Jaime Q. v. Dcs ( 2019 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
JAMIE Q., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, A.S., E.Q., Appellees.
No. 1 CA-JV 19-0053
FILED 9-26-2019
Appeal from the Superior Court in Maricopa County
No. JD12444
The Honorable Nicolas B. Hoskins, Judge Pro Tempore
AFFIRMED
COUNSEL
The Stavris Law Firm PLLC, Scottsdale
By Alison Stavris
Counsel for Appellant
Arizona Attorney General’s Office, Phoenix
By Doriane F. Zwillinger
Counsel for Appellee Department of Child Safety
JAMIE Q. v. DCS, et al.
Decision of the Court
MEMORANDUM DECISION
Judge Samuel A. Thumma delivered the decision of the Court, in which
Presiding Judge James B. Morse Jr. and Judge David D. Weinzweig joined.
T H U M M A, Judge:
¶1 Mother Jamie Q. appeals the superior court’s order
terminating her parental relationship with her two children. Because she
has shown no error, the order is affirmed.
FACTS AND PROCEDURAL HISTORY
¶2 Mother and Stephen S. (Father) have an extensive history of
substance abuse, particularly with methamphetamine. 1 In July 2016,
Mother gave birth to a substance-exposed newborn, A.S. The Department
of Child Safety (DCS) then provided the parents with in-home family
preservation services. When both parents continued using
methamphetamine and engaged in domestic violence, and Mother
disclosed untreated depression and bipolar disorders, DCS took custody of
A.S. in October 2016 and filed a dependency petition.
¶3 The court found A.S. dependent in December 2016 and
adopted a case plan of family reunification, concurrent with severance and
adoption. DCS provided Mother with services, including substance-abuse
testing and treatment, a psychological evaluation and a parent aide with
visitation. Mother completed a psychological evaluation with Dr. Al
Silberman in January 2017. Dr. Silberman diagnosed Mother with moderate
to severe alcohol use, moderate methamphetamine use, major depression
and a personality disorder with antisocial and dependent features.
Although telling Dr. Silberman that she had not used methamphetamine
for two months, Mother tested positive for methamphetamine about a week
before the evaluation. Dr. Silberman gave Mother a very poor prognosis of
being able to safely parent A.S. in the future. He recommended that Mother
remain sober for at least a year and become financially stable. He also
1 Father’s parental rights also were terminated, his appeal of that order was
dismissed pursuant to Arizona Rule of Juvenile Procedure 106(G)(1) and he
is not a party to this case.
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Decision of the Court
recommended Mother participate in regular drug testing and bi-monthly
counseling with a master’s-level therapist.
¶4 Between August 2016 and June 2017, Mother inconsistently
participated in drug testing and, when she did test, periodically tested
positive for amphetamine or methamphetamine. In July 2017, she
completed a 28-day inpatient substance-abuse program at Maverick House.
After completing the program, Mother consistently participated in drug
testing for a time and tested negative through August 2017. Her
participation became sporadic in the months that followed, however, and
she tested positive for methamphetamine in October 2017.
¶5 In early 2018, after Mother was arrested for driving under the
influence, she disclosed ongoing domestic violence with Father and was not
treating her behavioral health issues. When E.Q. was born in February 2018,
Mother tested positive for methamphetamine and other controlled
substances. DCS took custody of E.Q. and filed a dependency petition. In
March 2018, the court found E.Q. dependent and adopted a case plan of
family reunification, concurrent with severance and adoption.
¶6 In March, April and early May 2018, Mother regularly
participated in drug testing and tested negative. During this same time,
Mother completed Families F.I.R.S.T. intensive outpatient substance-abuse
program. Mother’s commitment to drug testing then waned, and she
missed several tests. In June 2018, she tested positive for
methamphetamine, and an early August 2018 hair sample also was positive
for the drug. Mother then failed to participate in drug testing through
February 2019. Nor did she follow through with any further substance-
abuse treatment. DCS referred Mother for a second psychological
evaluation, but she failed to complete it.
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JAMIE Q. v. DCS, et al.
Decision of the Court
¶7 In October 2018, the court changed the case plan to severance
and adoption. DCS filed a motion to terminate alleging substance-abuse for
both children and 15-months time-in-care for A.S., also alleging that
termination was in the best interests of the children After a two-day
severance adjudication in February 2019, the court granted the motion on
the grounds alleged. This court has jurisdiction over Mother’s timely appeal
pursuant to Article 6, Section, 9, of the Arizona Constitution, A.R.S. §§ 8-
235(A), 12-120.21(A) and 12-2101(A) and Ariz. R.P. Juv. Ct. 103-104 (2019).2
DISCUSSION
¶8 As applicable here, to terminate parental rights, a court must
find by clear and convincing evidence that at least one statutory ground
articulated in A.R.S. § 8–533(B) has been proven and must find by a
preponderance of the evidence that termination is in the best interests of the
child. See Kent K. v. Bobby M., 210 Ariz. 279, 288 ¶ 41 (2005); Michael J. v. Ariz.
