Emone B. v. Dcs, A.B. ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
EMONE B., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, A.B., Appellees.
No. 1 CA-JV 22-0008
FILED 8-18-2022
Appeal from the Superior Court in Maricopa County
No. JD532222
The Honorable Jeffrey A. Rueter, Judge
AFFIRMED
COUNSEL
Denise L. Carroll, Esq., Scottsdale
By Denise L. Carroll
Counsel for Appellant
Arizona Attorney General’s Office, Tucson
By Dawn R. Williams
Counsel for Appellee Department of Child Safety
EMONE B. v. DCS, A.B.
Decision of the Court
MEMORANDUM DECISION
Judge Cynthia J. Bailey delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Vice Chief Judge David B. Gass
joined.
B A I L E Y, Judge:
¶1 Emone B. (“Mother”) appeals the termination of her parental
rights to her child, A.B.1 For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY2
¶2 The Department of Child Safety (“DCS”) took custody of A.B.
approximately two months after her birth and, in January 2019, filed a
dependency petition alleging, inter alia, that Mother was unable to parent
due to neglect, engaging in domestic violence with Father, and mental
health issues. DCS further alleged that Mother had multiple prior reports
of substance abuse (methamphetamine) and could not meet A.B.’s basic and
medical needs. In April 2019, the court adjudicated A.B. dependent when
Mother failed to attend a pretrial conference without good cause.
¶3 Over nearly three years, DCS either referred Mother or
Mother self-referred for a variety of reunification services, including
substance-abuse testing and treatment, mental-health treatment, a crisis
support team, psychological and neuropsychological evaluations,
individual and domestic-violence counseling, parenting classes, a parent
aide with visitation, and transportation assistance.
¶4 For the first nine months of the dependency, Mother barely
participated and continued to abuse methamphetamine almost daily.
During this time, Mother sought help at a mental-health facility, but she
later refused to participate with the crisis support team DCS provided.
1 The superior court also terminated the parental rights of A.B.’s father
(“Father”). Father is not a party to this appeal.
2 We view the facts in the light most favorable to upholding the
superior court’s order. Ariz. Dep’t of Econ. Sec. v. Matthew L., 223 Ariz. 547,
549, ¶ 7 (App. 2010).
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EMONE B. v. DCS, A.B.
Decision of the Court
¶5 Over the next six months, starting in October 2019, Mother
completed a thirty-day residential treatment program, graduated from a
sober-living home, completed an outpatient treatment program through
TERROS, and attended twelve-step meetings. In mid-October 2019, soon
after entering the residential treatment program, Mother tested positive for
amphetamine. This was Mother’s last positive urinalysis test for either
methamphetamine or amphetamine, and she insists that is her sobriety date
from methamphetamine.
¶6 In the two years leading up to the October 2021 termination
adjudication, Mother drug tested more consistently, but still had periods
where she did not call in and missed tests. Additionally, Mother took three
hair-follicle tests that returned positive for methamphetamine. The latest
of those tests was in November 2020, more than a year after her alleged
sobriety date, and it showed slightly increasing methamphetamine levels.
Mother also had a positive alcohol test in July 2020.
¶7 Regarding other services, Mother completed a
neuropsychological evaluation in March and April 2020, and which was
updated shortly before the termination adjudication. In 2020, the
evaluating psychologist diagnosed her with post-traumatic stress disorder,
major depressive disorder, and a stimulant-use disorder. He gave Mother
a fair prognosis for being able to parent A.B., “contingent on her ability to
gain better control over her trauma[-]related anxiety and mood conditions.”
The psychologist recommended she complete a twelve-step program, a
psychiatric evaluation, and trauma therapy. Mother completed a
psychiatric evaluation and began medication and trauma therapy, though
she was initially resistant to discussing her substance abuse and past
trauma. As of September 2021, the evaluating psychologist commended
Mother for her apparent efforts regarding substance abuse but found her
progress in other areas lacking. Specifically, the psychologist found
Mother’s lack of progress regarding her underlying trauma condition and
trauma-related anxiety and depression would undermine her long-term
sobriety and interfere with her ability to focus on A.B.’s needs, which would
expose A.B. to an ongoing risk of harm or neglect.
¶8 Mother also visited A.B. more consistently and successfully
completed the parent-aide service. But because A.B. showed high anxiety
during and after visits, DCS’s psychologist recommended one of her foster
parents attend visits. By the termination hearing, DCS had begun phasing
the foster mother out of the visitations.
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EMONE B. v. DCS, A.B.
