Raegina M. v. Dcs

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 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

RAEGINA M., Appellant,

v.

DEPARTMENT OF CHILD SAFETY1, E.M., K.M., S.M., and J.M., Appellees.

No. 1 CA-JV 14-0032
FILED 07-03-2014

Appeal from the Superior Court in Maricopa County
No. JD22744
The Honorable Joan Sinclair, Judge

AFFIRMED

COUNSEL

Maricopa County Public Advocate, Mesa
By Suzanne Sanchez
Counsel for Appellant

Arizona Attorney General’s Office, Mesa
By Eric K. Knobloch
Counsel for Appellee

1 Pursuant to S.B. 1001, Section 157, 51st Leg., 2d Spec. Sess. (Ariz. 2014)
(enacted), the Department of Child Safety is substituted for the Arizona
Department of Economic Security in this matter. See ARCAP 27. We refer
to the agency in the body of our decision as ADES to be consistent with
the record from juvenile court.
 RAEGINA M. v. DCS, et al.
Decision of the Court

MEMORANDUM DECISION

Judge Jon W. Thompson delivered the decision of the Court, in which
Presiding Judge Michael J. Brown and Judge Kent E. Cattani joined.

T H O M P S O N, Judge:

¶1 Raegina M. (Raegina) appeals from the juvenile court’s order
severing her parental rights to her children, E.M., born in December 2005,
J.M., born in May 2007, S.M., born in December 2008, and K.M., born in
September 2010 (the children). For the following reasons, we affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2 In October 2012, the children’s guardian ad litem filed a
dependency petition alleging that the children’s parents could not parent
due to substance abuse.2 The juvenile court ordered the Arizona
Department of Economic Security (ADES) to take temporary custody of
the children. ADES placed E.M. with his paternal aunt and J.M., S.M., and
K.M. with their paternal great-grandmother. In December 2012, the
juvenile court found that the children were dependent. The court
subsequently approved a case plan of family reunification and ordered
ADES to arrange for reunification services.

¶3 Raegina’s participation in services was inconsistent. She was
asked to attend substance abuse treatment through TERROS, but she
missed fifteen group sessions from January through March 2013. TERROS
sent Raegina a closure letter due to her non-participation. Subsequently,
she returned to TERROS but missed three TERROS sessions in April 2013,
one session in June 2013, and ten sessions in July 2013.

¶4 Raegina began urinalysis testing as directed by ADES in
November 2012. From November 2012 through May 2013, she missed
nine tests and tested positive for opiates and morphine sixteen times,
oxycodone twelve times, and oxymorphone ten times. In June and July

2The juvenile court severed the father’s parental rights; he is not a party to
this appeal.

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Decision of the Court

2013 she tested positive for opiates and morphine four times. In August
2013, she twice tested positive for opiates and morphine.

¶5 In May 2013, Raegina went to an intake appointment at the
Changing Lives Center but was caught using “fake” urine during a
urinalysis test. She redid the test and tested positive for drugs. Thus, she
was denied entry into the program. Raegina went back to Changing Lives
in August 2013, but again failed a drug test during her intake
appointment. She tried a third time on November 25, 2013, had a clean
test, and was admitted to the inpatient program.

¶6 ADES filed a severance motion in June 2013. The juvenile
court held a contested severance trial in January 2014. At the time of trial,
Raegina had been in the inpatient program for approximately two months
and had been drug free since early November 2013. The court terminated
Raegina’s parental rights pursuant to Arizona Revised Statutes (A.R.S.) §
8-533(B)(3) (2014) (parent’s history of chronic abuse of dangerous drugs)
and A.R.S. § 8-533(B)(8)(a) (2014) (nine months time in care). The court
also found that severance was in the children’s best interests. Raegina
timely appealed. This court has jurisdiction pursuant to Article 6, Section
9, of the Arizona Constitution and A.R.S. § 8-235 (2014).3

DISCUSSION

¶7 Raegina argues that (1) the juvenile court did not make the
necessary findings to support its severance order and (2) the court abused
its discretion in finding that severance was in the children’s best interests.

A. The Juvenile Court’s Findings

¶8 Raegina argues that the juvenile court’s severance order is
defective because the court failed to make the necessary findings to
support it. Pursuant to Arizona Rule of Procedure for the Juvenile Court
66(F)(2)(a), if the moving party in a severance case meets its burden of
proof, the court shall “[m]ake specific findings of fact in support of the
termination of parental rights.” See also A.R.S. § 8-538(A) (“Every order of
the court terminating the parent-child relationship . . . shall be in writing

3 Absent material revisions after the relevant dates, statutes cited refer to
the current version unless otherwise indicated.

