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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

TABATHA T., Appellant,

v.

DEPARTMENT OF CHILD SAFETY, A.T., L.T., Appellees.

No. 1 CA-JV 16-0356
FILED 2-9-2017

Appeal from the Superior Court in Maricopa County
No. JD528105
The Honorable Karen L. O’Connor, Judge

AFFIRMED

COUNSEL

The Stavris Law Firm, PLLC, Scottsdale
By Alison Stavris
Counsel for Appellant

Arizona Attorney General’s Office, Mesa
By Nicholas Chapman-Hushek
Counsel for Appellee Department of Child Safety

MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Jon W. Thompson joined.
 TABATHA T. v. DCS, et al.
Decision of the Court

W I N T H R O P, Judge:

¶1 Tabatha T. (“Mother”) appeals the juvenile court’s order
terminating her parental rights to A.T. and L.T. (“the children”).1 Mother
challenges each of the three statutory bases—neglect, chronic substance
abuse, and fifteen months out-of-home placement—the juvenile court
found as grounds for the order terminating her rights. For the following
reasons, we affirm.

FACTS AND PROCEDURAL HISTORY2

¶2 Mother, who was born in 1975, is the biological mother of the
children, who were born in 2011 and 2013. Mother has a history of
substance abuse—including marijuana, crystal methamphetamine, cocaine,
ecstasy, “shrooms,” LSD, PCP, and alcohol. In more recent years, she began
abusing various prescription pain and psychotropic medications.

¶3 In September 2014, Father called the police after Mother sent
him a text message threatening to harm herself and the children. After
arriving at Mother’s home, police officers discovered an unsecured, loaded
gun on a desk in the room where three-year-old A.T. was sleeping. The
officers took Mother to a local hospital as a suicide risk.3 Mother was
admitted for psychiatric care and hospitalized for nine days.

¶4 The Department of Child Safety (“DCS”) removed the
children from the home, placed them in an out-of-home placement, and
successfully petitioned to have the juvenile court adjudicate them
dependent on the basis that Mother was unable to parent them safely due
to mental health issues, substance abuse, and neglect.

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

2 We view the facts and reasonable inferences therefrom in the light
most favorable to affirming the juvenile court’s order. Ariz. Dep’t of Econ.
Sec. v. Matthew L., 223 Ariz. 547, 549, ¶ 7, 225 P.3d 604, 606 (App. 2010).

3 The day before this incident, Mother called the police to her
residence due to a domestic violence incident between her and a former
boyfriend. At the time police were called out, Mother “appeared to be
under the influence and had a difficult time staying on track.”

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Decision of the Court

¶5 Due to concerns that Mother’s abuse of her prescription
medications adversely impacted her ability to parent and protect the
children, and in an effort to reunify Mother and the children, DCS required
Mother to cease her substance abuse and show she would ensure the
children’s safety. To help her do so, DCS offered Mother numerous
services, including random drug testing, substance abuse assessment,
individual counseling, a psychological evaluation and consultation, a
psychiatric evaluation, parent aide services, supervised visitation, and a
family reunification team.

¶6 Over the next twenty-three months, Mother participated in
services, including urinalysis testing and a substance abuse assessment,
although the TERROS intake assessor did not recommend that she
participate in treatment. Nevertheless, Mother’s case manager testified that
Mother appeared “drowsy, disorganized, and not understandable” when
she met with the children and DCS.

¶7 Between mid-December 2014 and early June 2015, Mother
consistently tested positive for her medications, and the level of the
medications in her urine stayed high—even after Mother claimed she had
changed her medications and the levels should decrease. She also twice
tested positive for alcohol. Although she consistently visited the children,
Mother often focused on Father and needed to be redirected from
discussing aspects of the dependency case with the children, even after the
parent aide had advised Mother not to do so. When things did not appear
to be going her way, Mother would become visibly upset, causing the
children to cry and misbehave, and as a result, the parent aide voiced
concerns about Mother’s behavior and the children’s safety.

