Shaquita H. v. Dcs, A.B. ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
SHAQUITA H., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, A.B., Appellees.
No. 1 CA-JV 19-0209
1 CA-JV 19-0218
(Consolidated)
FILED 12-17-2019
Appeal from the Superior Court in Maricopa County
No. JD529955
JS519238
The Honorable Karen L. O’Connor, Judge
VACATED IN PART; AFFIRMED IN PART; REMANDED
COUNSEL
John L. Popilek, P.C., Scottsdale
By John L. Popilek
Counsel for Appellant
Arizona Attorney General’s Office, Tucson
By Autumn Spritzer
Counsel for Appellee Department of Child Safety
SHAQUITA H. v. DCS, A.B.
Decision of the Court
MEMORANDUM DECISION
Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Jennifer B. Campbell and Judge Michael J. Brown joined.
W I N T H R O P, Judge:
¶1 Shaquita H. (“Mother”) appeals the juvenile court’s order
terminating her parental rights to A.B. Mother argues the Department of
Child Safety (“DCS”) failed to prove she is currently unable to discharge
parental responsibilities because of chronic substance abuse, which was the
same cause for termination of Mother’s rights to another child. See Arizona
Revised Statutes (“A.R.S.”) section 8-533(B)(10). Because the court’s
findings regarding termination are not reasonably supported by the record,
we vacate the portion of the order terminating Mother’s parental rights to
A.B., but we affirm the portion of the order finding A.B. dependent as to
Mother. We remand for further proceedings consistent with this decision.
FACTS1 AND PROCEDURAL HISTORY
¶2 Mother has a long history of substance abuse. She began
using cocaine at age thirteen and later abused additional substances
including opiates, methamphetamine, and other amphetamines. Mother’s
parental rights to four other children have been severed based, in part, on
chronic substance abuse. Mother was convicted of drug-related crimes in
July 2016 and was incarcerated throughout dependency and severance
proceedings regarding her fourth child, N.B. Mother’s rights to N.B. were
terminated in June 2017 based on Mother’s chronic substance abuse, among
other grounds.
¶3 Mother was released on probation in April 2018 and became
pregnant with A.B. soon after. The Adult Probation Department (“APD”)
required Mother to complete substance abuse treatment and drug testing.
Mother did not comply. She attended only three of seven substance abuse
treatment classes and continued to use drugs throughout her pregnancy,
testing positive for methamphetamine, opiates, and cocaine in August 2018
1 We review the facts and reasonable inferences therefrom in the light
most favorable to affirming the juvenile court’s order. Ariz. Dep’t of Econ.
Sec. v. Matthew L., 223 Ariz. 547, 549, ¶ 7 (App. 2010).
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Decision of the Court
and positive for other amphetamines and THC in both September and
November 2018. Mother missed ten other scheduled drug tests. When
Mother was 28-weeks pregnant with A.B., she overdosed on fentanyl,
crashed her car, and was briefly hospitalized.
¶4 In January 2019, Mother admitted she had been using
methamphetamine “a couple of times a week.” When A.B. was born on
January 25, 2019, both Mother and A.B. tested positive for
methamphetamine and THC. DCS took temporary physical custody of A.B.
and filed a dependency petition on January 30, 2019, with the case plan
undetermined.
¶5 Based on Mother’s probation violation, APD obtained a
warrant for Mother’s arrest. A few days after giving birth to A.B., Mother
scheduled a team decision meeting with DCS to arrange services and
outline a plan for regaining custody of A.B. Ten minutes into the meeting,
Mother was arrested by Phoenix Police for violating her probation. Mother
was then incarcerated until June 5, 2019.
¶6 During her incarceration, DCS filed a petition to terminate
Mother’s parental rights to A.B. based on the prior-termination ground,
A.R.S. § 8-533(B)(10), alleging that Mother was unable to parent A.B. for the
same reason her rights to N.B. were terminated: chronic substance abuse.
A combined dependency and severance hearing was scheduled for June 13,
2019. During her four months in prison, Mother completed a 12-step LDS-
sponsored recovery program; upon release, she scheduled an intake with
TERROS and submitted to one drug test.
¶7 The court held the combined dependency and severance
hearing eight days after Mother was released from prison. At the time of
the hearing, Mother’s initial intake appointment with TERROS had not yet
occurred, and DCS had not yet received the results from Mother’s first drug
test after her release from prison. The court took the matter under
advisement, and later found A.B. to be dependent and terminated Mother’s
rights to A.B. based on the prior-termination ground and on the best
interests of A.B.
