In Re Term of Parental Rights as to M.K. ( 2023 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
IN RE TERMINATION OF PARENTAL RIGHTS AS TO M.K.
No. 1 CA-JV 22-0262
FILED 5-30-2023
Appeal from the Superior Court in Mohave County
No. S8015JD202000108
The Honorable Aaron Michael Demke, Judge Pro Tempore
AFFIRMED
COUNSEL
Harris & Winger, PC, Flagstaff
By Chad Joshua Winger, Sarah Snelling
Counsel for Appellant
Arizona Attorney General’s Office, Tucson
By Autumn Spritzer
Counsel for Appellee
IN RE TERM OF PARENTAL RIGHTS AS TO M.K.
Decision of the Court
MEMORANDUM DECISION
Judge Angela K. Paton delivered the decision of the Court, in which
Presiding Judge Jennifer M. Perkins and Judge D. Steven Williams joined.
P A T O N, Judge:
¶1 Jody M. (“Mother”) appeals the superior court’s order
terminating her parental rights. We affirm.
FACTS AND PROCEDURAL HISTORY
¶2 We view the facts in the light most favorable to affirming the
superior court’s findings. Maricopa Cnty. Juvenile Action No. JS-8490, 179
Ariz. 102, 106 (1994). Mother is a biological parent of M.K., born in 2015.
¶3 DCS removed M.K. from Mother’s custody in December 2020
and initiated dependency proceedings on multiple grounds, including an
unwillingness or inability to parent because of substance abuse and
exposing M.K. to domestic violence. Mother pleaded no contest, and the
superior court adjudicated M.K. dependent in February 2021.
¶4 DCS later filed, and the superior court granted, a motion to
terminate Mother’s parental rights as to M.K. on substance abuse and nine
months’ out-of-home placement grounds in November 2022. Mother
timely appealed. We have jurisdiction under Article 6, Section 9, of the
Arizona Constitution and Arizona Revised Statutes (“A.R.S.”) Sections 8-
235(A) and 12-120.21(A)(1).
DISCUSSION
¶5 To grant a petition to terminate parental rights, the superior
court must find (1) by clear and convincing evidence that at least one
statutory ground for termination exists and (2) by a preponderance of the
evidence that the termination is in the child's best interests. Alma S. v. Dep't
of Child Safety, 245 Ariz. 146, 149–50, ¶ 8 (2018); see also A.R.S. § 8-533(B)
(listing grounds for termination). As the trier of fact, the superior court “is
in the best position to weigh the evidence, observe the parties, judge the
credibility of witnesses, and resolve disputed facts.” Ariz. Dep’t of Econ. Sec.
v. Oscar O., 209 Ariz. 332, 334, ¶ 4 (App. 2004). Accordingly, we will affirm
the superior court’s factual findings if supported by reasonable evidence.
Denise R. v. Ariz. Dep’t of Econ. Sec., 221 Ariz. 92, 93–94, ¶ 4 (App. 2009).
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IN RE TERM OF PARENTAL RIGHTS AS TO M.K.
Decision of the Court
¶6 Mother argues insufficient evidence supported the superior
court’s findings of substance abuse and out-of-home placement grounds
pursuant to Section 8-533(B) and that termination was in M.K.’s best
interests.
I. Sufficient evidence supports the superior court’s finding of
chronic substance abuse pursuant to Section 8-533(B)(3).
¶7 In order to terminate parental rights on the chronic substance
abuse ground, the superior court must find that a parent is (a) “unable to
discharge parental responsibilities because of . . .” (b) “a history of chronic
abuse of dangerous drugs, controlled substances or alcohol,” and (c) “there
are reasonable grounds to believe that the condition will continue for a
prolonged indeterminate period.” A.R.S. § 8-533(B)(3).
¶8 “Chronic substance abuse” is not statutorily defined. See
Raymond F. v. Ariz. Dep’t Econ. Sec., 224 Ariz. 373, 377, ¶ 16 (App. 2010). But
“drug abuse need not be constant to be considered chronic” and may be “a
condition that has existed or continued for a long time.” Id. A temporary
abstinence from drugs and alcohol does not necessarily outweigh a
significant history of abuse or a consistent inability to abstain during a
termination case. See id. at 379, ¶ 29. And the court evaluates the
circumstances at the time of the termination hearing. Shella H. v. Dep’t of
Child Safety, 239 Ariz. 47, 50, ¶ 12 (App. 2016).
