Opinion
1 CA-JV 23-0051
01-30-2024
IN RE TERMINATION OF PARENTAL RIGHTS AS TO D.R.
Law Office of Florence M. Bruemmer P.C., Anthem By Florence M. Bruemmer Counsel for Appellant Arizona Attorney General's Office, Phoenix By Brian Coffman Counsel for Appellee Department of Child Safety
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Yavapai County No. P1300JD202100012 The Honorable Anna C. Young, Judge
Law Office of Florence M. Bruemmer P.C., Anthem By Florence M. Bruemmer Counsel for Appellant
Arizona Attorney General's Office, Phoenix By Brian Coffman Counsel for Appellee Department of Child Safety
Presiding Judge James B. Morse Jr. delivered the decision of the Court, in which Judge Cynthia J. Bailey and Judge Brian Y. Furuya joined.
MEMORANDUM DECISION
MORSE, JUDGE
¶1 Damian R. ("Father") appeals from the juvenile court's order terminating his parental rights. For the following reasons, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 Father and Mother are the biological parents of D.R. ("Child"), born in July 2018. Mother's parental rights to Child have also been terminated, but she is not a party to this appeal.
¶3 Father has a long history of substance abuse. In 2008, Father pled guilty to the delivery and possession of cocaine. In 2018, around the time of D.R.'s birth, Father pled no contest to the delivery of cocaine. At sentencing, Father admitted he was guilty of "Reckless and dangerous Behavior," and of "poor judgment and irresponsibility." Father then completed an "intensive outpatient program" for individuals who "have acknowledged that they have a substance abuse history and they struggle with substance abuse."
¶4 In March 2021, the Department of Child Safety ("DCS") responded to a report that Father had left Child alone in a hotel room with a friend who was under the influence of drugs. DCS found Child asleep on a bed with heroin and marijuana within reach on a nightstand. Investigators learned that the friend had been previously arrested for prostitution.
¶5 DCS took custody of Child and filed a dependency petition based on neglect and substance abuse. On the day of Child's removal, a hair-follicle sample from Child tested positive for various drugs including methamphetamine, THC, and cocaine. Shortly after removal, Child experienced drug withdrawal symptoms. Father also submitted to a hair-follicle test in March 2021, which tested positive for methamphetamine, THC, cocaine, and other drugs.
¶6 DCS offered Father services to reunify with Child, including substance-abuse assessment and treatment, substance-abuse testing, and parenting classes. His reunification case plan required him to abstain from illegal and non-prescribed drugs. Father submitted three other hair-follicle samples between December 2021 and August 2022 during the dependency. All three tested positive for methamphetamine and other drugs. Father also missed more than twenty urinalysis ("UA") drug tests over the course of the case.
¶7 DCS moved to terminate Father's parental rights in October 2022 based on the grounds of chronic substance abuse and fifteen-months time-in-care. The court held a one-day termination hearing in February 2023 and terminated Father's parental rights under both grounds.
¶8 The court found DCS had made reasonable and diligent efforts to provide Father with reunification services, noting Father has "not demonstrated sufficient behavioral changes to allow him to safely parent the child." The court also found clear and convincing evidence that Father was unable to parent Child due to chronic substance abuse. The court found termination was in Child's best interests because (1) Child is in an adoptive placement, is adoptable, and "another adoptive placement could be located should the current placement be unable to adopt"; (2) adoption would provide Child with permanency and stability; (3) Child's placement is the least restrictive environment required to meet Child's needs; and (4) continuation of the parent-child relationship would be detrimental to Child because Father is "unable to provide proper and effective parental care and control due to [his] ongoing substance abuse concerns." The court concluded "[t]ermination of the relationship will benefit [Child] because it would further the plan of adoption."
¶9 Father timely appealed. We have jurisdiction under A.R.S. §§ 8-235(A), 12-120.21(A)(1), and 12-2101(A)(1).
DISCUSSION
¶10 Parents have a fundamental right to the custody and control of their children, but that right is not absolute. Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, 248, ¶¶ 11-12 (2000). To terminate a parent's rights, a court must (1) find a statutory ground for termination under A.R.S. § 8-533 by clear and convincing evidence and (2) determine, by a preponderance of the evidence, that termination is in the child's best interests. Id. at 249, ¶ 12 (clear and convincing evidence); Kent K. v. Bobby M., 210 Ariz. 279, 288, ¶ 42 (2005) (preponderance of the evidence); see A.R.S. § 8-533(B) (requiring at least one statutory ground and a best-interests finding).
¶11 We accept the 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) (quoting Jessie D. v. Dep't of Child Safety, 251 Ariz. 574, 580, ¶ 10 (2021)). And "we do not reweigh the evidence because the court 'is in the best position to weigh the evidence, observe the parties, judge the credibility of witnesses, and resolve disputed facts.'" Jessie D., 251 Ariz. at 582, ¶ 23 (quoting Ariz. Dep't of Econ. Sec. v. Oscar O., 209 Ariz. 332, 334, ¶ 4 (App. 2004)). We must affirm the court's legal conclusions unless they are clearly erroneous. Brionna J., 255 Ariz. at 478-79, ¶ 31.
¶12 Though the court terminated Father's parental rights on more than one statutory ground under A.R.S. § 8-533(B), we will affirm the termination if any one of the statutory grounds is proven and if the termination is in the best interests of Child. Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, 280, ¶ 3 (App. 2002).