¶8 Meanwhile, a psychologist—Daniel Juliano, Ph.D.—
evaluated Mother in December 2014 and January 2015. He noted that
Mother “presented with acute despair, sadness, anxiety, a great deal of
fearfulness, mistrust and hyper vigilance,” and opined that Mother “has
major anxiety problems, obsessive-compulsive features, and she believes
she is ADHD [attention deficit hyperactivity disorder], but there could be a
more significant mood related disturbance, perhaps even a bipolar
disorder.” Dr. Juliano diagnosed Mother with Mood Disorder NOS,
ADHD, R/O Anxiety Disorder with Prominent Obsessive-Compulsive
Features, and R/O PTSD (post-traumatic stress disorder). He also stressed
that Mother should not “burden[] her children with her concerns, worries,
and despair” and opined that the prognosis for Mother’s ability to properly
parent the children in the foreseeable future “would be dependent on her

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demonstrated sobriety, her continued stabilization for a mood related
difficulty, and her adherence to a therapy.”

¶9 Despite continuing concerns about Mother’s sobriety and
ability to properly focus on the children during visitation, DCS began to
allow Mother to have overnight visits with the children in late December
2015, and referred her for a family reunification team. In March 2016,
however, DCS revoked such visits and the services of the reunification
team.4 In response, Mother left DCS rambling, incoherent voicemails that
sounded as though she was under the influence of substances. At
subsequent visits with the children, Mother’s parent aide observed Mother
slurring her speech, appearing “slowed down,” and generally acting as
though she was abusing her prescription medications.

¶10 At the same time, Mother’s urinalysis tests were returning
positive for high and varied levels of her medications. Her levels of her
prescribed amphetamine salt tablets ranged from 7,000 to 64,380
nanograms per milliliter, even though she was prescribed a set dosage and
was not to take it as needed. Consequently, DCS surmised that Mother had
not taken her medications as prescribed, and noted a continuing concern
“about [M]other’s ability to parent and make appropriate decisions that can
keep her children safe while using her prescription medications.”

¶11 In mid-May 2016, DCS consulted Dr. Juliano, who advised
that Mother “has a difficult to treat pain disorder as well as a complicated
mood disorder, which could cause unexpected drug interactions that
would need to be evaluated by a medical professional.” Dr. Juliano also
recommended that Mother renew sessions with her therapist, and be
directed to focus and “stay on message” with the children during parent
aide visits. He also noted that “the case plan for reunification . . . is currently
challenged by a number of unknowns and risk factors that were evident
during the beginning of this case and continue to be evident now almost
twenty months later.”

¶12 On May 25, 2016, DCS moved to terminate Mother’s parental
rights to the children on neglect, mental illness, chronic substance abuse,

4 Mother had allowed a woman not approved by DCS to stay with her,
even when the children visited overnight. The unapproved woman also
had children in DCS’s custody, and her presence added to existing DCS
concerns about Mother exposing the children to “inappropriate adults.”

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and fifteen-month out-of-home placement grounds. See Ariz. Rev. Stat.
(“A.R.S.”) § 8-533(B)(2), (3), (8)(c) (Supp. 2016).

¶13 From then on, Mother’s urine returned positive for
medications at high and unstable levels. After reviewing Mother’s TASC
records, Mother’s medication prescriber confirmed that Mother was
abusing her prescribed medications (amphetamine salts, morphine, and
oxycodone) and was regularly testing positive for oxymorphone—an
unprescribed drug. Nonetheless, Mother continued to deny that she
abused her medications or had ever threatened to harm herself and the
children.

¶14 DCS continued to provide Mother with supervised visitation;
however, during the visits, Mother would become upset, yell, and talk
openly about the legal case, and the children would subsequently come
home distraught and have difficulty sleeping. During an August 2016 visit
to Mother’s home, the parent aide noted “multiple issues,” including that
Mother “was not using A/C and the house was hot with limited airflow,
smelled of animal urine, and was quite dirty.” Moreover, Mother appeared
disorganized, cried multiple times, and discussed losing her parental rights
with the children, including stating, “I will never see you again, they are
going to take you away forever.” At one point, Mother went to her
bedroom for approximately thirty minutes while the children waited for
her to play, and she also coached the children to state that their placement
had hit one of them.

¶15 On August 17, 2016, the juvenile court held a hearing on the
motion for termination. After taking the matter under advisement, the
court terminated Mother’s parental rights based on neglect, chronic
substance abuse, and fifteen-month out-of-home placement grounds. The
court also found DCS had made diligent efforts to provide reunification
services for Mother, and termination was in the children’s best interests.

