Erika C. v. Dcs, I.C. ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
ERIKA C., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, I.C., Appellees.
No. 1 CA-JV 20-0343
FILED 4-15-2021
Appeal from the Superior Court in Maricopa County
No. JS20524
JD37374
The Honorable David O. Cunanan, Judge
AFFIRMED
COUNSEL
John L. Popilek PC, Scottsdale
By John L. Popilek
Counsel for Appellant
Arizona Attorney General’s Office, Phoenix
By Emily M. Stokes
Counsel for Appellee, Department of Child Safety
ERIKA C. v. DCS, I.C.
Decision of the Court
MEMORANDUM DECISION
Judge Randall M. Howe delivered the decision of the Court, in which
Presiding Judge Jennifer M. Perkins and Judge Maria Elena Cruz joined.
H O W E, Judge:
¶1 Erika C. (“Mother”) appeals the juvenile court’s order
terminating her parental rights to I.C. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Mother and Cruz T. (“Father”) are minors and the natural
parents of I.C. In April 2019, I.C. was born substance exposed to marijuana.
The Department of Child Safety investigated and found that Mother and
Father also engaged in domestic violence in I.C.’s presence. Consequently,
the Department took custody of I.C. and petitioned for dependency. The
juvenile court later found I.C. dependent and set a case plan for family
reunification.
¶3 The Department was concerned that Mother had a violent
relationship with Father, used marijuana, and was unable to provide for
I.C. To assist Mother in remedying these issues, the Department referred
her for substance-abuse testing and treatment, a psychological evaluation,
counseling, a parent aide, and transportation assistance.
¶4 Regarding substance-abuse testing, Mother initially tested
negative but then tested inconsistently, missing several randomly assigned
tests. Mother did not test at all between September and December 2019, and
her referral closed. Meanwhile, in May 2019, the Department referred
Mother to TERROS for a substance-abuse evaluation. During her
evaluation, Mother admitted to a history of domestic violence with Father,
though she claimed that they were no longer together and had no contact
with each other. She also reported that she used marijuana for stress and
sleep but claimed that she had stopped using when she discovered that she
was pregnant with I.C. The evaluator diagnosed Mother with moderate
cannabis-use disorder and recommended that she enroll in a standard
outpatient program for teenagers which included individual therapy.
Mother failed to do so, however, and her referral closed in September 2019.
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Decision of the Court
¶5 As for the other services that the Department offered her,
Mother did not complete the psychological evaluation or participate in
domestic-violence counseling. Nor did she fully engage in the parent-aide
service. Although Mother interacted appropriately with I.C. during her
visits, she tended to become overwhelmed or flustered when he was fussy
or crying, and she relied heavily on her family members to meet his needs.
She also missed several visits and was eventually required to call ahead to
confirm her attendance. Her parent-aide referral unsuccessfully closed
because she failed to meet the program goals. By December 2019, Mother
had closed out of every reunification service that the Department had
offered her.
¶6 After Mother’s parent-aide referral closed, she received visits
through a Department case aide until January 2020, when the Department
referred her to Baio Enterprises, which provided visits within walking
distance of her home. Her attendance, however, did not improve, and that
referral also closed. In February 2020, the Department referred Mother to
TERROS again for substance-abuse treatment and counseling, but Mother
did not engage.
¶7 Meanwhile, Mother and Father continued their violent
relationship. During one physical altercation, Father choked and punched
Mother and pushed her off a balcony, requiring paramedics to be called.
Mother chose not to prosecute Father and did not obtain a restraining order.
Mother admitted that during another incident, Father had punched her in
the head twice, but she did not call the police. In February 2020, Father
punched Mother in the face and broke her cell phone. When police
investigated, both Mother and the landlord told them that Mother and
Father were living together in a rented room. Again, Mother chose not to
prosecute Father or obtain an order of protection after this incident.
¶8 Accordingly, in March 2020, the juvenile court added a
concurrent case plan of severance and adoption. That same month, Mother
moved to Mexico to live with her mother, who had recently been deported.
The Department case manager asked Mother for her address so she could
set up services in Mexico, but Mother did not respond. In April 2020,
Mother moved back to Arizona and emailed the case manager. The case
manager tried to respond to Mother but could not reach her through May.
Nevertheless, the Department again referred her for substance-abuse
testing and treatment, counseling, and visitation.
¶9 In June 2020, the Department petitioned to terminate
Mother’s parental rights on grounds of chronic substance abuse and
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Decision of the Court
six- and nine-months’ out-of-home placement. That same month, Mother
completed her first drug test since August 2019, and tested positive for
THC. Over the rest of June, Mother missed a few scheduled tests and tested
positive twice more for THC. In early July, Mother tried to take a
hair-follicle test, but the testing company would not allow her to complete
it because she was not accompanied by a parent or guardian. Mother did
not complete another drug test after that. Mother also attended some visits
and completed an intake for counseling but did not attend any counseling
sessions.
¶10 Following a termination hearing, the juvenile court
terminated Mother’s parental rights on all the alleged grounds. Mother
timely appealed.
