Ashlee W. v. Dcs, E.S. ( 2015 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
ASHLEE W., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, E.S., Appellees.
No. 1 CA-JV 15-0093
FILED 9-22-2015
Appeal from the Superior Court in Yavapai County
No. P1300JD201400017
The Honorable Anna C. Young, Judge
AFFIRMED
COUNSEL
Law Office of Florence M. Bruemmer, P.C., Anthem
By Florence M. Bruemmer
Counsel for Appellant
Arizona Attorney General’s Office, Mesa
By Eric K. Knobloch
Counsel for Appellees
MEMORANDUM DECISION
Judge John C. Gemmill delivered the decision of the Court, in which Presiding
Judge Diane M. Johnsen and Judge Kent E. Cattani joined.
ASHLEE W. v. DES, E.S.
Decision of the Court
G E M M I L L, Judge:
¶1 Ashlee W. (“Mother”) appeals from the juvenile court’s ruling that
terminated her parental rights to her child, E.S., born in 2014. Because Mother is a
member of the Choctaw Nation, E.S. is an Indian child and this case is subject to
the Indian Child Welfare Act (ICWA). For the following reasons, we affirm.
BACKGROUND
¶2 On April 2, 2014, E.S. was taken into custody by the Department of
Child Safety (“DCS”)1 after a hotline report that Mother had tested positive for
methamphetamine in January 2014 while pregnant with E.S. and had used
methamphetamine shortly after E.S. was born. When contacted by social workers,
Mother admitted using methamphetamine, and one social worker reported that
Mother could not see how using methamphetamine while pregnant or in the
child’s presence was neglectful. DCS filed a dependency petition and a
preliminary protective hearing was held in April 2014. Mother was present at the
hearing and received a Form 1 Notice to Parent in Dependency Action, which she
signed.
¶3 The juvenile court issued a preliminary protective order under
which Mother was ordered to engage in reunification services that included:
Arizona Family First substance abuse assessment, Family Drug Court, parenting
classes, supervised visitation, psychological evaluation, random urinalysis tests
twice per week, and a hair follicle test. The court also admonished Mother that
failure to attend future hearings, including mediations or pre-trial conferences,
without good cause could lead to waiver of legal rights and admission of
allegations in the petition, and that a hearing could proceed in her absence.
¶4 Mother attended an intake for Arizona Family First, but did not
complete it. She did not submit random urinalysis tests twice every week, and in
the twelve instances in which she did submit them, she tested positive for THC,
the principle psychoactive component in cannabis. See State ex rel. Montgomery v.
Harris, 237 Ariz. 98, 99 n.1, ¶ 1 (2014); Ariz. Rev. Stat. (“A.R.S.”) § 13-3401(4)(b).
She also tested positive for THC and methamphetamine on a hair follicle test.
Although parent aide progress reports showed that mother interacted with E.S. in
a loving and caring manner during scheduled visits, Mother failed to attend many
1 Initially this matter was handled by the Arizona Department of Economic
Security (“ADES”). The Department of Child Safety has been substituted for the
ADES and any reference to DCS shall encompass either ADES or DCS as
appropriate.
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ASHLEE W. v. DES, E.S.
Decision of the Court
of the visits, even when DCS offered to provide transportation. Finally, while
several inpatient treatment programs were set up for Mother, she did not enter
any of them.
¶5 DCS filed a motion to terminate Mother’s rights based on A.R.S. § 8-
533(B)(3) and § 8-533(B)(8)(b). At the initial hearing the court set dates for
mediation, a pretrial conference, and an adjudication hearing. Mother attended
the initial hearing telephonically and a Form 3 Notice to Parent in Termination
Action was provided to her counsel, and then presumably to her, containing the
following admonition:
You are required to attend all termination hearings. If you cannot
attend a court hearing, you must prove to the Court that you had
good cause for not attending. If you fail to attend the Initial
Termination Hearing, Termination Pre-trial Conference, Status
Conference, or Termination Adjudication Hearing without good
cause, the Court may determine that you have waived your legal
rights and admitted the grounds alleged in the motion/petition for
termination. The hearings may go forward in your absence, and the
Court may terminate your parental rights to your child based on the
record and evidence presented.
¶6 Mother attended the first mediation session telephonically but did
not attend — in person or by telephone — the following mediation session, pretrial
conference, or adjudication hearing. Mother made no motion or request for
permission to participate telephonically in either the pretrial conference or the
adjudication hearing. Counsel for Mother argued at both the pretrial conference
and the adjudication hearing that Mother had good cause for her absence because
she was incarcerated in Colorado. The juvenile court determined that Mother did
not have good cause for her absences.
¶7 During the adjudication hearing, Ms. Davison, an ICWA expert,
testified that DCS had made “active efforts to prevent the breakup of the Indian
family” by offering Mother rehabilitative and reunification programs. Davison
also stated she believed that continued custody of E.S. by Mother would be likely
to result in serious emotional or physical damage to E.S. because of Mother’s
substance abuse, homelessness, and recent criminal activity. Finally, Davison
stated that the Choctaw Nation supported the case plan of severance and adoption
for E.S.
