Jennifer S. v. Department of Child Safety , 240 Ariz. 282 ( 2016 )

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
JENNIFER S., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, Z.S., Appellees.
No. 1 CA-JV 15-0333
FILED 8-9-2016
Appeal from the Superior Court in Maricopa County
No. JD527006
The Honorable Karen L. O’Connor, Judge
AFFIRMED
COUNSEL
Law Office of Holly A. Bartee, Chandler
By Holly A. Bartee
Counsel for Appellant
Arizona Attorney General’s Office, Mesa
By Nicholas Chapman-Hushek
Counsel for Appellee Department of Child Safety
OPINION
Judge Lawrence F. Winthrop delivered the opinion of the Court, in which
Presiding Judge Peter B. Swann and Judge Donn Kessler joined.
JENNIFER S. v. DCS, Z.S.
Opinion of the Court
W I N T H R O P, Judge:
¶1 Jennifer S. (“Mother”) appeals the juvenile court’s order
terminating her parental rights to Z.S. (“the child”).1 Mother challenges the
statutory bases found by the juvenile court in terminating her parental
rights, including the court’s determination that her history of chronic
substance abuse rendered her unable to discharge parental responsibilities
and that reasonable grounds existed to believe the condition would
continue for a prolonged indeterminate period. Relying in part on this
court’s previous opinion in Raymond F. v. Arizona Department of Economic
Security, 224 Ariz. 373, 231 P.3d 377 (App. 2010), we conclude the juvenile
court properly considered whether evidence of Mother’s sobriety in the
months immediately preceding the severance hearing was outweighed by
Mother’s significant substance abuse history, relapse history, and failure to
engage in services for more than a year after the dependency petition was
filed. Because reasonable evidence supports the juvenile court’s
determination, we affirm.
FACTS AND PROCEDURAL HISTORY2
¶2 Mother, the biological mother of the child, has a long history
of substance abuse—including methamphetamine, cocaine, lysergic acid
diethylamide (LSD), alcohol, and other substances—which began
approximately twenty-five years ago, when she was fourteen years old.
While on probation3 between 2010 and 2012, she twice finished drug
treatment and, except for “a couple of slip ups,” achieved a total of
approximately one year of sobriety through the help of TERROS, but then
relapsed using methamphetamine. She used methamphetamine
throughout her pregnancy in 2012 and 2013, even though she knew of
1 The juvenile court also terminated the parental rights of the child’s
father (“Father”), listed as “John Doe.” Father is not a party to this appeal.
2 We view 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, 225 P.3d 604, 606 (App. 2010).
3 Mother was placed on concurrent terms of two years’ probation after
pleading guilty to one count of facilitation to commit aggravated taking the
identity of another person or entity, a class six felony, and one count of
possession of marijuana, a class one misdemeanor. See Ariz. Rev. Stat.
(“A.R.S.”) §§ 13-2009 (Supp. 2015), -3405(A)(1) (Supp. 2015).
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JENNIFER S. v. DCS, Z.S.
Opinion of the Court
potential “developmental issues” resulting from the drug abuse, and
declined prenatal care.
¶3 When the child was born in June 2013, both Mother and the
child tested positive for methamphetamine. The child was premature and
significantly underweight, but was eventually sent home with a safety
monitor to live with Mother, who was unemployed and lived in a one-
bedroom apartment with a friend (“Michael”), who also had a history of
substance abuse.4
¶4 While the child was with Mother, the Department of Child
Safety (“DCS”)5 made clear Mother was to remain sober and offered her
services—including drug testing through TASC, substance abuse treatment
through TERROS, and parenting services through Healthy Families
Arizona and Family Preservation. Mother, however, did not fully comply
with the services. She failed to engage in substance-abuse treatment
through TERROS; moreover, she twice failed to show up at TASC for
urinalysis testing and failed to test on five other occasions before submitting
to a hair follicle test and oral swab, both of which came back positive for
methamphetamine on August 23, 2013. She failed to show up for testing at
least two more times, and then, on September 3, tested positive for
methamphetamine. Nevertheless, she denied using illegal drugs. DCS
then removed the child from Mother’s care and placed the child in the
temporary care of a licensed foster placement.
