NOTICE: NOT FOR PUBLICATION.
UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
DESIRAE M., Appellant,
v.
ARIZONA DEPARTMENT OF ECONOMIC SECURITY, L.M., Appellees.
No. 1 CA-JV 13-0190
FILED 03/25/2014
Appeal from the Superior Court in Maricopa County
JD20143
The Honorable Larry Grant, Judge
AFFIRMED
COUNSEL
Denise L. Carroll, Scottsdale
Counsel for Appellant
Arizona Attorney General’s Office, Mesa
By Amanda L. Adams
Counsel for Appellees
DESIRAE M. v. ADES, L.M.
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Patricia A. Orozco delivered the decision of the Court, in
which Judge Lawrence F. Winthrop and Judge Kenton D. Jones joined.
O R O Z C O, Judge:
¶1 Desirae M. (Mother) appeals from the juvenile court’s order
terminating her parental rights to L.M. (Child). Mother argues the
juvenile court erred in finding that reasonable and diligent efforts were
made to reunify Mother and Child. She also argues that severance is not
in Child’s best interests. For the reasons discussed below, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 In March 2011, Child found Mother unconscious. Mother
was hospitalized as a result of an overdose of prescription medication. On
March 28, 2011, Child’s grandmother filed a private dependency petition,
and the Arizona Department of Economic Security (ADES) subsequently
intervened. Child was placed with the Maternal Grandparents
(Grandparents) and has remained in their care. Six months after Child
was removed from Mother’s care, Mother overdosed a second time.
¶3 While in Mother’s care, there was evidence that Mother
neglected Child. For instance, Child missed twenty-seven of forty-eight
days of kindergarten and of the twenty-one days Child did attend school,
she was at least thirty minutes late for class, eleven times. After ADES
placed Child in Grandparents’ care, Child did well.
¶4 At the dependency trial, Mother advised the juvenile court
that she denied the allegations in the petition, but submitted the issue of
dependency to the juvenile court for determination. The juvenile court
found that the petition’s allegations were true and found Child
dependent. The juvenile court approved the family reunification case
plan.
¶5 As part of the case plan, Mother received services offered by
ADES through TASC and TERROS. She was referred for drug screening
at TASC. From May 2011 through September 2011, Mother consistently
tested positive for methadone and occasionally tested positive for opiates
and benzodiazepines. Mother stopped testing in September 2011, the
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Decision of the Court
same month as her second overdose. Mother resumed testing in
November 2011, and tested positive for alcohol on several occasions.
Mother missed her tests at least eight times from January 2012 through
June 2012.
¶6 ADES referred Mother for psychological services. She
completed a full evaluation with a psychologist in August 2011. The
psychologist diagnosed Mother with opioid dependence, a depressive
disorder, an anxiety disorder, and various personality disorders. Mother
also participated in a psychiatric evaluation, wherein the psychiatrist
noted that “prognosis is extremely poor. Her degree of opioid misuse,
level of denial, and lack of insight make it very unlikely that she will be
capable of providing minimally adequate parenting to [Child].” The
psychologist recommended that before Child be returned to Mother,
Mother should complete a drug treatment program, participate in
aftercare, continue with drug screens, and be free of methadone.
¶7 ADES also referred Mother to substance abuse treatment
where her participation was inconsistent until she overdosed a second
time in September 2011. Between November and December 2011, Mother
began new outpatient treatment for drug addiction and completed the
program in March 2012. However, she refused to participate in aftercare.
Mother later declined to reengage in standard outpatient substance abuse
treatment offered by ADES after she tested positive for alcohol.
¶8 Mother was also referred to parent aid services.
Caseworkers noted that Mother was not open to constructive criticism and
was argumentative with the parent aides assigned to supervise visits with
Child. Mother initially refused to participate in one-on-one parenting
skills meetings with parent aides, and her attendance to visitations was
“sporadic.” A caseworker also noted that while Mother had become more
appropriate since being clean, there were concerns that Mother was
having inappropriate conversations with Child that the parent aide may
not have observed or heard. For example, the ADES caseworker testified
that Mother upset Child at a visit when Mother asked Child why Child
was not wearing a friendship bracelet the two had exchanged. After this
interaction, Child experienced severe anxiety on visitation days, which
school counselors could not alleviate. Eventually, Child became hysterical
in anticipation of visits Mother. Finally, Child refused visitations. Mother
continued to attend some of her one-on-one sessions after Child stopped
attending visitations, but this referral ended early.
