Heather D. v. Dcs

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

HEATHER D., Appellant,

v.

DEPARTMENT OF CHILD SAFETY, F.L., G.L., Appellees.

No. 1 CA-JV 14-0306
FILED 5-21-2015

Appeal from the Superior Court in Mohave County
No. S8015JD201100044
The Honorable Richard Weis, Judge

AFFIRMED

COUNSEL

Law Offices of Heather C. Wellborn, P.C., Lake Havasu City
By Heather C. Wellborn
Counsel for Appellant

Arizona Attorney General’s Office, Mesa
By Amanda Adams
Counsel for Appellee Department of Child Safety
 HEATHER D. v. DCS, et al.
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Lawrence F. Winthrop delivered the decision of the Court,
in which Judge Samuel A. Thumma and Judge Donn Kessler joined.

W I N T H R O P, Presiding Judge:

¶1 Heather D. (“Mother”) appeals the juvenile court’s order
severing her parental rights to F.L. and G.L. (collectively, “the children”) on
the grounds of chronic substance abuse and prior removal.1 See Ariz. Rev.
Stat. (“A.R.S.”) § 8-533(B)(3), (11) (West 2015).2 For the following reasons,
we affirm.

FACTS AND PROCEDURAL HISTORY3

¶2 Mother is the biological mother of F.L. and G.L., who were
born in October 2008 and September 2010, respectively. Mother has a long
history of drug abuse, and was convicted of misconduct involving weapons
in 2007. In 2010, she pled guilty to possession of drug (methamphetamine)
paraphernalia, and was sentenced to 1.25 years’ imprisonment in the
Arizona Department of Corrections (“ADOC”). After Mother’s release
from ADOC in September 2011, Mother and Father lived in a home with
F.L., G.L., and Mother’s children from previous relationships, E.L. and N.L.4

1 The juvenile court also terminated the parental rights of the
children’s biological father (“Father”). Father is not a party to this appeal.

2 We cite the current version of all statutes unless changes material to
our decision have occurred since the severance.

3 We view the facts in the light most favorable to upholding the
juvenile court’s order. Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246,
250, ¶ 20, 995 P.2d 682, 686 (2000) (citation omitted).

4 Only F.L. and G.L. are subject to the juvenile court’s severance order
and this appeal.

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 HEATHER D. v. DCS, et al.
Decision of the Court

¶3 On November 24, 2011, the Department of Child Safety
(“DCS”)5 received a report that Mother and Father were in police custody
pending an investigation of a homicide that may have occurred at their
home. Father had allegedly murdered a man staying with the family, the
children were allegedly in the home when the crime occurred, and Mother,
who was on parole, was suspected of helping Father commit the murder
and/or dismember and dispose of the victim’s body. DCS took temporary
custody of all four children, placed them in foster care, and petitioned the
juvenile court to declare each of the children dependent as to both of their
parents. DCS alleged Mother was unable to parent the children due in part
to substance abuse, domestic violence, neglect, and a history of criminal
activities and incarceration.

¶4 Although she had been arrested, Mother was released and not
charged with a crime relating to the death of the man in the family’s home.6
Mother was then incarcerated for violating her parole, and released again
in February 2012.

¶5 In March 2012, the juvenile court adjudicated all four children
dependent and ordered a case plan of family reunification. In support of
the case plan, DCS offered Mother numerous services, including substance
abuse treatment, random drug testing, mental health services,
psychological evaluations, individual and family counseling, life skills
training, parenting classes, parent aide services, supervised visitation,
family reunification teams, housing assistance, and transportation.

¶6 During the dependency, Mother was diagnosed with
polysubstance dependence, and she tested positive for THC (a marijuana
metabolite) in March and April 2012. By November 2012, however, she had

5 At the outset of these proceedings, the children were taken into care
by Child Protective Services (“CPS”), formerly a division of the Arizona
Department of Economic Security (“ADES”), and ADES filed both
dependency petitions in this case. In May 2014, CPS was removed as an
entity within ADES and replaced by DCS, an entity outside of ADES. See
2014 Ariz. Sess. Laws, ch. 1, §§ 6, 20, 54 (2d Spec. Sess.). Accordingly, DCS
has been substituted for ADES in this matter. See ARCAP 27. References
to DCS encompass both ADES and the former CPS.

