Jennifer S. v. Dcs, Z.S. ( 2016 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
JENNIFER S., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, Z.S., Appellees.
No. 1 CA-JV 15-0333
FILED 5-3-2016
Appeal from the Superior Court in Maricopa County
No. JD527006
The Honorable Karen L. O’Connor, Judge
AFFIRMED
COUNSEL
Law Office of Holly A. Bartee, Chandler
By Holly A. Bartee
Counsel for Appellant
Arizona Attorney General’s Office, Mesa
By Nicholas Chapman-Hushek
Counsel for Appellee Department of Child Safety
JENNIFER S. v. DCS, Z.S.
Decision of the Court
MEMORANDUM DECISION
Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Peter B. Swann and Judge Donn Kessler joined.
W I N T H R O P, Judge:
¶1 Jennifer S. (“Mother”) appeals the juvenile court’s order
terminating her parental rights to Z.S. (“the child”).1 Mother challenges the
statutory bases found by the juvenile court in severing her parental rights.
For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY2
¶2 Mother, born in 1977, is the biological mother of the child.
Mother has a long history of substance abuse—including alcohol,
marijuana, cocaine, lysergic acid diethylamide (LSD), and
methamphetamine—which began when she was fourteen years old. While
on probation3 between 2010 and 2012, she twice finished drug treatment
and, absent “a couple of slip ups,” achieved a total of approximately one
year of sobriety through the help of TERROS, but then relapsed and again
began using methamphetamine. She used methamphetamine throughout
her pregnancy in 2012 and 2013, despite her awareness of potential
“developmental issues” resulting from the drug abuse, and declined
prenatal care with the child.
1 The juvenile court also terminated the parental rights of the child’s
father (“Father”), listed as “John Doe.” Father is not a party to this appeal.
2 We view the facts and reasonable inferences therefrom in the light
most favorable to affirming the juvenile court’s order. Ariz. Dep’t of Econ.
Sec. v. Matthew L., 223 Ariz. 547, 549, ¶ 7, 225 P.3d 604, 606 (App. 2010).
3 Mother was placed on concurrent terms of two years’ probation after
pleading guilty to one count of facilitation to commit aggravated taking the
identity of another person or entity, a class six felony, and one count of
possession of marijuana, a class one misdemeanor. See Ariz. Rev. Stat.
(“A.R.S.”) §§ 13-2009 (Supp. 2015), -3405(A)(1) (Supp. 2015).
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Decision of the Court
¶3 When the child was born in June 2013, both Mother and the
child tested positive for methamphetamine. The child was premature and
significantly underweight, but was eventually sent home with a safety
monitor to live with Mother, who was unemployed and lived in a one-
bedroom apartment with a friend (“Michael”), who also had a history of
substance abuse.4
¶4 While the child was with Mother, DCS made clear Mother
was to remain sober and offered her services—including drug testing
through TASC, substance abuse treatment through TERROS, and parenting
services through Healthy Families Arizona and Family Preservation.
Mother, however, did not fully comply with the services. She failed to
engage in substance-abuse treatment through TERROS; moreover, she
twice failed to show up at TASC for urinalysis testing and failed to urinate
on five other occasions before submitting to a hair follicle test and oral
swab, both of which came back positive for methamphetamine on August
23, 2013. She failed to show up for testing at least two more times before
submitting to a September 3 urinalysis test, which came back positive for
methamphetamine. Nevertheless, she denied using illegal drugs. Shortly
thereafter, DCS removed the child from Mother’s care and placed the child
in the temporary care of a licensed foster placement.5
¶5 On September 11, 2013, DCS filed a dependency petition
alleging the child was dependent based on Mother’s substance abuse and
neglect. Although Mother denied the allegations in the petition, she waived
her right to contest them and submitted the dependency issue to the
4 In the years before living with Michael, Mother had lived with other
friends, but had not been included on any lease. At the time Mother
testified at the severance hearing, she continued to live with Michael.
Mother testified that, although she “didn’t work for a few years,” she began
working part-time a few months before the severance hearing as a caretaker
for a friend, who was “very flexible” as to the hours worked and paid her
$10.00 per hour in cash.
