Jeuda K. 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
JEUDA K., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, E.P., J.P., M.P., E.B., Appellees.
No. 1 CA-JV 17-0522
FILED 4-26-2018
Appeal from the Superior Court in Maricopa County
No. JD529498
The Honorable Rosa Mroz, Judge
AFFIRMED
COUNSEL
Robert D. Rosanelli, Attorney at Law, Phoenix
By Robert D. Rosanelli
Counsel for Appellant
Arizona Attorney General’s Office, Phoenix
By Amber E. Pershon
Counsel for Appellee Department of Child Safety
MEMORANDUM DECISION
Judge Kenton D. Jones delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge James B. Morse Jr. joined.
JEUDA K. v. DCS, et al.
Decision of the Court
J O N E S, Judge:
¶1 Jeuda K. (Mother) appeals the juvenile court’s order
terminating her parental rights to E.P., J.P., M.P., and E.B. (collectively, the
Children), arguing only that the Department of Child Safety (DCS) failed to
prove the statutory grounds for severance by clear and convincing
evidence. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 In November 2015, DCS received a report that E.P., J.P., and
M.P., then ages eleven, nine, and four, had been left in the care of their
fourteen-year-old brother, S.P., for several days at a time while Mother
stayed with her boyfriend, Cameron B.1 This was not the first time Mother
had left the children alone for an extended period. Additionally, the home
was in disarray, infested with cockroaches, and coated in animal feces and
urine. The food in the refrigerator was spoiled, and the children had been
seen walking to a convenience store late at night to buy food with the credit
card Mother left for them.
¶3 DCS immediately removed all four children from Mother’s
care and filed a petition alleging they were dependent as to Mother on the
grounds of neglect.2 The juvenile court adjudicated them dependent in
December 2015 and adopted a case plan of family reunification. Around
this same time, Mother became pregnant with a fifth child, E.B.
¶4 Mother agreed to undergo substance abuse testing of both her
hair follicle and urine, but did not do so. She was also referred for services,
including visitation, a psychological exam, individual counseling, and
parenting classes, in which she partially participated. In May 2016, Mother
was arrested for a probation violation and incarcerated for eight days. After
twice failing to appear for a psychological evaluation, Mother completed
the evaluation in June. The psychologist determined any children in
1 “[W]e view the evidence and reasonable inferences to be drawn from
it in the light most favorable to sustaining the court’s decision.” Jordan C.
v. Ariz. Dep’t of Econ. Sec., 223 Ariz. 86, 93, ¶ 18 (App. 2009) (citing Jesus M.
v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 282, ¶ 13 (App. 2002)).
2 DCS also alleged these children were dependent as to their father on
the grounds of neglect and substance abuse. His parental rights were
terminated in December 2017, and he is not a party to this appeal.
2
JEUDA K. v. DCS, et al.
Decision of the Court
Mother’s care remained at risk of neglect and recommended she participate
in individual counseling and parent aide services.
¶5 That same month, Mother admitted using marijuana two to
three times per week while pregnant. The juvenile court ordered that she
complete both hair follicle and urinalysis testing for substances no later
than June 14, 2016. She did not do so. Mother submitted to urinalysis
testing for the first time on June 24, 2016 — more than six months after the
Children were removed from her care — and tested positive for marijuana.
¶6 In August 2016, E.B. was born substance-exposed to
marijuana and removed from Mother’s care at the hospital. At the time, the
home Mother shared with Cameron, E.B.’s father, was so cluttered that “it
[was] near impossible to pass through” and entire rooms were inaccessible.
During the scheduled visit, the DCS caseworker observed two bongs in the
master bedroom and one on the bathroom counter. Mother blamed
Cameron for both the bongs and the mess. Cameron, who has a history of
marijuana and methamphetamine use, refused to participate in substance
abuse testing or treatment and maintained Mother’s marijuana use had not
caused E.B. any harm.
¶7 Mother finally submitted to two hair follicle tests in
September 2016; the first was positive for methamphetamine, and the
second was positive for methamphetamine and marijuana. Mother blamed
her positive methamphetamine test result on cold medicine and maintained
that her obstetrician advised her to smoke marijuana during pregnancy to
help with nausea. Mother did not provide any evidence to corroborate
these claims; in fact, the testing agency confirmed the positive
methamphetamine result.
