Elisa R. v. Dcs, C.J. ( 2021 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
ELISA R., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, C.J., Appellees.
No. 1 CA-JV 20-0222
FILED 1-14-2021
Appeal from the Superior Court in Maricopa County
No. JD38611
The Honorable Sam J. Myers, Judge
AFFIRMED
COUNSEL
Czop Law Firm, PLLC, Higley
By Steven Czop
Counsel for Appellant
Arizona Attorney General’s Office, Phoenix
By Sandra L. Nahigian
Counsel for Appellee Department of Child Safety
ELISA R. v. DCS, C.J.
Decision of the Court
MEMORANDUM DECISION
Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Jennifer M. Perkins and Judge Randall M. Howe joined.
C R U Z, Judge:
¶1 Elisa R. (“Mother”) appeals the superior court’s order
adjudicating her child, C.J., dependent based on substance abuse and
domestic violence. For the following reasons, we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 Mother is the biological parent of C.J., born September 2009.
Since C.J.’s birth, Mother has a history of reports to the Department of Child
Safety (“DCS”) involving substance abuse, domestic violence, physical
abuse, and mental health concerns.
¶3 In October 2019, DCS received a report that Mother was
involved in a domestic violence incident with her boyfriend in C.J.’s
presence. DCS removed C.J. from Mother’s custody and filed a dependency
petition. The juvenile court dismissed the dependency in November 2019,
and awarded C.J.’s biological father (“Father”)1 custody and temporary sole
decision-making authority after Father tested negative for substances and
was deemed appropriate to care for C.J. The court also ordered Mother
have supervised parenting time.
¶4 Shortly after, Father left C.J. in the care of maternal
grandmother and was later arrested on drug-related charges. In February
2020, Mother sought custody of C.J. in the family court. Unaware of the
substance abuse history of both parents, the court granted Mother and
Father joint custody. A few days later, DCS received a report expressing
concern for C.J. and notifying DCS of the custody orders. DCS filed another
dependency petition in March 2020, alleging C.J. was dependent as to
Father due to neglect and substance abuse, and dependent as to Mother due
to substance abuse, mental health, and domestic violence.
¶5 Mother was offered mental health services, drug testing,
substance abuse counseling, a parent aide, domestic violence counseling, a
1 Father is not a party to this appeal.
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ELISA R. v. DCS, C.J.
Decision of the Court
psychological evaluation, and supervised visits. At the dependency
hearing, the court heard testimony about Mother’s participation with
services and her cooperation with DCS. The parent aide testified that
Mother had violated rules during her visitations by discussing
inappropriate topics with C.J. and becoming combative when the parent
aide attempted to redirect the conversation. The aide also testified Mother
had made threats of violence towards DCS case managers. However, a DCS
case worker testified that recent visits had started to go better, and that
Mother had been able to behave appropriately and demonstrate emotional
stability.
¶6 At the hearing, Mother acknowledged she had used
methamphetamine in the past, though she was unable to recall the last time
she had used and could not remember if she had used this year. Mother
testified she had completed an intake for her substance abuse treatment,
though she refused the counseling sessions because they were being
conducted telephonically. Mother had several clean drug tests leading up
to the hearing, but witnesses testified that Mother had missed several tests
and had not complied with a court order to submit to a hair follicle test.
¶7 A DCS case worker testified that Mother refused to
participate in a psychological evaluation and had not participated in any
domestic violence services through DCS. The DCS caseworker also testified
that Mother was not cooperative or forthcoming with DCS, and so DCS was
unsure whether Mother was living with the boyfriend who had physically
abused her. Finally, a witness testified that Mother had been seeking
mental health services since 2017, though she was recommended to
participate in counseling sessions weekly and she only participated about
once a month.
