Robert C., Kimberly B v. ADES, C.C

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE ROBERT C., KIMBERLY B., ) ) Appellants, ) ) v. ) ) ) ARIZONA DEPARTMENT OF ECONOMIC ) SECURITY, CRAIGORY C., ) ) ) Appellees. ) ) __________________________________) No. 1 CA-JV 11-0173 DIVISION ONE FILED: 03/01/2012 RUTH A. WILLINGHAM, CLERK BY: DLL DEPARTMENT C MEMORANDUM DECISION (Not for Publication 103(G) Ariz. R.P. Juv. Ct.; Rule 28 ARCAP) Appeal from the Superior Court in Yavapai County Cause No. V1300JD820050002 The Honorable Ethan A. Wolfinger, Judge Pro Tem AFFIRMED Law Office of Florence M. Bruemmer, P.C. By Florence M. Bruemmer Tanya R. Imming Attorneys for Appellant Father Anthem Law Office of Patricia O Connor, P.L.L.C. By Patricia O Connor Attorney for Appellant Mother Prescott Thomas C. Horne, Arizona Attorney General By Eric Devany, Assistant Attorney General Attorneys for Appellee Arizona Department of Economic Security Mesa D O W N I E, Judge ¶1 Robert C. ( Father ) and Kimberly B. ( Mother ) separately appeal the juvenile court s order terminating their parental rights. For the following reasons, we affirm. FACTS AND PROCEDURAL HISTORY ¶2 In 2004, the Arizona Department of Economic Security ( ADES ) received a report that Mother was neglecting her three children, including nine-month-old D.U. Mother was offered services, but was noncompliant with drug and alcohol treatment and admitted ongoing substance abuse. D.U. were terminated based on mental Her parental rights to illness and substance abuse. ¶3 C.C., the biological child of Father and Mother, was born in September 2006. petition as to C.C. In May 2007, ADES filed a dependency based on Mother s incarceration and substance abuse and Father s charges of domestic violence and DUI. After services were provided to both dependency petition was dismissed in May 2008. Father was arrested twice on the same day parents, the In April 2009, for incidents of aggravated DUI with C.C. in the car. two separate In February 2010, ADES opened services for Mother. ¶4 In June 2010, Child Protective Services ( CPS ) investigated a report that Mother drove while intoxicated with 2 C.C. in the car and left him in the care of a homeless adult. An ADES caseworker found Mother extremely intoxicated along with two males in the home; C.C. was asleep in his bedroom. Mother admitted needing assistance to stop drinking and admitted for detoxification and residential treatment. was incarcerated at the time. was Father ADES filed a dependency petition, alleging Mother neglected C.C. and was unable to protect him due to substance abuse and prior dependencies, and Father neglected the child due to criminal activity, incarceration, and prior dependency. The juvenile court found C.C. dependent as to both parents and placed him in ADES custody. ¶5 The initial reunification. case Mother plan completed for in C.C. patient was family substance abuse treatment and participated in outpatient treatment; Father was released from prison to participated in visits, parenting and services, a halfway including skills house. drug training. Both parents testing, supervised Mother s visitation progressed to unsupervised and overnight visits, and Father was allowed visits in the community rather than at an ADES office. ¶6 Over time, however, ADES reported many about Mother s and Father s parenting abilities. were argumentative in response to parenting concerns The parents advice. They ignored suggestions to provide C.C. with a healthy diet and gave him candy, ice cream and junk 3 food, despite his extreme tooth Father decay and denied a any history of problems chronic with failure C.C. s teeth, to thrive. despite the child s complaints of pain and a dentist s advice to pull two teeth and cap the others due to cavities. visit, Father left C.C. standing During a supervised alone, shivering at a community pool and asked strangers to watch him while Father swam and played in the water. Father spoke negatively about ADES, C.C. s foster parents, and the case plan in front of C.C. Father told C.C. there were monsters and spiders foster home, which caused C.C. to have nightmares. in his Father told C.C. there was no reason he could not live with Mother, which caused C.C. to be inconsolable when returned to his foster home. C.C. hit himself in the face when angry or frustrated and pulled his hair and eyebrows. C.C. was diagnosed with attention deficit/hyperactivity disorder and oppositional defiant disorder and was prescribed medication. ¶7 In November 2010, Mother relapsed and was found intoxicated before a visit with C.C. A caseworker found Mother at walk home, drunk unknown man. and barely able to unassisted, with an Mother threatened the ADES worker upon learning the worker would report her condition. Mother tested positive for alcohol for three consecutive months, beginning in December 2010. 