David H. v. Dcs, T.H. ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
DAVID H., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, T.H., Appellees.
No. 1 CA-JV 15-0124
FILED 10-27-2015
Appeal from the Superior Court in Maricopa County
No. JD22220
The Honorable Kristin C. Hoffman, Judge
AFFIRMED
COUNSEL
Denise Lynn Carroll Esq., Scottsdale
By Denise Lynn Carroll
Counsel for Appellant
Arizona Attorney General’s Office, Phoenix
By JoAnn Falgout
Counsel for Appellee
DAVID H. v. DCS, T.H.
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Kenton D. Jones delivered the decision of the Court, in
which Judge Samuel A. Thumma and Judge Peter B. Swann joined.
J O N E S, Judge:
¶1 David H. (Father) appeals the juvenile court’s order
terminating his parental rights to T.H. (Child). Father argues Department
of Child Safety (DCS) did not prove the statutory grounds for severance or
that severance was in Child’s best interests. For the following reasons, we
affirm.
FACTS1 AND PROCEDURAL HISTORY
¶2 In July 2012, police officers knocked on a motel door to carry
out an arrest warrant for Father, and Tracie B. (Mother) answered the door
with methamphetamine and a knife in her hand. Both parents were
arrested, and Child was found inside the room suffering from a urinary
tract infection, impetigo, diaper rash, constipation, and dehydration. Child
was ultimately placed with foster parents recommended by her relatives.
¶3 In January 2013, the juvenile court found Child dependent as
to Father and approved a case plan of family reunification. In an effort to
reunify the family, DCS required Father to “refrain from using illicit
substances” and “maintain a safe and sober lifestyle,” maintain stable living
conditions, complete random urinalysis tests, complete substance abuse
treatment, address issues of mental illness, and adhere to prescribed
medical treatment and recommendations. Services provided by DCS
included parent aid services, visitation, psychological evaluation,
psychiatric evaluation, counseling, drug court, and transportation.
¶4 In June 2013, a psychologist diagnosed Father with various
mood disorders, “adult antisocial behavior,” and marijuana, cocaine, and
opioid dependencies in remission. Given Father’s mental instability, the
1 We view the facts in the light most favorable to upholding the
termination order. Christy C. v. Ariz. Dep’t of Econ. Sec., 214 Ariz. 445, 449,
¶ 12 (App. 2007) (citing Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278,
282, ¶ 13 (App. 2002)).
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Decision of the Court
psychologist believed returning Child to Father at that juncture would have
placed her at risk of abuse or neglect but recommended Father continue
with supervised visitation, substance abuse treatment, parenting classes,
and counseling. Father participated in parent aid services and counseling,
and, was scheduled to successfully finish drug court the day after the
severance hearing concluded in April 2015. Father had also maintained
stable housing for at least nine months and was receiving disability income.
However, at the time of the severance hearing, Father had missed nine of
sixty drug tests and tested positive for heroin once in August 2014.
¶5 In October 2014, a psychiatrist diagnosed Father with
methamphetamine, alcohol, and marijuana dependencies in remission. The
psychiatrist also diagnosed Father with an active opioid dependence. The
psychiatrist’s review of Father’s pharmacy records revealed that, during the
two months prior to the evaluation, Father had filled prescriptions from six
different prescribers, a behavior the psychiatrist reported as “highly
suspicious for opioid misuse.” Although Father suffers from pain related
to a back injury, the psychiatrist reported he exhibited “a pattern of opioid
use that is consistent with doctor shopping.”2 The psychiatrist also noted
Father had eight opioid-negative drug tests indicating “he is either taking
more pills than prescribed during part of the month, . . . or not taking all of
his prescribed medications (and possibly diverting the balance).”
¶6 In his report, the psychiatrist concluded Father’s opioid
dependence “would interfere with his ability to be a safe and stable parent”
and described Father’s prognosis for being able to demonstrate “minimally
adequate parenting skills in the foreseeable future” was “poor, due to the
length of time in care, and his inability to control his substance use despite
the services he has received.” The psychiatrist further stated he could
identify “no specific psychiatric services that are likely to promote a
substantial change for [Father].” He confirmed this conclusion at the
severance hearing, testifying that “in all probability Father . . . will be
unable to become a minimally adequate parent.”
¶7 The DCS case manager testified Child had been in the foster
parents’ custody since August 2012. The foster parents were providing for
Child’s educational, emotional, and social needs, and Child has been
2 The psychiatrist described “doctor shopping” as conduct directed at
finding multiple doctors to prescribe narcotics for the same injury or
condition where only the prescription of a single doctor would be deemed
medically appropriate.
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Decision of the Court
receiving needed therapy to develop her social skills and speech. The foster
parents have also indicated their willingness to adopt Child.
¶8 On April 7, 2015, the juvenile court determined DCS had
proven statutory grounds for severance under Arizona Revised Statutes
(A.R.S.) section 8-533(B)(3)3 (chronic substance abuse) and (8)(c) (length of
time in care), and entered an order terminating Father’s parental rights to
Child.4 Father timely appealed, and we have jurisdiction pursuant to A.R.S.