Decision of the Court
¶9 Meanwhile, over Mother’s objection, the court changed the
case plan to severance and adoption in August 2019. DCS’s motion to
terminate Mother’s parental rights alleged abandonment, chronic
substance-abuse, and six- and fifteen-month out-of-home placement
grounds. The superior court held an adjudication over five days and, in a
December 2021 ruling, terminated Mother’s parental rights under the
chronic substance-abuse and fifteen-month out-of-home placement
grounds, but found DCS did not prove the six-month out-of-home
placement ground.
¶10 Mother timely appealed. We have jurisdiction under Arizona
Revised Statutes (“A.R.S.”) section 8-235(A).
DISCUSSION
I. Fifteen-Month Time-In-Care Ground
¶11 Mother argues insufficient evidence supports the superior
court’s order under the fifteen-month out-of-home placement ground. To
terminate a parent-child relationship, the superior court must find at least
one statutory ground for severance under A.R.S. § 8-533(B) by clear and
convincing evidence. See Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 22 (2005).
The court must also find severance is in the child’s best interests by a
preponderance of the evidence. Id. We review the court’s severance
determination for an abuse of discretion and will affirm unless no
reasonable evidence supports the court’s findings. Mary Lou C. v. Ariz.
Dep’t of Econ. Sec., 207 Ariz. 43, 47, ¶ 8 (App. 2004) (citation omitted). The
superior court “is in the best position to weigh the evidence, observe the
parties, judge the credibility of witnesses, and resolve disputed facts.” Ariz.
Dep’t of Econ. Sec. v. Oscar O., 209 Ariz. 332, 334, ¶ 4 (App. 2004) (citation
omitted).
¶12 The superior court may terminate parental rights under the
fifteen-month out-of-home placement ground if it finds that (1) “[t]he child
has been in an out-of-home placement for a cumulative total period of
fifteen months or longer”; (2) “the parent has been unable to remedy the
circumstances” that caused the out-of-home placement; and (3) “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). “Circumstances” means “those circumstances existing at
the time of the severance that prevent a parent from being able to
appropriately provide for his or her children.” Jordan C. v. Ariz. Dep’t of
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EMONE B. v. DCS, A.B.
Decision of the Court
Econ. Sec., 223 Ariz. 86, 96, ¶ 31 n.14 (App. 2009) (internal quotations and
citations omitted).
¶13 Mother argues that while making findings under the fifteen-
month out-of-home placement ground, the superior court failed to consider
the circumstances existing at the time of the severance, which, according to
her, show she had committed to sobriety and actively participated in
services.
¶14 Although the superior court found that Mother had made
“great progress” in overcoming her methamphetamine addiction, Mother
had missed numerous drug tests after her claimed sobriety date and had
not fully remedied her mental-health issues. The court found her failure to
fully address her mental health by the time of trial “pose[d] a barrier to her
sustained sobriety and her ability to meet [A.B.’s] needs.” Reasonable
evidence supports these findings.
¶15 The record shows that Mother’s substance-abuse and mental-
health issues were co-occurring, dependent conditions. Indeed, her
evaluating psychologist opined that her sobriety was contingent on her
ability to gain control over her mental health and past trauma. Mother
commendably made great strides in therapy and even sought out
additional forms of trauma treatment to compliment her individual
therapy. Nevertheless, she was initially resistant to discussing her past
trauma and substance abuse, which somewhat delayed her progress. At
the time of trial, Mother had just begun to delve into her trauma.
¶16 Additionally, Mother did not consistently call in to the testing
line as directed, and in the year leading up to the termination hearing, failed
to test more than twenty times. The case manager testified that DCS
considers missed tests as positive.
¶17 Finally, Mother tested positive for alcohol approximately nine
months after her claimed sobriety date. Considering her long history of
substance abuse, Mother conceded her positive alcohol test would be
considered a relapse, and the case manager testified it indicates Mother
could be minimizing her continued use of substances. Then, a year after
her claimed sobriety date, Mother tested positive for methamphetamine
through a hair-follicle test, and the test reflected a higher concentration of
methamphetamine than a previous test. Although she disputed the
positive hair-follicle test through expert testimony, the superior court found
that Mother’s “failure to call in as directed, combined with the continuous
missed tests and the levels reflected in the hair follicle,” belied the
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EMONE B. v. DCS, A.B.
Decision of the Court
alternative explanations offered by her expert. Jesus M. v. Ariz. Dep’t of Econ.