¶8 DCS referred Mother for ongoing substance abuse treatment
and testing. In September and October, Mother submitted thirteen
urinalysis samples. One tested positive for opiates and five tested positive
for benzodiazepines, although she was able to produce a prescription for
these substances. She also tested positive for alcohol — a violation of her
probation. Mother was closed out of parent aide services unsuccessfully
but completed a substance abuse assessment in October, in which she was
diagnosed with amphetamine and cannabis use disorders, and was
assigned to standard outpatient treatment and weekly group therapy. The
living conditions in her home did not improve, and her participation in
visitation was inconsistent.
3
JEUDA K. v. DCS, et al.
Decision of the Court
¶9 Despite having engaged in substance abuse treatment, in
November 2016, Mother missed two consecutive drug tests, submitted two
diluted samples, and tested positive for benzodiazepines one time. She did
not provide an updated prescription for the benzodiazepines, and she
stopped regularly attending individual counseling. In December, she again
missed two scheduled tests and later tested positive for alcohol.
Additionally, the DCS caseworker attempted an unannounced visit at the
home during a time Mother advised she would be available; no one
answered the door or the phone.
¶10 In January 2017, the juvenile court found E.B. dependent as to
Mother on the grounds of substance abuse and neglect and affirmed a case
plan of family reunification. That month, Mother tested as scheduled and
the results were negative for substances. She missed three scheduled
urinalysis tests in February and four scheduled urinalysis tests in a row in
March and April; during this period, she no-showed or cancelled visitation
five times and one-on-one parenting skills sessions six times. At the same
time, she was closed out of individual counseling for lack of contact. DCS
then became concerned about possible domestic violence issues when
Mother presented to services with unexplained bruising. When DCS
advised Mother that her relationship with Cameron was a barrier to
reunification, Mother chose to stay with Cameron, noting they could just
“start over having other children.” Shortly thereafter, the court changed
the case plan for the Children to severance and adoption.3
¶11 In April 2017, DCS observed improvement in the conditions
of Mother’s home and approved in-home visits, albeit restricted to the first
floor. At the time, DCS identified several remaining “areas of concern” in
the home and noted its concerns regarding substance abuse and domestic
violence had yet to be addressed. A few months later, permission for in-
home visits was revoked when the home was observed to be “no longer
safe to walk through,” and the second parent aide referral was closed out
unsuccessfully.
¶12 Although Mother completed standard outpatient substance
abuse treatment in May 2017 and moved on to recovery maintenance, she
was required to start the maintenance program over as a result of “her lack
of participation and the number of missed classes.” Her attendance and
participation did not improve in the second round of recovery
3 The juvenile court changed the case plan for the oldest child, S.P., to
guardianship, and with Mother’s consent, created a permanent
guardianship in November 2017. S.P. is therefore not a party to this appeal.
4
JEUDA K. v. DCS, et al.
Decision of the Court
maintenance. Mother refused to participate in a hair follicle test in August
2017 after she appeared to be under the influence of drugs at a visit. She
also continued to miss groups of tests, which suggested to the DCS
caseworker that Mother had used illegal drugs and was “trying to wait for
the drug to get out of [her] system so [she] will test clean again.”
¶13 Shortly before trial, Mother was hospitalized for four days
“for mental health reasons” after overdosing on sleeping pills. During the
entirety of the proceeding, Mother completed only one parenting class, “for
dads,” sponsored by Babies R Us. She then self-referred for individual
counseling just two weeks before trial.
¶14 At trial in November 2017, the DCS caseworker expressed
concern regarding Mother’s substance abuse, inconsistency with testing
and treatment, and refusal to acknowledge either her own or Cameron’s
methamphetamine use. Additionally, Mother apparently continued to live,
and maintain a romantic relationship, with Cameron even after being
advised multiple times that his refusal to participate in any services was a
barrier to her reunification with the Children and despite DCS’s offers to
provide housing assistance.4 The home itself remained unsafe, even for
visitation. The caseworker testified that unless and until Mother admitted
to and addressed the problems in her home — including living conditions,
domestic violence, and substance abuse — it remained an unsafe living
environment for the Children.
¶15 The DCS caseworker also testified that the Children were all
placed with extended family members who were meeting their regular and
special needs and willing and able to adopt them. She added the Children
would benefit from termination of Mother’s parental rights because it
would provide them the opportunity for permanency in a safe, stable home
free of domestic violence and substance abuse.
¶16 Mother admitted it is unsafe and inappropriate to parent
while under the influence of methamphetamine or marijuana. She testified
she first used marijuana in college and then never used again until her four
older children were in DCS’s care and she was pregnant with her fifth child.
