Stephanie M. v. Dcs ( 2018 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
STEPHANIE M., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, S.C., X.C., A.C., Appellees.
No. 1 CA-JV 18-0046
FILED 9-13-2018
Appeal from the Superior Court in La Paz County
No. S1500JD201500013
The Honorable Matthew G. Newman, Judge
AFFIRMED
COUNSEL
Law Offices of Heather C. Wellborn, P.C., Lake Havasu City
By Heather C. Wellborn
Counsel for Appellant
Arizona Attorney General’s Office, Tucson
By Autumn Spritzer
Counsel for Appellee Department of Child Safety
MEMORANDUM DECISION
Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Jennifer M. Perkins and Judge Jon W. Thompson joined.
STEPHANIE M. v. DCS, et al.
Decision of the Court
W I N T H R O P, Judge:
¶1 Stephanie M. (“Mother”) appeals the juvenile court’s order
terminating her parental rights to S.C., X.C., and A.C. (“the children”) on
the statutory grounds of chronic substance abuse and fifteen months’ out-
of-home placement.1 See Ariz. Rev. Stat. (“A.R.S.”) § 8-533(B)(3), (8)(c).
Mother challenges the sufficiency of the evidence supporting the grounds
for severance and the court’s finding that severance was in the children’s
best interests. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY2
¶2 Mother is the biological mother of the children, who were
born in 2012 (S.C.), 2014 (X.C.), and 2015 (A.C.). Mother has a history of
substance abuse—including methamphetamine, marijuana, cocaine, and
alcohol. Her methamphetamine use began at age twenty-eight,
approximately eight years before the severance trial in this case.
¶3 In August 2015, the Department of Child Safety (“DCS”) took
temporary physical custody of the children and placed them in a foster
home after Mother left them with a friend for two weeks without providing
food, baby formula, diapers, authorization for the children’s medical care,
or Mother’s contact information. Mother later admitted she had been using
methamphetamine during the months before the children’s removal.
¶4 On September 2, 2015, DCS filed a dependency petition,
alleging the children were dependent based on Mother’s substance abuse
and neglect. The next day, Mother was arrested, and she later pled guilty
to attempted transportation of dangerous drugs (methamphetamine) for
sale. Meanwhile, at Mother’s request, the dependency matter was
transferred from Maricopa County to La Paz County. Mother denied the
dependency allegations but ultimately submitted the issue of dependency
to the juvenile court, which found the children dependent as to Mother in
February 2016. The court approved a case plan of family reunification
concurrent with severance and adoption.
1 The juvenile court also terminated the parental rights of the
children’s fathers, who are not parties 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 (App. 2010).
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STEPHANIE M. v. DCS, et al.
Decision of the Court
¶5 In furtherance of the case plan, DCS offered Mother
numerous reunification services, including substance abuse testing and
treatment, mental health services, parenting classes, supervised visitation,
and transportation. Initially, Mother was noncompliant with services—she
did not maintain contact with her DCS case manager, engage in visitation,
or drug test. On February 2, 2016, police officers again arrested her, this
time for possession and transportation or sale of methamphetamine.
¶6 Between February and July 2016, Mother’s compliance with
services minimally improved. She completed a psychological evaluation in
May 2016, but she failed her parenting classes and failed to consistently
attend supervised visits with the children, drug test, or maintain contact
with her DCS case manager.
¶7 Between July and November 2016, however, Mother found
employment and housing, and her engagement with DCS services
improved. As a probation requirement for her attempted transportation of
dangerous drugs for sale conviction, Mother began to submit to drug
testing, and she initially tested negative, although she often missed weekly
testing, which she blamed on a lack of transportation. Her probation
officer, who was unaware Mother could receive transportation services
from DCS for drug testing, accommodated her with a relaxed monthly
testing schedule. Mother’s case manager also began thinking about
returning the children to an in-home dependency.
¶8 On September 1, 2016, however, a probation officer found two
glass pipes with burnt residue in Mother’s bedroom. Also, on December 9,
2016, after missing numerous scheduled drug tests, Mother tested positive
for methamphetamine. Despite two case managers’ efforts to assist her,
Mother failed to contact DCS entirely for approximately three months in
early 2017. Her case manager finally initiated contact with her when she
appeared at a March 31 hearing dressed in “jail attire” after yet another
arrest, on this occasion for possession of drug paraphernalia and driving on
a suspended license. The police report indicated Mother tried to use her
foot to conceal a glass pipe containing “a usable quantity of suspected
methamphetamine.” Also, a cloth bag in the vehicle contained multiple
broken glass pipes with suspected methamphetamine residue.
¶9 On April 11, 2017, the juvenile court changed the case plan to
severance and adoption. Ten days later, DCS moved to terminate Mother’s
parental rights to the children on chronic substance abuse and fifteen-
month out-of-home placement grounds. Mother denied the allegations,
and the court set trial on the motion for August 24, 2017.
