Opinion
No. 1 CA-JV 14-0166
02-12-2015
DAREENA J., OJULU O., Appellants, v. DEPARTMENT OF CHILD SAFETY, A.O., Appellees.
COUNSEL The Stavris Law Firm, PLLC, Scottsdale By Alison Stavris Counsel for Appellant Mother David W. Bell Attorney at Law, Mesa By David W. Bell Counsel for Appellant Father Arizona Attorney General's Office, Phoenix By Michael F. Valenzuela Counsel for Appellee DCS
NOTICE: NOT FOR PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. JD14702
The Honorable Linda H. Miles, Judge
AFFIRMED
COUNSEL The Stavris Law Firm, PLLC, Scottsdale
By Alison Stavris
Counsel for Appellant Mother
David W. Bell Attorney at Law, Mesa
By David W. Bell
Counsel for Appellant Father
Arizona Attorney General's Office, Phoenix
By Michael F. Valenzuela
Counsel for Appellee DCS
MEMORANDUM DECISION
Judge Kenton D. Jones delivered the decision of the Court, in which Presiding Judge John C. Gemmill and Judge Donn Kessler joined. JONES, Judge:
¶1 Dareena J. (Mother) and Ojulu O. (Father) appeal from the trial court's orders terminating their respective parental rights to A.O. (Child). Mother's rights were terminated on the statutory grounds of chronic substance abuse, six months out-of-home care, and failure to remedy circumstances causing a prior termination; Father's rights were terminated on the statutory grounds of six months out-of-home care and failure to remedy circumstances causing a prior termination. Ariz. Rev. Stat. (A.R.S.) § 8-533(B)(3), (8)(b), (10). On appeal, Mother and Father each argue DCS presented insufficient evidence to support any of these statutory grounds. For the following reasons, we affirm.
Absent material revisions from the relevant date, we cite a statute's current version.
FACTS AND PROCEDURAL HISTORY
We view the facts in the light most favorable to upholding the termination orders. Christy C. v. Ariz. Dep't of Econ. Sec., 214 Ariz. 445, 449, ¶ 12, 153 P.3d 1074, 1078 (App. 2007) (citing Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, 282, ¶ 13, 53 P.3d 203, 207 (App. 2002)).
¶2 Mother and Father's first child together, Sister, was born in May 2009. At that time, Mother had an open dependency case involving six prior children, who were removed as a result of Mother's drug use, mental illness and history of domestic violence; for those reasons, Sister was removed from Mother at birth. Mother failed to remedy those circumstances, and after two years of out-of-home care, her parental rights to the first six children were terminated in May 2010.
¶3 Following the initial severances, DCS continued to offer Mother services toward reunification with Sister. However, Mother stopped participating in random urinalysis testing and later admitted using marijuana to keep "from hurting someone" a few weeks prior to trial. She did not complete parent aide services and refused recommended substance abuse treatment and counseling. Mother also continued to reside with a different man with whom she had a history of domestic violence. As a result, the trial court terminated Mother's parental rights to Sister in April 2011 for failure to remedy circumstances — substance abuse, mental illness, and domestic violence — that caused Sister to be in an out-of-home placement for fifteen months or longer.
¶4 Father's parental rights to Sister were also terminated in April 2011. Although Father initially complied with the case plan, the trial court ultimately determined Father was "blind to [M]other's inadequacies and the danger [M]other poses to [Sister], so that the child cannot be safely returned to [him]." This determination was based upon Father's insistence, even when presented with information to the contrary, that Mother was not, nor ever had been, a bad parent, that Mother had "only made one mistake," and that the six prior terminations resulted from problems with the children's father(s). Father initially refused counseling to help him better understand Mother's substance abuse and the danger it presented to Sister, instead permitting Mother to reside with him and continuing to believe Mother posed no danger to the child. The court was skeptical of Father's testimony at trial that he would abide by an order prohibiting contact between Sister and Mother, if an "appropriate reason" were given, noting "the obvious and correct response is that a fit and appropriate father does not need a Court order to take appropriate steps to protect his child."
