mother also testified at trial that she did not believe
5
KRISTI S. v. DCS, A.T.
Decision of the Court
she was able to parent A.T. appropriately when she was under the influence
of the medication. Evidence in the record from Dr. Gallo, Mother’s former
primary-care physician, Dr. Parker, the psychiatrist who completed
Mother’s psychiatric evaluation, and the DCS case worker assigned to A.T.,
all supported the conclusion that Mother was unable to effectively parent
due to her addiction. As a result, the juvenile court did not err in finding
that Mother was unable to discharge her parental responsibilities as a result
of substance abuse.
iii. Reasonable Grounds Support a Conclusion That Mother’s
Condition Would Continue for a Prolonged Indeterminate Period.
¶15 Finally, Mother argues there were not reasonable grounds to
believe that her condition would continue for a prolonged indeterminate
period. Mother points to testimony from her addiction counselor at the
treatment program she was attending at the time of trial, stating that he
believed her efforts were “genuine” and that she had a “good prognosis if
she continue[d] to maintain the progress that she ha[d] made.”
¶16 Mother has a long history of substance abuse dating back to
2004. She previously sought treatment in 2009, and after a period of sobriety
she relapsed. At the time of the hearing, Mother had not completed
substance-abuse treatment, and would not complete her program for at
least five months.7 See Marina P. v. ADES, 214 Ariz. 326, 330, ¶ 22 (App.
2007) (we review the circumstances as they exist at the time of the severance
hearing). While Mother’s efforts to seek treatment are noteworthy, a
temporary abstinence from drugs does not necessarily overcome a parent’s
history of consistent abuse over a period of years. See Raymond F. v. ADES,
224 Ariz. 373, 379, ¶ 29 (App. 2010). Accordingly, we conclude that
reasonable evidence existed for the juvenile court to find that Mother’s
condition would continue for a prolonged indeterminate period.
¶17 If this court concludes that one ground for severance is
supported by the evidence, “we need not consider whether the trial court’s
findings justified severance on the other grounds announced by the court.”
Michael J., 196 Ariz. at 251, ¶ 27. Therefore, because we find that reasonable
evidence supported the termination of Mother’s parental rights on the
7 There was additional testimony from the DCS case worker that even
after completion of Mother’s substance abuse program, DCS would need to
see sustained sobriety in an unstructured setting before reunification could
take place.
6
KRISTI S. v. DCS, A.T.
Decision of the Court
grounds identified in § 8–533(B)(3), we need not address the juvenile court’s
findings regarding § 8–533(B)(8).
B. Reasonable Evidence Supports a Finding that Severance is in the
Best Interest of A.T.
¶18 Mother also contends severance of her parental rights is not
in the best interests of the child. After the court has found a statutory
ground for termination exists, then the court must also find by a
preponderance of the evidence that termination is in the child’s best
interests. A.R.S. § 8–533(B); Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 22
(2005). “A determination of the [child’s] best interest must include a finding
as to how the [child] would benefit from a severance or be harmed by the
continuation of the relationship.” Raymond F., 224 Ariz. at 379, ¶ 30 (citing
Maricopa Cty. Juv. Action No. JS-500274, 167 Ariz. 1, 5 (1990)). The court must
consider whether (1) an adoptive placement is immediately available; (2)
the existing placement is meeting the needs of the child; and (3) the child is
adoptable. Id.
¶19 The juvenile court found that severance was in the child’s best
interests because it would allow a plan of adoption with the paternal
grandparents to move forward, providing A.T. with a safe and stable home.
The court’s ruling is supported by the fact that the child is already in a
placement with the paternal grandparents that is meeting all of the child’s
needs. Furthermore, in the event that the paternal grandparents could not
adopt A.T., the case worker testified that he is otherwise adoptable and has
no special needs.
¶20 Mother argues that severance was not in the child’s best
interests because her visits with the child “went well, they shared a bond,”
and that she “cared for the child day to day.” While these facts support an
argument that the child would not be harmed by the continuation of the
parent-child relationship, the juvenile court need only find that the child
would benefit from severance in order to make a best-interests finding. See
Raymond F., 224 Ariz. at 379, ¶ 30. Because reasonable evidence in the record
supports the conclusion that the child would benefit from severance, we
find no error in the juvenile court’s determination.
¶21 Mother also contends that the placement with the paternal
grandparents is not in the child’s best interests. After a parent’s rights are
severed, the parent lacks standing to challenge the child's placement. See
Sands v. Sands, 157 Ariz. 322, 324 (App. 1988). Furthermore, Mother is
appealing the severance of her parental rights, and not the placement of the
7
KRISTI S. v. DCS, A.T.
Decision of the Court
child, which is a separate issue. See Antonio M. v. ADES, 222 Ariz. 369, 370-
71, ¶ 2 (App. 2009). The court does not weigh alternative placement options
when determining if severance is in the child’s best interests, only whether
an existing placement is meeting the needs of the child or whether there is
an adoptive placement immediately available. Id. at 371, ¶ 2 (quoting
Audra T. v. ADES, 194 Ariz. 376, 377, ¶ 5 (App. 1998)). As a result, we decline
to address this argument.
CONCLUSION
¶22 For the foregoing reasons, we affirm the juvenile court’s order
terminating Mother’s parental rights.
AMY M. WOOD • Clerk of the Court
FILED: JT
8