Jennifer M. v. Dcs

NOTICE: NOT FOR PUBLICATION.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
JENNIFER M., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, D.W., K.M., Appellees.
No. 1 CA-JV 16-0118
FILED 11-29-2016
Appeal from the Superior Court in Mohave County
No. B8015JD201304034
The Honorable Richard Weiss, Judge
AFFIRMED
COUNSEL
The Stavris Law Firm PLLC, Scottsdale
By Alison Stavris
Counsel for Appellant
Arizona Attorney General’s Office, Mesa
By Nicholas Chapman-Hushek
Counsel for Appellee, Department of Child Safety
JENNIFER M. v. DCS, et al.
Decision of the Court
MEMORANDUM DECISION
Judge Margaret H. Downie delivered the decision of the Court, in which
Presiding Judge Patricia K. Norris and Judge Samuel A. Thumma joined.
D O W N I E, Judge:
¶1 Jennifer M. (“Mother”) appeals from an order terminating
her parental rights. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Mother was arrested on an outstanding warrant in
September 2013, whereupon the Department of Child Safety (“DCS”) took
custody of then-two-month-old D.W. At the time of her arrest, Mother
had a blood alcohol concentration of 0.17 and was in violation of an order
of protection. Mother denied that D.W. had special needs, though he was
born with a condition that requires feeding him “through a G-tube
inserted into his stomach area,” and he had recently undergone a blood
transfusion.
¶3 The superior court found D.W. dependent. The initial case
plan goal was family reunification. DCS provided services to Mother,
including visitation and transportation, parenting skills and domestic
violence classes, a psychological evaluation, drug/alcohol testing, and
individual counseling. Mother denied having issues with alcohol and
“completely disavowed any personal responsibility for her actions.” The
psychologist who evaluated Mother, though, diagnosed her with “a
serious personality disorder secondary to a substance abuse disorder” and
recommended “full and sustained remission [one year of being clean and
sober]” before DCS ended its involvement.
¶4 In January 2015, Mother gave birth to K.M., and DCS took
custody of him because Mother “had not mitigated any of the concerns
that [DCS] had concerning the removal of her other children.”1
1 Mother has an older child who was also the subject of DCS
intervention, but she is not at issue in this appeal.
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JENNIFER M. v. DCS, et al.
Decision of the Court
¶5 In June 2015, Mother told DCS her significant other was
residing in her home three to four days per week. This individual was a
level one sex offender, and DCS advised Mother he could not be around
the children and stated that if she continued that relationship,
reunification could be jeopardized. Approximately three weeks later,
Mother told DCS the relationship had ended, and the agency began
allowing K.M. to stay overnight in Mother’s home to begin his transition
back to her care. This ended, though, when DCS learned of a shooting at
Mother’s residence.
¶6 On the day of the shooting, Mother told a police officer she
went to the river with K.M. and several other individuals, where she
drank alcohol. Contrary to what she had told DCS, Mother advised the
officer she had been living with her significant other for the past eight
months and stated that a handgun was kept in the bedroom dresser. Her
significant other used this gun to shoot an individual who came to
Mother’s apartment.
¶7 Mother’s version of events was materially different at the
severance trial. She testified to ending her romantic relationship with the
significant other “sometime in June” 2015. When he came to her home to
retrieve his belongings, she said, he ended up “passed out on the couch.”
The next morning, before leaving for the river, she told him to be gone by
the time she returned. When she returned with K.M., though, he was still
there, and the shooting occurred. Mother also denied knowing the
handgun was in the house.
¶8 In September 2015, the case plan changed to severance and
adoption. After a contested trial, the superior court found three statutory
grounds for severing Mother’s parental rights and also found that
severance was in the best interests of D.W. and K.M.
¶9 Mother timely appealed. We have jurisdiction pursuant to
Arizona Revised Statutes (“A.R.S.”) sections 8-235(A), 12-120.21(A)(1) and
-2101(A)(1).
DISCUSSION
¶10 To terminate parental rights, the superior court must find
the existence of one of the grounds enumerated in A.R.S. § 8-533(B) by
clear and convincing evidence. Jesus M. v. Ariz. Dep’t of Econ. Sec., 203
Ariz. 278, 280, ¶ 4 (App. 2002).
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JENNIFER M. v. DCS, et al.
