Victoria G. v. Dcs

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
VICTORIA G., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, K.G., K.G., Appellees.
No. 1 CA-JV 15-0365
FILED 5-3-2016
Appeal from the Superior Court in Maricopa County
No. JD527236
The Honorable Karen L. O’Connor, Judge
AFFIRMED
COUNSEL
Czop Law Firm PLLC, Higley
By Steven Czop
Counsel for Appellant
Arizona Attorney General’s Office, Phoenix
By Amber E. Pershon
Counsel for Appellee DCS
VICTORIA G. v. DCS, et al.
Decision of the Court
MEMORANDUM DECISION
Judge Kenton D. Jones delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Patricia A. Orozco joined.
J O N E S, Judge:
¶1 Victoria G. (Mother) appeals the juvenile court’s order
terminating her parental rights to K.G. (Older Sister) and K.G. (Younger
Sister) (collectively, the Children),1 arguing the Department of Child Safety
(DCS) failed to prove: (1) the statutory grounds for severance by clear and
convincing evidence, and (2) that severance was in Older Sister’s best
interests by a preponderance of the evidence. For the following reasons, we
affirm.
FACTS2 AND PROCEDURAL HISTORY
¶2 Mother began using alcohol and marijuana at age nine, non-
prescribed opioids at eighteen, and methamphetamine in her early
twenties. She continued her marijuana, opioid, and methamphetamine use
for almost thirty years, and also “experimented” with cocaine for five years
in her early twenties. She used marijuana while pregnant with Younger
Sister in 2004, and the Children’s half-brother was born substance-exposed
to marijuana in April 2011; at that same time, Mother tested positive for
marijuana and opiates. In September 2013, a decade of concerns regarding
Mother’s substance abuse led to an in-home dependency for the Children,
then ages eight and nine, and their half-brother.
1 Both Children share the same initials. For purposes of this decision,
we differentiate them as Older Sister and Younger Sister to preserve their
anonymity.
2 We view the facts in the light most favorable to upholding the
juvenile court’s order terminating parental rights. Ariz. Dep’t of Econ. Sec.
v. Matthew L., 223 Ariz. 547, 549, ¶ 7 (App. 2010) (citing Manuel M. v. Ariz.
Dep’t of Econ. Sec., 218 Ariz. 205, 207, ¶ 2 (App. 2008)).
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VICTORIA G. v. DCS, et al.
Decision of the Court
¶3 The in-home dependency was unsuccessful. Although
Mother obtained a medical marijuana card in October 2013, she did not
attend substance abuse treatment consistently and was not truthful about
her use of marijuana and prescription drugs. She also admitted smoking
methamphetamine in her home during the Thanksgiving weekend while
the Children were present and ignored DCS’s instruction not to allow her
boyfriend to live in a shed beside her home because the Children, past
victims of sexual abuse, were vulnerable to exploitation and the boyfriend
did not pass a background check. As a result, the Children were removed
in December 2013,3 and DCS filed a petition alleging they were dependent
as to Mother on the grounds of substance abuse, neglect, sexual abuse, and
mental health. Mother contested the dependency but submitted the issue
to the juvenile court on the record. The court adjudicated the Children
dependent as to Mother and adopted a case plan of family reunification
concurrent with severance and adoption.4
¶4 DCS referred Mother for services designed to reunify the
family, including substance abuse treatment and testing, drug court,
trauma therapy, parent aide services, supervised visitation, and a
psychological evaluation. Both Children exhibited signs of trauma
resulting from past abuse and neglect and were also referred for therapy.
¶5 Mother was unable to participate in services for several
months after she contracted MRSA in December 2013 and again in February
2014. In March 2014, Mother was pulled over for running a stoplight, and
a blood sample obtained during the subsequent DUI investigation tested
positive for methamphetamine. Mother also missed several required
urinalysis tests in March 2014 and tested positive for methamphetamine
two additional times in March and April. All tests were positive for
marijuana at levels inconsistent with that specified on her card.
¶6 By May 2014, Mother was attending drug court once per
week, intensive outpatient substance abuse treatment four times per week,
and supervised visits with the Children once per week. She was also
engaged in individual trauma therapy and mental health services,
3 The Children’s two-year-old half-brother was also removed and
found dependent as to both parents. He was placed with his father, and the
dependency was dismissed as to him in September 2014.
4 The Children were also adjudicated dependent as to their father,
whose whereabouts were unknown. His parental rights were terminated
in November 2015. He did not appeal and is not a party to this appeal.