6 Father was charged with first-degree murder, and Mother was called
as a witness at Father’s trial. Father was found guilty and sentenced to
natural life plus additional years’ imprisonment in ADOC, and he has filed
an appeal in this court.

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 HEATHER D. v. DCS, et al.
Decision of the Court

completed a substance abuse treatment program, maintained her sobriety,
and enrolled in an aftercare program. Mother also obtained employment
and housing, and by February 2013, DCS had returned the children to her
physical custody with continued monitoring under an in-home
dependency.

¶7 In April 2013, DCS moved to dismiss the dependency
petition. In an order filed April 24, 2013, the juvenile court dismissed the
dependency and relieved DCS of further responsibility for the children
after finding they were no longer dependent as to Mother.

¶8 Five months later, however, DCS received a report that
Mother had been arrested and charged with possession of marijuana and
drug paraphernalia in June 2013. DCS also learned Mother had been
leaving E.L., F.L., and G.L. with relatives for extended periods of time with
little to no contact with them,7 and she was allowing as many as fourteen
people to reside in her home. A DCS caseworker contacted Mother, who
was facing jail time for the June 2013 drug charges and admitted she was
actively using methamphetamine. Mother submitted to drug testing, which
indicated positive for amphetamine, methamphetamine, and marijuana.
Consequently, DCS took temporary custody of E.L., F.L., and G.L., and
placed them in foster care.

¶9 On September 25, 2013, DCS filed another dependency
petition, alleging E.L., F.L., and G.L. were dependent as to their biological
parents. As to Mother, DCS alleged she was unable to parent the children
due in part to neglect, substance abuse, and her pending incarceration.

¶10 On October 1, 2013, Mother agreed to participate in another
substance abuse assessment and follow any recommendations. She also
agreed to participate in drug testing, a psychological evaluation,
counseling, parenting classes, parent aide services, and supervised
visitation. On October 30, 2013, the juvenile court adjudicated the children
dependent, approved a case plan of family reunification, and approved the
services offered by DCS in furtherance of the plan.

¶11 Over approximately the next six months, Mother refused to
participate in any offered services, with the exception of supervised visits
with the children. Mother also continued to abuse methamphetamine and
marijuana, was unemployed, and lacked stable housing. Despite DCS’s

7 N.L.’s biological father had come to Arizona and taken N.L. to live
with him.

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 HEATHER D. v. DCS, et al.
Decision of the Court

efforts to engage her in services, Mother insisted she did not need them
because she had completed them before and was “tired of jumping through
hoops.” She further claimed her drug use did not impact her ability to
parent the children and, therefore, she did not need to stop using drugs.

¶12 Mother also failed to stay out of jail. In December 2013,
Mother was arrested and incarcerated for driving on a suspended license
and providing false information to a police officer. In May 2014, Mother
was arrested and charged with possession of dangerous drugs
(methamphetamine) and drug paraphernalia. At that time, there was a
warrant for her arrest for failing to appear for a court hearing regarding the
2013 drug charges. Later that month, Mother pled guilty to possession of
drug paraphernalia, was placed on probation for two years, and as a
condition of probation, was ordered to serve up to thirty days in jail.

