Janna 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
JANNA G., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, K.G., A.G., Appellees.
No. 1 CA-JV 20-0281
FILED 4-6-2021
Appeal from the Superior Court in Maricopa County
No. JS20087
The Honorable Karen A. Mullins, Judge
AFFIRMED
COUNSEL
The Stavris Law Firm, PLLC, Scottsdale
By Alison Stavris
Counsel for Appellant
Arizona Attorney General’s Office, Tucson
By Autumn Spritzer
Counsel for Appellee Department of Child Safety
JANNA G. v. DCS, et al.
Decision of the Court
MEMORANDUM DECISION
Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Jennifer M. Perkins and Judge Randall M. Howe joined.
C R U Z, Judge:
¶1 Janna G. appeals the superior court’s order terminating her
parental rights to her children, K.G. and A.G. (“the children”). For the
following reasons, we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 Janna has a more than twenty-year history of abusing drugs.
She began using heroin and methadone in her late teens, continued using
one or the other as an adult, and used marijuana and benzodiazepines in
combination with heroin and methadone. K.G. was born in 2012 and A.G.
was born in 2014. Both children were born exposed to substances in utero.
¶3 In April 2016, the Department of Child Safety (“DCS”)
received multiple reports that Janna was using methamphetamine, asking
neighbors for drugs, and neglecting the children. Janna was evicted from
her apartment in May 2016, and reportedly was living in her car with the
children. A DCS case manager contacted Janna in August 2016. The case
manager observed that Janna was under the influence. She lied to the case
manager, claiming to have been clean from heroin since 2009. 1 Janna
refused to take a drug test, and although she told the investigator she had
sought methadone treatment in the past she refused to sign a release to
allow DCS to obtain her methadone treatment records.
1 In June 2016 Janna went to Thunderbird Treatment Center (“TTC”)
seeking to re-enter its methadone maintenance program. During intake
Janna admitted she had been using heroin for thirteen years and that she
had been “using every benzodiazepine in the World.” She admitted to
having used heroin the day before the intake appointment. TTC performed
a drug screen that day which was positive for opiates. The TTC LPN
discussed the risks of taking methadone together with benzodiazepines
with Janna, and reviewed TTC’s benzodiazepine policy with her.
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JANNA G. v. DCS, et al.
Decision of the Court
¶4 DCS removed the children from Janna’s care and filed a
dependency petition. In August 2016 Janna submitted a hair follicle test
which was positive for marijuana and opiates, and a urinalysis test that was
positive for marijuana. The superior court found the children dependent
and DCS put reunification services in place.
¶5 In December 2017, after Janna appeared to be making
progress, DCS returned A.G. to her care and assigned a family reunification
team. K.G. remained in foster care. The next month, police were called
when four-year-old A.G. was found wandering alone outside in a parking
lot near a busy street, and DCS again removed A.G. from Janna’s care. DCS
then discovered that Janna had been mixing Xanax (for which she did not
have a prescription) with her prescription methadone.
¶6 For more than three years, DCS offered Janna reunification
services, including substance abuse testing and treatment, parent aide
services, parenting classes, community-based psychiatric services,
individual counseling, dialectical behavioral therapy (“DBT”),
psychological evaluations, supervised visitation, therapeutic visitation, a
best interests evaluation, and transportation. DCS invited her to attend the
children’s medical appointments and monthly child and family team
meetings. Janna participated in services but was resistant to therapeutic
treatment and minimized her drug use. She continued to mix
benzodiazepines or marijuana with her methadone, which caused
impairment, and was unable to stop using multiple drugs for more than a
few weeks at a time. She also resisted DCS’ attempts to obtain records from
her service providers.
¶7 On April 25, 2018, Janna tested positive for
methamphetamines, methadone, and benzodiazepines. Around the same
time (on or about May 1, 2018), Janna accidentally sent a text message to her
DCS case aide asking someone for “clear,” a street term for
methamphetamines. The case aide also received texts from Janna stating,
“Hello people Hello please call I have Stuff for u,” and several wherein she
offered individuals marijuana edibles. Janna’s cell phone contact name
appeared as “Deena Xanax” and her photograph appeared next to the text
messages.
