In Re Term of Parental Rights as to B.V.

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
IN RE TERMINATION OF PARENTAL RIGHTS AS TO B.V.
No. 1 CA-JV 23-0036
FILED 6-27-2023
Appeal from the Superior Court in Maricopa County
JD29462
The Honorable Pamela S. Gates, Judge
AFFIRMED
COUNSEL
John L. Popilek, P.C., Scottsdale
By John L. Popilek
Counsel for Appellant
Arizona Attorney General’s Office, Tucson
By Jennifer R. Blum
Counsel for Appellee Department of Child Safety
IN RE TERM OF PARENTAL RIGHTS AS TO B.V.
Decision of the Court
MEMORANDUM DECISION
Judge Daniel J. Kiley delivered the decision of the Court, in which Presiding
Judge Maria Elena Cruz and Judge James B. Morse Jr. joined.
K I L E Y, Judge:
¶1 Mattique J. (“Mother”) appeals the juvenile court’s order
terminating her parental rights to her child, B.V. Because reasonable
evidence supports the termination order, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 In March 2019, Mother and Brandon V. (“Father”) took their
six-month-old child, B.V., to the hospital when the child began shaking
uncontrollably. B.V. was diagnosed with a seizure disorder.
¶3 While the parents and B.V. were at the hospital, DCS received
a report that the police had been called to the scene after Mother claimed
that Father grabbed her by the throat. The record does not make clear
whether the police arrested Father.1
¶4 During the ensuing DCS investigation, Mother reported that,
before she and Father separated shortly after B.V.’s birth, she had “made
many [police] reports” about Father’s acts of domestic violence over the
course of their relationship. Mother nonetheless stated she had no concerns
about B.V.’s safety with Father, explaining that, notwithstanding his acts of
domestic violence, Father is “a good guy.” At DCS’s request, Mother
underwent a hair follicle test; the results were positive for cocaine and THC
(marijuana).
¶5 Although B.V.’s hospital discharge instructions included
scheduling both a follow-up appointment and an appointment with a
neurologist, neither Mother nor Father ever scheduled either appointment
for the child.
¶6 DCS removed B.V. from the parents’ custody and filed a
dependency petition in May 2019. The dependency petition alleged that
1The record indicates, however, that the police arrested Mother on an
outstanding warrant for prostitution.
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Decision of the Court
Mother did not provide “proper and effective parental care” due to
substance abuse, mental health issues, domestic violence, and a failure “to
provide for the child’s basic needs.” The petition further alleged that Father
did not properly care for B.V. due to domestic violence and was neglecting
B.V.’s basic needs. The juvenile court adjudicated B.V. dependent as to both
parents. B.V. was placed with her paternal grandmother in California.
¶7 In April 2020, Mother self-referred for substance abuse
treatment. In her intake, she indicated that she “used to struggle with
cocaine” but had “not been hooked on it for 3-4 years.” She admitted,
however, that she had not given up on cocaine use entirely, stating that she
“would only use recreational now.”
¶8 Mother successfully completed her substance abuse
treatment in October 2020. After that, Mother engaged in substance abuse
testing sporadically, going months at a time without testing at all.2 Not until
February 2022 did Mother begin to undergo testing consistently. In
February 2022, she underwent a hair follicle test that was negative for
cocaine. In April 2022, however, she underwent a urinalysis test that was
positive for cocaine. Three months later, Mother stopped testing altogether.
¶9 In September 2022, DCS moved to terminate Mother’s and
Father’s parental rights to B.V. on the grounds of substance abuse, see A.R.S.
§ 8-533(B)(3), and B.V.’s extended out-of-home placement, see A.R.S. § 8-
533(B)(8)(a), (c).
¶10 The matter proceeded to trial in November 2022. At trial,
Mother testified that she first used cocaine—“just a one-time use”—when
she was sixteen years old. She testified that she began using “like twice a
month” during her two-year relationship with Father but had not used
cocaine since their relationship ended in 2018. Mother explained that,
during their relationship, she felt compelled to use cocaine whenever Father
did for fear that he “would beat the heck out of [her]” if she refused to
“party” with him. Mother disputed the accuracy of the April 2022 positive
urinalysis test results, explaining that, upon receiving the results, she
immediately offered to undergo a hair follicle test because she “knew [the
positive result] wasn’t possible.”
¶11 Mother also testified that she maintained a relationship with
B.V. over the course of the dependency proceedings by calling or video
2 When she did test, Mother consistently tested positive for THC, which was
unsurprising because she had a medical marijuana card.