5 The child was taken into care by Child Protective Services (“CPS”),
formerly a division of the Arizona Department of Economic Security
(“ADES”), and ADES filed the subsequent dependency petition in this case.
In May 2014, however, CPS was removed as an entity within ADES and
replaced by DCS, an entity outside of ADES. See 2014 Ariz. Sess. Laws, ch.
1, §§ 6, 20, 54 (2d Spec. Sess.). Accordingly, DCS was substituted for ADES
in this matter, see ARCAP 27, and references to DCS in this decision
encompass both ADES and the former CPS.
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JENNIFER S. v. DCS, Z.S.
Decision of the Court
juvenile court, which found the child dependent as to Mother in October
2013.
¶6 The court approved a case plan of family reunification
concurrent with severance and adoption. To further the goal of family
reunification, DCS required that Mother fully resolve her problem with
drug abuse and offered her services through TASC and TERROS, as well as
parent aide services and a psychological consultation contingent on her
sobriety.
¶7 Over the next year, Mother generally engaged in the services
offered by DCS, but her continued problems with drug abuse—specifically,
methamphetamine—affected her success with those services. For example,
between February and September 2014, Mother engaged in parent aide
services, and Mother’s parent aide sought to assist her in securing stable
housing and employment. Mother’s parent aide service referral did not
close successfully, however, because Mother had not achieved transitional
or unsupervised visitation with the child based on her ongoing substance
abuse. Also, Mother’s scheduled August 2014 psychological evaluation
was postponed due to a lack of sobriety.
¶8 Because Mother’s prior service referral with TERROS had
closed due to her lack of compliance, she engaged in substance-abuse
treatment through Valle Del Sol for approximately four months before
transferring back to TERROS in late January 2014. At the intake assessment
with TERROS, the assessor concluded Mother was at “medium” risk of
relapse, in part because she believed she could continue to associate with
other illegal-drug users without negatively affecting her ability to maintain
sobriety.6 Between late January and early August 2014—despite Mother’s
expressed confidence in her ability to maintain sobriety and denials she was
using drugs—she often tested positive for methamphetamine through
TERROS and refused to enter inpatient treatment. Thus, her TERROS
referral again closed.
¶9 In addition to the drug testing administered through
TERROS, DCS also offered Mother random drug tests through TASC. From
the day of the child’s removal through December 2013, however, Mother
refused to take fifteen tests and tested positive for methamphetamine five
times. Over the next seven months—through July 2014—she again tested
positive for methamphetamine five times. Moreover, although she
6 As previously noted, Mother continued to live with Michael, who
had at some point been charged with possession of dangerous narcotics.
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JENNIFER S. v. DCS, Z.S.
Decision of the Court
sometimes tested negative for banned drugs, Mother had been using a
device that utilized other, apparently nonhuman, urine to achieve those
results, and she was caught using that device in August 2014. From late
August through September 2014, Mother tested positive for
methamphetamine nine times and refused to test four times. At a
September 2014 report and review hearing, the juvenile court granted
DCS’s motion to change the case plan to severance and adoption.
¶10 On October 2, 2014, DCS moved to terminate Mother’s
parental rights to the child based on a history of chronic substance abuse,
see A.R.S. § 8-533(B)(3) (Supp. 2015), as well as the nine-month and six-
month out-of-home placement grounds under § 8-533(B)(8)(a) and (b),
respectively. By this time, the child had been in DCS’s care for
approximately thirteen months. DCS later amended its motion, adding the
fifteen-month out-of-home placement ground under A.R.S. § 8-533(B)(8)(c).
¶11 Approximately one month after the severance motion was
filed, Mother again used methamphetamine. She then self-referred to an
inpatient treatment program offered through Casa de Amigas,
acknowledging she lacked the motivation to become sober until the case
plan had changed to severance and adoption. She finished the thirty-day
residential treatment program and subsequently completed the twelve-
week aftercare plan. From December 2014 until the severance hearing, she
tested negative for methamphetamine.7 She also continued to attend
support groups and Narcotics Anonymous meetings, began participating
in counseling in late April 2015, completed a parenting educational
program offered through the Family Resource Center, completed a
psychological evaluation on December 17, 2014, and continued regular
visitation—including partially unsupervised visitation—with the child.