¶5 Less than two years later, in December 2012, Mother and Father's second daughter, Child, who is the subject of this appeal, was born substance-exposed to marijuana. Child was removed at birth, and found dependent as to Mother and Father in February 2013.
¶6 Mother and Father were advised by DCS that, in order to reunify with Child, they would need to demonstrate an "ability to obtain and maintain a sober lifestyle, free of substances and acquaintances who use substances." They would also need to demonstrate an understanding of the child's needs, placing them before their own, and demonstrate motivation to reunify by fully participating in services. Both parents were offered parent aide services, random urinalysis testing, supervised visitation, and psychological evaluations, and were referred to TERROS for substance abuse assessment and treatment. Father was also asked to provide a hair follicle test to rule out substance abuse.
¶7 Mother and Father completed an intake for parent aide services in February 2013. Both parents were tasked with understanding the effects of substance abuse on a child and learning appropriate parenting skills. For the most part, Mother and Father behaved appropriately with Child during the visits they attended, but the service was closed in April 2013 because Mother continued to test positive for illegal substances. Additionally, neither parent showed a commitment to the service, with Mother missing five of fourteen visits, and Father missing nine. Mother and Father also completed an intake for the Cradles to Crayons program, but never presented for any later appointments, and the service was likewise closed in February 2013.
¶8 A visits-only parent aide service was initiated for both parents, but visits did not resume until June 2013 as a result of difficulties contacting them. In June and July, Mother attended four of seven visits, arriving late on one of those occasions, and Father attended only once. Their lack of participation resulted in the service being closed. Neither parent saw Child again until late October 2013, when she was ten months old; by that time, Child no longer recognized them.
¶9 Meanwhile, between December 2012 and August 2013, Mother was required to submit to random urinalysis testing seventeen times. She failed to provide a sample on nine occasions, and on another, admitted having attempted to dilute her sample. The eight remaining tests were positive for some combination of marijuana, methamphetamine and cocaine.
¶10 Father submitted hair follicle samples in February 2013 and August 2013, and each indicated methamphetamine exposure within the prior ninety days. Despite concentrations seven to eight times the minimum detection level, Father denied having used illegal drugs, and refused any substance abuse treatment on that basis.
The Hair 5 Drug Panel applied a "screening cut off" and "confirmation cut off" of 500 picograms of methamphetamine per milligram of hair. The test results indicate the presence of methamphetamine at 4,246 pg/mg in February 2013, and 3,987 pg/mg in August 2013.
¶11 Mother also completed an intake with TERROS for substance abuse treatment in February 2013. She was referred to an intensive outpatient program, but attended only three of fifteen meetings. She was then placed on an attendance contract, but never returned. Additionally, all six oral swabs she submitted to TERROS were positive for methamphetamine and amphetamine; two also tested positive for marijuana. Mother's prognosis was described as "poor," and these services were closed in May 2013.
¶12 In July and August 2013, after significant difficulty in scheduling and at least two missed appointments, both parents submitted to a psychological evaluation with Dr. James Thal. Mother reported she began using marijuana at age 13 and methamphetamine at 18 or 19. Mother also disclosed she was currently pregnant with her ninth child, but described herself as "unable to stop" smoking marijuana. She could not state when she last used methamphetamine, but admitted trying cocaine and "spice" during the previous year. Further, she reported recent use of alcohol, as well as smoking two to three cigarettes per day. She also identified several suicidal episodes and several prior incidents where she stabbed and/or threatened Father, a prior boyfriend, her mother and her sister with a knife.
¶13 During his psychological evaluation, Father acknowledged Mother tested positive for marijuana, but claimed he was unaware of Mother's methamphetamine or cocaine use. Despite being confronted with these facts, Father expressed his continued belief that Mother was an excellent parent. He was highly confident Mother would achieve sobriety with inpatient treatment, and stated he would raise Child on his own if she did not.
