In Re Term of Parental Rights as to Z.A.

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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 Z.A., Z.A., and Z.A.
No. 1 CA-JV 23-0064
FILED 7-25-2023
Appeal from the Superior Court in Maricopa County
No. JD532027, JS520238
The Honorable Cassie Bray Woo, Judge
AFFIRMED
COUNSEL
Robert D. Rosanelli Attorney at Law, Phoenix
By Robert D. Rosanelli
Counsel for Appellant, Father
Maricopa County Public Advocate’s Office, Mesa
By Suzanne Sanchez
Counsel for Appellant, Mother
Arizona Attorney General’s Office, Tucson
By Jennifer L. Thorson
Counsel for Appellee Arizona Department of Child Safety
Center for the Rights of Abused Children, Phoenix
By Timothy D. Keller
Counsel for Appellee
IN RE TERM OF PARENTAL RIGHTS AS TO Z.A., et al.
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Michael J. Brown delivered the decision of the Court, in
which Judge Andrew M. Jacobs and Judge Angela K. Paton joined.
B R O W N, Judge:
¶1 Zuilma P. (“Mother”) and Santos A. (“Father”) appeal the
juvenile court’s order terminating their parental rights to their children. For
the following reasons, we affirm.
BACKGROUND
¶2 Mother and Father (“Parents”) are the biological parents of
Zach (born in 2017) and Zoe (born in 2019). Mother and an alleged father
are the parents of Zander (born in 2015).1 Zander’s alleged father is not a
party to this appeal.
¶3 In August 2018, the Department of Child Safety (“DCS”)
received a report that Mother and Father were using drugs. Parents
completed hair follicle tests and tested positive for methamphetamine
(“meth”). Father also engaged in domestic violence against Mother in the
presence of Zach and Zander, including two incidents Mother reported to
law enforcement in August and September 2018.
¶4 DCS took Zach and Zander into custody in October 2018.
While Zander was initially placed in a licensed foster home, DCS moved
him to the home where Zach was living, a specially licensed foster home
for children with developmental disabilities. When Zoe was born in June
2019, she was also taken into DCS custody and placed in foster care. DCS
petitioned for dependency, alleging the children were dependent due to
neglect. On separate occasions during 2019, the court found Zach and Zoe
dependent as to Parents, and Zander dependent as to Mother. The court
approved a case plan of family reunification.
¶5 During this timeframe, DCS referred Parents for supervised
visitation, substance abuse treatment (Terros), and drug testing. Parents
were also referred for psychological evaluations to assess parenting ability.
Mother attended her evaluation with Dr. Franza in January 2019. He
1 We use pseudonyms for the children to protect their identities.
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diagnosed her with a major depressive disorder, mild intellectual disability,
mild meth use disorder (in remission), and specific learning disorders with
impairments in reading and written expression. Dr. Franza opined that
Mother’s ability to demonstrate minimally adequate parenting skills in the
foreseeable future was poor at best, in part because of her
co-morbid diagnoses and belief that she did not need to learn anything to
improve her parenting skills. He also assessed her to be in the
“[p]re-contemplation stage” of change regarding drug use, meaning she
“appear[ed] to be at a high risk of relapse.” He further concluded there
were “reasonable grounds to believe that the conditions will continue for a
prolonged, indeterminate period of time.”
¶6 Dr. Franza evaluated Father in January 2019, diagnosing him
with an unspecified personality disorder, moderate meth use disorder (in
remission), and a mild intellectual disability. Dr. Franza concluded that
Father’s ability to demonstrate minimally adequate parenting skills in the
foreseeable future was poor. Further, there were “reasonable grounds to
believe that the conditions [would] continue for a prolonged, indeterminate
period of time[,]” as individuals with similar diagnoses took an
indeterminate amount of time to learn and develop new skills and change
maladaptive behaviors.
¶7 Dr. Franza recommended that Parents receive: (1) individual
therapy provided by a qualified Spanish speaking therapist who has
worked with individuals who have intellectual difficulties, (2) specialized
substance use treatment, (3) parenting classes and parent aide services in
Spanish provided by staff who have experience working with individuals
with limited intellectual functioning, (4) community resources to support
self-care development, and (5) referrals to community programs.