¶8 Mother filed a timely notice of appeal. We have jurisdiction
pursuant to A.R.S. §§ 8-235(A), 12-120.21(A)(1), 12-2101(A)(1), and Rule
103(A) of the Arizona Rules of Procedure for the Juvenile Court.
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SHAQUITA H. v. DCS, A.B.
Decision of the Court
ANALYSIS
I. Standard of Review
¶9 “Parents possess a fundamental liberty interest in the care,
custody, and management of their children.” Kent K. v. Bobby M., 210 Ariz.
279, 284, ¶ 24 (2005). A court may sever parental rights if it finds clear and
convincing evidence of one of the statutory grounds for severance and finds
by a preponderance of the evidence that severance is in the child’s best
interest. See A.R.S. §§ 8-533(B), -537(B); Kent K., 210 Ariz. at 281-82, 288,
¶¶ 7, 41.
¶10 As the trier of fact, the juvenile court “is in the best position
to weigh the 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) (quoting Ariz. Dep’t of Econ. Sec. v. Oscar
O., 209 Ariz. 332, 334, ¶ 4 (App. 2004)). Resolution of conflicts in the
evidence is uniquely the province of the juvenile court, and we will not
reweigh the evidence in our review. See Jesus M. v. Ariz. Dep’t of Econ. Sec.,
203 Ariz. 278, 282, ¶ 12 (App. 2002). We will not disturb the juvenile court’s
order unless no reasonable evidence supports its factual findings. See
Matthew L., 223 Ariz. at 549, ¶ 7.
II. Termination Pursuant to A.R.S. § 8-533(B)(10)
¶11 Mother argues termination under A.R.S. § 8-533(B)(10) was
improper because DCS failed to provide any evidence that she was currently
unable to discharge her parental responsibilities due to chronic substance
abuse at the time of the termination hearing. See A.R.S. § 8-533(B)(10).2 On
this record, we agree.
¶12 Under A.R.S. § 8-533(B)(10), the juvenile court may terminate
parental rights if “the parent has had parental rights to another child
terminated within the preceding two years for the same cause and is
currently unable to discharge parental responsibilities due to the same
cause.” The requirement that the prior termination be “within the
preceding two years” is measured from the date the court terminated
parental rights regarding the previous child to the filing date of the petition
to terminate rights to the second child. Tanya K. v. Ariz. Dep’t of Child Safety,
240 Ariz. 154, 156, ¶ 6 (App. 2016). However, this Court has made clear that
the requirement that the parent “is currently unable to discharge parental
2 Mother has not challenged the portion of the court’s order finding
A.B. dependent.
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responsibilities due to the same cause” is measured “at the time of the
termination hearing.” Id. at 157, ¶ 9. The “same cause” here means “the
factual ‘cause’ that led to the [preceding] termination . . . and not the
statutory ground or grounds that supported the preceding severance.”
Mary Lou C. v. Ariz. Dep’t of Econ. Sec., 207 Ariz. 43, 48, ¶ 11 (App. 2004).
¶13 Here, the “same cause” is Mother’s chronic substance abuse.
Thus, in order to justify termination under § 8-533(B)(10), DCS needed to
show that, at the time of the termination hearing, Mother was unable to
parent A.B. because of chronic substance abuse. DCS failed to meet that
burden.
¶14 We can find no evidence in the record that, at the time of the
termination hearing, Mother was unable to discharge her parental
responsibilities due to chronic substance abuse. Although Mother does not
dispute that she has a long history of substance abuse, her uncontroverted
testimony at the termination hearing was that she did not use any illegal
substances while incarcerated and was still clean at the time of the
termination hearing. DCS stipulated to the fact that Mother completed a
12-step substance abuse recovery program while in prison. Furthermore,
the day Mother was released from prison, she called her DCS caseworker
to set up services. Mother cooperated in scheduling her TERROS intake
appointment and appeared for her first drug test as scheduled the day
before trial. At the time of the termination hearing, DCS had not yet
obtained the results of Mother’s first drug test and could provide no
evidence of Mother’s current substance abuse.3 On this record, DCS failed
to carry its statutory burden of proving Mother was, as of the time of the
termination hearing, unable to discharge her parental responsibilities
because of substance abuse.
¶15 We recognize that one purpose for adding prior-termination
as a ground for severance was to expedite termination proceedings to allow
children to be placed in “permanent homes sooner.” See Senate Fact Sheet,
H.B. 2255, 43rd Leg., 1st Reg. Sess. (Ariz. May 15, 1997); see also Tanya K.,
240 Ariz. at 156-57, ¶ 7. But we do not believe the legislature intended to
permit termination based on prior patterns of behavior without current
3 When asked about Mother’s current substance abuse, the case
worker testified, “Even though [Mother is] just now testing now, she was
clean in a controlled environment, and now she’s no longer in a controlled
environment. So the same pattern exists.” There was no other testimony
presented at the hearing alleging Mother was currently abusing illegal
substances.