¶5 In September 2013, DCS filed a dependency petition alleging
the child was dependent based on Mother’s substance abuse and neglect.
Mother denied the allegations in the petition but submitted the dependency
4 In the years before living with Michael, Mother had lived with other
friends, but had not been included on any lease. At the time Mother
testified at the severance hearing, she continued to live with Michael.
Mother testified that, although she “didn’t work for a few years,” she began
working part-time a few months before the severance hearing as a caretaker
for a friend, who was “very flexible” as to the hours worked and paid her
$10.00 per hour in cash.
5 During the course of this case, DCS replaced Child Protective
Services (“CPS”), a division of the Arizona Department of Economic
Security (“ADES”). References to DCS in this opinion encompass actions
by both ADES and the former CPS.
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JENNIFER S. v. DCS, Z.S.
Opinion of the Court
issue to the juvenile court, which found the child dependent as to Mother
in October 2013.
¶6 The court approved a case plan of family reunification
concurrent with an alternative plan of severance and adoption. The court
ordered DCS to provide, and Mother to participate in, services through
TASC and TERROS, as well as parent aide services and a psychological
consultation contingent on her sobriety.
¶7 Over the next year, Mother generally engaged in the services
provided by DCS, but her continued problems with methamphetamine
affected her success. For example, between February and September 2014,
Mother engaged in parent aide services, and Mother’s parent aide sought
to assist her in securing stable housing and employment. Mother’s parent
aide service referral closed unsuccessfully, however, because Mother had
not achieved transitional or unsupervised visitation with the child because
of her ongoing substance abuse. Also, Mother’s scheduled August 2014
psychological evaluation was postponed due to a lack of sobriety.
¶8 Because Mother’s prior service referral with TERROS had
closed due to her lack of compliance, she engaged in substance-abuse
treatment through Valle Del Sol for approximately four months before
transferring back to TERROS in January 2014. At the intake assessment
with TERROS, the assessor concluded Mother was at “medium” risk of
relapse, in part because Mother believed she could continue to associate
with other illegal-drug users without negatively affecting her ability to
maintain sobriety.6 Between late January and early August 2014—despite
Mother’s expressed confidence in her ability to maintain sobriety and
denials she was using drugs—she often tested positive for
methamphetamine and refused to enter inpatient treatment. Thus, her
TERROS referral again closed.
¶9 DCS also offered Mother random drug tests through TASC.
From the day of the child’s removal through December 2013, however,
Mother refused to take fifteen tests and tested positive for
methamphetamine five times. Over the next seven months—through July
2014—she again tested positive for methamphetamine five times. Mother
also started using a device that utilized other, apparently nonhuman, urine
to achieve negative results, and she was caught using that device in August
2014. From late August through September 2014, Mother tested positive
6 As previously noted, Mother continued to live with Michael, who
had previously been charged with possession of dangerous narcotics.
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JENNIFER S. v. DCS, Z.S.
Opinion of the Court
for methamphetamine nine times and refused to test four times. At a
September 2014 report and review hearing, the juvenile court granted
DCS’s motion to change the case plan to severance and adoption only.
¶10 On October 2, 2014, DCS moved to terminate Mother’s
parental rights to the child based on a history of chronic substance abuse,
see A.R.S. § 8-533(B)(3) (Supp. 2015), as well as the nine-month and six-
month out-of-home placement grounds under § 8-533(B)(8)(a) and (b),
respectively. By this time, the child had been in DCS’s care for
approximately thirteen months. DCS later amended its motion, adding the
fifteen-month out-of-home placement ground under A.R.S. § 8-533(B)(8)(c).
