Noelle D v. ADES, et al

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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 NOELLE D., Appellant, v. ARIZONA DEPARTMENT OF ECONOMIC SECURITY, RAVEN C., KASHAWN C., JAMORI YEH P., DE ARIANNA C., Appellees. ) ) ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 03/20/2012 RUTH A. WILLINGHAM, CLERK BY: DLL 1 CA-JV 11-0222 DEPARTMENT C MEMORANDUM DECISION (Not for Publication Ariz. R.P. Juv. Ct. 103(G); ARCAP 28) Appeal from the Superior Court in Maricopa County Cause No. JD 19380 The Honorable Joan M. Sinclair, Commissioner AFFIRMED Thomas C. Horne, Arizona Attorney General Phoenix By David M. Osterfeld, Assistant Attorney General Attorneys for Appellee The Stavris Law Firm, PLLC By Alison Stavris Attorneys for Appellant Scottsdale N O R R I S, Judge ¶1 Noelle D. ( Mother ) timely appeals court s order terminating her parental rights. the juvenile Mother disputes the court s findings she was unable to discharge her parental responsibilities because of her history of drug abuse and termination of her parental rights was in the best interests of the children. For the reasons discussed below, we disagree with Mother s arguments and affirm the order of the juvenile court. FACTS AND PROCEDURAL BACKGROUND ¶2 In May of 2010, employees of Child Protective Services ( CPS ) visited Mother s home twice. CPS discovered the electricity was cut off, and the home [was] filled with debris, cockroaches, and opened beer bottles scattered throughout the floor. CPS also found a pipe used for smoking marijuana on the counter which was within reach of the children. On June 30, clinic, 2010, Mother visited an seeking help for depression. sample [and] which tested marijuana, alcohol. Urgent Care At the clinic, Mother gave a urine positive and Psychiatric [Mother] for methamphetamines, said she had been cocaine, drinking On July 14, 2010, CPS removed Mother s four children from her home due to concerns about neglect, the conditions of the home, the health of the children, and . . . [Mother s] substance abuse issues. ¶3 Appellee Arizona Department of Economic Security ( ADES ) filed a dependency petition, and, shortly thereafter, the juvenile court found the children were dependent as to Mother based on substance abuse, mental illness, and neglect. Over the following months, CPS provided Mother with referrals 2 and transportation to drug abuse treatment services psychiatric care in an effort to reunify the family. and A CPS case manager later testified that Mother failed to follow through with most of these referrals and had a [m]inimal level of engagement. Mother also continued to test positive for marijuana and methamphetamine and did not comply with mandatory random drug testing. ¶4 and On April 14, 2011, Mother met with a TERROS clinician discussed treatment. contact the The possibility clinician information facilities and of offered concerning Mother in-patient said to provide [residential she would clinician asked [Mother] if she drug [Mother] drug think [was] going to do concerning her services. the residential with treatment] about what she On April 29, 2011, [had] looked into the [residential drug treatment] facilities she was thinking about. Mother told the TERROS clinician that she [had] given [residential treatment] some thought and decided she would try to keep herself sober and deal with her everyday stressors without using drugs. ¶5 On May 27, 2011, Mother again told the TERROS clinician she was receptive to [residential treatment] . . . because she [was] unable to maintain sobriety for any period of time. The clinician provided Mother with contact information for four different [residential drug treatment] programs, and 3 asked Mother to follow through with contacting the programs, and Mother agreed to do so and report back to the clinician by May 31. When Mother failed to report back, the clinician called her and asked if she had checked the programs for which [the clinician had] provided her information. Mother told the clinician she had called, but none of the programs would give her any information without a direct referral from [TERROS]. The clinician responded that this did not sound correct . . . [because] most facilities are more than happy to provide basic information about their programs and about a wait time, but agreed to call one of the programs the next day to enquire about their wait times and provide a referral if necessary. The clinician then spoke with a residential drug treatment program representative who told the clinician Mother would be accepted as a self-referral and agreed to call Mother and provide information about [the program] and recommend she call [the program] to self-refer to their services. ¶6 On June 1, 2011, ADES filed a motion to terminate Mother s parental rights, noting Mother s children had been in the State s custody for nine months or longer and Mother had not remedied, among other things, her chronic drug abuse. Mother began the intake process for a residential drug treatment center later that month and, on July 29, residential drug treatment program. 4 2011, finally entered a ¶7 The juvenile court held a contested severance hearing on October 3, 2011. At the hearing, Mother testified she had been in the residential drug treatment program and sober for 63 days, and was planning to stay in the program for six months. After the hearing, the juvenile court found that, pursuant to Arizona Revised Statutes ( A.R.S. ) section 8-533(B)(3) (2008), Mother, due to her chronic history of substance abuse, was unable to discharge her parental responsibilities at beginning of [the] case and remain[ed] unable to do so. the The juvenile court recognized Mother had been sober for 63 days, but emphasized cannot two wipe months away of years of sobriety in substance a residential abuse, and setting noted history suggested she was highly susceptible to relapse. her The court thus found that ADES had met its burden of proof on the ground of chronic substance abuse. 