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Decision of the Court
¶9 Mother presented evidence that she and Child continued to
have a good bond as recent as September 2011. Nonetheless, visits
between Mother and Child stopped in June 2012 because Child refused to
participate in visitation. Mother requested family counseling, which
never occurred because Child’s counselor, who had diagnosed Child as
suffering from post traumatic stress disorder, reported that Child was not
ready to attend family counseling with Mother.
¶10 Mother eventually stopped reaching out to Child. Mother
argued she did not send Christmas or birthday cards or gifts to Child
because she was not permitted to see Child on those days. Mother
testified that she did not send anything to Child for holidays because she
did not trust that Child would actually receive her gifts if she just sent
them through the mail. Moreover, Mother did not send Child letters. In
fact, Mother refused to respond to a letter from Child which explained
that Child wished to continue living with Grandparents. Pursuant to the
reunification plan, Mother could call Child twice per week, but Child
often refused to speak with Mother. At the March 2013 hearing, Mother
testified that it had been six to eight weeks since she had last spoken with
Child on the phone.
¶11 In October 2012, the juvenile court approved the change in
the case plan from reunification to severance and adoption. ADES filed a
motion to terminate the parent-child relationship on November 2, 2012. In
its motion, ADES argued that Child had been in an out-of-home
placement for longer than fifteen months, ADES had made diligent efforts
to provide family reunification services, but Mother was unable to remedy
the circumstances that caused Child to be in an out-of-home placement,
and there was a “substantial likelihood that Mother [would] not be
capable of exercising proper and effective parental care and control in the
near future.” ADES also noted that termination would serve Child’s best
interests because Child was adoptable, which would provide permanency
and stability to Child.
¶12 At the contested severance hearing, Mother testified that she
missed drug tests because of transportation problems, work conflicts, and
other issues, but that she had given up prescription drugs “cold turkey.”
Mother acknowledged that she had limited contact with Child since Child
was removed.
¶13 At the severance hearing, ADES presented evidence that
Mother failed to consistently engage in services during the fifteen months
that Child was in care, Child refused visitation with Mother, and Mother
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Decision of the Court
was unable to parent Child. ADES’s case manager testified that she was
“concerned that [Mother was] not participating in her monthly urinalysis
testing and [was not] demonstrating that she . . . is in fact sober.”
Although Mother had provided ADES with documentation of her
Narcotics Anonymous attendance in October 2012, she had not provided
any more recent documentation. The ADES case manager also testified
that even in light of the fact that Mother had participated in some services,
she had not fully engaged, and did not appear to have taken any value
from the services. The case manager opined that Mother was not
prepared to parent, and Child would be at risk if returned to Mother’s
care because Mother had not addressed all of her mental health issues.
Further, Mother had failed to demonstrate changes in her own behaviors
to help Child move past the traumatic events surrounding Mother’s
addiction, neglect, and overdose. Finally, the case manager testified that it
would be in Child’s best interests to terminate Mother’s parental rights
because termination would provide Child with a stable, permanent home,
free from neglect and drug abuse.
¶14 A licensed psychologist testified at the hearing that he had
evaluated Mother’s psychological condition. From this evaluation, he was
concerned with Mother’s parenting skills but believed Mother was not
honest about her drug use.
¶15 Based on the evidence presented, the juvenile court found
that: (1) Mother overdosed on her prescription medication on March 9,
2011; (2) Mother became unconscious as a result of this overdose; (3) Child
discovered her unconscious Mother; (4) Child came into ADES’s care and
custody as a result of Mother’s drug overdose; (5) ADES has offered
services to Mother to help Mother overcome her addiction and reunite
with Child; (6) Mother willfully refused to engage in services to address
her substance abuse problem; (7) Mother’s chronic substance abuse
prevented her ability to parent Child; (8) Child has been in ADES’s care
and custody for longer than fifteen months; and (9) it would be in Child’s
best interests to terminate Mother’s parental rights. Accordingly, the
juvenile court entered an order terminating Mother’s parental rights.
¶16 Mother timely appealed. We have jurisdiction pursuant to
Article 6, Section 9, of the Arizona Constitution, Arizona Revised Statutes
(A.R.S.) sections 12-120.21.A.1 (2003), and -2101.A.1 (Supp. 2013).
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DESIRAE M. v. ADES, L.M.