¶11 Approximately one month after the severance motion was
filed, Mother again used methamphetamine. She then self-referred to an
inpatient treatment program offered through Casa de Amigas. She finished
the thirty-day residential treatment program and subsequently completed
the twelve-week aftercare plan. From December 2014 until the severance
hearing six months later, Mother tested negative for methamphetamine.7
She also continued to attend support groups and Narcotics Anonymous
meetings, began participating in counseling in late April 2015, completed a
parenting educational program offered through the Family Resource
Center, completed a psychological evaluation in December 2014, and
continued regular visitation—including partially unsupervised visitation—
with the child.
¶12 On June 9 and 10 and August 12, 2015, the juvenile court held
a contested severance hearing, and in a later September 2015 order, the
court terminated Mother’s parental rights on each of the grounds alleged,
finding in part as follows:
On December 17, 2014, Mother participated in a
psychological evaluation with Dr. [Celeste] Korsten[, Psy.D.].
Dr. Korsten concluded that Mother’s drug history, including
using methamphetamine on a daily basis for ten years,
prevent[s] her from effectively parenting until she
demonstrates sobriety for at least a year and sustains stable
employment and housing. . . . Dr. Korsten testified that given
Mother’s history of relapsing after maintaining sobriety for
7 In April and May 2015, however, Mother tested positive on three
occasions for opiates; specifically, hydrocodone and hydromorphone.
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JENNIFER S. v. DCS, Z.S.
Opinion of the Court
more than a year, a demonstration of sobriety for longer than
a year is needed to minimize drug relapse.
DCS made reasonable and diligent efforts to provide
Mother with rehabilitative services. The dependency case
began in September 2013. Before then, DCS provided Family
Preservation Services[,] which proved unsuccessful. After the
dependency case was filed, DCS offered services including
drug testing and treatment, parent-aide services,
psychological evaluation and individual counseling. Mother
did not begin to fully participate in services until the case plan
changed to severance and adoption in October 2014.
Mother has demonstrated sobriety since October 2014
and continues to participate in counseling and visitation.
However, given her significant drug abuse history, her
relapse history, and her failure to engage in services for over
a year after the dependency petition was filed, the Court
concludes that her chronic substance abuse is not resolved
and there are reasonable grounds to believe that it will
continue for a prolonged indeterminate period. Mother is not
able to parent until her drug issues are resolved. This means
she needs to demonstrate sobriety for longer than one year.
The court also found that severance was in the child’s best interest, in part
because it would provide him “with emotional stability and permanency.”
¶13 Mother filed a timely notice of appeal. We have jurisdiction
pursuant to A.R.S. § 8-235(A) (2014) and Rule 103(A) of the Arizona Rules
of Procedure for the Juvenile Court.
ANALYSIS
¶14 Mother argues the juvenile court erred in finding DCS proved
by clear and convincing evidence the chronic substance abuse ground
under A.R.S. § 8-533(B)(3) and the three out-of-home placement grounds
under A.R.S. § 8-533(B)(8)(a), (b), and (c). In support of her argument,
Mother maintains she completed the psychological evaluation and parent
aide services provided her by DCS, exercised visitation throughout the
dependency, self-referred and completed additional services, had been
clean and sober from methamphetamine for months before the severance
hearing, had begun participating in counseling, had recently enrolled in
online college courses, and by the end of the severance hearing, was living
by herself and had achieved some level of employment.
6
JENNIFER S. v. DCS, Z.S.
Opinion of the Court
¶15 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, 110 P.3d 1013, 1018 (2005) (citing Santosky v. Kramer, 455 U.S.
745, 753 (1982); Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 248, ¶ 11,
995 P.2d 682, 684 (2000)). Even fundamental rights are not absolute,
however. Id. (citing Michael J., 196 Ariz. at 248, ¶ 12, 995 P.2d at 684). A
court may sever those 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.8 See A.R.S. §§ 8-533(B),
-537(B) (2014); Kent K., 210 Ariz. at 281–82, 288, ¶¶ 7, 41, 110 P.3d at 1015–
16, 1022.