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SHAQUITA H. v. DCS, A.B.
Decision of the Court
evidence of inability to discharge parental responsibilities. Rather, a history
of substance abuse seems clearly insufficient to justify termination under
§ 8-533(B)(10) when the subsection is read in conjunction with the chronic
substance abuse ground under § 8-533(B)(3). See Pima Cty. Juv. Action No.
J-78632, 147 Ariz. 584, 586 (1986) (“[S]tatutes which relate to the same
subject matter should be read together and all parts of the law on the same
subject must be given effect, if possible.”).
¶16 Termination of parental rights based on chronic substance
abuse under § 8-533(B)(3) requires “a history of chronic abuse of dangerous
drugs . . . [and] reasonable grounds to believe that the condition will
continue for a prolonged indeterminate period.” In contrast,
§ 8-533(B)(10)—the ground for termination used in Mother’s case—does not
require a belief that a history of chronic substance abuse will likely
continue, but rather, evidence that the parent “is currently unable to
discharge parental responsibilities” because of substance abuse. We cannot
ignore this distinction. See Egan v. Fridlund-Horne, 221 Ariz. 229, 239, ¶ 37
(App. 2009) (“[W]e presume that when the legislature uses different
wording within a statutory scheme, it intends to give a different meaning
and consequence to that language.”). Although Mother has a long history
of substance abuse, that history does not prove Mother was currently
unable to discharge her parental responsibilities without any evidence of
current, continuing substance abuse. DCS provided insufficient evidence
to support termination under A.R.S. § 8-533(B)(10). As such, we vacate the
court’s termination order, and remand for further proceedings consistent
with this decision.
III. Alleged Due Process Violation
¶17 Although we vacate the termination of parental rights on the
aforementioned grounds, we briefly address Mother’s constitutional claim.
Mother argues that DCS violated her substantive due process rights when
it facilitated her arrest for a probation violation while she was at a DCS team
decision meeting. Mother claims DCS notified her probation officer that
she was coming in for the meeting and then the probation officer notified
Phoenix Police to execute a warrant. Mother argues that by doing this, DCS
effectively “entrapped” her and prevented her from being able to engage in
services or parent her child, violating her substantive due process rights.
¶18 We review constitutional claims de novo. Brenda D. v. Ariz.
Dep’t of Child Safety, 243 Ariz. 437, 442, ¶ 15 (2018). However, failure to
object to an alleged due process violation subjects the claim to review for
fundamental error. Id. at 447, ¶ 37. Under fundamental error review, the
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Decision of the Court
parent has the burden of proving that error exists, that such error goes “to
the very foundation of the case,” and that the error caused the parent
prejudice. Id. at 447-48, ¶ 38 (quoting Monica C. v. Ariz. Dep’t of Econ. Sec.,
211 Ariz. 89, 94, ¶ 24 (App. 2005)). A nonspecific objection does not
preserve the issue on appeal. Ruben M. v. Ariz. Dep’t of Econ. Sec., 230 Ariz.
236, 239, ¶ 13 (App. 2012).
¶19 Although Mother complained generally at trial about the
circumstances of her arrest, she made no specific argument that her due
process rights had been violated until this appeal. Because she argues the
due process violation for the first time on appeal, we review only for
fundamental, prejudicial error. See Brenda D., 243 Ariz. at 447, ¶ 37. Here,
we find no such error regarding Mother’s arrest. Lawful arrest pursuant to
a valid warrant comports with due process. See, e.g., Baker v. McCollan, 443
U.S. 137, 144 (1979). It is common for DCS to communicate with probation
officers, and DCS did not violate Mother’s due process rights by sharing
her anticipated location with her probation officer. Furthermore, DCS’
actions in communicating Mother’s location were not what prevented
Mother from participating in services following A.B.’s birth; rather,
Mother’s own actions in violating her probation led to her reincarceration
and resulting inability to engage in services or parent her child. See Mary
Lou C., 207 Ariz. at 50, ¶ 18 (finding provision of services would be futile
when parent was incarcerated and thus unable to complete substance abuse
treatment). Because there was no error, Mother’s due process claim fails.
CONCLUSION
¶20 For the foregoing reasons, we vacate the portion of the
juvenile court’s order terminating Mother’s parental rights to A.B., affirm
the portion of the order finding A.B. dependent as to Mother, and remand
for further proceedings consistent with this decision.
AMY M. WOOD • Clerk of the Court
FILED: AA
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