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and shall recite the findings on which the order is based . . . .”). Rule
66(F)(2)(a) requires the juvenile court to make “findings of fact and
conclusions of law . . . sufficiently specific to enable the appellate court to
provide effective review.” Ruben M. v. Ariz. Dep’t of Econ. Sec., 230 Ariz.
236, 241, ¶ 25, 282 P.3d 437, 442 (App. 2012). Raegina argues that the
juvenile court did not explicitly find that (1) there were reasonable
grounds to believe that her chronic substance abuse would continue for a
prolonged indeterminate period and (2) ADES had made a diligent effort
to provide her with appropriate reunification services under the nine
months’ out-of-home placement ground. Raegina does not, however,
argue that the evidence presented was insufficient to support such
findings.

¶9 Raegina failed to object to the lack of specificity in the
juvenile court’s findings below. Accordingly, she has waived this
argument. See Christy C. v. Ariz. Dep’t of Econ. Sec., 214 Ariz. 445, 452, ¶ 21,
153 P.3d 1074, 1081 (App. 2007) (“We generally do not consider objections
raised for the first time on appeal. This is particularly so as it relates to the
alleged lack of detail in the juvenile court’s findings.”) (citations omitted).
Further, Raegina did not argue below that ADES failed to provide
appropriate reunification services, and she has thus clearly waived that
issue. See Shawanee v. Ariz. Dep’t of Econ. Sec., 234 Ariz. 174, 178-79, ¶¶ 16-
18, 319 P.3d 236, 240-41 (2014) (holding that by failing to bring alleged lack
of reunification services to the juvenile court’s attention, parent is
precluded from pursuing that issue for the first time on appeal).

¶10 Moreover, waiver notwithstanding, the court’s findings in
the order below were adequately detailed. To support severance on the
substance abuse ground, the juvenile court needed to find that Raegina
was unable to discharge her parental responsibilities because of a history
of chronic abuse of dangerous drugs or controlled substances, and that
there were reasonable grounds to believe that the condition would
continue for a prolonged indeterminate period. See A.R.S. § 8-533(B)(3).
The court satisfied this requirement by finding that Raegina had a chronic
drug problem, in spite of her several months of sobriety prior to trial:

Mother told TERROS . . . that she started using
methamphetamine at age 18 and heroin at age
24. . . . She used heroin and prescription pain
medications ‘off and on’ throughout [the
dependency] case with her last use November
11, 2013. . . . Despite her efforts, Mother was

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not able to provide a clean drug test to get into
inpatient treatment until November 2013,
thirteen months after this dependency case
started. From this record, Mother has abused
heroin for at least two years and has a history
of methamphetamine abuse prior to that. She
struggled to provide a clean urine test to get
into inpatient treatment. . . . The Court believes
Mother’s drug use in this case is chronic. . . .
The Court believes Mother’s substance abuse
makes her incapable of discharging her
parental responsibilities. . . . The Court finds
that Mother’s efforts here over the duration of
this dependency case essentially constitute
sporadic, aborted efforts to deal with her
substance abuse problem.

The court further found that ADES had met its burden of proof on all of
the severance motion’s allegations, including the allegations that “there
were reasonable grounds to believe that [Raegina’s] condition will
continue for a prolonged indeterminate period” and “[ADES] made
diligent efforts to provide appropriate reunification services.” In addition,
the court’s lengthy order below outlined the services that ADES asked
Raegina to participate in over the course of the dependency, including
urinalysis testing, parent aide services, substance abuse counseling and
treatment, and psychological and psychiatric evaluations. We conclude
that, even if Raegina had not waived her objection to the juvenile court’s
findings, the findings were sufficiently specific for our review. See Ruben
M., 230 Ariz. at 241, ¶ 25, 282 P.3d at 442.

B. Best Interests

¶11 Raegina further argues that the trial court erred in finding
that severance was in the children’s best interests. “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.” Audra T. v. Ariz. Dep’t of Econ. Sec., 194 Ariz.
376, 377, ¶ 2, 982 P.2d 1290, 1291 (App. 1998) (citations omitted). 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). We do not reweigh the evidence, because “[t]he
juvenile court, as the trier of fact in a termination proceeding, is in the best

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position to weigh 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).

¶12 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 the children were adoptable and
that ADES had a current case plan of adoption for the children. The
children had been placed with relatives who are willing to adopt them
and provide them with permanent homes. Accordingly, we find no error
in the juvenile court’s finding that severance was in the children’s best
interests.

¶13 For the foregoing reasons, the juvenile court’s severance
order is affirmed.

:gsh

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