Dep’t of Econ. Sec., 196 Ariz. 246, 249 ¶ 12 (2000). 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,” this court will affirm
an order terminating parental rights as long as it is supported by reasonable
evidence. Jordan C. v. Ariz. Dep’t of Econ. Sec., 223 Ariz. 86, 93 ¶ 18 (App.
2009) (citation omitted).
¶9 On appeal, Mother argues that the superior court erred in
finding that DCS made diligent efforts to provide her with appropriate
reunification services because DCS did not offer her master’s-level
counseling or domestic-violence counseling.
¶10 DCS must make diligent efforts to provide appropriate
reunification services when it seeks to terminate parental rights on the
grounds relevant here. A.R.S. § 8-533(B)(8); Jennifer G. v. Ariz. Dep’t of Econ.
Sec., 211 Ariz. 450, 453 ¶ 12 (App. 2005). DCS satisfies this requirement if it
provides the parent with “the time and opportunity to participate in
programs designed to help her become an effective parent.” Maricopa Cty.
Juvenile Action No. JS-501904, 180 Ariz. 348, 353 (App. 1994). DCS is required
to provide only those services with a reasonable prospect of success but
need not provide every conceivable service or ensure the parent
participates in each service it offers. Id.; Mary Ellen C. v. Ariz. Dep’t of Econ.
Sec., 193 Ariz. 185, 192 ¶37 (App. 1999). DCS is not required to leave “the
2Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.
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JAMIE Q. v. DCS, et al.
Decision of the Court
window of opportunity for remediation open indefinitely.” Maricopa Cty.
Juvenile Action No. JS-501568, 177 Ariz. 571, 577 (App. 1994).
¶11 DCS argues that Mother waived her claim regarding services
because she did not raise the issue until the termination hearing. The
superior court found that “[i]t was incumbent upon Mother to raise this
issue with the court earlier to allow the court to ensure that the Department
made a referral for counseling.” The record supports the court’s finding that
Mother did not raise the issue of counseling services either to her case
managers or that court. By failing to raise the issue earlier, Mother deprived
DCS and the court a chance to remedy any alleged error. See Shawanee S. v.
Ariz. Dep’t of Econ. Sec., 234 Ariz. 174, 179-80 ¶ 16 (App. 2014) (“[A] parent’s
failure to assert legitimate complaints in the juvenile court about the
adequacy of services needlessly injects uncertainty and potential delay into
the proceedings, when important rights and interests are at stake and
timeliness is critical.”). Moreover, on this record, reasonable evidence
supports the court’s diligent efforts finding.
¶12 Mother asserts that the master’s-level and domestic-violence
counseling were “two critical services recommended by the Department’s
consulting expert,” Dr. Silberman. Dr. Silberman did recommend
“[c]ounseling with a Masters level or above [therapist] . . . on an every other
week basis.” Dr. Silberman’s recommendation, however, was contingent
upon Mother demonstrating six months of sobriety. He emphasized that
sobriety should precede counseling, testifying that “the major [issue] is the
methamphetamines, which makes people upset, angry, irritable,
irrational.” Yet Mother never demonstrated lasting sobriety. Mother was
twice sober for two months during the dependency -- in July and August
2017 and again from March to May 2018 -- and while she completed
substance-abuse treatment programs, she soon relapsed.
¶13 Nor did Mother fully engage in the individual counseling
services that were provided. Though required to regularly attend substance
abuse counseling at TERROS, Mother’s participation was highly sporadic.
Although Mother cites a lack of master’s-level and domestic-violence
counseling, she acknowledges that she received some individual
counseling at TERROS through her substance-abuse treatment program.
Indeed, TERROS records show Mother was required to engage in
counseling at least once a month. The case manager ensured the TERROS
service was always available to Mother, referring her each time the service
closed. Yet, Mother’s participation in TERROS was sporadic and she did
not regularly take advantage of the counseling available to her. Despite its
availability, Mother testified that she only met with her counselor “[l]ike
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JAMIE Q. v. DCS, et al.
Decision of the Court
twice out of the whole” dependency. On this record, the superior court did
not err in finding DCS made diligent efforts to provide Mother with
appropriate reunification services.
CONCLUSION
¶14 The superior court’s order terminating Mother’s parental
rights to A.S. and E.Q. is affirmed.
AMY M. WOOD • Clerk of the Court
FILED: AA
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