Lara S. v. Dcs ( 2020 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
LARA S., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, O.S., O.S., Appellees.
No. 1 CA-JV 20-0220
FILED 12-3-2020
Appeal from the Superior Court in Maricopa County
No. JD21161
JS20335
The Honorable Robert Ian Brooks, Judge
AFFIRMED
COUNSEL
John L. Popilek, Scottsdale
Counsel for Appellant
Arizona Attorney General’s Office, Phoenix
By Sandra L. Nahigian
Counsel for Appellee Department of Child Safety
LARA S. v. DCS, et al.
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Samuel A. Thumma delivered the decision of the Court, in
which Judge D. Steven Williams and Judge David D. Weinzweig joined.
T H U M M A, Judge:
¶1 Lara S. (Mother) challenges the superior court’s order
terminating her parental rights to her biological twin children. Because
Mother has shown no error, the order is affirmed.
FACTS AND PROCEDURAL HISTORY
¶2 Mother is 31 years old. She began using methamphetamines
when she was 12. Other than when she has been incarcerated, Mother has
not been sober for more than a year or two since then. Mother had three
children before the twins. Her first child was born substance–exposed in
late 2011, and the Department of Child Services (DCS) took custody of the
child. Mother refused to participate in services, including for substance
abuse, and her parental rights were terminated in late 2012. Mother’s
second child, V.F., was born substance–exposed in late 2018, and DCS took
custody of the child. Again, Mother refused to participate in services and
her parental rights to V.F. were terminated in early 2020, based on
substance abuse, abandonment, six months’ time-in-care and length of
felony prison sentence. Mother’s third child lives with his father in South
Carolina; Mother’s parental rights to that child have not been terminated.
¶3 In July 2019, Mother was arrested for absconding from
probation (for a possession of heroin offense) and a new offense of unlawful
flight from law enforcement. By that time, Mother had been on probation
for more than eight years. She had participated in many outpatient
substance abuse treatment programs, but continued to abuse drugs,
showing “a lack of commitment to living a drug-free lifestyle.” While in
custody for the probation violation, Mother completed several counseling
and substance-abuse treatment programs. Within a month of being
released, however, Mother returned to using methamphetamine. In
September 2019, Mother was sentenced to two years in prison, with an early
release date in October 2020 and a maximum end date in April 2021.
2
LARA S. v. DCS, et al.
Decision of the Court
¶4 When initially incarcerated, Mother tested positive for opiates
and apparently first learned she was pregnant with the twins, who were
born in December 2019. DCS took custody of the twins soon after they were
born and filed both a dependency petition and a petition to terminate her
parental rights to the twins. DCS alleged two grounds for terminating
parental rights: substance abuse and prior termination for the same cause
within two years. DCS also alleged that termination would be in the best
interests of the twins.
¶5 At a one-day termination adjudication in July 2020, Mother
testified she had been using drugs up until she was incarcerated in July 2019
and admitted she would have continued to use drugs if she had not been
arrested, meaning her children would likely have been born substance-
exposed. The court terminated Mother’s parental rights to the twins on the
grounds alleged and because termination would be in the twins’ best
interests. This court has jurisdiction over Mother’s timely appeal pursuant
to Article 6, Section 9 of the Arizona Constitution, Arizona Revised Statutes
(A.R.S.) sections 8-235(A), 12-120.21(A) and 12-2101(A) and Arizona Rules
of Procedure for the Juvenile Court 103–104 (2020).1
DISCUSSION
¶6 As applicable here, to terminate parental rights, a court must
find by clear and convincing evidence that at least one statutory ground set
out in A.R.S. § 8-533(B) has been proven and must find by a preponderance
of the evidence that termination is in the best interests of the child. 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,” this court will affirm an order
terminating parental rights as long as it is supported by reasonable
evidence. Jordan C. v. Ariz. Dep’t of Econ. Sec., 223 Ariz. 86, 93 ¶ 18 (App.
2009) (citation omitted).
1Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.
3
LARA S. v. DCS, et al.
Decision of the Court
I. Mother Has Not Shown the Superior Court Erred in Finding
Terminating Her Parental Rights to the Twins Was the “Same
Cause” as the Prior Termination.
¶7 The parent-child relationship may be terminated when a
parent had her “parental rights to another child terminated within the
preceding two years for the same cause and is currently unable to discharge
parental responsibilities due to the same cause.” A.R.S. § 8-533(B)(10); see
also Mary Lou C. v. Ariz. Dep’t of Econ. Sec., 207 Ariz. 43, 48–49 ¶¶ 11–13
(App. 2004). The “same cause” requirement refers to the same underlying
factual cause that led to the prior termination. See Mary Lou C., 207 Ariz. at
48 ¶ 11.
¶8 The court terminated Mother’s parental rights to V.F. on
various grounds, including chronic substance abuse. The court found
Mother had a history of chronic substance abuse, beginning at age 12 and
continuing until the trial. The court also found DCS made reasonable efforts
to provide Mother with appropriate services (including substance–abuse
treatment) but that Mother refused to participate. Given these findings, the
court found Mother’s substance abuse would remain an issue in the future.
¶9 DCS alleged that the cause for terminating Mother’s parental
rights to both V.F. and the twins included chronic substance abuse. In
terminating Mother’s parental rights to the twins, the court held that “[t]he
cause of this termination [is] virtually indistinguishable from [V.F.’s]
termination. Mother remains incarcerated, has not demonstrated that she
can maintain sobriety outside of a controlled environment, and has
maintained almost no contact with” DCS. Mother argues the fact that she is
now addressing mental health issues underlying her substance abuse
differentiates the present circumstances from those that led to the
termination of her parental rights to V.F. However, the record supports the
court’s determination that Mother’s chronic drug abuse would continue,
finding “the path to parenting could be a period of years given her history
of substance abuse.” Accordingly, the court did not abuse its discretion in
finding, by clear and convincing evidence, that Mother is currently unable
to parent the twins because of the same cause that led to the termination of
her parental rights to V.F.2
2 Given this conclusion, this court need not address Mother’s arguments
regarding the other statutory ground found by the superior court. See
Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 251 ¶ 27 (2000).
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LARA S. v. DCS, et al.
Decision of the Court
II. Mother Has Not Shown the Court Erred in Finding Termination
Was in the Twins’ Best Interests.
¶10 The best interests determination “focuses primarily upon the
interest of the child, as distinct from those of the parent.” Kent K., 210 Ariz.
at 287 ¶ 37. “[A] determination of the child’s best interest[s] must include a
finding as to how the child would benefit from a severance or be harmed
by the continuation of the relationship.” Maricopa Cty. Juv. Action No. JS-
500274, 167 Ariz. 1, 5 (1990) (citing cases). A best interests finding may be
based on “the immediate availability of an adoptive placement.” Audra T.
v. Ariz. Dep’t of Econ. Sec., 194 Ariz. 376, 377 ¶ 5 (App. 1998). Maintaining
sibling relationships also supports a best interests finding. See id. at 378 ¶ 6.
¶11 Here, the twins and V.F. currently are in a familial placement
that is looking to adopt the twins. Although Mother has made some
progress in addressing her mental health issues, the court found that
delaying permanency for an extended (and perhaps indefinite) period was
not in the twins’ best interests. See In re. Maricopa Cty. Juv. Action No. JS-
501568, 177 Ariz. 571, 577 (App. 1994). Accordingly, Mother has not shown
the court erred in finding that DCS proved termination was in the twins’
best interests.
CONCLUSION
¶12 The superior court’s order terminating Mother’s parental
rights to the twins is affirmed.
AMY M. WOOD • Clerk of the Court
FILED: AA
5