SUZANN T v. ADES

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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 SUZANN T., ) ) Appellant, ) ) v. ) ) ARIZONA DEPARTMENT OF ECONOMIC ) SECURITY, C.D., ) ) Appellees. ) ) __________________________________) 1 CA-JV 13-0074 DIVISION ONE FILED: 10/1/2013 RUTH A. WILLINGHAM, CLERK BY: mjt DEPARTMENT E MEMORANDUM DECISION (Not for PublicationAriz. R.P. Juv. Ct. 88(G); ARCAP 28) Appeal from the Superior Court of Maricopa County Cause No. JD 20985 The Honorable Joan Sinclair, Judge AFFIRMED Denise L. Carroll Attorney for Appellant Scottsdale Thomas C. Horne, Attorney General Phoenix By Michael F. Valenzuela, Assistant Attorney General Attorneys for Appellee Arizona Department of Economic Security Allison Stavris, Guardian Ad Litem for C.D. T H O M P S O N, Judge Scottsdale ¶1 Suzann T. (Suzann) appeals from the juvenile court s order severing her parental rights to her child, C.D.1 For the following reasons, we affirm. FACTUAL AND PROCEDURAL HISTORY ¶2 Suzann discovered that she was pregnant with C.D. on February 16, 2011, when she was in jail on a charge that was later dismissed. last used She told a doctor in the jail that she had methamphetamine on December concerned about the baby s health. 31, 2010 and she was Suzann was arrested again in April 2011 while pregnant, after she broke into a trailer in the backyard of a residence looking for food and items to sell. She spent approximately two weeks in jail, and was charged with one count of third degree burglary, a class 4 felony. ¶3 In September 2011, Suzann was arrested on drug charges filed in 2011 alleging that she possessed and sold methamphetamine and possessed drug paraphernalia in 2009. She was released on October 8, 2011, and C.D. was born the next day. At the time biological of C.D. s father, Lee.2 birth, Lee Suzann also was had living a with history of C.D. s using methamphetamine. 1 The caption has been amended to safeguard the identity of the juvenile pursuant to Administrative Order 2013-0001. 2 The juvenile court also severed Lee s parental rights. not a party to this appeal. 2 He is ¶4 Child Protective Services (CPS) received a referral concerning C.D. the day after his birth. drug-exposed, but C.D. was not born Suzann admitted having used methamphetamine when she was three to four weeks pregnant, prior to knowing she was pregnant.3 CPS recommended in-home placement for C.D., conditioned upon the presence of one of two persons designated a safety monitor in the home at all times. Police did a welfare check on October 27, 2011 and a safety monitor was not present in the home. C.D. was removed from Suzann s custody and placed in a foster home by the end of October 2011. CPS filed a dependency petition and, shortly thereafter, the juvenile court found that C.D. was a dependent child as to Suzann. ¶5 C.D.: The juvenile court ordered concurrent case plans for family reunification and severance and adoption. The court further ordered CPS to provide the following services to Suzann: 3 1) random urinalysis testing, 2) substance abuse Suzann admitted to having used methamphetamine since 2008 but maintained that she stopped using methamphetamine on December 31, 2010. She admitted to a much longer history of marijuana use, beginning at the age of fourteen or fifteen. Suzann s drug use has caused her legal problems for more than half her life. Besides the conviction she was serving time for at the time of the severance trial, at age eighteen Suzann was arrested for possession of marijuana, at age twenty she was arrested for growing marijuana, at age thirty-nine she was charged with two counts of possession of marijuana, and in 2010 she was arrested for driving under the influence of methamphetamine and lost her driver s license. 3 assessment and treatment through services, 4) a psychological services following the TERROS, 3) consultation psychological parent and aide recommended consultation, 5) transportation, and 6) visitation. ¶6 Suzann missed her first urinalysis test on October 13, 2011 but testified that she had still been in the hospital after giving birth. She missed three more urinalysis tests on October 18, 24, and 27 of 2011. requested urinalysis Thereafter, she did not miss any more tests, and all of the tests came back negative, except that tests on November 2, 2011 and November 23, 2011 showed up as tested negative negative but for drugs and diluted. alcohol Altogether, Suzann without dilution on thirty-five occasions from October 19, 2011 to June 26, 2012, about an eight month period. ¶7 for By the end of October 2011, CPS had made the referral parent aide completed an substance abuse assigned Suzann services assessment with education a and set TERROS program recovery by coach, up visitation. and completed December but Suzann she TERROS s 2011. met TERROS with that individual just one time and rejected further assistance of a recovery coach, claiming that she had had very little drug use. Suzann had a psychological consultation with Dr. Bluth in December 2011, and then a psychological 4 evaluation with Dr. Bluth in February 2012. At that time, Dr. Bluth recommended individual counseling for Suzann, and CPS put in a referral for counseling. ¶8 In her March 9, 2012 and May 21, 2012 reports to the juvenile court, Suzann s case manager noted that Suzann had been compliant with services, and that she had been regular in her attendance of visits with C.D. However, the case manager also wrote that Suzann still needed to demonstrate that she could provide a safe, stable, substance-free home for C.D., demonstrate an appropriate understanding of parenting skills, demonstrate that she had a stable income4, and acknowledge the impact of her past history of substance abuse and address her mental health needs. CPS was also concerned that Suzann was continuing to live with Lee, who was not compliant with his case plan 4 and had refused to participate in substance abuse For the past eighteen to twenty years, Suzann s only employment had been itinerant work in the carnival industry. 