Sarah B. v. Dcs, K.J. ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
SARAH B., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, K.J., Appellees.
No. 1 CA-JV 20-0146
FILED 12-8-2020
Appeal from the Superior Court in Yavapai County
No. P1300JD202000019
The Honorable Anna C. Young, Judge
AFFIRMED
COUNSEL
Law Office of Florence M. Bruemmer PC, Anthem
By Florence M. Bruemmer
Counsel for Appellant
Arizona Attorney General's Office, Mesa
By Thomas Jose
Counsel for Appellee Department of Child Safety
SARAH B. v. DCS, K.J.
Decision of the Court
MEMORANDUM DECISION
Presiding Judge James B. Morse Jr. delivered the decision of the Court, in
which Judge Maria Elena Cruz and Judge Paul J. McMurdie joined.
M O R S E, Judge:
¶1 Sarah B. ("Mother") appeals the superior court's order
terminating her parental rights to her daughter. For the following reasons,
we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 Mother has a history of substance abuse. In April 2017,
Mother gave birth to K.J., who was substance exposed to benzodiazepine,
methadone, and opiates. At that time, Mother admitted to using heroin and
other prescription drugs. Because of Mother's drug use, the Department of
Child Safety ("DCS") took custody of K.J., placed her in a foster home, and
filed a dependency petition. DCS provided Mother with reunification
services, and K.J. was returned to Mother's physical custody in March 2019.1
Mother participated in in-home dependency services until the matter was
closed in October 2019.
¶3 In December 2019, Mother overdosed, and first responders
found fentanyl in her home. In February 2020, police initiated a traffic stop
on Mother and her friend. Police found drug paraphernalia in the car, and
Mother appeared under the influence as she had "pin point pupils, . . .
would not stop talking and would not sit still." K.J. was in the car at the
time, and her car seat was not strapped in properly. Mother admitted to
the police that she had overdosed on substances three days prior, requiring
friends "to use Narcan to bring her back to life." DCS took custody of K.J.
and filed a dependency petition. DCS also tested K.J.'s hair for substances,
and the sample returned positive for methamphetamine.
1 The termination petition alleges that during this dependency,
Mother was provided "a full range of family reunification services to
address her substance abuse issues." However, the evidence does not detail
the dates or duration of the services offered, other than to confirm that
Mother was offered some substance-abuse testing.
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SARAH B. v. DCS, K.J.
Decision of the Court
¶4 In March 2020, Mother attended the preliminary protective
hearing where she received notice that failing to appear at future hearings
could result in a waiver of her right to contest the factual allegations in the
termination motion and a loss of her parental rights. At that hearing, the
superior court set a case plan of severance and adoption and scheduled the
initial termination hearing. DCS offered Mother services, including
substance-abuse testing, a substance-abuse assessment, an intake at a
behavioral health clinic, and parenting classes. Mother did not participate
in any services, save for two in-person visits with K.J. Once the coronavirus
pandemic began, DCS offered Mother video or phone visits, but she did not
participate.
¶5 The week after the preliminary protective hearing, DCS
moved to terminate Mother's parental rights to K.J. under the substance-
abuse and prior-removal grounds. When Mother failed to appear at the
initial termination hearing on March 31, the superior court found that she
lacked good cause for her absence and proceeded to take evidence on the
termination motion. After the hearing, the court made findings consistent
with the termination of Mother's parental rights on the grounds alleged. Six
days later, Mother moved "for [a] good cause finding," arguing she
mistakenly believed the court was closed due to the pandemic. K.J.'s
guardian ad litem and DCS both responded to Mother's motion.
¶6 On April 22, the superior court issued an order terminating
Mother's parental rights.2 The next day, Mother appealed the termination
order, and the superior court issued an order denying Mother's motion for
good cause finding. On May 5, Mother appealed the court's order denying
her motion. We have jurisdiction pursuant to A.R.S. §§ 8-235(A), 12-
120.21(A)(1), and -2101(A)(1).
DISCUSSION
¶7 A parent's right to custody and control of her child, while
fundamental, is not absolute. Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz.
246, 248-49, ¶¶ 11-12 (2000). Severance of a parental relationship may be
2 Although the order found Mother had received proper notice and
service, it did not contain an explicit finding that Mother lacked good cause
for her failure to appear. However, the parties did not raise the lack of
findings as an issue on appeal. Mary Lou C. v. Ariz. Dep't of Econ. Sec., 207
Ariz. 43, 50, ¶ 17 (App. 2004) ("[W]e will presume that the juvenile court
made every finding necessary to support the severance order if reasonable
evidence supports the order.").
