Tonya C. v. Ades, D.C.

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
TONYA C., Appellant,
v.
ARIZONA DEPARTMENT OF ECONOMIC SECURITY, D.C., Appellees.
No. 1 CA-JV 13-0286
FILED 4-15-2014
Appeal from the Superior Court in Maricopa County
No. JD509843
The Honorable David J. Palmer, Judge
AFFIRMED
COUNSEL
The Stavris Law Firm, PLLC, Scottsdale
By Alison Stavris
Counsel for Appellant
Arizona Attorney General’s Office, Tucson
By Erika Z. Alfred
Counsel for Appellee ADES
TONYA C. v. ADES, D.C.
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Kent E. Cattani delivered the decision of the Court, in
which Judge Margaret H. Downie and Judge Michael J. Brown joined.
C A T T A N I, Judge:
¶1 Tonya C. (“Mother”) appeals from the superior court’s order
terminating her parental rights as to one of her children. For reasons that
follow, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 D.C., born in September 2004, is Mother’s biological son.
D.C.’s father is deceased. The Arizona Department of Economic Security
(“ADES”) took D.C. into custody in January 2012 after Mother was
temporarily jailed. 1
¶3 ADES offered Mother reunification services, including
parent aide services, visitation, drug testing, drug treatment,
psychological and psychiatric evaluations, and individual counseling.
Mother completed parent aide services, but did not fully comply with
supervised visitation requirements, often canceling or failing to attend
visits and acting in a confrontational manner when she did attend.
¶4 Mother failed to consistently submit to drug testing or
regularly participate in drug treatment programs. Although Mother
initially stated that she had never used drugs, she subsequently admitted
testing positive twice for methamphetamines, being arrested for
marijuana possession, and using cocaine daily for a period of years.
Mother eventually completed a drug treatment program, although it took
her nearly eight months to complete the 12-week program.
1 ADES concurrently took Mother’s two older children into care.
After severance as to D.C., the superior court appointed a Title 8
permanent guardian for the older children. This appeal concerns only the
termination of Mother’s parental rights as to D.C., not the subsequent
guardianship order.
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TONYA C. v. ADES, D.C.
Decision of the Court
¶5 Of more than 140 random urinalysis tests required from
January 2012 through July 2013, Mother attempted to provide a sample
only 57 times (and, of those attempts, failed to actually provide a sufficient
sample seven times). She tested positive twice for methamphetamines
and once for alcohol. Mother stopped testing entirely in December 2012,
although she was aware of her continued obligation to do so as a
requirement for reunification with D.C.
¶6 ADES also referred Mother for a hair follicle drug test, which
she failed to complete. Although Mother testified that she had submitted
to hair follicle testing with different laboratories in January and August
2013, she failed to provide ADES with a release to access the January
results and failed to establish the authenticity of the August test results
that she claimed showed she was drug free.
¶7 Mother’s psychological and psychiatric evaluators
recommended individual counseling. Although ADES referred Mother
for counseling, Mother attended only seven of 14 scheduled sessions, and
the referral was closed for non-compliance.
¶8 In April 2013, ADES moved to terminate Mother’s parental
rights as to D.C. on grounds of substance abuse and 15 months’ time in
care. After a two-day contested severance hearing, the superior court
terminated Mother’s parental rights on both grounds.
¶9 Mother timely appealed. We have jurisdiction under Article
6, Section 9, of the Arizona Constitution and Arizona Revised Statutes
(“A.R.S.”) section 8-235. 2
DISCUSSION
¶10 Mother argues that there was insufficient evidence to
support severing her parental rights based on substance abuse and 15
months’ time in care. Mother also argues that the court erred by finding
that ADES made reasonable efforts to provide appropriate reunification
services.
¶11 The superior court may terminate the parent–child
relationship only if clear and convincing evidence establishes at least one
statutory ground for severance. A.R.S. § 8-533(B). The court must also
2 Absent material revisions after the relevant date, we cite a statute’s
current version.
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TONYA C. v. ADES, D.C.
Decision of the Court
find that a preponderance of the evidence establishes that severance is in
the child’s best interests. Id.; Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 22,
110 P.3d 1013, 1018 (2005). We review the superior court’s severance
order for an abuse of discretion, viewing the evidence in the light most
favorable to sustaining the court’s findings and accepting the court’s
factual findings unless clearly erroneous. Mary Lou C. v. Ariz. Dep’t of
Econ. Sec., 207 Ariz. 43, 47, ¶ 8, 83 P.3d 43, 47 (App. 2004); Manuel M. v.