¶13 Although Mother participated in supervised visits with the
children when she was not incarcerated, her visits with E.L. were
suspended by DCS in December 2013 due to the child’s adverse emotional
reactions following the visits. During a February 15, 2014 visit with F.L.
and G.L., Mother told the parent aide she wanted to “knock” the parent
aide “over the head” so she could take the children out of the state. When
the parent aide advised Mother that would not be wise, Mother agreed, but
soon after became agitated and frustrated with the children, and starting
cursing. Mother later explained “outside influences” were affecting her,
and F.L. had told her “if you don’t hurry and take us, they will eat us.”
Soon thereafter, DCS learned (1) Mother had previously asked F.L. where
she was living and going to school, (2) Mother had informed the paternal
grandmother that she planned to kidnap the children and take them to Las
Vegas, and (3) a strange man had recently showed up at E.L.’s foster home
late at night claiming to be a neighbor. Due to ongoing concerns that
Mother posed a risk to the children’s safety, DCS moved for an order
suspending her visits with E.L., F.L., and G.L. In March 2014, the juvenile
court suspended Mother’s visits with all of the children.

¶14 On April 9, 2014, the juvenile court held a permanency
planning hearing. Case manager Mandy Chamberlain reported Mother
refused to participate in treatment services and admitted using
methamphetamine on a regular basis. Ms. Chamberlain opined that
Mother’s substance abuse “continues to prevent . . . her from providing
supervision, safety, and stability” for the children, and the children would
be at risk of “ongoing abuse, neglect, injury, ailment, and possible death”
in her care. At the hearing, DCS informed the court it planned to reunify
E.L. with his biological father, and requested the court approve a case plan

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 HEATHER D. v. DCS, et al.
Decision of the Court

of severance and adoption for F.L. and G.L. The court changed the case
plan to severance and adoption for F.L. and G.L.8

¶15 On May 6, 2014, DCS filed a motion to terminate Mother’s and
Father’s parental rights to F.L. and G.L. With regard to Mother, the motion
as amended alleged (1) she was unable to discharge her parental
responsibilities due to a history of chronic substance abuse under A.R.S.
§ 8-533(B)(3); (2) she had substantially neglected or wilfully refused and
was unable to remedy the circumstances that caused F.L. and G.L. to remain
in out-of-home placement for nine and fifteen months or longer under
A.R.S. § 8-533(B)(8)(a) and (c), respectively; and (3) the children had been
removed and then returned to her legal custody and subsequently removed
again within eighteen months, and she was currently unable to discharge
her parental responsibilities under A.R.S. § 8-533(B)(11). The motion
further alleged that termination was in the children’s best interest. Mother
denied the allegations in the motion, and the juvenile court set the matter
for a contested severance hearing on September 8, 2014.9

¶16 At trial, Mother testified she struggled to maintain her
sobriety after the children were returned to her care in early 2013, and she
“ended up relapsing.” Mother testified she did not participate in the
treatment services subsequently offered, however, because they were “not
for [her].” Mother also claimed she had been sober for forty-five days, but
could not provide independent verification because she admittedly was not
participating in drug testing.

¶17 At the conclusion of the trial, the juvenile court found DCS
had proven by clear and convincing evidence that termination of Mother’s
parental rights was justified on the grounds of chronic substance abuse
under A.R.S. § 8-533(B)(3), nine months’ out-of-home placement under
A.R.S. § 8-533(B)(8)(a), and prior removal under A.R.S. § 8-533(B)(11). The
court further found termination was in the children’s best interest. The
court then granted DCS’s motion “in its entirety, excluding the [fifteen

8 Shortly thereafter, on April 17, 2014, Mother tested positive for
amphetamine, methamphetamine, and marijuana.

9 Meanwhile, in July 2014, Mother moved to Colorado to stay with her
father. At the severance trial, Mother explained she left Arizona because
“either I was going to end up dead or who knows.”

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 HEATHER D. v. DCS, et al.
Decision of the Court

months’ time-in-care] ground.” The court’s signed order terminating
Mother’s parental rights to F.L. and G.L. was filed October 17, 2014.10

¶18 Mother timely appealed from that order. We have
jurisdiction pursuant to A.R.S. §§ 8-235(A), 12-120.21(A)(1), and 12-
2101(A)(1).

