Opinion
No. 1 CA-JV 14-0303
06-02-2015
MARGARET H., HERBERT L., Appellants, v. DEPARTMENT OF CHILD SAFETY, A.L., Appellees.
COUNSEL Vierling Law Offices, Phoenix By Thomas A. Vierling Counsel for Appellant Margaret H. Marcus F. Westervelt, Attorney at Law, Phoenix By Marcus F. Westervelt Counsel for Appellant Herbert L. Arizona Attorney General's Office, Mesa By Nicholas Chapman-Hushek Counsel for Appellee Department of Child Safety
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. JD22387
The Honorable Joan M. Sinclair, Judge
AFFIRMED
COUNSEL Vierling Law Offices, Phoenix
By Thomas A. Vierling
Counsel for Appellant Margaret H.
Marcus F. Westervelt, Attorney at Law, Phoenix
By Marcus F. Westervelt
Counsel for Appellant Herbert L.
Arizona Attorney General's Office, Mesa
By Nicholas Chapman-Hushek
Counsel for Appellee Department of Child Safety
MEMORANDUM DECISION
Judge Jon W. Thompson delivered the decision of the Court, in which Presiding Judge Andrew W. Gould and Judge Maurice Portley joined. THOMPSON, Judge:
¶1 Margaret H. (Mother) and Herbert L. (Father) appeal from the superior court's order terminating their parental rights as to A.L. (Child). For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
We review the evidence and draw all reasonable inferences in the light most favorable to upholding the juvenile court's factual findings. Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, 282, ¶ 13, 53 P.3d 203, 207 (App. 2002) (citation omitted).
¶2 Child was born in October 2009 and is the biological daughter of Mother and Father. Twenty-eight days after Child's birth, Father was incarcerated and later pled guilty to aggravated assault, a class 2 felony, and unlawful flight from a law enforcement vehicle, a class 5 felony. In April 2010, the court sentenced Father to seven years' imprisonment. For four months, Mother and Child visited Father in prison once every two to three weeks. However, in April 2011, Father was transferred to another prison and rarely saw Child thereafter. The following year, Father regularly spoke with Child on the phone, but has contacted her only four times since 2012. Father continued to send Child cards and handmade crafts approximately twice a month.
¶3 In August 2012, DCS took Child into temporary custody and filed a dependency petition based on Father's incarceration, and Mother's neglect, substance abuse, lack of stable residence and income, exposure to domestic violence, and tendency to leave Child in the care of others without providing her contact information. The juvenile court found Child dependent as to both parents and placed Child in foster care with her half-sister's paternal grandparents.
¶4 DCS began providing numerous rehabilitative services to Mother, including: substance abuse treatment and testing; psychological consultation; individual and domestic violence counseling; parenting classes; and supervised visitation. DCS determined that Child had special needs; and soon thereafter, Child began receiving services from the Division of Developmental Disabilities including speech and music therapy, and participation in an autism program.
¶5 During the following seven months, Mother had nine positive drug tests with TERROS Families First, missed several testing appointments, refused parent aide services, and had only sporadic attendance at the intensive outpatient program. In February 2013, Mother completed a psychological evaluation. Dr. Silberman diagnosed Mother with cannabis and methamphetamine abuse, adjustment disorder with depression, and personality disorder not otherwise specified. Dr. Silberman also reported Mother's prognosis as "not good," recommended Mother remain drug-free for at least a year, and advised her to participate in drug rehabilitation, counseling, and a support group.
¶6 In March 2013, Mother ceased participating in substance abuse treatment. Three months later, Mother entered an inpatient substance abuse program and successfully completed the thirty-day treatment. Mother then engaged in the after-care treatment program, participated in parent aide services, counseling, and had negative urinalysis test results for eight months. However, Mother failed to obtain stable housing during that time, and in December 2013, Mother's hair follicle test results were positive for chronic abuse of methamphetamines. Due to concern that Mother may have not submitted her own specimen for testing, CDS changed Mother's testing location to a facility that does random, observed urinalysis testing. Shortly thereafter, Mother tested positive for methamphetamines while pregnant with another child. After that test, Mother failed to participate in additional substance abuse treatment services.