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IN RE TERM OF PARENTAL RIGHTS AS TO B.V.
Decision of the Court
chatting daily. She stated that she traveled to placement’s home in
California to visit B.V. in September 2022, and that she would have visited
B.V. more often if she could have afforded to do so.
¶12 DCS Case Manager Christopher Melton testified, inter alia,
that Mother told him in November 2021 that she was participating in
weekly domestic violence counseling at the Family Involvement Center.
When Melton contacted the Family Involvement Center to verify Mother’s
report, he learned that Mother was not engaged in domestic violence
counseling or receiving any services other than housing support. Moreover,
Melton learned that the person that Mother identified as her counselor at
the Family Involvement Center was no longer employed there. At trial,
Mother did not controvert Melton’s testimony on this point.
¶13 The juvenile court terminated Mother’s parental rights under
A.R.S. § 8-533(B)(3) (substance abuse) and A.R.S. § 8-533(B)(8) (fifteen
months’ time-in-care). Mother appealed, and we have jurisdiction.3 See
A.R.S. §§ 8-235(A), 12-120.21(A), -2101(A)(1).
DISCUSSION
¶14 Parents’ right to the custody and control of their children,
while fundamental, is not absolute. Michael J. v. Ariz. Dep’t of Econ. Sec., 196
Ariz. 246, 248, ¶¶ 11-12 (2000). Termination of a parent’s rights requires
proof, by clear and convincing evidence, of one of the statutory grounds set
forth in A.R.S. § 8-533(B). Id. at 249, ¶ 12. Evidence is “clear and convincing”
if it is “highly probable or reasonably certain.” Kent K. v. Bobby M., 210 Ariz.
279, 284-85, ¶ 25 (2005) (citation omitted). The court must also find, by a
preponderance of the evidence, that termination is in the child’s best
interests. Timothy B. v. Dep’t of Child Safety, 252 Ariz. 470, 474, ¶ 13 (2022).
¶15 “We review an order terminating a parent’s relationship with
his or her child . . . in the light most favorable to sustaining the superior
court’s ruling.” Calvin B. v. Brittany B., 232 Ariz. 292, 296, ¶ 17 (App. 2013).
We “will accept the juvenile court’s findings of fact unless no reasonable
evidence supports those findings, and we will affirm a severance order
unless it is clearly erroneous.” Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz.
278, 280, ¶ 4 (App. 2002). This Court does not reweigh the evidence on
review but “look[s] only to determine if there is evidence to sustain the
3The court also terminated Father’s rights, but he is not a party to this
appeal.
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Decision of the Court
court’s ruling.” Mary Lou C. v. Ariz. Dep’t of Econ. Sec., 207 Ariz. 43, 47, ¶ 8
(App. 2004).
¶16 A.R.S. § 8-533(B)(3) establishes grounds for termination if
“the parent is unable to discharge parental responsibilities because of . . . a
history of chronic abuse of dangerous drugs, controlled substances or
alcohol and there are reasonable grounds to believe that the condition will
continue for a prolonged indeterminate period.” “[D]rug abuse need not be
constant to be considered chronic.” Raymond F. Ariz. Dep’t of Econ. Sec., 224
Ariz. 373, 377, ¶ 16 (App. 2010) (emphasis added). Rather, chronic drug
abuse is that which “last[s] a long time” and is “long-continued, lingering,
and inveterate.” Id. (citation omitted).
¶17 Mother argues that the evidence at trial did not establish that
she “had a continuing issue with cocaine” after her relationship with Father
ended, asserting that she successfully completed substance abuse treatment
in October 2020, tested “clean” in February 2022, and disputed the positive
results of the drug test in April 2022. “Even if the April 2022 test was
accurate,” Mother argues, “it showed nothing more than one ‘stumble’ over
a multi-year period.”