I. Chronic-Substance-Abuse Ground.
¶13 Father argues that no evidence supported that his alleged drug use would continue for a prolonged indeterminate period. Specifically, Father asserts that he (1) successfully completed substance-abuse treatment; (2) successfully completed probation five years prior to trial; (3) did not have any new or pending criminal charges since 2018; and (4) was maintaining sobriety. As evidence of his sobriety, Father contends only two of his approximately 200 UAs during the dependency tested positive for substances other than THC.
¶14 Parental rights may be terminated when a parent is unable to discharge "parental responsibilities" due to "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). "Chronic substance abuse is long-lasting but not necessarily constant substance abuse." Jennifer S. v. Dep't of Child Safety, 240 Ariz. 282, 287, ¶ 17 (App. 2016).
¶15 The court heard evidence of Father's history of drug use before the dependency, his positive and missed drug tests during the dependency, and his failure to acknowledge his substance abuse. Specifically, Father had multiple drug-related convictions prior to the dependency, missed more than 20 UA tests, and submitted three hair follicle samples during the dependency that all tested positive for at least one illegal substance, including methamphetamine. Despite Father's and Child's positive hair-follicle tests, Father denied using and exposing Child to methamphetamine and other illegal substances. Noting this inconsistency, the court found Father's testimony lacked credibility.
¶16 The record evidence supports the court's finding that Father's drug abuse would continue for a prolonged indeterminate period and render Father unable to discharge his parental responsibilities. See Jennifer S., 240 Ariz. at 287-88, ¶¶ 17-18, 21, 25 (citing "decades-long history of substance abuse," drug use "during the dependency," and parent's "refus[al] to take most of her required drug tests" in affirming termination on the chronic-substance-abuse ground); Raymond F. v. Ariz. Dep't of Econ. Sec., 224 Ariz. 373, 379, ¶¶ 27, 29 (App. 2010) (noting parent's history of drug use, positive tests, and "a two-month period in which he did not submit to testing" was "evidence [the parent] has not overcome his dependence on drugs" and that drug use was chronic and would continue).
See also Jennifer W. v. Dep't of Child Safety, 1 CA-JV 19-0261, 2020 WL 1313615, at *3, ¶ 13 (Ariz. App. Mar. 19, 2020) (mem. decision) (noting that many missed tests and many positive tests "well supported" the court's conclusion that drug use would continue); Paula J. v. Dep't of Child Safety, 2 CA-JV 2017-0111, 2018 WL 679383, at *5, ¶ 20 (Ariz. App. Feb. 1, 2018) (mem. decision) (noting the "negative inferences the court was permitted to draw" from the period of missed drug tests); Megan M. v. Matthew M., 1 CA-JV 18-0105, 2018 WL 4208992, at *2, ¶ 10 (Ariz. App. Sept. 4, 2018) (mem. decision) ("Mother's argument that she tested negative at times after completing treatment overlooks that she also regularly missed testing or submitted diluted tests, creating a reasonable inference that she had not resolved her substance abuse issues.").
¶17 We must affirm unless we determine "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)). The record evidence supports the court's finding that termination of Father's parental rights was warranted under A.R.S. § 8-533(B)(3). Because we affirm the court's termination order based on Father's chronic substance abuse, we need not reach Father's arguments on the fifteen-months out-of-home placement ground. Jesus M., 203 Ariz. at 280, ¶ 3.
II. Best Interests.
¶18 We view "the record in the light most favorable to upholding the court's best-interests finding." Alma S. v. Dep't of Child Safety, 245 Ariz. 146, 152, ¶ 21 (2018). "Our task for factual findings is solely to confirm that there is some reasonable evidence in the record to sustain them." Oscar O., 209 Ariz. at 336, ¶ 14.
¶19 Once the court finds a parent unfit under at least one statutory ground for termination, "the interests of the parent and child diverge," and the court proceeds to balance the unfit parent's "interest in the care and custody of his or her child . . . against the independent and often adverse interests of the child in a safe and stable home life." Kent K., 210 Ariz. at 286, ¶ 35. "[A] determination of the child's best interest 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). Courts "must consider the totality of the circumstances existing at the time of the severance determination, including the child's adoptability and the parent's rehabilitation." Alma S., 245 Ariz. at 148, ¶ 1.
¶20 "Termination of the parent-child relationship is in the child's best interests if the child would be harmed if the relationship continued or would benefit from the termination." Jose M. v. Eleanor J., 234 Ariz. 13, 17, ¶ 21 (App. 2014). The court may find a child would benefit from termination if an adoption is possible and likely. Alma S., 245 Ariz. at 150-51, ¶¶ 13-14. As our supreme court "has stated several times, the juvenile court's primary concern in the best-interests inquiry is the 'child's interest in stability and security.'" Timothy B. v. Dep't of Child Safety, 252 Ariz. 470, 478, ¶ 31 (2022) (quoting Alma S., 245 Ariz. at 150, ¶ 12).
¶21 Father argues severance was not in the best interests of Child because his visits with Child were positive and he was capable of taking care of Child. Here, the court found termination would benefit Child because it would further the plan of adoption, which would provide Child with permanency and stability. The court further concluded that maintaining Father's parental rights would be detrimental to Child because he would be unable to provide proper and effective parental care and control due to his substance-abuse issues. Reasonable evidence supports these findings.
CONCLUSION
¶22 We affirm.