¶12 Despite Mother’s efforts in the months immediately
preceding the severance hearing, the juvenile court held a contested
severance hearing on June 9 and 10 and August 12, 2015. The parties later
submitted written closing arguments, and in an order filed September 24,
2015, the court terminated Mother’s parental rights on each of the grounds
alleged, finding in part as follows:
On December 17, 2014, Mother participated in a
psychological evaluation with Dr. [Celeste] Korsten. Dr.
Korsten concluded that Mother’s drug history, including
7 In April and May 2015, however, Mother tested positive on three
occasions for opiates; specifically, hydrocodone and hydromorphone.
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JENNIFER S. v. DCS, Z.S.
Decision of the Court
using methamphetamine on a daily basis for ten years,
prevent[s] her from effectively parenting until she
demonstrates sobriety for at least a year and sustains stable
employment and housing. . . . Dr. Korsten testified that given
Mother’s history of relapsing after maintaining sobriety for
more than a year, a demonstration of sobriety for longer than
a year is needed to minimize drug relapse.
DCS made reasonable and diligent efforts to provide
Mother with rehabilitative services. The dependency case
began in September 2013. Before then, DCS provided Family
Preservation Services[,] which proved unsuccessful. After the
dependency case was filed, DCS offered services including
drug testing and treatment, parent-aide services,
psychological evaluation and individual counseling. Mother
did not begin to fully participate in services until the case plan
changed to severance and adoption in October 2014.
Mother has demonstrated sobriety since October 2014
and continues to participate in counseling and visitation.
However, given her significant drug abuse history, her
relapse history, and her failure to engage in services for over
a year after the dependency petition was filed, the Court
concludes that her chronic substance abuse is not resolved
and there are reasonable grounds to believe that it will
continue for a prolonged indeterminate period. Mother is not
able to parent until her drug issues are resolved. This means
she needs to demonstrate sobriety for longer than one year.
The court also found that severance was in the child’s best interest, in part
because it would provide him “with emotional stability and permanency.”
¶13 Mother filed a timely notice of appeal. We have jurisdiction
pursuant to A.R.S. § 8-235(A) (2014) and Rule 103(A) of the Arizona Rules
of Procedure for the Juvenile Court.
ANALYSIS
¶14 Mother argues the juvenile court erred in finding DCS proved
by clear and convincing evidence the chronic substance abuse ground
under A.R.S. § 8-533(B)(3) and the three out-of-home placement grounds
under A.R.S. § 8-533(B)(8)(a), (b), and (c). In support of her argument,
Mother maintains she completed the psychological evaluation and parent
aide services provided her by DCS, exercised visitation throughout the
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JENNIFER S. v. DCS, Z.S.
Decision of the Court
dependency, self-referred and completed additional services, had been
clean and sober from methamphetamine for months before the severance
hearing, had begun participating in counseling, had recently enrolled in
online college courses, and by the end of the severance hearing, was living
by herself and had achieved some level of employment.
¶15 Parents possess a fundamental liberty interest in the care,
custody, and management of their children. Kent K. v. Bobby M., 210 Ariz.
279, 284, ¶ 24, 110 P.3d 1013, 1018 (2005) (citing Santosky v. Kramer, 455 U.S.