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STEPHANIE M. v. DCS, et al.
Decision of the Court
¶10 Meanwhile, except for a one-week furlough, Mother
remained in custody until July 24, 2017. During that time and after her
release, Mother failed to complete any DCS-offered services or treatment
for substance abuse, and after her release from custody, she contacted her
substance abuse counselor only once—on July 24. Mother admitted to her
probation officer that she used controlled substances after her release, and
she tested positive for methamphetamine on August 17, just one week
before the termination hearing. On September 14, Mother finally completed
an intake for substance abuse treatment, but she missed the one treatment
session scheduled for her before the second day of the severance trial.
¶11 On August 24 and September 20, 2017, the juvenile court held
trial on the severance motion. Mother’s case managers and probation
officer testified about Mother’s failure to comply with the terms of her case
plan and probation. Psychologist Daniel Juliano, Ph.D., offered his opinion
based on his May 2016 evaluation of Mother. The children’s therapist, Mary
Reiss, offered opinions based on her sessions with the children, interviews
with Mother, assessments of Mother’s interactions with the children, and
information from the children’s foster placement. At conclusion of the
hearing, the court ordered the parties to submit written closing arguments,
which they did.
¶12 On January 3, 2018, the court terminated Mother’s parental
rights after finding DCS had proved both statutory grounds alleged for
severance, Mother’s participation in the numerous rehabilitative services
offered to her was “not in compliance with the case plan,” and termination
was in the children’s best interests.
¶13 We have jurisdiction over Mother’s timely appeal pursuant to
A.R.S. § 8-235(A) and Rule 103(A) of the Arizona Rules of Procedure for the
Juvenile Court.
ANALYSIS
I. Standard of Review
¶14 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 children’s
best interests. See A.R.S. §§ 8-533(B), -537(B); Kent K. v. Bobby M., 210 Ariz.
279, 281-82, 288, ¶¶ 7, 41 (2005).
¶15 As the trier of fact in a termination proceeding, the juvenile
court “is in the best position to weigh the evidence, observe the parties,
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STEPHANIE M. v. DCS, et al.
Decision of the Court
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)). 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 (App. 2002). Instead,
we review the juvenile court’s order to determine if reasonable evidence
supports its factual findings. Matthew L., 223 Ariz. at 549, ¶ 7.
II. Mother’s Challenges to the Court’s Statutory Findings
¶16 Mother argues the juvenile court erred in finding DCS
presented evidence sufficient to support severance under A.R.S. § 8-
533(B)(3), the statutory ground of chronic substance abuse.
¶17 The juvenile court may terminate parental rights when a
parent’s history of chronic substance abuse renders her unable to discharge
parental responsibilities “and there are reasonable grounds to believe that
the condition will continue for a prolonged indeterminate period.” A.R.S.
§ 8-533(B)(3). Severance on this ground requires a finding that DCS “made
reasonable efforts to reunify the family or that such efforts would have been
futile.” Jennifer G. v. Ariz. Dep’t of Econ. Sec., 211 Ariz. 450, 453, ¶ 12 (App.
2005) (citation omitted). Because Mother does not argue that DCS failed to
make reasonable efforts to provide appropriate reunification services, she
has abandoned and waived any argument in this regard. See Crystal E. v.
Dep’t of Child Safety, 241 Ariz. 576, 577, ¶ 5 (App. 2017).
¶18 Although long-lasting, chronic substance abuse “need not be
constant to be considered chronic.” Raymond F. v. Ariz. Dep’t of Econ. Sec.,
224 Ariz. 373, 377, ¶ 16 (App. 2010). A “temporary abstinence from drugs
and alcohol does not outweigh [a parent’s] significant history of abuse or
h[er] consistent inability to abstain during th[e] case.” Id. at 379, ¶ 29. A
parent’s failure to remedy substance abuse when faced with the imminent
loss of her children is evidence the parent has not overcome her dependence
on the substance. Id.
¶19 The juvenile court may evaluate evidence of a parent’s prior
substance abuse in determining whether the ground of chronic substance
abuse has been established. Jennifer S. v. Dep’t of Child Safety, 240 Ariz. 282,
287, ¶¶ 19-20 (App. 2016). In determining whether a parent’s substance
abuse will continue, a court may consider the parent’s history of sobriety
and relapse, the types of substances used, the length and frequency of use,
and effects on the parent’s behavior associated with the substance abuse.
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STEPHANIE M. v. DCS, et al.