¶8 Ms. Stell, the DCS case manager, testified that Mother admitted to
having a chronic history of addiction to methamphetamine. Stell also testified that
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ASHLEE W. v. DES, E.S.
Decision of the Court
Mother did not comply with several court orders to obtain substance abuse
counseling and testing, and when Mother did submit to testing, she tested positive
for THC and methamphetamine on multiple occasions. Finally, Stell testified that
DCS had made efforts to provide rehabilitative services to Mother throughout the
process.
¶9 The juvenile court took the matter under advisement and then issued
a ruling granting DCS’s motion for termination of parent-child relationship. The
court held that Mother was given proper legal notice of the hearings, was absent
at the pretrial conference and the contested adjudication hearing without good
cause shown, and was therefore deemed to have admitted the factual allegations.
The court determined that Mother was unable to discharge her parental
responsibilities due to a history of chronic drug abuse with reasonable grounds to
believe the condition would continue for a prolonged indeterminate period. The
court also held that, at the time of the filing of the Motion for Termination, the
child was under three years old and had been in an out-of-home placement for six
months or longer and Mother had substantially neglected or willfully refused to
remedy the causal circumstances. Finally, the court found that termination of
parental rights was in E.S.’s best interests. Mother timely appeals and we have
jurisdiction under A.R.S. §§ 8-235(A), 12-120.21(A)(1), and 12-2101(A)(1).
ANALYSIS
¶10 A parent’s right to custody of his or her child is fundamental but not
absolute. Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 248, ¶¶ 11–12 (2000).
A parent’s rights may be severed if the juvenile court finds by clear and convincing
evidence at least one statutory ground and by a preponderance of the evidence
that severance is in the child’s best interests. Kent K. v. Bobby M., 210 Ariz. 279,
288, ¶ 41 (2005); A.R.S. § 8-533(B). The juvenile court is in the best position to
weigh the evidence and make findings, and we will affirm an order terminating
parental rights unless no reasonable evidence supports the court’s findings. Jesus
M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 280, ¶ 4 (App. 2002). We view the
evidence in the light most favorable to upholding the juvenile court’s order. Denise
R. v. Ariz. Dep’t of Econ. Sec., 221 Ariz. 92, 95, ¶ 10 (App. 2009).
¶11 Mother presents four arguments. First, she contends the juvenile
court erred when it found no good cause for her absences and ruled that she had
admitted all allegations and forfeited her legal rights. Second, she argues that DCS
did not prove the elements of A.R.S. § 8-533(B)(3). Third, she asserts that DCS did
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ASHLEE W. v. DES, E.S.
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not prove the elements of A.R.S. § 8-533(B)(8)(b).2 Finally, Mother contends that
termination was not in E.S.’s best interests.
I. Mother Failed to Appear Without Good Cause.
¶12 A finding of good cause is largely discretionary, and we will affirm
the juvenile court’s finding absent an abuse of discretion. Adrian E. v. Ariz. Dep’t of
Econ. Sec., 215 Ariz. 96, 101, ¶ 15 (App. 2007) (finding that unless “manifestly
unreasonable, or exercised on untenable grounds, or for untenable reasons,” the
juvenile court’s decision will not be set aside) (internal quotation and citation
omitted).
¶13 Under A.R.S. § 8-863(C) and Rule 66(D)(2) of the Arizona Rules of
Procedure for the Juvenile Court, a parent who fails to appear at the termination
adjudication hearing without good cause may be held to have admitted the
allegations in the motion or petition for termination and to have waived her legal
rights. See also Manuel M. v. Arizona Dep’t of Econ. Sec., 218 Ariz. 205, 211, ¶¶ 19–
20 (App. 2008) (holding that a parent’s failure to appear at a termination
adjudication may constitute a waiver of rights if the parent had been informed he
or she could lose those rights by failing to appear). In order to show good cause
for not appearing, the parent must show both a meritorious defense and either
mistake, inadvertence, surprise, or excusable neglect. Christy A. v. Arizona Dep’t of
Econ. Sec., 217 Ariz. 299, 304, ¶ 16 (App. 2007).
¶14 Mother argues that her absences should be attributed to excusable
neglect because she was incarcerated in Colorado and was unable to appear in
person on her own volition. “Excusable neglect exists if the neglect or
inadvertence ‘is such as might be the act of a reasonably prudent person in the
same circumstances.’” Id. (quoting Ulibarri v. Gertenberger, 178 Ariz. 151, 163 (App.
1993)).
¶15 Mother did not attempt to participate by telephone in either the
pretrial conference or the adjudication hearing. Although physical attendance
may have been impossible due to her incarceration, Mother had attended the
initial hearing telephonically and presumably could have done so for the later
hearings as well. On this record, reasonable evidence supports the juvenile court’s
2 Because we find that DCS proved the required elements of A.R.S. § 8-533(B)(3),
we do not consider Mother’s argument regarding A.R.S. § 8-533(B)(8)(b). See
Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 251, ¶ 27 (2000) (holding that
when severance is affirmed on one statutory ground, the court need not consider
other grounds).