745, 753 (1982); Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 248, ¶ 11,
995 P.2d 682, 684 (2000)). Even fundamental rights are not absolute,
however. Id. (citing Michael J., 196 Ariz. at 248, ¶ 12, 995 P.2d at 684). A
court may sever those rights if it finds clear and convincing evidence of one
of the statutory grounds for severance, and finds by a preponderance of the
evidence that severance is in the child’s best interest. See A.R.S. §§ 8-533(B),
-537(B) (2014); Kent K., 210 Ariz. at 281–82, 288, ¶¶ 7, 41, 110 P.3d at 1015–
16, 1022.8
¶16 The juvenile court retains great discretion in weighing and
balancing the interests of the child, parent, and state. Cochise Cty. Juv. Action
No. 5666-J, 133 Ariz. 157, 160, 650 P.2d 459, 462 (1982). As the trier of fact in
a termination proceeding, the juvenile court “is in the best position to weigh
the evidence, observe the parties, judge the credibility of witnesses, and
resolve disputed facts.” Jordan C. v. Ariz. Dep’t of Econ. Sec., 223 Ariz. 86, 93,
¶ 18, 219 P.3d 296, 303 (App. 2009) (quoting Ariz. Dep’t of Econ. Sec. v. Oscar
O., 209 Ariz. 332, 334, ¶ 4, 100 P.3d 943, 945 (App. 2004)). Thus, the
resolution of conflicts in the evidence is uniquely the province of the
juvenile court, and we will not reweigh the evidence in our review. Jesus
M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 282, ¶ 12, 53 P.3d 203, 207 (App.
2002); see also Pima Cty. Adoption of B-6355, 118 Ariz. 111, 115, 575 P.2d 310,
314 (1978) (“In considering the evidence it is well settled that an appellate
court will not substitute its own opinion for that of the trial court.” (citation
omitted)). We will not disturb the juvenile court’s order unless no
reasonable evidence supports its factual findings. Matthew L., 223 Ariz. at
549, ¶ 7, 225 P.3d at 606.
8 Mother does not contest the juvenile court’s finding that severance
was in the best interest of the child and, thus, has waived any challenge to
that finding in this appeal. See Childress Buick Co. v. O’Connell, 198 Ariz. 454,
459, ¶ 29, 11 P.3d 413, 418 (App. 2000) (stating that issues not raised in
appellate briefs are deemed waived).
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JENNIFER S. v. DCS, Z.S.
Decision of the Court
¶17 Subsection (3) of A.R.S. § 8-533(B) provides for termination of
parental rights when a parent’s history of chronic substance abuse renders
the parent “unable to discharge parental responsibilities” and “reasonable
grounds” exist “to believe that the condition will continue for a prolonged
indeterminate period.” Chronic substance abuse is long-lasting but not
necessarily constant substance abuse. Raymond F. v. Ariz. Dep’t of Econ. Sec.,
224 Ariz. 373, 377, ¶ 16, 231 P.3d 377, 381 (App. 2010). A parent’s
“temporary abstinence from drugs and alcohol does not outweigh [her]
significant history of abuse or [her] consistent inability to abstain during
[the] case.” Id. at 379, ¶ 29, 231 P.3d at 383. Moreover, “children should not
be forced to wait for their parent to grow up.” Id. at 378, ¶ 25, 231 P.3d at
382 (quoting In re N.F., 579 N.W.2d 338, 341 (Iowa Ct. App. 1998)).
Accordingly, a child’s interest in permanency must prevail over a parent’s
uncertain battle with drugs. Id. at 379, ¶ 29, 231 P.3d at 383 (citing In re N.F.,
579 N.W.2d at 341).
¶18 Although Mother made an attempt to stop her drug use,
reasonable evidence supports the juvenile court’s order terminating
Mother’s parental rights on the ground of chronic substance abuse. Mother
concedes she has a significant history of substance abuse dating from the
age of fourteen through the birth of her child, and the record indicates her
continued substance abuse caused DCS to remove the child from her care,
institute dependency proceedings, and eventually move for severance. As
we discuss in more detail below, reasonable evidence existed showing that
her chronic substance abuse rendered her “unable to discharge parental
responsibilities.”
¶19 Mother argues that reasonable grounds do not exist to believe
the condition will continue for a prolonged indeterminate period, and her
“history [of chronic substance abuse] is irrelevant to th[at] analysis.” We
disagree.
¶20 As the trier of fact, the juvenile court could consider the
evidence of Mother’s prior substance abuse in evaluating whether
reasonable grounds existed to conclude her inability to discharge parental
responsibilities would continue for a prolonged indeterminate period. This
evidence included the length and frequency of Mother’s substance abuse,
the types of substances abused, behaviors associated with the substance
abuse, prior efforts to maintain sobriety, and prior relapses.