¶8 In July 2018, Janna’s outpatient drug treatment provider,
TERROS, recommended that she enter residential treatment, noting her
lack of progress over the past two years. DCS repeatedly asked Janna to
follow TERROS’ recommendation for residential treatment, but she refused
to do so. That same month, Janna’s latest methadone clinic told DCS that
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JANNA G. v. DCS, et al.
Decision of the Court
the clinic had been unaware that (1) she had an extensive methadone and
benzodiazepine history, and (2) other doctors had prescribed her opiates.
¶9 Between July and October 2018, Janna lived at five different
homes. In August 2018 she reported that she had stopped using medical
marijuana but in October 2018 tested positive “for levels . . . well above the
cut off.” Janna admitted to DCS that when she used THC together with
methadone her functioning was impaired. During supervised visits with
the children in 2018, Janna appeared drowsy and under the influence of
drugs on multiple occasions. In addition, she was overly emotional during
visits, causing the children to cry, despite constant reminders from case
aides that her behavior was “not fair to [the children]” because it caused
them “unneeded stress.” Janna often struggled with redirecting K.G., and
often allowed “an excessive amount of screen time for [the] children that
encompasse[d] most of the visitation time.”
¶10 In June 2019, DCS filed a petition to terminate Janna’s
parental rights to the children pursuant to Arizona Revised Statutes
(“A.R.S.”) section 8-533(B)(3) (chronic substance abuse) and 8-533(B)(8)(c)
(fifteen months’ out-of-home placement). Between June and August 2019,
Janna tested positive for THC and methadone seven times, and tested
positive for THC, methadone, and benzodiazepines on June 21, 2019.
¶11 In July 2019, the ongoing DCS case manager attended a
supervised visit between Janna, K.G.’s father, and the children and
observed that Janna appeared to be “[u]nder the influence . . . or hindered
in some sort of capacity.” Janna “was not clear headed, her eyes were half
closed, her speech was slow, and her hands were shaking.” In December
2019, the case manager discussed Janna with K.G.’s father, who told the
case manager he agreed with her assessment that Janna seemed unable to
maintain sobriety for more than two weeks at a time. At the time of the
termination adjudication hearing, Janna’s methadone dose had increased
from 15 milligrams to 105 milligrams. In addition, she admitted that she
was still using marijuana about five times a month and was still taking a
benzodiazepine, Klonopin, despite TERROS’ recommendation to stop.
¶12 After a six-day termination adjudication hearing, the superior
court terminated Janna’s parental rights on the grounds alleged in the
petition. Janna timely appealed, and we have jurisdiction pursuant to
A.R.S. §§ 8-235(A), 12-120.21(A)(1), -2101(A)(1).
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JANNA G. v. DCS, et al.
Decision of the Court
DISCUSSION
I. Fifteen Months’ Out-of-Home Placement
¶13 Janna argues that insufficient evidence supported the
superior court’s finding that termination was warranted under A.R.S.
§ 8-533(B)(8)(c). The superior court may terminate parental rights under
A.R.S. § 8-533(B)(8)(c) if DCS has made diligent reunification efforts, the
parent has been unable to remedy the circumstances causing the parent’s
child to be in an out-of-home placement for fifteen months or longer, 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.”
We view the evidence and the reasonable inferences to be drawn from it in
the light most favorable to affirming the superior court’s order. Jordan C. v.
Ariz. Dep’t of Econ. Sec., 223 Ariz. 86, 93, ¶ 18 (App. 2009). We will not
reverse the superior court’s order unless reasonable evidence does not
support the superior court’s factual findings. Ariz. Dep’t of Econ. Sec. v.
Matthew L., 223 Ariz. 547, 549, ¶ 7 (App. 2010).
¶14 The children had been in an out-of-home placement for more
than three years at the start of the termination adjudication hearing. Janna
argues that she remedied the circumstances causing the children to be in an
out-of-home placement because she consistently participated in services
and demonstrated behavioral changes during the dependency. She also
argues that DCS failed to provide her with appropriate reunification
services.
