Jeremy M. v. Dcs, B.P. ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
JEREMY M., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, B.P., Appellees.
No. 1 CA-JV 20-0199
FILED 12-10-2020
Appeal from the Superior Court in Maricopa County
No. JD37717
The Honorable Randall M. Warner, Judge
AFFIRMED
COUNSEL
John L. Popilek, P.C., Scottsdale
By John L. Popilek
Counsel for Appellant
Arizona Attorney General’s Office, Phoenix
By Sandra L. Nahigian
Counsel for Appellee Department of Child Safety
JEREMY M. v. DCS, B.P.
Decision of the Court
MEMORANDUM DECISION
Judge D. Steven Williams delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge David D. Weinzweig
joined.
W I L L I A M S, Judge:
¶1 Jeremy M. (“Father”) appeals the juvenile court’s order
terminating his parental rights to his child, B.P. For reasons that follow, we
affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 Father and Tawnee P. (“Mother”)1 are the biological parents
of B.P., born in 2019. At birth, B.P. was substance exposed to amphetamines,
opiates, and methadone. Mother admitted to using methamphetamine and
heroin during her pregnancy, including using heroin with Father. Eleven
days after B.P.’s birth, Father was released from prison for a drug-related
felony conviction and then spent the next month in a half-way house.
¶3 The Department of Child Safety (“DCS”) took custody of B.P.
within days after birth, placing the child with a maternal cousin. DCS filed
a dependency petition, and the juvenile court found B.P. dependent as to
both parents. As part of the family reunification case plan, DCS referred
Father to Terros for substance abuse treatment, random drug testing, and
mental health counseling, while recommending visitation and making
transportation available. Although Father completed an initial assessment,
he failed to participate in the recommended outpatient substance abuse
treatment and strayed from his drug testing, often missing scheduled tests.
Father’s supervised visits with B.P. were also inconsistent, with Father
canceling many times.
¶4 DCS made a second referral of Father to Terros. After the
second referral, Father received one urinalysis drug test, which was
positive for fentanyl, and then did not test again, failing to complete the
program. In March 2020, after the juvenile court changed the case plan to
1Mother’s parental rights were also terminated, but she is not a party to this
appeal.
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JEREMY M. v. DCS, B.P.
Decision of the Court
severance and adoption, DCS moved to terminate Father’s parental rights
on grounds of chronic substance abuse and six months in an out-of-home
placement. After a severance adjudication hearing, the juvenile court
terminated Father’s parental rights.
¶5 This timely appeal followed. We have jurisdiction pursuant
to Article 6, Section 9, of the Arizona Constitution, A.R.S. §§ 8-235(A),
12-120.21(A)(1), -2101(A)(1), and Arizona Rule of Procedure for the Juvenile
Court 103(A).
DISCUSSION
¶6 We review a severance ruling for an abuse of discretion,
accepting the court’s factual findings unless clearly erroneous, Mary Lou C.
v. Ariz. Dep’t of Econ. Sec., 207 Ariz. 43, 47, ¶ 8 (App. 2004), and view the
evidence in the light most favorable to sustaining the court’s ruling, Manuel
M. v. Ariz. Dep’t of Econ. Sec., 218 Ariz. 205, 207, ¶ 2 (App. 2008). Because the
juvenile court “is in the best position to weigh the evidence, observe the
parties, judge the credibility of witnesses, and resolve disputed facts,” we
will affirm an order terminating parental rights if reasonable evidence
supports the order. Jordan C. v. Ariz. Dep’t of Econ. Sec., 223 Ariz. 86, 93, ¶ 18
(App. 2009) (quoting Ariz. Dep’t of Econ. Sec. v. Oscar O., 209 Ariz. 332, 334,
¶ 4 (App. 2004)).
¶7 “To justify termination of the parent-child relationship, the
[juvenile] court must find, by clear and convincing evidence, at least one of
the statutory grounds set out in [A.R.S. §] 8-533,” Michael J. v. Ariz. Dep’t of
Econ. Sec., 196 Ariz. 246, 249, ¶ 12 (2000), which include chronic substance
abuse, A.R.S. § 8-533(B)(3), and six months in an out-of-home placement for
a child under age three, A.R.S. § 8-533(B)(8)(b). The court must also find, by
a preponderance of the evidence, that termination is in the best interests of
the child, Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 22 (2005).
