Desiree v. 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
DESIREE V.,
Appellant,
v.
DEPARTMENT OF CHILD SAFETY, O.V., L.V.,
Appellees.
No. 1 CA-JV 20-0214
FILED 12-8-2020
Appeal from the Superior Court in Mohave County
No. L8015JD201807053
The Honorable Steven C. Moss, Judge
AFFIRMED
COUNSEL
The Stavris Law Firm, PLLC, Scottsdale
By Alison Stavris
Counsel for Appellant
Arizona Attorney General's Office, Tucson
By Cathleen E. Fuller
Counsel for Appellee Department of Child Safety
DESIREE V. v. DCS, et al.
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 Desiree V. ("Mother") appeals the juvenile court's order
terminating her parental rights to O.V. and L.V. (collectively "Children").
We affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 "We view the facts in the light most favorable to upholding
the juvenile court's order." Ariz. Dep't of Econ. Sec. v. Matthew L., 223 Ariz.
547, 549, ¶ 7 (App. 2010) (citation omitted).
¶3 The Department of Child Safety ("DCS") received a report that
O.V., then eleven months old, had a "round burn mark below her right
elbow" that was "the shape and size of a cigarette." During its investigation,
DCS learned that Mother smoked methamphetamine "within arm's reach
of [O.V.] every day" and that O.V. had once "picked up Mother's
methamphetamine pipe from a coffee table and 'sucked on it like a straw.'"
¶4 DCS then arranged for Mother and O.V. to stay at a sober-
living facility, but they never arrived. Instead, Mother was arrested in
Nevada for domestic violence and outstanding warrants. Following her
arrest, Mother consented to DCS taking custody of O.V. DCS filed a
dependency petition as to O.V., and the juvenile court found the child
dependent as to Mother.
¶5 During O.V.'s dependency, L.V. was born and tested positive
for methamphetamine. DCS took temporary custody of L.V., filed a
dependency petition, and the juvenile court found L.V. dependent.
¶6 Mother has long struggled with an addiction to
methamphetamine, having used it since she was around fifteen years old.
DCS referred Mother to several rehabilitation programs but her attendance
at those programs was inconsistent, and she frequently tested positive for
methamphetamine. She eventually completed one rehabilitation program
but was unable to maintain consistent sobriety and was later arrested for
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DESIREE V. v. DCS, et al.
Decision of the Court
possession of methamphetamine, shoplifting, and driving on a suspended
license. Mother was sentenced to a total of sixteen months' imprisonment
for those offenses and for violating probation.
¶7 DCS moved to terminate Mother's rights to both Children
under the neglect and chronic substance abuse statutory grounds, A.R.S. §
8-533(B)(2) and (3), and moved to terminate Mother's rights to L.V. under
the six-months in out-of-home placement ground, A.R.S. § 8-533(B)(8)(b).
The juvenile court held a one-day trial regarding the termination of
Mother's rights as to both Children.
¶8 After the trial, the court found Mother "still had not achieved
the goals of sobriety," despite completing the rehabilitation program. The
court highlighted the fact that other rehabilitation programs had
terminated Mother's services due to her "lack of contact and compliance
and her resistance to [the program's] services." Further, the court noted
Mother's drug-testing records showed that in 90 percent of her scheduled
drug tests, she tested positive for methamphetamine, provided an altered
sample, or failed to take a test as scheduled. The court said it was "clear
that the Mother was simply testing when she desired and with whom she
desired dependent upon what she thought would best benefit her."
¶9 The court also determined that DCS offered appropriate
reunifications services to Mother, "including case management, case plan
staffing, child and family team meetings, domestic violence counseling,
parenting classes, substance abuse assessments and treatments, team
decision-making, transportation, urinalysis testing, at least one hair follicle
test that came back positive for methamphetamine, and visitation with the
[C]hildren."
¶10 Ultimately, the court determined that DCS proved all
statutory grounds by clear and convincing evidence and that termination
of Mother's rights was in the Children's best interests. Mother timely
appealed the court's order terminating her parental rights to the Children,
and we have jurisdiction under A.R.S. §§ 8-235(A), 12-120.21(A)(1), and -
2101(A)(1).