¶16 Mother filed a timely notice of appeal. We have jurisdiction
pursuant to A.R.S. § 8-235(A) (2014) and Rule 103(A) of the Arizona Rules
of Procedure for the Juvenile Court.

ANALYSIS

I. Standard of Review

¶17 “Parents possess a fundamental liberty interest in the care,
custody, and management of their children.” Kent K. v. Bobby M., 210 Ariz.
279, 284, ¶ 24, 110 P.3d 1013, 1018 (2005) (citing Santosky v. Kramer, 455 U.S.

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745, 753 (1982); Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 248, ¶ 11,
995 P.2d 682, 684 (2000)). Even fundamental rights are not absolute,
however. Id. (citing Michael J., 196 Ariz. at 248, ¶ 12, 995 P.2d at 684). A
court may sever those rights if it finds clear and convincing evidence of one
of the statutory grounds for severance, and finds by a preponderance of the
evidence that severance is in the best interests of the children. See A.R.S.
§§ 8-533(B), -537(B) (2014); Kent K., 210 Ariz. at 281–82, 288, ¶¶ 7, 41, 110
P.3d at 1015–16, 1022.

¶18 The juvenile court retains great discretion in weighing and
balancing the interests of the child, parent, and state. Cochise Cty. Juv. Action
No. 5666-J, 133 Ariz. 157, 160, 650 P.2d 459, 462 (1982). As the trier of fact in
a termination proceeding, the juvenile court “is in the best position to weigh
the evidence, observe the parties, judge the credibility of witnesses, and
resolve disputed facts.” Jordan C. v. Ariz. Dep’t of Econ. Sec., 223 Ariz. 86, 93,
¶ 18, 219 P.3d 296, 303 (App. 2009) (quoting Ariz. Dep’t of Econ. Sec. v. Oscar
O., 209 Ariz. 332, 334, ¶ 4, 100 P.3d 943, 945 (App. 2004)). Thus, the
resolution of conflicts in the evidence is uniquely the province of the
juvenile court, and we will not reweigh the evidence in our review. Jesus
M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 282, ¶ 12, 53 P.3d 203, 207 (App.
2002); see also Pima Cty. Adoption of B-6355, 118 Ariz. 111, 115, 575 P.2d 310,
314 (1978) (“In considering the evidence it is well settled that an appellate
court will not substitute its own opinion for that of the trial court.” (citation
omitted)). We will not disturb the juvenile court’s order unless no
reasonable evidence supports its factual findings. Matthew L., 223 Ariz. at
549, ¶ 7, 225 P.3d at 606.

¶19 “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.” Jesus M., 203 Ariz. at
280, ¶ 3, 53 P.3d at 205 (citations omitted); see also A.R.S. § 8-533(B)
(requiring that evidence sufficient to justify the termination of the parent-
child relationship include “any one” of the enumerated termination
grounds).

II. The Fifteen-Month Out-of-Home Placement Ground

¶20 Mother challenges each of the statutory severance grounds
found by the juvenile court. She first argues the juvenile court erred in
terminating her parental rights to the children on the fifteen-month out-of-
home placement ground.

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¶21 The juvenile court may terminate parental rights under A.R.S.
§ 8-533(B)(8)(c) if DCS “has made a diligent effort to provide appropriate
reunification services”5 and

[t]he child has been in an out-of-home placement for a
cumulative total period of fifteen months or longer pursuant
to court order . . . ,[6] 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.

¶22 Mother suggests the court erred in finding that she failed to
remedy the circumstances that caused the children to be in an out-of-home
placement and that a substantial likelihood exists that she will not be
capable of exercising proper and effective parental control of the children
in the near future. As support for her argument, Mother states that she was
offered and participated in numerous DCS services, sought out and
engaged in other services, obtained and has maintained employment as an
independent contractor with Uber, and despite her “disorganized
behavior,” pays her own expenses. However, the fifteen-month out-of-
home placement ground does not require the juvenile court to consider a
parent’s efforts at remedying the circumstances that have caused the

5 Mother states once in her brief that the juvenile court erred in finding
that DCS made a diligent effort to provide appropriate reunification
services. She fails to develop or support her argument, however, and her
conclusory statement comes at the end of her lengthy argument about how
she participated in “the array of DCS services” offered. Given the
concededly large number of reunification services DCS offered in this
case—including random drug testing, substance abuse assessment,
individual counseling, a psychological evaluation and consultation, a
psychiatric evaluation, parent aide services, supervised visitation, and a
family reunification team—and Mother’s failure to challenge the
sufficiency and appropriateness of these services during the dependency or
on appeal, we find no error in the juvenile court’s determination that DCS
made a diligent effort to provide appropriate reunification services.

