Tomi M. v. Dcs ( 2017 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
TOMI M., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, A.M., L.M., Appellees.
No. 1 CA-JV 17-0237
FILED 12-14-2017
Appeal from the Superior Court in Maricopa County
No. JD507511
The Honorable Timothy J. Ryan, Judge
AFFIRMED
COUNSEL
Maricopa County Public Advocate’s Office, Mesa
By Suzanne W. Sanchez
Counsel for Appellant
Arizona Attorney General’s Office, Tucson
By Laura J. Huff
Counsel for Appellee Department of Child Safety
TOMI M. v. DCS, et al.
Decision of the Court
MEMORANDUM DECISION
Judge Randall M. Howe delivered the decision of the Court, in which
Presiding Judge James P. Beene and Judge Kent E. Cattani joined.
H O W E, Judge:
¶1 Tomi M. (“Mother”) appeals the juvenile court’s order
terminating her parental rights to A.M. and L.M. on the grounds of chronic
substance abuse under A.R.S. § 8–533(B)(3) and recurrent removal under
A.R.S. § 8–533(B)(11). Mother also appeals the juvenile court’s finding that
terminating her parental rights was in the children’s best interests. For the
following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Mother has used marijuana since age 12 and
methamphetamine since age 15. Mother has received substance-abuse
treatment many times but has not remained sober longer than one year.
Mother has had seven children, and since 2003, the Department of Child
Safety has investigated many incidents involving her and her children,
from giving birth to a methamphetamine-exposed newborn to failing to
protect and care for her children because of substance abuse and domestic
violence. By 2011, Mother’s parental rights to three of her children had been
terminated.
¶3 In December 2014, the Department alleged that A.M. was
dependent because Mother continued to abuse substances, was unable to
provide for A.M.’s basic needs, and had her parental rights to three other
children terminated. Mother also had a history of domestic violence with
A.M.’s father, Richard K. (“Richard”). During the dependency, Mother
participated in her case plan tasks, including substance-abuse treatment,
urinalysis testing, a psychological evaluation, individual therapy, parent-
aide services, and obtaining stable employment and housing. She also
obtained an order of protection against Richard. Thereafter, Mother
completed parent-aide services and Terros substance-abuse treatment, and
the juvenile court dismissed the dependency in January 2016.
¶4 In March 2016, the Department attempted to contact Mother
after receiving reports that she was using methamphetamine in A.M. and
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Decision of the Court
L.M.’s presence. Mother was no longer at her residence when Department
case workers visited, and in August 2016, the Department learned that
Mother was in California with L.M.’s father. In September 2016, the
Department received a report from Los Angeles County Child Protective
Services that Mother was using methamphetamine and that L.M.’s father
had a history of heroin use. The Department located Mother after talking to
Richard, who informed the Department that Mother was in jail because he
had called the police when A.M. found a liquid-filled needle inside
Mother’s purse. On September 20, 2016, the Department met Mother in jail
where she initially denied drug use but later stated that she would test
positive for marijuana and other drugs. Two days later, the Department
found the children with Mother’s brother and took custody of them based
on Mother’s admitted recent drug use and extensive history of substance
abuse. The Department noted that despite Mother’s completion of parent-
aide services and substance-abuse treatment, she was unable to maintain
her sobriety or the behavioral changes that she had achieved.
¶5 Later that month, the Department petitioned for A.M. and
L.M.’s dependency based on Mother’s substance abuse, termination of
parental rights to her other children, and A.M.’s recent dependency. The
juvenile court found that the children were dependent and ordered a case
plan of severance and adoption. The Department then moved to terminate
Mother’s parental rights to both children on the chronic substance abuse
ground and the additional ground of prior out-of-home placement for A.M.
only. At the outset of the dependency, Mother requested inpatient
substance-abuse treatment, and the Department put in a referral to Terros
and deferred to its recommendations. Mother agreed to participate in
substance-abuse treatment, urinalysis testing, hair-follicle testing, a full
parent-aide referral after 30 days’ demonstrated sobriety, and supervised
visits.
¶6 Mother did not participate in her first scheduled assessment
at Terros in October 2016, but she did participate in an assessment the
following month. In her assessment, Mother stated that she had domestic-
violence issues in her past relationships and that she had completed
substance-abuse treatment and domestic-violence classes in the past but
had “forgot[ten] to use the learned coping skills.” Terros diagnosed Mother
with moderate amphetamine-type substance use disorder and moderate
cannabis use disorder. Terros noted that Mother had a desire to quit her
stimulant use, but her efforts were unsuccessful. Terros further found that
Mother’s recurrent drug abuse prevented her from fulfilling major
obligations at work, school, or home, evidenced by her lack of employment
and stable housing. Consequently, Terros referred Mother to supported
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Decision of the Court
family counseling, group counseling, and individual counseling, with a
focus on relapse prevention techniques, self-awareness of triggers and
cravings, and strategies to maintain sobriety and develop a sober network.
