Matthew D. v. Dcs, L.D. ( 2018 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
MATTHEW D., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, L.D., Appellees.
No. 1 CA-JV 17-0372
FILED 1-30-2018
Appeal from the Superior Court in Maricopa County
No. JD30985
The Honorable Nicolas B. Hoskins, Judge Pro Tempore
AFFIRMED
COUNSEL
Law Office of Robert D. Rosanelli, Phoenix
By Robert D. Rosanelli
Counsel for Appellant
Arizona Attorney General’s Office, Tucson
By Michelle R. Nimmo
Counsel for Appellee Department of Child Safety
MATTHEW D. v. DCS, L.D.
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Lawrence F. Winthrop delivered the decision of the Court,
in which Judge Jennifer B. Campbell and Judge Paul J. McMurdie joined.
W I N T H R O P, Presiding Judge:
¶1 Matthew D. (“Father”) appeals the juvenile court’s order
terminating his parental rights to L.D. Father contends there was
insufficient evidence to terminate his parental rights due to chronic, and
likely persisting, drug abuse and due to his alleged failure to remedy the
circumstances which caused L.D. to remain in an out-of-home placement
for fifteen months. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Father is the biological parent of L.D., born in 2015.1 At birth,
L.D. tested positive for methamphetamine and THC and was hospitalized
with withdrawal-related symptoms. The Department of Child Safety
(“DCS”) immediately took custody of L.D. and placed him in foster care
where he has remained.
¶3 In July 2015, Father tested positive for methamphetamine.
DCS subsequently filed a dependency petition, alleging L.D. was
dependent as to Father on the ground of substance abuse. Father contested
the dependency, but the juvenile court granted DCS’ petition, finding L.D.
dependent as to Father. DCS then established a case plan for family
reunification concurrent with an alternative plan for termination and
adoption. In order to reunify with L.D., Father was required to demonstrate
sobriety, stability, and effective parenting skills.2 Following the
dependency hearing, Father tested negative for controlled substances on
1 Mother’s parental rights were terminated concurrently with
Father’s; however, she is not a party to this appeal.
2 To help Father accomplish these goals, DCS offered the following
services: parent aide after 30 days sobriety; parenting classes; substance
abuse assessment/treatment through TERROS; substance abuse testing
and urinalysis; and domestic violence counseling.
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MATTHEW D. v. DCS, L.D.
Decision of the Court
numerous urinalysis tests. However, before Father could continue DCS
services, he was sentenced to six months in prison stemming from his drug-
related arrest in March 2015.3
¶4 While in prison Father participated in numerous
rehabilitation and self-improvement programs. In December 2015, Father
completed a Maricopa Workforce Connections Employability Skills
Workshop. Additionally, Father obtained certificates for his successful
participation in domestic violence training, ALPHA Program for criminal
behavior modification and substance abuse, Thinking for a Change, Pre-
ALPHA anger management, and ALPHA parenting training. After being
released from prison, however, Father was unable to remain sober and
relapsed in August 2016. Father then attended a 45-day drug treatment
program at Chicanos Por La Causa, but relapsed after completion of the
program in spring 2017.
¶5 In September 2016, DCS moved to terminate Father’s parental
rights pursuant to Arizona Revised Statutes (“A.R.S.”) section 8-533 (2016).
First, DCS alleged Father abandoned L.D. and failed to provide L.D. with
reasonable support, regular contact, and normal parental supervision. See
A.R.S. § 8-533(B)(1). Second, DCS alleged Father failed “to discharge [his]
parental responsibilities because of . . . a history of chronic abuse of
dangerous drugs, controlled substances or alcohol and [because] there are
reasonable grounds to believe that the condition will continue for a
prolonged indeterminate period.” A.R.S. § 8-533(B)(3). Third, DCS moved
to terminate Father’s parental rights because L.D. had been in an out-of-
home placement for a period of six months and Father had “substantially
neglected or willfully refused to remedy the circumstances that cause[d] the
child to be in an out-of-home placement.” A.R.S. § 8-533(B)(8)(b). DCS
further alleged termination would be in L.D.’s best interest because it
would provide L.D. with permanency and stability.
¶6 Father contested the termination and a two-day evidentiary
hearing was held in July 2017. At the hearing, Father acknowledged that
he struggled with substance abuse and admitted to using
methamphetamine for over ten years. Father further acknowledged that,
in general, parents make bad decisions while under the influence of drugs,
but testified that he is working on his substance dependency, and provided
proof of the services he engaged in while incarcerated. Additionally, Father
3 Additionally, in 2014, Father was convicted of possession of
methamphetamine and placed on probation.
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MATTHEW D. v. DCS, L.D.
Decision of the Court
testified that his participation and completion in a 60-day inpatient drug
treatment program, which he completed only a couple days before the
termination hearing, would allow him to stay sober because he had
maintained sobriety for a longer period; thus, he is better equipped to
maintain sober living in the future. Father further testified that he plans to
continue his sobriety by moving into the Garfield house, a sober living
home, for four months. In the meantime, he has taken steps to secure
employment by obtaining his food handler’s license.
¶7 The DCS case supervisor testified that Father’s participation
in services had been inconsistent throughout the case; she recognized,
however, that Father was unable to participate in the referred services while
incarcerated. The case supervisor further testified that although Father
alleged he was searching for employment, he had not provided
employment verification or housing information to DCS. In addition, the
DCS case manager testified that it was unlikely Father would maintain
sobriety due to his history of chronic substance abuse and repetitive failure
to maintain sobriety after engaging in substance abuse treatment programs
in the past.
