Kathy S. v. Dcs ( 2016 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
KATHY S., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, P.P., E.P., B.P., Appellees.
No. 1 CA-JV 15-0219
FILED 1-21-2016
Appeal from the Superior Court in Maricopa County
No. JD511138
The Honorable Janice K. Crawford, Judge
AFFIRMED
COUNSEL
Denise L. Carroll, Esq., Scottsdale
By Denise L. Carroll
Counsel for Appellant
Arizona Attorney General’s Office, Mesa
By Amanda Adams
Counsel for Appellee DCS
KATHY S. v. DCS, et al.
Decision of the Court
MEMORANDUM DECISION
Judge Kenton D. Jones delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Patricia A. Orozco joined.
J O N E S, Judge:
¶1 Kathy S. (Mother) appeals the juvenile court’s order
terminating her parental rights to P.P., E.P., and B.P. (the Children), arguing
the Department of Child Safety (DCS) failed to prove the statutory grounds
for severance by clear and convincing evidence and that severance was in
the Children’s best interests by a preponderance of the evidence. For the
following reasons, we affirm.
FACTS1 AND PROCEDURAL HISTORY
¶2 In June 2013, DCS received a report that Mother was using
methamphetamine, using inappropriate physical discipline, and neglecting
four children in her care, ages thirteen, eleven, six, and five. P.P. reportedly
witnessed Mother “do lines” and “shoot needles,” and there were concerns
regarding lack of supervision when Mother locked the Children out of the
home so she could use drugs. Mother submitted a hair and urine sample,
both of which tested positive for methamphetamine, and the Children were
removed from her care and placed with their maternal aunt (Aunt).2
¶3 DCS filed a petition alleging the Children were dependent as
to Mother on the grounds of chronic substance abuse, neglect, and physical
abuse. The juvenile court adjudicated the Children dependent in July 2013
1 We view the facts in the light most favorable to upholding the
juvenile court’s order terminating parental rights. Ariz. Dep’t of Econ. Sec.
v. Matthew L., 223 Ariz. 547, 549, ¶ 7 (App. 2010) (citing Manuel M. v. Ariz.
Dep’t of Econ. Sec., 218 Ariz. 205, 207, ¶ 2 (App. 2008)).
2 The father of the Children’s eleven-year-old half-sister was granted
emergency custody following the events giving rise to this dependency.
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KATHY S. v. DCS, et al.
Decision of the Court
and adopted a case plan of family reunification.3 Mother was advised she
needed to complete substance abuse treatment, maintain sobriety, engage
in recommended mental health treatment, maintain safe and stable
housing, engage in positive visits with the Children, and attend parenting
classes.
¶4 Mother participated in a psychological examination in
October 2013 after missing a prior appointment. She reported she began
using methamphetamine at nineteen, was addicted to methamphetamine,
and, now thirty-eight, continued to actively use the drug despite
completing a substance abuse program in 2012. Mother stated she began
using methamphetamine because of depression and reported a genetic
predisposition toward substance abuse. She also reported she had no
income and supported the family on B.P.’s Social Security check, which she
continued to receive after the Children were removed, and financial
assistance from neighbors and family members.
¶5 The psychologist concluded Mother suffered from
methamphetamine addiction and was “prone to depression,” although he
was unable to determine “whether the depression is a result of her drug use
and circumstances or she was using methamphetamine to self-medicate for
her depression.” The psychologist recommended Mother engage in drug
counseling, parenting classes, and individual counseling, but only after she
was able to demonstrate a period of sobriety. He reported her “treatment
motivation” was lower than normal explaining, “[h]er responses suggest
she is satisfied with herself as she is . . . and that, as a result, she sees little
need for change in her behavior.” He suggested Mother might benefit from
antidepressant medication, but, like counseling and parenting classes, a
psychiatric evaluation would not be appropriate until she maintained a
period of sobriety because “meth creates all kinds of moods for people.”
The psychologist testified Mother could not parent appropriately while
using methamphetamine and explained that her prognosis to become a
minimally adequate parent was dependent upon her ability to maintain
sobriety; if she could not stay sober, her prognosis was poor.
3 The juvenile court also adjudicated the Children dependent as to
their father, who was incarcerated at the time. His parental rights were
terminated in June 2015, his appeal was dismissed in October 2015, and he
is not a party to this appeal.