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Decision of the Court
including group therapy, medication management and monitoring, crisis
stabilization, hospitalization referrals as needed, and high-needs case
management. Despite these intense services, Mother admitted struggling
to maintain sobriety and address her mental health issues. And, although
she was obtaining and using marijuana legally, she admitted marijuana
caused her to have psychosocial behaviors, experience mood disorders, and
put others in danger. She completed an intake for inpatient substance abuse
treatment in June 2014 and was scheduled to be admitted in August 2014.
In the interim, she stopped attending outpatient substance abuse treatment
consistently, missed several required urinalysis tests, and missed four visits
with the Children.
¶7 Mother participated in a psychological evaluation in July 2014
and was diagnosed with bipolar disorder, post-traumatic stress disorder,
severe stimulant use disorder, cannabis use disorder, opioid use disorder,
and alcohol use disorder. The psychologist rated her prognosis to
demonstrate minimally adequate parenting skills in the foreseeable future
as fair but “highly dependent on achieving psychiatric stability and
refraining from illicit substance use,” including marijuana. He
recommended Mother participate in individual and family therapy and
support groups and continue substance abuse treatment and testing. DCS
did not submit separate referrals for these services because Mother was
already engaged in trauma therapy and mental health services, and family
therapy was available through the Children’s therapy service provider.
¶8 Mother continued to have weekly visits with the Children
until September 2014, when visitation was suspended while DCS and police
investigated reports that Younger Sister was sexually abused by Mother
while in her care. After the investigation was completed, Younger Sister
continued to disclose past instances of abuse, and her therapist
recommended she not participate in visits with Mother or Older Sister
while she processed the trauma. Mother thereafter resumed weekly
supervised visitation with Older Sister only.
¶9 Mother completed a forty-five day inpatient substance abuse
treatment program in October 2014, which also included instruction in
anger management, domestic violence, positive parenting, and cultural
arts. She was advised she needed to re-engage in outpatient substance
abuse treatment and urinalysis testing, drug court, trauma therapy, parent
aide services, and mental health services. Despite obtaining these services,
Mother did not refrain from using illegal substances. Although she called
in to the urinalysis testing center, she did not show up for any of the
required tests after September 2014. The service was closed as unsuccessful
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VICTORIA G. v. DCS, et al.
Decision of the Court
in January 2015. Between October and December 2014, Mother participated
in six of eleven required tests through the substance abuse treatment
provider. She tested positive for marijuana in October and November, and
methamphetamine in December — a year after the Children were removed
from her care.
¶10 In February 2015, DCS moved to change the case plan to
severance and adoption, noting that although Mother completed many of
the recommended services, she had yet to demonstrate she could remain
drug-free or fully address her mental health issues. The motion was
granted over Mother’s objection. DCS immediately filed a motion to
terminate the parent-child relationship, alleging severance was warranted
on the grounds that (1) Mother was unable to discharge her parental
responsibilities because of a history of chronic abuse of dangerous drugs,
controlled substances, and/or alcohol and there were reasonable grounds
to believe the condition would continue for a prolonged indeterminate
period, A.R.S. § 8-533(B)(3); and (2) Mother had been unable to remedy the
circumstances causing the Children to be in an out-of-home placement for
fifteen months or longer, A.R.S. § 8-533(B)(8)(c).
¶11 Although Mother completed twenty-four hours of group
counseling to address her substance abuse in May 2015, she failed to call in
to the urinalysis testing center seventeen times between March and May
2015, missed three scheduled tests, submitted five diluted samples, and
tested positive for methamphetamine each month. And, despite having
completed parenting courses, in June 2015, Mother arrived for a visit with
Older Sister with both wrists slit six inches from her wrist to the middle of
her forearms. She was subsequently hospitalized for a few weeks following
a “serious Depakote overdose.” During that time, she tested positive for
marijuana and a “man made stimulant” and admitted using
methamphetamine to lose weight. Upon release, Mother’s participation in
substance abuse treatment, substance abuse testing, and trauma therapy
was sporadic. In October 2015, Mother stopped taking her psychiatric
medication and experienced another mental health crisis. By the time of
trial in November 2015, Mother was participating in services, but continued
to struggle with her mental health and had yet to demonstrate she was able
to parent the Children, maintain sobriety for any appreciable length of time,
or establish a stable source of income.