Decision of the Court
¶11 The superior court concluded DCS had proven three
statutory grounds: neglect; chronic abuse of alcohol; and, as to D.W., out-
of-home placement for 15 months or longer. A.R.S. § 8-533(B)(2), (3), 8(c).
Because reasonable evidence supports the chronic alcohol abuse ground
as to both children, we need not address the other grounds found by the
superior court. See Jesus M., 203 Ariz. at 280, ¶ 3 (“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.”).
¶12 We view the evidence in the light most favorable to
sustaining the superior court’s order and will affirm that order if it is
supported by reasonable evidence. Jordan C. v. Ariz. Dep’t of Econ. Sec., 223
Ariz. 86, 93, ¶ 18 (App. 2009). As relevant here, to terminate Mother’s
parental rights based on A.R.S. § 8-533(B)(3), DCS was required to prove
by clear and convincing evidence: (1) a history of chronic abuse of alcohol;
(2) Mother’s inability to discharge parental responsibilities because of her
chronic abuse of alcohol; and (3) “there are reasonable grounds to believe
that the condition will continue for a prolonged and indeterminate
period.” See Raymond F. v. Ariz. Dep’t of Econ. Sec., 224 Ariz. 373, 381, ¶ 15
(App. 2010).
¶13 Mother’s alcohol use has been an issue from the outset of the
dependency proceedings. D.W. was taken into custody after Mother’s
arrest when, as a medically fragile infant, he was left outside on a 104-
degree day while Mother was “drunk.” Additionally, Mother has been
arrested “on numerous occasions while under the influence of alcohol,”
including for driving under the influence. And after DCS took custody of
D.W., police officers responded to a “domestic fight” between Mother and
D.W.’s maternal grandmother. Mother was intoxicated at the time.
¶14 Although Mother completed a number of services, the DCS
case manager testified at trial that she continued to drink alcohol and had
not taken responsibility for her actions or benefitted “from the counseling
or the therapy” provided.2 Additionally, Mother did not consistently
2 Mother argues DCS failed to provide the intensive psychotherapy
recommended by the evaluating psychologist. Mother has waived this
claim, though, by failing to assert it in the superior court. See Shawanee S.
v. Ariz. Dep’t of Econ. Sec., 234 Ariz. 174, 178, ¶¶ 12–13 (App. 2014) (DCS’s
obligation to provide “appropriate reunification services” does not relieve
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JENNIFER M. v. DCS, et al.
Decision of the Court
participate in urinalysis testing. Excluding excused absences, she missed
approximately 30% of the required tests. And Mother tested positive for
alcohol in January 2014, March 2014, and January 2015 (nine days after
giving birth to K.M.). Her last positive test was in September 2015, after
the shooting and after completing parenting classes and individual and
substance abuse counseling. The evaluating psychologist diagnosed
Mother with a substance abuse disorder and recommended she
demonstrate one year of sobriety before resuming parenting
responsibilities. At the time of the February 2016 severance trial, Mother
had not achieved this goal.
¶15 Alcohol abuse “need not be constant to be considered
chronic.” Raymond F., 224 Ariz. at 381, ¶ 16. “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.” Id. at ¶ 25.
Here, reasonable evidence supports the superior court’s finding that
Mother was unable to discharge her parental responsibilities because of
chronic alcohol abuse — a condition likely to “continue for a prolonged
indeterminate period.” See A.R.S. § 8-533(B)(3).
¶16 The superior court also found severance to be in the
children’s best interests. The existence of a current adoption plan can
support a best interests finding. See Bennigno R. v. Ariz. Dep’t of Econ. Sec.,
233 Ariz. 345, 350, ¶ 23 (App. 2013). Other relevant factors include the
current placement’s ability to meet the children’s needs and the negative
effect(s) the statutory ground for severance has on the children. Id.
¶17 The superior court found that terminating Mother’s parental
rights “would benefit the children because it would further the plan of
adoption, which would provide the children with permanence and
stability. The children are residing in an adoptive placement which is
meeting all of their needs.” The record amply supports these findings.
parent of the obligation “to raise a timely objection if the parent believes
services are inadequate.”).
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JENNIFER M. v. DCS, et al.
Decision of the Court
CONCLUSION
¶18 For the foregoing reasons, we affirm the order terminating
Mother’s parental rights to D.W. and K.M.
AMY M. WOOD • Clerk of the Court
FILED: AA
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