5 treatment.5 that she In her July 2012 report, Suzann s parent aide noted did not have a steady job or independent housing. Although Suzann reported that she had separated from Lee, the parent aide believed that she was still associated with him and was concerned that she allowed Lee to manipulate her. ¶9 On June 27, 2012, Suzann signed two plea agreements to resolve her pending criminal charges. She resolved the 2009 drug charges by pleading guilty to one count of solicitation to commit possession of dangerous drugs for sale, a class 4 felony. Suzann admitted that this shipping methamphetamine state. She also pled to conviction fellow guilty to was the carnival one attempted burglary, a class 5 felony. count result of out workers of third her of degree She was incarcerated on July 9, 2012, and on August 8, 2012 Suzann was sentenced to a term of 1.5 years in prison, with credit for 48 days of presentence incarceration on the drug conviction, to be served concurrently with a one-year sentence on the attempted burglary 5 In March 2012, Lee was charged with possession of methamphetamine and possession of drug paraphernalia after a bus station security guard found methamphetamine and a glass pipe in Lee s luggage on March 5, 2012. He was arrested on April 7, 2012, at Suzann s residence, which was also his known residence. Police found methamphetamine in Lee s pocket at the time of his arrest and prescription pills, glass pipes, and a scale inside the house. Lee was incarcerated on April 7, 2012 and remained so at the time of Suzann s severance trial. The CPS case manager testified that CPS believed the reason that Suzann was no longer with Lee was due to his incarceration rather than by choice. 6 conviction. In September 2012, ADES filed a motion to terminate Suzann s parental rights. At the time of the severance trial, Suzann s scheduled early release date from prison was July 18, 2013, when she would be eligible for community supervision after serving eighty-five percent of her sentence. Her maximum end release date was December 20, 2013. ¶10 Prior to going to prison, Suzann was unable participate in counseling as recommended by Dr. Bluth. to She testified that by the time the referral for counseling had been made she knew she was going to prison and the counselor was therefore unwilling to take her as a patient. ¶11 Towards the beginning of her imprisonment, Suzann signed up for a weekly treatment group entitled Confronting Addictive Behaviors. Later, in December 2012, Suzann was accepted into a six-month long substance abuse group treatment program in the prison, Women in Recovery, and at the time of trial had completed about two months of the program. ¶12 In January 2013, Suzann hired psychologist Dr. Julio Ramirez to complete a second psychological evaluation.6 Suzann told Dr. Ramirez that she had broken up with Lee in January 2012 and claimed to have had no contact with him since March 2012 (even though he had been arrested with methamphetamine at her 6 Dr. Ramirez testified at the severance trial but Dr. Bluth did not. 7 residence in April 2012). Based on Suzann s representations, Dr. Ramirez concluded that the risk posed to C.D. by Suzann continuing a relationship with Lee was minimal. Dr. Ramirez recommended that Suzann participate in substance abuse treatment and individual counseling and that she receive parenting support and vocational training after being released from prison. ¶13 The juvenile court held a two-day severance trial in February 2013. The juvenile court terminated Suzann s parental rights pursuant to Arizona Revised Statutes (A.R.S.) section 8533(B)(3) (2007) (parent s history of chronic abuse of dangerous drugs), and A.R.S. § (B)(8)(c) (Supp. 2012) (fifteen months time in care). The court also found that severance was in C.D. s best interests. The court declined to sever Suzann s parental rights on the basis of nine months time in care pursuant to A.R.S. § 8-533(B)(8)(a) (child in an out-of-home placement for nine months or longer and parent substantially neglected or willfully refused to remedy circumstances causing child to be in out-of-home placement). Suzann timely appealed. This court has jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and A.R.S. § 8-235 (2013).7 7 Absent material revisions after the relevant dates, statutes cited refer to the current version unless otherwise indicated. 