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SARAH B. v. DCS, K.J.
Decision of the Court
warranted where the state proves one statutory ground under A.R.S.
§ 8-533 by "clear and convincing evidence." Id. "Clear and convincing"
means the grounds for termination are "highly probable or reasonably
certain." Kent K. v. Bobby M., 210 Ariz. 279, 284-85, ¶ 25 (2005). The court
must also find that severance is in the child's best interest by a
preponderance of the evidence. Id. at 284, ¶ 22.
¶8 This Court "will accept the juvenile court's findings of fact
unless no reasonable evidence supports those findings, and we will affirm
a severance order unless it is clearly erroneous." Jesus M. v. Ariz. Dep't of
Econ. Sec., 203 Ariz. 278, 280, ¶ 4 (App. 2002). We do not reweigh the
evidence but "look only to determine if there is evidence to sustain the
court's ruling." Mary Lou C. v. Ariz. Dep't of Econ. Sec., 207 Ariz. 43, 47, ¶ 8
(App. 2004).
I. Good Cause.
¶9 On appeal, Mother asserts that the superior court erred in
finding she lacked good cause for her failure to appear at the initial
termination hearing.3
¶10 Arizona Rule of Procedure for the Juvenile Court 65(C)(6)(c)
gives the superior court discretion to sever a parent's parental rights based
on the record and evidence presented if
the parent . . . had notice of the hearing, was properly served
pursuant to Rule 64 and had been previously admonished
regarding the consequences of failure to appear, including a
warning that the hearing could go forward in the absence of
the parent . . . and that failure to appear may constitute a
waiver of rights and an admission to the allegations contained
in the termination motion or petition . . . .
To set aside the superior court's finding, Mother must show both good
cause for her absence from the initial termination hearing and a meritorious
defense to the petition for termination. Trisha A. v. Dep't of Child Safety, 247
3 The superior court issued its ruling on the same day that Mother
filed her notice of appeal from the termination order. See Aqua Mgmt., Inc.
v. Abdeen, 224 Ariz. 91, 93, ¶ 7 n.3 (App. 2010) ("A trial court loses
jurisdiction once the appeal is filed, unless the matter is in furtherance of
the appeal."). Neither party raises this issue, and we therefore presume the
superior court's ruling is in furtherance of the appeal. Ariz. R.P. Juv. Ct.
103(F)(2).
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SARAH B. v. DCS, K.J.
Decision of the Court
Ariz. 84, 89, ¶ 19 (2019); Christy A. v. Ariz. Dep't of Econ. Sec., 217 Ariz. 299,
304, ¶ 16 (App. 2007). Good cause includes "mistake, inadvertence, surprise
or excusable neglect," which exists if Mother's actions are those of "a
reasonably prudent person in the same circumstances." Christy A., 217 Ariz.
at 304, ¶ 16. "[D]iligence is the final arbiter of whether mistake or neglect is
excusable." City of Phoenix v. Geyler, 144 Ariz. 323, 332 (1985). A meritorious
defense is "a good faith basis upon which to contend that the petitioner
cannot prove a statutory basis for termination and/or that termination is
not in the best interests of the child." Christy A., 217 Ariz. at 304, ¶ 15 n.11.
It "must be established by facts and cannot be established through
conclusions, assumptions or affidavits based on other than personal
knowledge." Id. at 304-05, ¶ 16.
¶11 Regarding good cause, Mother asserted that she was
"uncertain as to whether or not her hearing would go forward" due to the
pandemic. She then called and checked the Yavapai County Courthouse
website, which was closed, rather than the Juvenile Justice Center, which
remained open.
¶12 Although uncertainty is a reasonable response to the
pandemic, Mother stopped short of taking reasonable actions to confirm
whether her court hearing had indeed been canceled. She should have
known the initial termination hearing location because she attended the
preliminary protective hearing at the Juvenile Justice Center. There, she
signed a "Form 3, Notice to Parent in Termination Action," which provided
the date, time, and location of the initial termination hearing and warned
Mother that if she failed to attend "without good cause, the [juvenile court]
may determine that [she had] waived [her] legal rights and admitted the
grounds alleged in the motion/petition for termination." Mother was also
personally served the termination motion and the notice of hearing
containing the same information.