4 ¶8 In February 2011, the parents participated in joint visitation with C.C., increased aggression. examinations. which caused the child to exhibit The parents submitted to psychological The psychologist reported Father was impulsive, distractible, and easily frustrated and unable to protect his child or independently care [for C.C.] in a minimally adequate fashion. The psychologist found Mother emotionally unstable, impulsive, and depressed and opined she may be unable to place [C.C. s] needs ahead of her own. The psychologist recommended a case plan of severance and adoption. ¶9 In February 2011, Mother was arrested for extreme DUI and fleeing the scene of an accident. Father attended a case planning meeting with an unfocused appearance and slurring words and admitted taking prescription wanted to be mellow for the meeting. drugs because he The Court Appointed Special Advocate ( CASA ) reported that Father would not have been sufficiently able to care for a child at that level of medication. ¶10 In March 2011, ADES changed the case plan to severance and adoption, citing Mother s failure to maintain her sobriety and Father s gross disregard for [C.C. s] health and safety. ADES filed a motion to terminate parental rights because Mother and Father neglected C.C. or failed to protect him from neglect, pursuant to Arizona Revised Statutes 5 ( A.R.S. ) section 8- 533(B)(2); Mother responsibilities was because unable of a to discharge history of chronic parental abuse of dangerous drugs, controlled substances and/or alcohol, pursuant to § 8-533(B)(3); and Mother and Father were unable to discharge parental responsibilities because of mental illness, pursuant to § 8-533(B)(3). ADES further alleged termination was in C.C. s best because interests he was adoptable, provide permanency and stability. and adoption would The parents contested the allegations, and the matter proceeded to trial. ¶11 At the conclusion of trial, the court terminated Mother s rights based on neglect and chronic substance abuse. It terminated illness. interest. Father s rights based on neglect and mental The court further found termination was in C.C. s best Mother and Father timely appealed. We have jurisdiction pursuant to A.R.S. § 8-235. DISCUSSION ¶12 We view the evidence in the light most favorable to affirming the juvenile court s decision. See Michael J. v. Ariz. Dep t of Econ. Sec., 196 Ariz. 246, 250, ¶ 20, 995 P.2d 682, 686 (2000) (citation omitted). We review the court s findings of fact for clear error and will reverse only if there is no reasonable evidence to support its findings. Anonymous v. Anonymous, 25 Ariz. App. 10, 12, 540 P.2d 741, 743 (1975). 6 I. Father s Claims ¶13 Father neglect. We disagree. 1 ¶14 Termination of parental rights is justified when clear and convincing contends evidence neglected a child. Neglect means there was insufficient demonstrates that evidence the parent of has Ariz. Rev. Stat. ( A.R.S. ) § 8-533(B)(2). [t]he inability or unwillingness of a parent . . . to provide [a] child with supervision, food, clothing, shelter causes or medical care if that inability unreasonable risk of harm to welfare. ¶15 unwillingness the child s Father had health or A.R.S. § 8-201(22)(a). The inability or juvenile and/or court found unwillingness to do what is an ongoing necessary to adequately provide for and protect [C.C.] and minimize potential risks, and that his behavior and judgment demonstrated past neglect and posed a substantial risk of future neglect. The record supports these findings. ¶16 Father told C.C. monsters and spiders lived in his foster home, causing the child 1 to have nightmares. Father Father also contends there was insufficient evidence that his mental illness would continue for a prolonged, indeterminate period of time. Because we conclude sufficient evidence supports the termination due to neglect, we decline to address additional bases for severance. See Jesus M. v. Ariz. Dep t of Econ. Sec., 203 Ariz. 278, 280, ¶ 3, 53 P.3d 203, 205 (App. 2002) (court need not address additional grounds for termination if one statutory ground supporting severance exists). 7 maligned CPS and C.C. s foster parents in front of the child. Father vehemently denied C.C. had any medical, dental, or psychological issues, and did not believe C.C. needed medication to control his ADHD. Although Father knew C.C. had extreme dental decay that required teeth to be pulled and capped, he rejected the idea that C.C. should avoid sweets and sticky foods. The evaluating psychologist opined that Father s failure to take medication prescribed for his own ADHD compromise[d] his ability to parent, and that he was unable to meet the needs of any child, especially a child with C.C. s special needs. ¶17 The record further evidences Father s lack of judgment regarding chronic C.C. s history safety. of ADES child demonstrated neglect, Father including substantiated report for neglect of another son. has a a prior Father was charged twice in one day for driving while intoxicated with C.C. in the car. Father violence episode believed C.C. was with was arrested Mother wrongly in in 2007 C.C. s removed a domestic presence. Father from after Mother s care, hesitatingly acknowledged Mother s alcoholism, and described her as a very capable caregiver and parent. Father described C.C. as a healthy baby who gained weight normally, despite his diagnosis as a failure to thrive infant. Father left four- year-old C.C. alone beside a swimming pool. Father attended a case planning meeting while impaired by prescription drugs. 8 The evaluating psychologist opined Father was unable to protect C.C. from the mother or his own poor judgment. The CASA opined that C.C.s best interests appear[ed] secondary to the parents wants. ¶18 The record supports the determination that Father neglected C.C. II. Mother s Claims ¶19 ADES chronic presented substance justified when evidence abuse. clear and that Termination convincing Mother of suffers parental evidence from rights is demonstrates a parent is unable to discharge parental responsibilities because of a history of chronic abuse of alcohol, and there are reasonable grounds to believe the condition will continue for a prolonged, indeterminate period. A.R.S. § 8-533(B)(3). ¶20 During a clinical interview in 2005, Mother admitted drinking 60 beers a day and smoking methamphetamine. Her parental rights to D.U. were terminated in 2005 due, in part, to substance abuse. When C.C. was removed in June 2010, Mother admitted drinking two pints of whiskey per day and reported trying to cut back to drinking only beer, but with severe withdrawal treatment symptoms. program in Mother July completed 2010. In a 28-day November inpatient 2010, Mother relapsed and was found intoxicated and barely able to walk or talk with a strange man in her apartment. 