Ariz. Dep’t of Econ. Sec., 218 Ariz. 205, 207, ¶ 2, 181 P.3d 1126, 1128 (App.
2008). We similarly defer to the superior court’s credibility judgments.
Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 280, ¶ 4, 53 P.3d 203, 205
(App. 2002).
¶12 The statutory ground for severance due to substance abuse
requires proof “[t]hat the parent is unable to discharge parental
responsibilities because of . . . a history of chronic abuse of dangerous
drugs, controlled substances or alcohol and [ ] reasonable grounds to
believe that the condition will continue for a prolonged indeterminate
period.” A.R.S. § 8-533(B)(3). Severance under § 8-533(B)(3) also requires
a showing that ADES provided the parent with adequate reunification
services. Mary Ellen C. v. Ariz. Dep’t of Econ. Sec., 193 Ariz. 185, 192, ¶ 34,
971 P.2d 1046, 1053 (App. 1999).
¶13 Mother argues that the superior court erred in assessing the
likelihood she would continue using drugs for a prolonged indeterminate
period. Mother points in particular to evidence that she submitted 46
negative urinalysis tests in 2012 and completed two negative hair follicle
tests in 2013. But the evidence established Mother’s history of chronic
drug use, including near daily cocaine use for several years, at least until
approximately 2009. The record also shows that Mother was arrested for
marijuana possession in 2011 and twice tested positive for
methamphetamines in early 2012.
¶14 The superior court acknowledged that Mother last tested
positive for drugs or alcohol in March 2012, and that the urinalysis tests
she completed thereafter through December 2012 were uniformly clean.
The court noted, however, that Mother tested only sporadically, missing
approximately 90 of the over 140 required tests and failing to test at all
during 2013. Mother admitted that she understood her obligation to
submit to testing, that the court never relieved her of that obligation, and
that reunification with D.C. was at stake, but she nevertheless “opted out”
of testing. Moreover, Mother was aware that missed or diluted tests
would be considered positive and could not be used to prove a period of
sobriety.
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TONYA C. v. ADES, D.C.
Decision of the Court
¶15 Mother argues that two negative hair follicle drug tests in
2013 establish her sobriety. But, although Mother testified that she tested
negative in a hair follicle test completed at a different laboratory in
January 2013, she never released the results of the test to ADES. Mother
also presented a document purporting to be negative hair follicle test
results from another laboratory in August 2013, but she failed to provide
foundation or authentication for that document. Mother’s testimony was
thus the only evidence substantiating these alleged negative hair follicle
results. The superior court expressly found Mother’s testimony not to be
credible in light of her often-changing explanations of substance abuse
and other issues, and we defer to the court’s credibility determination. See
Jesus M., 203 Ariz. at 280, ¶ 4, 53 P.3d at 205.
¶16 Mother also takes issue with the superior court’s finding that
ADES made reasonable efforts to provide appropriate reunification
services. ADES complied, however, with the recommendations of
Mother’s psychological and psychiatric evaluations by referring Mother
for individual counseling. In 2012, Mother attended four counseling
sessions in October, but she only attended one session in November and
one in December, and she did not attend or call in for any scheduled
sessions in January, 2013. Although ADES closed Mother’s counseling
referral, it did so because of Mother’s substantial non-participation.
Closure due to non-compliance does not represent a failure by ADES to
provide appropriate services.
¶17 Moreover, the therapist expressed a willingness to reopen
the referral if Mother was “willing and able to attend regularly,” but
Mother indicated that “it would probably be a waste of both of our time
because I’m not willing to talk to anyone who works under CPS.” ADES
is not obligated to provide reunification services that would be futile.
Mary Ellen C., 193 Ariz. at 192, ¶ 34, 971 P.2d at 1053.
¶18 We conclude that ample evidence supported the superior
court’s finding that severance was warranted based on substance abuse
under A.R.S. § 8-533(B)(3). In light of that conclusion, we need not
address the additional ground of 15 months’ time in care. See Michael J. v.
Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 251, ¶ 27, 995 P.2d 682, 687 (2000).
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TONYA C. v. ADES, D.C.
Decision of the Court
CONCLUSION
¶19 The severance order is affirmed.
:MJT
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