Sec., 203 Ariz. 278, 282, ¶ 12 (App. 2002) (“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.” (citations omitted)). As
a final matter, Mother did not test consistently, from which the superior
court appropriately drew a negative inference as to Mother’s sobriety. On
this record, Mother has not met her burden. Reasonable evidence supports
the court’s findings that she had been unable to remedy the circumstances
by the termination hearing and a substantial likelihood exists that she will
not be capable of exercising proper and effective parental care and control
in the near future.3
II. Best Interests
¶18 Mother also challenges the court’s finding that severance was
in A.B.’s best interests. As we have noted, in addition to finding a statutory
ground for termination, the superior court must also determine what is in
the best interests of the child by a preponderance of the evidence. Kent K.,
210 Ariz. at 284, ¶ 22. Once the court finds a parent unfit under at least one
statutory ground for termination, “the interests of the parent and child
diverge,” and the court proceeds to balance the unfit parent’s “interest in
the care and custody of his or her child . . . against the independent and
often adverse interests of the child in a safe and stable home life.” Id. at 286,
¶ 35. The best interests determination “must include a finding as to how
the child would benefit from a severance or be harmed by the continuation
of the relationship.” Maricopa Cnty. Juv. Action No. JS-500274, 167 Ariz. 1, 5
(1990) (citations omitted). “[C]ourts must consider the totality of the
circumstances existing at the time of the severance determination, including
the child’s adoptability and the parent’s rehabilitation.” Alma S. v. Dep’t of
Child Safety, 245 Ariz. 146, 148, ¶ 1 (2018).
¶19 The court may find a child would benefit from termination if
there is an adoption plan or if the child is adoptable, see id., at 150-51, ¶¶ 13-
14, or if the child “would benefit psychologically from the stability an
3 Mother also argues the court erred in finding evidence sufficient to
terminate her rights based on chronic substance abuse under A.R.S. § 8-
533(B)(3). Because we affirm the court’s order based on the fifteen-month
time-in-care ground, we do not address the chronic substance-abuse
ground. See Crystal E. v. Dep’t of Child Safety, 241 Ariz. 576, 577-78, ¶ 5 (App.
2017).
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EMONE B. v. DCS, A.B.
Decision of the Court
adoption would provide,” Maricopa Cnty. Juv. Action No. JS-501904, 180
Ariz. 348, 352 (App. 1994).
¶20 Mother generally argues that DCS failed to prove that
severance would give A.B. an affirmative benefit, but she does not
specifically challenge the court’s findings that A.B. is an adoptable child,
and her foster family was meeting her needs and wished to adopt her,
which would provide her with stability and permanency. These findings
are supported by reasonable evidence in the record and establish how A.B.
would benefit from severance.
¶21 Mother contends that DCS hampered her efforts to bond with
A.B. by having the child’s foster mother attend visits. The foster mother’s
attendance at visits began because Mother had only visited A.B.
approximately four times in her first year of life, and when Mother began
visiting more consistently, A.B. would scream inconsolably during and
after visits. The case manager therefore consulted with DCS’s psychologist,
who recommended the foster mother attend visits “solely to provide a
‘secure base’ for [A.B.] and comfort her when needed so that she can feel
safe, secure and return to play with” Mother. The psychologist also
recommended that the foster mother “should be instructed to NOT
compete for [A.B.’s] attention or engage in any play with” her. The record
does not suggest the foster mother ever defied this recommendation.
Further, the case managers consulted with the psychologist bi-annually to
re-evaluate the need for the foster mother’s presence and began phasing her
out of the visits by the termination hearing. Under these circumstances, we
cannot say DCS’s actions were unreasonable.
¶22 Mother further contends her bond with A.B. was hampered
by DCS’s decision to offer her only half the visitation hours it usually offers
parents of young children. Eleven months before the termination hearing,
because of staffing issues, DCS told Mother she could either wait until a
case aide had four hours available to supervise her visits or she could begin
two-hour visits immediately. Mother understandably chose to
immediately begin two-hour visits. DCS cites Mother’s inflexible work
schedule as limiting further visits, but it is DCS’s duty to “make reasonable
efforts to assist the parent in areas where compliance proves difficult.”
Donald W. v. Dep’t of Child Safety, 247 Ariz. 9, 23, ¶ 50 (App. 2019) (citation
omitted).
¶23 Regardless, even if DCS erred, Mother has not demonstrated
how her bond with A.B. would overcome the court’s finding that “Mother
still needs further progression in counseling and therapies to be
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EMONE B. v. DCS, A.B.
Decision of the Court
emotionally healthy” and available to A.B. See Dominique M. v. Dep’t of Child
Safety, 240 Ariz. 96, 98-99, ¶ 12 (App. 2016) (“[A] bonded relationship
between a biological parent and a child, although a factor to consider, is not
dispositive in addressing best interests.” (citation omitted)).
CONCLUSION
¶24 For the foregoing reasons, we affirm the termination of
Mother’s parental rights to A.B.
AMY M. WOOD • Clerk of the Court
FILED: AA
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