Easter D. v. Dcs, S.T. ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
EASTER D.,
Appellant,
v.
DEPARTMENT OF CHILD SAFETY, S.T.,
Appellees.
No. 1 CA-JV 21-0071
FILED 9-28-2021
Appeal from the Superior Court in Maricopa County
No. JD12719
The Honorable Robert Ian Brooks, Judge
AFFIRMED
COUNSEL
Maricopa County Public Advocate, Mesa
By Suzanne W. Sanchez
Counsel for Appellant
Arizona Attorney General's Office, Phoenix
By Sandra L. Nahigian
Counsel for Appellee
EASTER D. v. DCS, S.T.
Decision of the Court
MEMORANDUM DECISION
Judge James B. Morse Jr. delivered the decision of the Court, in which
Presiding Judge D. Steven Williams and Judge David B. Gass joined.
M O R S E, Judge:
¶1 Easter D. ("Mother") appeals the superior court's order
terminating her parental rights to S.T. For the following reasons, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 Mother and Sonny T. ("Father") are the biological parents of
S.T. ("Child"), born in October 2019. Mother has an extensive history with
the Department of Child Safety ("DCS") going back to 2003. Mother's
parental rights have been terminated to nine other children because of her
substance abuse and mental-health issues.
¶3 In October 2019, DCS received a report that Mother tested
positive for cocaine seven times during her pregnancy and the Child was
born exposed to cocaine. Mother admitted smoking cocaine twice during
the pregnancy. The Department took custody of the Child, placed him with
a family that had adopted one of his biological siblings, and filed a
dependency petition. In December 2019, the juvenile court found the Child
dependent and set a case plan of family reunification.
¶4 DCS offered Mother numerous services throughout the
dependency, including weekly supervised visits, parent-aide services, a
psychological evaluation, counseling, substance-abuse treatment at Terros
(a drug treatment program), and substance-abuse testing.
¶5 Dr. Al Silberman conducted a psychological evaluation with
Mother in January 2020. He noted diagnoses for PTSD, bipolar, anxiety,
and depression. He also noted that Mother denied using substances and
she was "unable to recognize how her drug use affects her children." Dr.
Silberman recommended counseling, and treatment for her substance
abuse and PTSD. He also recommended a psychiatric evaluation once
Mother was substance free for at least three months. Dr. Silberman
indicated a poor prognosis for Mother to be able to parent the Child safely
in the foreseeable future.
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EASTER D. v. DCS, S.T.
Decision of the Court
¶6 DCS referred Mother to Terros twice before she attended an
intake in January 2020. The evaluator diagnosed Mother with cocaine use
with mood disorder, adjustment disorder with mixed anxiety, and
depressed mood. The evaluator recommended a treatment plan, but
Mother failed to attend any group sessions in January, tested positive for
cocaine three times, and missed her medication-management appointment.
Mother also failed to attend a February treatment session, despite receiving
transportation services. When a Terros counselor contacted Mother to
reschedule, Mother hung up the phone. Because it was Mother's third
consecutive missed appointment, Terros sent a ten-day closure letter.
Mother did not respond and was closed out in March for lack of
engagement.
¶7 In July, DCS referred Mother to Terros for a third time, but
Mother failed to complete the intake procedure. In September, DCS
referred Mother to Terros for a fourth time, but she did not complete the
intake until November. Mother attended some group sessions but tested
positive for cocaine twice in December. Terros closed out Mother's referral
after she declined further services.
¶8 Between March and May, Mother completed only ten of
twenty visits with the Child and five of twenty skills sessions with the
parent aide. The parent-aide referral unsuccessfully closed in June 2020.
Mother inconsistently visited with the Child during the remainder of 2020.
¶9 In August 2020, the court changed the case plan to
termination and adoption, and DCS moved to terminate Mother's parental
rights on the grounds of chronic substance abuse and six-months in an out-
of-home placement. The juvenile court held a four-day trial in February
2021. It heard testimony from Mother, Father, the DCS caseworker, and Dr.
Silberman.
¶10 During her testimony, Mother admitted using cocaine while
she was pregnant with the Child and that she understood it was dangerous
for the baby, but she minimized the need to address her substance abuse.
During the dependency, Mother took only eleven of seventy-six scheduled
drug tests, and tested positive for cocaine seven times. Dr. Silberman
testified that the primary concern was Mother's substance abuse, which
needed to be addressed before dealing with her other issues. He also
testified that Mother is bipolar with psychosis and has below-average
intelligence, but is not mentally handicapped or developmentally disabled.
Dr. Silberman noted that Mother's regression after receiving substance-
abuse services had "nothing to do with her intelligence." He concluded that
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EASTER D. v. DCS, S.T.
Decision of the Court
even if Mother completed all the recommended services, he would remain
"concerned because she's had such a long history and lost so many other
children." The DCS caseworker testified that the main concern with
Mother's parenting was her substance abuse, and that Mother had failed to
demonstrate enough sobriety to reunify her with the Child.
¶11 In February 2021, the juvenile court granted DCS's
termination motion on the substance-abuse ground but not the out-of-home
placement ground. The court found that DCS made reasonable
reunification efforts and "appropriate reasonable accommodations." The
court noted that (1) Mother only minimally engaged in substance-abuse
testing and treatment; (2) Mother failed to attend numerous parent-aide
appointments despite the parent aide's effort to find locations close to
Mother's residence; (3) DCS provided Mother with transportation services;
and (4) DCS attempted to obtain a new phone for Mother. Although the
court stated that DCS "could have done more," the court concluded that
Mother's "failure to participate fully with Terros and her parent-aide left
[DCS] unable to assist her further."