¶16 The juvenile court retains great discretion in weighing and
balancing the interests of the child, parent, and state. Cochise Cty. Juv. Action
No. 5666-J, 133 Ariz. 157, 160, 650 P.2d 459, 462 (1982). As the trier of fact in
a termination proceeding, 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, 219 P.3d 296, 303 (App. 2009) (quoting Ariz. Dep’t of Econ. Sec. v. Oscar
O., 209 Ariz. 332, 334, ¶ 4, 100 P.3d 943, 945 (App. 2004)). Thus, the
resolution of conflicts in the evidence is uniquely the province of the
juvenile court, and we will not reweigh the evidence in our review. Jesus
M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 282, ¶ 12, 53 P.3d 203, 207 (App.
2002); see also Pima Cty. Adoption of B-6355, 118 Ariz. 111, 115, 575 P.2d 310,
314 (1978) (“In considering the evidence it is well settled that an appellate
court will not substitute its own opinion for that of the trial court.” (citation
omitted)). We will not disturb the juvenile court’s order unless no
reasonable evidence supports its factual findings. Matthew L., 223 Ariz. at
549, ¶ 7, 225 P.3d at 606.
¶17 Subsection (3) of A.R.S. § 8-533(B) provides for termination of
parental rights when a parent’s history of chronic substance abuse renders
the parent “unable to discharge parental responsibilities” and “reasonable
grounds” exist “to believe that the condition will continue for a prolonged
indeterminate period.” Chronic substance abuse is long-lasting but not
necessarily constant substance abuse. Raymond F., 224 Ariz. at 377, ¶ 16, 231
P.3d at 381. Generally, a parent’s “temporary abstinence from drugs and
alcohol does not outweigh [her] significant history of abuse or [her]
consistent inability to abstain during [the] case.” Id. at 379, ¶ 29, 231 P.3d
at 383. Moreover, “children should not be forced to wait for their parent to
8 Mother does not contest the juvenile court’s finding that severance
was in the best interest of the child.
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JENNIFER S. v. DCS, Z.S.
Opinion of the Court
grow up.” Id. at 378, ¶ 25, 231 P.3d at 382 (quoting In re N.F., 579 N.W.2d
338, 341 (Iowa Ct. App. 1998)). Accordingly, a child’s interest in
permanency must prevail over a parent’s uncertain battle with drugs. Id.
at 379, ¶ 29, 231 P.3d at 383 (citing In re N.F., 579 N.W.2d at 341).
¶18 Although Mother made an attempt to stop her drug use,
reasonable evidence supports the juvenile court’s order terminating
Mother’s parental rights on the ground of chronic substance abuse. Mother
concedes she has a decades-long history of substance abuse dating from the
age of fourteen through the birth of her child and during the dependency.
Reasonable evidence shows that her chronic substance abuse rendered her
“unable to discharge parental responsibilities.”
¶19 Mother argues that reasonable grounds do not exist to believe
the condition will continue for a prolonged indeterminate period, and her
“history [of chronic substance abuse] is irrelevant to th[at] analysis.” We
disagree.
¶20 As the trier of fact, the juvenile court could consider the
evidence of Mother’s prior substance abuse in evaluating whether
reasonable grounds existed to conclude her inability to discharge parental
responsibilities would continue for a prolonged indeterminate period. This
evidence included the length and frequency of Mother’s substance abuse,
the types of substances abused, behaviors associated with the substance
abuse, prior efforts to maintain sobriety, and prior relapses.
