Ashley S. v. Dcs, L.H. ( 2022 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
ASHLEY S., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, L.H., Appellees.
No. 1 CA-JV 22-0121
FILED 11-1-2022
Appeal from the Superior Court in Maricopa County
No. JD 39194
The Honorable Christopher Whitten, Judge
AFFIRMED
COUNSEL
Robert D. Rosanelli Attorney at Law, Phoenix
By Robert D. Rosanelli
Counsel for Appellant
Arizona Attorney General’s Office, Tucson
By Michelle R. Nimmo
Counsel for Appellee, Department of Child Safety
ASHLEY S. v. DCS, L.H.
Decision of the Court
MEMORANDUM DECISION
Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Jennifer M. Perkins and Judge James B. Morse Jr. joined.
B R O W N, Judge:
¶1 Ashley S. (“Mother”) appeals the juvenile court’s order
terminating her parental rights to her daughter L.H., born in 2016. For
reasons that follow, we affirm.
BACKGROUND
¶2 Mother and Carlos H. (“Father”) are L.H.’s biological parents.
Although Father’s rights were also terminated, he is not a party to this
appeal.
¶3 The Arizona Department of Child Safety (“DCS”) first became
involved with this family in 2016, when L.H. was born premature and
tested positive for methadone. In 2019, DCS received a report of domestic
violence. Mother said that Father grabbed her hair and hit her in the face,
and that in an earlier instance he had slammed her face into some drawers.
Mother reported that Father drinks alcohol and uses cocaine. DCS also
observed that L.H. had “concerning behaviors” indicative of sexual abuse.
DCS offered family preservation services, but neither parent participated.
¶4 Early in 2020, Mother was hospitalized after having a
miscarriage. Father dropped L.H. off at the hospital to be supervised by
Mother while he was at work. Hospital staff observed that Mother was
dozing off and L.H. was not able to wake her up even after she slapped
Mother across the face twice. Mother nodded off before the staff could
administer her methadone dosage.
¶5 Soon thereafter, DCS removed L.H. from the home and filed
a dependency petition as to both parents. DCS alleged in part that (1)
Mother had a history of heroin use and had been taking methadone for the
past 15 years; (2) she had untreated mental-health issues of PTSD,
depression, and anxiety; and (3) there was a history of domestic violence
between Mother and Father. After Mother pled no contest, L.H. was
adjudicated dependent in April 2020. The court approved a case plan of
family reunification and DCS offered Mother various services, including
2
ASHLEY S. v. DCS, L.H.
Decision of the Court
substance-abuse assessment and treatment, psychological and psychiatric
evaluations, individual counseling, parent-aide services, and supervised
visitation.
¶6 Mother was assessed for substance-abuse treatment by
TERROS but was not referred for further services because she was already
engaged in services with Community Medical Services (“CMS”) and was
being treated with methadone. She participated in drug testing through
PSI from March 2020 through July 2020, testing positive each time for
methadone and seven times for benzodiazepines (anti-anxiety medication,
hereinafter referred to generally as “Xanax”). Although some confusion
existed between DCS caseworkers about when and where Mother should
receive testing, after September 2020 she received regular testing through
CMS and consistently tested positive for methadone and Xanax. In July
2021, Mother was denied her methadone dosage at CMS because she
appeared impaired. Two months later she tested positive for cocaine, but
claimed it was a false positive due to her use of lidocaine.
¶7 The record is not clear on what prescriptions Mother was
taking. In 2019, a DCS employee reported that Mother was buying Xanax
“off the streets” because her physicians stopped prescribing it after her
miscarriage. DCS progress reports from 2021 noted multiple times that
there was no prescription on file with DCS for Xanax even though it had
been requested during the dependency.
¶8 After a psychological evaluation, a psychiatrist evaluated
Mother in August 2020 and recommended she taper off Xanax given the
risks of combining methadone and Xanax. According to CMS reports, those
risks include respiratory depression, overdose, and death. After a follow-
up appointment, the psychiatrist noted that Mother was not willing to taper
off Xanax. Mother also participated in individual counseling sessions for
about a year, starting in July 2020. The therapist noted that Mother had
“trouble keeping up with her therapy goals.”
¶9 Although Mother consistently attended visits and skill
sessions, the first parent-aide service closed unsuccessfully. The parent
aide concluded that Mother had not increased her abilities to parent L.H.
and was still working on her mental health. DCS was also concerned that
L.H. did not want to use the restroom when Mother was in the home, and
that Mother would nod off during her visits with L.H.
¶10 Mother was referred again for the parent-aide program and
successfully completed it in November 2021. The parent aide reported that
3
ASHLEY S. v. DCS, L.H.
Decision of the Court
Mother participated in visits and skills sessions and enhanced her
capacities. However, before the program closed, L.H. reported that Mother
had touched her inappropriately during a supervised visit. The court then
ordered for in-person visitations to stop and permitted virtual visitations
only.
¶11 Throughout the dependency, Mother and Father have lived
together. Mother is unemployed and relies on Father for housing and
income. Father completed a substance-abuse assessment and was
diagnosed with mild cocaine-use disorder. He did not engage in any
reunification services.
