In Re Term of Parental Rights as to R.F.

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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 R.F., R.F., and J.F.
No. 1 CA-JV 23-0152
FILED 12-28-2023
Appeal from the Superior Court in Mohave County
No. S8015JD202200096
The Honorable Aaron Michael Demke, Judge Pro Tempore
AFFIRMED
COUNSEL
The Law Offices of Robert Casey, Phoenix
By Robert Ian Casey
Counsel for Appellant
Arizona Attorney General’s Office, Tucson
By Autumn Spritzer
Counsel for Appellee
IN RE TERM OF PARENTAL RIGHTS AS TO R.F. et al.
Decision of the Court
MEMORANDUM DECISION
Judge Cynthia J. Bailey delivered the decision of the Court, in which
Presiding Judge James B. Morse Jr. and Judge Brian Y. Furuya joined.
B A I L E Y, Judge:
¶1 Dena K. (“Mother”) appeals the termination of her parental
rights to R.F., R.F., and J.F. (“the children”). We affirm.
FACTS AND PROCEDURAL HISTORY1
¶2 Mother is the biological parent of twins R.F. and R.F., born in
2016, and J.F., born in 2021. In June 2022, the Department of Child Safety
(“DCS”) received a report of “a significant domestic violence history”
between Mother and the children’s father (“Father”).2 DCS learned Mother
had a history of substance abuse, and J.F. was born substance-exposed in
Arizona. It also learned California child protection had removed the twins
from Mother’s care in 2016 because Mother overdosed on
methamphetamine and heroin and the parents were selling drugs out of
their home.
¶3 Mother had been evicted from her transitional housing for
allowing Father around her and the children, in violation of her housing
agreement. After its investigation, DCS reported that Father is “extremely
dangerous, has a significant criminal history and is abusing
methamphetamine and heroin,” and Mother is “minimizing the concerns
of domestic violence.”
¶4 DCS removed the children from Mother’s care and filed for
dependency, alleging neglect, exposure to domestic violence, and
substance abuse. Mother did not appear at her July 2022 initial dependency
hearing, and the superior court treated her failure to appear as an admission
to the dependency allegations. The court found the children dependent
1 We view the facts in the light most favorable to upholding the superior
court’s order. Ariz. Dep’t of Econ. Sec. v. Matthew L., 223 Ariz. 547, 549, ¶ 7
(App. 2010).
2 Mother and Father have never been married. Father is not a party to this
appeal.
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IN RE TERM OF PARENTAL RIGHTS AS TO R.F. et al.
Decision of the Court
because Mother exposed the children to domestic violence and was
unwilling or unable to provide effective parental care and a safe and stable
home. The court also found neglect due to substance abuse, stating Mother
“minimizes her substance use and the parents have prior history with child
protection in California due to substance abuse and the children were
removed.”
¶5 In support of the family reunification plan, DCS offered
services to Mother, including substance abuse treatment, drug testing,
parenting classes, case management, supervised visitation, and
transportation. But she participated in services only sporadically. In July
2022, Mother tested positive for methamphetamine and THC and refused a
hair follicle test. She did not participate in substance testing again until
early 2023.
¶6 Mother did not appear at her first meeting with DCS workers
regarding her case in September 2022, despite multiple attempts by DCS to
contact her. She also failed to appear at hearings between October and
December 2022. Having received no response from Mother since August,
Mother’s counsel withdrew from representation in November 2022.
Mother finally made an appearance in February 2023 at a supplemental
permanency hearing.
¶7 DCS moved to terminate Mother’s parental rights on the
grounds of chronic substance abuse and six months out-of-home
placement, contending Mother tested positive for methamphetamine at the
beginning of the case and, since that time, failed to participate in
rehabilitative or reunification services. The court set an initial termination
hearing, and a few days later, Mother began to comply intermittently with
the scheduled substance testing. From February to April 2023, Mother
repeatedly tested positive for THC, and she tested positive for fentanyl and
methamphetamine in April.
¶8 At the end of a contested termination trial in June 2023, the
superior court granted DCS’s motion and terminated Mother’s parental
rights on both alleged grounds. The court found that although Mother
appeared to be doing well at the time of trial, “there’s been at least nine
months where the evidence indicates otherwise,” she has “substantially
neglected or willfully refused to remedy the circumstances that caused her
children to be in out-of-home placement,” and she had not completed “any
portion of her case plan with respect to substance use, parenting classes, or
domestic violence classes.” The court also found termination was in the
children’s best interests because they needed “a safe and stable home free
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IN RE TERM OF PARENTAL RIGHTS AS TO R.F. et al.
Decision of the Court
of domestic violence and substance abuse,” which Mother had failed to
provide, and that termination would further the plan of adoption.
¶9 Mother timely appealed the termination order. We have
jurisdiction. See A.R.S. §§ 8-235(A), 12-120.21(A)(1), 12-2101(A)(1); Ariz.
R.P. Juv. Ct. 601(a).