ANALYSIS

I. Termination Pursuant to A.R.S. § 8-533(B)(3) and (11)

¶19 Mother argues the juvenile court erred in finding clear and
convincing evidence existed to support termination of her parental rights
pursuant to A.R.S. § 8-533(B)(3). She maintains DCS failed to establish that
she is unable to discharge her parental responsibilities due to a history of
chronic abuse of dangerous drugs, controlled substances, and/or alcohol,
and this condition will continue for a prolonged period of time.

¶20 “We will not disturb the juvenile court’s disposition absent an
abuse of discretion or unless the court’s findings of fact were clearly
erroneous, i.e., there is no reasonable evidence to support them.” Maricopa
Cnty. Juv. Action No. JV–132905, 186 Ariz. 607, 609, 925 P.2d 748, 750 (App.
1996) (citations omitted); accord Minh T. v. Ariz. Dep’t of Econ. Sec., 202 Ariz.
76, 78–79, ¶ 9, 41 P.3d 614, 616–17 (App. 2001). Because “the juvenile court
[i]s in the best position to weigh the evidence, judge the credibility of the
parties, observe the parties, and make appropriate factual findings,” Pima
Cnty. Dependency Action No. 93511, 154 Ariz. 543, 546, 744 P.2d 455, 458
(App. 1987), we will not reweigh the evidence but will look only to
determine if there is evidence to sustain the court’s ruling. JV–132905, 186
Ariz. at 609, 925 P.2d at 750.

10 The transcript of the severance hearing and the juvenile court’s
minute entry order indicate the court intended to terminate Mother’s
parental rights to the children on all three of the grounds it found, including
the ground of nine months’ out-of-home placement under A.R.S. § 8-
533(B)(8)(a). However, DCS’s proposed Findings of Fact, Conclusions of
Law, and Order - which the juvenile court signed as its final order - omitted
the out-of-home placement ground. Although the State notes Mother does
not raise this issue on appeal, the State has not cross-appealed from the
court’s October 17, 2014 severance order. Consequently, we do not (and in
this case, need not) consider the nine months’ out-of-home placement
ground under A.R.S. § 8-533(B)(8)(a).

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 HEATHER D. v. DCS, et al.
Decision of the Court

¶21 Although the right to custody of one’s children is
fundamental, it is not absolute. See Michael J., 196 Ariz. at 248, ¶¶ 11–12,
995 P.2d at 684. To sever parental rights, the juvenile court need find by
clear and convincing evidence only one statutory ground enumerated in
A.R.S. § 8–533(B). Id. at 249, ¶ 12, 995 P.2d at 685. In addition, the court
must find by a preponderance of the evidence that termination is in the best
interest of the children. See id.; Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 22,
110 P.3d 1013, 1018 (2005).

¶22 Although Mother challenges the juvenile court’s termination
of her parental rights pursuant to A.R.S. § 8-533(B)(3), she fails to challenge
the court’s additional finding that termination was justified on the ground
of prior removal pursuant to A.R.S. § 8-533(B)(11). Because Mother does
not challenge the portion of the order based on A.R.S. § 8-533(B)(11), she
has waived any challenge to the court’s order based on that ground. See
Childress Buick Co. v. O’Connell, 198 Ariz. 454, 459, ¶ 29, 11 P.3d 413, 418
(App. 2000) (“[I]ssues not clearly raised in appellate briefs are deemed
waived.”). Thus, even were we to find the juvenile court erred in
terminating Mother’s parental rights on the ground of chronic substance
abuse under A.R.S. § 8-533(B)(3), we would still affirm the court’s order
under A.R.S. § 8-533(B)(11). See Michael J., 196 Ariz. at 251, ¶ 27, 995 P.2d at
687 (“Because we affirm the trial court’s order granting severance on the
basis of abandonment, we need not consider whether the trial court’s
findings justified severance on the other grounds announced by the
court.”); see also Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 280, ¶ 3, 53
P.3d 203, 205 (App. 2002) (“If clear and convincing evidence supports any
one of the statutory grounds on which the juvenile court ordered severance,
we need not address claims pertaining to the other grounds.” (citations
omitted)); A.R.S. § 8-533(B) (“Evidence sufficient to justify the termination
of the parent-child relationship shall include any one of the [enumerated
termination grounds].” (Emphasis added.)). Because the juvenile court’s
finding that termination was justified on the statutory ground of prior
removal was uncontested, Mother’s argument on appeal regarding the
ground of chronic substance abuse is moot, and we need not address it.