¶12 At trial, the DCS social worker supervising Mother’s case
testified Mother’s struggle would likely continue for a prolonged,
indeterminate period and severance was necessary to allow the Children to
achieve permanency after being subject to abuse and neglect “all their
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Decision of the Court
lives.” Both testifying representatives from DCS described the anxiety the
Children experience in the absence of a stable, permanent home. Younger
Sister expressed a desire to be adopted and was in a potential adoptive
home at the time. Older Sister stated that, although she would prefer
Mother’s parental rights not be terminated, she would consent to an
adoption by a placement DCS had already identified if reunification was
unsuccessful. Her counsel further advised that Older Sister’s “main goal, it
sounds like she wants to have finality, security, being able to have a forever
home.”
¶13 A friend of Mother’s and the Children’s former nanny both
testified they observed Mother to be an appropriate and affectionate parent
and that they would provide continued support to Mother if the Children
were returned. Mother did not testify.
¶14 After taking the matter under advisement, the juvenile court
found DCS had proven by clear and convincing evidence that termination
of Mother’s parental rights was warranted because Mother had been unable
to remedy the circumstances causing the Children to be placed in out-of-
home care for longer than fifteen months, see A.R.S. § 8-533(B)(8)(c), and
because Mother had a history of chronic substance abuse and there were
reasonable grounds to believe the condition would continue for a
prolonged indeterminate period, see A.R.S. § 8-533(B)(3). The court also
found severance was in the Children’s best interests and entered an order
terminating Mother’s parental rights. Mother timely appealed. We have
jurisdiction pursuant to A.R.S. §§ 8-235(A), 12-120.21(A)(1), and -2101(A)(1)
and Arizona Rule of Procedure for the Juvenile Court 103(A).
DISCUSSION
I. DCS Proved Severance Was Warranted by Clear and Convincing
Evidence.
¶15 A parent’s rights may be terminated if the juvenile court finds
by clear and convincing evidence that 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 . . . 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.
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VICTORIA G. v. DCS, et al.
Decision of the Court
A.R.S. § 8-533(B)(8)(c); Ariz. R.P. Juv. Ct. 66(C); Michael J. v. Ariz. Dep’t of
Econ. Sec., 196 Ariz. 246, 249, ¶ 12 (2000). Mother does not dispute the
length of time the Children were in out-of-home care or the diligence of
DCS’s efforts. But, she argues DCS failed to prove severance was warranted
because “[t]he record shows a parent who actively participated in many
services provided to her,” and her completion of those services proved she
had remedied the circumstances causing the Children to be in out-of-home
care.
¶16 The juvenile court acknowledged Mother participated in a
myriad of services designed to address the reasons the Children were
removed including substance abuse testing, inpatient and outpatient
substance abuse treatment, individual and group therapy, and drug court.
The court nonetheless concluded that “Mother has not been able to
demonstrate that she can maintain sobriety in order to parent her children”
or that she can “provide the children with a safe and drug-free
environment,” and that there was a substantial likelihood she would be
unable to exercise proper and effective parental care and control in the near
future. These findings are supported by the record, which reflects Mother
has been using methamphetamine for more than twenty years. The
Children were removed from the home because she was using
methamphetamine and continued to use even after admitting it “affected
her home life, contributed to social problems, [and] put others in danger,”
and knowing her parental rights would be terminated if she did not stop.
Indeed, Mother tested positive for methamphetamine consistently
throughout the dependency and as recently as June 2015 — more than
eighteen months after the Children were removed, just five months prior to
the severance trial, and immediately after graduating from an inpatient
substance abuse treatment program.
¶17 We do not reweigh the evidence on appeal; 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.” Ariz.
Dep’t of Econ. Sec. v. Oscar O., 209 Ariz. 332, 334, ¶ 4 (App. 2004) (citing Jesus
M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 280, ¶ 4 (App. 2002)).
Accordingly, we will affirm a termination order “unless there is no
reasonable evidence to support” the court’s factual findings. Audra T. v.
Ariz. Dep’t of Econ. Sec., 194 Ariz. 376, 377, ¶ 2 (App. 1998) (citing Maricopa
Cnty. Juv. Action No. JS-4374, 137 Ariz. 19, 21 (App. 1983), and Maricopa
Cnty. Juv. Action No. JS-378, 21 Ariz. App. 202, 204 (1974)). Here, reasonable
evidence supports the court’s determination that Mother did not remedy
the addiction to methamphetamine that prevented her from parenting the
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Decision of the Court
Children appropriately within the statutory timeframe and would not be
capable of doing so in the near future.5 We find no abuse of discretion.
II. Termination of the Parent-Child Relationship is in the Children’s
Best Interests.
