Charna F. v. Dcs, C.M. ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
CHARNA F., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, C.M., Appellees.
No. 1 CA-JV 16-0240
FILED 4-18-2017
Appeal from the Superior Court in Maricopa County
No. JD22211 and JS18133
The Honorable Kristin C. Hoffman, Judge Retired
AFFIRMED
COUNSEL
Denise L. Carroll, Esq., Scottsdale
By Denise Lynn Carroll
Counsel for Appellant
Arizona Attorney General’s Office, Tucson
By Cathleen E. Fuller
Counsel for Appellee Department of Child Safety
CHARNA F. v. DCS, C.M.
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Peter B. Swann delivered the decision of the court, in which
Judge Kent E. Cattani and Judge Donn Kessler joined.
S W A N N, Judge:
¶1 Charna F. (“Mother”) challenges the sufficiency of the
evidence supporting the severance of her parental rights to her child, C.M.
We conclude that the record contains sufficient evidence to support the
court’s decision, and we therefore affirm.
FACTS AND PROCEDURAL HISTORY
¶2 In 2002, the Department of Child Safety (“DCS” or
“Department”) received the first reports of possible child abuse involving
Mother. In July 2012, DCS filed a dependency petition against Mother and
Tracy M. (collectively, “Parents”) as to M.M. and in January 2014 filed a
dependency petition against Parents as to C.E.M. Mother ultimately
consented to M.M.’s and C.E.M.’s adoption, and in April 2015, the court
severed Mother’s rights to those children, finding clear and convincing
evidence of six months out-of-home care for a child who is less than three
years old and for fifteen-month time in care.1
¶3 C.M. was born marijuana-exposed about five weeks after the
first severance. In early June 2015, DCS filed a dependency petition and in
August petitioned for the termination of Mother’s parental rights to C.M.
After a two-day trial, the court granted the petition, finding that she had
not rectified the situation that led to the previous severance and that she
had chronic substance abuse issues. Mother appeals the severance.
DISCUSSION
¶4 The right to custody of one’s child is fundamental — but not
absolute. Mary Lou C. v. Ariz. Dep’t of Econ. Sec., 207 Ariz. 43, 47, ¶ 8 (App.
2004). To sever a parent’s rights, the Department must show by clear and
convincing evidence the elements of at least one of the statutory grounds.
1 Tracy M.’s rights were terminated separately, and he is not a party
to this appeal.
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CHARNA F. v. DCS, C.M.
Decision of the Court
Dominique M. v. Dep’t of Child Safety, 240 Ariz. 96, 98, ¶ 7 (App. 2016); A.R.S.
§ 8-533(B). Mother first argues that there was insufficient evidence to
support the statutory grounds for severance.
¶5 When the court finds multiple grounds for severance, we will
affirm if any of the grounds is supported by the evidence. Michael J. v. Ariz.
Dep’t of Econ. Sec., 196 Ariz. 246, 251, ¶ 27 (2000). “We will not disturb the
juvenile court’s disposition absent an abuse of discretion or unless the
court’s findings of fact were clearly erroneous, i.e., there is no reasonable
evidence to support them.” In re Maricopa Cnty. Juv. Action No. JV-132905,
186 Ariz. 607, 609 (App. 1996). A finding may still be supported by
substantial evidence even if there is contrary evidence. See Hurd v. Hurd,
223 Ariz. 48, 52, ¶ 16 (App. 2009).
¶6 The court found that Mother was unable to parent C.M.
because of a history of chronic substance abuse that “will continue for a
prolonged indeterminate period.” See A.R.S. § 8-533(B)(3) (providing
statutory ground for severance). Mother contends that she has overcome
her drug and alcohol dependence and that the court could not reasonably
have found otherwise.
¶7 But C.M. tested positive for marijuana exposure at birth, has
special needs and is undergoing testing for fetal alcohol syndrome. Mother
is in her mid-thirties but started using marijuana and alcohol when she was
21. Between C.M.’s birth in May 2015 and November 2015 — when she
successfully entered LifeWell’s inpatient treatment program — most of
Mother’s drug and alcohol tests were diluted or were positive for marijuana
or alcohol.2 According to the psychological evaluation conducted just over
a month into the LifeWell program, Mother is “at [a] high risk of relapse”
and the risk will increase when she is released from the controlled
environment at LifeWell. The evaluation also noted that Mother has a
history of relapses and that “she seems to minimize her substance use and
lacks insight into how it impacted her children, which increases the risk of
relapse.” During the first severance, Mother successfully demonstrated
2 Since the start of the first dependency, Mother has been offered drug
testing, multiple forms of drug addiction treatment, counseling, parent aide
services, a psychological evaluation, and supervised visitation. Before
November 2015, Mother closed out of out-patient rehabilitation programs
unsuccessfully. Though Mother has had periods of successful participation
in reunification services, on balance her participation has been inconsistent.