8 DISCUSSION ¶14 On abused appeal, its pursuant Suzann discretion to A.R.S. § by argues that terminating 8-533(B)(3) the juvenile her and parental (B)(8)(c), severance was not in C.D. s best interests. and court rights that She does not argue that ADES failed to provide her with appropriate reunification services. ¶15 We will not disturb the juvenile court s order severing parental rights unless its factual findings are clearly erroneous, that is, unless there is no reasonable evidence to support them. 376, 377, ¶ omitted). Audra T. v. Ariz. Dep t of Econ. Sec., 194 Ariz. 2, 982 P.2d 1290, 1291 (App. 1998) (citations We view the facts in the light most favorable to sustaining the juvenile court s ruling. Lashonda M. v. Ariz. Dep t of Econ. Sec., 210 Ariz. 77, 82, ¶ 13, 107 P.3d 923, 928 (App. 2005). juvenile We do not reweigh the evidence, because [t]he court, proceeding, is as in the the trier best of position fact in to weigh a termination the evidence, observe the parties, judge the credibility of witnesses, and make appropriate findings. Jesus M. v. Ariz. Dep t of Econ. Sec., 203 Ariz. 278, 280, ¶ 4, 53 P.3d 203, 205 (App. 2002) (citation omitted). child relationship The juvenile court may terminate a parentif ADES proves 9 by clear and convincing evidence at least one of the statutory grounds set forth in A.R.S. § 8-533(B). Michael J. v. Ariz. Dep t of Econ. Sec., 196 Ariz. 246, 249, ¶ 12, 995 P.2d 682, 685 (2000). The court must also find by a preponderance of the evidence that severance is in the child s best interests. Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 22, 110 P.3d 1013, 1018 (2005). Fifteen Months Time in Care ¶16 Suzann argues that ADES failed to produce clear and convincing evidence that she had failed to remedy the circumstances that caused C.D. to be in an out-of-home placement pursuant to court order for at least fifteen months and that there was a substantial likelihood that she would not be capable of exercising proper and effective parental care and control in the near future, as required by A.R.S. § 8-533(B)(8)(c). statute provides, in relevant part: B. Evidence sufficient to justify the termination of the parent-child relationship shall include any one of the following, and in considering any of the following grounds, the court shall also consider the best interests of the child: . . . 8. That the child is being cared for in an out-of-home placement under the supervision of the juvenile court, the division or a licensed child welfare agency, that the agency responsible for the care of the child has made a diligent effort to provide 10 The appropriate reunification services and that one of the following circumstances exists: . . . (c) The child has been in an out-of-home placement for a cumulative total period of fifteen months or longer pursuant to court order . . ., the parent has been unable to remedy the circumstances that cause the child to be in an out-of-home placement and there is a substantial likelihood that the parent will not be capable of exercising proper and effective parental care and control in the near future. A.R.S. § 8-533(B)(8)(c). We construe the circumstances in A.R.S. § 8-533(B)(8)(c) to mean the circumstances that exist at the time of the severance that prevent a appropriately providing for his or her child. parent from Marina P. v. Ariz. Dep t of Econ. Sec., 214 Ariz. 326, 330, 152 P.3d 1209, 1213 (App. 2007) (citations omitted). ¶17 Reasonable evidence supported the juvenile court s finding that ADES had proven the fifteen months time in care ground. By the time of the severance trial in February 2013, C.D. had been in an out-of-home placement for more than fifteen months, nearly all of C.D. s life. And, by the time of trial, Suzann had failed to obtain stable housing suitable for a small child or stable employment. from obtaining aide services, individual and from Her incarceration prevented her counseling, from demonstrating 11 completing one year of parent clean urinalysis tests. Suzann s CPS case manager testified that those were all services that she would need to complete after her release from prison before C.D. could be returned to Suzann. Additionally, CPS s concerns about Suzann s dependence on Lee were supported by the record. court properly could On this record, the juvenile conclude that ADES met its burden for severance on the fifteen months time in care ground. ¶18 Because we affirm the court s order granting severance on the basis of fifteen months in an out-of-home placement, we need not address 533(B)(3). Suzann s argument concerning A.R.S. § 8- See Jesus M., 203 Ariz. at 280, ¶ 3, 53 P.3d at 205. Best Interests ¶19 Suzann further argues that the trial court erred in finding that severance was in C.D. s best interests. To establish that severance is in a child s best interests, the court must find either that the child will benefit from the severance or that the child would be harmed by the 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). Evidence of an adoptive plan is evidence of a benefit to the child. Id. Here, the evidence was that C.D. was adoptable and that CPS had a current case plan of adoption for C.D. C.D. s foster placement, who had parented him since his birth, was willing to 12 adopt him and provide him with a stable, permanent home. Accordingly, we find no error in the juvenile court s finding that severance was in C.D. s best interests. ¶20 For the foregoing reasons, the juvenile court s severance order is affirmed. /s/ _________________________________ JON W. THOMPSON, Judge CONCURRING: /s/ SAMUEL A. THUMMA, Presiding Judge /s/ ____________________________________ KENT E. CATTANI, Judge 13 14

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