¶15 In making a determination that a parent has been unable to
remedy the circumstances causing the child to be in an out-of-home
placement, we construe those circumstances to mean the circumstances
existing at the time of the termination that prevented a parent from
appropriately providing for the parent’s child. Marina P. v. Ariz. Dep’t of
Econ. Sec., 214 Ariz. 326, 330, ¶ 22 (App. 2007); see also Donald W. v. Dep’t of
Child Safety, 247 Ariz. 9, 17, ¶ 26 (App. 2019) (court must consider “both the
origin [of the dependency] and any cause arising during the dependency”).
¶16 DCS makes diligent efforts to provide reunification services
when it provides a parent with the time and opportunity to participate in
programs designed to help the parent become an effective parent. Maricopa
Cnty. Juv. Action No. JS-501904, 180 Ariz. 348, 353 (App. 1994). DCS need
not provide “every conceivable service” or ensure that the parent actually
participates in the services offered. Id. Nor is it required to provide a parent
with unlimited time to take positive steps toward recovery. Maricopa Cnty.
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JANNA G. v. DCS, et al.
Decision of the Court
Juv. Action No. JS-501568, 177 Ariz. 571, 577 (App. 1994). DCS is not
required to undertake futile reunification efforts and is required to
undertake only those measures with a reasonable prospect of success. Mary
Ellen C. v. Ariz. Dep’t of Econ. Sec., 193 Ariz. 185, 192, ¶ 34 (App. 1999).
¶17 Here, the superior court found that although DCS made
diligent efforts to provide reunification services to Janna, she was unable to
remedy the circumstances causing the children to be in an out-of-home
placement—her drug use. The court also found that Janna’s housing had
been unstable over the course of the dependency, and that at the time of the
termination adjudication hearing she did not have stable housing or a stable
income. Reasonable evidence supports the court’s findings.
¶18 Dr. Stephanie Leonard, a psychologist, evaluated Janna in
February 2020 and diagnosed her with paranoid personality disorder,
unspecified anxiety disorder (provisional), opioid use disorder, cannabis
use disorder, and benzodiazepine use disorder (provisional). She opined
that even though Janna had engaged in services, the prognosis that Janna
would be able to demonstrate minimally adequate parenting skills was
“poor” in light of her long history of drug abuse. Further, Janna’s prognosis
was poor because she “fails, even after the amount of time of DCS
involvement, to accept responsibility for the reason for DCS involvement,
which may be an indicator that she has difficulties accepting responsibility
for her behaviors, substance abuse, and thinking patterns.” Dr. Leonard
testified that Janna had failed to make significant progress, noting that
issues identified by a previous evaluator as problematic, such as her lack of
insight into her behaviors and her minimizing and failure to accept
responsibility for her actions, still existed. Given Janna’s lack of progress,
Dr. Leonard believed she “would still need a lot more time to get to a place
where her ability to function won’t impact the children in a negative light.”
Dr. Leonard opined that DCS had provided Janna with appropriate
reunification services, including DBT therapy to help her develop coping
skills and increase her mood regulation and impulse control.
¶19 Dr. Al Silberman, a psychologist who evaluated Janna in
December 2016, also testified. Dr. Silberman reviewed DCS’ court reports
and Dr. Leonard’s more recent psychological evaluation. Dr. Silberman
agreed with Dr. Leonard’s assessment that Janna had not made substantial
progress. He explained, “[Janna] still seems to be out of it at times. That
appears to be [the result of] a type of drug use or overuse of methadone or
other types of drugs. . . . [S]he may love her children, but they don’t seem
to be put first. The drugs seem to be first.” Dr. Silberman found Janna’s
mixing of prescription benzodiazepines with benzodiazepines she obtained
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JANNA G. v. DCS, et al.
Decision of the Court
without a prescription “very concerning,” because it indicated she was
“looking to be stoned.” And even though Janna had a prescription for
medical marijuana, Dr. Silberman also found Janna’s use of marijuana in
conjunction with methadone and benzodiazepines concerning. Dr.
