In Re Term of Parental Rights as to B.G.

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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 B.G.
No. 1 CA-JV 22-0185
FILED 1-24-2023
Appeal from the Superior Court in Maricopa County
No. JD39557
The Honorable David O. Cunanan, Judge (Retired)
AFFIRMED
COUNSEL
Robert D. Rosanelli, Attorney at Law, Phoenix
By Robert D. Rosanelli
Counsel for Appellant
Arizona Attorney General’s Office, Tucson
By Jennifer R. Blum
Counsel for Appellee Department of Child Safety
IN RE TERMINATION OF PARENTAL RIGHTS AS TO B.G.
Decision of the Court
MEMORANDUM DECISION
Judge D. Steven Williams delivered the decision of the court, in which
Presiding Judge David D. Weinzweig and Judge Randall M. Howe joined.
W I L L I A M S, Judge:
¶1 Dakota B. (“Mother”) appeals the superior court’s order
terminating her parental rights. For the following reasons, we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 Dakota B. and Tre G. (“Father”)1 have one child together. The
child was born in 2015.
¶3 The Arizona Department of Child Safety (“DCS”) first became
involved in 2016 when it received a report that Mother was driving under
the influence of methamphetamine with the child unsecured in the front
seat of the vehicle.
¶4 In 2018, DCS learned that Mother pled guilty to felony child
abuse for leaving the child unattended in a vehicle. Mother was on
probation at the time for an unrelated offense and admitted to her probation
officer that she had recently used methamphetamine on three separate
occasions. Mother also failed to enroll in substance abuse treatment as a
term of her probation.
¶5 In 2020, DCS contacted Mother after receiving a report that
Mother backed into someone, while the child was in the vehicle, and then
left the scene. In the ensuing investigation, a DCS investigator observed a
text message from Mother soliciting drugs.
¶6 DCS took custody of the child, placing him with relatives, and
initiated a dependency action. The superior court subsequently found the
child dependent.
¶7 Mother was offered a variety of services, including
substance-abuse treatment and testing, parent-aide services, and
1Father’s parental rights were also terminated, but he is not a party to the
appeal.
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IN RE TERMINATION OF PARENTAL RIGHTS AS TO B.G.
Decision of the Court
supervised visitation. But Mother largely failed to participate in any
services over the next two years, including never once submitting to a drug
test.
¶8 Mother did complete an intake assessment for
substance-abuse treatment in 2020. Based upon Mother’s self-reported
history of past (but not current) methamphetamine and opioid use, the
provider recommended group therapy and parenting classes but did not
recommend substance-abuse treatment. Regardless, Mother never engaged
in either service and was closed out unsuccessfully months later. DCS
referred Mother for substance-abuse treatment three more times over the
next two years, but each time the referral was closed out because of
Mother’s lack of response.
¶9 Mother similarly did not engage in parent-aide services and
those were closed out unsuccessfully in early 2021. Mother was inconsistent
in attending supervised visits with the child, and the referral for visitation
services closed in late 2021, again because of Mother’s lack of participation.
Also in late 2021, Mother was arrested for possessing narcotic drugs (more
than thirty fentanyl pills) and drug paraphernalia.
¶10 DCS moved to terminate Mother’s parental rights in February
2022 on grounds of (1) chronic substance-abuse, (2) nine months in an
out-of-home placement, and (3) fifteen months in an out-of-home
placement.
¶11 After DCS moved for termination, Mother visited the child
more consistently but still failed to drug test. Months later, after the
termination trial had begun, Mother began a parenting program for the first
time and completed another substance-abuse treatment intake.
¶12 The superior court held the termination trial over two days,
the first in May and the second in June. At the end of trial, the court found
that DCS had proven all three grounds alleged in its motion for termination.
The court also found that termination was in the child’s best interests.
¶13 Mother timely appealed. We have jurisdiction under 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 601(a).
DISCUSSION
¶14 Mother argues that no reasonable evidence supports the
superior court’s order terminating her parental rights because she has
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IN RE TERMINATION OF PARENTAL RIGHTS AS TO B.G.
Decision of the Court
“recently become involved” in services and there is an “absence of recent,
credible evidence of [her] drug [use].” We disagree.
¶15 Parental rights are fundamental, but not absolute. Dominique
M. v. Dep’t of Child Safety, 240 Ariz. 96, 97, ¶ 7 (App. 2016). A court may
terminate a parent’s right in the care, custody, and management of their
child “if it finds clear and convincing evidence of one of the statutory
grounds for severance, and also finds by a preponderance of the evidence
that severance is in the best interests of the child[].” Id. at 97-98, ¶ 7.