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conclusion that Mother did not establish good cause for her non-appearances, and
the court did not abuse its discretion in finding no excusable neglect.
¶16 Mother also argues that this determination violates her due process
rights. Due process requires that the state provide reasonably calculated notice to
all interested parties and afford them an opportunity to present their objections.
Monica C. v. Ariz. Dep’t of Econ. Sec., 211 Ariz. 89, 92, ¶ 16 (App. 2005). Here,
Mother was given proper notice of both the hearing dates and the possible
consequences of missing those hearings. Mother had been advised at the initial
hearing of the date of the adjudication hearing, and we presume Mother received
Form 3 including the admonition from her attorney. Mother, through counsel, did
not argue at the adjudication hearing that she did not have notice, and she does
not argue on appeal that she did not have notice. She was previously allowed to
appear telephonically and she was represented by counsel who was able to cross-
examine witnesses and make objections at all hearings. Accordingly, Mother had
notice and an opportunity to be heard. Due process was properly afforded
Mother.
¶17 Because Mother did not establish good cause for her non-appearance
at the termination adjudication hearing, we need not address whether Mother had
or presented a meritorious defense.
II. History of Chronic Abuse of Dangerous Drugs
¶18 A juvenile court may sever parental rights if it is shown by clear and
convincing evidence that the parent “is unable to discharge parental
responsibilities because of . . . a history of chronic abuse of dangerous drugs,
controlled substances or alcohol and there are reasonable grounds to believe that
the condition will continue for a prolonged indeterminate period.” A.R.S. § 8-
533(B)(3); see also Michael J., 196 Ariz. at 249, ¶ 12.
¶19 The evidence at trial revealed that Mother has a chronic history of
addiction to methamphetamines, with unsuccessful attempts to quit. Mother
admitted to having an addiction to methamphetamines and to using
methamphetamines while pregnant with E.S. as well as shortly after his birth. The
trial testimony of both Davison and Stell, as well as several exhibits admitted into
evidence, provided further support for the termination.
¶20 Although Mother scheduled an intake with Arizona Families First,
she did not complete their assessment. Furthermore, Mother failed to comply with
the court order for two random urinalysis tests per week; and when she did submit
to drug testing, the results indicated continued drug use including two positive
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ASHLEE W. v. DES, E.S.
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tests for methamphetamine. Finally, she did not participate in any of the inpatient-
treatment programs offered by her probation officer in Colorado.
¶21 Mother argues that her current incarceration provides a “clean and
sober living environment” and therefore her drug use is not likely to continue for
a prolonged, indeterminate period. But the record reveals that Mother was unable
to live a clean and sober life when not incarcerated. This court in Raymond F. v.
Arizona Dep’t of Econ. Sec., 224 Ariz. 373, 378, ¶ 25 (App. 2010), quoted with
approval from In re N.F., 579 N.W.2d 338, 341 (Iowa Ct. App. 1998), as follows:
Thus, in considering the impact of drug addiction, we must consider
the treatment history of the parent to gauge the likelihood the parent
will be in a position to parent the child in the foreseeable future.
Where the parent has been unable to rise above the addiction and
experience sustained sobriety in a noncustodial setting, and establish the
essential support system to maintain sobriety, there is little hope of success
in parenting.
(Emphasis added.)
¶22 When viewed in the light most favorable to upholding the juvenile
court’s termination decision, the evidence reasonably supports the juvenile court’s
determination that Mother had a history of chronic abuse of dangerous drugs with
reasonable grounds to believe the condition would continue for a prolonged,
indeterminate period. Therefore, the juvenile court did not abuse its discretion in
determining by clear and convincing evidence that this statutory basis for
severance was established.
III. Child’s Best Interests
¶23 To determine whether severance is in the child’s best interests, the
juvenile court must consider whether the child would benefit from a severance or
be harmed by the continuation of the relationship. Mary Lou C. v. Arizona Dep’t of
Econ. Sec., 207 Ariz. 43, 50, ¶ 19 (App. 2004) (citing Maricopa Cnty. Juv. Action No.
JS-500274, 167 Ariz. 1, 5 (1990)). The best interests requirement may be met if the
child is adoptable, even if no adoption plan exists at the time. Id. (citing Maricopa
Cnty. Juv. Action No. JS-501904, 180 Ariz. 348, 352 (App. 1994).
¶24 Sufficient evidence was presented at trial to show not only that
severance would benefit E.S., but that E.S. would be harmed and neglected if the
relationship continued. Stell testified that E.S. is in an adoptive placement with
his great-grandmother and sibling. She testified that severance would benefit E.S.
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because it would provide stability and permanency and allow an adoption plan to
move forward. Stell also testified that continuation of the relationship would harm
E.S. by putting him at risk due to Mother’s inability to care for him, substance
abuse issues, lack of housing, and inability to financially support him. Finally, the
current placement falls within the placement preferences of the ICWA. Therefore,
the juvenile court acted within its discretion when it determined that severance
would be in the best interests of the child.
CONCLUSION
¶25 Finding no abuse of discretion or legal error, we affirm the juvenile
court’s termination of Mother’s parental rights to E.S.
:ama
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