¶8 The juvenile court took the matter under advisement, and
subsequently terminated Father’s parental rights on the grounds of
prolonged substance abuse, pursuant to A.R.S. § 8-533(B)(3), and out-of-
home placement for a period of fifteen months, pursuant to A.R.S.
§ 8-533(B)(8)(c).4 In terminating Father’s rights on the basis of prolonged
substance abuse, the court found that “Father’s participation in inpatient
drug treatment came as a consequence of his failure to comply with
probation terms . . . [he] did not seek out this treatment affirmatively.” The
court further found it was in L.D.’s best interest to terminate Father’s
parental rights because L.D. was in an adoptive placement and had no
reasonable prospect of reunifying with Father in the near future.
¶9 Father timely appealed, and we have jurisdiction pursuant to
the Arizona Constitution, Article 6, Section 9; A.R.S. § 8-235(A) (2014); and
Rule 103(A) of the Arizona Rules of Procedure for the Juvenile Court.
4 The juvenile court found DCS did not meet its burden of proof to
terminate Father’s rights based on abandonment or out-of-home placement
for six months.
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MATTHEW D. v. DCS, L.D.
Decision of the Court
ANALYSIS
¶10 On appeal, Father argues the juvenile court erred in finding
he was unable to discharge his parental responsibilities because of a history
of substance abuse and that there was insufficient evidence to find his past
substance abuse was a condition that would continue for a prolonged
indeterminate period.
¶11 We view the evidence in the light most favorable to sustaining
the juvenile court’s order and will overturn the court’s findings only if they
were clearly erroneous, meaning not supported by reasonable evidence.
Audra T. v. Ariz. Dep’t of Econ. Sec., 194 Ariz. 376, 377, ¶ 2 (App. 1998). See
also Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 280, ¶ 4 (App. 2002)
(“The juvenile court, as the trier of fact in a termination proceeding, is in the
best position to weigh the evidence, observe the parties, judge the
credibility of witnesses, and make appropriate findings.” (citation
omitted)). Although parents have a fundamental right to raise their
children as they see fit, that right is not without limitation. Minh T. v. Ariz.
Dep’t of Econ. Sec., 202 Ariz. 76, 79, ¶ 14 (App. 2001). To terminate this
fundamental right, the juvenile court must determine by clear and
convincing evidence that one of the statutory grounds for termination
exists, and by a preponderance of the evidence that termination is in the
best interest of the child. Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246,
249, ¶ 12 (2000).
¶12 As relevant here, a juvenile court may terminate a parent’s
rights if it finds by clear and convincing evidence “[t]hat 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). To find a parent
has a history of “chronic” abuse of dangerous drugs, the drug usage need
not be constant, but must be long lasting. Raymond F. v. Ariz. Dep’t of Econ.
Sec., 224 Ariz. 373, 377, ¶ 16 (App. 2010). Periods of temporary abstinence
from drugs are insufficient to outweigh a parent’s significant history of
abuse. Id. at 379, ¶ 29. Further, a child’s interest in permanency prevails
over a parent’s uncertain battle with addiction. Jennifer S. v. Dep’t of Child
Safety, 240 Ariz. 282, 287, ¶ 17 (App. 2016).
¶13 Contrary to Father’s assertions, reasonable evidence supports
the juvenile court’s findings. The record reflects that Father has struggled
to maintain sobriety for over ten years, even with the help of multiple
substance abuse treatment programs. In addition, Father has serial criminal
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Decision of the Court
convictions stemming from his drug use. Although Father has participated
in numerous treatment programs, he has not demonstrated sustained
success in sobriety. After his release from prison in March 2016, Father
relapsed. He then attended a 45-day inpatient drug treatment program,
and relapsed again. Before the termination hearing, Father had just
completed another inpatient substance abuse program, which he alleges
will allow him to finally overcome his substance dependency. In
terminating Father’s parental rights, the juvenile court found that Father
attended inpatient treatment programs largely as a result of his failure to
comply with probation terms, not as an affirmative decision to overcome
his substance abuse. We cannot say, on this record, that the court abused
its discretion in terminating Father’s parental rights based on his history of
substance abuse and the likelihood that his substance dependency would
continue.
¶14 Father also argues the juvenile court relied on insufficient
evidence to terminate his parental rights pursuant to A.R.S. § 8-533(B)(8)(c),
arguing he remedied the circumstances which caused L.D. to be in an out-
of-home placement. In support, Father reiterates the arguments he raised
to contest termination pursuant to A.R.S. § 8-533(B)(3)—that his recent and
presumably successful participation in a substance abuse treatment
program will allow him to maintain sobriety. We, however, need not
address this argument because there is sufficient evidence to affirm the
court’s termination pursuant to A.R.S. § 8-533(B)(3). See Raymond F., 224
Ariz. at 376, ¶ 14 (finding we will affirm a termination of parental rights if
“any one of the statutory grounds is proven and if the termination is in the
best interest of the child[]” (citing Jesus M., 203 Ariz. at 280, ¶ 2)).
¶15 Father does not challenge the juvenile court’s finding that
termination was in L.D.’s best interest. Nonetheless, we note the record
supports the finding. The court found L.D. is in an adoptive placement and
will benefit from the permanency that foster care provides, especially
because there is no evidence that family reunification will occur in the near
future.
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MATTHEW D. v. DCS, L.D.
Decision of the Court
CONCLUSION
¶16 The juvenile court’s order terminating Father’s rights to L.D.
is affirmed.
AMY M. WOOD • Clerk of the Court
FILED: AA
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