¶16 We review a termination order 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, see
Manuel M. v. Ariz. Dep’t of Econ. Sec., 218 Ariz. 205, 207, ¶ 2 (App. 2008).
Because the superior 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)).
¶17 Fifteen months in an out-of-home placement is one statutory
ground authorizing termination. A.R.S. § 8-533(B)(8)(c). The superior court
may terminate a parent-child relationship under that ground if DCS has
made a diligent effort to provide appropriate reunification services and:
The child has been in an out-of-home placement for a
cumulative total period of fifteen months or longer pursuant
to court order or voluntary placement pursuant to [A.R.S.]
§ 8-806, the parent has been unable to remedy the
circumstances that cause the child to be in an out-of-home
placement and there is a substantial likelihood that the parent
will not be capable of exercising proper and effective parental
care and control in the near future.
Id.
¶18 Mother admits the child has been at an out-of-home
placement for more than fifteen months, and she does not challenge the
superior court’s finding that DCS made a diligent effort to provide
appropriate reunification services as required by A.R.S. § 8-533(8).
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IN RE TERMINATION OF PARENTAL RIGHTS AS TO B.G.
Decision of the Court
¶19 Instead, Mother argues that DCS’s concerns about her drug
use were based on unreliable and outdated information, and that Mother
had “not used illegal substances for years before the child was removed.”
But reasonable record evidence paints a different picture. First, in 2020
when the child was about four years old, a DCS investigator saw Mother’s
text message soliciting drugs. Second, a year after the child was removed
from Mother’s care, Mother was arrested for possessing narcotic drugs and
drug paraphernalia. Third, Mother failed to submit to a single drug test
throughout the entirety of the case, which spanned more than two years,
and closed out of substance-abuse services for lack of contact three times.
See Jennifer S. v. Dep’t of Child Safety, 240 Ariz. 282, 287, ¶ 21 (App. 2016)
(upholding superior court’s termination of Mother’s parental rights based
on substance abuse grounds due, in part, to Mother’s failure to engage in
treatment and refusal to take most of her required drug tests). Reasonable
evidence supports the superior court’s finding that Mother had been
“unable to remedy the circumstances that caused the child to be in an
out-of-home placement,” and that there existed “a substantial likelihood”
that Mother was not “capable of exercising proper and effective parental
care and control in the near future.”
¶20 And though Mother highlights the substance-abuse intake
(which she completed after the termination trial had begun), her voluntary
enrollment in relapse prevention services, and the amelioration of her
homelessness and depression, hers is a case of “too little, too late.” Maricopa
Cnty. Juv. Action No. JS-501568, 177 Ariz. 571, 577 (App. 1994); see Raymond
F. v. Arizona Dep’t of Econ. Sec., 224 Ariz. 373, 379, ¶ 29 (App. 2010) (“Father’s
temporary abstinence from drugs and alcohol does not outweigh his
significant history of abuse or his consistent inability to abstain during this
case.”); see also Jennifer S. v. Dep’t of Child Safety, 240 Ariz. 282, 288, ¶ 25
(App. 2016) (“Although Mother made efforts to achieve and maintain
sobriety in the months immediately preceding the severance hearing, [they
do] not outweigh her significant history of drug abuse or her demonstrated
inability to remain sober during much of the case.”) On this record, Mother
has shown no error.
¶21 Because we affirm on the fifteen months in an out-of-home
placement ground, we need not address Mother’s claims pertaining to
chronic substance-abuse or nine months in an out-of-home placement. Jesus
M. v. Arizona Dep’t of Econ. Sec., 203 Ariz. 278, 280, ¶ 3 (App. 2002).
¶22 Lastly, Mother does not challenge the superior court’s finding
that termination was in the child’s best interests. Consequently, we do not
address it. Crystal E. v. Dep’t of Child Safety, 241 Ariz. 576, 578, ¶ 6 (App.
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IN RE TERMINATION OF PARENTAL RIGHTS AS TO B.G.
Decision of the Court
2017) (“[W]e adhere to the policy that it is generally not our role to sua
sponte address issues not raised by the appellant.”); Christina G. v. Ariz.
Dep’t of Econ. Sec., 227 Ariz. 231, 234, ¶ 14 n.6 (App. 2011) (recognizing that
the failure to develop an argument on appeal usually results in
abandonment and waiver of the issue).
CONCLUSION
¶23 For the foregoing reasons, we affirm the superior court’s
order terminating Mother’s parental rights.
AMY M. WOOD • Clerk of the Court
FILED: AA
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