¶8 The juvenile court found C.J. dependent as to Mother due to
substance abuse and domestic violence. Mother timely appealed. This
court has jurisdiction pursuant to Arizona Revised Statutes (“A.R.S.”)
sections 8-235(A), 12-120.21(A)(1), and 12-2101(A)(1).2
2 Though neither party argues that the superior court lacked
jurisdiction in this matter, in its answering brief, DCS recognized there may
be a question as to whether Arizona has jurisdiction over this matter under
the Uniform Child Custody Jurisdiction and Enforcement Act because of
Mother’s involvement with Texas child protective services in 2017. See
A.R.S. §§ 25-1001 to -1067. The record is unclear about the extent of the
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Decision of the Court
DISCUSSION
¶9 Mother contends the court erred in finding C.J. dependent
because there was no substantial evidence to support such a finding.3 “On
review of an adjudication of dependency, we view the evidence in the light
most favorable to sustaining the juvenile court’s findings.” Willie G. v. Ariz.
Dep’t of Econ. Sec., 211 Ariz. 231, 235, ¶ 21 (App. 2005). We review a
dependency order for a clear abuse of discretion, and we generally will not
disturb a dependency adjudication unless it is clearly erroneous and no
reasonable evidence supports it. Louis C. v. Dep’t of Child Safety, 237 Ariz.
484, 488, ¶ 12 (App. 2015).
¶10 For a child to be found dependent, DCS must prove by a
preponderance of the evidence one of the grounds found in A.R.S. § 8-
201(15). A.R.S. § 8-844(C). Under A.R.S. § 8-201(15)(a), a dependent child
is a child:
(i) In need of proper and effective parental care and control
and who has no parent or guardian, or one who has no parent
or guardian willing to exercise or capable of exercising such
care and control.
....
(iii) A child whose home is unfit by reason of abuse, neglect,
cruelty or depravity by a parent, a guardian or any other
person having custody or care of the child.
Texas courts’ involvement with C.J. and the authority it may have exercised
in issuing orders involving C.J. However, given Mother’s involvement
with DCS in Arizona since 2009 and her ongoing Arizona family court case
since 2011, it appears the State of Arizona had initial child custody
jurisdiction and thus has exclusive continuing jurisdiction over C.J. See
A.R.S. §§ 25-1031, -1032.
3 Mother also argues the superior court failed to include its specific
findings of fact in a written order, as is required under Arizona Rule of
Procedure for the Juvenile Court 55(E)(3). However, at DCS’ request, this
Court previously remanded this matter to the superior court and it
subsequently issued a written order that included specific findings of fact
in support of the dependency findings. This issue is therefore moot. See
Cardoso v. Soldo, 230 Ariz. 614, 617, ¶ 5 (App. 2012).
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ELISA R. v. DCS, C.J.
Decision of the Court
¶11 The juvenile court found C.J. dependent because Mother was
unable to provide proper and effective parental care and control due to
substance abuse and domestic violence.
I. Substance Abuse
¶12 Mother contends that at the time of the filing of the
dependency petition, no evidence showed she had a substance abuse
problem hindering her ability to parent C.J. At most, Mother argues, there
was a mention of possible drug use months before the dependency filing,
and speculative risk of drug abuse is insufficient to support a dependency
finding.
¶13 Mother has a history of substance abuse issues, and her failure
to be forthcoming and honest in this dependency raises concerns about her
ability to overcome her addiction and parent C.J. at this time. Mother has
stated she did not believe her drug use has affected her life at all, and she
has attempted to minimize her history of drug use. While Mother
previously admitted to using methamphetamine daily, during her intake
for substance abuse counseling in April 2020 she claimed she had used
methamphetamine for “only a little bit over a short period of time.”
¶14 When Mother last used methamphetamine or other illicit
substances is also unclear. In December 2019, Mother attended counseling
as part of her mental health services, and she reported that she last used
methamphetamine in October 2019. In March 2020, she reported to DCS
that she last used methamphetamine “a few months ago.” In her April 2020
intake, Mother was again vague with her timeline and admitted to using
methamphetamine a few months prior. At trial, Mother stated she could
not remember the last time she had used methamphetamine, and she could
not remember if she had used methamphetamine in 2020.