¶8 DCS continued to provide services to Mother and Father,
including parent aide services that included skill sessions, individual
counseling, family counseling, assigned parent support partners, and
transportation. Given Parents’ progress, including completing substance
abuse treatment and participating in maintenance recovery, Zander was
returned to Mother’s custody in February 2020. But in August 2020, Mother
had to leave the family home with Zander due to Father’s domestic
violence. She enrolled at a domestic violence shelter with Zander but was
required to leave shortly after because she disclosed the location, and she
went to maternal grandmother’s house, which DCS had previously
assessed as unsafe. The court then ordered Zander to be placed in DCS
custody.
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¶9 DCS referred Mother for an updated psychological
evaluation in January 2021. Dr. Franza suspected drug use, noting that
Mother said she traveled to Mexico where she “tend[ed] to drink and use
drugs.” The diagnoses were the same as in the previous evaluation, but
also included an unspecified personality disorder, alcohol use disorder, and
cannabis use disorder. Dr. Franza’s prognosis remained that Mother’s
ability to demonstrate minimally adequate parenting skills in the
foreseeable future was poor at best, and she had not achieved notable
progress with her therapeutic recommendations. He gave substantially
similar recommendations as in the previous evaluation and concluded that
although Mother had been provided significant support, she was still
having difficulty engaging in treatment and in making progress. He
therefore opined that continued services “may be futile.”
¶10 Around the same time, DCS referred Mother for a psychiatric
evaluation at Terros and substance testing due to concerns about her social
media posts involving alcohol. Dr. Franza was provided with updated
information on Mother’s substance abuse and issued a revised evaluation
in August 2021. He stated that one of the factors impacting Mother’s ability
to parent was that it was “highly likely” she was using drugs and lacked
insight into how this impacted her functioning. Addressing mental health
and parenting services, Dr. Franza stated that “individual therapy services
may be futile, as [Mother] has not benefited from these services in the past.”
And given her continued drug use during her open DCS case and the
services provided, he opined that Mother was “unlikely to benefit from
continued services, as she has not demonstrated improvement in this area.”
Dr. Franza concluded that “[g]iven the nature and extent of [Mother’s]
condition, continued services are futile at this point.”
¶11 In October 2021, Zoe’s foster parents petitioned to terminate
Parents’ rights as to Zoe based on A.R.S. § 8-533(B)(8)(c) (fifteen months’
time-in-care), and they later amended the petition to include A.R.S.
§ 8-533(B)(3) (chronic substance abuse). Meanwhile, DCS continued to
provide Mother with services in 2021 and 2022, including supervised
visitation with a case aide, parent aide services (including parenting skill
sessions), information on and transportation to the children’s medical
appointments, a Spanish support group with virtual classes, Family
Connections (which helped her connect with resources), and a Terros
Spanish-speaking substance abuse counselor.
¶12 DCS lost contact with Father sometime in 2020 and was
unaware of his whereabouts until he contacted DCS in December 2020.
Father again stopped contacting DCS or engaging in services for several
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months in 2021. When possible, DCS provided Father with services during
2021 and 2022, including supervised visitation, a referral for a psychiatric
evaluation, Terros services, drug testing, a case aid with the Nurturing
Parenting Program, and Family Connections.
¶13 In February 2022, DCS moved to terminate Mother and
Father’s parental rights based on fifteen months’ time-in-care and chronic
substance abuse grounds. DCS then referred Parents for psychological
evaluations to assess parenting ability.
¶14 Dr. Menendez evaluated Father in July 2022. She diagnosed
Father with substance use disorder, which included underlying personality
trait disturbances triggering his substance abuse, and a substantial
deficiency in cognitive functioning. She opined that his prognosis to
achieve “better results from repeated substance abuse treatment is
guarded” due to his “proclivity to relapse” and his tendency to
under-utilize the skills he learned in rehabilitation. Her recommendations
included continued parenting services that provided “‘hands on’
instruction and use[d] visual cues and prompts.”
¶15 Mother was also evaluated. Her diagnoses included a mild
intellectual disability, a depressive mentation, and “most importantly”
severe substance use disorder. Dr. Menendez opined that although Mother
had been given multiple services designed to enhance her parenting
capabilities, she was “unsuccessful at reaching minimal levels of adequate
parenting” and continued to be “only marginally compliant with the
services assigned to her.” Dr. Menendez opined that Mother’s ability to
safely parent her children in the foreseeable future was “poor[,]” and her
“progress seem[ed] stationary and unlikely to change over time.” While
Dr. Menendez did recommend services for Mother, she said they were
“designed to bring closure to [Mother] with regard to her children and
redirect her focus to her sobriety and to maintaining her own safe
wellbeing.” She concluded that Mother was “unlikely to improve her
functioning despite continued services.”
