Heather G. v. Dcs ( 2022 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
HEATHER G., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, W.L., M.K., Appellees.
No. 1 CA-JV 21-0346
FILED 5-17-2022
Appeal from the Superior Court in Maricopa County
No. JD538371
The Honorable Nicolas B. Hoskins, Judge Pro Tempore
AFFIRMED
COUNSEL
Maricopa County Public Advocate, Mesa
By Suzanne W. Sanchez
Counsel for Appellant
Arizona Attorney General’s Office, Mesa
By Amanda Adams
Counsel for Appellee Department of Child Safety
MEMORANDUM DECISION
Presiding Judge Cynthia J. Bailey delivered the decision of the Court, in
which Judge Peter B. Swann and Judge D. Steven Williams joined.
HEATHER G. v. DCS, et al.
Decision of the Court
B A I L E Y, Judge:
¶1 Heather G. (“Mother”) appeals the termination of her
parental rights to W.L. and M.K. (“the children”). She argues on appeal
that the Department of Child Safety (“DCS”) failed to prove she
substantially neglected or willfully refused to remedy the circumstances
leading to out-of-home placement. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Mother is the biological mother1 of the children, born in 2010
and 2016. In June 2020, DCS received a report that children appeared
malnourished and thin. The report also stated that parents did not have
enough food and that the mother had scabs on her body. DCS then
observed the children staying with their maternal aunt, confirming that one
of the children was very thin, had “bags underneath her eyes” and a burn
on her finger from cooking for her and her sibling. The older child, W.L.,
reported that she saw M.K.’s father—then living with Mother or
alternatively in a motel room while “detoxing”—drink alcohol “a lot.” She
reported that M.K.’s father also became violent towards Mother when
drinking, including throwing her on the ground and punching through
glass. W.L. also reported that Mother and children had lived with other
individuals who abused substances while children were present.
¶3 DCS filed a dependency petition as to Mother and each child’s
father. The petition alleged neglect by Mother in failing to provide for the
children’s basic needs and by residing with the children in a home with
persons abusing substances. Further, DCS alleged Mother was illegally
using marijuana and noted that W.L. had previously been adjudicated
dependent as to Mother based on her substance abuse in 2014. The children
remained in their maternal aunt’s care throughout the dependency. Mother
entered a no contest plea concerning the allegations in the petition. The
court ordered DCS to provide reunification services including: substance
abuse assessment and treatment through Terros, transportation as needed,
random drug testing, supervised visitation, and a parent aide once Mother
demonstrated thirty days of sobriety.
¶4 Mother completed an assessment with Terros in June 2020
and was diagnosed with an amphetamine-type substance abuse disorder.
1 W.L.’s father’s parental rights have been terminated, and the record
suggests M.K.’s father retains his rights at the time of this decision. Neither
father is a party to this appeal.
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HEATHER G. v. DCS, et al.
Decision of the Court
She admitted to using methamphetamine “a couple of times” between 2018
and 2020, most recently in February 2020. Terros advised Mother to
complete a standard outpatient program, participate in random drug
testing, and abstain from all drugs including alcohol. Following her
assessment, Mother failed to participate in Terros outpatient services,
except for attending one group session. Terros closed her out
unsuccessfully in August 2020. A second and third referral to Terros were
also closed out unsuccessfully in December 2020 and May 2021 after Mother
failed to complete a new intake.
¶5 Mother participated in five random urinalysis tests, testing
positive three times for alcohol in June and July 2020. She then stopped
testing completely. Mother later testified that she had completed a
substance abuse program at a sober-living home she had found. However,
the only evidence Mother provided of completion of any program indicated
she participated in parenting classes, not substance abuse treatment. She
did not provide the purported substance abuse treatment center’s name
before the termination hearing and never presented documentary evidence
of treatment. Mother participated in some supervised visitation, “c[oming]
to visits prepared and interact[ing] well with the children,” though she did
miss a significant number of sessions and was placed on a “call-to-confirm”
basis.
¶6 In May 2021, DCS moved to terminate Mother’s parental
rights to the children on substance abuse and nine-months’ out-of-home
placement grounds. See Ariz. Rev. Stat. (“A.R.S.”) §§ 8-533(B)(3), (B)(8)(a).
¶7 At the termination hearing, the DCS program supervisor
testified that DCS initially had concerns about Mother’s substance abuse—
due to markings and scabs on her skin—and the children’s malnutrition.
He further testified that DCS referred Mother for substance abuse treatment
through Terros on multiple occasions, substance abuse testing, and
visitation. He testified that DCS attempted to hold two case plan staffing
meetings in early 2021 to reengage Mother and W.L.’s father, but neither
attended. He testified that Mother received transportation when requested.
¶8 Mother testified that after completing the Terros intake, she
went to “several of the meetings” but was unable to participate remotely as
required due to Covid-19. She testified that she was not offered domestic
violence counseling or transportation. While she maintained she had not
willfully refused any DCS service, she admitted on cross-examination that
she was not consistently testing through PSI and was closed out
unsuccessfully. While she claimed to have sent an email to DCS noting she
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HEATHER G. v. DCS, et al.
Decision of the Court
participated in sober living, her caseworker reported no communication
with her at the time.