¶21 In this case, Mother and the child tested positive for
methamphetamine upon the child’s birth. Mother showed no sobriety
before DCS removed the child, and although Mother engaged in some
services, she did not engage in substance-abuse treatment through
TERROS, refused to take most of her required drug tests, and tested
positive for methamphetamine before the child’s removal, despite denying
she was using illegal drugs. For more than a year after the child’s removal,
Mother continued to refuse tests, tested positive for methamphetamine, and
refused inpatient treatment—causing her TERROS referral to again close—
despite being warned she faced termination of her parental rights if she
substantially neglected or willfully refused to remedy the circumstances
that caused the child’s removal. Moreover, she raised questions about the
validity of her negative tests by using a device that utilized urine other than
her own, and consistently tested positive after being caught. Even after the
juvenile court changed the case plan to severance and adoption, Mother
used methamphetamine.
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JENNIFER S. v. DCS, Z.S.
Opinion of the Court
¶22 After Mother had begun making efforts to maintain sobriety
because the case plan had changed to severance and adoption, she was
finally able to submit to a psychological evaluation performed by Dr.
Korsten on December 17, 2014. Dr. Korsten diagnosed Mother with “Other
Specified Personality Disorder with Antisocial Personality Features”
because of Mother’s “reckless disregard for the safety of herself and her
child,” as well as with “Stimulant Use Disorder, Severe, in Early
Remission,” and “Child Neglect, Subsequent Encounter.” Dr. Korsten
opined that Mother’s “pervasive methamphetamine use” negatively
impacted her ability to parent, explaining that “[t]rends in the research
suggest that parents who use methamphetamine place their children at
risk.” She concluded Mother must show “at least” a year’s sobriety and
gain stable housing and employment before she could adequately parent
the child, and noted Mother had a high risk of relapse “given that [she] used
methamphetamine on a daily basis for 10 years.”
¶23 At trial, Dr. Korsten opined that it was “concerning” if Mother
had been sober for a year in the past and then relapsed because “the highest
rate of relapse occurs within the first year, and, again, there’s a lot of
stressors that can present themselves.” Consequently, Dr. Korsten
recommended Mother show sobriety for “at least” a year and a half to two
years before the child could be returned to her care. Dr. Korsten opined
that Mother is “at a high risk to relapse,” and could not currently provide
proper and effective parental care and control for the child because she had
not maintained long-term sobriety. Further, although Mother’s recent
efforts at maintaining sobriety and utilizing services increased her chance
for a long-term recovery, her prognosis remained “[un]favorable.”
¶24 Mother’s DCS case manager also cautioned against family
reunification, noting concerns about Mother’s extensive drug history,
deception and lying, social environment, and potential for relapse. The case
manager opined that Mother could not minimally adequately parent the
child due to her history with substance abuse, which continued to cause “a
great concern.”
¶25 Although Mother made efforts to achieve and maintain
sobriety in the months immediately preceding the severance hearing, her
abstinence from methamphetamine during that period does not outweigh
her significant history of drug abuse or her demonstrated inability to
remain sober during much of the case. Reasonable evidence supports the
juvenile court’s conclusion that Mother’s history of chronic substance abuse
rendered her unable to discharge parental responsibilities and that
reasonable grounds exist to believe the condition will continue for a
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JENNIFER S. v. DCS, Z.S.
Opinion of the Court
prolonged indeterminate period. Accordingly, the juvenile court did not
err in concluding the child’s interest in permanency should prevail over
Mother’s uncertain battle with drugs.9
CONCLUSION
¶26 The juvenile court’s order terminating Mother’s parental
rights to the child is affirmed.
:AA
9 “If clear and convincing evidence supports any one of the statutory
grounds on which the juvenile court ordered severance, we need not
address claims pertaining to the other grounds.” Jesus M., 203 Ariz. at 280,
¶ 3, 53 P.3d at 205 (citations omitted); see also A.R.S. § 8-533(B) (requiring
that evidence sufficient to justify the termination of the parent-child
relationship include “any one” of the enumerated termination grounds).
Because the record supports the order terminating Mother’s parental rights
on the ground of chronic substance abuse, we do not address the parties’
arguments regarding the three time-in-care grounds.
10