¶7 Mother told Terros that she wanted inpatient substance-abuse
treatment. Terros informed her of Maverick House, an inpatient treatment
facility, and told her that she would need to participate in services at Terros
until she was admitted to Maverick. Mother agreed to continue her
intensive outpatient treatment, random drug testing, and individual
counseling sessions until Terros could transfer her to Maverick. Mother did
not follow through on Terros’s attempt to get her into residential treatment,
however. Despite Terros’s numerous attempts to engage Mother in
services, Mother had only attended one individual counseling session and
no group counseling sessions. Furthermore, Mother tested positive for
amphetamine, methamphetamine, marijuana, and alcohol from October
through December 2016. Mother did not respond to any outreach efforts,
and Terros ended her services in December 2016.
¶8 Mother’s case manager stated in her December 2016 report
that she still had concerns about Mother’s substance abuse. She noted that
Mother’s substance abuse had led to A.M. being adjudicated dependent
twice by age two. Moreover, the case manager was concerned about
Mother’s continued substance abuse despite the severance and adoption
case plan. In January 2017, Mother told the Department that she was going
to engage in outpatient treatment with Community Bridges
(“Community”). Community referred Mother for intensive outpatient
treatment, individual counseling, group counseling, and a psychiatric
evaluation.
¶9 In March 2017, Mother asked about the status of her full
parent-aide services referral before the juvenile court. The Department
responded that it needed documentation from Community showing that
Mother had completed 30 days’ sobriety before it would make the parent-
aide referral. The juvenile court ordered Community to disclose the
information to the Department and to put a parent-aide referral in place
within two weeks. Around this time, Mother obtained an apartment with
her new boyfriend. Mother also obtained a second order of protection
against Richard but had difficulty serving him. Later that month, Mother
gave birth to M.M. At the subsequent preliminary protective conference
concerning M.M., the parties and the juvenile court determined that parent-
aide services were not needed if the Department provided Community
with a list of parent-aide objectives.
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Decision of the Court
¶10 In April 2017, Mother underwent a psychiatric evaluation at
Community and was diagnosed with unspecified anxiety disorder;
unspecified depressive disorder; severe amphetamine-type substance-
abuse disorder in early recovery; and moderate cannabis-use disorder in
early recovery. Mother received Zoloft to treat her anxiety and depression,
but she discontinued the medication because her grandmother made
negative comments about the drug and Mother did not like the drug’s
effects. Later in April, the Department provided Community with a list of
parent-aide objectives. Mother’s therapist at Community agreed with the
parent-aide objectives and had already incorporated some of the objectives
into Mother’s treatment before receiving them from the Department. Thus,
the Department did not provide Mother with a parent aide.
¶11 In May 2017, the juvenile court concurrently held a contested
termination hearing for A.M. and L.M. and a dependency hearing for M.M.
A Department supervisor testified that Mother was unable to parent and
discharge her parental responsibilities because of her history of chronic
substance abuse. She further testified that Mother had been abusing
substances since 2003, and A.M., L.M., and M.M., were her fifth, sixth, and
seventh children involved with the Department because of her substance
abuse. The supervisor stated that Mother could maintain her sobriety only
for short periods and that her substance-abuse issues would likely continue
for a prolonged and indeterminate period. The supervisor testified that the
children were in a placement that met their needs and was willing to adopt
them, and if that placement was unable to adopt them, the children were
otherwise adoptable. She also stated that termination of Mother’s parental
rights would be in the children’s best interests because they deserved to live
in a home free of substance abuse and to have stability and permanency in
their lives.
¶12 Mother’s therapist at Community opined that after two
months of sobriety Mother was in the maintenance stage of her sobriety,
but on cross-examination he admitted that he was not fully aware of
Mother’s therapy treatments at Terros and her substance-abuse history. For
instance, he testified that Mother had told him that she did not have any
individual therapy at Terros and that he had been unaware that Mother had
in fact received individual therapy in the previous dependency. This
misunderstanding resulted because the therapist relied on Mother’s self-
reporting and had not reviewed any of Mother’s Terros records or spoken
to Terros personnel about Mother’s previous treatment. He was also
unaware that Mother had supposedly ended her relationship with Richard
in the previous dependency, but then later had another child with him. The
therapist also stated that he believed Mother had only experimented with
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Decision of the Court
marijuana and alcohol in her adolescent years and that she had only been
using methamphetamine for a couple of years.
¶13 Mother testified that she had been sober since early February.