¶14 Dr. Thal concluded that, in addition to her fifteen-year history and dependence upon marijuana and methamphetamine, Mother suffered from a "significant character disorder which results in irresponsible conduct." He opined that both conditions rendered Mother incapable of parenting a child consistently and safely, and it was unlikely she would be able to discharge parental responsibilities in the foreseeable future, even with the existing or proposed interventions.
¶15 With regard to Father, Dr. Thal gave a "guarded" prognosis that Father would be able to demonstrate minimally adequate parenting skills. He noted Father's tolerance of Mother's drug use, and expressed doubt regarding Father's ability to follow through with an ultimatum, identifying "some personality traits, characteristics, and deficits which compel him to be overly invested in his relationship with [Mother]." Father also had a history of being unable to "break away" from Mother during the prior dependency with Sister and, likewise, did not follow through with an ultimatum to leave Mother in December 2012. Dr. Thal recommended against placing a young child with Father if he continued a relationship with Mother, and opined, if Father were serious about raising a child on his own, he needed to demonstrate his ability to do so.
¶16 Mother finally began to engage in services and make progress in August of 2013. She began testing consistently and cleanly in September 2013. On the second day of trial, she reported last using on August 8, 2013, the day she reported for inpatient substance abuse treatment. Although she was discharged from the inpatient program as a result of pregnancy complications, Mother maintained sobriety through the end of trial in April 2014.
The birth of Mother's ninth child and conflicts of counsel and the court affected the scheduling of trial in this matter, which began December 9, 2013, continued on January 29, 2014, and concluded April 23, 2014.
¶17 Father began testing consistently and cleanly in October 2013, but missed more than half of the offered visitations. Father also completed a one-day substance abuse education seminar in January 2014, although he refused services through TERROS and continued to deny ever using illegal substances.
¶18 At trial, Mother testified she had attended substance abuse treatment through TERROS on at least three prior occasions and although she was able to obtain sobriety for short periods, ranging from eleven to eighteen months, each time she relapsed into drug use. Mother acknowledged her need for more intensive services, noting "I've always been able to stop when it was something definitely important," but "this time it was kind of uncontrollable for me." Despite waiting eight months to engage in services to reunify with her eighth child and having achieved only seven months' sobriety at the time she testified, Mother was confident her sobriety would continue indefinitely because in the past she "was doing it mainly for my kids and I guess I wasn't ready to stop. This time around, I'm ready to actually stop using and I'm doing it for myself as well, as well as for my kids."
¶19 Father testified Mother was an appropriate parent, and indicated he would leave Child in her care while he worked if the family was reunified. Although he stated he would leave Mother if she used illegal substances, he continued to deny any firsthand knowledge of Mother's drug use during the seven or eight years they had lived together, and would not believe Mother was using unless she admitted it herself.
¶20 Dr. Thal acknowledged the recently initiated efforts of Mother to attend rehab were "a good start" and "encouraging signs." However, he concluded it was an "iffy prediction . . . on the order of a coin toss" that she would be able to overcome her substance abuse, given the long period of use and current and historical lack of commitment to recovery, as exhibited through her casual attitude and continued drug-seeking behavior while facing severance from her eighth child. Under these circumstances, even a twelve-month period of sobriety would make him nervous about expanded or unsupervised contact. And, even if Mother were to demonstrate with some reasonable probability that she could and would overcome her substance abuse issues, placement of a child with Mother as a primary caregiver remained unrealistic given her serious underlying mood disorder and anger issues.
¶21 With regard to Father, Dr. Thal noted Father's plan to leave Child with Mother as the primary caregiver while he worked long hours created an inherent risk of harm to Child. He testified Father fell "way short" of being able to demonstrate the "basic parenting skill" of protecting Child as Father was unable or unwilling to recognize and accept Mother's substance abuse, or his own, even when "staring right down the barrel of a severance action . . . not once, but twice."