9 The next day, Mother appeared disheveled and reeked of alcohol. AA sponsor told an ADES caseworker meetings or taking her medications. alcohol 2010. for three consecutive Mother was Mother s not attending Mother tested positive for months, beginning in December She was arrested for extreme DUI in February 2011. A psychologist diagnosed her with [a]lcohol [d]ependence. ¶21 The record also demonstrates Mother adequately protect C.C. due to her condition. was unable to Mother admitted ingesting alcohol and methamphetamine while pregnant with C.C., and C.C. has some physical features of fetal alcohol syndrome. There was an earlier dependency action in 2007 because Mother was intoxicated and arrested and there was no caregiver able to take care of C.C. In June 2010, Mother reportedly left C.C. at a park in the care of two homeless men she met the week before and drove while intoxicated with C.C. in the vehicle. was extremely intoxicated in C.C. s presence. Mother C.C. s teeth had extreme decay, yet Mother never took him to a dentist. ¶22 The evaluating psychologist opined Mother s condition would continue for a prolonged, indeterminate period of time and offered a very guarded prognosis for adequate parenting in the foreseeable future. He further recommended Mother demonstrate sobriety for at least 12 months in a normal life outside a therapeutic environment child s care. before being entrusted with a young At the time of the severance hearing, Mother was 10 residing in a treatment facility to address her mental health and substance abuse issues. Although ADES provided substance abuse treatment and counseling, parenting classes, parent aide and other services throughout the three dependency actions, Mother was unable to internalize those teachings and failed to reach parenting goals in her relationship with C.C. III. Child s Best Interests ¶23 In addition to finding at least one statutory basis for termination, the court must also find, by a preponderance of the evidence, that severance is in the child s best interests. A.R.S. § 8-533(B); Kent K. v. Bobby M., 210 Ariz. 279, 288, ¶ 41, 110 P.3d 1013, 1022 (App. 2005). A. ¶24 Father s Claim Father contends ADES failed to demonstrate how continuing the parent-child relationship would be detrimental to C.C. or how C.C. would benefit from its termination. See Maricopa County Juv. Action No. JS-500274, 167 Ariz. 1, 5, 804 P.2d 730, 734 (1990) ( [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. ). ¶25 The The record reflects otherwise. case manager and evaluating psychologist both testified termination was in C.C. s best interests because he needed a safe, stable structured environment that has consistent 11 discipline and is substance free to address his special needs. They also testified environment. risk in Father could not provide such an The case manager opined C.C. s safety would be at Father s care because of Father s overuse medication, recent use of alcohol, and poor judgment. of The psychologist echoed this concern, testifying C.C. was not safe in Father s care and that placing him with both parents together would be the worst case scenario. B. ¶26 Mother s Claim Mother contends termination was not in C.C. s best interests because ADES did not identify a placement for him and because he would not benefit from termination at this time. A court considers factors such as: placement is immediately available, placement is meeting child s child is adoptable. the (1) whether an adoptive (2) needs, whether and (3) the existing whether the See Raymond F. v. Ariz. Dep t of Econ. Sec., 224 Ariz. 373, 379, ¶ 30, 231 P.3d 377, 383 (App. 2010). ADES, though, is not required to identify a specific adoptive home; rather, it must establish that the child is adoptable. Maricopa County Juv. Action No. JS-501904, 180 Ariz. 348, 352, 884 P.2d 234, 238 (App. 1994) (citations omitted). ¶27 ADES presented evidence C.C. is very adoptable, that it made efforts to identify a permanent placement, and that it was awaiting an answer from C.C. s current foster parents about 12 adopting him. ADES adoptive placement anticipated if C.C. no were barriers free for to finding adoption and an the current foster parents declined to adopt him. ¶28 Finally, Mother suggests termination was inappropriate because the case manager testified that possible return of C.C. to Mother could be as soon as March or April of 2012, which was four months from the filing of this appeal. neglects to point out, however, that the case Mother manager also testified it was not in C.C. s best interests to remain in foster care that long and that C.C. s special needs required a structured home that s consistent with discipline, which Mother and Father could not provide. CONCLUSION ¶29 For the foregoing reasons, we affirm the termination of Mother s and Father s parental rights. /s/ MARGARET H. DOWNIE, Judge CONCURRING: /s/ PATRICIA K. NORRIS, Presiding Judge /s/ ANN A. SCOTT TIMMER, Judge 13

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