Shad C. v. Dcs, J.C. ( 2020 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
SHAD C., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, J.C., Appellees.
No. 1 CA-JV 19-0137
FILED 1-14-2020
Appeal from the Superior Court in Yavapai County
No. V1300JD201880007
The Honorable Anna C. Young, Judge
AFFIRMED
COUNSEL
Law Office of Florence M. Bruemmer, P.C., Anthem
By Florence M. Bruemmer
Counsel for Appellant
Arizona Attorney General’s Office, Tucson
By Autumn Spritzer
Counsel for Appellee Department of Child Safety
SHAD C. v. DCS, J.C.
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Kenton D. Jones delivered the decision of the Court, in
which Judge James B. Morse Jr. and Judge Diane M. Johnsen joined.
J O N E S, Judge:
¶1 Shad C. (Father) appeals the juvenile court’s order
terminating his parental rights to J.C. (Child). Father argues the
Department of Child Safety (DCS) failed to prove by clear and convincing
evidence the statutory grounds for severance, and by a preponderance of
the evidence that severance was in Child’s best interests. For the following
reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Father and Rochelle W. (Mother) are the biological parents of
Child, born in 2009.1 They shared custody of Child until February 2018,
when Mother was arrested for driving under the influence while Child was
in the vehicle. Around the same time, Father was receiving emergency
medical treatment at Verde Valley Medical Center, where hospital staff
observed Father with “track marks consistent with intravenous drug use.”
Father stated he was willing to be placed “in [an] appropriate detox facility”
to address his drug use but decided he would “detox at home” after
learning of Mother’s arrest. He then contacted another family member to
pick up Child.
¶3 Because there was no parent available to care for Child, DCS
took temporary custody of Child and placed him with a relative (Uncle). In
March 2018, DCS filed a petition alleging Child was dependent as to Father
on the grounds of neglect and substance abuse.2 As part of the preliminary
1 “We view the facts in the light most favorable to upholding the
juvenile court’s order.” 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 DCS also alleged the Child was dependent as to Mother. Child was
found dependent as to Mother, and Mother’s parental rights were
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Decision of the Court
protective order, the juvenile court ordered Father to: (1) undergo a
substance abuse assessment; (2) submit to random urinalysis (UA) testing
eight to ten times per month; (3) submit a hair follicle sample for testing by
March 9, 2018; (4) comply with prior imposed terms of probation; and
(5) participate in supervised visitation with Child. Father was “informed
that all missed tests, missed calls, and diluted tests would be considered
non-compliant.” In April 2018, the juvenile court adjudicated Child
dependent as to Father, affirmed the case plan of family reunification
concurrent with severance and adoption, and reminded Father to comply
with the reunification services.
¶4 Father eventually participated in a substance abuse
assessment and a psychological evaluation, completed a “Love & Logic”
parenting class, and attended some individual and group therapy sessions
for substance abuse at Spectrum Healthcare. During therapy sessions,
Father admitted: (1) he first used methamphetamine approximately twelve
years earlier and “use[d] methamphetamines about 2 times per week”
intravenously until at least February 2018; (2) he first used opiates
approximately five years earlier and had last used them in January 2017;
and (3) he first used heroin within the past year and, at least until February
2018, “use[d] heroin on a daily basis” through injection.
¶5 Between May and July 2018, Father missed five UA tests. But,
he missed most, if not all, of his required testing between August and
December and tested positive for heroin and opiates in September. In
December, Father tested positive for amphetamines twice, opiates one time,
and heroin one time. Father’s hair follicle test — submitted eight months
after the court-ordered deadline — also tested positive for amphetamines
and opiates.
¶6 Meanwhile, the juvenile court granted DCS discretion to
allow therapeutic visitation between Father and Child. DCS did not
schedule visits because reports indicated that Child feared Father and his
behavior.
¶7 In January 2019, Father pleaded guilty to two counts of
possession of heroin-related drug paraphernalia committed in December
2018 and January 2019. He was placed on supervised probation for three
years and ordered to serve 120 days in jail. The same month, DCS moved
terminated in March 2019. She did not appeal the termination of her
parental rights and is not a party to this appeal.
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Decision of the Court
to terminate Father’s parental rights on the grounds of neglect, substance
abuse, and the length of time Child had been in out-of-home care.