4 Although Mother reported at trial that she had ended her
relationship with Cameron a few weeks earlier, she had not yet moved out
of his home, had no definite plans to do so, and had not told the Children
they were no longer together. Moreover, Mother had previously reported
to a parent aide that Cameron would move out of the house so Mother
could “get [the Children] back, but they would stay a couple.”
5
JEUDA K. v. DCS, et al.
Decision of the Court
Despite testing positive for methamphetamine, she denied using any other
substances except alcohol “on occasion” and denied “hav[ing] a problem
with substances.” Mother first denied any knowledge that Cameron used
methamphetamine. She then acknowledged her relationship with him was
a barrier to reunification but claimed that she only “just came to a full
realization” that the Children were unsafe in her home while he was using
drugs. She denied the conditions in the home presented any safety issues,
however, and blamed her failure to completely engage in counseling,
substance abuse testing, and parent aide services on transportation
difficulties and staffing changes. She did acknowledge the Children were
well-cared-for in their placements and would benefit from permanency.
¶17 On rebuttal, the DCS caseworker confirmed that Mother had
some difficulties with transportation but, in response, DCS arranged for
Mother to call if the cab did not arrive one hour before her counseling
session so “they [c]ould make sure someone was dispatched immediately.”
Mother did not comply. And although Mother’s initial counselor did retire
during the course of the dependency proceedings, Mother had already
stopped participating three months’ before.
¶18 After taking the matter under advisement, the juvenile court
found by clear and convincing evidence that severance was warranted:
(1) as to all the Children because Mother was unable to discharge her
parental responsibilities because of a chronic abuse of dangerous drugs and
there were reasonable grounds to believe the condition would continue for
a prolonged, indeterminate period, see Ariz. Rev. Stat. (A.R.S.) § 8-
533(B)(3);5 and (2) as to E.P., J.P., and M.P. because Mother had been unable
to remedy the circumstances causing them to be in an out-of-home
placement for longer than the statutory period, see A.R.S. § 8-533(B)(8)(c).
The court also found severance to be in the Children’s best interests and
terminated Mother’s parental rights accordingly. Mother timely appealed,
and 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
¶19 To terminate parental rights on the grounds of substance
abuse, the juvenile court must find clear and convincing evidence that:
5 Absent material changes from the relevant date, we cite a statute’s
current version.
6
JEUDA K. v. DCS, et al.
Decision of the Court
[(]1) parent has a history of chronic abuse of controlled
substances or alcohol; [(]2) parent is unable to discharge
parental responsibilities because of his chronic abuse of
controlled substances or alcohol; and [(]3) there are
reasonable grounds to believe that the condition will continue
for a prolonged and indeterminate period.[6]
Raymond F. v. Ariz. Dep’t of Econ. Sec., 224 Ariz. 373, 377, ¶ 15 (App. 2010)
(citing A.R.S. §§ 8-533(B)(3), -537; and Kent K., 210 Ariz. at 280, ¶ 1). 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 Cty. Juv. Action No. JS-
4374, 137 Ariz. 19, 21 (App. 1983), and Maricopa Cty. Juv. Action No. JS-378,
21 Ariz. App. 202, 204 (1974)).
¶20 Mother does not dispute the juvenile court’s finding that she
has a history of chronic substance abuse, arguing only that DCS failed to
prove that she was unable to discharge her parental responsibilities and
that there are reasonable grounds to believe her substance abuse will
continue for a prolonged, indeterminate period.
I. Discharge of Parental Responsibilities
¶21 Mother argues the record establishes that her past drug use
“never was and is not now an impediment to her successful parenting.” We
disagree.
¶22 The term “parental responsibilities” in A.R.S. § 8-533(B)(3)
refers to “those duties or obligations which a parent has with regard to [her]
child.” Raymond F., 224 Ariz. at 378, ¶ 20 (citations omitted). “The term is
not intended to encompass any exclusive set of factors but rather to
establish a standard which permits a trial judge flexibility in considering
the unique circumstances of each termination case.” Id. (quoting Maricopa
6 To sever on this ground, the juvenile court must also find that
reasonable efforts were made to reunify the family, or that such efforts
would not restore the parent’s ability to care for a child within a reasonable
time. See Jennifer G. v. Ariz. Dep’t of Econ. Sec., 211 Ariz. 450, 453, ¶ 12 (App.
