In Re Term of Parental Rights as to N.M. ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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 N.M.
No. 1 CA-JV 23-0037
FILED 8-08-2023
Appeal from the Superior Court in Maricopa County
No. JD30235
The Honorable Christopher Whitten, Judge
AFFIRMED
COUNSEL
Law Office of Ed Johnson, PLLC, Peoria
By Edward D. Johnson
Counsel for Appellant
Arizona Attorney General’s Office, Phoenix
By Bailey Leo
Counsel for Appellee Department of Child Safety
MEMORANDUM DECISION
Judge Cynthia J. Bailey delivered the decision of the Court, in which
Presiding Judge James B. Morse Jr. and Judge Brian Y. Furuya joined.
B A I L E Y, Judge:
IN RE TERM OF PARENTAL RIGHTS AS TO N.M.
Decision of the Court
¶1 Krystal K. (“Mother”) appeals the termination of her parental
rights to N.M. (“the child”). For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Mother and Jesse M. (“Father”) are the biological parents of
the child, who was born substance-exposed to methamphetamine and
amphetamines in June 2021.1 Mother also tested positive for amphetamines
and admitted using methamphetamine the day of the child’s birth, stating,
“I know for sure that is what induced my labor.”
¶3 Soon after the child’s birth, the Department of Child Safety
(“DCS”) filed a dependency petition based on Mother’s failure to provide
proper and effective parental care and control due to her substance abuse.
DCS also alleged that Mother’s eighteen-year substance abuse history had
contributed to the termination of her parental rights to her other two
children in 2016. In July 2021, DCS placed the child—who had spent forty-
three days in the hospital—with her paternal cousins, who were willing to
adopt her.
¶4 Mother pled no contest to the allegations in the dependency
petition. In support of the family reunification case plan, DCS offered
Mother substance abuse treatment, drug testing, parenting classes,
transportation, case management, and supervised visitation, but she
participated in services only sporadically.
¶5 Mother began inpatient substance abuse treatment in July
2021 but checked out the same day, and she missed her intake appointment
for a different inpatient program a few weeks later. Mother completed
intake for outpatient treatment in September 2021, then failed to participate
consistently. At the outpatient provider’s recommendation, Mother
checked into another inpatient treatment facility, but she left during the
treatment planning process. All told, Mother never spent more than four
days in inpatient treatment before checking herself out.
¶6 Mother tested positive for methamphetamine and
amphetamines in July, September, October, and November 2021, and then
stopped submitting to drug tests. In July 2022, DCS moved to terminate
Mother’s parental rights based on chronic substance abuse and six- and
nine-months out-of-home placement grounds.
1 Although the superior court also terminated Father’s parental rights,
he is not a party to this appeal.
2
IN RE TERM OF PARENTAL RIGHTS AS TO N.M.
Decision of the Court
¶7 Meanwhile, in June 2022, Mother self-referred to services
offered by SAGE and began substance abuse and parenting classes. During
the next six months, Mother completed ten group sessions in both areas,
and in December 2022, she was successfully discharged from the program.
However, despite the ongoing requirement that she test twice weekly,
Mother did not submit to any drug tests while participating in these classes,
and she tested positive for methamphetamine and amphetamines the same
month she graduated. Although Mother testified that she has been sober
since December 3, 2022, she failed to submit to any drug tests between her
positive test in late December 2022 and the termination hearing five weeks
later. Throughout DCS’ involvement with the child, Mother submitted to
drug testing only eight times, testing negative just once.
¶8 On February 1, 2023, the superior court held the termination
hearing. After taking the matter under advisement, the court severed
Mother’s parental rights to the child on each alleged ground.
¶9 We have jurisdiction over Mother’s timely appeal under
Article 6, Section 9, of the Arizona Constitution, Arizona Revised Statutes
(“A.R.S.”) sections 8-235(A), 12-120.21(A)(1), and -2101(A)(1), and Rule 601
of the Arizona Rules of Procedure for the Juvenile Court.
DISCUSSION
I. Chronic Abuse of Dangerous Drugs or Controlled Substances
¶10 Mother argues that the court disregarded evidence that she
remedied her substance abuse.
¶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 interests. 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) (quoting Ariz. Dep’t of Econ. Sec. v. Oscar O., 209 Ariz. 332,
334, ¶ 4 (App. 2004)).
¶12 The superior court may terminate parental rights under
A.R.S. § 8-533(B)(3) if “the parent is unable to discharge parental
responsibilities because of . . . a history of chronic abuse of dangerous drugs,
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IN RE TERM OF PARENTAL RIGHTS AS TO N.M.
Decision of the Court
controlled substances or alcohol and there are reasonable grounds to
believe that the condition will continue for a prolonged indeterminate
period.”
¶13 A parent’s substance abuse “need not be constant to be
considered chronic.” Raymond F. v. Ariz. Dep’t of Econ. Sec., 224 Ariz. 373,
377, ¶ 16 (App. 2010). Abstinence in the period immediately preceding the
termination hearing does not outweigh a significant history of drug abuse
or inability to remain sober during much of the case. See Jennifer S. v. Dep’t
of Child Safety, 240 Ariz. 282, 288, ¶ 25 (App. 2016).