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KATHY S. v. DCS, et al.
Decision of the Court
¶6 Mother did not obtain or maintain any period of sobriety
during the dependency proceedings. She was immediately referred for
substance abuse testing and treatment and, between July and December
2013, missed thirteen of twenty-six required urinalysis tests and tested
positive for methamphetamine three times. She submitted to one of four
required tests in January 2014, tested positive for methamphetamine on that
occasion, and did not submit to any testing through May of 2014. In May
2014, Mother submitted one of two required tests and on that occasion
tested positive for methamphetamine.
¶7 Mother underwent a substance abuse assessment in July 2013
which recommended she participate in intensive outpatient treatment,
including group and individual counseling for six months. The service was
closed in August 2013 for lack of participation. DCS made a second referral
for substance abuse treatment in early September 2013, but Mother did not
engage in any services until October 2013. She missed six group sessions
and six required tests that first month and three group sessions in
November 2013. Mother was placed on an attendance contract, and, in
February 2014, after continuing to miss group sessions, the service was
again closed. A third referral was submitted in March 2014, but Mother did
not schedule an intake appointment.
¶8 During this period, Mother was offered parent aide services
and supervised visitation with the Children one time per week for two
hours. Out of nineteen scheduled visits between August 2013 and early
December 2013, Mother cancelled five visits, arrived late three times, and
ended the visits early on four occasions. During these visits, Mother relied
upon another family member to provide supplies for the Children and hit
B.P. in the back of the head for knocking a hole in the wall at Aunt’s home.
A second parent aide referral was submitted in November 2013, but the
aide could not reach Mother for several weeks, and visitation did not
resume until February 2014. By June 2014, Mother had attended only seven
of thirty-four scheduled visits and two one-on-one parenting skills sessions.
The parent aide reported Mother’s progress was minimal given her
continued use of methamphetamine, inconsistent participation, and failure
to effectively discipline the Children. The service was closed as a result of
Mother’s lack of compliance. And, although Mother was permitted
telephone contact throughout, her attempts to communicate with the
Children lasted only a couple weeks after they were removed, and she did
not call them even on birthdays or holidays.
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KATHY S. v. DCS, et al.
Decision of the Court
¶9 In March 2014, Mother spent a week in jail on charges of
failure to appear and driving on a suspended license. In June, she was
arrested for criminal trespassing and sentenced to thirty days in jail. After
being released in early July 2014, Mother tested positive for
methamphetamine twice. She was referred for substance abuse treatment
for the fourth time in August 2014. But, Mother did not participate in
treatment or submit to any substance abuse testing in August and only
submitted to one of three scheduled tests in September. That test was
negative for any illegal substance. Mother reported having been evicted
from her trailer and living in a shelter but did not provide DCS with
requested contact information so she could resume visitation.
¶10 In September 2014, over Mother’s objection, the juvenile court
changed the case plan to severance and adoption. The court also ordered
DCS to continue to provide substance abuse treatment and testing,
supervised visitation, and bus passes. DCS immediately submitted its fifth
referral for substance abuse treatment. DCS filed a motion to terminate the
parent-child relationship in October 2014 alleging severance was warranted
as a result of Mother’s history of chronic abuse of dangerous drugs, as well
as her failure to correct the circumstances giving rise to the dependency
after the Children had been in out-of-home care for more than fifteen
months. See Ariz. Rev. Stat. (A.R.S.) § 8-533(B)(3),4 (8)(c).
¶11 Following the change in case plan, Mother’s participation in
drug testing improved, but, between October 2014 and January 2015, she
still missed nine of twenty-seven required tests, submitted one diluted
sample, and tested positive for methamphetamine seven times. Mother
was offered additional supportive services through the substance abuse
treatment provider in January 2015, but declined. Although she had not
seen the Children since May 2014, she did not engage with the parent aide
to arrange visitation; nor had she obtained stable employment or housing,
having been “kicked out” of a sober living home and a friend’s home and
then voluntarily left a domestic violence shelter. After reinitiating contact
with the Children in November 2014, Mother attended only seven of
fourteen visits and, at trial, the parent aide service was pending closure,
again, after Mother had failed to make contact for thirty days.
4 Absent material revisions from the relevant date, we cite a statute’s
current version.