¶8 By the time of the March 2019 severance hearing, Father
remained incarcerated. Father testified he “chose to get sober” the day he
“stepped into prison,” had enrolled in a moral recognition therapy and
twelve-step program, attended Alcoholics Anonymous/Narcotics
Anonymous (AA/NA) meetings once every two weeks, and had attended
counseling meetings at Catholic Charities and Spectrum Healthcare prior
to his incarceration.
¶9 The DCS case manager testified that while Father might have
been able to participate in some services while incarcerated, he was not able
to engage in “intensive inpatient or outpatient treatment” to address his
drug use. The case manager noted Father had not protected Child from
Mother’s neglect and substance abuse and expressed concern that Father
would not be able to stop using drugs in an unsupervised setting based on
his history of substance abuse. The case manager further testified: Father
was unwilling or unable to meet Child’s basic needs such as providing
supervision, food, clothing, and shelter; that Father had lived in “several
different places . . . but was unable to maintain” any permanent residence
and was currently incarcerated for drug-related offenses; that Child had
been placed in a drug-free environment with Uncle, which provided Child
permanency, stability, and safety; and that Child was adoptable.
¶10 Uncle testified that Father had a significant history of
substance abuse and that he had tried “on several occasions” since July 2017
to help Father undergo substance abuse treatment. Although Father had
admitted he needed help, when it came time to engage in treatment, Father
“would bolt” because he “did not want to be contained in a substance abuse
program.”
¶11 Uncle also testified that Child was “at risk of failing third
grade” when he was placed with Uncle. Since that time, Child had
“blossomed” by working “really hard,” earned second place in a science
fair, and been “singing and dancing and playing one of the lead roles” in a
school theatre production. Moreover, Uncle and his wife were willing to
continue as placement for Child and adopt him if requested.
¶12 After taking the matter under advisement, the juvenile court
found DCS proved by clear and convincing evidence termination of
Father’s parental rights was warranted because Father: (1) had neglected
Child or failed to protect Child from neglect; (2) was unable to discharge
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SHAD C. v. DCS, J.C.
Decision of the Court
parental responsibilities because of a chronic history of substance abuse and
the condition would continue for a prolonged indeterminate period; and (3)
substantially neglected or willfully refused to remedy the circumstances
that caused Child to be in out-of-home placement for nine months or longer.
See Ariz. Rev. Stat. (A.R.S.) § 8-533(B)(2), (3), (8)(a).3 The court also found
severance was in Child’s best interests by a preponderance of the evidence
because Father “failed to work on [his] substance abuse issues,” and Child
“deserve[d] permanency and stability in a drug-free environment.” Thus,
the court entered an order terminating Father’s parental rights. Father
timely appealed, and we have jurisdiction pursuant to A.R.S. §§ 8-235(A),
12-120.21(A)(1), 12-2101(A)(1), and Arizona Rule of Procedure for the
Juvenile Court 103(A).
DISCUSSION
¶13 To terminate parental rights, the juvenile court must find clear
and convincing evidence to support at least one statutory ground for
severance. A.R.S. § 8-533(B); Ariz. R.P. Juv. Ct. 66(C); Michael J. v. Ariz. Dep’t
of Econ. Sec., 196 Ariz. 246, 249, ¶ 12 (2000). The court must also find by a
preponderance of the evidence that severance would serve the child’s best
interests. Ariz. R.P. Juv. Ct. 66(C); see Kent K. v. Bobby M., 210 Ariz. 279, 288,
¶ 41 (2005). We will affirm the termination order “absent an abuse of
discretion or unless the court’s findings of fact were clearly erroneous.”
E.R. v. DCS, 237 Ariz. 56, 58, ¶ 9 (App. 2015) (quoting Mary Lou C. v. Ariz.
Dep’t of Econ. Sec., 207 Ariz. 43, 47, ¶ 8 (App. 2004)). A finding is clearly
erroneous if no reasonable evidence supports it. Mary Lou C., 207 Ariz. at
47, ¶ 8 (quoting Maricopa Cty. Juv. Action No. JV-132905, 186 Ariz. 607, 609
(App. 1996)). This Court will not reweigh evidence because the juvenile
court, as a direct observer of the participants, is “in the best position to
weigh the evidence [and] judge the credibility of the parties.” Id. (quoting
Pima Cty. Dependency Action No. 93511, 154 Ariz. 543, 546 (App. 1987), and
citing JV-132905, 186 Ariz. at 609).