¶18 We disagree. The undisputed evidence shows that Mother
used cocaine before, during, and after her relationship with Father. Mother
testified at trial that she first used cocaine when she was sixteen years old
and that she used it multiple times each month throughout her two-year
relationship with Father. Mother underwent a hair follicle test in April 2019
that was positive for cocaine. Evidence in the record establishes that a
positive hair follicle test result “indicates chronic long-term use.” Although
Mother testified that she had not used cocaine since “probably like October
of 2018,” she admitted during her substance abuse treatment intake in 2020
that she “would only use recreational now.” And though Mother disputed
the positive results of the April 2022 urinalysis test, it is the juvenile court’s
prerogative to weigh conflicting evidence and make credibility
determinations. See Mary Lou C., 207 Ariz. at 47, ¶ 8. Because Mother’s
cocaine use started when she was a teenager and continued into
adulthood—and as recently as seven months before the termination trial—
a reasonable fact finder could find it highly probable or reasonably certain
that Mother has a history of chronic cocaine use. See Jennifer S. v. Dep’t of
Child Safety, 240 Ariz. 282, 287, ¶ 17 (App. 2016) (“Chronic substance abuse”
within the meaning of A.R.S. § 8-533(B) is “long-lasting but not necessarily
constant substance abuse.”)
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IN RE TERM OF PARENTAL RIGHTS AS TO B.V.
Decision of the Court
¶19 Moreover, a fact finder could reasonably find grounds to
believe that Mother’s cocaine use would continue for a “prolonged” and
“indeterminate period.” See A.R.S. § 8-533(B)(3). When assessing whether
“the condition will continue for a prolonged indeterminate period,” a court
may consider “the length and frequency” of a parent’s “prior substance
abuse” and the results of the parent’s “prior efforts to maintain sobriety.”
Jennifer S., 240 Ariz. at 287, ¶¶ 19-20. “It is not the number of times that [a
parent] has tested positive or negative for drug abuse that is key, but rather,
it is the fact that [the parent] has consistently failed to abstain from drugs.”
Raymond F., 224 Ariz. at 379, ¶ 29.
¶20 Here, Mother not only has a lengthy history of cocaine use but
also failed to engage consistently in drug testing during the dependency
proceedings, leaving the court unable to assess her current sobriety.
Mother’s claim to have abstained from cocaine use since 2018 cannot be
accepted at face value, particularly since she was found to have lied when
she claimed to be engaged in domestic violence counseling in November
2021. And Mother’s failure to undergo any testing at all after July 2022, even
after DCS filed its termination motion in September 2022, further shows
that she is unable to rise above her addiction. See Raymond F., 224 Ariz. at
379, ¶ 29 (noting that a parent’s “failure to remedy his [or her] drug abuse[,]
despite knowing the loss of his [or her] children was imminent, is evidence
[the parent] has not overcome” his or her drug dependence); see also Jennifer
S., 240 Ariz. at 287-88, ¶¶ 21, 25 (citing mother’s “refus[al] to take most of
her required drug tests” as record support for juvenile court’s finding that
“reasonable grounds exist to believe the condition will continue for a
prolonged indeterminate period”). We therefore conclude that the juvenile
court properly found, by clear and convincing evidence, reasonable
grounds to believe Mother’s chronic drug use would continue for a
prolonged, indeterminate period.
¶21 The juvenile court found that Mother’s chronic substance
abuse leaves her “unable to discharge parental responsibilities” because her
“inability to maintain sobriety” deprives B.V., a young and vulnerable
child, of “a safe and stable home.” Among other things, the court noted,
Mother failed to arrange follow-up medical care for B.V.’s seizure disorder
after the child’s discharge from the hospital in March 2019. Mother does not
challenge this finding, and we need not address it further. Reasonable
evidence, therefore, supports the juvenile court’s finding of statutory
grounds for termination under A.R.S. § 8-533(B)(3).
¶22 Because clear and convincing evidence supports termination
of Mother’s parental rights under A.R.S. § 8-533(B)(3) (substance abuse), we
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IN RE TERM OF PARENTAL RIGHTS AS TO B.V.
Decision of the Court
need not evaluate whether reasonable evidence also supports the court’s
termination under A.R.S. § 8-533(B)(8) (fifteen months’ time-in-care). 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.”).
¶23 A court cannot terminate a parent’s rights without first
finding that termination is in the child’s best interests. A.R.S. § 8-533(B);
Michael J., 196 Ariz. at 249, ¶ 12. Here, the court found that termination was
in B.V.’s best interests because she was in an adoptive kinship placement
where her needs were being met. Indeed, the court found, B.V. was
“thriving in her current placement.” Mother does not challenge the court’s
best interests determination on appeal. We therefore accept it and need not
address it further. See Denise R. v. Ariz. Dep’t of Econ. Sec., 221 Ariz. 92, 97,
¶ 20 n.7 (App. 2009) (affirming termination order in part because appellant
did not “challenge the juvenile court’s finding that termination of her
parental rights was in the best interests of the children”).
CONCLUSION
¶24 We affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
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