¶22 The DCS case manager likewise testified Mother's substance abuse was a major concern, and agreed it was likely to continue for a prolonged indeterminate period based upon the history and pattern of use and relapse, including giving birth to at least two substance-exposed children, followed closely by Mother's unaddressed emotional issues. He noted a minor bonding issue between Child and Father given Father's lack of consistent participation in visits, but reiterated DCS's concern that Father does not recognize, accept or understand the ramifications of Mother's substance abuse, and has shown he is unwilling to leave her if necessary to provide a safe and appropriate home for Child. While cautiously optimistic about Mother and Father's ability to reunify with their youngest child, he further expressed concern about the time Child had spent in an out-of-home placement, the parents' failure to complete any services until "the last second," and the fact that, at the conclusion of trial, the parents had yet to participate in an unsupervised visit.
¶23 The trial court determined DCS had proven all of the alleged statutory grounds for severance by clear and convincing evidence. Specifically, as to Mother, the trial court severed based upon (1) chronic substance abuse, (2) substantial neglect or willful refusal to remedy circumstances causing an out-of-home placement for a period of six months or longer, and (3) failure to remedy circumstances that caused a prior termination of parental rights within the preceding two years. As to Father, the trial court severed based upon (1) substantial neglect or willful refusal to remedy circumstances causing an out-of-home placement for a period of six months or longer, and (2) failure to remedy circumstances that caused a prior termination of parental rights within the preceding two years. The court also found termination would be in Child's best interest. Accordingly, the trial court terminated Mother and Father's parental rights to Child. Mother and Father timely appealed, and we have jurisdiction pursuant to A.R.S. §§ 8-235(A), 12-120.21(A)(1), and -2101(A)(1).
DISCUSSION
¶24 A trial court may terminate a parent's parental rights if it finds a statutory ground for severance exists by clear and convincing evidence, and also finds, by a preponderance of the evidence, severance is in the child's best interests. A.R.S. §§ 8-533(B), -537(B); Kent K. v. Bobby M., 210 Ariz. 279, 288, ¶ 41, 110 P.3d 1013, 1022 (2005); Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, 249, ¶ 12, 995 P.2d 682, 685 (2000). We do not reweigh the evidence on appeal; as the trier of fact, the trial 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, 100 P.3d 943, 945 (App. 2004). "Accordingly, we view the evidence and reasonable inferences to be drawn from it in the light most favorable to sustaining the court's decision," Jordan C. v. Ariz. Dep't of Econ. Sec., 223 Ariz. 86, 93, ¶ 18, 219 P.3d 296, 303 (App. 2009) (citing Jesus M., 203 Ariz. at 282, ¶ 13, 53 P.3d at 207), and will affirm a termination order "unless there is no reasonable evidence to support" the court's factual findings. Audra T. v. Ariz. Dep't of Econ. Sec., 194 Ariz. 376, 377, ¶ 2, 982 P.2d 1290, 1291 (App. 1998) (citing Maricopa Cnty. Juv. Action No. JS-4374, 137 Ariz. 19, 21, 667 P.2d 1345, 1347 (App. 1983), and Maricopa Cnty. Juv. Action No. JS-378, 21 Ariz. App. 202, 204, 517 P.2d 1095, 1097 (1974)).
¶25 Mother and Father do not challenge the trial court's best interests finding. Rather, their sole argument on appeal is that DCS did not prove, by clear and convincing evidence, any of the statutory grounds for severance enumerated in A.R.S. § 8-533. I. The Trial Court Did Not Abuse Its Discretion In Terminating Mother's Parental Rights Under A.R.S. § 8-533(B)(3) .
¶26 Parental rights may be terminated 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.R.S. § 8-533(B)(3); Raymond F. v. Ariz. Dep't of Econ. Sec., 224 Ariz. 373, 377, ¶ 15, 231 P.3d 377, 381 (App. 2010). In order to sever on this ground, there must be a finding that reasonable efforts were made to reunify the family, or that such efforts would have been futile. Jennifer G. v. Ariz. Dep't of Econ. Sec., 211 Ariz. 450, 453, ¶ 12, 123 P.3d 186, 189 (App. 2005) (citing Mary Ellen C. v. Ariz. Dep't of Econ. Sec., 193 Ariz. 185, 191-92, ¶¶ 31-34 , 971 P.2d 1046, 1052-53 (App. 1999)).