¶7 DCS filed a motion to terminate the parental rights of Mother and Father based on Mother's history of chronic abuse of drugs; Father's incarceration; and Child's out of home placement for fifteen months or longer. See Ariz. Rev. Stat. (A.R.S.) § 8-533(B)(3), (4) and (8)(c) (Supp. 2014). DCS also alleged that termination was in Child's best interest. After a contested severance hearing, the juvenile court found that DCS had established the grounds for severance, and that termination was in Child's best interests. Accordingly, the juvenile court terminated Mother's and Father's parental rights to Child.
¶8 Both Mother and Father timely appealed. We have jurisdiction pursuant to A.R.S. §§ 8-235 (2014), and 12-2101(A)(1) (Supp. 2014).
DISCUSSION
¶9 The juvenile court may terminate the parent-child relationship only upon finding that clear and convincing evidence demonstrates at least one statutory ground for severance and that a preponderance of the evidence shows severance is in the child's best interests. A.R.S. § 8-533(B); Kent K. v. Bobby M, 210 Ariz. 279, 284, ¶ 22, 110 P.3d 1013, 1018 (2005). Both parents argue that DCS presented insufficient evidence to support termination of their parental rights, and that termination is not in Child's best interest.
The State argues that Mother and Father both abandoned their appeal as to the court's termination of their parental rights because their counsel did not fully comply with the Arizona Rules of Civil Appellate Procedure ("ARCAP"). In the argument section of their opening brief, Mother and Father make numerous factual assertions, but do not cite the record to support these assertions. We caution counsel that the failure to provide proper citation may be treated as waiver of the arguments made, and instruct counsel to comply fully with the applicable rules in the future. See ARCAP 13(a)(5), (7) (appellate brief shall contain references to record in support of recitation of facts and argument); Ariz. R.P. Juv. Ct. 106(A) (applying ARCAP 13 to juvenile appeals); see also Ritchie v. Krasner, 221 Ariz. 288, 305, ¶ 62, 211 P.3d 1272, 1289 (App. 2009) (holding the failure to comply with ARCAP 13 can constitute waiver of that claim). Although we exercise our discretion to address the issues raised in this case, future noncompliance with ARCAP 13 may result in dismissal of the appeal. See Clemens v. Clark, 101 Ariz. 413, 414, 420 P.2d 284, 285 (1966).
A. Severance of Mother's Parental Rights for Chronic Abuse of Drugs
¶10 Termination of parental rights under A.R.S. § 8-533(B)(3) requires a court to find that: 1) the parent has a history of chronic abuse of a controlled substance, 2) the "parent is unable to discharge parental responsibilities" because of that chronic substance abuse, and 3) "there are reasonable grounds to believe that the condition will continue for a prolonged and indeterminate period." Raymond F. v. Ariz. Dep't of Econ. Sec., 224 Ariz. 373, 377, ¶ 15, 231 P.3d 377, 381 (App. 2010). On appeal, "we will accept the juvenile court's findings of fact unless no reasonable evidence supports those findings, and we will affirm a [termination] order unless it is clearly erroneous." Jesus M, 203 Ariz. at 280, ¶ 4, 53 P.3d at 205. Mother argues that there was insufficient evidence that her "sporadic use of methamphetamine for short periods of time" 1) amounted to a history of chronic substance abuse, 2) resulted in her being unable to parent Child effectively, and 3) would continue for a prolonged indeterminate period. We disagree.
¶11 "[D]rug abuse need not be constant to be considered chronic." Raymond F., 224 Ariz. at 377, ¶ 16, 231 P.3d at 381 (finding that the court properly considered lingering and persistent nature of substance abuse in terminating parental rights under § 8-533(B)(3), notwithstanding parent's intermittent or recent sobriety). Additionally, termination under A.R.S. § 8-533(B)(3) "does not require that the parent be found unable to discharge any parental responsibilities," but rather "establish[es] a standard which permits a trial judge flexibility in considering the unique circumstances of each termination case before determining the parent's ability to discharge his or her parental responsibilities." Maricopa Cnty. Juv. Action No. JS-5894, 145 Ariz. 405, 408-09, 701 P.2d 1213, 1216-17 (App. 1985). Parental responsibilities include providing adequate food, shelter, and medical care, as well as emotional security and parental guidance and control. Denise R. v. Ariz. Dep't of Econ. Sec., 221 Ariz. 92, 97, ¶ 19, 210 P.3d 1263, 1268 (App. 2009) (citations omitted).
