In Re Term of Parental Rights as to J.S. ( 2023 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
IN RE TERMINATION OF PARENTAL RIGHTS AS TO J.S.
No. 1 CA-JV 23-0067
FILED 8-17-2023
Appeal from the Superior Court in Mohave County
No. S8015JD202200039
The Honorable Rick A. Williams, Judge
AFFIRMED
COUNSEL
Your AZ Lawyer, Phoenix
By Robert Ian Casey
Counsel for Appellant
Arizona Attorney General’s Office, Tucson
By Dawn Rachelle Williams
Counsel for Appellee Department of Child Safety
Mohave County Legal Advocate, Kingman
By Bobbie Shin
Counsel for Appellee J.S.
IN RE TERM OF PARENTAL RIGHTS AS TO J.S.
Decision of the Court
MEMORANDUM DECISION
Judge Michael S. Catlett delivered the decision of the Court, in which
Presiding Judge David D. Weinzweig and Judge Maria Elena Cruz joined.
C A T L E T T, Judge:
¶1 Kathleen M. (“Mother”) appeals the juvenile court’s order
terminating her parental rights to her child, J.S. The juvenile court
concluded the Department of Child Safety (the “Department”) established
by clear and convincing evidence that Mother is unable to discharge
parental responsibilities because of chronic drug abuse, inability to stay
sober outside a rehabilitation facility, and reasonable grounds to believe
that the condition will continue for a prolonged and indeterminate period.
See A.R.S. § 8-533(B)(3). The court also found the Department established
by a preponderance of the evidence that termination is in the child’s best
interests. Because Mother did not request additional services or object to
the services the Department provided before the termination hearing, she
waived this issue on appeal. And because the court made legally sufficient
factual findings for termination, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 J.S. was born on January 29, 2022 with severe medical issues
including a cleft palate and difficulty breathing. Mother tested positive for
amphetamines upon admission to the hospital and admitted consuming
marijuana and alcohol before going into labor. J.S. was born substance
exposed to methamphetamines, THC, and alcohol. J.S. has undergone
reconstructive surgery to treat his cleft palate and will require additional
surgery in the future. Due to J.S.’s medical issues, he sleeps with an oxygen
monitor and must sleep on his side or at a 45-degree angle. On February
16, 2022, J.S. was taken into temporary custody by the Department because
of Mother’s “[s]ubstance abuse issues” and “[u]nwillingness or inability . .
. to care for [J.S.]”
¶3 In August 2022, the juvenile court made a dependency
finding that Mother was “unwilling or unable to provide proper and
effective parental care and control by neglecting the child due to substance
abuse.” The juvenile court also acknowledged Mother was unable to
provide proper and effective parental care because of her inability to treat
her mental health concerns.
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IN RE TERM OF PARENTAL RIGHTS AS TO J.S.
Decision of the Court
¶4 The Department provided Mother with several services,
including behavioral health and substance abuse assessments and
treatment. Mother entered multiple different rehabilitation programs but
did not remain sober. Mother tested positive through a hair follicle test for
methamphetamine in August 2022. Mother was also admitted to multiple
behavior health facilities but failed to complete the programs.
¶5 Mother had supervised visits with J.S. where she arrived
smelling of alcohol or J.S. returned smelling of stale cigarettes. Following
one visit, J.S. had what appeared to be motor oil on him and his clothing.
On three separate occasions Mother failed to show up for a scheduled visit
and her referral was closed due to lack of engagement.
¶6 In December 2022, the Department filed a motion to suspend
visitation because continuing visitation would seriously endanger the
child’s physical, mental, moral, or emotional health. The Department
alleged Mother made inappropriate comments to J.S. during a virtual
visitation, read a book that was not age-appropriate, and became verbally
aggressive towards the supervisor when re-directed. The Department also
noted Mother was observed to be under the influence of substances during
the visit. After oral argument, the juvenile court suspended visitation and
found Mother presented a danger to J.S. and that continued visitation
would endanger his health.
¶7 The Department moved to terminate Mother’s parental rights
under A.R.S. § 8-533(B)(3) because of a history of chronic abuse of
dangerous drugs, controlled substances, and alcohol resulting in Mother
being unable to discharge parental responsibilities. After considering the
evidence, the juvenile court terminated Mother’s parental rights on
February 23, 2023, finding as follows:
[Mother] is unable to discharge parental responsibilities
because of a history of chronic abuse of dangerous drugs,
controlled substances, and/or alcohol and there are
reasonable grounds to believe that the condition will continue
for a prolonged indeterminate period . . . Mother has gone
through multiple substance abuse detox and rehab facilities.