1 The juvenile court further found in that termination would be the children s best interests, especially because they were healthy and happy and willing to be adopted. an order terminating Accordingly, the juvenile court entered Mother s parental rights to her four children. 1 The juvenile court also found there was clear and convincing evidence justifying termination of Mother s parental rights on other grounds listed in A.R.S. § 8-533(B), but we need not address all possible grounds for termination so long as one of the grounds provides sufficient evidence to support severance. Jesus M. v. Ariz. Dep t of Econ. Sec., 203 Ariz. 278, 280, ¶ 3, 53 P.3d 203, 205 (App. 2002) (citation omitted). 5 DISCUSSION ¶8 On appeal, Mother argues that because ADES failed to offer Mother the most critical service, inpatient treatment at an earlier date, it breached its affirmative duty to make all reasonable efforts to preserve the family relationship. See Mary Ellen C. v. Ariz. Dep t of Econ. Sec., 193 Ariz. 185, 186, ¶ 1, 971 P.2d 1046, 1047 (App. 1999). Specifically, Mother asserts that if she had been offered this service [earlier], she could have maintained her sobriety and continued to participate in all of the other services that CPS was requiring Mother to participate in for family reunification. Mother thus argues ADES failed to prove by clear and convincing evidence she was unable to discharge her parental responsibilities because of her history of chronic drug abuse. the juvenile court s conclusion children s best interests. ¶9 Mother further challenges that severance was in the We disagree with both arguments. We review the juvenile court s severance order in the light most favorable to sustaining it. See Maricopa Cnty. Juv. Action No. JS-8490, 179 Ariz. 102, 106, 876 P.2d 1137, 1141 (1994). To terminate a parent-child relationship, the juvenile court must find clear and convincing evidence supports one of the statutory grounds for termination. Jesus M., 203 Ariz. at 280, ¶ 4, 53 P.3d at 205 (citing A.R.S. § 8-537(B) (2007)). We will affirm the juvenile court s finding unless we must say as 6 a matter of law that no one could reasonably find the evidence [supporting statutory grounds for termination] to be clear and convincing. 92, 95, ¶ Denise R. v. Ariz. Dep t of Econ. Sec., 221 Ariz. 10, omitted). In 210 P.3d 1263, addition, the 1266 (App. juvenile court 2009) must (quotation find by a preponderance of the evidence that termination is in the best interests of the child. Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 22, 110 P.3d 1013, 1018 (2005). I. Inpatient Drug Abuse Treatment ¶10 As Mother emphasizes, A.R.S. § 8-830(A) (2003) required ADES to contract with a provider to . . . provide the necessary services, services, to including protect the residential child referral from the department. through TERROS, made and support drug the treatment family on The record is clear that ADES, diligent efforts to provide residential drug treatment services for Mother once it became clear such treatment was warranted. See supra ¶¶ 4-6. The record also reflects that any delay in Mother receiving effective treatment for her drug abuse was due to Mother s lack of engagement. Mother s failure or refusal to participate in the programs and services DES offered or recommended does not foreclose termination of her parental rights. Maricopa Cnty. Juv. Action No. 884 JS-501904, 1994). 180 Ariz. 348, 353, P.2d 234, 239 (App. We therefore reject Mother s argument that ADES failed 7 to provide her with appropriate reunification services, and affirm the juvenile court s finding that clear and convincing evidence established Mother is unable to discharge her parental responsibilities due to her history of chronic drug abuse. II. Best Interests of the Children ¶11 Termination is in a child s best interests when the child will benefit from termination of the relationship or . . . would be harmed by continuation of the relationship. James S. v. Ariz. Dep t of Econ. Sec., 193 Ariz. 351, 356, ¶ 18, 972 P.2d 684, 689 (App. 1998) (citation omitted). During the severance hearing, a CPS case manager testified all four children were together and had been placed in a home that was willing to adopt them all, and were extremely happy to be together . . . [and] will be living in an environment that s safe and stable and free of substance abuse . . . and neglect. The case manager also testified the two oldest children, who were above the age of 12, had voluntarily consented to adoption. The juvenile court found the children were healthy and happy in their current placement and noted [i]f Mother s rights are not terminated, the children will remain in foster care longer waiting for Mother to resolve her issues. On the record before us, the preponderance of the evidence supports the juvenile court s finding termination was in the best interests of the children. 8 CONCLUSION ¶12 For the foregoing reasons, we affirm the juvenile court s order terminating Mother s parental rights. ___/s/______________________________ PATRICIA K. NORRIS, Presiding Judge CONCURRING: ___/s/______________________________ MARGARET H. DOWNIE, Judge ___/s/______________________________ MAURICE PORTLEY, Judge 9

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