6 Mother does not challenge the juvenile court’s finding that the
children have lived in an out-of-home placement for at least fifteen months
under court order. Accordingly, she has conceded the accuracy of that
finding. See Britz v. Kinsvater, 87 Ariz. 385, 388, 351 P.2d 986, 987 (1960).
Moreover, reasonable evidence supports the finding.

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children to be in an out-of-home placement; rather, it requires the court to
consider whether the parent has failed to remedy the circumstances—
regardless of her efforts to do so—and assess her ultimate ability to remedy
those circumstances. Compare A.R.S. § 8-533(B)(8)(a) (“the parent has
substantially neglected or wilfully refused to remedy the circumstances”)
and (b) (same) with (c) (“the parent has been unable to remedy the
circumstances” 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”); see also Maricopa Cty. Juv. Action No. JS-6520, 157 Ariz.
238, 243, 756 P.2d 335, 340 (App. 1988).

¶23 Moreover, reasonable evidence supports the juvenile court’s
finding that “Mother is unable to remedy the circumstances that caused the
children to be in an out-of-home placement,” and its further finding that
“there is a substantial likelihood that Mother will not be capable of
exercising proper and effective parental care and control of the children in
the near future.” At the motion for termination hearing, the court was
presented evidence that, despite being offered and engaging in
reunification services, Mother continued to abuse her prescription (and
other) medications, leading her to continue to display erratic behavior and
make poor decisions, thereby putting the children at risk while in her care.
Additionally, Mother’s DCS case manager testified that Mother had
neglected the children and placed them in an unreasonable risk of harm,
failed to remedy the circumstances that caused the children’s out-of-home
care, and remained unable to discharge her parental responsibilities. The
case manager added that, after nearly two years of services with little
improvement, a substantial likelihood existed to believe Mother would
remain unable to exercise parental care and control in the near future. The
juvenile court’s finding that clear and convincing evidence supported
severance of Mother’s parental rights under the fifteen-month out-of-home
placement ground is supported by reasonable evidence, and we will not
reweigh the evidence. See Jesus M., 203 Ariz. at 282, ¶ 12, 53 P.3d at 207;
Pima Cty. Adoption of B-6355, 118 Ariz. at 115, 575 P.2d at 314.7

III. Best Interests

¶24 Mother does not challenge the juvenile court’s finding that
severance was in the children’s best interests; however, we note that the

7 Because we affirm the juvenile court’s severance finding under the
fifteen-month out-of-home placement ground, we do not address Mother’s
challenges to the neglect and chronic substance abuse grounds. See Jesus
M., 203 Ariz. at 280, ¶ 3, 53 P.3d at 205; A.R.S. § 8-533(B).

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record supports the finding. The record demonstrates both the affirmative
benefits of permanency and stability to the children from severance and the
elimination of potential harm that would exist if the parent-child
relationships were not severed. See Maricopa Cty. Juv. Action No. JS–500274,
167 Ariz. 1, 6, 804 P.2d 730, 735 (1990); Oscar O., 209 Ariz. at 334, ¶ 6, 100
P.3d at 945. Further, the court found the children’s current placement is
meeting their needs, and the children are adoptable. See Audra T. v. Ariz.
Dep’t of Econ. Sec., 194 Ariz. 376, 377, ¶ 5, 982 P.2d 1290, 1291 (App. 1998);
Maricopa Cty. Juv. Action No. JS–501904, 180 Ariz. 348, 352, 884 P.2d 234, 238
(App. 1994).

CONCLUSION

¶25 The juvenile court’s order terminating Mother’s parental
rights to the children is affirmed.

AMY M. WOOD • Clerk of the Court
FILED: AA

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