¶27 Mother does not dispute the chronic nature of her substance abuse or its effect on her ability to discharge her parental responsibilities. Rather, Mother argues, pursuant to Jennifer G., that she is "amenable to rehabilitative services," because she has been able to obtain and maintain sobriety for eight months, and therefore, the trial court abused its discretion in finding her chronic substance abuse will continue for "a prolonged, indeterminate period." This argument, made after fifteen years of using illegal drugs, the severance of seven children, and the removal of two others at birth, is unpersuasive.
Mother also suggests that DCS did not make reasonable efforts toward reunification with Child because it did not facilitate Mother's requested participation in inpatient substance abuse treatment. However, DCS is not required to "provide every conceivable service," Maricopa Cnty. Juv. Action No. JS-501904, 180 Ariz. 348, 353, 884 P.2d 234, 239 (App. 1994), and the record supports the trial court's finding of reasonable efforts, especially in light of Mother's lack of commitment, consistency and participation. Moreover, on this point, we agree with the trial court that DCS has no "obligation under the law to take [a parent] by the hand and dial the telephone" to set up the services, and "it's important for a person who has a substance abuse issue to take some level of responsibility and to initiate services."
¶28 In Jennifer G., this Court recognized, as part of DCS's obligation to make reasonable reunification efforts, an "implicit requirement," when establishing substance abuse as a ground for termination of parental rights, "that the condition from which the parent suffers be proven not to be amenable to rehabilitative services." Jennifer G., 211 Ariz. at 453 n.3, ¶ 12, 123 P.3d at 189 n.3 (internal quotation omitted). In so holding, we adopted the analysis of Mary Ellen C., which considered severance on the ground of mental illness. Notably, neither Jennifer G., nor Mother, recognizes an important qualifier originally set forth in Mary Ellen C. — that the rehabilitative services "could restore [the] parent's ability to care for a child within a reasonable time." Mary Ellen C., 193 Ariz. at 191, ¶ 31, 971 P.2d at 1052 (emphasis added).
¶29 Mother does not argue that rehabilitative services could restore her ability to care for Child within a reasonable time. Although Mother testified she was ready to begin parenting full-time immediately, she had not completed her substance abuse treatment at the conclusion of trial, and had yet to participate in a single unsupervised visit with Child. Moreover, Dr. Thal and the DCS case manager agreed, given Mother's history of substance abuse, unaddressed mental health issues, lack of commitment to services and apparent indifference to the consequences of her actions or their effect on her children, in-home care would not be appropriate until Mother completed a comprehensive substance abuse program and achieved at least one year sobriety. Even then, the risk of relapse is significant, and Mother would still need to be evaluated and treated for mental health issues.
¶30 There is reasonable evidence in the record to support the trial court's conclusion that Mother's prognosis was poor, and it would be unreasonable to wait an additional four to five months, at a minimum, on the chance that Mother will achieve the year of sobriety required just to begin unsupervised visitation and more active reunification efforts. This is especially true given Mother's choice to wait until Child was eight months old to begin actively and seriously participating in substance abuse treatment. "Leaving the window of opportunity for remediation open indefinitely is not necessary, nor do we think that it is in the child's or the parent's best interests." Maricopa Cnty. Juv. Action No. JS-501568, 177 Ariz. 571, 577, 869 P.2d 1224, 1230 (App. 1994) (citing Maricopa Cnty. Juv. Action No. JS-4283, 133 Ariz. 598, 601, 653 P.2d 55, 58 (App. 1982)). Mother's "temporary abstinence from drugs . . . does not outweigh [her] significant history of abuse or [her] consistent inability to abstain during this case." Raymond F., 224 Ariz. at 379, ¶ 29, 231 P.3d at 383. Moreover, her "failure to remedy [her] drug abuse[,] despite knowing the loss of [her child] was imminent, is evidence [s]he has not overcome [her] dependence on drugs." Id.