¶13 Mother's counsel also attempted to secure Mother's presence
at the hearing. Counsel texted Mother the day before the hearing to confirm
that she was going to be there. Just before the hearing, counsel left Mother
a voicemail and texted her the conference line telephone number so Mother
could call into the hearing. A reasonable person would have confirmed the
hearing's status through the documents received in the case or through
counsel. Mother did not do so and, therefore, has not demonstrated good
cause for her absence. Because Mother lacked good cause for her absence,
we affirm and do not need to address whether she established a meritorious
defense. See Trisha A., 247 Ariz. at 89, ¶ 19.
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SARAH B. v. DCS, K.J.
Decision of the Court
II. Reasonable Efforts.
¶14 Mother argues that DCS did not provide her with the time or
opportunity to participate in services. When seeking termination under the
substance abuse and prior removal grounds, DCS is required to make a
reasonable effort to provide the parent with appropriate reunification
services. A.R.S. § 8-533(B)(11)(b); Jennifer G. v. Ariz. Dep't of Econ. Sec., 211
Ariz. 450, 453, ¶ 12 (App. 2005). DCS meets this obligation by providing
the parent with "the time and opportunity to participate in programs
designed to help her become an effective parent." Maricopa Cnty. Juv. Action
No. JS-501904, 180 Ariz. 348, 353 (App. 1994). DCS is only obligated to
provide services that have "a reasonable prospect of success." Mary Ellen C.
v. Ariz. Dep't of Econ. Sec., 193 Ariz. 185, 192, ¶ 34 (App. 1999).
¶15 In the current dependency, DCS offered Mother substance-
abuse testing and a substance-abuse assessment, which may have led to
substance-abuse treatment. DCS also asked Mother to complete an intake
at a behavioral-health clinic and begin parenting classes.4 At the
preliminary hearing, Mother agreed to the services offered but did not
partake in any of them. To be sure, Mother refused to engage in drug
testing from the outset of the case, stating to DCS that she "completed
enough negative [drug tests] in the previous dependency for [DCS] to know
she is sober." Further, Mother participated in only a few visits with K.J.
¶16 Mother argues she was not provided the time or opportunity
to participate in reunification services in the current dependency because
the court severed her parental rights so quickly. However, Mother's failure
to appear at the initial hearing truncated the time she had to participate in
services. Additionally, Mother was on notice from the preliminary
protective hearing that the case plan was severance and adoption and that
DCS would be filing a motion to terminate her parental rights within ten
days of that hearing. She was notified that "[f]ailure to participate in
reunification services may result in the termination of [her] parental rights,"
but made no effort to seek out or participate in services, especially those
designed to address her substance abuse—the main issue preventing
reunification. Id. (noting that DCS is not obligated to "undertake
rehabilitative measures that are futile"); JS-501904, 180 Ariz. at 353 (stating
that DCS is not required to ensure that parents participate in services
offered).
4 DCS agreed to offer Mother individual counseling, but it is unclear
whether DCS made that referral before Mother's rights were terminated.
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SARAH B. v. DCS, K.J.
Decision of the Court
III. Substance-Abuse Ground.
¶17 Mother next argues that no reasonable evidence supports the
court's finding that she could not discharge her parental responsibilities
due to chronic substance abuse. Mother cites a lack of positive drug tests
or police reports in the record.
¶18 The superior court may terminate a parent's parental rights
when the parent cannot discharge parental responsibilities because of
chronic abuse of dangerous drugs or controlled substances, and there are
reasonable grounds to believe that the condition will continue for a
prolonged indeterminate period. A.R.S. § 8-533(B)(3). Substance abuse is
chronic when it is long-lasting, but it need not be constant. Raymond F. v.
Ariz. Dep't of Econ. Sec., 224 Ariz. 373, 377, ¶ 16 (App. 2010). Accordingly, a
parent's "temporary abstinence from drugs and alcohol does not outweigh
[a] significant history of abuse or [a] consistent inability to abstain during
[the] case." Id. at 379, ¶ 29. The juvenile court may consider a parent's prior
substance abuse in evaluating whether it will continue for a prolonged
indeterminate period. Jennifer S. v. Dep't of Child Safety, 240 Ariz. 282, 287,
¶ 20 (App. 2016). "This evidence include[s] 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." Id.¶19 When Mother failed to appear without good cause at the
initial termination hearing, she admitted the termination motion's factual
allegations. Those allegations, along with the remaining record, constitute
reasonable evidence supporting the court's findings under the substance-
abuse ground.
