Carrie M. v. Dcs ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
CARRIE M., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, A.R., V.R., A.R., J.R., P.R., A.R.,
Appellees.
No. 1 CA-JV 15-0381
FILED 6-2-2016
Appeal from the Superior Court in Maricopa County
No. JD23726
The Honorable Susanna C. Pineda, Judge
AFFIRMED
COUNSEL
John L. Popilek, P.C., Scottsdale
By John L. Popilek
Counsel for Appellant
Arizona Attorney General’s Office, Mesa
By Michael F. Valenzuela
Counsel for Appellee Department of Child Safety
CARRIE M. v. DCS et al.
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Lawrence F. Winthrop delivered the decision of the Court,
in which Judge Patricia K. Norris and Judge Kenton D. Jones joined.
W I N T H R O P, Presiding Judge:
¶1 Carrie M. (“Mother”) appeals the juvenile court’s order
severing her parental rights to her six children—A.R., V.R., A.R., J.R., P.R.,
and A.R. (collectively “the Children”), contending the juvenile court erred
in finding the Department of Child Safety (“DCS”) had proven the statutory
grounds for severance by clear and convincing evidence. For the following
reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 In May 2013, the Children came into care of DCS when they
were found neglected by Mother and the Children’s father (“Father”)1, and
abused by the parents and other adults residing in the home. The children
had also witnessed verbal domestic violence between the parents. By the
time of removal, Mother had been regularly using illegal substances and
alcohol for seven years. Two months later, the juvenile court found the
Children dependent as to the parents.
¶3 DCS offered Mother an array of services and assistance—
especially substance rehabilitation services—geared toward reunification.
During the first eight months of the dependency proceedings, Mother
sporadically participated in the services and frequently tested positive for
illegal substances. In May 2014, DCS moved to sever Mother’s parental
rights; around the same time, Mother enrolled in an in-patient substance
rehabilitation program, remaining there until December 2014. While in the
program, Mother managed to stay clean from illegal substances and
alcohol. But upon release, she relapsed and tested positive multiple times
for alcohol and illegal substances, such as cocaine and methamphetamine.
1 Sometime in 2014, Mother and Father, who had not been married,
were no longer a couple. In June 2014, Father became homeless and,
afterwards, his whereabouts became unknown. He did not appeal and is
not party to this appeal.
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CARRIE M. v. DCS et al.
Decision of the Court
Her inconsistency in drug testing continued through the beginning of the
severance trial.
¶4 Although expected to do so, Mother had not obtained stable
housing or employment, either. Since the removal of her children, she had
lived with various individuals and in different facilities. As for
employment, the longest period of non-seasonal employment she ever held
was approximately one year, and that occurred nine years earlier. Mother
claimed she had worked at Walmart for three months and was working at
a drug rehabilitation center at the time of the severance trial, but could not
produce proof of either employment.
¶5 In May 2014, DCS moved to sever Mother’s parental rights for
neglect, substance abuse, and nine-month out-of-home placement under
Arizona Revised Statutes (“A.R.S.”) sections 8-533(B)(2), (3), and (8)(a)
respectively.2 Approximately two months later, DCS agreed to continue
the case to give Mother more time to work on services. But upon being
released from the in-patient program in mid-December 2014, Mother
relapsed; accordingly, in April 2015, DCS renewed its motion for severance,
including one more ground of fifteen-month out-of-home placement under
A.R.S. § 8-533(B)(8)(c). After a bench trial, the juvenile court found DCS
had met its burden of proving all of the statutory grounds by clear and
convincing evidence and that severance was in the Children’s best interests,
and ordered the severance.
¶6 Mother timely appealed. We have appellate jurisdiction
pursuant to the Arizona Constitution, Article 6, Section 9; A.R.S. § 8-235(A);
and Rule 103(A) of the Arizona Rules of Procedure for the Juvenile Court.