Silberman testified that Janna’s potential for being able to parent in the
foreseeable future was “highly question[able].”
¶20 Dr. Steven Bennett, who completed a bonding and best
interests assessment, similarly opined that it was unlikely Janna would
“continue to make any significant progress towards improving her ability
to be a caregiver for [the children].” DCS case manager Nora Al Nasser
testified that Janna had failed to demonstrate sobriety and had not made
substantial progress towards reunification despite the length of the
dependency and the many services she had received.
¶21 Janna completed a year of DBT therapy about a year before
the termination adjudication hearing. She now argues DCS failed to
provide her with appropriate reunification services solely because it “failed
to continue to offer . . . DBT therapy.” DCS argues she waived this
argument by failing to raise the issue before the termination adjudication
hearing. See Bennigno R. v. Ariz. Dep’t of Econ. Sec., 233 Ariz. 345, 349, ¶ 19
(App. 2013); Shawanee S. v. Ariz. Dep’t of Econ. Sec., 234 Ariz. 174, 178-79,
¶¶ 16-18 (App. 2014) (any claim that DCS is failing to provide appropriate
reunification services must be timely raised in the superior court or the
issue is waived). Janna does not assert that she ever requested, before the
termination adjudication hearing, that DCS provide her with additional
DBT therapy. And Janna’s DCS case manager testified that Janna had
received DBT therapy but that after it ended, she resisted his efforts “to get
her back into therapy. It was a challenge . . . .” Although Janna testified
that she would have participated in additional DBT therapy had it been
available, the superior court was not required to find her testimony
credible.2 In addition, Dr. Leonard, who was familiar with all of the services
provided to Janna, including one year of DBT therapy, concluded that the
reunification services were appropriate. Sufficient evidence supports the
superior court’s finding that DCS made diligent efforts to provide
reunification services.
2 Indeed, the superior court found that Janna’s “repeated false
statements on critical issues to this court under oath and to her service
providers render her wholly incredible. The court declines to rely upon
Mother’s self-serving testimony at trial to any degree.”
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JANNA G. v. DCS, et al.
Decision of the Court
¶22 Because sufficient evidence supported the superior court’s
finding that termination was warranted pursuant to A.R.S. § 8-533(B)(8)(c),
we need not consider Janna’s challenge to the alternate ground of chronic
substance abuse. See Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 280,
¶ 3 (App. 2002).
II. Best Interests
¶23 Next, Janna argues the superior court erred by finding that
termination of her parental rights was in the children’s best interests. We
do not reweigh the evidence and will affirm the superior court’s factual
findings if supported by reasonable evidence. Dominique M. v. Dep’t of Child
Safety, 240 Ariz. 96, 97, ¶ 6 (App. 2016). “Although fundamental, parental
rights are not inviolate; a court may still sever those rights 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 98, ¶ 7. Termination is in a child’s best
interests if the child would “derive an affirmative benefit from termination
or incur a detriment by continuing in the relationship.” Ariz. Dep’t of Econ.
Sec. v. Oscar O., 209 Ariz. 332, 334, ¶ 6 (App. 2004). A current adoptive plan
is a well-established affirmative benefit to a child. Id.¶24 Reasonable evidence supported the superior court’s best
interests finding. The children were in an adoptive placement that wished
to adopt them. The placement was meeting all of the children’s needs,
including K.D.’s special needs as a result of his autism diagnosis. Janna
argues she is bonded with the children and she is able to meet their needs.
Although the bond between a parent and child is a factor in assessing best
interests, it is not dispositive. Dominique M., 240 Ariz. at 98, ¶ 12. “Even in
the face of such a bond, the [superior] court is required to evaluate the
totality of circumstances and determine whether severance is in the best
interests of the children.” Id. at 99, ¶ 12. The superior court considered the
totality of the circumstances and found that termination was in the
children’s best interests. Reasonable evidence supports that finding.
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JANNA G. v. DCS, et al.
Decision of the Court
CONCLUSION
¶25 For the following reasons, we affirm the superior court’s
order terminating Janna’s parental rights to the children.
AMY M. WOOD • Clerk of the Court
FILED: AA
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