I. Reasonable Evidence Supports the Juvenile Court’s Finding that
Father Was Unable to Parent As a Result of Substance Abuse.
¶14 A parent’s rights may be terminated when “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
3 Absent material changes from the relevant date, we cite the current
version of rules and statutes.
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SHAD C. v. DCS, J.C.
Decision of the Court
a prolonged indeterminate period.” A.R.S. § 8-533(B)(3). When severance
is sought on this ground, the court must also find that DCS “made
reasonable efforts to reunify the family.”4 Jennifer G. v. Ariz. Dep’t of Econ.
Sec., 211 Ariz. 450, 453, ¶ 12 (App. 2005) (citing Mary Ellen C., 193 Ariz. at
191-92, ¶¶ 31-34).
A. Reasonable Belief That Chronic Substance Abuse Will
Continue
¶15 Father first argues that the juvenile court erred in finding clear
and convincing evidence that his substance abuse would likely continue for
a prolonged indeterminate period.5 Specifically, Father asserts the court’s
finding is inconsistent with evidence that he had achieved and maintained
sobriety throughout the proceedings leading up to and during the
severance hearing. We disagree.
¶16 In determining whether a parent’s substance abuse is likely to
persist for a prolonged indeterminate period, the juvenile court must:
4 Father suggests DCS did not make reasonable reunification efforts
because it did not facilitate therapeutic visits with Child. He does not,
however, articulate how visits with Child would have improved his ability
to parent during a period he was using amphetamines, heroin, and opiates.
Moreover, DCS “is not required to provide every conceivable service,”
Maricopa Cty. Juv. Action No. JS-501904, 180 Ariz. 348, 353 (App. 1994) (citing
Maricopa Cty. Juv. Action No. JS-5209 & No. JS-4963, 143 Ariz. 178, 189 (App.
1984)), or “undertake rehabilitative measures that are futile,” Mary Ellen C.
v. Ariz. Dep’t of Econ. Sec., 193 Ariz. 185, 192, ¶ 34 (App. 1999) (citing JS-5209,
143 Ariz. at 189).
5 Father also argues the juvenile court erred in concluding his
substance abuse was likely to continue for a prolonged indeterminate
period in the absence of expert testimony on the subject. He cites no
authority for the proposition that A.R.S. § 8-533(B)(3) requires expert
testimony on facts such as these, and we find none. See, e.g., Raymond F. v.
Ariz. Dep’t of Econ. Sec., 224 Ariz. 373, 378-79, ¶¶ 27-29 (App. 2010) (holding
that the juvenile court could reasonably conclude that a parent’s drug abuse
was likely to continue for a prolonged indeterminate period based on
evidence that the parent had a significant history of substance abuse, had
recently used drugs, and failed to participate in reunification services
designed to address substance abuse).
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SHAD C. v. DCS, J.C.
Decision of the Court
consider the treatment history of the parent to gauge the
likelihood the parent will be in a position to parent the child
in the foreseeable future. Where the parent has been unable
to rise above the addiction and experience sustained sobriety
in a noncustodial setting, and establish the essential support
system to maintain sobriety, there is little hope of success in
parenting.
Raymond F., 224 Ariz. at 378, ¶ 25 (quoting In re N.F., 579 N.W.2d 338, 341
(Iowa Ct. App. 1998)). A parent’s “temporary abstinence from drugs and
alcohol does not outweigh his significant history of abuse or his consistent
inability to abstain during [the dependency and termination proceedings].”
Id. at 379, ¶ 29. Moreover, “drug abuse need not be constant to be
considered chronic.” Id. at 377, ¶ 16. Ultimately, when determining
whether to terminate parental rights because of a parent’s chronic substance
abuse, “a child’s interest in permanency must prevail over a parent’s
uncertain battle with drugs.” Jennifer S. v. DCS, 240 Ariz. 282, 287, ¶ 17
(App. 2016) (citing Raymond F., 224 Ariz. at 379, ¶ 29).
¶17 The record reflects Father began using illegal drugs more than
ten years ago, progressing from methamphetamines to opiates to heroin.