¶31 Child had been in out-of-home care since birth, and was sixteen months old at the conclusion of trial. While Mother's recent efforts are admirable, in such cases, "'[t]he interests in permanency for [the child] must prevail over [a parent's] uncertain battle with drugs.'" Id. (quoting In re N.F., 579 N.W.2d 338, 341 (Iowa Ct. App. 1998)); see also JS-501568, 177 Ariz. at 577, 869 P.2d at 1230 (affirming severance on grounds of failure to remedy substance abuse after one year out-of-home care where parent eventually made successful efforts at rehabilitation in eight months prior to trial, concluding those efforts, "while commendable, were 'too little, too late' for purposes of this severance action"). We conclude DCS presented clear and convincing evidence that Mother's substance abuse would continue for a prolonged, indeterminate period, and, even if amenable to services, would not be rehabilitated within a reasonable time. II. The Trial Court Did Not Abuse Its Discretion In Terminating Father's Parental Rights Under A.R.S. § 8-533(B)(10) .
"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." Jesus M., 203 Ariz. at 280, ¶ 3, 53 P.3d at 205 (citing Michael J., 196 Ariz. at 251, ¶ 27, 995 P.2d at 687, and Maricopa Cnty. Juv. Action No. JS-6520, 157 Ariz. 238, 242, 756 P.2d 335, 339 (App. 1998)). Accordingly, we need not reach whether sufficient evidence also supported severance on the grounds of six months out-of-home care or prior termination for the same cause.
¶32 Termination of the parent-child relationship is justified where "the parent has had parental rights to another child terminated within the preceding two years for the same cause and is currently unable to discharge parental responsibilities due to the same cause." A.R.S. § 8-533(B)(10). In order to sever on this ground, there must be a finding that reasonable efforts were made to reunify the family, or that such efforts would have been futile. Mary Lou C. v. Dep't of Econ. Sec., 207 Ariz. 43, 49, ¶ 15, 83 P.3d 43, 49 (App. 2004).
¶33 Father acknowledges his parental rights to another child, Sister, were terminated within the preceding two years as a result of "his failure to recognize Mother's deficiencies." He argues, however, DCS failed to prove this statutory ground by clear and convincing evidence because "[his] inability to recognize Mother's shortcomings are really only an issue if Mother has not made significant progress towards remedying the circumstances that cause[d C]hild to be in an out of home placement." Father relies entirely upon the notion that "Mother is sober," and it is now, therefore, unnecessary for him to acknowledge and recognize Mother's use of illegal drugs and demonstrate his ability to respond appropriately to protect Child.
¶34 Because we conclude that sufficient evidence was presented to establish Mother had not remedied her substance abuse, and would be unable to do so within a reasonable time relative to Child, Father's argument necessarily fails.
¶35 Moreover, Father does not offer any evidence or argument to suggest he made any effort to remedy his past failure to protect. Indeed, the record reflects Father did not participate in any services designed to develop his parenting skills, and denied needing any additional assistance. At trial, Father maintained Mother is and has been a good parent, and failed to acknowledge Mother's role, or his own, in the prior terminations. The evidence supports the trial court's conclusion that Father did not learn from past experience, and remains wholly unable and/or unwilling to protect Child from abuse or neglect likely to occur if Mother again uses illegal substances.
¶36 Accordingly, we conclude substantial evidence supports the trial court's determination that Father failed to remedy the circumstances causing a previous severance within the past two years.
We need find clear and convincing evidence of only one statutory ground to affirm. See infra ¶ 31 n.7. Therefore, we do not reach whether sufficient evidence also supported severance on the grounds of six months out-of-home care.
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CONCLUSION
¶37 For the foregoing reasons, we affirm.