¶12 First, Mother's substance abuse cannot reasonably be described as "sporadic." Mother tested positive for methamphetamine repeatedly during the dependency, admitted to use of the drug while the motion to terminate her parental rights was pending, missed several urinalysis tests, failed to participate in substance abuse services, and acknowledged that she tested positive for methamphetamine at the hospital two weeks prior to the severance hearing. Her substance abuse clearly was chronic as contemplated by § 8-533(B)(3). See Raymond F., 224 Ariz. at 378-80, ¶¶ 26-29, 231 P.3d at 382-84 (stating that evidence of chronic substance abuse may include such factors as a parent's significant history of drug use, recent drug use, failure to complete various reunification services, and failure to remedy drug abuse despite facing a loss of parental rights).
¶13 We likewise reject Mother's argument that DCS failed to prove that Mother was unable to discharge her parental responsibilities because of the drug use. Mother relies on a report from parent aide services and the bonding and best interest evaluation which indicated that a bond existed between Mother and Child, and that Mother has the necessary skills set to parent Child. However, Mother ignores the remainder of the evaluations — specifically that Mother failed to satisfy the goal of meeting Child's basic needs through stable housing; concern regarding Mother's history of overlooking Child's needs because of her substance abuse; and Dr. Moe's recommendation that Child continue out-of-home placement while Mother participated in additional therapy and substance abuse testing. Mother also ignores other evidence in the record that her chronic substance abuse prevented her from being an adequate parent, including the opinion of her case manager, her inability to remain clean when not in an inpatient setting, and her inability to consistently comply with her case plan despite being required to do so before she could be reunited with Child.
¶14 Lastly, Mother challenges the juvenile court's finding that her condition would continue for a prolonged indeterminate time. Mother asserts that she is no longer abusing controlled substances and directs us to several facts in the record suggesting that she had been making progress. But, Mother admitted that she tested positive for controlled substances at a hospital two weeks prior to the severance hearing, and that she failed to comply with a drug testing program that could have supported her assertion. See Raymond F., 224 Ariz. at 379, ¶ 25, 231 P.3d at 383 ("Where the parent has been unable to rise above the addiction and experience sustained sobriety in a noncustodial setting, and establish the essential support system to maintain sobriety, there is little hope of success in parenting."). Notwithstanding Mother's efforts to treat her drug problem, the record supports the juvenile court's finding that Mother had been unable to discharge her parental responsibilities because of drug use and that there were reasonable grounds to believe Mother's chronic substance abuse would continue for a prolonged and indeterminate period of time. B. The Superior Court Did Not Err in Severing Father's Parental Rights.
Because we find that the court did not err in terminating Mother's parental rights under A.R.S. § 8-533(B), we do not address the additional ground for termination under A.R.S. § 8-533(B)(8). See Jesus M., 203 Ariz. at 280, ¶ 3, 53 P.3d at 205 ("If clear and convincing evidence supports any one of the statutory grounds on which the juvenile court ordered [termination], we need not address claims pertaining to the other grounds.").
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¶15 Pursuant to A.R.S. § 8-533(B)(4), the court may terminate a parent-child relationship if it finds, "the parent is deprived of civil liberties due to the conviction of a felony . . . if the sentence of that parent is of such length that the child will be deprived of a normal home for a period of years." The relevant length of time is the entire period of the parent's incarceration and absence from the home, "not the more random time that may elapse between the conclusion of legal proceedings for severance and the parent's release from prison." Jesus M., 203 Ariz. at 281, ¶ 8, 53 P.3d at 206. Additionally, the court must consider the length of the sentence imposed, not the length of the sentence if the parent might become parole eligible. James S. v. Ariz. Dep't of Econ. Sec., 193 Ariz. 351, 354 n.3, ¶ 12, 972 P.2d 684, 687 n.3 (App. 1998).
¶16 Father asserts that there was insufficient evidence that, under A.R.S. § 8-533(B)(4), his prison sentence "was of such a length as to deprive the child of a normal home for a period of years." Section 8-533(B)(4) does not establish a "bright line" definition of when a sentence is sufficiently long to deprive a child of a normal home for a period of years, and "the better approach is to consider each case on its particular facts." See Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, 251, ¶ 29, 995 P.2d 682, 687 (2000). In making this decision, the court should consider all relevant factors including:
(1) the length and strength of any parent-child relationship existing when incarceration begins, (2) the degree to which the parent-child relationship can be continued and nurtured during the incarceration, (3) the age of the child and the relationship between the child's age and the likelihood that incarceration will deprive the child of a normal home, (4) the length of the sentence, (5) the availability of another parent to provide a normal home life, and (6) the effect of the deprivation of a parental presence on the child at issue.Id. at 251-52, ¶ 29, 995 P.2d at 687-88.