DISCUSSION
¶11 Mother asserts that the juvenile court erred by terminating
her parental rights because her only substance-abuse issue involved
marijuana, and she faced unique challenges that undermined her ability to
participate in services. For these reasons, Mother argues that the juvenile
court should have given her additional time to complete the case plan.
¶12 A parent’s right to custody and control of her own child,
while fundamental, is not absolute. Michael J. v. Ariz. Dep’t of Econ. Sec., 196
Ariz. 246, 248–49 ¶¶ 11–12 (2000). Severance of a parental relationship may
be warranted when the state proves one statutory ground under A.R.S.
§ 8-533 by “clear and convincing evidence.” Id. “Clear and convincing”
means the grounds for termination are “highly probable or reasonably
certain.” Kent K. v. Bobby M., 210 Ariz. 279, 284–85 ¶ 25 (2005). The court
also must find that severance is in the child’s best interest by a
preponderance of the evidence. Id. at 285 ¶ 29.
¶13 This Court “will accept the juvenile court’s findings of fact
unless no reasonable evidence supports those findings, and we will affirm
a severance order unless it is clearly erroneous.” Jesus M. v. Ariz. Dep’t of
Econ. Sec., 203 Ariz. 278, 280 ¶ 4 (App. 2002). We do not reweigh the
evidence, but “look only to determine if there is evidence to sustain the
court’s ruling.” Mary Lou C. v. Ariz. Dep’t of Econ. Sec., 207 Ariz. 43, 47 ¶ 8
(App. 2004).
¶14 The juvenile court may terminate parental rights to a child
who is younger than three years of age on the six-month out-of-home
placement ground if “the parent has substantially neglected or wilfully
refused to remedy the circumstances that cause the child to be in an
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Decision of the Court
out-of-home placement, including refusal to participate in reunification
services offered by” the Department. A.R.S. § 8–533(b). This termination
ground focuses on the parent’s “effort to cure the circumstances rather than
the parent’s success in actually doing so” and is based on the circumstances
“existing at the time of the severance.” Marina P. v. Ariz. Dep’t of Econ. Sec.,
214 Ariz. 326, 329–30 ¶¶ 20, 22 (App. 2007). Termination is appropriate
when a parent fails to make “appreciable, good faith efforts to comply with
remedial programs” or “makes only sporadic, aborted attempts to remedy”
the circumstances causing the out-of-home placement. Maricopa Cty. Juv.
Action No. JS-501568, 177 Ariz. 571, 576 (App. 1994).
¶15 Here, the juvenile court found that Mother substantially
neglected or willfully refused to engage in reunification services, in
particular the services aimed at helping her remedy her substance-abuse
and domestic-violence issues. Mother does not specifically challenge these
findings, and they are supported by reasonable evidence in the record.
¶16 Instead, Mother argues that her marijuana use should not be
the basis for the termination order because she was using it for depression
and anxiety, her most recent positive tests were inaccurate, and she was
unable to complete a hair-follicle test. Mother, however, did not have a
medical marijuana card or a designated caregiver under the Arizona
Medical Marijuana Act. See A.R.S. § 36–2801(2), (5). Nor was there evidence
that she was diagnosed with a “debilitating medical condition” as the Act
requires. See A.R.S. § 36–2801(3). Her use of marijuana therefore remained
illegal, and moreover, she and I.C. tested positive for THC at his birth.
Considering these facts, the Department reasonably required Mother to
comply with substance-abuse testing and treatment. Then, even knowing
substance abuse was one of the Department’s concerns, Mother used
marijuana in March 2020, while she was in Mexico.
¶17 As she did during the termination hearing, Mother disputes
her three positive tests in June 2020, and contends that she did not use
marijuana after she returned from Mexico. But the juvenile court
considered and apparently rejected Mother’s testimony to that effect. See
Mary Lou C., 207 Ariz. at 47 ¶ 8 (this Court does not reweigh the evidence
on appeal). Mother also asserts that she wanted to take a hair-follicle test to
prove her sobriety but could not do so for reasons beyond her control.
However, Mother had over a year of opportunities to show her sobriety
through urinalysis testing, including opportunities to test after her positive
results in June 2020, and she did not do so.
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Decision of the Court
¶18 Moreover, Mother’s arguments brush over her
domestic-violence issues with Father, which she also failed to remedy. The
record is clear that Father assaulted Mother multiple times even after I.C.
was removed from her care. She did not engage in counseling designed to
address these issues, and she had contact with Father even after he severely
injured her. She also actively resisted assisting police in prosecuting Father
or obtaining an order of protection. At the termination hearing, Mother
minimized the February 2020 domestic violence incident, denying that
Father had punched her in the face or that they were living together at the
time—both facts that she had previously admitted to police. Reasonable
evidence supports the juvenile court’s order terminating Mother’s parental
rights on the six-month out-of-home placement ground and we need not
address the other termination grounds. See Crystal E. v. Dep’t of Child Safety,
241 Ariz. 576, 578 ¶ 5 (App. 2017).1
CONCLUSION
¶19 For the foregoing reasons, we affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
1 Mother does not challenge the juvenile court’s finding that
termination of her parental rights was in I.C.’s best interests.
6