DISCUSSION
¶10 Parental rights are fundamental but not absolute. Jessie D. v.
Dep’t of Child Safety, 251 Ariz. 574, 579, ¶ 8 (2021). We accept the superior
court’s factual findings “if reasonable evidence and inferences support
them.” Brionna J. v. Dep’t of Child Safety, 255 Ariz. 471, 478, ¶ 30 (2023)
(citation omitted). We defer to these findings because “the juvenile court is
in the best position to weigh evidence and assess witness credibility.” Id.¶11 Terminating parental rights requires clear and convincing
evidence that a statutory ground for termination exists under A.R.S. § 8-
533(B). Id. at 477, ¶ 20. If the court concludes a statutory ground for
termination exists, it must then determine by a preponderance of the
evidence that termination of the relationship is in the child’s best interests.
Id. We will affirm the court’s legal conclusions regarding the statutory
ground for termination unless they are clearly erroneous. Id. at 478–79,
¶ 31.
¶12 The superior court may terminate parental rights under
A.R.S. § 8-533(B)(3) 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.” A parent’s substance abuse “need not be constant to be considered
chronic.” Raymond F. v. Ariz. Dep’t of Econ. Sec., 224 Ariz. 373, 377, ¶ 16
(App. 2010).
¶13 Mother argues insufficient evidence supports the finding that
her substance abuse will continue for a prolonged and indeterminate
period. She contends she had been drug testing and working toward
sobriety.
¶14 “[T]he question of whether [a] statutory factor is supported
by the mandated quantum of evidence will not be disturbed unless the
appellate court determines ‘as a matter of law that no one could reasonably
find the evidence to be clear and convincing.’” Brionna J., 255 Ariz. at 479,
¶ 31 (quoting Murillo v. Hernandez, 79 Ariz. 1, 9 (1955)). Here, the record
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IN RE TERM OF PARENTAL RIGHTS AS TO R.F. et al.
Decision of the Court
shows Mother failed to test for drugs throughout the dependency and made
no good-faith effort to establish sobriety, despite DCS providing services to
help her overcome her substance use and parenting deficits. After testing
positive for THC at the beginning of the case, Mother failed to participate
in any other substance testing until February 2023, shortly after DCS moved
to terminate her parental rights. When she did test from February to April
2023, the tests were consistently positive for THC, and her April 2023
collection was positive for fentanyl and methamphetamine. Thus,
reasonable evidence shows she was unable to discharge parental
responsibilities due to her substance abuse, and that her abuse would
continue for a prolonged, indeterminate period. See A.R.S. § 8-533(B)(3); see
also Raymond F., 224 Ariz. at 378–79, ¶¶ 24–29. And as a matter of law, we
conclude one could reasonably find the evidence presented on this issue to
be clear and convincing. See Brionna J., 255 Ariz. at 479, ¶ 31. The superior
court did not err in terminating Mother’s rights to the children based on the
statutory ground of chronic substance abuse.
¶15 Because we affirm the superior court’s order under this
ground, we do not address Mother’s arguments related to the out-of-home
placement grounds.3 See Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278,
280, ¶ 3 (App. 2002).
¶16 Mother also challenges the superior court’s finding that
termination is in the children’s best interests. She contends the court erred
in finding the children would benefit from termination and adoption,
arguing the children were not in adoptive placements at the time of the
termination trial.
¶17 “[A] determination of the child’s best interest[s] must include
a finding as to how the child would benefit from a severance or be harmed
by the continuation of the relationship.” Maricopa Cnty. Juv. Action No. JS-
500274, 167 Ariz. 1, 5 (1990) (citations omitted). The court may consider a
“child’s adoptability and the parent’s rehabilitation.” Alma S. v. Dep’t of
Child Safety, 245 Ariz. 146, 148, ¶ 1 (2018).
¶18 Reasonable evidence supports the superior court’s finding
that the children would benefit from termination. The court found
3 We note DCS incorrectly alleged in its motion for termination that the
twins are under three years-old, a fact the court adopted in its findings.
DCS concedes the evidence did not support the superior court’s finding that
the twins were under three years-old for the six month out-of-home
placement ground.
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IN RE TERM OF PARENTAL RIGHTS AS TO R.F. et al.
Decision of the Court
termination would “increase the odds of the children being raised in a safe,
stable home free of substance abuse, domestic violence, and allow them to
thrive and grow.” It also found continuation of the relationship would be
a detriment to the children due to “ongoing substance abuse with the
parents which leaves the children at substantial risk of harm for future
neglect.” Mother did not provide any evidence showing she could
independently provide for the children. The children’s “interest in
permanency must prevail over [Mother’s] uncertain battle with drugs.”
Jennifer S. v. Ariz. Dep’t of Child Safety, 240 Ariz. 282, 287, ¶ 17 (App. 2016)
(citations omitted).
CONCLUSION
¶19 We affirm the superior court’s termination order on the
ground of substance abuse.
AMY M. WOOD • Clerk of the Court
FILED: TM
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