¶17 As to the first factor, Child was twenty-eight days old when she was removed from Father's care. Second, the DCS caseworker testified that Child has not had a relationship with Father during his incarceration, and that Father's incarceration has deprived Child of a normal parent-child relationship with him. Although Father regularly visited with Child shortly after his initial incarceration, he testified that he has not seen Child in two years. Absent personal visitation it would be practically impossible to establish a parental bond with a young child. See Michael J., 196 Ariz. at 254, ¶ 43, 995 P.2d at 690 (Zlaket, J., concurring in part and dissenting in part) ("Letters or phone calls directly to the child would . . . provide[] little, if any, meaningful contact.").
¶18 Third, Child will be seven years old when Father is released from prison and, because Father would need to successfully complete a case plan before he could be reunited with Child, Child would likely be eight years old before she could be returned to Father's care. As to the fourth factor, Father is serving a seven-year sentence and will therefore be incarcerated for the initial formative years of Child's life. Fifth, Father admitted that there is no other parent able to care for Child while Father is incarcerated. Last, the DCS case manager testified that Father's incarceration had a detrimental effect to Child by prolonging her permanency and not giving her "safe and stable housing . . . [and] a loving family to take care of [her] and provide for [her] basic needs." Although Father completed some classes in prison, the classes were not sufficient to prepare him to deal with his child's special needs. As a result, the juvenile court did not err in finding that the statutory ground for termination had been met by clear and convincing evidence.
C. Child's Best Interest Determination
¶19 Mother and Father also challenge the court's finding that that severance was in Child's best interests. A.R.S. § 8-533(B). To establish that termination is in a child's best interests, the record must contain proof that the child either would benefit from the severance or be harmed if the parental relationship continues. Mary Lou C. v. Ariz. Dep't of Econ. Sec., 207 Ariz. 43, 50, ¶ 19, 83 P.3d 43, 50 (App. 2004) (citation omitted). Relevant factors to the best interest determination include whether: "1) an adoptive placement is immediately available; 2) the existing placement is meeting the needs of the child; and 3) the [child is] adoptable." Raymond F., 224 Ariz. at 379, ¶ 30, 231 P.3d at 383 (internal citations omitted).
¶20 The record provides ample evidence that termination of Mother's and Father's parental rights is in Child's best interests. Although the Child may have had a strong bond with Mother, Mother's drug use continued to place Child at risk of harm. Additionally, Father has not had a relationship with Child for nearly all of Child's life, and will be unable to parent Child for an additional two years. The DCS case manager opined that it would be detrimental to Child if Mother and Father's parental rights were not terminated. Furthermore, Child has been in the care of her sister's paternal grandparents for two years; they are willing to adopt her; the grandparents also have guardianship of her sister; the grandparents have provided a safe, stable, drug-free home for the Child and are capable of addressing Child's special needs; and Child is attached to the grandparents and sister. See Mary Lou C., 207 Ariz. at 50, ¶ 19, 83 P.3d at 50 (evidence child adoptable and current placement meeting child's needs sufficient to find termination in child's best interest).
¶21 Father argues that the juvenile court failed to give sufficient weight to his ability to parent Child after his release from prison, to his completion of classes during his incarceration, and to his effort to stay in contact with Child through cards and letters. Likewise, Mother asserts that the juvenile court did not give sufficient weight to the bond between Mother and Child, to the successful visitations and improvements in Mother's life, and to her potential to parent child in the future. Mother and Father are essentially asking this court to re-weigh the evidence presented at the hearing, which we will not do. See Pima County Dependency Action No. 93511, 154 Ariz. 543, 546, 744 P.2d 455, 458 (App. 1987) ("[T]he juvenile court [is] in the best position to weigh the evidence, judge the credibility of the parties, observe the parties, and make appropriate factual findings."). The juvenile court weighed Mother's and Father's evidence and arguments against those DCS presented and found that a preponderance of the evidence established that terminating Mother's and Father's parental rights was in Child's best interests. The evidence in this record amply supports the juvenile court's ruling.
CONCLUSION
¶22 Based upon the foregoing, we affirm the juvenile court's termination order.