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KATHY S. v. DCS, et al.
Decision of the Court
¶12 In March 2015, just nine days before trial began, Mother was
admitted to an inpatient substance abuse treatment program. She quit the
program after one month and denied further services were necessary to
ensure her sobriety.
¶13 At the time of trial, Mother’s fifth referral for substance abuse
treatment was pending closure for lack of participation. The DCS case
manager expressed concern that Mother had yet to actually complete any
substance abuse treatment or participate consistently in testing and
apparently continued to actively use methamphetamine, estimating that
Mother’s longest period of sobriety during the dependency was two to
three weeks. And, because Mother had not obtained and maintained any
period of sobriety, DCS remained unable to refer her for a mental health
assessment or counseling.
¶14 Evidence was presented that, although all of the Children
experienced challenges after being removed, Aunt was currently meeting
the Children’s physical, emotional, and educational needs, as well as
providing structure, consistency, and regular meals that allowed the
Children’s behavior and grades to improve. Aunt had also participated in
services to assist in managing B.P.’s special needs and was willing to
continue to do so. The DCS case manager testified P.P., the only one of the
Children over the age of twelve, consented to the adoption. She also
testified she believed termination of Mother’s parental rights to be in the
Children’s best interests.
¶15 After taking the matter under advisement, the juvenile court
issued an order detailing its findings of fact regarding Mother’s significant
history of substance abuse and sporadic participation in services. The court
determined DCS had made reasonable efforts to reunify Mother with the
Children and had proven by clear and convincing evidence severance was
warranted based upon Mother’s chronic substance abuse and the
Children’s length of time in out-of-home care. The court also found DCS
had proven by a preponderance of the evidence that severance was in the
Children’s best interests and entered an order terminating Mother’s
parental rights to the Children.
¶16 Mother timely appealed. We have jurisdiction pursuant to
A.R.S. §§ 8-235, 12-120.21(A)(1), and -2101(A)(1) and Arizona Rule of
Procedure for the Juvenile Court 103(A).
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KATHY S. v. DCS, et al.
Decision of the Court
DISCUSSION
¶17 To terminate parental rights, the juvenile court must find by
clear and convincing evidence the existence of at least one of the statutory
grounds for termination enumerated in A.R.S. § 8-533(B) and must find by
a preponderance of the evidence that termination would serve the child’s
best interests. Ariz. R.P. Juv. Ct. 66(C); Michael J. v. Ariz. Dep’t of Econ. Sec.,
196 Ariz. 246, 249, ¶ 12 (2000). We do not reweigh the evidence on appeal;
as the trier of fact, the juvenile 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) (citing Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 280,
¶ 4 (App. 2002)). “Accordingly, we view the evidence and reasonable
inferences to be drawn from it in the light most favorable to sustaining the
court’s decision,” Jordan C. v. Ariz. Dep’t of Econ. Sec., 223 Ariz. 86, 93, ¶ 18
(App. 2009) (citing Jesus M. 203 Ariz. at 282, ¶ 13), and will affirm a
termination order “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) (citing Maricopa Cnty. Juv. Action No. JS-4374, 137 Ariz.
19, 21 (App. 1983), and Maricopa Cnty. Juv. Action No. JS-378, 21 Ariz. App.
202, 204 (1974)).
I. DCS Made Reasonable Efforts to Provide Reunification Services.
¶18 A parent’s 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); Raymond F. v. Ariz.
Dep’t of Econ. Sec., 224 Ariz. 373, 377, ¶ 15 (App. 2010). In order to sever on
this ground, there must be a finding that reasonable efforts were made to
reunify the family, or that such efforts would not restore the parent’s ability
to care for a child within a reasonable time. 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)). DCS has an
affirmative duty “to make all reasonable efforts to preserve the family
relationship,” Mary Ellen C., 193 Ariz. at 186, ¶ 1 (citing Maricopa Cnty. Juv.
Action No. JA 33794, 171 Ariz. 90, 91-92 (App. 1991), and Maricopa Cnty. Juv.
Action No. JS-6520, 157 Ariz. 238, 241 (App. 1988)), and must provide a
parent “with the time and opportunity to participate in programs designed
to help her to become an effective parent.” Maricopa Cnty. Juv. Action No.