¶12 In November 2021, DCS moved to terminate Mother’s
parental rights to L.H. based on nine months’ and fifteen months’ time-in-
care. After a two-day termination hearing, the juvenile court granted the
motion on both grounds and found that termination was in L.H.’s best
interests. Mother timely appealed and we have jurisdiction under A.R.S.
§ 8-235(A).
DISCUSSION
¶13 Before the juvenile court can terminate parental rights, DCS
must prove (1) by clear and convincing evidence at least one statutory
ground in A.R.S. § 8-533 and (2) by a preponderance of the evidence that
the termination is in the child’s best interests. Jennifer S. v. Dep’t of Child
Safety, 240 Ariz. 282, 286, ¶ 15 (App. 2016). “We review the court’s
termination decision for an abuse of discretion and will affirm unless no
reasonable evidence supports the court’s findings.” Jessie D. v. Dep’t of Child
Safety, 251 Ariz. 574, 579, ¶ 10 (2021). The juvenile court “is in the best
position to weigh the evidence, observe the parties, judge the credibility of
witnesses, and make appropriate findings.” Jesus M. v. Ariz. Dep’t of Econ.
Sec., 203 Ariz. 278, 280, ¶ 4 (App. 2002). If clear and convincing evidence
supports any one ground for terminating parental rights, we need not
address whether sufficient evidence supports the other grounds. Id. at ¶ 3.
¶14 To meet its burden of proving the fifteen months’ ground,
DCS was required to prove (1) it made a “diligent effort to provide
appropriate reunification services”; (2) L.H. was in an out-of-home
placement for a cumulative period of fifteen months or longer; (3) Mother
did not remedy the circumstances requiring the out-of-home placement;
and (4) “there is a substantial likelihood that the parent will not be capable
of exercising proper and effective parental care and control in the near
future.” A.R.S. § 8-533(B)(8)(c). Mother challenges only the third and
4
ASHLEY S. v. DCS, L.H.
Decision of the Court
fourth requirements. She does not argue the court erred in finding that
termination is in L.H.’s best interests.
¶15 The juvenile court found that Mother failed to remedy the
circumstances that contributed to L.H.’s removal from the home, which
included “domestic violence between the parents,” Mother’s “unmanaged
mental health issues,” her “failure to protect [L.H.] from Father’s substance
abuse,” and Mother’s “general inability to care for [L.H.], “exacerbated by
her long-term combined use” of methadone and Xanax. The court
explained that Mother did not engage in any services to address domestic
violence and failed to address her dependency on methadone and Xanax,
even after being warned by doctors about the dangers in combining the two
drugs. The court determined that although Mother made some progress, it
was not enough to show she is capable of effectively parenting L.H. in the
near future.
¶16 Mother argues she “continues to address her history of illegal
opiate abuse,” noting her active involvement with CMS since 2012. She
contends her only unusual test in September 2021 was positive for cocaine,
which she claimed was based on use of an over-the-counter lidocaine
ointment. Regardless of Mother’s claim, it is undisputed that she takes
methadone and Xanax, even after being advised by doctors of the dangers
in combining those two drugs. And Mother does not contest the juvenile
court’s finding that she failed to provide DCS with evidence of a
prescription for Xanax, despite repeated requests. Without a prescription,
DCS had no evidence that Mother was legally taking Xanax. Also, DCS
provided documented instances where Mother was nodding off during
visits and acting strangely. She also appeared “overmedicated” when
reporting to her clinic to receive her methadone treatment in at least one
instance. The record confirms that Mother has been unable to resolve her
substance-abuse issues.
¶17 Mother asserts she has addressed her mental-health issues
through her participation in evaluations and therapy sessions. She also
argues she has enhanced her protective capacities as a parent, evidenced by
her successful completion of the latest parent-aide service program. She
contends the juvenile court ignored all this evidence when it terminated
Mother’s parental rights. But we do not reweigh the evidence on appeal.
See Jesus M., 203 Ariz. at 282, ¶ 12.
¶18 Consistent with the juvenile court’s ruling, nothing in the
record supports a conclusion that Mother can provide a home environment
for L.H. that would be different or improved from what it was like when
5
ASHLEY S. v. DCS, L.H.
Decision of the Court
the dependency was filed. Although Mother denies any history of domestic
violence, she made reports to DCS about two incidents. A DCS caseworker
testified that Mother and Father were still living together, that Father was
actively using cocaine, and that neither party had tried to address the
domestic-violence issues in their relationship. The caseworker explained
that Mother is unemployed and relies on Father for income, and that if L.H.
is returned to Mother’s care, L.H. would be exposed to Father’s substance
abuse and the parents’ domestic-violence issues. Because the circumstances
that led to L.H.’s removal from Mother’s care essentially remain unchanged
and the record shows that Mother would not be able to effectively parent
in the near future, the juvenile court did not err in terminating her parental
rights.
CONCLUSION
¶19 We affirm the juvenile court’s order.
AMY M. WOOD • Clerk of the Court
FILED: AA
6