¶23 Nevertheless, even were we to assume arguendo that Mother’s
argument regarding A.R.S. § 8-533(B)(3) is not moot, reasonable evidence
supports the juvenile court’s finding that Mother was unable to discharge
her parental responsibilities due to a history of substance abuse and that
her condition would continue for a prolonged indeterminate period of time
under A.R.S. § 8-533(B)(3).

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 HEATHER D. v. DCS, et al.
Decision of the Court

¶24 Under § 8-533(B)(3), the juvenile court may grant a motion to
terminate parental rights if it finds the parent “is unable to discharge
parental responsibilities because of . . . a history of chronic abuse of
dangerous drugs, controlled substances or alcohol and there are reasonable
grounds to believe that the condition will continue for a prolonged
indeterminate period.” A parent’s failure to remedy substance abuse
“despite knowing the loss of [her] children was imminent, is evidence [she]
has not overcome [her] dependence on drugs.” Raymond F. v. Ariz. Dep’t of
Econ. Sec., 224 Ariz. 373, 379, ¶ 29, 231 P.3d 377, 383 (App. 2010).

¶25 The record indicates Mother has a history of abusing
marijuana dating to at least 2006 and methamphetamine dating to at least
2009, and her history of drug abuse has interfered with her ability to safely
parent the children and provide them with a safe and stable home. Mother
used marijuana while pregnant with F.L., was unable to parent the children
while incarcerated on drug-related charges in 2010-11 and briefly in 2013,
had a hard time remembering to do things and controlling her emotions,
and threatened to kidnap the children while they were in foster care. DCS
case manager Mandy Chamberlain opined that Mother’s continued drug
use placed F.L. and G.L. at risk of abuse, neglect, and possibly even death.

¶26 Although Mother had participated in substance abuse
treatment programs in the past - at the request of both DCS and the adult
probation department - she was unable to abstain from using illegal drugs.
And even though Mother successfully completed the substance abuse
treatment program related to the first dependency in November 2012 and
regained legal custody of F.L. and G.L. a few months later, she admittedly
relapsed by no later than June 2013. During this time, Mother often left the
children with relatives because she was “overwhelmed.” Consequently, in
September 2013, DCS removed F.L. and G.L. from Mother’s care for the
second time in less than two years.

¶27 Although Mother acknowledged she needed to demonstrate
a pattern of sobriety before DCS could return the children to her care, she
continued to abuse methamphetamine and marijuana and refused to
participate in the numerous treatment services offered her. In support of
her refusal, Mother maintained she did not have a drug problem, her drug
use did not interfere with her ability to safely parent the children, and
treatment was therefore unnecessary.

¶28 At trial, Ms. Chamberlain opined that the longer Mother
continued to abuse illegal drugs, the harder it would be for her to stop using
them. Ms. Chamberlain further opined that, given Mother’s history of drug

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 HEATHER D. v. DCS, et al.
Decision of the Court

abuse, Mother needed to participate in an inpatient or an intensive
outpatient treatment program before she could maintain sobriety long
enough for DCS to consider placing the children in her care. Ms.
Chamberlain testified that, despite her efforts to engage Mother in
treatment services, Mother had refused to do so. At trial, Mother admitted
she had refused to participate in treatment services, and although she
claimed she had been sober for forty-five days before trial, she
acknowledged she was not participating in drug testing and thus could
provide no independent verification. In this case, reasonable evidence
supports the juvenile court’s finding that Mother was unable to discharge
her parental responsibilities due to a history of substance abuse and that
her condition would continue for a prolonged indeterminate period of time
under A.R.S. § 8-533(B)(3).