Decision of the Court
DISCUSSION
¶17 We review severance orders for abuse of discretion. See, e.g.,
Mary Lou C. v. Ariz. Dep’t of Econ. Sec., 207 Ariz. 43, 47, ¶ 8, 83 P.3d 43, 47
(App. 2004). “Because the trial court is in the best position to weigh the
evidence, judge the credibility of the parties, observe the parties, and
make appropriate factual findings, this court will not reweigh the
evidence, but will look only to determine if there is evidence to sustain the
court’s ruling.” Id. (internal quotation marks and citations omitted). We
view the facts in the light most favorable to sustaining the juvenile court’s
decision. Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 282, ¶ 13, 53
P.3d 203, 207 (App. 2002). We will only disturb the juvenile court’s
decision upon a showing of abuse of discretion or that the juvenile court’s
findings of fact were clear error. Mary Lou C., 207 Ariz. at 47, ¶ 8, 83 P.3d
at 47. Unless no reasonable evidence supports the juvenile court’s
findings of fact, we will accept the juvenile court’s findings of fact as true.
Jesus M., 203 Ariz. at 280, ¶ 4, 53 P.3d at 205.
¶18 In order to terminate Mother’s parental rights, the court
must find ADES has proven: (1) any one of the statutory grounds for
termination by clear and convincing evidence; and (2) termination is in the
best interests of the child by a preponderance of the evidence. See A.R.S.
§§ 8-533.B (Supp. 2013), -863.B (2007); see also Jennifer G. v. Ariz. Dep’t of
Econ. Sec., 211 Ariz. 450, 453, ¶ 12, 123 P.3d 186, 189 (App. 2005).
I. Reasonable Reunification Efforts
¶19 Mother argues that the trial court erred when it held that
ADES had provided Mother with reasonable services and diligent efforts
towards family reunification. Before acting to terminate parental rights
pursuant to A.R.S. § 8-533.B.11, it is well established that ADES “has an
affirmative duty to make all reasonable efforts to preserve the family
relationship.” Christina G. v. Ariz. Dep’t of Econ. Sec., 227 Ariz. 231, 235, ¶
14, 256 P.3d 628, 632 (App. 2011). However, ADES is not required “to
provide every conceivable service or to ensure that a parent participates in
each service it offers.” In re Maricopa Cnty. Juv. Action No. JS-501904, 180
Ariz. 348, 353, 884 P.2d 234, 239 (App. 1994). Rather, ADES must provide
the parent with services as well as “the time and opportunity to
participate in programs designed to help her to become an effective
parent.” Id.
¶20 At the severance hearing, ADES presented evidence of the
long history of extensive services it provided to Mother to improve her
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Decision of the Court
parenting skills and to address her mental health issues and prescription
drug addiction. Although Mother successfully completed the TERROS
program to overcome her prescription drug addiction, she refused
aftercare services and failed to regularly participate in urinalysis testing.
Therefore, after two years in treatment, Mother failed to demonstrate a
substance-free lifestyle, which directly impacts her ability to safely parent
Child. Moreover, the juvenile court found that Mother failed to foster an
ongoing relationship with Child by refusing to provide Child with
birthday or Christmas cards or gifts.
¶21 Accordingly, sufficient evidence supports the juvenile
court’s findings that ADES had provided Mother with reasonable and
diligent services so that she could become an effective parent. Therefore,
we affirm the juvenile court’s findings.
II. Child’s Best Interests
¶22 Mother also argues that the juvenile court erred by finding
that severance was in Child’s best interests. Whether severance is in a
child’s best interests is a factual question for the juvenile court to
determine. See Jesus M., 203 Ariz. at 282, ¶ 13, 53 P.3d at 207. To support a
finding that termination is in a child’s best interests, ADES must prove
that Child will affirmatively benefit from the termination of Mother’s
parental rights. See Mary Lou C., 207 Ariz. at 50, ¶ 19, 83 P.3d at 50. This
means that the juvenile court must make a finding defining how the child
would either (1) benefit from termination or (2) be harmed by a continued
relationship with the parent. Id.
¶23 In this case, the juvenile court found that severance would
provide Child “with stability and permanency as she is in an adoptive
placement.” Evidence of an adoption plan or that the child is “adoptable”
is sufficient to satisfy a finding that the child would benefit from the
termination of parental rights. See Audra T. v. Ariz. Dep’t of Econ. Sec., 194
Ariz. 376, 378, ¶ 7, 982 P.2d 1290, 1292 (App. 1998). At the time of the
termination hearing, Child was thriving in her placement with
Grandparents, and they wanted to adopt her.
¶24 Accordingly, sufficient evidence supports the juvenile
court’s finding that termination of Mother’s parental rights was in the best
interests of Child. We therefore affirm.
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DESIRAE M. v. ADES, L.M.
Decision of the Court
CONCLUSION
¶25 For the reasons discussed above, we affirm the juvenile
court’s order severing Mother’s parental rights.
:gsh
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