§§ 8-235(A), 12-120.21(A)(1), and -2101(A)(1).
DISCUSSION
¶9 To terminate parental rights, a juvenile court must find (1) a
statutory ground for severance under A.R.S. § 8-533(B) by clear and
convincing evidence, and (2) severance is in the child’s best interests by a
preponderance of the evidence. See Kent K. v. Bobby M., 210 Ariz. 279, 284,
¶ 22 (2005). Father argues DCS did not prove either element. We review a
termination order for an abuse of discretion and will affirm “unless there is
no reasonable evidence to support” the court’s factual findings. Audra T. v.
Ariz. Dep’t of Econ. Sec., 194 Ariz. 376, 377, ¶ 2 (App. 1998) (citations
omitted).
I. Reasonable Evidence Supports the Juvenile Court’s Order
Terminating Father’s Parental Rights Under A.R.S. § 8-533(B)(3).
¶10 Parental rights may be terminated if “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).5 Father argues the
3 Absent material changes from the relevant date, we cite a statute’s
current version.
4 The juvenile court also terminated Mother’s parental rights;
however, she does not challenge the order and is not a party to this appeal.
5 Severance on this ground also 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) (citing Mary Ellen C. v. Ariz. Dep’t of Econ. Sec., 193 Ariz. 185, 191-92,
¶¶ 31-34 (App. 1999)). Father does not contend DCS failed to make
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DAVID H. v. DCS, T.H.
Decision of the Court
statutory ground for severance was not met because he “actively
participated” in most of the services required by DCS and “made significant
strides in addressing his substance abuse issues.”
¶11 Although completion of drug court is significant, it does not
negate Father’s long history of chronic abuse of drugs, controlled
substances, and alcohol, nor his continued abuse of opioids. And, despite
his participation in “most” of the recommended services, Father continued
to exhibit concerning behaviors more than two years after Child was
removed from his care; he participated in “doctor shopping,” tested
positive for heroin, and exhibited behaviors indicative of misuse or abuse
of prescribed opioids. Father’s actions and the psychiatrist’s testimony that
“in all probability Father . . . will be unable to become a minimally adequate
parent,” serve as reasonable evidence to support the juvenile court’s finding
that Father’s opioid dependence would likely continue for a prolonged
indeterminate period and prevent him from parenting Child appropriately.
¶12 Father also asserts the psychiatrist wrongly interpreted his
pharmacy records in reporting he was doctor shopping for opioids and the
juvenile court ignored his testimony regarding his opioid prescriptions.
However, “the resolution of . . . conflicts in the evidence is uniquely the
province of the juvenile court as the trier of fact; we do not re-weigh the
evidence on review.” Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. at 282, ¶
12 (citations omitted). Moreover, Father does not dispute that his urinalysis
test results indicate continued opioid abuse.
¶13 Because reasonable evidence supports the juvenile court’s
findings that severance was proper by clear and convincing evidence under
A.R.S. § 8-533(B)(3), we find no error.6
reasonable efforts to reunify the family, and the record supports the
juvenile court’s finding that DCS made such efforts by providing urinalysis
tests, substance abuse treatment, psychological evaluation, psychiatric
evaluation, counseling, visitation, transportation, and drug court.
6 Because we find sufficient evidence supports termination of parental
rights under A.R.S. § 8-533(B)(3), “we need not consider the [other]
ground.” See Mary Lou C. v. Ariz. Dep’t of Econ. Sec., 207 Ariz. 43, 49, ¶ 14
(App. 2004) (citing Maricopa Cnty. Juv. Action No. JS-501568, 177 Ariz. 571,
575 (App. 1994)).
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Decision of the Court
II. Reasonable Evidence Supports the Juvenile Court’s Finding that
Severance was in Child’s Best Interests.
¶14 A juvenile court’s finding of grounds for severance must be
accompanied by a finding that the severance is in the best interests of the
child. See A.R.S. § 8-533(B) (“[I]n considering any of the following grounds
[for severance], the court shall also consider the best interests of the child.”);
Maricopa Cnty. Juv. Action No. JS-500274, 167 Ariz. 1, 5 (1990). Father argues
DCS “failed to show how reunification with the child would incur a
detriment to the child.” However, DCS need not prove reunification would
incur a detriment if it can prove the child will benefit from the severance.
See JS-500274, 167 Ariz. at 5 (“[A] determination of the child’s best interest
must include a finding as to how the child would benefit from a severance
or be harmed by the continuation of the relationship.”) (citations omitted).
¶15 Factors a court may consider in determining whether
severance is in the child’s best interests include the availability of an
adoptive placement and whether an existing placement is meeting the
needs of the child. See Jesus M., 203 Ariz. at 282, ¶ 14 (quoting Audra T., 194
Ariz. at 377, ¶ 5). Here, not only are Child’s foster parents willing to adopt,
but they are also providing her with needed education, therapy, and
support to overcome the developmental challenges she incurred while in
Father’s care. This evidence supports a finding that severance would
benefit Child, and the juvenile court did not err in finding severance is in
Child’s best interests.
CONCLUSION
¶16 For the foregoing reasons, we affirm the juvenile court’s order
terminating Father’s parental rights to Child.
:ama
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