Upon exiting these facilities, Mother has continued to relapse
on substances. . . . When Mother is not in treatment, she has
not produced a negative drug test for the Department. [T]he
Department has made reasonable efforts to provide Mother
with rehabilitative services[.]
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IN RE TERM OF PARENTAL RIGHTS AS TO J.S.
Decision of the Court
¶8 Mother timely appealed. We have jurisdiction under A.R.S.
§ 8-235(A).
DISCUSSION
¶9 Mother appeals the termination order on two grounds. First,
Mother argues the Department did not provide diligent reunification
efforts regarding Mother’s mental health, and second, the juvenile court did
not make sufficient findings in its order. We “will affirm a severance order
unless it is clearly erroneous.” Alma S. v. Dep’t of Child Safety, 245 Ariz. 146,
151 ¶ 18 (2018); Demetrius L. v. Joshlynn F., 239 Ariz. 1, 3 ¶ 9 (2016). We view
the evidence in the light most favorable to sustaining the court’s ruling and
will not disturb a factual finding unless there is no reasonable evidence to
support it. Adrian E. v. Dep’t of Child Safety, 239 Ariz. 240, 241 ¶ 2 (App.
2016); Mary Lou C. v. Ariz. Dep’t of Econ. Sec., 207 Ariz. 43, 47 ¶ 8 (App. 2004).
I. Diligent Reunification Efforts
¶10 Mother first argues the Department failed to provide diligent
reunification efforts because the Department did not provide her with
services aimed at addressing her mental health problems.
¶11 “Parents have a fundamental right to raise their children as
they see fit, but that right is not without limitation.” Mihn T. v. Ariz. Dep’t
of Econ. Sec., 202 Ariz. 76, 79 ¶ 14 (App. 2001). Before seeking to terminate
a parent’s rights, the Department must make diligent efforts to provide a
parent with appropriate reunification services. See A.R.S. § 8-
533(B)(8)(b). The juvenile court must “consider the totality of the
circumstances when determining whether [the Department] has made
diligent efforts.” Donald W. v. Dep’t of Child Safety, 247 Ariz. 9, 23 ¶ 49 (App.
2019). To do so, the Department must provide a 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). While the Department must provide rehabilitative
measures that have “a reasonable prospect of success,” the Department is
not required to ensure the parent participates in services, and it is not
required to provide futile services. Mary Ellen C. v. Ariz. Dep’t of Econ. Sec.,
193 Ariz. 185, 192 ¶ 34 (App. 1999); see also JS-501904, 180 Ariz. at 353
(holding the Department is not “required to provide every conceivable
service[.]”).
¶12 The Department argues Mother waived her claim that
appropriate reunification services were offered because she never raised
her concerns with the juvenile court, and waiver aside, reasonable evidence
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IN RE TERM OF PARENTAL RIGHTS AS TO J.S.
Decision of the Court
supports the juvenile court’s finding that the Department made reasonable
efforts to provide services to her. We agree with both points.
¶13 At various points prior to the termination hearing, the
juvenile court considered motions requesting confirmation that the
Department was making reasonable efforts to finalize permanency. On
multiple occasions the Court found that the Department had made
reasonable efforts. See Shawanee S. v. Ariz. Dep’t of Econ. Sec., 234 Ariz. 174,
179 ¶ 17 (App. 2014). Mother did not object to any of the motions and did
not otherwise request additional services before the termination hearing.
See id.; Bennigno R. v. Ariz. Dep’t of Econ. Sec., 233 Ariz. 345, 349 ¶ 19 (App.
2013). When the juvenile court record shows that the Department ordered
specific services according to a case plan, and the juvenile court finds
during the implementation of the plan the Department made reasonable
efforts to provide those services, a parent who does not contemporaneously
object cannot later challenge that finding on appeal. See Shawanee S., 234
Ariz. at 178–79 ¶ 16; Bennigno R., 233 Ariz. at 349 ¶ 19. As a result, Mother
waived her deficient services argument.
¶14 Notwithstanding waiver, we have reviewed the record and
conclude it contains reasonable evidence supporting the juvenile court’s
factual findings and its conclusion that the Department made reasonable
efforts under the circumstances to provide Mother with appropriate
reunification services. See Bennigno R., 233 Ariz. at 350 ¶ 20.
II. Termination On Only One Ground
¶15 Mother also argues the juvenile court erred by limiting its
termination determination to the statutory allegation of substance abuse. A
parent’s rights may be severed if the “parent is unable to discharge parental
responsibilities because of mental illness, mental deficiency or 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
a prolonged indeterminate period.” A.R.S. § 8-533(B)(3) (emphasis added).