She further testified that she did not take seriously the previous
dependency involving A.M., but that she was taking this case seriously
because “everything’s on the line right now.” Mother stated that she had
resumed a relationship with Richard about three months after A.M. was
returned to her because she thought that the relationship would improve.
She stated that she had relapsed since the last dependency because Richard
had mentally and verbally abused her. Mother also acknowledged that she
was incapable of taking care of her children while under the influence of
substances. Regarding her Terros treatment, Mother testified that she had
never informed the Department that Terros did not meet her treatment
needs even though she stated at the hearing that she thought its methods
and environment were not effective.
¶14 The juvenile court terminated Mother’s parental rights to both
A.M. and L.M. on the chronic substance abuse ground and the recurrent
removal ground for A.M. only. Under the chronic substance abuse ground,
the juvenile court found that Mother had a substantial history of chronic
substance abuse and that Mother’s substance abuse would continue for a
prolonged and indeterminate period. Under the recurrent removal ground,
the juvenile court found that A.M. was cared for in an out-of-home
placement pursuant to court order, A.M. was returned to Mother’s custody,
and A.M. was removed within 18 months after being returned. Under both
grounds, the juvenile court found that the Department had made diligent
efforts to provide reunification services and that Mother was unable to
discharge her parental responsibilities. The juvenile court also concluded
that termination was in the children’s best interests because it would help
them become adopted and provide stability and permanency. Mother
timely appealed.
DISCUSSION
¶15 Mother argues that insufficient evidence supports the
juvenile court’s finding that the Department made diligent efforts to
provide family-reunification services and that Mother was unable to
discharge her parental responsibilities. Mother also argues that termination
was not in the children’s best interests because insufficient evidence existed
for the termination grounds. A juvenile court’s termination order is
reviewed for an abuse of discretion. E.R. v. Dep’t of Child Safety, 237 Ariz.
56, 58 ¶ 9 (App. 2015). “The juvenile court, as the trier of fact in a
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Decision of the Court
termination proceeding, is in the best position to weigh the evidence,
observe the parties, judge the credibility of witnesses, and make
appropriate findings.” Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 280
¶ 4 (App. 2002). This Court will accept the juvenile court’s factual findings
unless no reasonable evidence supports them and will affirm a termination
order unless it is clearly erroneous. Bobby G. v. Ariz. Dep’t of Econ. Sec., 219
Ariz. 506, 508 ¶ 1 (App. 2008). Furthermore, this Court will affirm a
termination order if any statutory ground is proven and termination is in
the children’s best interests. Raymond F. v. Ariz. Dep’t of Econ. Sec., 224 Ariz.
373, 376 ¶ 14 (App. 2010). The juvenile court did not abuse its discretion
because sufficient evidence supports the juvenile court’s order terminating
Mother’s parental rights for chronic substance abuse and termination is in
the children’s best interests.
¶16 To terminate parental rights, the juvenile court must find by
clear and convincing evidence the existence of at least one of the statutory
grounds for termination and find by a preponderance of the evidence that
termination is in the children’s best interests. Jennifer S. v. Dep’t of Child
Safety, 240 Ariz. 283, 286 ¶ 15 (App. 2016). As pertinent here, the juvenile
court may terminate parental rights when: (1) the parent has a history of
chronic substance abuse, (2) the parent is unable to discharge her parental
responsibilities because of her chronic substance abuse, and (3) reasonable
grounds exist to believe that the abuse will continue for a prolonged and
indeterminate period. A.R.S. § 8–533(B)(3); Raymond F., 224 Ariz. at 377 ¶ 15.
Additionally, the Department must make diligent efforts to provide a
parent with appropriate reunification services before seeking to terminate
parental rights on the chronic substance abuse ground. Jennifer G. v. Ariz.
Dep’t of Econ. Sec., 211 Ariz. 450, 453 ¶ 12 (App. 2005).
1. Statutory Ground for Termination
¶17 The juvenile court did not err by finding that the Department
proved termination under the chronic substance abuse ground. Mother
does not dispute the juvenile court’s findings that she had a history of
chronic substance abuse and that her substance abuse would likely
continue for an indeterminate period. The record supports these findings.
First, Mother started using methamphetamine when she was 15 years old.
Mother’s substance abuse continued throughout most of the dependency,
and she failed several drug tests. Second, in determining whether Mother’s
chronic substance abuse would continue for an indeterminate period, the
juvenile court may consider prior substance abuse. See Jennifer S., 240 Ariz.
at 287 ¶ 20. This evidence includes “the length and frequency of Mother’s
substance abuse, the types of substances abused, behaviors associated with
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Decision of the Court
the substance abuse, prior efforts to maintain sobriety, and prior relapses.”
Id. Here, Mother had used methamphetamine for about 14 years, and
despite having completed substance-abuse treatment in a prior
dependency, still reverted to abusing substances after brief stints of
sobriety. Therefore, sufficient evidence supports the juvenile court’s finding
that she has a history of chronic substance abuse and that it would continue
for a prolonged and indeterminate period.