¶14 Mother essentially asks us to reweigh the evidence,
something we will not do. See Alma S. v. Dep’t of Child Safety, 245 Ariz. 146,
151, ¶ 18 (2018). Even accepting Mother’s self-reported weeks of sobriety
preceding the termination hearing, reasonable evidence supports the
superior court’s finding by clear and convincing evidence that Mother’s
substance abuse is chronic and will likely continue for a prolonged
indeterminate period. See Raymond F., 224 Ariz. at 378-79, ¶¶ 24–29
(holding that there was reasonable evidence for the superior court to
conclude the parent’s chronic drug use was likely to continue despite four
months of negative drug tests leading up to the termination hearing).
Mother’s substance abuse dates back many years, and she concedes she has
“a lengthy history of abusing controlled substances, namely
methamphetamines,” punctuated by brief intermittent periods of sobriety.
¶15 In 2015, Mother tested positive for methamphetamine, and
she continued to use that drug during her prior dependency, during her
pregnancy with the child, and throughout 2021, as evidenced by the
positive tests she submitted before she quit testing altogether for the next
year. Mother failed to test for drugs while attending SAGE classes and
tested positive for methamphetamine just after she was discharged from
the SAGE program. Before SAGE, she failed to engage consistently in
treatment by repeatedly checking in and out of treatment facilities. And
after testing positive for drugs at the end of December 2022, Mother failed
to submit to any drug testing in the weeks just before the termination
hearing. Indeed, Mother made no good-faith effort to establish sobriety
through consistent drug testing, despite DCS providing her the opportunity
to engage in such testing and other services designed to help her overcome
her substance abuse and parenting deficits.
¶16 Even considering Mother’s SAGE participation, the record
supports the superior court’s finding that she had not shown consistent
sobriety to the extent necessary to overcome her history of chronic
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IN RE TERM OF PARENTAL RIGHTS AS TO N.M.
Decision of the Court
substance abuse. The superior court did not err in terminating Mother’s
rights to the child based on the statutory ground of chronic substance
abuse.2
II. Best Interests of the Child
¶17 Mother also challenges the superior court’s finding that
termination is in the child’s best interests. Mother contends that her recent
life changes, including remedying her homelessness and finding
employment, defeat the court’s finding. We disagree.
¶18 In determining what is in the child’s best interests “the child’s
interest in obtaining a loving, stable home, or at the very least avoiding a
potentially harmful relationship with a parent, deserves at least as much
weight as that accorded the interest of the unfit parent in maintaining
parental rights.” Kent K., 210 Ariz. at 287, ¶ 37.
¶19 The best-interests determination must include a finding that
the child would benefit from a termination or be harmed by the
continuation of the relationship. Mario G. v. Ariz. Dep’t of Econ. Sec., 227
Ariz. 282, 288, ¶ 26 (App. 2011), abrogated on other grounds by Sandra R. v.
Dep’t of Child Safety, 248 Ariz. 224 (2020). “[C]ourts 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., 245 Ariz. at 148, ¶ 1. Factors favoring severance
include the immediate availability of an adoptive placement and whether
the current placement is meeting the child’s needs. Audra T. v. Ariz. Dep’t
of Econ. Sec., 194 Ariz. 376, 377, ¶ 5 (App. 1998); Bennigno R. v. Ariz. Dep’t of
Econ. Sec., 233 Ariz. 345, 350, ¶ 23 (App. 2013).
¶20 Mother does not challenge the superior court’s findings that
the child is adoptable and that the current placement is meeting the child’s
needs. And though Mother obtained housing in October 2022—after being
homeless throughout the dependency—Father was included on the
apartment’s lease agreement and lived there “[o]n and off,” despite his
continued substance abuse and what Mother described as the parties’
2 Because we find clear and convincing evidence of chronic substance
abuse, we do not address Mother’s arguments related to the out-of-
placement grounds. See Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278,
280, ¶ 3 (App. 2002).
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IN RE TERM OF PARENTAL RIGHTS AS TO N.M.
Decision of the Court
“toxic” relationship.3 Mother also did not provide proof of her claimed
part-time income to show she could independently provide for the child.
Reasonable evidence supports the superior court’s finding that a continued
parent-child relationship would be detrimental to the child because
Mother’s chronic substance use will perpetuate concerns about a relapse,
thereby creating instability and insecurity for the child, despite Mother’s
recent “minimal efforts.”
¶21 The superior court did not err in finding that termination is in
the child’s best interests.
CONCLUSION
¶22 Because reasonable evidence supports the superior court’s
order terminating Mother’s parental rights, we affirm.
AMY M. WOOD • Clerk of the Court
FILED: JT
3 Mother claimed Father was a “trigger” for her substance abuse and
that she was obtaining a protective order against him but provided no
documentation of such an order.
6