II. Best Interest of the Children

¶29 Mother also claims the juvenile court erred in finding
termination of her parental rights was in the children’s best interest.
Because reasonable evidence supports the court’s best interest finding,
Mother’s claim fails.

¶30 To effectuate severance, the court must find, by a
preponderance of the evidence, termination of the parent-child relationship
is in a child’s best interest. A.R.S. § 8–533(B); Kent K., 210 Ariz. at 284, ¶ 22,
110 P.3d at 1018. To support a best interest finding, the petitioner must
prove that the child will affirmatively benefit from the termination.
Maricopa Cnty. Juv. Action No. JS–500274, 167 Ariz. 1, 6, 804 P.2d 730, 735
(1990). This means that “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.” Id. at 5, 804 P.2d at 734.
The best interest requirement may be met if, for example, the petitioner
proves a current adoptive plan exists for the child, id. at 6, 804 P.2d at 735,
or even that the child is adoptable. Maricopa Cnty. Juv. Action No. JS–501904,
180 Ariz. 348, 352, 884 P.2d 234, 238 (App. 1994). The juvenile court may
also consider evidence that an existing placement is meeting the needs of
the child in determining severance is in the child’s best interest. Audra T. v.
Ariz. Dep’t of Econ. Sec., 194 Ariz. 376, 377, ¶ 5, 982 P.2d 1290, 1291 (App.
1998). Moreover, “where there is clear and convincing evidence of parental
unfitness which has not been remedied notwithstanding the provision of
services by [DCS] and which detrimentally affects the child’s well-being,
severance may be warranted and appropriate.” Pima Cnty. Juv. Action No.
S-2460, 162 Ariz. 156, 158, 781 P.2d 634, 636 (App. 1989).

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¶31 In this case, the record supports the juvenile court’s finding
that severance was in the children’s best interest. At the time of trial, five-
year-old F.L. and four-year-old G.L. had been removed from Mother’s care
on two separate occasions and had been in an out-of-home placement for a
cumulative period of approximately twenty-seven months. The children
were placed together with a foster family willing to adopt them - the same
family that cared for them when they were previously removed from
Mother’s care - and the children were bonded to their foster family. Ms.
Chamberlain testified the children “have been through a lot for their very
young age,” have shown they do well with consistency, need structure, and
deserve permanency. She further testified the adoptive placement was
providing them with a safe and stable environment, which Mother could
not provide. The evidence supports the finding that termination would
benefit the children.

¶32 Further, although Mother claims “she has a very significant
bond with the minor children,” we will not reweigh the evidence on appeal,
see Jesus M., 203 Ariz. at 282, ¶ 12, 53 P.3d at 207, and evidence of a bond
with Mother does not necessarily preclude a finding that severance would
serve the children’s best interest. See In re Rafael S., 9 A.3d 417, 423 (Conn.
App. Ct. 2010) (recognizing “even when there is a finding of a bond
between parent and a child, it still may be in the child’s best interest to
terminate parental rights” (citation omitted)); accord In re T.S.M., 71 A.3d
251, 268-69 (Pa. 2013).

¶33 The record demonstrates that continuing the parent-child
relationships between Mother and the children would harm the children by
depriving them of the chance to move toward permanency when Mother
has proven incapable of caring for them. The children have been removed
from Mother’s care on two separate occasions and waited a substantial
period of time in foster care for Mother to overcome her drug issues.
Mother has shown little interest in addressing her addiction since the first
dependency and has given little consideration for the children’s needs since
relapsing. Ms. Chamberlain opined that Mother did not have the ability to
meet the children’s basic and emotional needs, and her continued drug use
placed the children at risk of neglect, abuse, and even death. Severance thus
served the children’s best interest - and outweighed whatever bond Mother
had with them - because it allowed them to be adopted by a family that
could provide them with the care and stability that Mother could not.
Reasonable evidence therefore supports the juvenile court’s finding that
termination of Mother’s parental rights was in the children’s best interest.

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CONCLUSION

¶34 The juvenile court’s order severing Mother’s parental rights
to F.L. and G.L. is affirmed.

:ama

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