¶18 A finding of a statutory ground for severance under A.R.S.
§ 8-533 does not, standing alone, justify termination of parental rights; it
must also be proved by a preponderance of the evidence that termination
of the parent-child relationship is in the child’s best interests. Ariz. R.P. Juv.
Ct. 66(C); Mary Lou C. v. Ariz. Dep’t of Econ. Sec., 207 Ariz. 43, 47, ¶ 8 (App.
2004) (citing Michael J., 196 Ariz. at 249, ¶ 12). To establish best interests, it
must be shown the child “would derive an affirmative benefit from
termination or incur a detriment by continuing in the relationship.” Oscar
O., 209 Ariz. at 334, ¶ 6. The benefit to the child, particularly when
severance is sought based upon the length of time in an out-of-home
placement, is the opportunity for permanency where “‘parents maintain
parental rights but refuse to assume parental responsibilities.’” Id. at 337,
¶ 16 (quoting JS-6520, 157 Ariz. at 243). The juvenile court may also
consider whether the presence of a statutory ground for severance will have
a negative effect on the child. Bennigno R. v. Ariz. Dep’t of Econ. Sec., 233
Ariz. 345, 350, ¶ 23 (App. 2013) (quoting Maricopa Cnty. Juv. Action No. JS-
6831, 155 Ariz. 556, 559 (App. 1988)).
¶19 Here, the juvenile court found termination of the parent-child
relationship was in the Children’s best interests because:
Mother has not demonstrated the behavioral changes needed
to provide the [Children] with a safe, healthy and stable
environment. In addition to Mother’s unresolved substance
abuse issues, Mother’s mental health is a concern. Twice
Mother has been hospitalized in the last few months for
attempted suicide. Mother has not demonstrated that she can
provide the children with a safe and drug-free environment.
. . . While [Older Sister] loves Mother and wishes to live with
her, she also understands that Mother may not be able to care
5 Because reasonable evidence supports the juvenile court’s
conclusion that severance was warranted based on the length of time the
Children were in care, we need not address Mother’s claims pertaining to
other grounds. See Jesus M., 203 Ariz. at 280, ¶ 3 (citing Michael J., 196 Ariz.
at 251, ¶ 27, and Maricopa Cnty. Juv. Action No. JS-6520, 157 Ariz. 238, 242
(App. 1988)).
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Decision of the Court
for her. She is in agreement to be adopted by a family of her
choice, or live with her sister, or stay in a group home. There
is no question that the children have been in the juvenile court
system for too long. They both deserve and need
permanency. Termination of the parent-child relationships
would provide them with emotional stability and
permanency. The children are residing in the least restrictive
placements under the circumstances of this case.
These findings reflect the court’s conclusion that not only would
permanency benefit the Children, but also that continuing the parental
relationship would harm them by exposing them to an unsafe, unhealthy,
and unstable environment and by depriving them of stability and
permanency.
¶20 Mother argues the juvenile court erred in concluding
severance was in Older Sister’s best interests because it should have given
“more consideration” to the fact that Older Sister did not reside in an
adoptive home at the time of trial, enjoyed visits with Mother, and asked
the court not to grant the severance “if it’s possible.” Under these
circumstances, Mother contends the benefit of severance to Older Sister is
“speculative at best.”
¶21 However, neither Older Sister’s placement in a non-adoptive
home, nor her feelings regarding the severance, are determinative here. See
Bennigno R., 233 Ariz. at 351, ¶ 30 (affirming the juvenile court’s best
interests finding despite evidence of a bond between the parent and child);
Mary Lou C., 207 Ariz. at 50, ¶ 19 (holding that evidence “that the child is
adoptable” is sufficient to support a best interests finding in a termination
order); Maricopa Cnty. Juv. Action No. JS-501904, 180 Ariz. 348, 352 (App.
1994) (finding a child benefits from severance if it would free the child for
an adoption or if the child “would benefit psychologically from the stability
an adoption would provide”). The juvenile court was aware of and
considered both factors, and, on appeal, we will not second-guess the
weight the court ultimately assigned to those circumstances. See Jesus M.,
203 Ariz. at 282, ¶ 12. The record also reflects the Children desire
permanency, the Children are adoptable, and adoptive placements had
been identified for both girls. The juvenile court’s finding that severance is
in both Children’s best interests is supported by the record, and we find no
abuse of discretion.
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Decision of the Court
CONCLUSION
¶22 The juvenile court’s order terminating Mother’s parental
rights to the Children is affirmed.
:ama
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