I. DCS’s Reasonable and Diligent Efforts to Reunify
¶8 Termination on grounds of chronic substance abuse under §
8-533(B)(3), or out-of-home placement under § 8-533(B)(8)(b), require DCS
to prove it has made reasonable and diligent efforts to provide appropriate
reunification services. A.R.S. § 8-533(B)(8) (a diligent effort to reunify is a
statutory requirement for out-of-home placement grounds); Jennifer G. v.
Ariz. Dep’t of Econ. Sec., 211 Ariz. 450, 453 ¶ 12 (App. 2005) (“To order
severance on [chronic substance abuse] ground[s], the juvenile court must
also have found that [DCS] had made reasonable efforts to reunify the
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JEREMY M. v. DCS, B.P.
Decision of the Court
family. . . .”). DCS fulfills its statutory mandate when it provides a parent
with the time and opportunity to participate in programs designed to help
him or her become a minimally adequate parent. Maricopa Cnty. Juv. Action
No. JS-501904, 180 Ariz. 348, 353 (App. 1994).
¶9 Father argues DCS’s efforts to reunify the family were futile
because DCS failed to properly accommodate Father’s nighttime work
schedule. However, “[DCS] is not required to provide every conceivable
service or to ensure that a parent participates in each service it offers.” Id.While Father’s schedule may have been challenging, Terros provided a
variety of schedules to meet Father’s specific needs. DCS demonstrated its
willingness to accommodate when, at Father’s request, services were
transferred to a different location for his convenience. Additionally, when
Father failed to complete his case plan, DCS re-referred him for the same
services.
¶10 Based on this record, DCS made reasonable and diligent
efforts to reunify the family by providing Father with services, including
substance abuse treatment and groups, random drug testing, mental health
counseling, visitation with B.P., and transportation.
II. Chronic Substance Abuse
¶11 Termination of a parent-child relationship can occur when a
parent cannot discharge parental responsibilities due to a history of chronic
substance abuse, and there are reasonable grounds to believe this condition
will continue for a prolonged indeterminate period. A.R.S. § 8-533(B)(3).
¶12 Father failed to consistently participate in substance abuse
services provided by DCS. Nevertheless, he argues his participation in
substance abuse treatment in prison, AA and NA sessions, methadone
treatments and testing shows no reasonable grounds existed to terminate
his parental rights based upon his substance abuse.
¶13 “Chronic substance abuse is long-lasting but not necessarily
constant substance abuse.” Jennifer S. v. Dep’t of Child Safety, 240 Ariz. 282,
287, ¶ 17 (App. 2016). The record shows Father’s long-lasting history of
drug abuse. Father was convicted of a drug-related offense involving
heroin and thus imprisoned at B.P.’s birth. Father admitted to using drugs
before he was imprisoned, including heroin with Mother while she was
pregnant with B.P. Father also tested positive for fentanyl during the
dependency and then refused to undergo further drug testing. While Father
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JEREMY M. v. DCS, B.P.
Decision of the Court
insists he participated in programs, treatment, and testing outside of DCS’s
recommended services, he provided no evidence to support his testimony.
¶14 “[A] child’s interest in permanency must prevail over a
parent’s uncertain battle with drugs.” Id. On this record, sufficient evidence
supports the court’s finding that Father cannot discharge parental
responsibilities because of his chronic substance abuse and will be unable
to for a prolonged indeterminate period.
III. Six Months in Out-of-Home Placement
¶15 Termination of the parent-child relationship can occur when
a child under the age of three has been in out-of-home placement for a total
of six months or longer and the parent has “substantially neglected or
willfully refused to remedy the circumstances . . . including refusal to
participate in reunification services offered by the department.” A.R.S.
§ 8-533(B)(8)(b).
¶16 The record shows B.P. was in an out-of-home placement for
11 months at termination of Father’s parent-child relationship.
Nevertheless, because we affirm the juvenile court’s order on statutory
grounds of chronic substance abuse, we need not address whether
termination was appropriate under six-months in an out-of-home
placement under A.R.S. 8-533(B)(8)(b). See Jesus M. v. Ariz. Dep’t. of Econ.
Sec., 203 Ariz. 278, 280, ¶ 3 (App. 2002) (“If clear and convincing evidence
supports any one of the statutory grounds on which the juvenile court
ordered severance, we need not address claims pertaining to the other
grounds.”). Father has not challenged the court’s finding that termination
of Father’s parental rights was in B.P.’s best interests and the trial evidence
fully supports that finding.
CONCLUSION
¶17 For the foregoing reasons, we affirm the juvenile court’s order
terminating Father’s parental rights to B.P.
AMY M. WOOD • Clerk of the Court
FILED: AA
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