Although Father reported he achieved sobriety prior to his incarceration,
this claim is belied by his failure to consistently engage in the one service
that would confirm his ability and commitment to remain sober: substance
abuse testing. On at least three separate occasions, Father tested positive
for some combination of heroin, amphetamines, and opiates. His use of
illegal drugs continued until he was arrested and incarcerated for drug-
related offenses, just three months before the severance hearing. Moreover,
while Father asserts that he attended meetings at Catholic Charities, emails
from the substance abuse case manager at Catholic Charities indicated she
could not “get any kind of a commitment from [Father] about meeting with
[her].”
¶18 Father presumably remained sober while serving his jail
sentence. He failed, however, to establish his ability to maintain sobriety
outside of a custodial setting for any portion of the proceedings. Father’s
short period of abstinence while incarcerated does not outweigh his
significant history of drug abuse or demonstrated inability to remain sober
outside of a custodial setting. See, e.g., Maricopa Cty. Juv. Action No. JS-
501568, 177 Ariz. 571, 577 (App. 1994) (concluding a parent’s eventual
efforts toward recovery from substance abuse, beginning eight months
prior to the severance hearing, were “too little, too late”).
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Decision of the Court
B. Inability to Discharge Parental Responsibilities
¶19 Father separately argues the juvenile court erred in finding
clear and convincing evidence that his substance abuse rendered him
unable to parent.6 To support this argument, Father relies on evidence that
he had engaged in some treatment and would have a support system in
place as well as access to further AA/NA meetings and parenting classes
upon his release.
¶20 To warrant severance under A.R.S. § 8-533(B)(3), “the juvenile
court must find that Father’s drug abuse hinders his ability to be an effective
parent.” Raymond F., 224 Ariz. at 377, ¶ 19. Within the statute, the term
“parental responsibilities” refers to “those duties or obligations which a
parent has with regard to his child.” Id. at 378, ¶ 20 (quoting Maricopa Cty.
Juv. Action No. JS-5894, 145 Ariz. 405, 408-09 (App. 1985). The term “is not
intended to encompass any exclusive set of factors but rather . . .
establish[es] a standard which permits a trial judge flexibility in considering
the unique circumstances of each termination case.” Id. (quoting JS-5894,
145 Ariz. at 409).
¶21 The record supports the juvenile court’s finding that Father is
unable to discharge parental responsibilities because of his history of
chronic substance abuse. Child was initially placed in DCS’s custody
because Father left Child with Mother, an unsafe caregiver who was driving
under the influence with Child in the car, while Father was receiving
emergency medical treatment in anticipation of entering a detox facility.
Thereafter, despite facing the imminent loss of his Child, Father
consistently failed to engage in services designed to address his substance
abuse and was ultimately incarcerated for two counts of possession of
heroin-related drug paraphernalia. These circumstances caused the DCS
case manager to opine, among other things, that Father’s continuous
struggle with polysubstance abuse had affected his ability to provide Child
with a stable, permanent home. See Raymond, 224 Ariz. at 378, ¶ 22.
¶22 We cannot say the juvenile court’s findings are inconsistent
with the extensive evidence of Father’s historical and recent drug abuse and
failure to commit to substance abuse services outside of a custodial setting,
6 Contrary to Father’s assertions otherwise, the juvenile court did
make an express finding that Father “is unable to discharge parental
responsibilities because of a history of chronic abuse of dangerous drugs,
[and/or] controlled substances.”
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Decision of the Court
thus rendering him unable to effectively parent. We find no abuse of
discretion.7
II. Reasonable Evidence Supports the Juvenile Court’s Finding That
Severance Was In Child’s Best Interests.
¶23 Termination of parental rights is in a child’s best interests if
the juvenile court finds “the child would benefit from a severance or be
harmed by the continuation of the relationship.” Maricopa Cty. Juv. Action
No. JS-500274, 167 Ariz. 1, 5 (1990) (citations omitted); accord Alma S. v. DCS,
245 Ariz. 146, 150, ¶ 13 (2018) (citing Demetrius L. v. Joshlynn F., 239 Ariz. 1,
4, ¶ 16 (2016)).