Thus, under the text of the statute, the juvenile court is only required to
make a termination finding on one of the grounds described therein. See
Kent K. v. Bobby M., 210 Ariz. 279, 282 ¶9 (2005) (“To justify termination of
the parent-child relationship, the trial court must find, by clear and
convincing evidence, at least one of the statutory grounds set out in A.R.S.
§ 8-533(B)[.]”); Michael J. v. Arizona Dep’t of Econ. Sec., 196 Ariz. 246, 249 ¶ 12
(2000) (same).
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IN RE TERM OF PARENTAL RIGHTS AS TO J.S.
Decision of the Court
III. Sufficient Findings
¶16 Mother next contends the termination order the juvenile court
issued lacked the specific findings required under A.R.S. § 8-538(A).
Specifically, Mother argues the court failed to make sufficient findings
regarding whether the Department made reasonable efforts and whether
termination was in J.S.’s best interest. We review the sufficiency of findings
of fact de novo as a mixed question of fact and law. Francine C. v. Dep’t of
Child Safety, 249 Ariz. 289, 296 ¶ 14 (App. 2020). A termination order shall
recite the court’s findings, but it need not list every fact upon which its
findings are based. See Ariz. R.P. Juv. Ct. 353(h)(2)(A).
¶17 Like with adequate reunification services, the Department
argues Mother waived her argument that the juvenile court failed to make
sufficiently specific factual findings to support its termination order
because Mother did not raise any concerns with the sufficiency of the
factual findings when the Department lodged its proposed order, nor did
she file a post-trial motion under Juvenile Rule 317 (a)(2). This Court,
however, has previously held that a party cannot waive this issue. See
Francine C., 249 Ariz. at 298 ¶25; see also Martha C. v. Dep’t of Child Safety,
2022 WL 99969, at *2 ¶¶ 9–10 (Ariz. App. Jan. 11, 2022) (applying Francine
C. in the termination context). Therefore, we address the sufficiency of the
juvenile court’s order.
¶18 Mother argues the court’s best interest findings were
insufficient because the court failed to find that J.S. would be harmed by a
continued relationship with Mother. She argues that while her substance
abuse problem may prevent her from caring for J.S., it does not indicate that
she cannot have a relationship with J.S.
¶19 Section 8-533(B) sets forth the grounds for terminating the
parent-child relationship and states “the court shall also consider the best
interests of the child” when deciding whether to terminate parental rights.
See Mary Lou C., 207 Ariz. at 50 ¶ 19. Termination of the parent-child
relationship is in the child’s best interests if the child would benefit from
the termination or would be harmed if the relationship continued.
Demetrius L., 239 Ariz. at 4 ¶ 16. The court must determine by a
preponderance of the evidence that termination is in the child’s best
interests. Kent K., 210 Ariz. at 284 ¶ 22.
¶20 Here, J.S. is currently residing in a potential adoptive
placement that meets his needs. See Ariz. Dep’t of Econ. Sec. v. Oscar O., 209
Ariz. 332, 334–35 ¶¶ 6–8 (App. 2004) (an adoptive plan may be evidence of
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IN RE TERM OF PARENTAL RIGHTS AS TO J.S.
Decision of the Court
a benefit to be derived from terminating parental rights); see also Raymond
F. v. Ariz. Dep’t of Econ. Sec., 224 Ariz. 373, 379 ¶ 30 (App. 2010). Thus, the
juvenile court found that termination would be in J.S.’s best interest because
it would further the plan of adoption by providing J.S. with stability and
permanency. The court determined that “[c]ontinuation of the parent-child
relationship would be a detriment to [J.S.] because the mother is continuing
to abuse substances . . . [and] [h]e would be at significant risk of harm in
Mother’s care.” The court concluded it was in J.S.’s best interest to
terminate Mother’s parental rights so he can continue to be safe, stable, have
his needs met, and thrive. These findings are sufficient to sustain the
juvenile court’s decision that termination is in J.S.’s best interest.
¶21 Finally, Mother argues the court made insufficient findings to
support its conclusion that the Department made reasonable efforts to
provide services aimed at preserving the family. Although, as explained,
Mother waived any argument on appeal relating to the sufficiency of the
Department’s efforts, the superior court’s findings on that issue are also
legally sufficient. Mother asserts the juvenile court issued a boilerplate
order the Department submitted, which contained various omissions, such
as “insert parent’s name” instead of Mother’s actual name. While it is true
that the superior court’s order contained boilerplate language that needed
to be replaced with case-specific information, the court listed the services
the Department offered Mother for rehabilitation and concluded that, based
on the services provided, the Department made reasonable efforts. The
court’s ultimate conclusions were supported by findings of fact and were
legally sufficient.
CONCLUSION
¶22 We affirm the juvenile court’s judgment terminating Mother’s
parental rights.
AMY M. WOOD • Clerk of the Court
FILED: AA
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