DISCUSSION
¶11 The right to custody of one's child is fundamental but not
absolute. Michael J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 246, 248-49, ¶¶ 11-
12 (2000). Termination of parental rights is generally not favored and
"should be considered only as a last resort." Maricopa Cnty. Juv. Action No.
JS–500274, 167 Ariz. 1, 4 (1990).
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DESIREE V. v. DCS, et al.
Decision of the Court
¶12 To terminate a parent-child relationship, the juvenile court
must find that clear and convincing evidence supports one of the statutory
grounds for severance. Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 22 (2005);
A.R.S. § 8-533(B). Additionally, the court must determine by a
preponderance of the evidence that the relationship's termination is in the
child's best interests. Kent K., 210 Ariz. at 284, ¶ 22. We review a trial court's
termination order for an abuse of discretion. Mary Lou C. v. Ariz. Dep't of
Econ. Sec., 207 Ariz. 43, 47, ¶ 8 (App. 2004). We accept the court's findings
of fact unless no reasonable evidence supports them. Jesus M. v. Ariz. Dep't
of Econ. Sec., 203 Ariz. 278, 280, ¶ 4 (App. 2002).
¶13 Mother argues the juvenile court erred in finding that DCS
proved the statutory grounds for termination and that termination of her
parental rights was in the Children's best interests.
¶14 As to the chronic substance abuse ground, Mother argues
only that the court erred in finding DCS made a diligent effort to provide
her with reasonable reunification services. "As an element of termination
under A.R.S § 8-533(B)(3), [DCS] is required to demonstrate that it has
'made a reasonable effort to preserve the family.'" Vanessa H. v. Ariz. Dep't
of Econ. Sec., 215 Ariz. 252, 255, ¶ 18 (App. 2007) (citation omitted). This
means that DCS must provide services to 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). "Although [DCS] need not provide 'every conceivable
service,' it must provide a parent with the time and opportunity to
participate in programs designed to improve the parent's ability to care for
the child." Mary Ellen C. v. Ariz. Dep't of Econ. Sec., 193 Ariz. 185, 192, ¶ 37
(App. 1999) (quoting JS-501904, 180 Ariz. at 353). DCS is not obligated to
provide futile rehabilitative measures but must undertake measures that
have a "reasonable prospect of success." Mary Ellen C., 193 Ariz. at 192, ¶
34.
¶15 Mother specifically claims that DCS failed to make diligent
efforts because Mother supposedly was not assigned a caseworker from
August 2019 through early November 2019. Mother alleges that her case
plan was not sufficiently updated during that time, and she was unable to
get in touch with any DCS employee to discuss her case plan.1
1 Mother's brief neglects to acknowledge trial testimony from a DCS
caseworker who stated that Mother was, in fact, assigned another DCS
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DESIREE V. v. DCS, et al.
Decision of the Court
¶16 Mother does not explain how the alleged three-month period
without a DCS caseworker demonstrates that DCS did not make reasonable
efforts. Instead, the juvenile court found Mother was provided reasonable
case management services, and we are obligated to affirm that conclusion
if any reasonable evidence supports it. See Jesus M., 203 Ariz. at 280, ¶ 4.
To the extent that Mother suggests her testimony should be given greater
weight than the caseworker's testimony, we defer to the juvenile court's
credibility determinations. See Jennifer S. v. Dep't of Child Safety, 240 Ariz.
282, 286-87, ¶ 16 (App. 2016). Given the court's finding that DCS's case
management services were reasonable, we find that the court rejected
Mother's allegations. The evidence, supra ¶¶ 6, 8-9, supports this finding.
¶17 Furthermore, the record shows Mother was aware of her
obligations under the case plan in place, and those obligations did not
change even after her plan was eventually updated. And Mother does not
dispute the juvenile court's finding that DCS otherwise provided a panoply
of reasonable reunification services. See supra ¶ 8. We disagree with her
suggestion that the myriad of services offered was not enough to outweigh
the alleged temporary disruption with her assigned caseworker.