¶9 Mother reported she first used alcohol and marijuana at age
thirteen. From 2007-2020, Mother used alcohol, occasionally used other
substances, and engaged in domestic violence. After DCS took custody of
M.K., Mother was diagnosed with alcohol abuse with withdrawal and
accepted into a residential treatment program. But she refused to enroll in
the program despite regular follow-up from her service providers, to whom
she admitted continual drinking and an unwillingness to stop drinking to
meet the program’s detoxification requirement. The provider stopped
engaging Mother in April 2022 after she said she was doing well and no
longer needed services.
¶10 Out of the fifty-six random drug tests Mother took during the
approximately fourteen months between DCS taking custody of M.K. and
filing its termination motion, Mother tested positive for alcohol forty times
and for cannabinoids three times. She participated in four of fifty-five
appointments for random drug and alcohol testing from the time DCS
moved to terminate through July 11, 2022: one on March 14, 2022, was
positive for alcohol and cannabinoids; two on March 17 and 30, 2022, were
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IN RE TERM OF PARENTAL RIGHTS AS TO M.K.
Decision of the Court
negative; and one on June 10, 2022, was negative, but the results indicated
possible efforts to dilute the test. After the last completed test in June,
Mother failed to complete the remaining nine tests scheduled through July
11.
¶11 Mother’s history of domestic violence concurrent with her
alcohol and substance use supports a reasonable inference that Mother was
unable to discharge her parental responsibility to keep M.K. safe due to her
chronic substance abuse. And Mother’s unwillingness and inability to
demonstrate sobriety, particularly when her parental relationship with
M.K. was at stake, provided reasonable grounds for the superior court to
believe her substance abuse would continue. See Raymond F., 224 Ariz. at
379, ¶ 29 (holding same). Although Mother points to the fact that she
completed various services and child visitation without any signs of
intoxication as evidence that she could discharge her parental
responsibilities at the time of trial, we do not reweigh the evidence. See
Alma S., 245 Ariz. at 151, ¶ 18. Sufficient evidence supported termination
of Mother’s parental rights based on the chronic substance abuse ground.
II. Sufficient evidence supports the superior court’s finding that
termination of Mother’s parental rights is in M.K.’s best interests.
¶12 Once the superior court finds the existence of a statutory
ground for termination by clear and convincing evidence, it can “presume
that the interests of the parent and child diverge,” Kent K. v. Bobby M., 210
Ariz. 279, 286, ¶ 35 (2005), and shift its focus “to the interests of the child as
distinct from those of the parent.” Id. at 285, ¶ 31. Termination is in the
child's best interests if it will benefit the child or if continuing the parent-
child relationship will harm the child. Demetrius L. v. Joshlynn F., 239 Ariz.
1, 4, ¶ 16 (2016). “[C]ourts should consider a parent's rehabilitation efforts
as part of the best-interests analysis” but not “subordinate the interests of
the child to those of the parent once a determination of [parental] unfitness
has been made.” Alma S., 245 Ariz. at 151, ¶ 15. “The child’s interest in
stability and security must be the court’s primary concern.” Id. at 150, ¶ 12.
¶13 The superior court found termination was in M.K.’s best
interests because it would enable M.K. “to achieve permanency and
consistency” with a “sober and safe caregiver,” through adoption by the
family members she was placed with. The court noted that M.K.’s best
interests would be further served by termination because those family
members could “foster safe contact with [the] biological parents at their
discretion” after adoption.
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IN RE TERM OF PARENTAL RIGHTS AS TO M.K.
Decision of the Court
¶14 The best interests requirement may be met if the petitioner
proves that a current adoptive plan exists for a child or even that a child is
adoptable. Demetrius L., 239 Ariz. at 3–4 ¶ 12. The DCS case manager
testified that M.K. was currently placed with relatives willing to adopt her
and that she was “safe,” “stable,” and happy there. The evidence
reasonably supports the superior court’s best interests finding.
¶15 Because only one statutory ground is required to support a
termination, we decline to address Mother’s arguments regarding the out-
of-home placement ground.
CONCLUSION
¶16 We affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
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