¶20 The evidence demonstrates that Mother's substance abuse is
chronic. She has abused substances for over three years. Indeed, K.J. was
born substance exposed to opiates, methadone, and benzodiazepine. At
K.J.'s birth, Mother acknowledged a lengthy history of heroin use. Due in
part to Mother's substance abuse, K.J. was in DCS custody from April 2017
to March 2019. During that time, Mother submitted positive drug tests.
Although Mother achieved some sobriety during late 2019, as evidenced by
her regaining custody of K.J., it did not last.
¶21 Mother overdosed in December 2019, and first responders
found fentanyl in her home. Mother claimed her overdose was due to her
sister blowing fentanyl smoke in her face. Two months later, police
conducted a traffic stop and noted several signs suggesting that Mother was
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SARAH B. v. DCS, K.J.
Decision of the Court
under the influence. Police found drug paraphernalia in the center console
of the car.5 During this encounter, Mother admitted to overdosing a few
days prior, requiring friends "to use Narcan to bring her back to life."
Despite this, Mother refused drug testing and did not complete a substance-
abuse assessment, which could have assisted service providers in
recommending treatment for her.
¶22 Reasonable evidence also supports the court's finding that
Mother was unable to discharge her parental responsibilities. During the
traffic stop in which Mother appeared under the influence, K.J. was in the
car. Her car seat was not buckled in properly and was "loose enough to be
taken out of the vehicle." Just after this incident, K.J. tested positive for
methamphetamine.
¶23 Mother next argues the superior court impermissibly shifted
the burden of proof to her because, after taking evidence at the initial
termination hearing, the court stated that "there was no confirmation that
mother has remedied her substance abuse issue." The court's statement was
couched in its observation that Mother had not submitted to drug testing.
Regardless, Mother's argument is not persuasive, and the court's statement
is not part of its final, written order. See Logan B. v. Dep't of Child Safety, 244
Ariz. 532, 538, ¶ 18 (App. 2018) (noting that one purpose of written findings
is to prompt judges to consider their decisions carefully); United Cal. Bank,
140 Ariz. at 308.
IV. Best Interests.
¶24 Mother also challenges the superior court's finding that
severance was in K.J.'s best interests. In addition to finding a statutory
ground for termination, the superior court must determine by a
preponderance of the evidence whether termination is in the child's best
interests. Kent K., 210 Ariz. at 284, ¶ 22. Once the court finds a parent unfit
under at least one statutory ground for termination, "the interests of the
parent and child diverge," and the court proceeds to balance the unfit
parent's "interest in the care and custody of his or her child . . . against the
independent and often adverse interests of the child in a safe and stable
5 Mother asserts that the court incorrectly stated at the hearing that
police found drugs during the traffic stop. Mother is correct. However, the
court's statement is not part of its final, written order, and we do not
consider it. United Cal. Bank v. Prudential Ins. Co. of Am., 140 Ariz. 238, 308
(App. 1983) ("Appeals lie from findings of fact, conclusions of law, and
judgments, not from ruminations of the trial judge.").
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Decision of the Court
home life." Id. at 286, ¶ 35. "[A] determination of the child's best interest
must include a finding as to how the child would benefit from a severance
or be harmed by the continuation of the relationship." Maricopa Cnty. Juv.
Action No. JS-500274, 167 Ariz. 1, 5 (1990). Courts "must consider the totality
of the circumstances existing at the time of the severance determination,
including the child's adoptability and the parent's rehabilitation." Alma S.
v. Dep't of Child Safety, 245 Ariz. 146, 148, ¶ 1 (2018).
¶25 Mother specifically argues that the court's finding is not
supported by a preponderance of the evidence because DCS "made only a
negligible effort to provide services to Mother for only a few short weeks
before seeking" termination. Although the superior court must consider a
parent's rehabilitation efforts as part of the best-interests analysis, it must
not "subordinate the interests of the child to those of the parent once a
determination of unfitness has been made." Id. at 151, ¶ 15. As discussed
in Section II, Mother made almost no effort to seek out or participate in
services, weighing against her in a best-interest analysis. Moreover, the
superior court found that severance would further the adoption plan by
providing K.J. with permanency and stability because she is in an adoptive
placement who is meeting her needs. These findings are supported by
reasonable evidence in the record.
CONCLUSION
¶26 For the foregoing reasons, we affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
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