¶18 Mother's trial was held twenty months after the first
dependency petition was filed. Even assuming Mother found it challenging
to communicate with her caseworker for a few months, she fails to explain
why that issue outweighs the otherwise undisputedly diligent efforts of
DCS. Considering the vast array of services offered by DCS throughout the
twenty months and the totality of circumstances in this case, we cannot say
the juvenile court abused its discretion when it found that DCS made a
diligent effort to reunify Mother with the Children. Thus, Mother's
argument is meritless, and we affirm the juvenile court's determination that
DCS proved that termination was justified under A.R.S. § 8-533(B)(3).
¶19 Because we affirm the court's determination that termination
was justified due to Mother's chronic substance abuse, we do not need to
address Mother's argument as to the other statutory grounds. See Raymond
F. v. Ariz. Dep't of Econ. Sec., 224 Ariz. 373, 376, ¶ 14 (App. 2010) ("While the
court terminated Father's parental rights on a number of statutory grounds
pursuant to A.R.S. § 8-533(B), we will affirm the termination if any one of
caseworker from August to November 2019. The testifying caseworker also
stated that, from November 2019 onward, Mother failed to keep in regular
contact with DCS.
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DESIREE V. v. DCS, et al.
Decision of the Court
the statutory grounds is proven and if the termination is in the best interest
of the children.").
¶20 Mother also argues the court erred when it found that
termination was in the Children's best interests. Terminating a parent-child
relationship is in a child's best interests if the child will benefit from the
termination or will be harmed if the relationship continues. Demetrius L. v.
Joshlynn F., 239 Ariz. 1, 4, ¶ 16 (2016). Relevant factors in this determination
include whether: (1) the current placement is meeting the child's needs, (2)
an adoption plan is in place, and (3) the child is adoptable. See id. at 3-4, ¶
12. 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). "The existence and effect of a bonded relationship between
a biological parent and a child, although a factor to consider, is not
dispositive in addressing best interests." Dominique M. v. Dep't of Child
Safety, 240 Ariz. 96, 98, ¶ 12 (App. 2016).
¶21 Moreover, "[i]n a best interests inquiry, . . . we can presume
that the interests of the parent and child diverge because the court has
already found the existence of one of the statutory grounds for termination
by clear and convincing evidence." Kent K., 210 Ariz. at 286, ¶ 35; see also
Maricopa Cnty. Juv. Action No. JS-6831, 155 Ariz. 556, 559 (App. 1988) ("In
most cases, the presence of a statutory ground will have a negative effect
on the children."). Once a juvenile court finds that a parent is unfit, the
focus shifts to the child's interests. Kent K., 210 Ariz. at 285, ¶ 31. Thus, in
considering best interests, the court must balance the unfit parent's
"diluted" interest "against the independent and often adverse interests of
the child in a safe and stable home life." Id. at 286, ¶ 35. Of foremost concern
in that regard is "protect[ing] a child's interest in stability and security." Id.at ¶ 34 (citing Pima Cnty. Juv. Action No. S-114487, 179 Ariz. 86, 101 (1994)).
¶22 Mother argues the court erred because she was participating
in various programs to address her substance abuse. At trial, Mother
testified she was six months sober and had secured housing and
employment upon her release from prison. Mother made clear at trial that
she wanted to take custody of the Children and get involved in their lives.
But we are obligated to affirm the juvenile court if there is any reasonable
evidence to support its findings. See Jesus M., 203 Ariz. at 280, ¶ 4. Mother
does not argue the court erred when it found the Children were doing well
in their adoptive placement and needed permanency. Though Mother's
recent apparent sobriety and her efforts to secure a safe home environment
upon her release from prison are laudable, those facts do not negate the
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DESIREE V. v. DCS, et al.
Decision of the Court
reasonable evidence relied on by the juvenile court. Thus, we cannot say
the juvenile court abused its discretion when it found that termination was
in the Children's best interests.
CONCLUSION
¶23 For the reasons above, we affirm the juvenile court in all
respects.
AMY M. WOOD • Clerk of the Court
FILED: AA
7