¶9 The superior court terminated Mother’s parental rights on the
nine-months’ time-in-care ground only. The superior court found that DCS
had not established the “full scope of Mother’s history of chronic substance
abuse,” and that while “a Ph.D-level expert witness could have provided
sufficient testimony” to connect Mother’s history with her lack of
engagement, no DCS witness possessed the requisite expertise. But as for
the nine-months’ time-in-care ground, the children had been out of the
home for 17 months at the time of trial. The court found that Mother
steadfastly refused to drug test after July 2020, and her explanations and
protests of sobriety were not credible. The court found the children were
living with their maternal aunt, who was prepared to adopt them, and that
termination was in their best interests.
¶10 We have jurisdiction over Mother’s timely appeal pursuant to
Article 6, Section 9, of the Arizona Constitution, A.R.S. §§ 8-235(A), 12-
120.21(A)(1) and -2101(A)(1), and Arizona Rules of Procedure for the
Juvenile Court 103 and 104.
DISCUSSION
¶11 To terminate parental rights, a court must find clear and
convincing evidence of at least one statutory ground in A.R.S. § 8-533(B)
and must find by a preponderance of the evidence that termination is in the
child’s best interest. See Kent K. v. Bobby M., 210 Ariz. 279, 288, ¶ 41 (2005);
Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 249, ¶ 12 (2000). Because
the superior court “is in the best position to weigh the evidence, observe the
parties, judge the credibility of witnesses, and resolve disputed facts,” we
will affirm an order terminating parental rights if it is supported by
reasonable evidence. Jordan C. v. Ariz. Dep’t of Econ. Sec., 223 Ariz. 86, 93,
¶ 18 (App. 2009) (citations omitted).
¶12 A termination based on nine-months’ time-in-care requires
that a court find by clear and convincing evidence that 1) the child was
being cared for in an out-of-home placement for at least nine months and
2) the parent has substantially neglected or willfully refused to remedy the
circumstances that caused the placement. A.R.S. § 8-533(B)(8)(a). The
substantial neglect or willful refusal element focuses more on Mother’s
“effort to cure the circumstances” resulting in placement than her “success
in actually doing so.” E.R. v. Dep’t of Child Safety, 237 Ariz. 56, 60, ¶ 17 (App.
2015) (quoting Marina P. v. Ariz. Dep’t of Econ. Sec., 214 Ariz. 326, 329, ¶ 20
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HEATHER G. v. DCS, et al.
Decision of the Court
(App. 2007)). The circumstances in view are those existing at the time of
termination rather than at the dependency petition. Id. (citation omitted).
¶13 Mother challenges the court’s finding that she willfully
refused or substantially neglected to remedy the circumstances that caused
her children to remain in out-of-home care. She argues that while she “did
not engage in the substance-abuse services that DCS offered,” she
successfully completed treatment on her own. Further, she notes that the
superior court found that there was not sufficient evidence to establish
termination because of chronic substance abuse. On these bases, she urges
us to find reasonable evidence did not support the superior court’s findings.
We disagree.
¶14 Mother refused—from July 2020 through termination of her
rights in November 2021—to participate in any drug testing, despite
pleading no contest to the allegations of her continued illegal marijuana
use, positive tests for amphetamine and methamphetamine in 2018, and
prior dependency based on her use of heroin, marijuana, and morphine.
Mother admitted at trial that she knew she was required to test for at least
30 days. She claimed simultaneously that she successfully tested for those
30 days and that any subsequent difficulty was the result of either not being
told she needed to test or transportation issues. She further claimed
sobriety from February 2020 onward.
¶15 The court found Mother’s explanations were not credible, first
noting that Mother only tested for two weeks, not for 30 days as she
claimed. The court also found Mother had ample reason to know of her
need to test: Mother had pled no contest to petition allegations including
substance abuse. The court found Mother failed to participate in Terros
drug treatment and that the record evidenced no effort to overcome
reported difficulties with accessing services, such as by talking to DCS. The
court found Mother’s claim of participation in a sober living home not
credible, noting that Mother provided no evidence of such participation.
While the court noted Mother’s participation in visitation was “mostly
consistent” it distinguished between these visits and participation in
services designed to ameliorate the circumstances leading to placement, i.e.,
substance abuse.
¶16 We do not reweigh the evidence on appeal, “even when
sharply disputed facts exist,” Alma S. v. Dep’t of Child Safety, 245 Ariz. 146,
151, ¶ 18 (2018) (citations and internal quotation marks omitted), and in any
event the record comports with the superior court’s findings of Mother’s
failure to participate in remediating services, see Maricopa Cnty. Juv. Action
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HEATHER G. v. DCS, et al.
Decision of the Court
No. JS-501568, 177 Ariz. 571, 576-77 (App. 1994) (requiring parents to show
“appreciable, good faith efforts to comply with remedial programs” to
avoid substantial neglect finding). Mother failed to prove participation in
any alternative services aimed at remediating the substance abuse concern
or alternatively, to prove her sobriety. We find no error in the superior
court’s finding.
¶17 Lastly, the superior court’s finding that DCS had not
established the substance abuse ground was not inconsistent with its
substantial neglect finding. The superior court found that DCS did not
establish the chronic nature of Mother’s substance abuse; not that the abuse
did not occur or that Mother had otherwise demonstrated sobriety. Indeed,
the court noted that Mother’s failure to test was “of grave concern” but that
the DCS witness “lacked the requisite expertise” to draw the connection
between Mother’s earlier substance abuse and the instant dependency.
This does not contradict the superior court’s findings on the nine-months’
time-in-care ground.
CONCLUSION
¶18 For the foregoing reasons, we affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
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