¶24 Father argues the juvenile court erred in its best-interests
determination for several reasons. First, Father argues the court should
have explored a guardianship before it ordered severance. However, he
admits guardianship “was not discussed as a possibility at trial.” Thus, the
issue of guardianship, raised for the first time on appeal, is waived. See
Kimu P. v. Ariz. Dep’t of Econ. Sec., 218 Ariz. 39, 44, ¶ 19 n.3 (App. 2008)
(declining to review arguments not raised in the juvenile court) (citing
Paloma Inv. Ltd. P’ship v. Jenkins, 194 Ariz. 133, 137, ¶ 17 (App. 1998)).
¶25 Second, Father argues this case “may have had a different
outcome” had DCS facilitated visits with Child before he was incarcerated.
To be clear, DCS had discretion to allow therapeutic visits but declined to
do so because Child was scared of Father, and the record reflects Father
continued to abuse drugs. Regardless, the circumstances do not warrant
reversal; even if visits had been appropriate and enabled Father to foster a
bond with Child, “[t]he existence and effect of a bonded relationship
between a biological parent and a child, although a factor to consider, is not
dispositive in addressing best interests.” Dominique M. v. DCS, 240 Ariz.
96, 98-99, ¶ 12 (App. 2016) (citing Bennigno R. v. Ariz. Dep’t of Econ. Sec., 233
Ariz. 345, 351, ¶ 30 (App. 2013)).
¶26 Finally, Father argues the juvenile court’s finding that
termination “would further the [current case] plan of adoption” is error
7 Because we conclude clear and convincing evidence supports
termination of Father’s parental rights on the ground of chronic substance
abuse, we need not address whether severance was warranted upon other
grounds. See Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 280, ¶ 3 (App.
2002) (citing Michael J., 196 Ariz. at 251, ¶ 27, and Maricopa Cty. Juv. Action
No. JS-6520, 157 Ariz. 238, 242 (App. 1988)).
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Decision of the Court
because it amounts to a finding that Child would be “better-off” with Uncle
than with Father.8 However, “[i]t is well established in state-initiated cases
that the child’s prospective adoption is a benefit that can support a best-
interests finding.” Demetrius L. 239 Ariz. at 4-5, ¶ 16 (citing Raymond F., 224
Ariz. at 379, ¶ 30). Indeed, “[w]hen a current placement meets the child’s
needs and the child’s prospective adoption is otherwise legally possible and
likely, a juvenile court may find that termination of parental rights, so as to
permit adoption, is in the child’s best interests.” Id. at 4, ¶ 12 (citing Mary
Lou C., 207 Ariz. at 50-51, ¶¶ 19-21, and Audra T. v. Ariz. Dep’t of Econ. Sec.,
194 Ariz. 376, 378, ¶ 6 (App. 1998)).
¶27 Here, in ruling on Child’s best interests, the juvenile court
found termination of Father’s parental rights would “further the plan of
adoption, which would [in turn] provide the child with permanency and
stability” since Child’s “parents . . . failed to work on the substance abuse
issues . . . [that, in part,] caused him to be removed from their custody.”
Additionally, the court found Child was “residing in an adoptive
placement that [wa]s meeting all of his needs” and that Child ultimately
“deserve[d] permanency and stability in a drug-free environment.” Thus,
the court did not merely consider the benefit to Child from his current
placement but also took into account Father’s history with substance abuse
and failure to seek treatment before determining it was not in Child’s best
interests to delay permanency any longer.
¶28 These findings are supported by the evidence and are
sufficient to sustain the juvenile court’s determination that severance would
benefit Child. Accordingly, the court did not err in concluding severance
was in Child’s best interests.
8 Father also argues the juvenile court failed to consider Father’s
rehabilitation efforts in its best-interests determination. See Alma S., 245
Ariz. at 151, ¶ 15 (noting “that although the focus of the best-interests
inquiry is on the child, courts should consider a parent’s rehabilitation
efforts as part of the best-interests analysis”). The record reflects, however,
that the court considered Father’s rehabilitation efforts, acknowledging that
Father claimed to have achieved sobriety, but failed to complete UA testing
or otherwise “work on the substance abuse issues . . . that caused [Child] to
be removed from [the parties’] custody.”
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SHAD C. v. DCS, J.C.
Decision of the Court
CONCLUSION
¶29 The juvenile court’s order terminating Father’s parental rights
to Child is affirmed.
AMY M. WOOD • Clerk of the Court
FILED: AA
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