¶12 Mother timely appealed. The juvenile court also terminated
Father's parental rights, but he is not a party to this appeal. We have
jurisdiction under A.R.S. §§ 8-235(A), 12-120.21(A)(1), and -2101(A)(1).
DISCUSSION
¶13 A parent's right to custody and control of her child is
fundamental, but not absolute. Michael J. v. Ariz. Dep't of Econ. Sec., 196
Ariz. 246, 248-49, ¶¶ 11-12 (2000). The juvenile court may terminate a
parent's rights if it finds, "by clear and convincing evidence, at least one of
the statutory grounds set out in section 8-533," and by a preponderance of
the evidence that termination is in the child's best interests. Id. at ¶ 12; Ariz.
R.P. Juv. Ct. 66(C). 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." Jordan C. v. Ariz. Dep't of Econ. Sec.,
223 Ariz. 86, 93, ¶ 18 (App. 2009) (citation omitted). We review a
termination order for an abuse of discretion and will affirm the order unless
"there is no reasonable evidence" to support the decision. Mary Lou C. v.
Ariz. Dep't of Econ. Sec., 207 Ariz. 43, 47, ¶ 8 (App. 2004) (citation omitted).
¶14 The juvenile court may terminate parental rights if the parent
has a history of chronic substance abuse, is unable to discharge parental
responsibilities due to chronic substance abuse, and reasonable grounds
exist to believe that the abuse will continue for a prolonged and
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EASTER D. v. DCS, S.T.
Decision of the Court
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). When seeking termination under
the substance-abuse ground, DCS is required to make reasonable efforts to
provide the parent with appropriate reunification services. Jennifer G. v.
Ariz. Dep't of Econ. Sec., 211 Ariz. 450, 453, ¶ 12 (App. 2005). DCS meets its
obligation by providing the parent with "the time and opportunity to
participate in programs designed to help her become an effective parent."
Maricopa Cnty. Juv. Action No. JS-501904, 180 Ariz. 348, 353 (App. 1994).
DCS, however, is only obligated to provide services that have "a reasonable
prospect of success." Mary Ellen C. v. Ariz. Dep't of Econ. Sec., 193 Ariz. 185,
192, ¶ 34 (App. 1999).
¶15 Mother does not dispute the statutory ground of substance
abuse and that termination is in the Child's best interests. Instead, Mother
argues the juvenile court erred in finding that DCS made a diligent effort to
reunify Mother with her child.
¶16 First, Mother disputes the juvenile court's finding that she
failed to participate fully with Terros, asserting that she was "actively
participating in Terros services." But Mother's failure to participate is
supported by the record. Mother failed to participate in intake with Terros
for her first referral, and Terros closed Mother out of her second referral
after multiple absences. Mother then failed to use her next referral. See
Yvonne L. v. Ariz. Dep't of Econ. Sec., 227 Ariz. 415, 423, ¶ 34 (App. 2011)
(noting DCS "cannot force a parent to participate in recommended
services"). Although Mother's participation improved somewhat after DCS
moved to terminate Mother's rights, she continued to test positive for
cocaine, missed appointments, and she was no longer active in Terros by
the time of trial. Cf. Maricopa Cnty. Juv. Action No. JS–501568, 177 Ariz. 571,
577 (App. 1994) (upholding termination where parent's successful efforts to
overcome drug addiction were "too little, too late").
¶17 Mother blames her minimal participation on accessibility
issues. But the record reveals DCS made numerous attempts to
accommodate Mother. See Vanessa H. v. Ariz. Dep't of Econ. Sec., 215 Ariz.
252, 256, ¶ 20 (App. 2007) (viewing "reasonable accommodations as a
component of making 'reasonable efforts'"). DCS's efforts included
attempting to reschedule sessions and providing transportation. When
Mother told DCS her limited mobility made riding the bus difficult, DCS
provided Mother taxi services. The DCS caseworker testified that after
Mother pawned her phone, she attempted "to help [Mother] get a phone."
But "[b]y the time that [she] figured out how to do that . . . [Mother] already
had a phone again." The DCS caseworker also testified that she would
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EASTER D. v. DCS, S.T.
Decision of the Court
speak to Mother on Father's phone. When asked by her Terros therapist
why she failed to call into her drug testing, Mother said that she did not
have a reason.
¶18 Mother also asserts that her lack of participation was because
DCS failed to accommodate her disability, specifically that "DCS failed to
inform the parent-aide service-provider about Mother's intellectual
functioning level." But the record reflects that the parent aide was aware
that Mother had mental-health issues. Mother also argues she never
received the trauma counseling recommended by Dr. Silberman. But Dr.
Silberman testified that Mother needed to address her substance abuse first,
and Terros required eight group classes before Mother could start one-on-
one trauma counseling. Mother still had not completed this requirement
by the time of trial, 14 months after the dependency began. See Raymond F.,
224 Ariz. at 378, ¶ 25 (noting that children should not be forced to wait
inordinately for a parent to develop necessary parenting skills).
¶19 Viewing the record in the light most favorable to sustaining
the juvenile court's findings, Jordan C., 223 Ariz. at 93, ¶ 18, the court did
not abuse its discretion in finding that DCS made reasonable efforts to
provide Mother with appropriate reunification services.
CONCLUSION
¶20 For the foregoing reasons, we affirm the juvenile court's order
terminating Mother's parental relationship with the Child.
AMY M. WOOD • Clerk of the Court
FILED: AA
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