¶16 The juvenile court held a three-day termination adjudication
hearing on foster parents’ and DCS’s petitions in January and February
2023, receiving testimony from Dr. Franza, Dr. Menendez, Parents’ DCS
case manager, and Father’s Terros clinician. Father was not present at the
hearing and the court treated his “failure to appear as a waiver of his rights
and an admission of the allegations” in DCS’s motion. After providing a
detailed analysis of the law and evidence, the court terminated Mother’s
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and Father’s parental rights. Parents timely appealed, and we have
jurisdiction under A.R.S. § 8-235(A).
DISCUSSION
¶17 To terminate parental rights, a court must find (1) by clear and
convincing evidence that at least one statutory ground in A.R.S. § 8-533(B)
has been proven, and (2) by a preponderance of the evidence that
termination is in the child's best interests. See Jennifer S. v. Dep’t of Child
Safety, 240 Ariz. 282, 286, ¶ 15 (App. 2016). As the trier of fact, the 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). Accordingly, we will affirm
the termination order if it is supported by reasonable evidence. Jordan C. v.
Ariz. Dep’t of Econ. Sec., 223 Ariz. 86, 93, ¶ 18 (App. 2009).
¶18 To terminate parental rights under the chronic substance
abuse ground, DCS must prove by clear and convincing evidence that
Parents were “unable to discharge [their] parental responsibilities” because
of their substance abuse and “there are reasonable grounds to believe that
the condition will continue for a prolonged indeterminate period.” A.R.S.
§ 8-533(B)(3). Also, before acting to terminate parental rights for chronic
substance abuse, DCS “has an affirmative duty to make all reasonable
efforts to preserve the family relationship.” See Mary Ellen C. v. Ariz. Dep’t
of Econ. Sec., 193 Ariz. 185, 186, ¶ 1 (App. 1999). DCS need not provide
services that would be futile, nor ensure parents participate in the services
offered, but DCS must at least provide “the parent[s] with the time and
opportunity to participate in programs designed to help [them] to become
an effective parent.” Christina G. v. Ariz. Dep’t of Econ. Sec., 227 Ariz. 231,
235, ¶ 14 (App. 2011) (internal quotations omitted). DCS “is not required
to provide every conceivable service or to ensure that a parent participate
in each service it offers.” Maricopa Cnty. Juv. Action No. JS-501904, 180 Ariz.
348, 353 (App. 1994).
¶19 The juvenile court found that DCS met its burden of proving
both of the alleged grounds for termination, and the court made detailed
findings in support of its ruling. Neither parent has challenged those
findings except that they separately challenge the court’s determination
that DCS made reasonable efforts to provide appropriate reunification
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services.2 In addressing their arguments, we evaluate them only in the
context of chronic substance abuse. See Jesus M. v. Ariz. Dep’t of Econ. Sec.,
203 Ariz. 278, 280, ¶ 3 (App. 2002) (“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.”).
A. Father
¶20 Father argues the court erred by finding DCS made
reasonable efforts to reunify the family because DCS did not provide certain
specific services recommended by Dr. Franza and Dr. Menendez. Father
argues he should have been given: (1) individual therapy by a therapist
experienced in working with individuals with intellectual challenges, and
(2) parenting services with “hands on” instructions that used visual cues
and prompts.
¶21 In concluding that termination was appropriate, the juvenile
court found that DCS made reasonable efforts throughout the dependency
to provide Father with appropriate services. As to substance abuse services,
the court found that (1) Father was provided with regular or periodic
testing, which allowed him to confront his specific substance abuse issues;
(2) Father demonstrated “periods of sobriety and relapses on substances”
throughout the dependency, as confirmed by his testing history; and (3)
DCS offered him Terros services, also designed to help him address his
substance abuse issues. In detailing Father’s participation in Terros the
court noted that Father had relapsed several times.
¶22 Father does not challenge those findings, which are
supported by the record. DCS began providing substance abuse services to
Father in 2018. He successfully completed treatment at Terros in December
2019. DCS referred Father for a hair follicle test in 2020, and he tested
positive for meth. He was scheduled for another hair follicle test in April
2021, but he did not attend and stopped contacting DCS during this period.
He then resumed testing between May 2021 and February 2022. Although
his tests were mainly negative, Father tested positive for cocaine in October
2021. He missed four tests during this period. In March 2022, Father missed
three out of eleven tests. A hair follicle test revealed “presumptive
2 Although Parents frame their challenge with the assertion that DCS
failed to make “diligent efforts” (as opposed to “reasonable efforts”), for
purposes of our analysis under the chronic substance abuse ground no
meaningful difference exists between those terms.