¶21 In this case, Mother and the child tested positive for
methamphetamine upon the child’s birth. Mother showed no sobriety after
DCS intervened but before DCS removed the child, and although Mother
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JENNIFER S. v. DCS, Z.S.
Decision of the Court
engaged in some services, she did not engage in substance-abuse treatment
through TERROS, refused to take most of her required drug tests, and
tested positive for methamphetamine before the child’s removal, despite
denying she was using illegal drugs. For more than a year after the child’s
removal, Mother continued to refuse tests, tested positive for
methamphetamine, and refused inpatient treatment—causing her TERROS
referral to again close—despite being warned the juvenile court could
terminate her parental rights if she substantially neglected or willfully
refused to remedy the circumstances that caused the child’s removal.
Moreover, she raised questions about the validity of her negative tests after
she was caught using a device that utilized urine other than her own and
consistently tested positive after being caught. Even after the juvenile court
granted DCS’s motion to change the case plan to severance and adoption,
Mother used methamphetamine approximately one month later.
¶22 Meanwhile, after Mother had begun making efforts to
maintain sobriety because the case plan had changed to severance and
adoption, she was finally able to submit to a psychological evaluation
performed by Celeste Korsten, Psy.D., on December 17, 2014. Dr. Korsten
diagnosed Mother with “Other Specified Personality Disorder with
Antisocial Personality Features” because of Mother’s “reckless disregard
for the safety of herself and her child,” as well as with “Stimulant Use
Disorder, Severe, in Early Remission,” and “Child Neglect, Subsequent
Encounter.” Dr. Korsten opined that Mother’s “pervasive
methamphetamine use” impacted her ability to parent, explaining that
“[t]rends in the research suggest that parents who use methamphetamine
place their children at risk.” She concluded Mother must show “at least” a
year’s sobriety and gain stable housing and employment before she could
adequately parent the child, and noted Mother had a high risk of relapse
“given that [she] used methamphetamine on a daily basis for 10 years.”
¶23 At trial, Dr. Korsten opined that it was “concerning” if Mother
had been sober for a year in the past and then relapsed because “the highest
rate of relapse occurs within the first year, and, again, there’s a lot of
stressors that can present themselves.” Consequently, Dr. Korsten
recommended Mother show sobriety for “at least” a year and a half to two
years before the child could be returned to her. Dr. Korsten opined that
Mother is “at a high risk to relapse,” and could not currently provide proper
and effective parental care and control for the child because she had not
maintained long-term sobriety. Further, although Mother’s recent efforts
at maintaining sobriety and utilizing services increased her chance for a
long-term recovery, her prognosis remained “[un]favorable.”
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JENNIFER S. v. DCS, Z.S.
Decision of the Court
¶24 Mother’s assigned DCS case manager also cautioned against
family reunification, noting concerns about Mother’s extensive drug
history, deception and lying, social environment, and potential for relapse.
The case worker opined that Mother could not minimally adequately
parent the child due to her history with substance abuse, which continued
to cause “a great concern.”
¶25 Although Mother made efforts to achieve and maintain
sobriety in the months immediately preceding the severance hearing, her
abstinence from methamphetamine during that period does not outweigh
her significant history of drug abuse or her consistent inability to abstain
during the majority of the case. Reasonable evidence supports the juvenile
court’s conclusion that Mother’s history of chronic substance abuse
rendered her unable to discharge parental responsibilities and that
reasonable grounds exist to believe the condition will continue for a
prolonged indeterminate period. Accordingly, the juvenile court did not
err in concluding the child’s interest in permanency should prevail over
Mother’s uncertain battle with drugs.9
CONCLUSION
¶26 The juvenile court’s order terminating Mother’s parental
rights to the child is affirmed.
:ama
9 “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 (citations omitted); see also A.R.S. § 8-533(B) (requiring
that evidence sufficient to justify the termination of the parent-child
relationship include “any one” of the enumerated termination grounds).
Because the record supports the order terminating Mother’s parental rights
on the ground of chronic substance abuse, we do not address the parties’
arguments regarding the three time-in-care grounds on appeal.
10