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CHARNA F. v. DCS, C.M.
Decision of the Court
sobriety and was reunified with one of her children; but she relapsed, and
her parental rights to the child were ultimately severed.
¶8 The case manager testified that if Mother were sober and
treating her mental health issues, she could appropriately parent. While in
LifeWell and since exiting the program, her drug and alcohol tests had been
negative. At the time of trial, Mother had been sober for a total of six
months (including her three months in LifeWell). However, the case
manager testified that 90 days of clean tests outside a controlled
environment was not enough to overcome more than a decade of drug and
alcohol abuse. The case manager testified that Mother needed at least a year
of sobriety to parent C.M. successfully.
¶9 Looking only at Mother’s recovery since the first severance —
as Mother does in this appeal — she has shown an improvement in her drug
and alcohol dependence. But the court reasonably weighed Mother’s drug
and alcohol history in its entirety, including the previous severance.
Parents must be given an opportunity to reunify with their children, but
they are not entitled to attempt indefinitely to rectify the circumstances
leading to the Department’s intervention. In re Maricopa Cnty. Juv. Action
No. JS-501568, 177 Ariz. 571, 577 (App. 1994). It was five months into this
severance (and almost three months after the case plan shifted to severance)
that Mother finally showed significant improvement in combatting her
substance abuse. Despite Mother’s laudable improvements, looking at her
long history of substance abuse and relapse — particularly the previous
failed reunification and medical harm to C.M. at birth — we find no abuse
of discretion in the court’s finding by clear and convincing evidence that
Mother suffers from chronic substance abuse that will continue for a
prolonged and indeterminate period.
¶10 Mother also challenges the court’s best-interests finding. The
Department must show by a preponderance of the evidence that severance
is in the child’s best interests. Dominique M., 240 Ariz. at 98, ¶ 7; see also
A.R.S. § 8-533(B). To sever Mother’s rights, C.M. must either affirmatively
benefit from the severance or be harmed by a continuing relationship with
Mother. Ariz. Dep’t of Econ. Sec. v. Oscar O., 209 Ariz. 332, 334, ¶ 6 (App.
2004).
¶11 Mother and DCS provided contradictory testimony regarding
C.M.’s best interests. The parent aide testified that Mother is eager to
participate in parent-aide service and always came “100 percent” prepared.
Overall, the parent aide believes that Mother was “doing extremely well.”
In the parent aide’s opinion, C.M. would be safe in Mother’s custody; there
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CHARNA F. v. DCS, C.M.
Decision of the Court
is a bond between them; and it is in C.M.’s best interests to have a
continuing relationship with Mother.3
¶12 Conversely, the case manager testified that Mother could not
successfully parent C.M., that C.M. had been in custody since birth, and
that severance would benefit C.M. by providing stability and permanency,
which the case manager feels is particularly important at C.M.’s age. The
case manager testified that Mother had longer than C.M.’s lifetime to
remedy the situation and failed to do so. C.M. is living in a placement that
is meeting all his needs and is willing to adopt, and C.M. is otherwise
adoptable if the placement is unable to adopt him.
¶13 When the court is presented with contradictory evidence, it
has discretion to resolve the conflicts, and we will not reweigh it on appeal.
Vanessa H. v. Ariz. Dept. of Econ. Sec., 215 Ariz. 252, 257, ¶ 22 (App. 2007).
Faced with the contradictory testimony of the case manager and the parent
aide, the court acted within its discretion to find the case manager more
credible and that severance was therefore in C.M.’s best interests.
CONCLUSION
¶14 Arizona law preserves parental rights when the parent
“grasps the opportunity quickly, diligently, and persistently.” In re Pima
Cnty. Juv. Severance Action No. S-114487, 179 Ariz. 86, 101 (1994). After years
of Mother’s unsuccessful efforts to resolve her substance dependence, C.M.
was born substance-exposed. The court could properly have determined
on this record that Mother’s turnaround in the final months of this case was
not enough to show that she could successfully parent C.M. We find no
abuse of discretion, and we affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
3 By trial in June 2016, Mother had not completed the parent-aide
service but had successfully completed all the services offered before trial.
The service was scheduled to continue until at least September 2016.
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