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positives” to cocaine and meth. Father then missed several tests between
May and August 2022, and tested positive for cocaine and meth during this
time.
¶23 Father does not explain how more specialized individual
therapy or “hands on” parenting instructions would have made a
difference in overcoming his chronic substance abuse, particularly when he
was provided with other services designed to address this issue. Thus,
Father’s reliance on Mary Ellen C. is misplaced. See 193 Ariz. at 192, ¶ 37
(explaining that the state fails to make “a concerted effort to preserve the
parent-child relationship when it neglects to offer the very services that its
consulting expert recommends”). Although Father suggests DCS’s services
were inadequate, his inability to successfully participate in the services that
were offered precluded him from achieving sobriety, which was critical in
achieving the goals necessary for reunification. The record supports the
court’s finding that DCS made reasonable efforts to provide Father with
reunification services.
B. Mother
¶24 Mother argues that DCS failed to make the required diligent
efforts because it did not provide the following services recommended by
Dr. Franza and Dr. Menendez: (1) individual therapy by a
Spanish-speaking therapist experienced in working with individuals with
intellectual challenges, (2) a parenting-skills instructor with similar
qualifications, and (3) domestic-violence counseling.
¶25 The juvenile court found that DCS made reasonable efforts
throughout the dependency to provide Mother with appropriate services.
Relating to substance abuse, the court found that Mother was referred to
substance abuse testing and Terros, which were both designed to help her
overcome her substance abuse issues. The court found that Mother’s
substance abuse testing also showed periods of sobriety and relapses; the
court then detailed Mother’s history of missed testing and positive test
results supporting its finding. The court explained that even though
Mother initially completed substance abuse treatment, she then relapsed.
Between 2021 and 2022, she unsuccessfully closed out of Terros four times.
Further, the court found that when DCS referred Mother to a new provider
in 2022, she admitted to using meth on and off for eight years.
¶26 Mother does not challenge any of those findings. Even so,
they are supported by the record. DCS provided substance abuse services
to Mother beginning in 2018, and then again in December 2020 in response
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to Mother’s social media posts. Mother received a psychiatric evaluation
from Terros in December 2020. She missed several tests between January
and December 2021, and tested positive for marijuana, alcohol,
amphetamine, meth, and cocaine during this period. She was suspended
from PSI (drug testing services) in January 2022 for lack of engagement. She
was required to test in February and March 2022, but again tested positive
for amphetamine, meth, and cocaine. Between April through September
2022, Mother missed several tests; however, the tests she took were
negative. See Raymond F. v. Ariz. Dep’t of Econ. Sec., 224 Ariz. 373, 379, ¶ 29
(App. 2010) (finding that “temporary abstinence from drugs and alcohol
does not outweigh . . . significant history of abuse or . . . consistent inability
to abstain”). DCS also referred Mother to Terros in 2021, and she was
assigned a Spanish-speaking substance abuse clinician.
¶27 Mother does not address how the specific services DCS failed
to provide would have helped her address her substance abuse issues. Her
inability to show she could remain drug free for a sustained period justifies
the court’s finding that termination was proper based on her chronic
substance abuse. Mother was unable to properly engage in the substance
abuse services to help her achieve the goal of reunification. And insofar as
Mother relies on Jordan C., 223 Ariz. at 96, ¶ 29, to support her argument
that DCS must provide the services recommended by its consulting experts,
that case does not support her position. There, the therapist recommended
the State provide mother with a therapist to assess her relationship with
each of her children. Id. But the State limited the mother’s
mental-health services to mother’s older children only. Id. As noted, DCS
provided substantial services intended to assist Mother in overcoming her
substance abuse problems.
¶28 Mother also argues DCS failed to accommodate her hearing
disability. However, DCS made various attempts to help Mother, including
(1) exploring resources to help Mother obtain hearing aids, (2) providing
the $150 application fee for Mother’s hearing aids, and (3) helping her
schedule an audiogram to receive hearing aids, as lack of an updated
audiogram in the last ten years caused delay in submitting her application.
In any event, Mother does not explain how her hearing disability affected
her capacity to avoid abusing substances or participate in the substance
abuse services DCS provided. We conclude that the evidence outlined
above supports the juvenile court’s finding that DCS made reasonable
efforts to provide reunification services to Mother.
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CONCLUSION
¶29 We affirm the juvenile court’s termination order.
AMY M. WOOD • Clerk of the Court
FILED: JT
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