¶15 Mother contends she had tested negative for illicit substances
for two months at the time of the dependency trial; however, Mother failed
to test six times from March through June 2020. Mother also failed to
submit to a court-ordered hair follicle test. In any event, Mother’s
“temporary abstinence from drugs” does not outweigh her significant
history of drug abuse. See Raymond F. v. Ariz. Dep’t of Econ. Sec., 224 Ariz.
373, 379, ¶ 29 (App. 2010). In determining whether a parent would be able
to overcome her substance abuse and “be in a position to parent the child
in the foreseeable future,” the court must also consider “the treatment
history of the parent.” Id. at 378, ¶ 25 (citation omitted). When the parent
has been unable to “experience sustained sobriety in a noncustodial setting,
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Decision of the Court
and establish the essential support system to maintain sobriety, there is
little hope of success in parenting.” Id. As the DCS case worker testified at
the dependency hearing, two months of negative tests in a custodial setting
is insufficient to demonstrate long-term sobriety.
¶16 Additionally, Mother’s participation in other substance abuse
services at the time of the dependency proceedings had not been consistent.
She refused to participate in substance abuse counseling because the group
sessions were being held virtually or telephonically. However, she was
participating in other therapy sessions and DCS services remotely.
Through continued participation in services and consistent testing, Mother
can eventually demonstrate long-term sobriety. At this time, however,
sufficient evidence supports the superior court’s dependency ruling.
II. Domestic Violence
¶17 Mother argues evidence of her involvement in a domestic
violence relationship did not support a finding that she could not parent
C.J. Mother contends DCS presented no evidence of domestic violence
occurring at the time of the filing of the dependency petition, and no
evidence supported a finding that a threat of domestic violence was
unresolved or posed an imminent risk of harm to C.J. “[C]ontrary to
Mother’s assertion, domestic violence need not be continuous or actively
occurring at the time of the adjudication hearing to support a finding of
dependency on these grounds; the substantiated and unresolved threat is
sufficient.” Shella H. v. Dep’t of Child Safety, 239 Ariz. 47, 51, ¶ 16 (App.
2016). Sufficient evidence showed that the threat of domestic violence
remained unresolved.
¶18 Mother has acknowledged she has a history of being involved
in violent relationships. In 2013, Mother pled guilty to a domestic violence
offense, and was required to complete a counseling program. In 2017,
Mother admitted to again being involved in a physically abusive
relationship. In 2018, Mother was arrested for a domestic violence offense
and, after pleading guilty, was required to complete another diversion
program. In October 2019, Mother reportedly suffered bruising around an
eye as a result of an assault by her boyfriend, and in December 2019, Mother
was hospitalized due to another domestic violence incident. Also, through
at least January 2020, Mother was living in a shelter for domestic violence
victims.
¶19 Even after her participation in two domestic violence
counseling programs, Mother continued to remain in physically abusive
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Decision of the Court
relationships and engage in violence in the presence of C.J. C.J. has
witnessed fights between Mother and her boyfriend, and he has even
intervened, placing himself between Mother and her boyfriend in an
attempt to stop the fighting. C.J. also expressed to DCS caseworkers that
he was fearful when witnessing altercations between his Mother and her
boyfriend. At the dependency hearing, witnesses testified that Mother
would not tell DCS whether she was again living with her boyfriend or
maintaining a relationship with him, or was participating in domestic
violence counseling services. Given Mother’s history of continued
involvement in violent relationships and failure to engage in services
during this dependency, the court did not err in finding the threat of harm
to C.J. was unresolved and imminent.
¶20 Though Mother argues she has a stable job and residence, and
has taken appropriate steps in the family court to obtain parenting time and
custody over C.J., this does not mitigate the court’s substance abuse and
domestic violence concerns. While Mother in recent months had been more
cooperative with DCS and was participating in services, the superior court
found she had not yet remedied the circumstances that caused C.J. to be
found dependent, and we find no error.
CONCLUSION
¶21 For the foregoing reasons, we affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
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