2005) (citing Mary Ellen C. v. Ariz. Dep’t of Econ. Sec., 193 Ariz. 185, 191-92,
¶¶ 31-34 (App. 1999)). Additionally, the court must find by a
preponderance of the evidence that severance is in the child’s best interests.
Ariz. R.P. Juv. Ct. 66(C); Kent K. v. Bobby M., 210 Ariz. 279, 288, ¶ 41 (2005).
Mother does not dispute the court’s findings on these issues here.
7
JEUDA K. v. DCS, et al.
Decision of the Court
Cty. Juv. Action No. JS-5894, 145 Ariz. 405, 408-09 (App. 1985)). This Court
has held, however, that a parent is incapable of discharging parental
responsibilities if she cannot make appropriate decisions for a child, fails to
protect the child from harm, or demonstrates an inability to provide a safe
home for the child. Id. at ¶¶ 21-22; cf. JS-5894, 145 Ariz. at 408 (finding that
“establishment of a personal relationship with one’s child is necessarily a
parental responsibility” but that achievement alone was insufficient to
defeat severance under A.R.S. § 8-533(B)(3)).
¶23 Here, the juvenile court found the Children remained at risk
of harm in Mother’s care because she refused to acknowledge her own
substance abuse and “continues to live with and have a relationship with a
man who is still a methamphetamine addict and who abuses her.” Mother
was thus unable to discharge the basic parental responsibility of providing
the Children a safe home as a result of her substance abuse. Reasonable
evidence supports these findings, and we find no error.
II. Likelihood of Future Substance Abuse
¶24 To support her argument that she is not at risk for continued
substance abuse, Mother reiterates her excuses that the positive
methamphetamine tests resulted from her use of cold medicine and that she
used marijuana while pregnant upon the advice of her doctor. But the
juvenile court specifically rejected these excuses after finding Mother not
credible, and we do not reweigh 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., 203 Ariz. at 280, ¶ 4).
¶25 Mother also argues her successful completion of standard
outpatient and recovery maintenance programs “demonstrated her
commitment to a sober lifestyle.” Although the juvenile court commended
Mother for her participation in and completion of these services, it
nonetheless found that, despite these services, Mother remains “in denial
about her own drug abuse issues.” The court further found Mother had
failed to complete parent aide services and had failed to fully comply with
substance abuse testing and individual counseling, and “d[id] not find
Mother’s excuse for not fully participating in the services credible or
persuasive.” Moreover, Mother missed her opportunity to affirmatively
prove her sobriety by refusing to complete a hair follicle test in August 2017
and not testing consistently.
8
JEUDA K. v. DCS, et al.
Decision of the Court
¶26 Mother’s completion of substance abuse treatment —
unaccompanied by confirmed sobriety, a successful display of parenting
skills, or dissociation from known drug users — does not conclusively
prove she has cured her substance abuse problems. See Raymond F., 224
Ariz. at 378 (“Where the parent has been unable to rise above the addiction
and experience sustained sobriety in a noncustodial setting, and establish
the essential support system to maintain sobriety, there is little hope of
success in parenting.”) (quoting In re N.F., 579 N.W.2d 338, 341 (Iowa App.
1998)); Maricopa Cty. Juv. Action No. JS-501568, 177 Ariz. 571, 577 (App. 1994)
(affirming the termination of parental rights where “a parent substantially
neglected to remedy her addiction during more than a year of out-of-home
placement . . . even though the parent eventually beg[an] a successful
recovery before the severance hearing”). Rather, the circumstances here,
viewed in totality, support the juvenile court’s conclusion that “Mother’s
lack of engagement in parenting skills sessions, substance abuse treatment
and relationships with . . . active drug users . . . creates a reasonable
likelihood that Mother’s substance abuse will continue for a prolonged
period of time.” We find no error.7
CONCLUSION
¶27 The juvenile court’s order terminating Mother’s parental
rights to the Children is affirmed.
AMY M. WOOD • Clerk of the Court
FILED: AA
7 “If clear and convincing evidence supports any one of the statutory
grounds on which the juvenile court ordered severance, we need not
address claims pertaining to the other grounds.” Jesus M., 203 Ariz. at 280,
¶ 3 (citing Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 251, ¶ 27
(2000)). Accordingly, we do not address Mother’s argument that DCS failed
to prove severance was warranted based upon the length of time J.P., E.P.,
and M.P. were in out-of-home care.
9