¶18 The record also supports the juvenile court’s finding that
Mother was unable to discharge her parental responsibilities. The term
“parental responsibilities” does not refer to any exclusive set of factors and
is capable of being understood as the duties and obligations that a parent
has to her children. Raymond F., 224 Ariz. at 378 ¶ 20. This standard gives
the juvenile court flexibility to consider the specific facts of the case at hand.
Id. Here, the Department supervisor still had concerns about Mother’s
ability to maintain her sobriety, to maintain her mental health, to maintain
appropriate relationships with men, and to provide stability for her
children. While the supervisor noted that Mother could parent while sober,
she also noted that Mother failed to retain her sobriety without the
supervision and oversight of the juvenile court or the Department.
Additionally, the Department supervisor specifically testified that Mother
was unable to discharge her parental responsibilities because of her history
of chronic substance abuse. While Mother’s therapist opined that Mother
was in the sobriety maintenance stage, the record shows that her therapist
was not fully aware of Mother’s substance-abuse history. Furthermore,
Mother acknowledged and testified that she could not parent her children
while abusing substances. Thus, Mother’s chronic substance abuse
rendered her unable to discharge her parental responsibilities.
¶19 Finally, the record shows that the Department made diligent
efforts to provide Mother with reunification services. The Department is not
required to provide Mother with every conceivable service or to ensure that
she participates in each service it offers, but it must provide her with the
time and opportunity to participate in programs designed to help her
become an effective parent. Tanya K. v. Dep’t of Child Safety, 240 Ariz. 154,
157 ¶ 11 (App. 2016). During Mother’s previous dependency with A.M.
from December 2014 through January 2016, the Department provided
Mother with substance-abuse treatment at Terros, urinalysis testing, a
psychological evaluation, individual therapy, and parent-aide services.
During the current dependency that began in September 2016, Mother
agreed to and received substance-abuse treatment, urinalysis testing,
supervised visits, and a referral for parent-aide services after 30 days’
demonstrated sobriety.
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¶20 Mother argues that the Department failed to provide her with
full parent-aide services in the current case and thus did not make diligent
efforts for reunification. The record shows, however, that Mother was not
eligible for full parent-aide services until she had been sober for 30 days,
which was a condition she agreed to. Mother testified that she had been
sober since early February 2017, so the earliest she could have been offered
full parent-aide services was in March 2017. Moreover, at the preliminary
protective conference, the parties and juvenile court concluded that a
parent aide was no longer needed if the Department provided Community
with parent-aide objectives. Although the objectives were sent nearly a
month later, Mother’s therapist testified that he had already incorporated
some of the objectives before receiving them. Furthermore, Mother
completed parent-aide services during the previous dependency. As such,
the lack of full parent-aide services does not weaken the Department’s
overall diligent efforts toward reunification.
¶21 Additionally, Mother argues that the Department failed to
make diligent efforts toward reunification because she never received
inpatient substance-abuse treatment. The record shows, however, that
Mother would have received inpatient treatment if she had continued to
participate in Terros services. Mother asked the Department and Terros for
inpatient services, and Terros informed Mother that she would be admitted
to Maverick when a space became available if she continued to participate
in its services. Instead, Mother stopped attending any services at Terros.
Furthermore, Mother testified that she had never informed the Department
that Terros did not meet her treatment needs. Thus, the Department made
diligent efforts toward reunification, and the juvenile court did not abuse
its discretion by finding that the Department proved termination under the
chronic substance abuse ground.
2. Best Interests
¶22 Mother also argues that terminating her parental rights was
not in the children’s best interests because the Department failed to
establish grounds for termination. Terminating parental rights is in the
children’s best interests if the children will benefit from the termination or
will be harmed if the relationship continues. Shawanee S. v. Ariz. Dep’t of
Econ. Sec., 234 Ariz. 174, 179 ¶ 20 (App. 2014). In determining whether the
children will benefit from termination, relevant factors to consider include
whether the current placement is meeting the children’s needs, an adoption
plan is in place, and if the children are adoptable. Demetrius L. v. Joshlynn
F., 239 Ariz. 1, 3–4 ¶ 12 (2016). Here, the record supports the juvenile court’s
finding that termination was in the children’s best interests. The
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Decision of the Court
Department supervisor testified that the children were in an adoptive
placement that met their needs and were adoptable if the current placement
could no longer adopt them. Furthermore, she testified that termination of
Mother’s parental rights were in the children’s best interests because they
deserved to live in a stable and permanent home free of substance abuse.
Accordingly, Mother’s argument fails.
CONCLUSION
¶23 For the foregoing reasons, we affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
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