JS–501904, 180 Ariz. 348, 353 (App. 1994). But, DCS “is not required to
provide every conceivable service or to ensure that a parent participates in
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KATHY S. v. DCS, et al.
Decision of the Court
each service it offers.” Id. (citing Maricopa Cnty. Juv. Action No. JS-5209 and
No. JS-4963, 143 Ariz. 178, 189 (App. 1984)). Additionally, in determining
whether severance was appropriate in this case, the juvenile court was
required to consider not only “the availability of reunification services to
the parent,” but also “the participation of the parent in [those] services.”
A.R.S. § 8-533(D).
¶19 Mother does not dispute the chronic nature of her substance
abuse, its effect on her ability to discharge her parental responsibilities, or
her failure to engage in the offered services. Rather, Mother argues DCS
failed to make reasonable reunification efforts. Specifically, Mother
contends DCS should have offered her inpatient treatment for her
substance abuse and services “related to her possible mental health issues,”
and DCS’s failure to offer these services prevented her from engaging in
services that would foster reunification. However, the juvenile court
specifically found:
 There was no persuasive or credible evidence
presented that Mother needed in-patient substance
abuse treatment instead of the intensive outpatient
substance abuse treatment recommended [within her
substance abuse assessment]. It was Mother who
failed to participate in the services offered to her by
[DCS]. Mother was provided with the time and
opportunity to participate in appropriate programs to
reunify with the Children.
 There was no persuasive or credible evidence
presented that Mother suffered from a mental health
issue that needed to be treated before Mother’s
substance abuse could be addressed.
¶20 These findings are supported by the record, which reflects
Mother was offered a panoply of services over the course of nearly two
years which were designed to address the primary impediment to
reunification — Mother’s persistent use of and admitted addiction to
methamphetamine. Mother was offered substance abuse testing, substance
abuse treatment, parent aide services, supervised visitation, and a
psychological evaluation. DCS re-submitted referrals for these services
multiple times despite Mother’s lack of commitment, consistency, and
participation. Although Mother argued at trial she needed inpatient
substance abuse treatment and mental health services, this testimony was
disputed. Mother acknowledged she had never before requested
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KATHY S. v. DCS, et al.
Decision of the Court
additional services and specifically declined the treatment provider’s offer
of additional support in January 2015. And, ultimately, the juvenile court
was not persuaded additional services were necessary.
¶21 The record supports the juvenile court’s determination that
DCS made reasonable efforts to provide Mother rehabilitative services. We
will not second-guess that assessment of the evidence, see supra ¶ 17, and
we find no error.5
II. Termination of the Parent-Child Relationship is in the Children’s
Best Interests.
¶22 Mother also argues the juvenile court erred in determining
termination was in the Children’s best interests because there was “no
credible evidence that the [C]hildren would benefit from the severance.”
However, the benefit of severance to a child is the opportunity for
permanency where “‘parents maintain parental rights but refuse to assume
parental responsibilities.’” Oscar O., 209 Ariz. at 337, ¶ 16 (quoting JS-6520,
157 Ariz. at 243). In evaluating a child’s opportunity for permanency, the
juvenile court considers whether there is a current plan for the children’s
adoption and whether the current placement is meeting the children’s
needs. Bennigno R. v. Ariz. Dep’t of Econ. Sec., 233 Ariz. 345, 350, ¶ 23 (App.
2013) (citations omitted).
¶23 Here, the juvenile court acknowledged the Children were in
need of permanency after having been in out-of-home care for more than
fifteen months and found termination of Mother’s parental rights would
“make the Children free for adoption” into “a safe, permanent, substance
free home.” The court also found Aunt was willing to adopt the Children,
had been successful in managing the Children’s past behavioral issues, and
was able to meet their needs.
¶24 The best interests finding is supported by the record, and we
find no abuse of discretion.
5 Because reasonable evidence supports the juvenile court’s
conclusion that severance was warranted on the grounds of substance
abuse, we need not address Mother’s claims pertaining to other grounds.
See Jesus M., 203 Ariz. at 280, ¶ 4 (citing Michael J., 196 Ariz. at 251, ¶ 27, and
JS-6520, 157 Ariz. at 242).
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KATHY S. v. DCS, et al.
Decision of the Court
CONCLUSION
¶25 The juvenile court’s order terminating Mother’s parental
rights is affirmed.
:ama
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