Decision of the Court
Id. at ¶ 20. The circumstances surrounding periods of sobriety are also
important; for example, a temporary abstinence compelled by incarceration
or other confinement does not demonstrate that a parent is able to maintain
sobriety in a non-custodial setting consistent with the conditions under
which parenting occurs. See Raymond F., 224 Ariz. at 379, ¶ 29. Ultimately,
“a child’s interest in permanency must prevail over a parent’s uncertain
battle with drugs.” Jennifer S., 240 Ariz. at 287, ¶ 17 (citations omitted).
¶20 In this case, reasonable evidence supports the juvenile court’s
findings that Mother’s substance abuse rendered her unable to effectively
parent and the condition was likely to continue indefinitely. The record
shows that, in addition to other illegal substances, Mother used
methamphetamine for at least eight years. Although she only tested
positive for methamphetamine use twice during her case, she failed to
comply with testing (and other services) for much of the time. Further, a
probation officer found two glass pipes with drug residue in her bedroom
during the time she claims she was not using methamphetamine. Also, as
the juvenile court noted, “Mother appeared knowledgeable about how
probationers try to ‘time’ their drug use to test negative when needed. It
suggests that her drug use may in fact be even more than conclusively
shown.”
¶21 The record supports the conclusion that Mother only
complied with her case plan and maintained at least an appearance of
sobriety when her circumstances were relatively challenge-free. The
juvenile court considered that “[M]other throughout this case has at times
been homeless, used methamphetamine, was arrested and prosecuted for
criminal conduct, failed to do drug testing and/or treatment, and failed to
maintain visitations with her children.” As Dr. Juliano opined, Mother’s
history of “self-defeating behavior” often “place[s] her children at risk,”
and she lacks insight into her behavior and is likely to keep repeating
patterns of problematic behavior unless she engages in treatment to gain
insight and “develop alternative pathways for problem and conflict
resolution.” As the court recognized, however, Mother attempted to make
excuses for her relapses and failed to take advantage of numerous offered
services, “even while in jail.” Further, the court found “deeply disturbing”
Mother’s admission to using methamphetamine shortly before her
severance trial, and concluded that the circumstances that placed the
children at risk were likely to continue for a prolonged, indeterminate
period. The juvenile court’s findings and conclusions are fully supported
by reasonable evidence in the record.
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STEPHANIE M. v. DCS, et al.
Decision of the Court
¶22 Mother also argues the juvenile court erred in finding DCS
presented evidence sufficient to support severance under A.R.S. § 8-
533(B)(8)(c), the fifteen-month time-in-care ground. “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 (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). Accordingly, we do not address this
argument.
III. Best Interests
¶23 Mother also argues the juvenile court erred in finding that
severance was in the children’s best interests.
¶24 To prove severance is in a child’s best interest, DCS must
show that severance either provides an affirmative benefit or eliminates a
detriment or potential harm to the child if the relationship between the
parent and the child continues. See Maricopa Cty. Juv. Action No. JS–500274,
167 Ariz. 1, 5 (1990); Oscar O., 209 Ariz. at 334, ¶ 6. The best interest
requirement may be met if a current adoptive plan exists for the child or
even if DCS can show that the child is adoptable. See JS–500274, 167 Ariz.
at 6; Maricopa Cty. Juv. Action No. JS–501904, 180 Ariz. 348, 352 (App. 1994).
The juvenile court may also consider evidence that an existing placement is
meeting the needs of the child in determining that severance is in a child’s
best interest. Audra T. v. Ariz. Dep’t of Econ. Sec., 194 Ariz. 376, 377, ¶ 5 (App.
1998). Additionally, the court may consider that, in most cases, “the
presence of a statutory ground [for severance] will have a negative effect on
the children.” Bennigno R. v. Ariz. Dep’t of Econ. Sec., 233 Ariz. 345, 350, ¶ 23
(App. 2013) (quoting Maricopa Cty. Juv. Action No. JS–6831, 155 Ariz. 556,
559 (App. 1988)).
¶25 In this case, the juvenile court found both that severing
Mother’s parental rights would affirmatively benefit the children and that
the children would be harmed by continuation of their relationship with
Mother. The record supports the court’s findings. The children’s therapist,
Mary Reiss, stated the children were well-adjusted to and had bonded with
their current placement, which was willing to adopt them. When asked if
the children were bonded with Mother, however, Reiss stated the children
did not “seek her out at all for any interactions,” and showed no indication
of being “distressed over” being separated from her. Further, Reiss
cautioned that visitation with Mother was causing the children to regress,
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STEPHANIE M. v. DCS, et al.
Decision of the Court
leading to physical, behavioral, and emotional problems. The record
demonstrates both affirmative benefits to the children from severance and
the elimination of detriments or potential harm that would exist if the
parent-child relationships were not severed. See JS–500274, 167 Ariz. at 5.
CONCLUSION
¶26 The juvenile court’s order terminating Mother’s parental
rights to the children is affirmed.
AMY M. WOOD • Clerk of the Court
FILED: AA
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