ANALYSIS
¶7 We review the juvenile court’s order severing a parent’s rights
for abuse of discretion. Frank R. v. Mother Goose Adoptions, 239 Ariz. 184,
190, ¶ 21, 367 P.3d 88, 94 (App. 2016). Parents’ rights in the care, custody,
and management of their children are fundamental, but not absolute. Kent
K. v. Bobby M., 210 Ariz. 279, 284, ¶ 24, 110 P.3d 1013, 1018 (2005). 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 best interests of the children. A.R.S. §§ 8-
533(B), -537(B); Kent K., 210 Ariz. at 281–82, 288, ¶¶ 7, 41, 110 P.3d at 1015–
2 Absent material changes after relevant events, we cite a statute’s
current version.
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CARRIE M. v. DCS et al.
Decision of the Court
16, 1022. Mother does not contest the juvenile court’s best-interest findings
and, accordingly, has waived any argument in that regard on appeal. See
Childress Buick Co. v. O’Connell, 198 Ariz. 454, 459, ¶ 29, 11 P.3d 413, 418
(App. 2000) (stating this court deems issues not clearly raised in appellate
briefs waived). On appeal, we will affirm the juvenile court’s factual
findings if supported by reasonable evidence. Denise R. v. Ariz. Dep’t of
Econ. Sec., 221 Ariz. 92, 93–94, ¶ 4, 210 P.3d 1263, 1264–65 (App. 2009); Jesus
M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 282, ¶ 12, 53 P.3d 203, 207 (App.
2002).
¶8 Mother argues the juvenile court erred in finding DCS met its
burden in proving the statutory ground for substance abuse under A.R.S.
§ 8-533(B)(3), as well as neglect under § 8-533(B)(2) and nine- and fifteen-
month out-of-home placement under § 8-533(B)(8)(a) and (c). Section 8-
533(B)(3) provides,
Evidence sufficient to justify the termination of the parent-
child relationship shall include any one of the following, and
in considering any of the following grounds, the court shall
also consider the best interests of the child:
...
3. That the parent is unable to discharge parental
responsibilities because of mental illness, mental deficiency or
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.
¶9 Mother contends DCS failed to prove by clear and convincing
evidence all provisions of this statute because it only showed Mother had
previously abused dangerous drugs. The only support for this contention
is her assertion that she had improved significantly from a daily user to
mostly staying clean from illegal substances. The evidence in the record
demonstrates otherwise, however. Mother not only had a significant
history of substance abuse, but also, throughout the dependency,
sporadically participated in the substance rehabilitation programs. She
frequently tested positive for illegal substances and alcohol, except the
period of time from May to December 2014. Episodic abstinence from
drugs and alcohol, however, does not outweigh a parent’s significant
history of abuse or inability to abstain. Raymond F. v. Ariz. Dep’t of Econ.
Sec., 224 Ariz. 373, 379, ¶ 29, 231 P.3d 377, 383 (App. 2010). Further, that
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CARRIE M. v. DCS et al.
Decision of the Court
brief period of sobriety happened when she was in an in-patient
environment—not a non-custodial, unstructured setting in which a mother
would be expected to raise her children. It therefore did not demonstrate
that her condition of substance abuse was or would be cured in the near
future, and that she could safely discharge her parental responsibilities.
Therefore, the juvenile court did not err in finding DCS met its burden of
proof on the substance abuse ground.3
¶10 Mother has waived her arguments regarding the best
interests; reasonable evidence nevertheless supports the juvenile court’s
finding that severance was in the best interests of the Children. On this
record, all of the Children were in placements that provided for their
physical, mental, and emotional needs, and were willing to adopt and
continue to provide for them. Further, the children’s interest in
permanency must prevail over the parent’s uncertain, long-standing battle
with drugs. Id. Accordingly, the juvenile court did not abuse its discretion
in ordering the severance.
CONCLUSION
¶11 The juvenile court’s order severing Mother’s parental rights is
affirmed.
:AA
3 We do not address Mother’s arguments on other statutory grounds,
as we have concluded the juvenile court did not err in finding the substance
abuse ground. See Jesus M., 203 Ariz. at 280, ¶ 3, 53 P.3d at 205 (stating this
court need not address claims pertaining to other statutory grounds once
clear and convincing evidence supports any one of the statutory grounds
on which the juvenile court ordered severance).
5